RE: Anglo American Platinum fired 12,000 striking miners
October 12, 2012 at 1:22 pm
(This post was last modified: October 12, 2012 at 2:18 pm by The Grand Nudger.)
"Work for me or be fined".
Our difference of opinion appears to be what kinds of things that might go into a contract should be enforceable(regardless of what currently is). For example, here in the US a contract may state that you are required to give notice or work for a predetermined period of time but it may not stipulate the amount of damages to be paid, nor may they sue for "loss of revenue" directly..though in some cases they may attempt to collect for the cost of rehiring. In many cases contracts contain clauses such as these even when they are unenforceable (because employment contracts are often the legal equivalent of form letters). I agree that interviewing and screening is no garuantee that any given person won't just up and quit someday, I still fail to see how providing a private business owner with the means to levy fines against their employees as a way of reducing the costs of running their business is a very smart way to handle that (we do..in very specific circumstance already allow this btw and I disagree with it greatly). Your observations on the difficulty a small business faces litigating a larger business in the event of fraud or malfeasance are easily as relevant if we alter the principals to "employee litigating employer".The ILO defines involuntary labor as "all involuntary work or service exacted under the menace of a penalty". You can say "but it's in the contract!" until you're blue in the face, but at no time will that change the fact that -what is in the contract- is an obligation of labor extracted under menace of penalty. What I'm attempting to communicate to you (and clearly failing at) is why this particular clause is unlawful here (particularly in my state..remember, states differ)-and how it came about, where I agree with our decisions, where I do not, and why. I can understand why you might balk at the idea of having a notice period compared to more brutal forms of compulsory labor like slavery, indentured servitude, or conscription, and I'm not disagreeing with you in that a notice period is not as barbaric as any of those things.....but it -is- unenforceable here (specifically where I am at) for precisely the same reasons. Whether the one demanding the labor is holding a riding crop, a contract, or an automatic weapon......the fundamental relationship between them and the laborer with regards to their labor is the same.
Here, in the US, the 13th amendment to the constitution prevents the sort of contract we're discussing here from becoming a federal issue.
"either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
Under this amendment the quitting of work may not be termed a crime, no state can establish any legislation which allows an individual to be held to unwilling labor. Note here, that the labor itself must be willing...not the signing of a contract at some indefinite point in the past. "But they signed a contract" has absolutely no bearing on whether or not they are willing participants in the exchange of labor at some indefinite point in the future (or whether or not their labor can be called "voluntary" simply because they signed a contract. Keep in mind, indentured servants often had contracts). This amendment was written specifically to address slavery, but it did abolish other forms of compulsory labor. This prevents any contract of this type from being enforceable in a criminal court in the US. Now, this amendment left the door open for a court to order monetary damages be paid to an employer in the event of breach of contract in a civil court up to and including punitive damages. This was the breathing room that allowed compulsory labor (by any name or designation) to continue unabated. Why this breathing room was left at all is, imho, a consequence of the times and peoples perceptions of labor, employment, and employers (and also, perhaps, the influence wielded by those who did the employing).
Now, amusingly (given the OP), the most notorious examples of companies which then used a contractual agreement and civil proceedings to compel labor (or levy fines against employees who were unwilling to provide their labor) were mining companies. If you were unaware of the history of labor and labor law in our country (and just how completely and utterly terrible it was - I know that when people talk about it it can sound like hyperbole-....the truly astonishing thing is that it is not) I would suggest you dive into the disagreements which erupted in the Appalachians and further afield all the way out to the west cost that surrounded the coal industry. I could talk your ear off about this but I'm going to try to keep it brief (and as relevant as possible while allowing myself some fun - and short- asides). It would be impossible for me to explain the situation laborers (almost always under contract) found themselves in here without first mentioning that coal, in it's heyday, was the entirety of the energy industry....and that even today's energy industry cannot compare to the power that it wielded. It would be fair at this point in our country's history to call the coal mining industry -The Industry-. You'd have to roll several major modern sectors of the economy together to begin to draw an apt comparison. The effects of this are lasting. The image that many have of "rednecks" comes directly from this conflict between miners and mining companies (first fostered from tax disputes involving liquor no less and further elaborated upon in the very same areas by the very same propaganda pieces we affectionately call "newspapers" now), the railbeds they layed (at horrendous cost in lives) exist to this very day..some are still railbeds..others are the foundations of major highways. It's my opinion (and other posters more in-tune to the labor/union movement in this country might disagree) that this was the point that we realized finally and utterly that a contract was, in and of itself and in the state that contracts found themselves in legally at that point, a completely inappropriate tool for prescribing the nature of employment and the relationship and obligations between an employer and an employee. That some things, though contained in a contract, were completely and utterly reprehensible in the spirit of the law even if they were in accord with the letter of the law. As I've mentioned, what was required for us to come to this realization was, apparently, a civil uprising complete with armed combat and military intervention. You asked for examples of companies that included usory provisions in their contracts and I'm going to go out on a limb here and state that it would probably be more difficult to find companies that didn't..in this time period, in this country. It was from these disagreements that a large majority of our current labor laws (and contract law - specifically as it applied to labor) had their precedents (or at least the very beginning, the rumblings of precedent) set. Limits were set on the specifics of what may be contained in an enforceable labor contract, and we see the genesis of the limitations of what damages an employer might seek from an ex-employee in civil proceedings. For example, punitive damages were disallowed (this is why a set amount of monetary damages in the event of breach of contract with regards to labor is not currently enforceable..it is seen as "punitive") in the event of breach of contract when that contract involved a labor dispute (specifically in the case of the employer seeking damages from the employees such as "loss of revenue" to this very day an employee may seek punitive damages from an employer...though it's rare that they are awarded such damages, or any damages at all). Our system was then (by default) very pro-employer, and it was the events immediately preceeding the Civil War and all the way into the 1920's that there was a decided shift towards that of protecting the employee over the employer. You mentioned that in the case of labor laws where you are they were set up the way they were to protect business (if I understood you correctly) but here they are a product of what we would now call human rights abuses -by- employers towards employees who were under contract.
When I mentioned that certain contracts prevented a person from leaving company grounds for the duration of the contract you resisted this idea...but why? Why does the "it's in the contract" statement not hold here? I'll link that example first as it was actually the subject of some discussion over here when the notion was thrown about that we might want to get rid of laws that mandated breaks. We discussed this on these forums as well. You'll find the companies involved in the link. One of the things these people were striking for was a limit to their working hours....which did not exist..and was used to fine employees at any time if they were not where the company told them to be. Other absurdities abound, paying in company scrip etc...all, btw "in their contracts". Keep in mind, the companies involved had been limited by the thirteenth amendment so that they could not pursue criminal action against these people but they did levy fines (and the specifics of the fines they levied and the reasons for levying them are all now unenforceable). This was what the companies involved turned to when the fines failed to compel their laborers to work. I do understand that you wouldn't suggest a company go to these lengths and that you wouldn't endorse something like this. If we were to sweep away all the violence involved in this we would still be left with the economic oppression which companies attempted to leverage against their contracted employees (in an effort to compel labor and maximise profits). The ability to litigate an employee for damages because they refuse to provide labor is a very handy tool for oppression, and even though I have absolute confidence that you personally would not use this tool in this manner (and I can see by your response and reaction that the various unethical ways this type of tool could be gamed do not immediately spring to mind to you) that says nothing about what this tool -has- been used for. In my opinion, labor laws should not be an issue of "heres this tool, and we know that you can oppress your employees with it, but we're trusting that you won't".
So, in my running roughshod over labor history (and the history of labor law) we find ourselves in the early to middle part of the 1900's. The failure to perform labor could not be prosecuted criminally due to the thirteenth amendment, and severe restrictions had been imposed upon what could go into a labor contract and what damages an employer might seek from an employee (even under contract..regardless of what that contract stated). The labor dispute could in some ways be said to have been put on hold in this century during WW2, but I want to continue this to right around the 50's and early 60's because that's when all US States adopted a principle that really put the nail in the coffin with regards to this notion of notice and it's attendant obligation of labor under menace of penalty. We call it "at-will" employment, adopted uniformly in 1959. People on either side of this issue are likely to have criticisms of this policy..but I like it. Essentially, it establishes that unless otherwise specified (and in some cases even when specified) all employment in this country is "at-will" from both the employer and employees standpoint. It absolves either party of any liability with regards to termination of employment. There are a few major exceptions to this (all employer side, race, religion, gender, whistleblowing..etc) but it means, in no uncertain terms, that an employee may quit, or an employer terminate said employment at any time, without notice, for any reason(exceptions aside). Now, as I'd mentioned at the beginning of this post there are some circumstances (all contractually defined) in which damages may be collected from an employee who terminates their employment in this country. In almost all cases these damages are limited to the cost of rehire and training. In some rare cases a company might seek damages under breach of contract (remember, loss of revenue cant be directly sued for..so it's "damages due to breach of contract" and when those damages are claimed to be loss of revenue a principle called certainty applies. Essentially, you must show that these damages are certain, fixed, their exact dollar amount..and in the case of potential profits I don't think I have to explain why this is nearly impossible to establish. So, from slavery in the 1800's to a contract which -may- be able to recoup the cost of rehire and even more rarely -may- be able to recoup lost revenue. I see these last two provisions (as rare as they may be) wholly inconsistent with the spirit of the law. Glitches, loopholes, what have you. It definitively -is- a form of coercion that can be used to compel you to perform labor you do not wish to perform. As to whether or not you think this coercion is "worth it" well...
Let's imagine that there is a business which spends approximately $2,500USD per new hire (this would be what a no-call no show might be liable for if they had such a contract..and it was enforecable). Lets imagine that this company has a first year turnover rate of 50% and this amounts to 400,000 ex-employees yearly. Thats 1billion USD spent annually on turnover. If we were referencing a company with average wages at or only slightly above minimum wage a very large percentage of this would be breach of contract (either fired, or no notice). What percentage of this 1billion dollar amount isn't "worth it" for the company to attempt to recover? This company exists, btw, and these numbers are intentionally chosen to be generous to the company in question..it's costs, turnover rates, and number of ex-employees yearly may all be much..much higher. What percentage of this operating expense should we the public be liable for so that it can continue it's pursuit of profits and ROI? Hiring an employee who quits with no notice..to my mind, appears to have been a bad investment, and let me just say here that no one sent me any checks for any of the investments I made the last decade that failed to produce.
While I can agree with your insistence on how firm a contract should or could be with regards to property and goods, I cannot apply that same rhetoric to labor..as labor (and the laborers themselves) is not property. What works in one arena may not be appropriate for another. I suppose that brings us full circle...to the thirteenth amendment and where this all began.
-On "at-will" employment-
The reason that I favor this approach (as does the vast majority of employers and employees in this country) over the notion that a binding contract of labor can be leveraged to pursue damages from someone you fired (or who quit) presumably breaching the contract is that I believe it adheres to the spirit of the law as it has been evolving over the centuries. It also removes the hassle and trouble of litigation when people quit or are fired.
I don't personally feel that a business owner should be able to lean on others to provide the necessary funds to cover the costs of running their private business (and certainly not their employees or ex-employees). I also do not think that an individual should have the ability to force a business owner to provide them with employment (or pay for their continued employment when it is no longer desired).
At will is simpler, at will provides a very distinct line between property and labor (this distinction is made very clear in our constitution), and it prevents even the possibility of the abuses we have seen in the past with regards to this issue. Can an employee screw a business over under at will? Yes. Can an employer screw over and employee under at will? Yes. I still think that putting as little of the power of the state as possible in the hands of either party is the way to go..and if pressed about which side I might tilt the scales in favor of I would have to honestly say -employee-...... but I understand that my opinions in this regard are not strictly a matter of fairness but of my cultural history.
Our difference of opinion appears to be what kinds of things that might go into a contract should be enforceable(regardless of what currently is). For example, here in the US a contract may state that you are required to give notice or work for a predetermined period of time but it may not stipulate the amount of damages to be paid, nor may they sue for "loss of revenue" directly..though in some cases they may attempt to collect for the cost of rehiring. In many cases contracts contain clauses such as these even when they are unenforceable (because employment contracts are often the legal equivalent of form letters). I agree that interviewing and screening is no garuantee that any given person won't just up and quit someday, I still fail to see how providing a private business owner with the means to levy fines against their employees as a way of reducing the costs of running their business is a very smart way to handle that (we do..in very specific circumstance already allow this btw and I disagree with it greatly). Your observations on the difficulty a small business faces litigating a larger business in the event of fraud or malfeasance are easily as relevant if we alter the principals to "employee litigating employer".The ILO defines involuntary labor as "all involuntary work or service exacted under the menace of a penalty". You can say "but it's in the contract!" until you're blue in the face, but at no time will that change the fact that -what is in the contract- is an obligation of labor extracted under menace of penalty. What I'm attempting to communicate to you (and clearly failing at) is why this particular clause is unlawful here (particularly in my state..remember, states differ)-and how it came about, where I agree with our decisions, where I do not, and why. I can understand why you might balk at the idea of having a notice period compared to more brutal forms of compulsory labor like slavery, indentured servitude, or conscription, and I'm not disagreeing with you in that a notice period is not as barbaric as any of those things.....but it -is- unenforceable here (specifically where I am at) for precisely the same reasons. Whether the one demanding the labor is holding a riding crop, a contract, or an automatic weapon......the fundamental relationship between them and the laborer with regards to their labor is the same.
Here, in the US, the 13th amendment to the constitution prevents the sort of contract we're discussing here from becoming a federal issue.
"either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
Under this amendment the quitting of work may not be termed a crime, no state can establish any legislation which allows an individual to be held to unwilling labor. Note here, that the labor itself must be willing...not the signing of a contract at some indefinite point in the past. "But they signed a contract" has absolutely no bearing on whether or not they are willing participants in the exchange of labor at some indefinite point in the future (or whether or not their labor can be called "voluntary" simply because they signed a contract. Keep in mind, indentured servants often had contracts). This amendment was written specifically to address slavery, but it did abolish other forms of compulsory labor. This prevents any contract of this type from being enforceable in a criminal court in the US. Now, this amendment left the door open for a court to order monetary damages be paid to an employer in the event of breach of contract in a civil court up to and including punitive damages. This was the breathing room that allowed compulsory labor (by any name or designation) to continue unabated. Why this breathing room was left at all is, imho, a consequence of the times and peoples perceptions of labor, employment, and employers (and also, perhaps, the influence wielded by those who did the employing).
Now, amusingly (given the OP), the most notorious examples of companies which then used a contractual agreement and civil proceedings to compel labor (or levy fines against employees who were unwilling to provide their labor) were mining companies. If you were unaware of the history of labor and labor law in our country (and just how completely and utterly terrible it was - I know that when people talk about it it can sound like hyperbole-....the truly astonishing thing is that it is not) I would suggest you dive into the disagreements which erupted in the Appalachians and further afield all the way out to the west cost that surrounded the coal industry. I could talk your ear off about this but I'm going to try to keep it brief (and as relevant as possible while allowing myself some fun - and short- asides). It would be impossible for me to explain the situation laborers (almost always under contract) found themselves in here without first mentioning that coal, in it's heyday, was the entirety of the energy industry....and that even today's energy industry cannot compare to the power that it wielded. It would be fair at this point in our country's history to call the coal mining industry -The Industry-. You'd have to roll several major modern sectors of the economy together to begin to draw an apt comparison. The effects of this are lasting. The image that many have of "rednecks" comes directly from this conflict between miners and mining companies (first fostered from tax disputes involving liquor no less and further elaborated upon in the very same areas by the very same propaganda pieces we affectionately call "newspapers" now), the railbeds they layed (at horrendous cost in lives) exist to this very day..some are still railbeds..others are the foundations of major highways. It's my opinion (and other posters more in-tune to the labor/union movement in this country might disagree) that this was the point that we realized finally and utterly that a contract was, in and of itself and in the state that contracts found themselves in legally at that point, a completely inappropriate tool for prescribing the nature of employment and the relationship and obligations between an employer and an employee. That some things, though contained in a contract, were completely and utterly reprehensible in the spirit of the law even if they were in accord with the letter of the law. As I've mentioned, what was required for us to come to this realization was, apparently, a civil uprising complete with armed combat and military intervention. You asked for examples of companies that included usory provisions in their contracts and I'm going to go out on a limb here and state that it would probably be more difficult to find companies that didn't..in this time period, in this country. It was from these disagreements that a large majority of our current labor laws (and contract law - specifically as it applied to labor) had their precedents (or at least the very beginning, the rumblings of precedent) set. Limits were set on the specifics of what may be contained in an enforceable labor contract, and we see the genesis of the limitations of what damages an employer might seek from an ex-employee in civil proceedings. For example, punitive damages were disallowed (this is why a set amount of monetary damages in the event of breach of contract with regards to labor is not currently enforceable..it is seen as "punitive") in the event of breach of contract when that contract involved a labor dispute (specifically in the case of the employer seeking damages from the employees such as "loss of revenue" to this very day an employee may seek punitive damages from an employer...though it's rare that they are awarded such damages, or any damages at all). Our system was then (by default) very pro-employer, and it was the events immediately preceeding the Civil War and all the way into the 1920's that there was a decided shift towards that of protecting the employee over the employer. You mentioned that in the case of labor laws where you are they were set up the way they were to protect business (if I understood you correctly) but here they are a product of what we would now call human rights abuses -by- employers towards employees who were under contract.
When I mentioned that certain contracts prevented a person from leaving company grounds for the duration of the contract you resisted this idea...but why? Why does the "it's in the contract" statement not hold here? I'll link that example first as it was actually the subject of some discussion over here when the notion was thrown about that we might want to get rid of laws that mandated breaks. We discussed this on these forums as well. You'll find the companies involved in the link. One of the things these people were striking for was a limit to their working hours....which did not exist..and was used to fine employees at any time if they were not where the company told them to be. Other absurdities abound, paying in company scrip etc...all, btw "in their contracts". Keep in mind, the companies involved had been limited by the thirteenth amendment so that they could not pursue criminal action against these people but they did levy fines (and the specifics of the fines they levied and the reasons for levying them are all now unenforceable). This was what the companies involved turned to when the fines failed to compel their laborers to work. I do understand that you wouldn't suggest a company go to these lengths and that you wouldn't endorse something like this. If we were to sweep away all the violence involved in this we would still be left with the economic oppression which companies attempted to leverage against their contracted employees (in an effort to compel labor and maximise profits). The ability to litigate an employee for damages because they refuse to provide labor is a very handy tool for oppression, and even though I have absolute confidence that you personally would not use this tool in this manner (and I can see by your response and reaction that the various unethical ways this type of tool could be gamed do not immediately spring to mind to you) that says nothing about what this tool -has- been used for. In my opinion, labor laws should not be an issue of "heres this tool, and we know that you can oppress your employees with it, but we're trusting that you won't".
So, in my running roughshod over labor history (and the history of labor law) we find ourselves in the early to middle part of the 1900's. The failure to perform labor could not be prosecuted criminally due to the thirteenth amendment, and severe restrictions had been imposed upon what could go into a labor contract and what damages an employer might seek from an employee (even under contract..regardless of what that contract stated). The labor dispute could in some ways be said to have been put on hold in this century during WW2, but I want to continue this to right around the 50's and early 60's because that's when all US States adopted a principle that really put the nail in the coffin with regards to this notion of notice and it's attendant obligation of labor under menace of penalty. We call it "at-will" employment, adopted uniformly in 1959. People on either side of this issue are likely to have criticisms of this policy..but I like it. Essentially, it establishes that unless otherwise specified (and in some cases even when specified) all employment in this country is "at-will" from both the employer and employees standpoint. It absolves either party of any liability with regards to termination of employment. There are a few major exceptions to this (all employer side, race, religion, gender, whistleblowing..etc) but it means, in no uncertain terms, that an employee may quit, or an employer terminate said employment at any time, without notice, for any reason(exceptions aside). Now, as I'd mentioned at the beginning of this post there are some circumstances (all contractually defined) in which damages may be collected from an employee who terminates their employment in this country. In almost all cases these damages are limited to the cost of rehire and training. In some rare cases a company might seek damages under breach of contract (remember, loss of revenue cant be directly sued for..so it's "damages due to breach of contract" and when those damages are claimed to be loss of revenue a principle called certainty applies. Essentially, you must show that these damages are certain, fixed, their exact dollar amount..and in the case of potential profits I don't think I have to explain why this is nearly impossible to establish. So, from slavery in the 1800's to a contract which -may- be able to recoup the cost of rehire and even more rarely -may- be able to recoup lost revenue. I see these last two provisions (as rare as they may be) wholly inconsistent with the spirit of the law. Glitches, loopholes, what have you. It definitively -is- a form of coercion that can be used to compel you to perform labor you do not wish to perform. As to whether or not you think this coercion is "worth it" well...
Let's imagine that there is a business which spends approximately $2,500USD per new hire (this would be what a no-call no show might be liable for if they had such a contract..and it was enforecable). Lets imagine that this company has a first year turnover rate of 50% and this amounts to 400,000 ex-employees yearly. Thats 1billion USD spent annually on turnover. If we were referencing a company with average wages at or only slightly above minimum wage a very large percentage of this would be breach of contract (either fired, or no notice). What percentage of this 1billion dollar amount isn't "worth it" for the company to attempt to recover? This company exists, btw, and these numbers are intentionally chosen to be generous to the company in question..it's costs, turnover rates, and number of ex-employees yearly may all be much..much higher. What percentage of this operating expense should we the public be liable for so that it can continue it's pursuit of profits and ROI? Hiring an employee who quits with no notice..to my mind, appears to have been a bad investment, and let me just say here that no one sent me any checks for any of the investments I made the last decade that failed to produce.
While I can agree with your insistence on how firm a contract should or could be with regards to property and goods, I cannot apply that same rhetoric to labor..as labor (and the laborers themselves) is not property. What works in one arena may not be appropriate for another. I suppose that brings us full circle...to the thirteenth amendment and where this all began.
-On "at-will" employment-
The reason that I favor this approach (as does the vast majority of employers and employees in this country) over the notion that a binding contract of labor can be leveraged to pursue damages from someone you fired (or who quit) presumably breaching the contract is that I believe it adheres to the spirit of the law as it has been evolving over the centuries. It also removes the hassle and trouble of litigation when people quit or are fired.
I don't personally feel that a business owner should be able to lean on others to provide the necessary funds to cover the costs of running their private business (and certainly not their employees or ex-employees). I also do not think that an individual should have the ability to force a business owner to provide them with employment (or pay for their continued employment when it is no longer desired).
At will is simpler, at will provides a very distinct line between property and labor (this distinction is made very clear in our constitution), and it prevents even the possibility of the abuses we have seen in the past with regards to this issue. Can an employee screw a business over under at will? Yes. Can an employer screw over and employee under at will? Yes. I still think that putting as little of the power of the state as possible in the hands of either party is the way to go..and if pressed about which side I might tilt the scales in favor of I would have to honestly say -employee-...... but I understand that my opinions in this regard are not strictly a matter of fairness but of my cultural history.
I am the Infantry. I am my country’s strength in war, her deterrent in peace. I am the heart of the fight… wherever, whenever. I carry America’s faith and honor against her enemies. I am the Queen of Battle. I am what my country expects me to be, the best trained Soldier in the world. In the race for victory, I am swift, determined, and courageous, armed with a fierce will to win. Never will I fail my country’s trust. Always I fight on…through the foe, to the objective, to triumph overall. If necessary, I will fight to my death. By my steadfast courage, I have won more than 200 years of freedom. I yield not to weakness, to hunger, to cowardice, to fatigue, to superior odds, For I am mentally tough, physically strong, and morally straight. I forsake not, my country, my mission, my comrades, my sacred duty. I am relentless. I am always there, now and forever. I AM THE INFANTRY! FOLLOW ME!
