If Only Employees Enjoyed the Same Rights as Criminals

[Omaha Steve]

http://talkingunion.wordpress.com/2011/01/28/if-only-employees/

Posted on January 28, 2011 by dsalaborblogmoderator

by Ellen Dannin

Imagine being accused of a crime you did not commit, a crime so serious that the penalty was capital punishment. Naturally, with your life at stake, you would want the best attorney possible, someone who would stand with you and fight for justice. Among other things, your attorney would tell you that our criminal justice system required the prosecutor to prove you had committed the crime.

Now, imagine a system where no one had to prove you were guilty and where no proof you could offer could save you. Millions of Americans enter that system just by being an employee. In the United States, employers can legally fire employees without cause, and no amount of evidence can save that employee’s job. This is “employment at will,” a system created by judges in the 19th century, a system that lets employees be fired for a good reason, a bad reason or no reason.

Even though this system has been in place for over a century, many American employees do not understand how fragile their hold on their jobs is. Court decisions discuss at-will employment as being a contract that both employer and employee have agreed to. However, nothing could be farther from the truth.

Roughly 80 to 90 percent of employees in a study by Washington University School of Law associate professor Pauline Kim believed that they could be fired only if their employer had cause.

Some call being fired “industrial capital punishment,” and that is no exaggeration. An employee who is fired loses income and benefits and will most likely have trouble finding a comparable job – or any job.

FULL story at link.

[spooky3]

1. good article; thanks; I also find that

people do not understand employment at will, and even after they have studied it a little while, they have trouble "getting" it. I don't mean agreeing with it; I mean understanding how few rights they really have, if the employer chooses not to give them any.

[patrice]

3. Yes, "studied" or experienced what it actually means, which, with all of the layoffs

in this country, you'd think there'd be a few million people who need to think a bit about - H - O - W - exactly and precisely they lost jobs that in many many cases were somehow re-constituted elsewhere.

[patrice]

2. If you examine the logic of "at will employment" it doesn't work. The justification, as I understand

it, is that "at will employment" puts the employer and the employee on equal footing in re their respective powers and effects upon the enterprise. Hypothetically, since the employee can quit for whatever reason, whenever/whyever s/he chooses, the employer should also be allowed to terminate any employee, for whatever reason, whenever/whyever s/he chooses.

I am not sure that the actual situation is equal footing for both employer and employee, because employers have more actual and potential employees than employees have actual and potential employers.

For any given employer the relationship is one to many, while in any given actual instance, for any given employee, the relationship is many to one employer.

Yes, theoretically, each employee can go shopping for multiple possible other employers, but in so doing they can agree to ONLY the work that any given employer offers. Employers are not in the same situation. In situ, employers either have, or could have, one or multiple employees for any given job AND they have ALL of the power over how each job is defined.

Aside from the fact that, though the universe of different possible reasons an employer:employee relationship may be terminated by either party is the same for BOTH parties, the imbalance of powers in the employer:employee relationship make it significantly less likely that an employee can/will terminate the relationship for certain reasons for which ANY potential or actual employer experiences no such comparable restrictions.

In short, an employer can terminate an employee for latent or covert discrimination and employees have significantly less power to terminate the relationship for the same reasons.

This shows that at-will employment is REALLY only at-will for the employer.

[spooky3]

4. I agree about the power imbalance, but I think the primary rationale is this...

If you start a business, lawmakers figure, in a "free market", you should have a right to decide how to run your business. They only control what they deem to be sufficiently bad practices that negatively affect society in general, e.g., child labor, discrimination, etc.

Also, in your reply to my earlier post, I am not sure why you put "studied" in quotes - there are college students who study this topic in classes in business, sociology, etc., and in law schools. My point was that it's very difficult for them to believe they don't have more rights than they do.

[patrice]

5. I would consider agreeing with what you are saying about a free-market if there

were something that actually approximated that idea, rather than the system we have which, by virtue of its size and inertia, has created all types of exceptions and special interest favoritism, dependencies, such as: the fact of something that goes under the general rubric of "the good old boy's network" and other idiosyncratic hiring practices, special vendor relationships, and lobbying groups, not to mention bought-and-paid-for tax loopholes, and de-facto monopolies over the means of advertising, i.e. affecting the public perception of employers/business . . . to mention just a few of the traits that would cause someone to think that we don't operate in anything like an authentic free-market in which an employer's power should be absolutely honored as his or her own. In short, that power is NOT his/her own, it is derived from a huge more or less economically just collective and, probably in almost all instances, it would not exist without that collective.

Additionally, if we are to attribute somekind of power-capital ownership to employers, I would like to suggest that we also consider an employee co-relate for that factor which we could call labor-capital, a type of real value without which there would be no employers in the first place.

My sincerest apologies for any aspersions implied by my mis-quote above. I did not intend to allude to special usage; I was just trying to suggest additional relevant issues that should be studied. Though I would like to add that said "study" is not impossible outside of accredited institutions and what could be viewed as elitist programs. From where I stand, there are one whole hell of a lot of professionals who have labor-capital learned from real-world experience, including empirical qualitative knowledge (rather than exclusive quantitative, or statistical, knowledge). From the perspective of a not insignificant minority, the disposal of empirical qualitative labor-capital, in exclusive favor of "accredited" quantitative knowledge, is an essential part of our fundamental problems, a fact recognized by the likes of W. Edwards Deming amongst others.

[spooky3]

6. You are reading WAYYYY too much into my very simple posts.

1) I have not said that studying something is in any way equivalent to or superior to experience. I'm simply trying to state that some people do study this topic, so it's not necessary to put "study" in quotes, which implies that no one truly studies it.

2) I did not in any way argue for employment at will, so there is nothing to agree/disagree with me about. I simply described my factual understanding of the rationale given for why EAW is the prevailing employment paradigm in the US. This is a matter of fact and not opinion.

[patrice]

7. Pardon me. I was just quoting your use of the word "study" and it appears to me that you were the

first one to read something into that. I tried to apologize for not using the original quote better.

And your reference to the "free market" just seemed such an obvious given to me that I was a little surprised and confused as to why you would bring that up, except to take that position somehow. Whether you were taking that position or not, my response can be seen as a counter to that point no matter who is taking that position.

It's the medium we are in here, many of the usual cues are missing from our communications and I will admit that I often also write for other, differently informed, readers in addition to the thread.