BS: Walmart unconstitutional

Subject: BS: Walmart unconstitutional
From: Wilfried Schaum
Date: 15 Nov 05 - 09:50 AM

From Germany's press today:

Walmart's "ethical directives" for its employees concerning their love life [!] are an infringement of articles 1 and 2 of the German Constitution, the Labour Court of Nordrhein-Westfalen decided yesterday.
Other parts are unlawful because they lack the agreement of the workers' council.
A remonstrance at the Federal Labour Court is allowed.

Subject: RE: BS: Walmart unconstitutional
From: Allan C.
Date: 15 Nov 05 - 10:16 AM

This article reveals a bit more, including:

According to the tribunal, rules that govern personal relationships, though common in the US, are incompatible with German labour laws and agreement with the regional labour council would be necessary to implement them.

Wal-Mart management defended the disputed passages, saying they were only trying to protect their employees from sexual harassment.

Subject: RE: BS: Walmart unconstitutional
From: MarkS
Date: 15 Nov 05 - 10:52 AM

Details?   For those of us who do not know details of the German Constitution.

Subject: RE: BS: Walmart unconstitutional
From: JohnInKansas
Date: 15 Nov 05 - 09:37 PM

English translations:

German Constitution 1949, last amended 1990.

German Constitution appears to be the same translation, from the same original source.

German Constitution a .pdf version, which may be a littler neater for those who'd like to save a copy. Intro notes to this version assert that "other copies on the web may not be accurate." There apparently have been frequent amendments, and the last article appears to presume that a "voter approved Constitution" is still pending.

Germany's ratification of the EU Constitution may also have some applicability.

The above are Google hits, and are not based on personal knowledge about Germany's politics.

John

Subject: RE: BS: Walmart unconstitutional
From: Seiri Omaar
Date: 15 Nov 05 - 10:18 PM

Somehow, something in me suddenly has a touch of respect for German law.

Subject: RE: BS: Walmart unconstitutional
From: DougR
Date: 15 Nov 05 - 11:26 PM

Hmmm. I really don't think that the U. S. Constitution mentions Wal-Mart. Am I missing something? If the German Constitution does, I think it would be extremely interesting to have someone enlighten us as to what it says.

Wolfgang?

DougR

Subject: RE: BS: Walmart unconstitutional
From: GUEST,Dr Evil
Date: 16 Nov 05 - 01:00 AM

Yep.

It was actually nice to quote, as a German, the verdict of the lower court in Wuppertal (which now got confirmed by the next higher court) in the Mandatory Harassment Training here at the San Diego company I work at,
tell the trainer that I felt harassed by his very act of trying to impose a code of conduct, and that my view of this matter was backed by an actual German court decision.

To drive the point home to the other attendants, I also refused to tolerate his calling me by first name, because this was yet another telltale sign that employees in Coproate America are routinely patronized and treated with disrespect.

Dr Evil

Subject: RE: BS: Walmart unconstitutional
From: EBarnacle
Date: 16 Nov 05 - 01:07 AM

Throughout the US, there is a weeklong event showing the Movie: Walmart--The high cost of low cost. You can find it on line at:


http://www.walmartmovie.com/find.php

Many of the showings are free.

Subject: RE: BS: Walmart unconstitutional
From: JohnInKansas
Date: 16 Nov 05 - 01:43 AM

Article 1 (Protection of human dignity).
(1) The dignity of man is inviolable. To respect and protect it is the duty of all state authority.
(2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
(3) The following basic rights bind the legislature, the executive and the judiciary as directly enforceable law.

Article 2 (Rights of liberty).
(1) Everyone has the right to the free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral code.
(2) Everyone has the right to life and to inviolability of his person. The freedom of the individual is inviolable. These rights may only be encroached upon pursuant to a law.

(bold added)

Without seeing the full decision, it's only a guess; but what the Labour Court appears to have said is that there is no German law to permit a restriction on what individuals do in the workplace, and there is no German law prohibiting the specific actions that Walmart has forbidden.

As Article 2, para 2 clearly states, no restriction on "personal free development of a persons personality" may be made unless it is "pursuant to a law."

In the US, precedent clearly permits an employer to impose virtually any rule on employee conduct in the workplace as long as the rule "has a clear business purpose." Noted without further comment: The rule doesn't have to have a "provably valid" business purpose, as long as the employer can produce a reasonable argument as to why it has an "intended business purpose."

Numerous attempts by US employers to impose restrictions on employer behaviour outside the workplace have been challenged with varying results. US court precedents may be a bit weak here, but it does depend on which side you're on.

Even long before "sexual harassment" became a popular cause for lawsuits, many US companies prohibited persons with family relationships and/or "close personal relationships" from being in direct supervisor/subordinate positions, probably originally to avoid complaints of "favoritism." (nepotism?) This never prevented such relationships from developing; but usually any such relationship that became generally known would result in at least the transfer of one or the other (guess how often it was the boss) so that no direct line of supervision remained (a non-employee has no supervisor/subordinate relationship - guess how often it was the boss).

With the rise of sexual harassment lawsuits, prohibiting situations where an appearance that promotions, access to facilities, titles, pay, etc., might be promised in return for "favors" has led to sometimes ridiculous - but possibly necessary - restrictions in many US companies.

The German Labour Court has simply said that Walmart can't do that unless doing so is defined by a law as an acceptable or requisite action, and that in the opinion of the Court no such law now exists.

The essential difference - in rather trite terms, is that in the US a company can do anything that isn't prohibited by a law, while the Court has read the German Constitution to say that the company can't do anything that isn't explicitly permitted by a law - at least with respect to "personal freedoms."

As indicated, this is all guesswork; but I don't see any lack of a possible/plausible line of reasoning to support the German Court's decision, or any reason to be amazed by it.

This "German Constitution" looks a bit "wishy-washy" compared to other national Constitutions - and specifically compared to the classic old Weimar Constitution; but I'll reserve decision on good/bad features for now. Some provisions of the Weimar Constitution appear to have been "Amended in" and/or "Clarified out," and I haven't read them all. Article 146 does identify this as a "possibly interim" thing.(?)

John

Subject: RE: BS: Walmart unconstitutional
From: Wilfried Schaum
Date: 16 Nov 05 - 12:22 PM

Thanks for enlightening us with all the translations. Due to work I just didn't have the time to look all this up, but I knew there would some Mudcatters come to my aid.

The Constitution isn't so much wishy-washy as more general in the description of the protected human rights, in the first 19 articles. Notice that only a few cases are named where the civil liberties may be restricted, and then only by laws which must apply generally, not for single cases. (Best examples are the soldiers, whose right of movement is restricted, or the right to unviolated health, the right to assemble unarmed, and to complain in a body).
By the way: Nobody can reap the benefits of several civil rights (all nemed in article 18) granted by the Constitution when abusing it.

The German Constitution was resolved by the Parliament, without the representatives of the Russian zone (later on German Democratic Republic) and the state of the Saar (under French occupation until 1955). By accepting the Constitution the joining states became members of the German Federal Republic in 1955 and 1990. In the old form of article 146 it was said that the Constitution should be resolved by the people after the reunification. We are still waiting, but we live very comfortably with our Constitution.

In the article linked by JohnC I miss the Courts expressed decision of infringement of the Constitution. But be it as it might be - as a union man I never would by from Walmart.

Subject: RE: BS: Walmart unconstitutional
From: katlaughing
Date: 16 Nov 05 - 07:37 PM

For others, like me, who may not have heard of the background to this:

Walmart fails to ban office romance

Wal-Mart has lost a court appeal to try to legally ban its employees in Germany from having office romances.

The regional industrial tribunal in Dusseldorf upheld an earlier verdict by the local Wuppertal industrial tribunal that the company's "ethics rules" were in breach of German law.

Wal-mart tried to introduce a 28-page ethical code that forbids "lustful glances and ambiguous jokes" as well as "sexually meaningful communication of any type".

And it said: "You may not go out with or have a relationship with someone who could influence your employment situation or whose employment situation you could influence."

Wal-Mart also required its 10,500 German employees to report violations of the code, including alcohol and drug use, to a telephone hotline - a move also banned by the courts.

According to the tribunal, rules that govern personal relationships, though common in the US, are incompatible with German labour laws and agreement with the regional labour council would be necessary to implement them.

Wal-Mart management defended the disputed passages, saying they were only trying to protect their employees from sexual harassment.

Wal-Mart still has one more chance to appeal the verdict at the Federal Labour Court in Erfurt.

I say, good for the German courts!