10 Comments:

Yeah tags!! They have put my readership through the roof. Plus, I signed up on the blogpac site for MN. Go check it out.

http://www.blogpac.org/

cp

By  Anonymous, at 9:03 AM  

I'll check it out this morning...

Tags really spiked your readership? I've had so much trouble with technorati being slow lately that I had kinda given up on it.

By  Hammer, at 9:19 AM  

I'm not sure about the union and NLRB aspect of this, but in an at-will state such as Minnesota, an employer can fire or refuse to hire anyone for any reason as long as it is not a prohibited reason such as age, sex, race, etc. So if an employer didn't like your politics or after hours behavior, the employer could technically fire you. Of course, if sued the employer might have a problem with proof if the case got to a jury. I mean, in practice MN is an at-will state, but wise counsel (such as mine) requires an employer to have documented reasons for terminating an employee. Saying "I didn't like who he/she associated with after hours," (a legitimate at-will excuse even if not necessary) wouldn't pass the straight face test.

By  Anonymous, at 9:49 AM  

Yep, readership is up about 20% since I've added the tags and put up an Atom feed...next up RSS.

I have a question for the lawyer. What do you think about reworking portions of the ADA to allow workers to fire/not-hire folks with psychiatric disorders? I know that alcoholics can receive a moderate amount of protection, but what about folks with ADHD, PTSD, etc, etc.

Just curious. I am kind of wondering where smoking would fit into all of this. With health costs rising, I'm going to make a bet that employers will not like to have smokers on staff.

cp

By  Anonymous, at 10:00 AM  

The ADA allows an employee with a disability to require an employer to make reasonable accommodations to allow that employee to perform the essential functions of the job. So, a sight impaired person working on a computer may be reasonably accommodated by providing a bigger screen, etc. If ADHD or PTSD are recognized as disabilities (I'm not making a judgment, I just have never looked into it) then depending on the job and what is a reasonable accommodation, they could continue working. But, if even with an accommodation they could not perform the essential functions of the job, they could be dismissed.

By  Anonymous, at 10:12 AM  

I agree with you on your analysis on the rights of an "at will" employee -- which are, in practical terms, zero. You can be fired for any reason or no reason at all. (Unless you are a member of a protected class, in which case you cannot be fired for being a member of that protected class.)

My point, though is this. I believe that the vast majority of Americans don't think your employer should be able to condition your employment on your private activities. In this case, fraternizing with co-workers and others off the clock. (The NLRB issue was whether the fraternization rule conflicted with the right to organize rather than an analysis of an at will employee's rights.) I also believe that most Americans think (wrongly) that their employers can't fire them for what they do outside of work.

Sure, it's Pollyannaish of me, but I think it would be good policy and good law to conform the law to people's expectations. I don't think you should lose your job for no reason at all or for reasons that have nothing to do with how you perform your job. Obviously, such a protection would create the potential for a tidal wave of lawsuits. After all, every employee would want to claim that he was really fired for his after work activities rather than the amount of time he spent commenting on posts during the day.

By  Hammer, at 10:37 AM  

I can make a pretty good arguement as to why Guardsmark would want to prohibit its employees from having contact with the client's employees, and should be able to do so. A bank, for example, is certainly justified in not wanting its employees to associate with bank robbers.
Your comment about people's expectations is not well taken. The fact that people's expectations are based on an incorrect view of the law is no justification to change the law. It may be justification to educate the people. On the other hand, no one is hiding the law from them. There was an article in the STrib a week or so ago about blogging at work. The tenor of the article seemed to indicate that it was somehow okay to blog on the employer's time. Guess what, if you blog on the employer's time, and on the employer's equipment, don't be surprised if you are disciplined. No, it's not censorship, it's merely an employer enforcing its rights. People have an expectation that the First Amendment protects them at the workplace. It doesn't unless the employer is the government.
Your point about job performance is incomplete. You might be a star performer, but if your employer is losing money and your job is not essential, you're out.
My earlier point was that the law is at-will. As a practical matter, an employer better have a reason to terminate an employee or else the jury may conclude that the termination was for a wrongful reason.

By  Anonymous, at 11:59 AM  

Since anyone could be a bank robber, would the bank be justified in barring its employees from having any contact with anyone?

The legal answer is that the employer can make such a no contact rule part of the employment contract. Employees would be free to find different employment. Perhaps the bank would have to pay its employees more to attract qualified people willing to avoid all other human interaction to keep their jobs.

Perhaps where we are really disagreeing is over the fairness of the labor contract. I think labor contracts for semi-skilled workers are almost uniformly unfair. Employers have all the power, and employees have none -- the employees are easily replaceable.

So far as I know, the doctrine of unconscionability, as applied to sales contracts, has no cognate in labor contracts. I think there should be basic protections in all labor contracts to prevent employer over-reaching. Courts do recognize some protections of the right to work. For example, do not compete clauses must be drawn very narrowly so that a terminated employee can pursue a livelihood. Again, though, this is a protection for a skilled worker. Unskilled workers have no protections, outside of collective bargaining.

I agree with your point on performance. I would classify "losing money" as a valid reason for terminating employment.

By  Hammer, at 1:06 PM  

A bank would be justified in so doing. But, as you point out, it would have a difficult time attracting or keeping its employees. There is no right to work in this economy in the sense that once you have a job you are entitled to keep it (except perhaps as limited by Constitutional issues in the case of government employees). Employees do have the right under the NLRA to colletively bargain (whether or not represented by a union) over terms and conditions of employment. But even there, unless an employer was a poor negotiator, there is no guarantee of continued employment.
There is protection against overreaching by an employer. The employees can unionize and bargain, or they can leave and find another place to work. A business cannot succeed without employees.
If semi-skilled workers believe they're getting a raw deal, then they should organize. That's the big issue with American Labor right now, and why the Teamsters and others have bolted from the AFL-CIO. Organized labor needs to do a better job of marketing its advantages to workers.
It may very well be true that semi-skilled workers are easily replaceable, but as one who represents employers, let me tell you that no employer willy nilly lets employees go just for the fun of it. It is expensive to hire, and if you have a good employee, semi-skilled or not, you want to keep him/her.
That being said, the answer to the easily replaceable issue is that the workers can organize, or they can improve themselves skill-wise so that they become eligible for higher skilled jobs. Most employers of any size offer educational opportunities and encouragement to employees.
You, however, would stack the deck in favor of a semi-skilled worker who has a job against a semi-skilled worker who does not. It seems to me that an employer is entitled to the best it can get for its money.
Note that I have several times mentioned unions and organized labor. I'm not against the concept.

By  Anonymous, at 1:56 PM  

First, thanks for your insights, TRR. It's very much appreciated.

If it's appropriate to organize a work force to secure certain rights, why isn't it okay for the government to step in and guarantee the rights that could be obtained through collective bargaining? Without government involvement, jobs flow to the most desperate. The American economy is predicated on preventing full employment (which is not necessarily bad economic policy). When the economy is doing well, there should still be more workers than there are jobs. We already have wage, hour, and safety protections at the state and federal levels. I'm suggesting that we need more quality-of-life standards built into those jobs, as well.

I strongly support getting workers organized. Although it seems difficult to organize now, it's nothing like 1920, where federal troops might be deployed to break up a steelworkers strike. Unions do a lot of hand-wringing and complaining . They need to give up the excuses and get to work. Even still, other than baseball, there's not a single profession where the employees are on equal footing with the employers. There's always someone willing to work longer, harder, and cheaper.

By  Hammer, at 2:17 PM  

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