Labor & Employment Law Update

If U.S. employment laws feel impossible to keep up with, you’re not imagining things.

Between federal, state, and local laws and shifting agency guidance, even well-intentioned employers can find themselves in violation of labor and employment laws without realizing it.

You probably can’t fix the system, but you can protect your business from unnecessary risk and expense. The key is investing in prevention, empowering the right people, and acting decisively before small issues escalate.

Why U.S. Employment Law Is So Complicated for Employers

Now, if you’ll indulge me, let’s acknowledge the frustration.

A very intelligent person once said: “The only thing worse than severe over-regulation is over-regulation that not only constantly proliferates but also changes every four years.” (Hint: It was me, just now.) The U.S. has become an over-regulated mess of employment laws at the federal, state and local levels thanks to politicians, lobbyists, and lawyers. 

Lurking around every single corner is a federal employment law waiting to trip an otherwise well-meaning business owner up. Think you’ve got that federal employment law figured out on a seemingly simple issue? Well, don’t forget about that similar, but just different enough, state law with unforeseen wrinkles waiting to jump out and scare the daylight out of you.  Feel good about compliance at last? Surprise: you just hired a remote employee in a new state where there are different state and local laws that provide entirely different rights and protections.

And just when you think you have it figured out, you hear a dreaded presidential election commercial as you try to peacefully enjoy your evening.  You know that will be followed shortly by employment-related executive orders being rescinded, agencies like the DOL, OSHA, and NLRB shifting course, and enforcement priorities changing overnight. I don’t know how any business owner can avoid suffering whiplash.

None of this is to say employment laws shouldn’t exist. Unscrupulous actors do real harm, and basic protections are needed.  But let’s be honest: the system, as it stands, is broken. Why, pray tell, do I seem hellbent on making your day depressing and hopeless?  I suppose because misery loves company.  Just kidding, there is a point to this.

So, what can you do about it?  Try following some sage advice from intelligent folks.

An Ounce of Prevention: Reducing Employment Law Compliance Risk

“An ounce of prevention is worth a pound of cure.” This time an actually intelligent person said this. (Hint: it was Benjamin Franklin.)

Do an internal audit of what your company is spending on prevention—manager training, internal audits, proactive controlled use of legal—versus what your company is spending on cure—litigation costs, government audits, settlement payments, etc. If you spend inordinate amounts on the “cure,” allocate more in your next quarterly and annual budgets for “prevention” efforts. Prevention measures  don’t completely eliminate risk, but over time it will measurably reduce it and lessen the “cure” necessary.

The Importance of Strong Human Resources in Employment Law Compliance

“Surround yourself with smart people who’ll argue with you.” (John Wooden)

In that same vein, hire sufficient quality HR staff. Invest in them and empower them to tell you when you’re in the wrong. Too often, I see a company with a significant workforce relying on an overstretched skeleton HR staff. They’re buried in day‑to‑day issues and lack the time or training to redirect leadership before a costly misstep.

Unless you have in-house counsel or a generous outside counsel budget, HR is your first—and sometimes only—line of defense to stay abreast of the patchwork of employment laws and constantly shifting landscape. One well‑trained HR professional who prevents a few minor claims and one major issue can pay for themselves many times over.

Why Employers Must Act Quickly on Employee Issues

“In any moment of decision, the best thing you can do is the right thing, the next best thing is the wrong thing, and the worst thing you can do is nothing.” (Theodore Roosevelt)

Don’t be afraid to take decisive action early on when an employee issue arises, even if the option isn’t free from all risk and liability. Allowing an issue to fester while you look for the “perfect” solution only permits problems to fester, frustrates managers, and invites time spent hand-wringing that could have been spent on an ounce of prevention for another issue.  Make the best decision available with the information you have and move forward.

Avoiding Paralysis by Analysis in Employment Law Decisions

“Thinking too much leads to paralysis by analysis. It's important to think things through, but many use thinking as a means of avoiding action.” (Robert Herjavec)

In that same vein, too many times I get a call from a client that has been dealing with an employee issue for weeks or months and has reached a point where they are stuck in a loop of paralysis by analysis. If you find yourself going in circles over an issue, call your counsel. A quick phone call to come up with a plan of action can save you a lot of time and anxiety. If you are hesitant to call because of the bill, you’re working with the wrong attorney.

Don’t Feed Meritless Employment Law Claims

“Never give in, never give in, never, never, never, never-in nothing, great or small, large or petty – never give in except to convictions of honour and good sense.” (Winston Churchill)

Sure, sometimes settling makes sense. But when your company has done nothing wrong, paying to make the problem go away only encourages the next one. Fighting meritless claims when you are positioned to do so helps protect your business and fights the broken system.