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Although the law thoroughly relies on precedents going back to the Magna Carta, it is far from a static subject. New classes of causes of action are constantly retesting and redefining our interrelationships in our quest for a more civil society. Nowhere is this more apparent than in the field of employment law, where many of the issues being legislated and litigated today were inconceivable not that long ago. While the cynical will say that these new actions are just part of a plot to keep attorneys fully employed, a deeper cause is simply that the changing nature of our society demands new understandings and new agreements to accommodate all the changes.
The law brings about changes in society and societal changes then require new interpretations to existing law. Last year’s $131 million dollar judgment in the Wonder Bread case or the $192.5 million dollar settlement in the Coke class action would never have occurred when the Dred Scott or Plessey v. Ferguson decisions were the law of the land. The cases would never have even been filed. “Glass ceiling” actions had no place in a world where entrance to professions was barred at the front door. Courts never had to address the issue of whether union dues could be deducted from non-members’ pay checks back when government-sanctioned goon squads were assaulting and murdering union organizers.
Employment law changes are also brought about by technological or societal developments not related to legal issues. ERISA or Social Security litigation would have had little use back in 1900 when the average life expectancy was 49.2 years. Now, with 35% of the population surviving past their 85th birthdays, retirement issues are very important. The EEOC’s December 14th ruling that employers must cover birth-control pills and other prescription contraceptive drugs in their health insurance plans, which is expected to result in a lot of litigation, would have been immaterial 40 years ago when these items didn’t exist. The Microsoft “permatemp” stock option suit, whose $97 million settlement should be finalized this month, only came about due to the growth in both use of temporary employees by companies and the growth, from one to 10 million over the past decade, in the number of employees who receive stock options as part of their compensation package.
I don’t personally know anyone that is satisfied with the current state of employment law. The issues continue to grow in complexity – OSHA’s recent ergonomics rule alone ran over 600 pages in the Federal Register – and there are too many frivolous lawsuits being brought. On the other side of the issue, there are still blatant, uncorrected injustices not being addressed by our legal system.
Nevertheless, I would say that what we have now is far better than where we stood a century ago. I know that I wouldn’t have been able to be president of a successful, national company at that time, and I enjoy what I am doing. I hope you also enjoy the progress we have made in this area and continue to work for improvement.