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BS: Insane and doctrinaire US employment law
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BS: Insane and doctrinaire US employment law |
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Subject: BS: Insane and doctrinaire US employment law From: Richard Bridge Date: 02 Feb 12 - 05:32 AM http://www.openforum.com/articles/would-you-fire-someone-for-working-through-lunch "Illinois is an employment-at-will state, which means the employer can fire someone for a good reason, no reason or a bad reason, as long as it is not discriminatory" Ye Gods and little fishes. How can that country be called civilised (if it ever is)? |
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Subject: RE: BS: Insane and doctrinaire US employment law From: JohnInKansas Date: 02 Feb 12 - 08:46 AM The quote is probably accurate, but is misleading without some additional understanding of how things actually work. In all US states, employement of a person in the most general case is described as "employment at will," and the employment can be terminated by either employee or employer, for almost any reason, or for no reason. IF an employee is hired "under contract," the contract can state (but doesn't have to) conditions for termination, and can limit the employer to "dismissal for cause" reasons. Throughout the US, individual employment contracts are fairly common in some occupations, and virtually non-existent in others. In the more common circumstance, employees may form a union. No state can prohibit the forming of a union, with a few exceptions for "public service employees," although some states put up artificial barriers to such formation. To form a union, a "bargaining unit" consisting of a particular type of employees within a company must be defined, and if a sufficient percentage of that group signs a petition in favor of forming one, US Federal Law requires that the company must permit a vote by all the member of the group. If the vote passes, the union is created. The ONLY OTHER THING that the existence of a union provides for, is that the bargaining unit as a whole is entitled to have a contract with the employer(s). Such contracts usually include provisions about when and how employees may be terminated, but there is no truly "standard form" to say what must or must not be part of the contract. Once a contract is agreed to by both parties it applies to all members of the "bargaining unit," which means that the contract applies to all employees in that group, regardless of whether or not they actually are members of the union. The union is required to oversee enforcement of the contract for all employees in the bargaining unit, whether or not the individuals involved are union members or pay dues to the union. Some states have enacted "Right to Work" law, which prohibit collection of dues from employees who choose not to be members of the union. Other states permit collection of dues from all employees in the bargaining unit, regardless of whether they choose to be voting members of the union. A few states have passed "check off" laws, that may (if the contract provides for it) require the employer to collect dues from all members of the unit by payroll deduction. In a few "union states" (which generally includes all the "checkoff states") union membership - or at least dues payments - may be a requirement for employees within the bargaining unit, but the union is required to admit anyone who is willing to pay the dues. A very few states permit "closed shops" where the union representing employees in many places controls who may be a member from outside the individual companies, and membership is required before the employer is permitted to hire someone. (memberships in some unions in those places is usually only by inheritance - or purchase- from a deceased or otherwise departing union member). All states in the US permit "employment at will" and in many jobs mobs form at the entrance each day, and the employees wanted for that day are picked to work - each day. A majority of "hourly paid" workers in the US, in all states, have no contract, and their employment may be terminated at any time and for any reason. Some companies do have "employment policies" that amount to "one-sided contracts" and existence of such policies may place some limits on working conditions and hiring and firing. Some laws requiring such policies apply to some occupations and some company sizes and configurations. The impact in the story cited is that if an employee is "terminated for cause" (such as insubordination) the employee is generally not entitled to the unemployment compensation provided (generally) by the states. If the employee qualifies for the unemployment benefits, the employer for whom he last worked is quite likely to see the payments that company is required to pay into the unemployment benefit fund increased. In some states, an "unjustified termination" may be seen as a violation of state standards, and the increase in payments to the fund may be "punitive" (although seldom what would seem justifiable in many cases). Now if you want the whole story ... ... John |
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Subject: RE: BS: Insane and doctrinaire US employment law From: Richard Bridge Date: 02 Feb 12 - 09:32 AM Thank you John. I think it is also true that the US has more lawyer and other union-busters than any other place in the world - I am sure that the majority of hired-in union-busters (think back for example to the Grunwick disputes) are from the USA. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: Jim Dixon Date: 02 Feb 12 - 09:43 AM "...Illinois is an employment-at-will state..." I didn't know there was any other kind of state. Would anyone care to explain what happens in a place where "employment-at-will" is not the rule? By the way, the technicalities that John in Kansas so carefully explains may be true, but they don't apply to the majority of employees. Most of us don't work for the government, don't belong to a union, and don't have contracts. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: John P Date: 02 Feb 12 - 10:02 AM My girlfriend had to join a union in order to work for the City of Seattle. She is extremely skilled and gets paid the same as her incompetent co-workers -- and she can't demonstrate her skills and get a raise. It is an obvious and well-known fact that if you are in danger of getting fired for not being able or willing to do your job, you just file a union grievance and you have instant job security. It's actually less expensive for the city to carry a bad employee than to fight the union. Besides, everyone who disagrees with the union is immediately called a union buster. If the unions were dedicated to providing the very best employees possible (and weeding out the bad), they could be great partners with companies and high-caliber employees wouldn't get mashed down the lowest level. As it is, I distrust most unions as thoroughly as I do most companies. My preferred situation would be to have employment laws that are so good that unions would be unnecessary. As if! All those millionaires in the Senate . . . that's why we have unions in the first place . . . |
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Subject: RE: BS: Insane and doctrinaire US employment law From: artbrooks Date: 02 Feb 12 - 10:25 AM There are also laws in the US that consider all work done outside an employee's regular work day to be 'overtime', and which require compensation at a higher rate. This is true whether the work is ordered or not; these provisions of the Fair Labor Standards Act don't apply to everyone, but they would to the person in this example. A 'don't work at your desk during lunch' rule is directed at this, not at a clean office. Regardless, firing for a single instance of this and then mouthing off at the personnel director isn't (IMHO) a firing offense, assuming that the media account is entirely accurate. [And, in the interests of full disclosure, as the saying goes, I used to be a personnel director.] |
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Subject: RE: BS: Insane and doctrinaire US employment law From: pdq Date: 02 Feb 12 - 10:33 AM The electricians unions and the various plumbers and pipefitters unions demand high quality work and have training programs to insure that their members are qualified. Unions area mixed bag. They represent less than 14% of US employees and half of that number are employed by various federal, state and local governments. There is no correlation between union membership and work quality or overall productivity. The union members usually get higher salaries, health and dental plans and a pre-paid retirement plan. As we found out a year or so back, the unionized grade school teachers in Wisconsin got an average of $104,000 anual compensation when the national average is half that. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: EBarnacle Date: 02 Feb 12 - 10:45 AM John, unions and emploers "enjoy" adversarial situations. Unions are necessary to protect all employees from employers who choose to abuse them. Yesterday, I was aboard a launch service in New York harbor. A few years ago, there was a fight between the unions and employers to maintain workers' rights in the local shipping industry. The unions were locked out and eventually lost. The thoroughly professional crew on board this lighter, many of whom have been working for the company for years, have no benefits except for what they fund themselves. That includes retirement. There are no limits to the hours they are expected to be available. I joined them at 5 AM and left them at 6:30 PM. Would you do demanding physical work out of doors in these conditions? The pay is good but what is your life worth? As far as the example you cite, you are not presenting the whole picture. The supervisor is also incompetent. If the bad employee's deficiencies are properly documented, the employee can be "non-renewed." This is common to most union contracts and, though appealable and, if the supervisor has done the appropriate work, effective. It's called leadership. Yes, there are difficulties and expenses. It can be done, though. By the same token, though, both sides' interests should be protected. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: Richard Bridge Date: 02 Feb 12 - 12:40 PM The main alternative to "employment at will" is an unfair dismissal law. The employee (who has been employed for more than a specified qualifying period) who is unfairly dismissed is entitled to compensation. There are many technicalities but the principle seems obviously right. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: GUEST,Eliza Date: 02 Feb 12 - 01:58 PM How can you sack someone from their work 'for no reason'? That's totally bizarre! People aren't working just for fun, they have financial commitments, families to feed, mortgages to pay etc. You can't allow employers to chuck people off the job on a whim! Unfair dismissal laws are IMO essential. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: Jim Dixon Date: 02 Feb 12 - 02:34 PM OK, I found an article in Wikipedia called Unfair dismissal in the United Kingdom. Now I have something to read and learn about. But I honestly have never heard of such a law in the US. I did find an article called Wrongful dismissal. The article contains a disclaimer/warning: "The examples and perspective in this article may not represent a worldwide view of the subject." It says: Being terminated for any of the items listed below may constitute wrongful termination:As you can see, that's a pretty narrow scope. I think I could add a couple more categories of people who are protected, but they too are pretty narrowly defined and don't apply to most situations. There are separate and detailed sections about the UK and Canada, but it gives very little information about the US per se. All the discussion in this thread about unions is pretty much irrelevant because it only applies in situations where there is a union and the union has a contract with the employer. Most American workers do not belong to unions. And the original question was about US law. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: Q (Frank Staplin) Date: 02 Feb 12 - 02:44 PM The percentage of unionized workers in the U.S. is 11.4 percent. If the public sector is not considered, the percentage is slightly more than 7 percent. Union policies exert undue pressure on the great majority of workers. Twenty-four states have right to work laws; union membership cannot be imposed. Minnesota may enact right to work laws in the near future. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: JohnInKansas Date: 02 Feb 12 - 03:07 PM Not to single out the particular comment, but to illustrate a more general concept: It is an obvious and well-known fact that if you are in danger of getting fired for not being able or willing to do your job, you just file a union grievance and you have instant job security. This is true only if the contract includes a "seniority rule." The contract is negotiated between the company and the union, and nothing can be included in the contract unless both sides agree to have it in the contract. When, as is common, the company complains that "union wages are too high" it's because that's what the company agreed to pay, but now they've changed their mind. And although not emphasised, I did intend to suggest that the majority of workers in the US are not covered by union contracts. There are any number of laws and regulations that provide, in varying degrees, some restrictions on working conditions and employee/employer performance expectations, but even the "tightest" of union contracts is unlikely to even remotely approach the "sea squirt tenure" notion applicable to a separate select few in some specific "industries." John |
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Subject: RE: BS: Insane and doctrinaire US employment law From: artbrooks Date: 02 Feb 12 - 03:46 PM "It is an obvious and well-known fact that if you are in danger of getting fired for not being able or willing to do your job, you just file a union grievance and you have instant job security" is entirely untrue. A union contract almost always contains clear instructions on how to take disciplinary or performance-improvement actions. The key is, the action must be justified and the procedures must be followed. If they are, and the employee wants to then file a grievance under the negotiated grievance procedure, the union will normally feel obligated to allow him to do so. The biggest mistake a manager can make, other than taking action without following all of the rules, is to throw up his hands and give up when the grievance is filed. If the original action is justified, and all the rules are followed, management will almost always win. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: Jim Dixon Date: 02 Feb 12 - 03:55 PM I had never encountered the term "sea squirt tenure" before so I went Googling and found this: From Consciousness Explained by Daniel C. Dennett (Little, Brown and Company, Boston, 1991):That's pretty harsh, but it probably sums up the Republican view of why laws that protect employees are a bad idea. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: Jim Dixon Date: 02 Feb 12 - 04:04 PM I am immediately suspicious of anything that anybody labels as "an obvious and well-known fact." |
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Subject: RE: BS: Insane and doctrinaire US employment law From: Richard Bridge Date: 02 Feb 12 - 05:08 PM UK has both wrongful and unfair dismissal laws. In the UK wrongful dismissal is dismissal in breach of contract (including any terms of unions agreements that are part of the contracts, and many union agreements in the UK are expressly non-contractual). Awards are based on contract damages. Unfair dismissal is the creature of statute, it has many details, and one is the "Band of reasonable response" - the basis of which is that unless a dismissal (including constructive dismissal) is such that NO reasonable employer could have dismissed a claim for unfair dismissal will not run. There is a statutory award and a compensatory award both of which are capped (and some rarities) Unfair dismissal also includes dismissal for reasons associated with discrimination but in most or all such cases a qualifying period is not necessary and caps do not apply. A female merchant banker forced to take male clients to lap dancing clubs collected over £1,000,000. To UK eyes, the idea that an employer may dismiss for no reason without liability is bizarre. Most first world countries except the US have some sort of worker protection. Scameron has declared war on such laws in the UK. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: John P Date: 02 Feb 12 - 05:27 PM '"It is an obvious and well-known fact that if you are in danger of getting fired for not being able or willing to do your job, you just file a union grievance and you have instant job security" is entirely untrue.' Since I was giving one example of how things go at one employer, it seems odd to say it's entirely untrue. Of course the contract covers all this stuff, of course both sides agreed to the contract, of course if the employer wanted to enough they could get rid of the bad apples. BUT --- it is an ongoing joke in this particular workplace that if you file a union grievance you won't get fired, or at least not for a really, really long time. And I wasn't claiming that this is an obvious fact anywhere but the one workplace, although I'm pretty sure it's fairly common in other public employment workplaces. By the way, if there is an abusive employer I completely support the presence of a union. I'm glad I don't have to deal with any of that where I work. Our jobs are way better than we would get with a union contract. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: Don(Wyziwyg)T Date: 02 Feb 12 - 06:01 PM ""It says: Being terminated for any of the items listed below may constitute wrongful termination: • Discrimination: The employer cannot terminate employment because the employee is a certain race, nationality, religion, sex, age, or in some jurisdictions, sexual orientation. • Retaliation: An employer cannot fire an employee because the employee filed a claim of discrimination or is participating in an investigation for discrimination. In the United States, this "retaliation" is forbidden under civil rights law. • Employee's Refusal to Commit an Illegal Act: An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal. • Employer Not Following Own Termination Procedures: Often, the employee handbook or company policy outlines a procedure that must be followed before an employee is terminated. If the employer fires an employee without following this procedure, the employee may have a claim for wrongful termination."" All of which falls down completely if the employer can fire for no reason. He doesn't have to give a reason at all which leaves the employee without legal redress and the employer bullet proof. Don T. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: John P Date: 02 Feb 12 - 06:20 PM I wish it was federally illegal to fire for no reason (fat chance!). Destroying a person's life should not be something that someone else can do on a whim. What a terrible thing to do. Stupid, too. It's really, really bad for employee morale and trust. Not to mention karma. |
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Subject: RE: BS: Insane and doctrinaire US employment law From: Bobert Date: 02 Feb 12 - 06:59 PM The bottom line is that since Ronald Reagan turned the US government into a good squad in busting the Air Traffic Controllers Union it has been a management dominated America with the working class stuck in quicksand... Cause and effect... You want to restore the middle class then quit playing goon sot hiring other to play them for you... This ain't rocket surgery here... Union may not be perfect but without them then it as management's wet dream... BTW, had it not been for the UAW my parent's wouldn't have made enough money to at least pay some of my college costs... Thank you, Walter Reuther... B~ |
