You are being selective in the definition of fair that you are choosing to use (and even the definition of “fair” that you use is only of dubious support to your position).
My OED gives “just, equitable, legitimate” as meanings for “fair”.
All of these are moral concepts, and all do not simply mean “equal”. Indeed even a “lack of favoritism” does not necessarily mean “equality”. One could quite easily give more to someone whose needs are greater than one gives to another with lesser needs without being guilty of favoritism.
BH, attempting to win an argument by asserting that your position simply cannot be contradicted is only going to win against feeble minded idiots.
You say, for example:
If you think you can win an argument by telling your opponents what can and can’t be discussed, you’ve got another thought coming, matey. Your last post is another example. Don’t kid yourself that you are going to win an argument by simply defining your particular position as fair in a pathetic effort to make any contrary position unfair by your own self serving definition.
Lifting yourself up by your own bootstraps only works in cartoons.
When you have proved that your position is fair, then I’ll be impressed. You’ve got a long, long way to go.
As for “normal”, similarly. When you’ve provided a cite as to exactly what normal is, and why what is normal is good, get back to me. Because from where I’m sitting, it looks awfully like what you are doing is simply defining what you regard as ideal as “normal” and then rationalising back from there to suggest that what is “normal” is ideal for everyone else.
An important element missing from this debate on fairness is that hardship caused to an employer when an employee quits. Often, the emplolyer has invested significant amounts to train the employee and entrusted them with trade secrets. Even if the employee has agreed not to use these in competition with the empoloyer, courts’ enforcement of these agreements, particularly in Georgia, is weak.
Fair has multiple definitions. Most of them have moral connotations.
More to the point. If they are merely describing a system that either has outside evaluation or does not. Why do we care? They are obviously suggesting some sort of superior value to a system that is “balanced.” But they are claiming not to. So I take them at their word. I find any claims made by people using the word “fair” in BH’s sense to be only describing a state of affairs in the world. Their appeals to fairness, then, are simply unhelpful to the discussion. We started out talking about whether the government should intervene or not. They are telling us that if the government intervenes, it will have intervened. I think we knew that before we started talking.
I think it would help to summarize and eliminate some red herrings. Here goes.
This discussion began when Quasi asked if employment at will, described as an “unfair practice” was being reevaluated by any legislatures. (This is a paraphrase, as are all of the following points–if I have it wrong, I apologize in advance).
Several people answered that question. The answer is no, there is no legislation pending that would modify the at-will doctrine. I ultimately located an article that discusses the policy concerns and limitations on the at-will doctrine, and offers a theory about why legislation has not been seriously proposed. I believe that Quasi’s question is answered.
In kicking this around, however, some policy discussions have arisen. They are unresolved.
First, there is the discussion over whether it is a good idea to impose limitations on the merits of firing decisions. Let me restate the problem. There are already public policy limitations on employers’ rights to fire employees. An employer cannot fire an employee for refusing sexual advances, being a racial minority, being older than 40, being a drunk (or a recovering drug user). An employer’s right to fire an employee is also limited in other cases, such as where the employee reports employer misconduct, or testifies adversely to the employer.
What we are discussing here, IMHO, is the employer’s right under current law to absolute discretion in firing employees for reasons not considered invidious by existing statutes and court decisions. In other words, does the employer need to have a good reason to fire an employee (and be able to prove it)? Or should the employer have unrestricted discretion in hiring and firing employees? If the latter is the case, then (and this is the current rule) the employee has the burden of establishing that the employer fired him or her for an illicit reason. Upon termination, the employer owes the employee no explanation. And the employee cannot complain that the employer was mistaken in firing the employee.
Here is the source of one red herring. People are arguing that the employer should not be required to keep an employee on if the employee is incompetent or if the company is suffering financially. I do not see anyone arguing that the employer should have to keep the employee on no matter what. The argument is about whether the employer should have to show good cause for termination.
Sailor has repeatedly asked if an employee’s decision to quit should be restricted in a fashion similar to the employer’s decision to fire. I have not seen an answer to his question. Does anyone care to respond?
Another tangent is the argument about whether our current at-will employment arrangement gives our country a lower jobless rate than countries with more restrictive termination rules. This argument begs an important question: Is a lower jobless rate something that we seek at the expense of job security for individual employees? And what other factors might be at work here? Are there other factors that are more important to us as a country than economic success? And how is that measured? What if we could get .2% unemployment, but only if 85% of the jobs offered no benefits and paid 30 cents per hour?
Anyway, that is some food for thought and further discussion.
Here’s the fundamental issue with socialism, and quasi-socialist solutions to economic distribution problems: markets ultimately win regardless of the structures people try to create to limit their effect. The problem is that the markets created under socialist solutions tend to be opaque and corrupt - black markets - while the official system becomes too inflexible to meet people’s needs. A good example would be rental housing in New York, where elderly people have artificial incentives to hold on to gigantic apartments they no longer need, bribery is often the way people find rent-stabilized apartments, and the primary beneficiaries of rent stabilization are the relatively well-off. And price controls squeeze supply: again, looking at New York housings, decades went by with very little rental housing created. That’s been corrected, but because the rental housing market is still so artificial, new housing rents at rates that are probably substantially higher than they would be in the absence of rent control.
The trouble with markets is that the upside is widely dispersed, while the downside is concentrated. Let’s take the recent intervention in the steel trade, in which the United States sought to artificially raise the price for steel by imposing tarriffs on cheaper suppliers from other countries. The goal? Protect the jobs of U.S. steelworkers, an swing-vote group in several key states. They’re the identifiable losers under free market. The cost of protecting them was higher supply prices for steel users, many of whom are also domestic - e.g. the auto industry and building trades - and reduced activity at U.S. ports. But the downside isn’t enough to be seen in actual layoffs in those industries. Instead, it appears in growth that would otherwise have occurred, but didn’t. That’s why our political system tends to be biased in favor of protecting losers, because they scream loudest - they’re losing everything. In contrast, the benefit tends to be widely enough distributed that individual beneficiaries think they can live without it.
All of that is compounded by the reality that losers tend to be concentrated in certain geographic areas, and representation is apportioned geographically. The sad truth is that there are an awful lot of one-industry towns that really shouldn’t exist anymore because the U.S. is no longer the most efficient producer of the goods in which these towns specialize. I suspect that it’d be cheaper and less damaging to the overall economy to hand the affected workers checks, get them retraining, and buy them out of their houses, rather than weighting our economy subsidizing sick industries.
Markets are hugely dynamic, hugely radical, hugely discomforting, and in many cases hugely painful. But the economic history of the last 200 years shows that there’s no better long-term alternative for alleviating human misery.
**Okay, so here’s how I move from my general post to the specific. The trouble with requiring employers to show good cause is that doing so will inevitably result in litigation. That’s been the result here in New York State, where many teacher collective bargaining agreements require precisely this proof. Litigating these cases is so monstrously expensive and difficult - three years is usually about right, assuming appeals - that the only teachers who ever get fired are those who commit heinous crimes. Those who are merely stupid, lazy, and/or incompetent sit where they are, secure in the knowledge that it’s too damn difficult to fire them.
Something’s tickling in the back of my head that clauses that seriously restrict an employee’s ability to quit have been barred under the 13th Amendment, but I’m having to delve back into 12-year-old law school discussions–which aren’t notoriously reliable. Anyway, individual contracts often have noncompete clauses, which prohibit someone from quitting and going to work for a competitor. These are often enforceable, provided they meet certain reasonableness standards (e.g. they’re limited by time and distance).
**Sure, there are other factors at work, but there seems to be a pretty consistent trend over time: the United States, Singapore, and Hong Kong, which generally top the list for the least-regulated economies and employment systems, have also tended to have the lowest unemployment compared to economies in a similar stage of the business cycle with restrictive labor markets - e.g. France, Italy, and Germany. The fact that these three countries in particular are trying to address the enormous social problems 10%+ unemployment causes by freeing up their labor markets seems to acknowledge that this assertion isn’t very controversial anymore.
**The trouble with this sort of analysis that we live in a competitive world: a country that “satisfices” by accepting lower growth levels runs the risk of falling ever-further behind, particularly since economic growth is necessary simply to maintain current standards of living in light of inflation (which seems to be a healthy thing at low levels) and population expansion. You’re also positing something of a straw-man - in the last economic boom, we achieved damn close to full employment, and the effect on the poor was especially dramatic. Indeed, growth seems to be what helps the poor the most, particularly since it incorporates people into the labor market, and that often provokes virtuous cycles among individuals. The fact that this recession really hasn’t been so bad on the employment front (compared even to the 1991 recession, which was mild compared to the 1981-82 recessaion) gives one hope.
It would very likely be cheaper to do that for the workers. But as we have seen (GM, Flint, anyone?) it is cheaper yet, at least in the short run, to simply drop the workers and leave them to try to negotiate for jobs with the other destitute workers remaining in the town. And when they finally stop looking for work, we can remove them from our jobless numbers and totally forget they exist. Hey, nobody owes them a living, after all.
You are right that markets are ubiquitous. And I’m not sure how we can avoid them. What would the world look like without markets. As you have pointed out, efforts to limit their effects have failed. Where does that leave us? Do we subsidize nothing? What of all of the subsidies and protections that our current system offers to industries and corporations? Why not do away with law entirely? Does anyone trust corporations and industrialists to behave themselves? So far, their record is not good. If we can’t and we aren’t allowed to impose any restrictions on their conduct, what should we do?
Gfactor has done a good job in summarizing the main issues of the debate.
I think most people would agree that there are extreme cases where the employee should have some recourse if he is fired - for example if he was asked to do something illegal, or for being of the wrong race, or religion.
I also think most people would agree that employment is not a lifetime deal, and that a grossly incompetent worker should be fired, even if it means he suffers hardship.
Disagreement lies in the middle ground - should someone be fired for coming to work ten minutes late, or for stealing 50 cents from a cash register? And should the decision be left to the employer, or to an administrative judge? Should employers be aloowed to fire except in certain well defined circumstances, or be allowed to fire, except in certain well defined circumstances?
My feeling is that society should err on the side of allowing people to work things out themselves without government intervening.
It is notoriously difficult to fire teachers. That is because of the way that good cause is adjudicated in that bureaucracy. There are a variety of ways to determine such things, and some are better than others. Hey, you could even say there is a market in them, would that help? I have a lot of experience in litigating unemployment and wrongful termination cases. Some forums are cheap and easy, others expensive and complicated. Obviously, the form of adjudication will affect behavior. But the fact that one way is inefficient does not prove there is no efficient way to do it. Nor does it prove that it is more efficient to let the employer be the adjudicator.
There are plenty of examples of personal service contracts that are not terminable at will. Professional athletes and musicians sign them all the time, for example.
Not sure I get what you were saying here. I think that we all agree that unemployment causes problems. Part of my question was whether a lower jobless rate was something we ought to seek at the expense of overall job security. Other nations with 10%+ unemployment rates, might well answer this question differently. Or maybe not. But should we see a lower jobless rate as an end in itself? Are there higher social or moral values that might be worth a higher jobless rate?
I worked at Legal Aid. Let me tell you, the poor were poor the whole time. And they weren’t having much fun. While statistics may have showed benefits, they simply did not materialize. I bet many people would quibble with the “close to full employment” statistics also. Where were those jobs? How much did they pay? Did they come with benefits? How much of that improvement resulted from people giving up on their job searches or falling off the unemployment radar after their benefits expired?
It is notoriously difficult to fire teachers. That is because of the way that good cause is adjudicated in that bureaucracy. There are a variety of ways to determine such things, and some are better than others. Hey, you could even say there is a market in them, would that help? I have a lot of experience in litigating unemployment and wrongful termination cases. Some forums are cheap and easy, others expensive and complicated. Obviously, the form of adjudication will affect behavior. But the fact that one way is inefficient does not prove there is no efficient way to do it. Nor does it prove that it is more efficient to let the employer be the adjudicator.
There are plenty of examples of personal service contracts that are not terminable at will. Professional athletes and musicians sign them all the time, for example.
Not sure I get what you were saying here. I think that we all agree that unemployment causes problems. Part of my question was whether a lower jobless rate was something we ought to seek at the expense of overall job security. Other nations with 10%+ unemployment rates, might well answer this question differently. Or maybe not. But should we see a lower jobless rate as an end in itself? Are there higher social or moral values that might be worth a higher jobless rate?
I worked at Legal Aid. Let me tell you, the poor were poor the whole time. And they weren’t having much fun. While statistics may have showed benefits, they simply did not materialize. I bet many people would quibble with the “close to full employment” statistics also. Where were those jobs? How much did they pay? Did they come with benefits? How much of that improvement resulted from people giving up on their job searches or falling off the unemployment radar after their benefits expired?
Please quote where I commanded what can’t be discussed here. I carefully chose the words “fair” and “normal” for their meanings as “without influence from outside forces”, and “where both parties have equal rights”. I also made it clear that one can make an argument that both parties don’t deserve equal rights, but you seemed to have skipped that part.
I couldn’t care less if I impress you, friend. I honestly didn’t wake up this morning thinking “boy, if I can just impress my bud Princhester, then all will be right in my world.” Honestly.
So how do we, the US, stack up in our standart of living (quality of life) when compared to those other countries mentioned where it is more difficult for companies to terminate? I wanted to compare things like percent of population at or below the poverty level, education, health care, etc, but all the sites require subscription or that you buy a book.
I do remember that, about twenty years ago, we were at about #7. IIRC, Sweden was #1.
What we are discussing here, IMHO, is the employer’s right under current law to absolute discretion in firing employees for reasons not considered invidious by existing statutes and court decisions. In other words, does the employer need to have a good reason to fire an employee (and be able to prove it)? Or should the employer have unrestricted discretion in hiring and firing employees? If the latter is the case, then (and this is the current rule) the employee has the burden of establishing that the employer fired him or her for an illicit reason. Upon termination, the employer owes the employee no explanation. And the employee cannot complain that the employer was mistaken in firing the employee.
Here is the source of one red herring. People are arguing that the employer should not be required to keep an employee on if the employee is incompetent or if the company is suffering financially. I do not see anyone arguing that the employer should have to keep the employee on no matter what. The argument is about whether the employer should have to show good cause for termination.
and this is what I have been debating/discussing/whatever. So far the only valid argument I have seen opposing giving an employee resourse is the one about “this would give rise to litigation” and that is absolutely accurate. And the litigation would be detrimental to the employer if the employer failed to have a legitimate reason for the removal. So, to me, the question is, does the employer have the right to act irresponsibily? Does the employer have the right to take away a person’s livelihood and then not be accountable for demonstrating that it was reasonable to do so? I don’t think so.
i wonder if one aspect of this that should be considered is that for most people the “employer” is not really the owner or proprietor of a business, but simply another employee with supervisory responsibilities whose personal agenda may not be good for the employees under him and also might not necessarily reflect the best interests of the company either. for example, most people would agree that if i am a clerk in a mom and pop grocery and “pop” decides that he just doesn’t want me around, he should be free to show me the door. my salary is coming directly from his pocket, and he should be able to employ someone that he thinks serves his business best. but if i am, say, a clerk for a giant international supermarket conglomerate, should someone like the night shift assistant manager have the same authority? it’s fine to say that he’s acting as the “agent” of the employer, but should we allow lower-level supervisors to behave like owners? suppose he fires me because he thinks i’m after his job? suppose he fires me because he sees me outside the workplace doing something he doesn’t like (at a rally for a political candidate that he opposes, for example)? suppose he fires me because he wants to give the job to his brother-in-law? it’s easy to imagine all kinds of terminations that would be arbitrary and unfair, and wouldn’t have anything to do with work performance, but wouldn’t be actionable under the law either. and even if the real reason might be actionable (race, age etc.), proving it isn’t easy. the real owners are the stockholders, but nobody is going to ask them what they think unless they have to pay off a multi-million dollar wrongful termination judgment.
i’m not sure what the solution is, but talking about “employer” and “employee” puts the two on an equal footing. more often it’s walmart vs. a part-time cashier trying to qualify for benefits.
Thanks, Reader99. That was going to be my next meandering.
My boss, at a huge multi-national oil company, finally told me that making these decisions (by committee, btw) was just too difficult. Outside of gross incompetence, firings, raises, and promotions are decided on by the employee’s popularity, politics, and personal preferences (such as my favorite team).
Actual performance, in terms of widgets/hour, is just too difficult to measure. You see, we don’t make widgets. We keep things running. So if we do good, we’re invisible.
If I were one of a workforce of twenty or less, and I worked for the owner, things would be much different. I know, because I’ve done it when I was a contractor employee.
And each of these decisions carries a cost. In my experience, employers that have performance reviews wind up getting sued over their merit-based decisions quite often. In fairness, most of these lawsuits are frivolous, but that is another cost. Even a frivolous lawsuit costs money to defend.
No, it would be detrimental whether the firing was “justified” or not. The opportunity costs of firing someone would go up, thus making it more difficult to fire someone, and thus increasing the reluctance to hire someone you might not be able to get rid of.
Examples of this would include the difficulty of getting rid of teachers mentioned above. Abolition of “at-will” would be a full employment act for lawyers.
Yes, it sucks to get fired. It sucks even more to get fired because your company relocated overseas, and you can’t find another job because every other company is afraid to hire you.
I’ve hired and fired. And I have never fired someone who agreed that it was a good idea to get rid of them.
So what would the rest of you agree are “good enough” reasons to fire someone?
[ul][li]The company is losing money. [/li][li]The company is making money, but could make more if they could cut costs. If we can’t cut costs, we will relocate overseas.[/li][li]We found someone else who will do the same job for less salary. [/li][li]A single mother applied for your position, and she needs the job more than you do.[/li][li]You just aren’t working out.[/li][li]You and your manager don’t get along. [/li][li]You and your subordinates don’t get along.[/li][li]You have less seniority than the guy next to you. He wants your job.[/li][li]You refused a promotion that involves relocating to Detroit.[/li][/ul]