between the Public and Private Sector
2.5 Significant Trends in the Private Sector
Though sometimes complicated with burdens shifting and standards seeming to constantly change, one thing is clear: the standard of proof necessary to disci-pline an employee is lower than that for criminally prosecuting him. This lower standard is a demonstrable advantage of the private sector.
new opportunity for exploitation, and (2) the quantity of supervision decreases.
There is a subtle dichotomy here; as the exposure increases, protections decrease.
Look around your own organization. Do employees not have more access to just about everything and is not your organization operating with less supervision?
Furthermore, organizations have been tricked into thinking more can be done with less supervision. Consider for a moment a few of the “revolutionary,” often
“enterprise-wide,” “leadership initiatives” the big name “thought leaders” have sold to America’s “bleeding-edge” organizations designed to “empower” employees and create “world-class organizations” that are Built to Last.7 It’s sickening. I mean for heaven’s sake Let’s Get Real.8 It seems that for more than two decades corporate America has been running around looking for The New New Thing9 and has yet to find it. Maybe the chief executive should ask The Millionaire Next Door,10 because she is certainly not going to find it while meandering down The Road Less Traveled.11 With all due respect, what some of these change merchants (see, I cannot help using some of these terms, either) are peddling would not fly even if strapped to a Titan missile if attempted in most organizations. Although, much of this new-era corporate psychobabble and brainwashing nobly embraces employee relations and empowering individual contributors (there I go again), the sad fact of the matter is most people do not care.
Forgive my cynicism, but my experience is that most employees do not want to be empowered, most employees do not want more responsibility and most employ-ees are neither prepared nor willing to make tough organizational decisions. By and large, today’s employees could care less about most of the stuff that today’s thought leaders think they are interested in. Largely what employees want is a safe, fulfilling job, fair pay for their labor and a work environment in which they are appreciated and treated with respect. Think about it, if the average line employee or staffer wanted more responsibility or to take more risk, they would have started their own company. What has been created in many cases are work environments in which management has involved its employees in the business of running a business to a greater degree than what the typical employee wants. Then, in order to capitalize on the dividend of reduced headcount that the thought leaders and change merchants promised, they slashed the amount of supervision in their organizations; consider the now abandoned concepts of quality circles and self-directed work groups. Do you remember those? (Google the terms, if you don’t). Rarely have these initia-tives worked as anticipated. Instead they have served as expensive experiments.
They often did nothing more than distract management and consume valuable resources. By reducing the quantity of supervision without necessarily improving productivity, many of these well-meaning organizations created nothing more than fertile grounds for employee theft, dishonesty, and misconduct.
Let’s not forget the technology component. As management reengineered itself, it often simultaneously embraced advances in technology. The new technologies promised improved efficiency and quality. So is the case in most industries and workplaces. However, as I previously mentioned, new technology also means new
vulnerabilities. As fast as the technology is deployed, villains will figure out how to exploit it to some criminal advantage. In some cases, they will even go farther and just steal the technology and the products it produces, as in the illegal practice of ripping off music CDs from the Internet.
Tip: When deploying new technology, always attempt to identify exploitable vul-nerabilities and address them before they are found by the criminally minded employee. Remind management that bleeding edge is often just that.
2.5.3 More Litigious Workforce
America is the most litigious industrialized nation in the world. For all its greatness and potential, our society is also one wrapped in rules and regulations. Be it the placement of safety labels on household stepladders (has anyone ever really read them?) to the amount of vacation pay a terminated employee must be paid, we have decided that nearly everything we do, say, or think needs to be regulated. In the post-World War II era of regulation promulgation, we have passed more laws and regulations than were implemented during the 175 years prior. This tangled morass of increasingly contradictory rules, laws, and regulations is rapidly reaching critical mass. Even lawmakers are beginning to recognize the trouble they have created.12 However, little has been done to solve the problem. Here’s an example of one per-plexing conflict.
The Americans with Disabilities Act (ADA, 42 U.S.C. 12101, 1990) stipulates employers must reasonably accommodate those with recognized or perceived dis-abilities. It also imposes an obligation to reassign work, make other accommoda-tions to assist persons with disabilities or those recovering from injuries. This makes sense because early return-to-work policies reduce costs. However, if an employee is injured and an employer in an effort to reduce Workers’ Compensation costs attempts to accommodate the employee and return him to an alternative or a light-duty position, the employer may very well violate the Family and Medical Leave Act (FMLA). The Department of Labor has taken the position that if an employee is entitled to leave because of a “serious health condition,” which may include a Workers’ Compensation injury, the employee is entitled to the same or equivalent position upon return. So, therefore, while the ADA and the employers’ Workers’
Compensation law may encourage rapid return to a light-duty assignment, the FMLA allows the employee to refuse to do so.
Here’s another example. The Equal Employment Opportunity Commission (EEOC) has recently pursued companies that use criminal conviction records for preemployment screening purposes. In two highly visible and controversial cases, the EEOC has alleged the employers in question, BMW and Dollar General, dis-criminated against black applicants by using criminal conviction records as part
of their preemployment screening process. The Commission asserted that while the behavior of the two defendants was not discriminatory, per se, the companies’
practices had a disparate impact on blacks. That is, the employers did not actually engage in direct discrimination, but their practices statistically affected more blacks than nonblacks. Thus, they were guilty of discrimination, anyway. In the case of BMW, the Commission’s conclusion relied on records that showed that while the workforce was overwhelmingly black and 55 percent of the applicants were black, 80 percent of those rejected were black.13 Say what you want about an administra-tion that says it wants to create jobs, this sort of government overreach is nothing but a job killer. One must really contort the facts in order to conclude an organiza-tion whose workforce is mostly black is practicing discriminatory hiring practices against blacks.
Other government bureaucracies also are confusing employers. Since its cre-ation in 1970, the Occupcre-ational Health and Safety Administrcre-ation (OSHA) has been hard at work creating a safer workplace for everyone. In doing so, the OSHA has published over 4,000 regulations, dictating everything from the height of a railing to the thickness of carpet. The maze of rules and often arcane regulations (how far a plank can stick out from the edge of a temporary scaffold) busy more than 2,000 inspectors and tens of thousands of attorneys that prosecute and defend the litigation that has precipitated. Attempting to toe the line, industry has spent several hundred billion dollars on compliance alone.14
Arguably, many of the laws and regulations, such as Title VII of the Civil Rights Act and those mentioned above, have made a safer and fairer workplace for Americans, but the net effect on the employer is more litigation and exposure.
People know it, too. In Los Angeles County alone, over 3,000 civil lawsuits are filed each day. Only a mere fraction of these are employment-related, of course; however, the fact remains that Americans like to sue. Most disturbing is that the trend shows no sign of reversing.
2.5.4 Expanded Rights and Protections of Employees
Some, like Philip Howard in his compelling 1994 best seller, The Death of Common Sense (Random House), have argued that, to a certain degree, the expansion of rights is a zero sum game. That is, as the rights of one group expand, the rights of another contract. Zero sum theory applies well to aspects of economics, but as we look at the ever-expansion of worker rights it seems to apply perfectly.
Legislation, such as Title VII, ADA, FMLA, and, more recently, the Health Insurance Portability and Accountability Act (HIPAA), has certainly provided much good. Few can argue against improving workplace safety or improving the treatment of employees. However, the cost has been the erosion of employer prerogatives and an exponential increase in compliance costs. It is estimated that HIPAA alone will cost employers over $45 billion. The trend has eroded employer doctrines, such as “at-will employment,” to the point of meaninglessness. Few
employers can terminate at will, no less hire whom they wish without contem-plating the litigation potential of perceived inequality or unfairness. We have created a mess.
Sadly, even the employees don’t win. Increased employer costs translate into fewer resources for research and development, fewer process and technology improvements, less profit, fewer investments, and ultimately the creation of fewer jobs. It’s a sad and pathetic cycle. Even the government loses. With less money in cir-culation and fewer people working, fewer taxes are collected. The net effect is a less competitive and weaker economy. No one wins when businesses are over-regulated.