Walter Olson at Overlawyered started they debate by asking “If I could press a button and instantly vaporize one sector of employment law…” He answered age discrimination. I’ll let him defend his selection and you can read his explanation here.
Jon Hyman and Daniel Schwartz weighed in that they would reform the depression-era outdated Fair Labor Standards Act and leave laws generally. Both areas are ready for reform and simplification. I asked my partners what area of employment law they thought most needed vaporizing (or at least reform). One identified the varying mosaic of state immigration laws that are being passed across the country and that carry substantial (perhaps catastrophic) financial penalties for employing individuals not authorized to work in the U.S. Another colleague identified the new health care law that requires employers to provide health plans or pay a penalty for each uninsured employee as an area of law that is stifling job growth –at least for small to mid-sized employers.
My choice for vaporization is a little more specific. I would target the FMLA regulations that limit how much information an employer can require from an employee on intermittent FMLA leave –particularly when the leave results from unexpected, anticipated and unscheduled flare-ups of serious health conditions. These limitations place unreasonable restrictions on an employer’s ability to manage and identify intermittent FMLA abuse. Employers face regulatory barriers in determining whether the employee’s absence on Friday was a result of his migraine headache (for which he was approved to take intermittent leave) or because he stayed out too late with friends carousing. Verifying, in a meaningful way, that employees are using intermittent FMLA leave for approved purposes should not be prohibited or even discouraged.
If you think a particular area of employment law needs vaporizing (or at least reform), post it in the comments below and I’ll publish them to continue the debate.
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