Bearing Down on Employers: The New Labor and Immigration Landscape

Bearing Down on Employers takes a look at the breadth of legislative, regulatory and sub-regulatory burdens facing employers in the labor/employment arena. The issues in this book are constantly changing and as such, the text will be continuously updated. Please check back regularly for updates.

Introduction

On July 14, 2010, the Chamber issued an open letter to the President, the Congress, and the American people titled Jobs for America, which outlined impediments to job growth in this country. The letter described the breadth of pending legislative and regulatory proposals impacting the business community and the resulting uncertainty which has inhibited economic growth. The letter specifically stated:

Uncertainty is the enemy of growth, investment, and job creation. Through their legislative and regulatory proposals – some passed, some pending, and others simply talked about – the congressional majority and the administration have injected tremendous uncertainty into economic decision making and business planning. This is why banks are reluctant to lend and why American corporations are sitting on well over a trillion dollars. It is why America’s small businesses and entrepreneurs, the engines of innovation and job creation, are starving for capital and are either struggling to survive or unable to expand.

The letter addressed many areas of concern, including the regulatory arena:

There must be a recognition by the administration and Congress that the regulatory burden they have imposed on the U.S. economy has reached a tipping point. Unless the cumulative impact of existing regulations, newly mandated regulations, and proposed regulations is seriously addressed, the economy will not create the jobs Americans need. We will lose even more jobs. They will simply disappear or be sent offshore.

The purpose of this book is to add to this debate through setting out in stark detail the enormity of what is pending in the employment area – legislatively, regulatory and sub- regulatory – only one part of the universe of compliance burdens facing the business community. While the employment law area has frequently been contentious and emotionally driven, the current level of changes proposed to our nation’s employment laws is virtually unprecedented. It also needs to be emphasized that these proposals are being levied upon a base of existing law that is already extremely complex, incorporated through numerous statutes, thousands of pages of fine print regulations intertwined with ambiguities, and tens of thousands of pages of case law.¹ Unfortunately, one could search diligently throughout these proposals and find little that would help limit frivolous litigation, provide educational assistance, or ease compliance burdens on employers. Rather, more mandates and increased damages and litigation overlaid by the heavy hand of agency enforcement, are the common threads. That these developments are occurring in an economy struggling to recover is particularly alarming and ominous to the business community.

For those who may doubt the challenges to an employer under this reality, read a few pages of the existing Code of Federal Regulations, or randomly select one of the many court decisions interpreting existing law. Then picture yourself as a small business person or the head of human resources now faced with numerous other changes in a maze of already confusing and daunting compliance obligations.

Not every proposal mentioned in this book is necessarily objectionable, but we thought it important to include a broad overview to depict in totality what new requirements employers may be facing in the workplace. While there may be a benefit to these requirements, there will also be costs, and costs cannot be ignored.

We hope that you will find this review of interest and that it will help illustrate the scope of challenges employers face.

¹ One treatise on employer obligations under equal opportunity laws alone runs over 3,500 pages. See Lindemann, B.T. & Grossman, P. (2007), Employment Discrimination Law (4th ed.), Chicago, IL (BNA Books).