National Clothesline

here is a presidential election scheduled for November. John Kerry is counting on union support, so recently, he refused to cross a picket line. George W. Bush, like many Republican presidents before him, has tried to establish his “liberal” credentials in the labor area. Many people do not realize that his father, also a Republican, signed the civil rights law that added jury trials and punitive damages to discrimination lawsuits.

Normally, I try to give helpful hints for running your business in this column. It’s summer, however, and many employees are on vacation, so I am going to take this opportunity to editorialize. If I could change the labor laws, or if I suddenly found myself advising the president, what would I do?

Redesign OSHA

The first thing I would do is redesign OSHA. I would eliminate the practice of enforcement through citations and fines. I would find a way to create a cooperative atmosphere between employers and OSHA compliance officers. Employees, as well as employers, would be responsible for safety, and the safety regulations would be shorter and easier to understand. Training of employers and employees by OSHA would be the centerpiece of the program, not fines and penalties.

Abolish the FMLA

I would abolish the Family and Medical Leave Act. It cannot be fixed. If I was asked to fix it, however, I would start by eliminating “intermittent” leave, and make it more difficult to classify an illness as a serious medical condition entitling the employee to time off.

The FMLA is an attempt to legislate goodness, and bad employees are using it as a weapon against their employers.

I would propose a “safe harbor” severance statute for employers. Any employer who paid three months or more of severance pay would be able to prevent being sued by a former employee. So often, there is a marginal employee that is being retained merely because he or she is a potential litigant — because of age, race, etc. — and a severance pay safe harbor would allow the employer to avoid litigation.

Free speech in the workplace

Anyone who has looked at my website knows that I am generally against regulating speech in the workplace. Yes, I know that we should have laws against racial and ethnic harassment in the workplace, including a prohibition against using racist words.

But do we really need a law that decides whether a joke should be the basis for an employee lawsuit for sexual harassment? Do we really want federal judges and juries deciding whether banter between employees was “welcome” or “unwelcome?”

I would prohibit union organizers from applying for jobs just to unionize a non-union employer. The practice is called “salting,” and the National Labor Relations Board allows it. In fact, the NLRB seems to favor unions trying to hurt employers with frivolous charges. It is a stupid practice, and employers should be allowed to reject union organizers who apply for work. It should be enough that the union organizer plans to leave once the workforce is unionized.

Revamp wage and hour laws

I would totally revamp the wage and hour laws to make them simple, understandable, and fair. Also, I would shorten the time period for employees to sue from the current two to three years down to six months. Mistakes under the wage and hour laws are common, and employers should not be forced to go back three years to correct them.

Further, I would clean up the exemption requirements to be based, primarily, on the amount of pay, not the duties of the employee. The wage and hour laws are nearly 70 years old, and they do not reflect the reality of the workplace any longer.

Believe it or not, I am in favor of getting rid of many of the laws that allow me to make a living. It is nearly impossible these days to run a workplace without having an experienced labor lawyer to call, regularly, for advice. Employers should be able to make decisions based on good judgment, not the so-called “good judgment” of a congressman from Iowa with union ties. Of course, I have the feeling that I will never have to worry about losing my job.

The trend seems to be to make it more difficult to run a business, whether it’s a Republican or Democrat in the White House. As my partners might say, “Is this a great country or what?” If I cannot change the law, at least I can help my clients deal with it.

Good luck. Next month, back to helpful advice.

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.