I'm a bit confused on this one. On the one hand, I think it should be a business owner's right to hire and fire who they will so long as it's not discrimination. On the other hand, some of the comments this guy made really make me wonder if it's not bordering on sexual harassment. I mean, seriously. "If there's a bulge in my pants, you know you're dressing too provocatively." :rolleyes: Just the same, she seemed to be okay with it if they were texting one another.
As inflammatory as the headline is, I kinda' side with the courts on this. It sucks, but it was obviously going to continue to cause friction in the guy's marriage. At least he realized it before the affair happened and took steps to prevent it. He sounds like a complete douche, but I don't think that he did anything wrong in the firing.
LINK (http://www.cnn.com/2012/12/22/us/iowa-irresistible-worker/)
Quote(CNN) -- It may not be fair, but it's not illegal -- not in Iowa.
Melissa Nelson, a worker fired for being "irresistible" to her boss, spoke out Saturday about a high court decision that said her termination broke no discrimination law.
"The last couple of days have just been an emotional roller coaster. I'm trying to stay strong. It's tough," she told CNN's Don Lemon. "I don't think it's fair. I don't think it's right."
Nelson spoke one day after the all-male Iowa Supreme Court ruled on her case. The high court sided with a lower court, ruling that Nelson's termination did not constitute sex discrimination under the Iowa Civil Rights Act.
She was not fired because of her gender, the court decided, but because her boss and his wife felt Nelson was a threat to their marriage.
Nelson was hired in 1999 as a dental assistant for James Knight. She stayed on at the Fort Dodge business for more than 10 years.
"The court got it absolutely right," said Stuart Cochrane, Knight's attorney. He said that for the Iowa Supreme Court to have acted otherwise, it would have had to "ignore every other case we could find" with similar facts.
At first blush, he said, the result might sound bizarre. But Cochrane stressed that if all the facts of the case were known, the court's decision would seem more fair.
"He and his wife really agonized about it," Cochrane said about Knight. "He didn't want to terminate her."
According to the high court's decision, Knight complained to Nelson toward the end of her employment that her clothes were tight and "distracting." Cochrane said Knight asked her repeatedly to dress differently.
Nelson denied that what she wore was out of place, and when asked by CNN's Lemon whether she dressed appropriately at work, she said she wore scrubs.
At one point, Knight told Nelson that "if she saw his pants bulging, she would know her clothing was too revealing," the decision read.
At another point, in response to an alleged comment Nelson made about the infrequency of her sex life, Knight responded: [T]hat's like having a Lamborghini in the garage and never driving it."
Nelson and Knight, both married with children, also exchanged text messages to each other outside of work. Neither objected to the texting.
But Knight's wife, who was employed at the same dental office, found out about those messages in late 2009 and demanded he fire Nelson. In early 2010, he did just that.
In the presence of a pastor, Knight told Nelson that she had become a "detriment" to his family and for the sakes of both their families, they should no longer work together. Knight gave Nelson one month's severance.
In a subsequent conversation between Knight and Nelson's husband, Knight said Nelson had done nothing wrong and that "she was the best dental assistant he ever had," the decision read.
Nelson filed a lawsuit, arguing that Knight fired her because of her gender. She did not contend that he committed sexual harassment.
In response, Knight argued that Nelson was fired because of the "nature of their relationship and the perceived threat" to his marriage, not because of her gender. In fact, he said, Knight only employs women and replaced Nelson with another female worker. A district court sided with Knight; Nelson appealed.
Framing the issue for the Iowa Supreme Court, Justice Edward M. Mansfield wrote: "The question we must answer is ... whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction."
Answering the question, he continued: "The issue before us is not whether a jury could find that Dr. Knight treated Nelson badly. We are asked to decide only if a genuine fact issue exists as to whether Dr. Knight engaged in unlawful gender discrimination when he fired Nelson at the request of his wife. For the reasons previously discussed, we believe this conduct did not amount to unlawful discrimination, and therefore we affirm the judgment of the district court."
Chick in question
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fwww.koat.com%2Fimage%2Fview%2F-%2F17879902%2FmedRes%2F3%2F-%2Fmaxh%2F460%2Fmaxw%2F620%2F-%2Fmvju36z%2F-%2FMelissa-Nelson-Iowa-dental-hygienist-fired.jpg&hash=e34b60bc7bb3d10188356381a37c8ade37da9ab4)
Yah, seems like to me:
1. She didn't even claim it was sexual harassment, so whatever communications they had was not unwanted between her and the dentist so no sexual harassment concern.
2. It doesn't look like the dentist is discriminating against anyone by gender or only allowing male hygienists to work there or etc. Instead it seems like his wife developed a personal animus to the woman based on personal problems and as an employer the dentist has wide latitude in resolving such personal disputes between workers. Since the hygienist was hired and worked there for a decade, being a woman the whole time, I don't see it being easy to demonstrate gender discrimination in his hiring or firing practices.
You know, if he didn't fuck her for ten years, that sounds like the definition of "resistable."
I fail to see how this isn't found to be discrimination. :huh:
Quote from: Martinus on December 23, 2012, 11:14:26 AM
I fail to see how this isn't found to be discrimination. :huh:
You should study law.
Quote from: sbr on December 23, 2012, 11:15:51 AM
Quote from: Martinus on December 23, 2012, 11:14:26 AM
I fail to see how this isn't found to be discrimination. :huh:
You should study law.
You know, in the civilized world (Europe), "employment discrimination" is any unequal treatment based on traits that are outside of the scope of the work performance. We don't have the whole "protected groups" bullshit here.
This would be clearly found to constitute discrimination, because the employee is fired irrespective of her work performance, because of out-of-work characteristics.
Not to mention, the standard is more demanding when it comes to existing employees, for obvious reasons. The guy would be paying through his nose.
What does "paying through his nose" mean anyway? I've never seen someone pay through their nose, and it sounds disgusting. If you have to pay a lot of money, wouldn't you choose a method that's easy and quick, like writing a check, rather than a very slow, inefficient, painful, and disgusting method?
Quote from: Martinus on December 23, 2012, 11:18:46 AM
Quote from: sbr on December 23, 2012, 11:15:51 AM
Quote from: Martinus on December 23, 2012, 11:14:26 AM
I fail to see how this isn't found to be discrimination. :huh:
You should study law.
You know, in the civilized world (Europe), "employment discrimination" is any unequal treatment based on traits that are outside of the scope of the work performance. We don't have the whole "protected groups" bullshit here.
This would be clearly found to constitute discrimination, because the employee is fired irrespective of her work performance, because of out-of-work characteristics.
Not to mention, the standard is more demanding when it comes to existing employees, for obvious reasons. The guy would be paying through his nose.
SO what if he fucked her, and then the wife said 'Fire her or we are getting a divorce'. Would that still be "discrimination"?
Quote from: Martinus on December 23, 2012, 11:18:46 AM
You know, in the civilized world (Europe), "employment discrimination" is any unequal treatment based on traits that are outside of the scope of the work performance. We don't have the whole "protected groups" bullshit here.
The continent that gave us the Nuremberg laws has nothing to teach anyone about the proper way to use the law.
Quote from: Martinus on December 23, 2012, 11:18:46 AM
You know, in the civilized world (Europe), "employment discrimination" is any unequal treatment based on traits that are outside of the scope of the work performance. We don't have the whole "protected groups" bullshit here.
This would be clearly found to constitute discrimination, because the employee is fired irrespective of her work performance, because of out-of-work characteristics.
Not to mention, the standard is more demanding when it comes to existing employees, for obvious reasons. The guy would be paying through his nose.
So I guess he just had to divorce his wife or shut down his business? Man no wonder nobody gets hired in Europe.
Quote from: Valmy on December 23, 2012, 01:14:25 PMSo I guess he just had to divorce his wife or shut down his business? Man no wonder nobody gets hired in Europe.
His marital problems have no bearing on the assessment of the contract between him and his employee - terminating it for reasons not connected with her work performance would be illegal here.
If he really wanted he could have reached a settlement with the employee so she left on her own.
Incidentally, this is being reported all over Europe as one of the "Americans are stupid" stories. I haven't seen a single comment supporting the judgement.
Quote from: sbr on December 23, 2012, 12:08:36 PMSO what if he fucked her, and then the wife said 'Fire her or we are getting a divorce'. Would that still be "discrimination"?
That would add sexual harassment charges to the picture if the employee had a lawyer with half a brain and claimed she maintained sexual contacts with him to keep her job.
Quote from: Martinus on December 23, 2012, 11:18:46 AM
Quote from: sbr on December 23, 2012, 11:15:51 AM
Quote from: Martinus on December 23, 2012, 11:14:26 AM
I fail to see how this isn't found to be discrimination. :huh:
You should study law.
You know, in the civilized world (Europe), "employment discrimination" is any unequal treatment based on traits that are outside of the scope of the work performance. We don't have the whole "protected groups" bullshit here.
This would be clearly found to constitute discrimination, because the employee is fired irrespective of her work performance, because of out-of-work characteristics.
Not to mention, the standard is more demanding when it comes to existing employees, for obvious reasons. The guy would be paying through his nose.
See, this is why nobody takes you seriously as a lawyer. There are "protected groups" in Europe that benefit from "employment discrimination" as you define it. http://en.wikipedia.org/wiki/Affirmative_action#Germany
See? Europe is barbaric and stupid.
Quote from: Martinus on December 23, 2012, 01:30:15 PM
Quote from: Valmy on December 23, 2012, 01:14:25 PMSo I guess he just had to divorce his wife or shut down his business? Man no wonder nobody gets hired in Europe.
His marital problems have no bearing on the assessment of the contract between him and his employee - terminating it for reasons not connected with her work performance would be illegal here.
If he really wanted he could have reached a settlement with the employee so she left on her own.
Incidentally, this is being reported all over Europe as one of the "Americans are stupid" stories. I haven't seen a single comment supporting the judgement.
Iowa's an at-will employment state. He could have fired her for wearing blue. There is no real employment contract, unless there's a written employment contract that gives her more rights than that.
Don't like it? Lump it. It sucks, but that's America. This is not a special story.
Are the Euro comments against the judgment are actually applying facts to law?
Quote from: Martinus on December 23, 2012, 01:30:15 PM
Quote from: Valmy on December 23, 2012, 01:14:25 PMSo I guess he just had to divorce his wife or shut down his business? Man no wonder nobody gets hired in Europe.
His marital problems have no bearing on the assessment of the contract between him and his employee - terminating it for reasons not connected with her work performance would be illegal here.
If he really wanted he could have reached a settlement with the employee so she left on her own.
Incidentally, this is being reported all over Europe as one of the "Americans are stupid" stories. I haven't seen a single comment supporting the judgement.
Very few people here work under a contract.
Quote from: Ideologue on December 23, 2012, 10:46:57 AM
You know, if he didn't fuck her for ten years, that sounds like the definition of "resistable."
That's what I was thinking. Maybe she was really fat 10 years ago.
Quote from: Ideologue on December 23, 2012, 01:37:20 PM
Iowa's an at-will employment state. He could have fired her for wearing blue.
See that's what I don't get. If he can fire her for any random thing unrelated to her performance, why isn't he allowed to fire her for being a woman as well? It doesn't make any sense.
Because they have to pretend to be fair.
Just make something up. I am distressed at my fellow business owners and their lack of imagination in terminating employees.
Quote from: Iormlund on December 23, 2012, 03:44:43 PM
See that's what I don't get. If he can fire her for any random thing unrelated to her performance, why isn't he allowed to fire her for being a woman as well? It doesn't make any sense.
Johnson's civil rights legislation and, later, the Americans with Disabilities Act. There are certain "protected classes" that you're not allowed to discriminate against. Women are a protected class. Hotties is not a protected class.
Come to think of it, fugliness is probably a protected class. Airlines used to hire only hotties as stewardesses until that fat cow Bella Abzug said they had to hire fugs too.
Quote from: Admiral Yi on December 23, 2012, 04:17:26 PM
Come to think of it, fugliness is probably a protected class. Airlines used to hire only hotties as stewardesses until that fat cow Bella Abzug said they had to hire fugs too.
And guys. Was on a Southwest flight with a dude attendant that had so much fabulous glitter, I thought we were flying straight to Pride Day.
Quote from: Ed Anger on December 23, 2012, 04:05:53 PM
Just make something up. I am distressed at my fellow business owners and their lack of imagination in terminating employees.
I've always given people good reasons. The paint thing was my favorite.
I'm broadly with Marti and Iorm on this one, I don't like 'protected classes' or 'at will' laws. In the UK we don't have 'protected classes' but 'protected characteristics' which include age, gender, beliefs, race and so on.
Quote from: Sheilbh on December 23, 2012, 05:12:28 PM
I'm broadly with Marti and Iorm on this one, I don't like 'protected classes' or 'at will' laws. In the UK we don't have 'protected classes' but 'protected characteristics' which include age, gender, beliefs, race and so on.
Not real clear what the difference between that and a "protected class" is.
Looking around the world, the only alternative to at will laws seems to be once you hire a guy, he's yours for life.
Quote from: Peter Wiggin on December 23, 2012, 05:15:47 PM
Quote from: Sheilbh on December 23, 2012, 05:12:28 PM
I'm broadly with Marti and Iorm on this one, I don't like 'protected classes' or 'at will' laws. In the UK we don't have 'protected classes' but 'protected characteristics' which include age, gender, beliefs, race and so on.
Not real clear what the difference between that and a "protected class" is.
Yeah, that sounds like it might be mostly a difference in terminology.
Quote from: dps on December 23, 2012, 05:22:35 PM
Quote from: Peter Wiggin on December 23, 2012, 05:15:47 PM
Quote from: Sheilbh on December 23, 2012, 05:12:28 PM
I'm broadly with Marti and Iorm on this one, I don't like 'protected classes' or 'at will' laws. In the UK we don't have 'protected classes' but 'protected characteristics' which include age, gender, beliefs, race and so on.
Not real clear what the difference between that and a "protected class" is.
Yeah, that sounds like it might be mostly a difference in terminology.
Yi said women were a protected class. In the UK gender is a protected characteristic. It's illegal to discriminate against people on the basis of their gender so it covers women, men and people undergoing gender reassignment.
QuoteLooking around the world, the only alternative to at will laws seems to be once you hire a guy, he's yours for life.
Not really :mellow:
Quote from: Sheilbh on December 23, 2012, 05:26:09 PM
Quote from: dps on December 23, 2012, 05:22:35 PM
Quote from: Peter Wiggin on December 23, 2012, 05:15:47 PM
Quote from: Sheilbh on December 23, 2012, 05:12:28 PM
I'm broadly with Marti and Iorm on this one, I don't like 'protected classes' or 'at will' laws. In the UK we don't have 'protected classes' but 'protected characteristics' which include age, gender, beliefs, race and so on.
Not real clear what the difference between that and a "protected class" is.
Yeah, that sounds like it might be mostly a difference in terminology.
Yi said women were a protected class. In the UK gender is a protected characteristic. It's illegal to discriminate against people on the basis of their gender so it covers women, men and people undergoing gender reassignment.
Well, actually, what Yi said is a simplification. It's against the law to discriminate on the basis of gender, because gender is a protected class. But in practice, that generally means that it's illegal to discriminate against women, because discrimination against men is a lot less common in the first place (though as someone mentioned, the airlines were forced to start hiring stewards as well as stewardesses).
Quote from: Sheilbh on December 23, 2012, 05:26:09 PM
Yi said women were a protected class. In the UK gender is a protected characteristic. It's illegal to discriminate against people on the basis of their gender so it covers women, men and people undergoing gender reassignment.
Now that's just fucking weird.
Quote from: Iormlund on December 23, 2012, 03:44:43 PM
Quote from: Ideologue on December 23, 2012, 01:37:20 PM
Iowa's an at-will employment state. He could have fired her for wearing blue.
See that's what I don't get. If he can fire her for any random thing unrelated to her performance, why isn't he allowed to fire her for being a woman as well? It doesn't make any sense.
Fed law says they can't. Acts under the commerce clause trump contradictory state law under the supremacy clause. The fedgov could basically go as far as they wished, and require good cause to terminate, but they don't. So you get forbidden reasons to terminate or refuse to hire, like being a woman or minority, but employers can just say they were fired for being gay or a Democrat. Martinus isn't wrong that it's stupid, but it is (with the caveat that I have not read this particular opinion, so it could indeed be shit) the law.
But you get this. It's like in Spain, where Basques are permitted to plant bombs and own machine guns, but Castellanos aren't.
Quote from: Ideologue on December 23, 2012, 07:23:47 PM
Quote from: Iormlund on December 23, 2012, 03:44:43 PM
Quote from: Ideologue on December 23, 2012, 01:37:20 PM
Iowa's an at-will employment state. He could have fired her for wearing blue.
See that's what I don't get. If he can fire her for any random thing unrelated to her performance, why isn't he allowed to fire her for being a woman as well? It doesn't make any sense.
Fed law says they can't. Acts under the commerce clause trump contradictory state law under the supremacy clause. The fedgov could basically go as far as they wished, and require good cause to terminate, but they don't. So you get forbidden reasons to terminate or refuse to hire, like being a woman or minority, but employers can just say they were fired for being gay or a Democrat. Martinus isn't wrong that it's stupid, but it is (with the caveat that I have not read this particular opinion, so it could indeed be shit) the law.
But you get this. It's like in Spain, where Basques are permitted to plant bombs and own machine guns, but Castellanos aren't.
It's not going to make a whole lot of difference to an employer that only has a very few employees, because as you say, they can always claim some other reason for not hiring or for firing minorities, but for large employers, it does matter. What I mean is, consider 2 stores in a community that is say, 20% African-American. One is a mom-and-pop type operation that other than the owners only has 2 or 3 employees; the other is a supercenter with 400 employees. The supercenter, absent any hiring bias, would be expected to have about 80 African-American employees (20% of 400 is 80, for the math challenged among us), and if they have significantly fewer that that, it would be considered
prima facie evidence of racial discrimination. The mom-and-pop store, OTOH, wouldn't actually be statistically expected to have any African-American employees (20% of 3 still being less than 1), so the simple fact that they don't have any black employees wouldn't be sufficient evidence of racial discrimination--you'd need some other evidence to support a discrimination case.
Quote from: Martinus on December 23, 2012, 11:18:46 AM
The guy would be paying through his nose.
ANTISEMITE!!!!!!!1111111
Quote from: Ideologue on December 23, 2012, 07:23:47 PM
Martinus isn't wrong
You were doing so well, but then you just had to step on your own dick, didn't you? Do you have a fear of success?
Quote from: Martinus on December 23, 2012, 11:18:46 AM
Quote from: sbr on December 23, 2012, 11:15:51 AM
Quote from: Martinus on December 23, 2012, 11:14:26 AM
I fail to see how this isn't found to be discrimination. :huh:
You should study law.
You know, in the civilized world (Europe), "employment discrimination" is any unequal treatment based on traits that are outside of the scope of the work performance. We don't have the whole "protected groups" bullshit here.
This would be clearly found to constitute discrimination, because the employee is fired irrespective of her work performance, because of out-of-work characteristics.
Not to mention, the standard is more demanding when it comes to existing employees, for obvious reasons. The guy would be paying through his nose.
I'm quite amused by the Martinus posts above. "I fail to see how this isn't found to be discrimination" follows with an explanation of european law in a case he knew was in America. I also seem to remember discussing that the US has a number of at will jurisdictions on this forum.
Quote from: Neil on December 23, 2012, 09:58:31 PM
Quote from: Ideologue on December 23, 2012, 07:23:47 PM
Martinus isn't wrong
You were doing so well, but then you just had to step on your own dick, didn't you? Do you have a fear of success?
:lol:
Quote from: Neil on December 23, 2012, 09:58:31 PM
Quote from: Ideologue on December 23, 2012, 07:23:47 PM
Martinus isn't wrong
You were doing so well, but then you just had to step on your own dick, didn't you? Do you have a fear of success?
Have you read nothing of his life? :huh:
Quote from: Iormlund on December 23, 2012, 03:44:43 PM
Quote from: Ideologue on December 23, 2012, 01:37:20 PM
Iowa's an at-will employment state. He could have fired her for wearing blue.
See that's what I don't get. If he can fire her for any random thing unrelated to her performance, why isn't he allowed to fire her for being a woman as well? It doesn't make any sense.
Exactly.
Quote from: Admiral Yi on December 23, 2012, 05:21:54 PM
Looking around the world, the only alternative to at will laws seems to be once you hire a guy, he's yours for life.
Not really. The way it is done in Poland for example (and this is broadly similar in most of the EU, with a possible exception of the UK as they have taken exceptions to EU labor protection laws) is as follows:
- you can fire an employee for bad job performance - depending on whether he is just an underperformer or actually did something like coming to work drunk or stealing from the company, you either have to give him notice or can fire him without notice;
- you can fire an employee as a part of job restructuring (e.g. you are having mass layoffs or are liquidating his or her job position) - in this case you have to pay him special compensation.
Both are actionable, i.e. if for example you fire someone due to liquidating a job position but shortly thereafter rehire someone for, substantially, the same position, the ex-employee has a claim to either be restituted to work or get damages.
As for non-discrimination, Polish labour law says explicitly that "noone can be discriminated in employment for any reason whatsoever" (and then it goes on to mention groups such as ethnicity, race, gender, sexual orientation etc. but these are mentioned only as examples - this is not a closed list) and that the only discrimination is allowed if it is objectively justified by the nature of work performed (so e.g. churches can only hire people of their religion to be vicars etc., but e.g. cannot insist on a cleaning lady to be of their religion etc.)
Quote from: Martinus on December 24, 2012, 03:59:42 AM
- you can fire an employee for bad job performance -
Who gets to make the call?
Quote from: Admiral Yi on December 24, 2012, 04:30:04 AM
Quote from: Martinus on December 24, 2012, 03:59:42 AM
- you can fire an employee for bad job performance -
Who gets to make the call?
Office horse master, though he may consult the tribes law caster.
Quote
As for non-discrimination, Polish labour law says explicitly that "noone can be discriminated in employment for any reason whatsoever" (and then it goes on to mention groups such as ethnicity, race, gender, sexual orientation etc. but these are mentioned only as examples - this is not a closed list) and that the only discrimination is allowed if it is objectively justified by the nature of work performed (so e.g. churches can only hire people of their religion to be vicars etc., but e.g. cannot insist on a cleaning lady to be of their religion etc.)
[/quuote]
That sounds odd, having a no discrimination for any reason law
Concievably could someone complain that their employer is discriminating against them being a dickhead?
Quote from: Martinus on December 24, 2012, 03:52:54 AM
Quote from: Iormlund on December 23, 2012, 03:44:43 PM
See that's what I don't get. If he can fire her for any random thing unrelated to her performance, why isn't he allowed to fire her for being a woman as well? It doesn't make any sense.
Exactly.
It makes perfect sense. In the US generally, we want employers to have as much freedom as possible to hire or fire employees. However, we don't like discrimination. So, we make it illegal to fire people on the basis of race, gender, disability, etc. Banning discrimination is the exception to the general rule.
In practice, of course, when you can fire someone for any reason, it is easy for an employer to point out non-discriminatory reasons for termination: e.g., poor work performance. In fact, in employment discrimination cases, the law is that the employee must first show some sort of adverse impact, along with evidence of discrimination. The employer then has the burden to show a non-discriminatory justification. If the employer does produce a non-discriminatory justification, the employee can rebut it. If the employer's justification is not credible, the jury is free to reject it.
Quote from: Alcibiades on December 24, 2012, 12:16:18 AM
Quote from: Neil on December 23, 2012, 09:58:31 PM
Quote from: Ideologue on December 23, 2012, 07:23:47 PM
Martinus isn't wrong
You were doing so well, but then you just had to step on your own dick, didn't you? Do you have a fear of success?
Have you read nothing of his life? :huh:
There's a difference between drinking, fighting, crashing your car and having a weird thing for little, little women, and agreeing with Martinus. The first group falls into the category of 'mistakes', whereas the second is a catastrophic gap in your ability to judge and reason.
Quote from: Martinus on December 24, 2012, 03:59:42 AM
- you can fire an employee for bad job performance - depending on whether he is just an underperformer or actually did something like coming to work drunk or stealing from the company, you either have to give him notice or can fire him without notice;
But this means that an employer can - and will - make something up if they dislike you personally. I'd much rather be fired due to a personality clash than poor performance. One reflects poorly on my work, the other on something that any number of people could end up in regardless of good work ethics, ability, etc.
Quote from: Martinus on December 23, 2012, 01:30:15 PM
Quote from: Valmy on December 23, 2012, 01:14:25 PMSo I guess he just had to divorce his wife or shut down his business? Man no wonder nobody gets hired in Europe.
His marital problems have no bearing on the assessment of the contract between him and his employee - terminating it for reasons not connected with her work performance would be illegal here.
If he really wanted he could have reached a settlement with the employee so she left on her own.
Incidentally, this is being reported all over Europe as one of the "Americans are stupid" stories. I haven't seen a single comment supporting the judgement.
By and large, aside from like Montana, employment contracts in America are considered to be terminable at will by either party without any requirement to show specific cause. I fail to see how that's an "Americans are stupid issue." I know that you know we have at will employment, and I'll even hazard to guess you can understand the basics of it. It's a societal choice that was made, perhaps better, perhaps worse, than the standards in Europe. But I don't see how it is "stupid" anymore than say, letting trade unions run all industry is stupid in countries like Germany. It seems more like a "societal preference" thing to me.
Quote from: merithyn on December 24, 2012, 10:25:32 AM
Quote from: Martinus on December 24, 2012, 03:59:42 AM
- you can fire an employee for bad job performance - depending on whether he is just an underperformer or actually did something like coming to work drunk or stealing from the company, you either have to give him notice or can fire him without notice;
But this means that an employer can - and will - make something up if they dislike you personally. I'd much rather be fired due to a personality clash than poor performance. One reflects poorly on my work, the other on something that any number of people could end up in regardless of good work ethics, ability, etc.
While that's true, in practice even in America few employers will admit to firing someone without good cause, because generally doing so impacts the amount the employer has to pay into the state unemployment insurance fund. So while the boss might fire you simply because they dislike you personally, they'll almost always say that it was for poor job performance.
Quote from: Admiral Yi on December 24, 2012, 04:30:04 AM
Quote from: Martinus on December 24, 2012, 03:59:42 AM
- you can fire an employee for bad job performance -
Who gets to make the call?
If there is a dispute, the court.
It's no different than, say, you hiring a guy to paint your flat and then him doing a lousy job. If you refuse to pay or want the price decreased but he insists on getting the full pay, you go to the court. :huh:
Quote from: merithyn on December 24, 2012, 10:25:32 AM
Quote from: Martinus on December 24, 2012, 03:59:42 AM
- you can fire an employee for bad job performance - depending on whether he is just an underperformer or actually did something like coming to work drunk or stealing from the company, you either have to give him notice or can fire him without notice;
But this means that an employer can - and will - make something up if they dislike you personally. I'd much rather be fired due to a personality clash than poor performance. One reflects poorly on my work, the other on something that any number of people could end up in regardless of good work ethics, ability, etc.
Well, the bad performance must be documented. If the employee wants to challenge that and appeals to a labour court, the judge will want to examine the employee's dossier and any evidence of the employee's poor performance. If the employer cannot prove that the employee was badly performing his job, the employee will either get reinstated or get compensation (reinstating is usually reserved for bigger organisations, where the employer-employee relationship is less personal).
Of course, if there is a grey area and the employee is somewhat underperforming, the standard approach is for the employer to offer to terminate the employment by mutual agreement - this way the employer is not under a risk of being sued and the employee does not get a bad track record for any future employers.
Quote from: Martinus on December 24, 2012, 11:08:15 AM
Quote from: Admiral Yi on December 24, 2012, 04:30:04 AM
Quote from: Martinus on December 24, 2012, 03:59:42 AM
- you can fire an employee for bad job performance -
Who gets to make the call?
If there is a dispute, the court.
It's no different than, say, you hiring a guy to paint your flat and then him doing a lousy job. If you refuse to pay or want the price decreased but he insists on getting the full pay, you go to the court. :huh:
Actually, it is fairly different. Unless the terminated employee has pretty convincing evidence that the firing was discriminatory, the courts are going to give the employer pretty wide latitude to fire people based on poor job performance in most American jurisdictions; while in your example of a contractor suing to get his pay, the courts are usually going to rule that he has to be paid in full absent good evidence that the work wasn't done or was substantially substandard.
Quote from: Martinus on December 24, 2012, 11:12:10 AM
Quote from: merithyn on December 24, 2012, 10:25:32 AM
Quote from: Martinus on December 24, 2012, 03:59:42 AM
- you can fire an employee for bad job performance - depending on whether he is just an underperformer or actually did something like coming to work drunk or stealing from the company, you either have to give him notice or can fire him without notice;
But this means that an employer can - and will - make something up if they dislike you personally. I'd much rather be fired due to a personality clash than poor performance. One reflects poorly on my work, the other on something that any number of people could end up in regardless of good work ethics, ability, etc.
Well, the bad performance must be documented. If the employee wants to challenge that and appeals to a labour court, the judge will want to examine the employee's dossier and any evidence of the employee's poor performance. If the employer cannot prove that the employee was badly performing his job, the employee will either get reinstated or get compensation (reinstating is usually reserved for bigger organisations, where the employer-employee relationship is less personal).
Of course, if there is a grey area and the employee is somewhat underperforming, the standard approach is for the employer to offer to terminate the employment by mutual agreement - this way the employer is not under a risk of being sued and the employee does not get a bad track record for any future employers.
All the employer really has to do is give the employee a couple of write-ups. That's all the documentation they'll need (unless the employee has very good evidence that there was some sort of discrimination involved)--the courts don't want to get into ruling on whether or not someone's job performance was actually poor or not.
There is something of a catch-22 here.
In the USA you can get fired and nobody will think anything of it.
In Europe one receives substantial protections, but getting fired will carry a substantial stigma.
Quote from: Richard Hakluyt on December 24, 2012, 11:31:54 AM
There is something of a catch-22 here.
In the USA you can get fired and nobody will think anything of it.
I am not very sure that's true.
I'd say not true at all.
Admittedly I made it up........
.........but that being so it seems that you are getting a raw deal over in the USA???
It's not totally disregarded in canada, but I don't think it's as bad in Europe where it seems like you have to kill a coworker or something to get fired.
Quote from: Richard Hakluyt on December 24, 2012, 12:40:27 PM
Admittedly I made it up........
.........but that being so it seems that you are getting a raw deal over in the USA???
It can be difficult to get fired, regardless of the "at will" status of many states. Corporations don't want to be known as quick to pull the trigger on someone, and it's really not all that hard to sue a company for descrimination since there are so many options to choose from. Even if it wouldn't win in a court of law, companies are more likely to settle than to let it get that far. It's cheaper, in the long run.
Quote from: merithyn on December 24, 2012, 12:48:19 PM
Quote from: Richard Hakluyt on December 24, 2012, 12:40:27 PM
Admittedly I made it up........
.........but that being so it seems that you are getting a raw deal over in the USA???
It can be difficult to get fired, regardless of the "at will" status of many states. Corporations don't want to be known as quick to pull the trigger on someone, and it's really not all that hard to sue a company for descrimination since there are so many options to choose from. Even if it wouldn't win in a court of law, companies are more likely to settle than to let it get that far. It's cheaper, in the long run.
:yes:
Just see the case of that crazy bitch at my old job. They even had photos of her sleeping.
The thing that was really crappy about your crazy bitch is that she got someone else fired.
Quote from: dps on December 24, 2012, 11:15:52 AM
Quote from: Martinus on December 24, 2012, 11:08:15 AM
Quote from: Admiral Yi on December 24, 2012, 04:30:04 AM
Quote from: Martinus on December 24, 2012, 03:59:42 AM
- you can fire an employee for bad job performance -
Who gets to make the call?
If there is a dispute, the court.
It's no different than, say, you hiring a guy to paint your flat and then him doing a lousy job. If you refuse to pay or want the price decreased but he insists on getting the full pay, you go to the court. :huh:
Actually, it is fairly different. Unless the terminated employee has pretty convincing evidence that the firing was discriminatory, the courts are going to give the employer pretty wide latitude to fire people based on poor job performance in most American jurisdictions; while in your example of a contractor suing to get his pay, the courts are usually going to rule that he has to be paid in full absent good evidence that the work wasn't done or was substantially substandard.
He was asking about Polish courts, so not sure how your response is relevant.
Quote from: HVC on December 24, 2012, 01:09:22 PM
The thing that was really crappy about your crazy bitch is that she got someone else fired.
On the positive, he now has a job he likes a lot more. :)
Most Americans are okay with the system for a few reasons:
1. In truth it isn't a factor in most employment relationships. Most large corporations and government employers do not fire without cause, and make it policy to only terminate employment by following a rigid, codified process that involves multiple warnings given to the employee.
2. Many of the jobs where it is a factor are jobs populated by itinerant types who often go from job to job in any case, so aren't really too concerned about the matter.
3. It is understood employers who can easily trim dead weight are more likely to create jobs for good workers, and it's understood forcing employers to keep bad employees is an economic albatross.
Anyway, we really need some better pictures of this chick to deduce if she was really "irresistible".
Quote from: OttoVonBismarck on December 24, 2012, 02:18:43 PM
Most Americans are okay with the system for a few reasons:
1. In truth it isn't a factor in most employment relationships. Most large corporations and government employers do not fire without cause, and make it policy to only terminate employment by following a rigid, codified process that involves multiple warnings given to the employee.
2. Many of the jobs where it is a factor are jobs populated by itinerant types who often go from job to job in any case, so aren't really too concerned about the matter.
3. It is understood employers who can easily trim dead weight are more likely to create jobs for good workers, and it's understood forcing employers to keep bad employees is an economic albatross.
It seems to me that there is a fundamental misunderstanding at work about how other jurisdictions handle firing workers.
For example, here in Canada you can fire someone without cause any time you like (assuming they aren't unionized) - you just have to give them "notice", meaning usually pay in lieu of notice. How much notice depends on all sorts of factors, mostly length of employment (generally, the longer you work for someone, the more notice) ... but if you are firing them "with cause", you don't have to give any notice.
So it isn't like you are forced to keep "bad employees". If they are truly "bad" enough to amount to "cause" you can fire them without paying anything. If they aren't truly "bad", and you just don't need or want them any more, you have to give them severence - or "pay in lieu of notice" - which is a cost assuredly, but not the same as "forcing" the employer to keep them on.
In this case, had the dentist been in Canada presumably he'd have to give his hygenist some pay in lieu of notice, since his wife being jealous doesn't amount to "cause". He could still of course fire her. Seems to me that would be a more reasonable outcome.
Note my Dearest Shylock I made no comments specific to any non-American jurisdiction nor hath I asserted a thing about Canadian employment law. I just explained a certain principle in the American psyche. Also might be worth noting the dentist in this situation did give her one month's pay as severance when he initially terminated her employment.
Quote from: OttoVonBismarck on December 24, 2012, 03:23:16 PM
Note my Dearest Shylock I made no comments specific to any non-American jurisdiction nor hath I asserted a thing about Canadian employment law.
You can't ever stop those guys from doing that FOR EXAMPLE UP HERE ITS DIFFERENT stuff.
I blame BB. Foreigners. :rolleyes:
How will you ever learn if no one teaches you there is a better way :contract:
Quote from: OttoVonBismarck on December 24, 2012, 03:23:16 PM
Note my Dearest Shylock I made no comments specific to any non-American jurisdiction nor hath I asserted a thing about Canadian employment law. I just explained a certain principle in the American psyche. Also might be worth noting the dentist in this situation did give her one month's pay as severance when he initially terminated her employment.
The American psyche does not understand that there is no way inbetween being "forced" to keep an employee and being allowed to fire him or her "at will", and so must be properly educated with the superiority of other folk's sytems. How else will it ever learn? :)
For a 10 year employee, 1 month is not overly generous. :lol:
I don't really agree with what you've concluded from what I said. I said Americans tend to favor at will because there is a belief it makes us more productive and allows businesses to more easily shed unproductive workers and thus create more positions for productive workers. I don't think that belief is incompatible with some level of benefit scheme or whatever, but in America it is generally felt such schemes shouldn't be forced onto all employers because it hurts small business. Larger employers have unions and/or a desire to make their company attractive to good workers and Americans on the whole are fine with that system.
I've heard companies like IBM do one week of severance per year of employment, so it isn't like no one gives decent severance here. But we've just decided universal requirements in that regard aren't ideal. I don't know the situation elsewhere but unless your employer dismisses you for misconduct you are still eligible for unemployment benefits as well so it isn't as though you go without. Note that unemployment hearings are administrative law and there is a strong default preference for the employee. If an employer contests your unemployment benefit the burden is on them to either demonstrate you quit or had committed misconduct--employers often do not prevail in these hearings even when they should.
Quote from: OttoVonBismarck on December 24, 2012, 04:03:14 PM
Note that unemployment hearings are administrative law and there is a strong default preference for the employee. If an employer contests your unemployment benefit the burden is on them to either demonstrate you quit or had committed misconduct--employers often do not prevail in these hearings even when they should.
I can attest to this. :ph34r:
Quote from: OttoVonBismarck on December 24, 2012, 04:03:14 PM
I don't really agree with what you've concluded from what I said. I said Americans tend to favor at will because there is a belief it makes us more productive and allows businesses to more easily shed unproductive workers and thus create more positions for productive workers. I don't think that belief is incompatible with some level of benefit scheme or whatever, but in America it is generally felt such schemes shouldn't be forced onto all employers because it hurts small business. Larger employers have unions and/or a desire to make their company attractive to good workers and Americans on the whole are fine with that system.
I've heard companies like IBM do one week of severance per year of employment, so it isn't like no one gives decent severance here. But we've just decided universal requirements in that regard aren't ideal. I don't know the situation elsewhere but unless your employer dismisses you for misconduct you are still eligible for unemployment benefits as well so it isn't as though you go without. Note that unemployment hearings are administrative law and there is a strong default preference for the employee. If an employer contests your unemployment benefit the burden is on them to either demonstrate you quit or had committed misconduct--employers often do not prevail in these hearings even when they should.
Great, so instead of employees paying the costs of the inevitable downtime between being fired without cause and getting a new job, it makes more sense to unload those costs on the taxpayers generally? America, stop being so damned socialist! :P
Sure, I get it that the theoretical justification for at-will is that it makes for ecomonic flexibility. In reality, as you point out, what it does as well is dump the
costs of that flexibility onto the workers themselves and the public via unemployement insurance. Seems to me that any system in which the benefits are private but the costs are public is less than ideal in terms of incentives.
Tax payers don't cover unemployment. Employers do. :)
Quote from: merithyn on December 24, 2012, 06:11:30 PM
Tax payers don't cover unemployment. Employers do. :)
Employers aren't taxpayers? They are not paying taxes to fund the program? :yeahright: Also note that it's a federal-state program that, in reality, spreads the obligation for payment onto the "taxpayers" more generally, as in many cases payroll taxes don't cover obligations.
http://en.wikipedia.org/wiki/Unemployment_benefits#United_States
You are missing the point of the criticism here: that the
individual employers who choose to "flexibly" lay workers off don't have to pay severance - thus are able to externalize the costs of that decision onto the commonality of employers (and the state generally).
Not exactly Malthus. Unemployment insurance premiums are set at least in part by the history of the workers of a given company claiming benefits. If you don't fire many workers without cause your premiums will be lower.
Thanks for the replies. Otto's point 1 : "1. In truth it isn't a factor in most employment relationships. Most large corporations and government employers do not fire without cause, and make it policy to only terminate employment by following a rigid, codified process that involves multiple warnings given to the employee." is essentially the position over in the UK, despite the law sounding so different. People being people, there is the occasional injustice and rather too many albatrosses are tolerated, but it's not a bad compromise IMO.
Quote from: Razgovory on December 24, 2012, 02:30:25 PM
Anyway, we really need some better pictures of this chick to deduce if she was really "irresistible".
Quick Google search says: no. I'll be nice and say she's not ugly, but definitely not irresistible.
Quote from: merithyn on December 24, 2012, 06:11:30 PM
Tax payers don't cover unemployment. Employers do. :)
Yes, and as I pointed out earlier, that's another reason employers don't generally like to terminate without good cause--it causes them to have to pay more into the fund.
Quote from: derspiess on December 24, 2012, 11:42:48 PM
Quote from: Razgovory on December 24, 2012, 02:30:25 PM
Anyway, we really need some better pictures of this chick to deduce if she was really "irresistible".
Quick Google search says: no. I'll be nice and say she's not ugly, but definitely not irresistible.
Indeed. Very average. Maybe she was very flirty or something?
Quote from: Admiral Yi on December 24, 2012, 09:02:53 PM
Not exactly Malthus. Unemployment insurance premiums are set at least in part by the history of the workers of a given company claiming benefits. If you don't fire many workers without cause your premiums will be lower.
:yes:
Even though we have tough labour laws in belgium.
You can fire people without giving a cause, it's not obliged by Belgian labour law to give a cause.
You can even fire someone on the spot if they made a grave error, but then a good cause is needed and the firing needs to happen in 24h after the incident. In that case Employer doesn't have to pay any compensation or give notice. The employee won't be eligible immediatly for unemployement benefits than.
So this also could happen here.
I don't think he will have done his business any favours with this behaviour. Most patients rightly expect their dentists to be concentrating on their teeth, rather than wandering about with a bulging crotch ogling the assistant.
Quote from: Martinus on December 23, 2012, 11:18:46 AM
You know, in the civilized world (Europe), "employment discrimination" is any unequal treatment based on traits that are outside of the scope of the work performance. We don't have the whole "protected groups" bullshit here.
This would be clearly found to constitute discrimination, because the employee is fired irrespective of her work performance, because of out-of-work characteristics.
Not to mention, the standard is more demanding when it comes to existing employees, for obvious reasons. The guy would be paying through his nose.
In this part of Europe, the dentist could probably just have fired her without any particular reason given because all the termination protection laws only apply for employers with more than 10 employees and I reckon the typical dentist has less than that.
Quote from: Admiral Yi on December 24, 2012, 09:02:53 PM
Not exactly Malthus. Unemployment insurance premiums are set at least in part by the history of the workers of a given company claiming benefits. If you don't fire many workers without cause your premiums will be lower.
You are overlooking the fact that the programs are underfunded and rely on the general state budget.
QuoteEffect on state budgets
Another issue with unemployment insurance relates to its effects on state budgets. During recessionary time periods, the number of unemployed rises and they begin to start drawing benefits from the program. The longer the recession lasts, depending on the state's starting UI program balance, the quicker the state begins to run out of funds. The recession that began in December 2007 and ended in June 2009 has significantly impacted state budgets. According to The Council of State Governments, by March 18, 2011, 32 states plus the Virgin Islands had borrowed nearly $45.7 billion. The Labor Department estimates by the fourth quarter of 2013, as many as 40 states may need to borrow more than $90 billion to fund their unemployment programs and it will take a decade or more to pay off the debt.
Thus, a major part of the budget is funded from the public, tax-payer purse. Hence, moral hazard.
That's true only during recessions, and not necessarily an accident. Unemployment insurance is designed to be a welfare program during recessions, and self-sustaining insurance program during normal economic times. The kinds of dismissals we're talking about here are not that dependent on the state of the economy.
Borrowing is not the same as funding from general revenue Malthus. :huh: