Obama's Quiet War on Employers

Imagine for a moment that you are a small-business owner looking to hire a new employee. As tough as the economy has been, you’ve managed to put your firm on track to expand.

Now imagine facing a lawsuit for requiring perhaps one of the most basic qualifications for job applicants – a high school diploma. You don’t have to imagine that last part. It’s now an unfortunate reality thanks to guidance recently issued by the Equal Employment Opportunity Commission.

The “informal discussion letter” states that requiring a high-school diploma as a qualification for employment may violate the Americans with Disabilities Act, which the EEOC enforces. Therefore, an employer must prove a high school education is “job related and consistent with business necessity,” or face potential fines or lawsuits brought under ADA.

Employers should take note. Despite this being an “informal” letter, EEOC investigators and trial lawyers will undoubtedly use this to their advantage. It continues an unfortunate pattern of federal agencies quietly making policy and stepping up enforcement on small businesses for the slightest missteps.

Take the Occupational Safety and Health Administration, for example. The agency plays an important role in setting standards for safety in the workplace, but, since President Obama has taken office, OSHA has shifted from a focus on compliance assistance to a regimen of heavy fines for violators. The agency’s statistics show they are issuing far more costly fines and requesting more money in the federal budget for enforcement.

OSHA chief David Michaels brags that the average penalty more than doubled in 2011 from the previous year not only to punish violators, but to set an example to entire industries. The only example he’s setting is that it’s a bad time to start or expand a business. His words and OSHA’s actions reveal a government operation that is completely out of touch with the economic reality faced by small businesses today. He’d rather shut down a business to set an example than help them comply, grow, and thrive.

I’d be remiss not to mention another group, appointed by President Obama, that is having a significant, negative impact on the American economy: the National Labor Relations Board. Conceived as an impartial arbiter between labor and employers, it has transformed into a pro-union advocate under President Obama’s leadership. One recent example, in a favor to labor unions, is the NLRB’s decision to issue a potentially unconstitutional rule requiring all private sector businesses to prominently post something that amounts to an instruction guide for employees on how to unionize. NFIB is suing to have the rule overturned.

The decision that made the NLRB downright infamous in the job-creating business community was, of course, their complaint last year against Boeing. It nearly stopped the company’s ability to open a new plant in South Carolina, a right to work state.

The government has come to think it’s in the business of telling small businesses what’s right or wrong for them. Bureaucrats in obscure federal agencies are under the impression that they know better than job creators. This amount of meddling in the private sector is absurd as the economy attempts a recovery from one of the worst recessions in history – the government is absolutely the last group we should trust with the well-being of private businesses.

It makes you wonder why the Administration would guide its agencies to manipulate and punish employers at the worst possible time in our economy. By President Obama’s logic, he’s making things better for workers. In reality, he’s creating an atmosphere of fear and apprehension among small businesses wishing to expand, which has a chilling effect on employers, slowing potential job creation. That’s not good for workers and it’s terrible for the economy as it shows signs of bouncing back.

Small businesses want to comply with the law, but thanks to an ever-changing labyrinth of workplace rules and regulations, it’s nearly impossible. There are new traps being set every day to prevent them from creating jobs.

The Administration knows that backdoor rulemaking and punitive enforcement on small businesses won’t attract big headlines, or even much attention from Congress in some cases. In doing so, they are quietly picking winners and losers. Sadly, the losers are the nation’s biggest job creators, job seekers, and the economy as a whole.


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