Some things that get you teed off
abor law is like
golf. Let me explain. Golf has many, many rules that are
difficult to understand. They are, nevertheless, the rules. Two
days before I wrote this column, a professional golfer lost
$150,000 because he fixed a ball mark that in no way helped his
situation, and a television viewer called in to point out that
he had violated a rule with a two-stroke penalty.
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Golf is a difficult game. No matter how
much you practice, you have bad rounds. In labor law, no matter
how hard you try, you cannot please all your employees.
Golf has its share of cheaters. Some
golfers, like Bill Clinton, cheat all the time. There is a joke
about a golfer who commits murder with his 5-iron. When the
police ask him how many times he hit the victim, he says:
“Eight times, but put me down for a five.”
Anyone who has seen Caddyshack is familiar
with golfers who bend the rules. There are also golfers who
never cheat and will, in fact, call penalties on themselves
even though there is no chance of being caught.
Workplaces are like that. Some employees
can spend more time trying to bend the rules than working,
while others would never even consider breaking a single rule.
Employers and the courts tolerate cheaters all the time.
Today, it was reported that the National
Labor Relations Board forced an employer to reinstate a former
employee with back pay who used profanity to his supervisor.
Unfortunately for the employer, the profanity was used in the
context of a protected employee complaint.
The case books are full of situations
where an employee who had broken the rules was forgiven by the
court because his or her behavior was “not so bad”
as to disqualify the employee from continued employment. No
two-stroke penalty for employees, apparently.
Golf is expensive. A labor mistake can be
expensive. Fail to pay an employee correctly under the Fair
Labor Standards Act, and you might owe twice back pay and
attorneys fees. Fire an employee without proper documentation,
and you could face reinstatement, back pay, and legal fees.
Don’t take action against a bad employee, and you may
find the other employees quitting or working less diligently
because they figure there are no consequences for engaging in
bad behavior. Labor mistakes, like golf balls, can cost lots of
money.
Several years ago, the Supreme Court was
asked to decide if the PGA Tour could be forced to allow Casey
Martin, a good golfer with a rare bone disease, to ride a cart
instead of walk the course like the rules required. The PGA
lost, under the labor law known as the Americans With
Disabilities Act, because it was found that allowing Martin to
use a cart was a “reasonable accommodation.”
Several of the justices, however, disagreed with the
majority’s ruling.
Those dissenters said that rules should be
enforced, and it is not up to the Court to decide if a rule is
a good one, especially when the rule relates to a game. Of
course, the rules of golf were bent in this situation to
interpret a labor law in a way that no one ever anticipated
when Congress passed it. How is it disability discrimination if
the rules are applied the same to everyone?
The Court, however, had no problem with
scrapping the rule. As you might have figured out by now, the
last few months in the northeastern US where I live has seen
too much rain. So, I have spent more time practicing labor law
and defending overburdened employers, who are only trying to
keep their businesses afloat, than I have playing golf.
Both labor law and golf are frustrating to
me, but at least in golf, getting a poor score does not hurt a
company and its employees the way a poor labor law can. Put me
down for a “five.”
Frank Kollman is a partner in the law firm
of Kollman & Saucier, PA, in Baltimore, MD. He can be
reached by phone at (410) 727-4300 or fax (410) 727-4391. His
firm’s web site at www.kollmanlaw.com has
articles, sample policies, news and other information on
employee/employer relations.
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