Law Office of Stephen R. Polauf | Labor & Employment Attorney | New Haven, Connecticut

My Employment Law Blog

Disclaimer: Content is informational only, not legal advice. For specific guidance, consult an attorney in your jurisdiction.

Welcome to my employment law blog, my writing here reflects my thoughts on employment law from my experience representing employers—offering practical advice, topical policy commentary, and original legal analysis. My piece on Connecticut’s Paid Sick Leave law was published in the Hartford Business Journal in March 2025, and I also cross-post my content here to LinkedIn.

  • Enemy of Innovation: The Shared (Destructive) Ideas of Antitrust and Employment Laws

    The caricature of the robber baron has been around for over a century. It depicts the American businessman or industrialist as a crook, a thief, a mal-intentioned and brutish persona who nevertheless possesses inordinate and far-reaching power and influence that he nefariously uses against others. The source of the “robber baron’s” wealth and perceived power is never identified, nor is it necessary to understand what this fictional representation is meant to convey.

    We would never presume that the source of the “robber baron’s” wealth would be his own innovation, creativity, or the value he produces. It is assumed that whatever power he has, it must be inherent and unfairly gained. To the extent we acknowledge the process by which he acquired his wealth, we also take for granted that it must have been through the exploitation of others.

    The robber baron’s victim is depicted as the “everyman”: the “working class,” the “poor,” the downtrodden. His enablers are the government, we are led to believe, but only to the extent that it is under his control. The “robber baron” is either illustrated as being large and overweight—to suggest his desire for far more than he needs—or as an animal or other creature with claws, tentacles, or spider’s legs, a metaphor for his innate assets and how he uses them.

    The answer provided by the political demagogues who present the public with such an image is government intervention. Presumably, were the businessman such an evil force in society, we would do all that we can to prevent it. However, rather than eliminate the “robber baron,” the government proposes instead that we control him through regulations, statutes, and other political means so as to extract whatever value he has to offer while limiting his reach and influence, which we deem it inherently immoral for him to exercise. So long as government stands between the “people” and the “robber barons,” the public’s interests are protected.

    Such a farce has been perpetrated on the public for over a century and continues to be, despite its total detachment from reality. In fact, the “robber baron” does not exist in reality as portrayed in cartoons and print or the stereotypes in political speeches. However, the “solution” to the robber baron has been implemented into reality in the form of all manner of regulation against private enterprise, in ways that the public has voted on and others in which the public has not.

    The most pernicious examples are antitrust law, which sprung forth the Sherman Act of 1890, the Clayton Act of 1914, and the Federal Trade Commission Act of 1914, and employment law, which gave rise to, among others, the National Labor Relations Act of 1935, the Fair Labor Standards Act of 1938, the Occupational Safety and Health Act of 1970, the Employee Retirement Income Security Act of 1974, and the Family and Medical Leave Act of 1993.

    All of these laws presume the employer or the corporation to be villains, the same ones on whom we depend for the jobs they produce and products they create. We do not consider that these entirely fictionalized “villains” could not survive in a free market if they possessed all of the negative traits we attribute to them. For example, a company attempting to corner the market with high prices would be undercut by competitors; the wicked employer who unfairly punishes his employees would struggle to find anyone to work for him.

    Nor is it questioned whether the provider of the solution may, in fact, be the source of the problem. Yet the truth is that it is the government that creates the “robber baron” and presents itself as the force necessary to restrain him. Government subsidies and other preferential treatment of particular corporations—to the exclusion of others—permit those economic actors receiving government largesse to engage in uncompetitive practices, both in the market for their products and in employment, through their ability to prevent other employers from emerging to unseat them.

    Antitrust laws punish corporations for becoming too “large” and are applied when a corporate recipient of government largesse starts to get a little too plump. Employment laws suggest that the employer is the enemy and the government is the advocate of the people, yet government policies enable the worst employment practices by creating a barrier to entry that discourages small businesses from being able to offer a viable alternative.

    Why do I link these two areas of law together? Because they are both joined by a common and false philosophy. Moreover, they represent the worst and most destructive implementations of that philosophy against the free market and the individual right to contract and trade. It is a philosophy based on collectivism and altruism—that the profit motive is an evil one, and that the role of the government is to play “Robin Hood” by redistributing the wealth and products generated by a small few to various “groups” within society. Such concepts are anathema to individual rights, on which America was founded.

    Antitrust laws are perhaps the most immoral laws on the books today and are based upon an almost laughably ironic principle: that the government’s role is to prevent private businesses from monopolizing the market. Private businesses cannot monopolize a free market; if they attempt to do so, they only create an opening for competition to undercut them.

    Monopolies require government coercion and “prestige” to exist. The government CREATES monopolies and then casts itself as the white knight to defend the public from them. Think “too big to fail.” This is the reality of our economy today, and the perverse results are so widespread it is almost an accepted facet of daily life.

    To illustrate my point, employment law is an excellent example of government intrusion into the free market that has harmed the American worker by reducing competition. The barrier to entry to create a business is high due to the regulation of private employment contracts. The built-in cost of hiring a single employee, and the potential for legal exposure, is so astronomical that many small businesses forgo hiring employees altogether and operate as sole proprietorships.

    This is not only anti-free market but anti-American (and I don’t mean in a nationalist sense, but in terms of the founding principles). It destroys innovation by entrenching economic players whose industry dominance is ensured by the government, rather than their offerings on the market. The harmful effects of destroying competition are distributed across all industries and markets, and not in an abstract but a real and tangible sense.

    Here’s another example: When I represented large employers in private law firms, the biggest clients were the ones who were publicly funded—hospitals, municipalities, schools, or large corporations that were significant beneficiaries of government subsidies (that smaller businesses have a snowball’s chance of getting).

    And guess what? These clients didn’t question the bills or the work product. How many large firm associates know their billing rate offhand? I didn’t. I do now. Do we think this makes the legal services industry more or less competitive? Does it make the quality of options on the legal market better or worse? (Don’t answer—rhetorical questions.)

    I am motivated to represent small-to-mid-sized businesses in employment law, in part, because they are the greatest victims of this dynamic. For anyone who has ever contemplated joining the fray by opening their own small business, or is employed by one, then your interests are in direct collision with these laws. If you benefit from the fruits of innovation produced in a free market, you do as well.