There is an 800-pound gorilla in the room. Look in the mirror. You are the bad guy.
How did this happen?
Businesses have to wonder when they suddenly sprouted horns. Sure, all employers make mistakes at times, and some make really big ones. But what has private industry done to deserve this current level of apparently consistently adversarial attention from the American government?
Health care programs supplied by the private sector have been criticized and demonized. Congressional legislation has displaced independent board of director authority over many executive pay programs. It is the new law.
DOL has a master plan ("Plan, Prevent, Protect") to require employers to prove their efforts to comply with laws affecting pay, OSHA, discrimination, and other areas. The steps are part of a broader campaign to stimulate more federal and state enforcement agency investigations, such as the recent Wage Theft bandwagon. That is perfectly legal and proper.
More than a year ago, readers were alerted to a suggested minor recordkeeping change to the FLSA regulations that would create onerous documentation and "right to know" communication requirements for all worker classification determinations. That is perfectly legal and proper.
The Wage and Hour Division of DOL has partnered with the ABA litigation bar for referral of Federal overtime complaints to private attorneys who then can access government files to pursue either individual or class action suits. That is perfectly legal and (while irregular) can be defended as proper.
OFCCP has a new set of Affirmative Action Plan proposed regulations out since April with its comment period due to be closed in June dealing with the same kind of thing. Federal contractors would be required to supply documented evidence to back up any physical and mental job requirements that might disqualify a protected applicant. That is perfectly legal and proper.
In early May 2011, DOL announced an application (app) for iPhones and iPads that goes around the employer to address the worker directly. It establishes a direct channel between disgruntled employees and DOL WHD enforcers and litigators. "This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay," said Secretary Solis. This equips them with provenance to support overtime investigations, question pay determinations and maybe even stimulate class actions suit, due to DOL's deal with the ABA litigation branch. That is perfectly legal, if rather aggressive.
Many people in the trade are concerned by all these legal and proper actions. Some see all these actions as completely consistent and progressively more serious government attacks on legitimate employer practices. Others see these as long overdue steps to curtail abuses visited on workers and taxpayers. Both sides agree that just because something is legal doesn’t make it automatically proper.
Some might maintain that employers as a class have sinned grievously and all must be ruthlessly scourged and forced to do full restitution for all offences, the innocent punished equally with the guilty. Others might say that the solutions are more harmful than the actual problems and will simply waste immense sums of money attempting to catch a few guilty parties.
Regardless, we did something that caused this confrontational environment.
The one single thing no observer expects to see is government assuming the cost of the interventions they encourage and the fixes they prescribe. One way or another, private enterprises will pay the price. HR departments, compensation staff and total reward professionals will be deeply involved in the corrective solutions and compliance responses to the issues we created.
We did something wrong… probably lots of things wrong. What do you think it was? Please supply your proposed lists of employer offenses against American society, because we can’t fix problems we won’t talk about.
E. James (Jim) Brennan is Senior Associate of ERI Economic Research Institute, the premier publisher of interactive pay and living-cost surveys. Semi-retired after over 40 years in HR corporate and consulting roles throughout the U.S. and Canada, he’s pretty much been there done that (articles, books, speeches, seminars, radio/TV, advisory posts, in-trial expert witness stuff, etc.) and will express his opinion on almost anything.
Image courtesy of londonhotelsinsight.com
I don't know where to begin... brilliant!
Posted by: Laura Schroeder | 05/24/2011 at 02:35 PM
This CAN'T have been that good of a post if no one has any suggestions about what we did to precipitate the avalanche of new regulations and controls! Come on, you can offer hypothetical (cough, cough) remotely possible theoretical ideas about where our profession might have performed somehow less than ideally. If no one wants to dance, the music wasn't that good.
Posted by: E. James (Jim) Brennan | 05/31/2011 at 06:29 PM