VIEWPOINTS : Uncle Sam Keeps Butting In : He’s Still Expecting Businesses to Do His Most Critical Work

After more than six years of an Administration committed to deregulation, there is more government intervention in the workplace today than when President Reagan took office.

True, it takes new forms. Instead of discrimination charges or safety inspections, an employer is more likely to be defending a lawsuit filed by a fired worker or dealing with the Immigration and Naturalization Service.

But the courts and the INS are just as much the government as the Equal Employment Opportunity Commission or the National Labor Relations Board. Despite atrophy in the enforcement of federal labor and equal opportunity laws, the push to make the workplace a primary site for waging society’s major battles is persistent and powerful.

What’s more, traditional regulators such as the EEOC and NLRB are in only temporary remission. When these agencies are reactivated, businesses will be confronted with all they faced before plus a whole new set of constraints in dealing with their employees.

The Immigration Reform and Control Act, the penalties of which will be felt by employers starting July 1, is not only a far-reaching change in our immigration laws but potentially the most important employment legislation since the Civil Rights Act of 1964.

The heart of the immigration act is sanctions, including rapidly escalating fines and possible imprisonment, for employers who knowingly hire unauthorized aliens. The law imposes a standardized hiring procedure on employers and gives the government broad new rights to inspect employer records.

Possibly inspired by the new immigration law, Atty. Gen. Edwin Meese III and others have urged that employers be conscripted by the government into leading the fight against drugs. According to Meese, the workplace is “the strategic choke point in the use or misuse of illegal drugs.”

While many employers have taken steps on their own to prevent employee drug use, the attorney general sees employment-based drug testing as the way for society to attack the drug problem. And the Senate is considering legislation requiring random drug testing for more than 3 million transportation workers.

The fiscal side to this new conscription is mandated employee benefits. Congress, which through balanced-budget legislation has limited the government’s ability to pay for new benefits, instead is requiring private employers to provide, among other things, continued health insurance coverage after employees leave their jobs and pension contributions for employees 65 or over who continue working. Mandatory parental leave may be next.

Parallel changes are occurring at a state level in the form of further mandated benefits and the judicial imposition of broad new restrictions on an employer’s right to fire a worker.

In one recent California case, for example, a respiratory therapist walked off her job, claiming that conditions were unsafe for patients because she was the only qualified therapist working on her shift. The hospital fired her. She sued the hospital for wrongful termination,and her claim was upheld on the ground that “California has a public policy favoring qualified care for its ill and infirm.”

(The court failed to explain how her abandonment of the patients promoted qualified care for them.)

There is a common assumption uniting the new immigration law, Meese’s view of the workplace as the “choke point” in the war against illegal drugs, the new “mandated benefits” and the state court restrictions on firings. It is the idea that general political and social problems should be dealt with at work.

While there long has been government regulation of the terms and conditions of employment, the new regulation has nothing to do with employment. It doesn’t involve wages, opportunities for jobs or safe working conditions.

Immigration is the most basic kind of political concern. Private businesses are being asked to do one of the government’s most important and distinctive jobs: preserve the sanctity of our borders.

The same is true of drugs. While drug use is a legitimate concern of employers to the extent that it affects employee performance, it is primarily a problem in maintaining order in society, a police function.

The same is true in the new wave of wrongful termination cases. In the case of the fired therapist, the courts required an employer to allow an employee to act as a health inspector even though she refused to perform the job for which she was hired.

What’s wrong with this? Aren’t these simply practical ways of attacking urgent social problems? No. The new issues that have been injected into the work environment blur the distinction between the private and public.

Our freedoms assume two distinct realms: one for government, where we deal with our common concerns, and one for private action, where we deal with everything else. While the line separating these realms always has been fuzzy and is constantly changing, major shifts should be of concern.

Loading the employment relationship with all these broader issues during an Administration whose advertised goal is restoring the private realm is cause for great concern. What we are seeing now is the flip side of deregulation, attempting to achieve public goals through private action. Protecting the private realm requires vigorous public action.

The economic effects of conscripting private employers to do the government’s job will be debilitating. The more the government asks private employers to do, the less they will be able to fulfill their primary mission of providing competitive goods and services, and thereby jobs.

It is no accident that this is occurring as unions decline in influence. These developments are completely inconsistent with the underlying theory of collective bargaining, which is to promote private decision-making about the terms and conditions of employment.

The impulse to create rights and obligations in the workplace is deep-rooted. The Reagan Revolution’s efforts in the name of deregulation have had the unintended effect of cultivating further demands, and the harvest could be costly for an economy that is struggling in a brutally competitive world.