The employment relationship, with the exception of marriage, is the most important relationship most people form. Whether from the employer’s or employee’s perspective many people seek to feed their family, realize their dreams, or achieve their most ambitious goals, via the employment relationship. The amount of attention the government pays to this area of the law bears witness to how important this relationship is to individuals and society as a whole.
When I graduated from law school in the late 80’s when most people thought of “employment law” they were really thinking about “labor law”, union elections, collective bargaining agreements, grievances, etc… At that time very few law firms had ’employment law sections”. Employment law was limited to sexual harassment and discrimination issues.
Over the last ten years this area has become more important and complex. Now there are a host of laws and regulations which affect the employer/employee relationship; Harassment and discrimination certainly, but also health and safety regulations, workers’ compensation, Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), Sarbanes Oxley Act, employee benefits (ERISA), pensions and 401 (k) regulations, medical privacy (HIPPA) and the list goes on and on. Now every large law firm has an employment law section and the number of firms which specialize in employment law has exploded.
As Congress, the courts and state legislatures increasingly put their stamp on issues and disputes which arise out of the employment relationship it makes legal Obligations, duties, rights and responsibilities between employers and employees more complex and increasingly both employers and employees need to consult or retain attorneys to help navigate successfully through these sometimes conflicting and confusing legal situations. Many times, choices a worker makes in one context will affect his rights in others. A classic example is a worker who files for disability benefits and makes a statement that she is unable to work, but who also wants to seek reinstatement due to discrimination and she may be prevented by the statements made in seeking the disability benefits.
Perhaps this complexity is due to the changing nature of the employment relationship. Gone are the days when a working person might only work for one or two companies their entire careers. Gone are the days of defined benefit pension plans which tied the worker economically to one employer. These days the emphasis is on “portability” of health insurance and retirement plans when a worker may change jobs several times in a short period of time. The law has changed to reflect this more mobile and transient workforce.
The employment laws have also tried kept pace with our society’s march to equality. The employment-at-will doctrine long prevailed in most states as the law of the land. The employment-at-will doctrine was a legal concept derived from England’s feudal laws which provided that an employer (the master) could discipline or fire the employee (the servant) for any reason at any time. This is a doctrine which existed in perfect harmony with slavery. In recent years the civil rights laws and other movements have eroded the employment-at-will doctrine to exclude certain illegally discriminatory basis for employment decisions (sex, race, religious affiliation, etc…)
The net effect of these “complications” is to make employment decisions more professional. Employers should now take great care before taking any adverse employment actions against their employees for fear of a lawsuit. This has created a “human resources” profession which does more than administer benefit plans. A good HR professional seeks to make sure that all employment decisions are for the benefit of the company, are fair, and non-actionable. Non-visionary Operations executives see this as more “red tape” to be avoided or skirted, but those business people who understand that treating your workforce fairly and consistently is good business which will impact the bottom line will be the winners in the 21st century.