Should Discretionary Clauses be built into Workplace Laws?

Michael Zeytoonian Business, Employment Law, Workplace Disputes

Sometimes, when you cast out a big net, you catch a lot of fish that you weren’t intending to catch. When fishing, a fisherman has the option of sifting through his catch to check what is there, keep what he wants and throw the rest back in the water. With a minor interruption of their activities, the unwanted fish can usually resume what they were doing.

Unfortunately the workplace laws and those who are designated to enforce the laws don’t typically have that discretion. In some instances, it would be more productive if some discretionary flexibility was written into some of the laws or understood to be a part of the process of how the laws are enforced.

I represent both employers and employees in workplace-related disputes, working with both sides to resolve their disputes without litigating. In 2016, I’ve worked on three cases in which the strict enforcement of the wage and hour laws actually did the employees a disservice and hurt the small business employers. The “wide net” that the laws give enforcement agencies also pulls in many businesses who are clearly not the types of employers who abuse the system or hurt employees.

Most of these employers take good care of their employees. These are companies that go the extra mile for those who work for them, whose policies and practices usually offer far more benefits and greater protections than the laws provide. They are proactive. You look at how long their people have stayed with them and you see 20 years, 30 years, etc. You see their model workplaces, appreciated employees whose companies provide what they need in a healthy workplace environment. These employers are flexible enough to accommodate the day to day life needs of their employees. No one is complaining. People are in fact more productive and often work harder for their company. There is mutual respect and loyalty.

But even these types of companies sometimes find themselves getting caught in legal technicalities. A zealous agency hauls them in, sometimes because they were targeting a certain industry. Sometimes, this law net catches those who are doing things right, while at the same time missing the real wrongdoers and abusers that don’t take care of their employees and have figured out how to work around the law, often by just laying off employees.

In these situations, when early in the investigation of the company it becomes very evident that the employer is one of the good guys, it would be helpful to have some discretion written into the enforcement. When it’s clear that a company is doing things right, is well intentioned and working to be in compliance with a myriad of laws and regulations, there needs to be an escape clause, a pass given or some discretion worked into the enforcement provisions. When the agency knows that this is not the kind of employer that the law was designed to target – a company that is not the problem, but already is part of the solution – the means to recognize the goodness of the company should be available.

A provision that allows the agency to point out the technical violation, make a suggestion or two about how to productively address it so that it doesn’t happen again, is what is needed in these cases. This would give good business owners and well-intentioned law enforcement agencies and staffs the opportunity to mutually acknowledge the technical problem, understand the good purpose of the law and affirm that this particular company is not an intended target. They can resolve the matter by shaking hands, encouraging each other to keep up the good work and close the file with no further action needed. There is no need and no purpose being served by blemishing the otherwise perfect records of companies like these and having them walk away from the legal encounter with the feeling that “no good deed goes unpunished.”

Rather, a worthwhile mutual goal here would be for law enforcement agencies to recognize their allies out in the workplace, for employers and employees to know that the agency has got their backs and is going after those businesses that that create unfair advantages for themselves by unfairly cutting corners. Building some discretion into the laws would help prevent the letter of the law from undermining or obstructing its spirit and purpose. Discretionary provisions would provide the flexibility needed for good resolutions with these kinds of employers. These solutions would also result in employers, employees and law enforcement agencies respecting each other’s goals, acknowledging each other’s shared interests, and working in collaboration and trust to meet them.