(Centennial Fellow) Here’s a little exercise for Colorado business owners, managers or anyone else whose job requires that they keep the bills paid, the doors open, and customers satisfied:
• Take a few minutes to read how legislators at the State Capitol want to treat you.
• Then suppress the urge to go out and create a dozen new jobs. (Really, it won’t be hard to do.)
The relentless attack on job-creators spearheaded by the trial-lawyer lynch mob at the State Capitol is breathtaking. Not that it’s surprising that trial lawyers are seeking new opportunities to litigate – that, after all, is what trial lawyers do.
What’s breathtaking is that so many legislators simply do not understand the real-world plight of employers who are too often threatened by dubious lawsuits filed by former employees who may have a grudge but often do not have a legitimate grievance.
Instead, the prevailing attitude among some legislators is that the typical employer is a ruthless goon who routinely treats employees like disposable commodities. That notion, of course, is foolish. Most employers recognize that good, reliable employees are indispensible, so they do everything reasonable to accommodate them.
Colorado Civil Justice League, the business organization I help lead, believes in justice for those who may have been wronged, balanced by fairness for those who may be wrongfully accused. Just as a handful of employers aren’t so thoughtful and accommodating, a few employees cause problems from their first day on the job and can’t be fired soon enough.
In these latter instances, employers simply want to part company and hire someone who will do a better job. On the other hand, some lawmakers want to give the fired employee his or her day in court – largely at the employer’s expense.
The cost of defending a lawsuit isn’t simply writing a hefty check to an attorney to defend you in court. Defending against a lawsuit can mean an absolute disruption of the workplace.
Organizing a cogent defense, even against frivolous charges, disrupts the normal routine of a workplace so that allegations can be investigated, employees interviewed, and records reviewed. After all, employers are placed in the awkward position of proving their innocence to a jury comprised largely of people who identify more readily with the employee than the employer.
Yet many lawmakers are trying to give employees and their attorneys even more incentives to litigate. Barely halfway through the legislature’s 2013 session, employers have been threatened with:
• Criminal prosecution for payroll disputes, and a one-sided loser pays arrangement that always requires losing employers to pay the winner’s legal costs but never requires a losing employee to do the same (House Bill 1227).
• Damages of up to $300,000 for “emotional pain and suffering” from an employee who claims to be a victim of illegal discrimination (House Bill 1136).
• Lawsuits for inquiring about a job applicant’s credit history (Senate Bill 18) or for looking into their social media accounts (House Bill 1046). Fortunately, the sponsors of these two measures recognized that their original proposals imposed an undue burden on employers, so they amended their bills to provide protections for employers and remove the threat of litigation.
The message all these bills send to employers is unmistakable: If you don’t want to be sued, hire the first person who walks in the door, assume that everything he or she tells you is truthful, and don’t ever deny a raise or promotion, much less consider termination, no matter what they do.
Remarkably, many of the same people supporting these bills were talking about creating jobs only a few weeks ago. However, the only jobs these bills create are for more attorneys and human resource managers – or new positions in some other state.
Mark Hillman is former Senate majority leader, a Centennial Institute Fellow, and executive director of Colorado Civil Justice League (www.CCJL.org).