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Non-Contractual Employment

This post is part of our Work Symposium. An introduction to the symposium can be found here; all of the posts written for the symposium can be found here.

 

This is a bit of heresy I play with in my mind from time to time. I dare not speak it out loud to my colleagues, most of whom lack the imagination to realize that crazy as the idea might seem, the traditional way of thinking about a contract of employment may well be inferior to not considering it a contract at all. Later, of course, I return to existing precedent because, after all, I have to function in a world governed by hidebound legal minds housed in black robes. But if you’ve ever seen a lawyer lost in thought, perhaps she’s thinking like I do here.

 

I.  The Libertarian Ideal That Isn’t Real And Never Was

whiningtolawyerA frequent objection I encounter to much of what I do with my professional life is what I’ve taken to calling “the libertarian objection.” In essence, the libertarian ideal of freedom of contract means that employers and employees should be free to negotiate the terms of their relationship as they see fit. This manifests in online environments like this with principled and logically coherent public policy arguments against things like anti-discrimination laws and minimum wage laws; it manifests in real life, with respect to a particular case, when either workers or employers come into my office and whine about object to someone else telling them what to do instead of them being able to do what they want (without penalty).

To be sure, the employment relationship has a contract at its historic fundament, from the perspective of modern Anglo-American law. The basic transaction is this: I sell you my time for an agreed-upon rate, and you may then tell me what to do with that time. We are both free to form or terminate the relationship at will and to include whatever terms of the relationship we wish.

But centuries of Anglo-American law have nibbled at the terms of the relationship, there are some very substantial deviations from the blank canvas of a truly free contractual negotiation. I will use the law of my own California, the state whose laws I know best, to portray this; other states may be thought of as having “lighter” or “less” regulation than this, but for the most part, some variation on nearly all of the rules listed below applies in nearly all of these United States:

  • You may not refuse to form this relationship with me based upon my race, my national origin or ancestry, my religious beliefs or lack thereof, my marital status, whether I have children or not, my gender, my age over 40, physical or mental disabilities that do not absolutely bar me from performing the essential functions of the job, or my advocacy or lack thereof of union membership, based upon my sexual preference, expression of political beliefs, or in most cases my prior military service or lack thereof. Thus, you cannot hire whoever you like to do whatever job is in question. Thus your freedom to contract as you like is curtailed by law.
  • Nor may you impose or withhold workplace discipline, withhold or workplace benefits like raises or promotions, based on the foregoing factors.
  • Nor may you retaliate against me if I allege that something like what’s described above has taken place, or if I support someone else who makes that allegation — even if that allegation is later proven to be incorrect.
  • I must prove to you my eligibility to be employed in the form of documentary proof of my citizenship and age. Again, you cannot hire whoever you like; the law curtails your freedom; nor may I seek whatever job I like.
  • But, if I am under the age of eighteen, I must get a special permit to enter in to a contract to work for you, and you can only employ me for a limited number of hours per day and on specific days of the week to allow for my attendance at school. If the nature of the work is such that I am needed on call at a particular place, you must provide me with an on-site educator equivalent to what I would have got at school.
  • I can quit whenever I want, no matter what conditions we agree on beforehand about me quitting. I do not have to explain to you why I have quit. You cannot use the courts to make me do the work. You can, in somewhat rare cases where I am providing a unique service, require me to pay a pre-determined sum of money to compensate you for the loss of that service if I quit on terms contrary to our agreement.
  • Mostly, you can fire me whenever you want,  no matter what conditions we agree on beforehand about you firing me. Nor do you owe me an explanation for why you fired me, no matter how much I want one. You might owe the government an explanation for why you fired me if I sue you for violating the terms of our relationship, or if you want to interfere with my request to use unemployment, disability, or workers’ compensation insurance benefits.
  • But, if you have a lot of employees, then you can’t fire me for no reason or for your own reasons without substantial notice, often sixty days’ worth or more, unless the reason you’re firing me is because I broke the rules or broke the law. And if there is a union, then you have to follow the union’s rules about firing me.
  • I must provide you with my social security number so that you can withhold a fraction of the money you promised to pay me and pay it to the government instead.  Here the law curtails my freedom, because I might not want to pay those taxes. Even if you and I agree to take steps to circumvent this, we both pay substantial penalties for trying to dodge social security withholding.
  • The rate that we agree upon that you will compensate me for my time may not fall below a certain minimum.  Both of our freedoms are curtailed here, although in most cases I might like that fact assuming I get the job at all.
  • Under most circumstances, the time that I sell you may not exceed a certain maximum per day and per week, and if it does, the rate that you pay for my time increases according to a set mathematical formula.
  • But, if the actual work I do falls within a particular set of substantive descriptions, you can pay me pretty much whatever we agree on, and then I have to work as much as is needed, even if that intrudes on my personal life. On the other hand, if that is the case, you have to pay the same amount of money whether I actually do the work or not.
  • You cannot pay me on any terms we might agree upon, but rather must do so at least once every two weeks. Furthermore, you generally must pay me with a check or through its electronic equivalent, and typically cannot pay me with cash or non-monetary consideration, even if we agree otherwise. So we can’t barter to trade my labor for a specific good, you own, or barter my labor against your labor.
  • You must provide me with not just the money that we agree upon but also certain mandatory benefits, primarily accounting and prepayment of taxes on my behalf.
  • If you promise me something of value other than just money (for instance, health insurance), you must also provide accounting and supervisory benefits concomitant with those non-monetary benefits as well.
  • You must provide me with workers’ compensation insurance, unemployment insurance, and disability insurance, whether I want them or not.  You must purchase this unemployment insurance and disability insurance from the government and your failure to do so would be a crime. And in some cases, you must also provide me with health insurance, although you can make me pay a portion of that insurance out of my own pocket.
  • You must allow me time off work, without penalty, to do things like serve on juries, serve in the military, attend to sick family members, and vote. (Oh, and you can’t tell me how to vote.)
  • If you require it of me, I must keep your information confidential even after I quit working for you, including but not limited to imposing a duty on me to ‘forget’ what I learned while in your employ even for my own subsequent benefit. Conversely, at least in California, you generally cannot condition employment upon my agreement to not work for a competitor after we part ways.
  • You must allow me to not work during the times that you would prefer I work if I am sick, injured, disabled — or at least, if I can find a doctor willing to say that I am.
  • Further, under most circumstances you must allow me to take time out in the middle of the day to rest and eat, with greater amounts of time involved on a sliding scale as you demand more and more of my time.  After a certain point, I cannot waive and agree with you that I will not take this mandatory rest time during the day.
  • You cannot require me to work in just any conditions you please but instead must provide me with a working environment that meets certain very specific and technical standards set by the government, even if I agree to work in unreasonable conditions (perhaps having agreed to them for extra pay).

And on top of all of that, nearly every kind of activity that an employer might hire an employee to do is subject itself to substantial governmental regulation about how the job is done. For instance, I am a lawyer; if you hire me to practice law as in-house counsel for your company, I must comply with the state’s Bar Act with respect to maintaining my law license, complete continuing education, pay special taxes, and so on. If you’re a computer code writer, then you may be required by law to write in certain compatibilities with governmental oversight and reporting laws, or at least to refrain from writing code intended to obstruct governmental oversight of what the code is doing; if you’re tending bar, you may be prohibiting from drinking alcohol while working and if you’re driving a truck there are certain limitations on how long you can be at the wheel and tests you must pass to demonstrate competence.

And the list goes on and on and on. All of which takes away from the libertarian-style freedom of you to tell me how to do my job. What we negotiate gets trumped by the law.

 

II. Lack of Consideration

yougetnothingPerhaps less obvious to a non-lawyer is the fact that because the terms of the employment relationship can change at will, and for no additional exchange of consideration and indeed sometimes for a diminution of consideration, and unilaterally without even the consent and sometimes even over the objection of the other party, the relationship is not strictly contractual, either.

In a typical contract situation, if you and I want to change the terms of our contract such that I get more from you, I need to give you something of value in exchange. But if I am your employer, I can tell you, “Sorry, profits are down, so you can either take a pay cut or a pink slip,” and while that isn’t a particularly joyful choice for you, there isn’t much you can do about that other than choose the pay cut or the pink slip. If you pick the pay cut, then you still have to keep on working for me just as before — only one of the core terms of our contract has changed.

If you’re not a lawyer, you’ll read that paragraph and think, “So?” The lawyer’s response is that if the terms of our relationship can be changed unilaterally without a supporting exchange of consideration, then maybe what we wind up with isn’t strictly a contract, but instead is something else.

I could go on, and in fact digging in to the details of those generalized statements and applying those external rules to specific cases is what I do most of the time at in my own line of work.

 

III. Employment Law On The Ground: A Heavily-Regulated Environment

regulationlibrarySo sure, in theory, employment is a matter of contract rather than of, say, tort. (Occasionally, there are crimes involved. Gratefully rarely.)

But I work with the reality of employment, on the ground, working with the nuts and bolts of failed employment relationships, failing employment relationships, or prospectively thinking about how employment relationships might fail. And from that perspective, employment doesn’t look like a freely-negotiated contractual arrangement to me, at least in the strongly libertarian sense. Rather, this is a richly statutory, strongly-regulated transaction.

There are lots of taxes involved, too.

Which means that employment is not purely an arrangement between just you and me. The government, at both the state and national levels, is intimately involved and indeed in some respects, the government micromanages the details of our relationship. Perhaps we’d have reached similar sorts of arrangements if we were both infinitely sophisticated and had equal bargaining strength in the negotiations, but perhaps not — and that’s the point; the result of the agreement in which you will employ me will not be a reflection of our respective bargaining strengths because the employer almost always has more strength than the employee in most such negotiations.

And in addition to the ongoing and intrusive meddling of the government, private third parties, in the form of insurance carriers providing at least workers’ compensation insurance and health insurance, are also involved.

Amazingly, people just deal with this, for the most part.

Employers complain that they have to spend more money on overhead for this sort of thing than they’d like. It takes time and mental energy and knowledge, sometimes it takes relying on outside experts (or even lawyers like me) to sort through it all. But it’s not impossible to do and it’s quite possible to generate profit in this environment. In California, Jerry Brown makes for a convenient punching bag in this respect, although it’s quite unfair to use him that way.

Employees sometimes think they have more rights than they actually do, but most of the time, I find that they have only a general idea of what their “rights” are and generally they think they have to put up with quite a lot from their employers. Generally, they do put up with quite a lot from their employers that they find unpleasant before seeing someone like me.

Most of the time, they figure it out on their own, and most of the time, it’s roughly within the guidelines the law sets. So there’s lots of regulation out there, sure, but somehow, employers are still making money and workers are still getting jobs.

 

IV: The Weight of Experience

apprenticeshipQuite a lot of this governmental intrusion into the employment relationship is the result of bitter experience playing in to social policy. We can trace almost all of those mandatory terms of the employment relationship back to specific kinds of experiences that other employers and employees have had in the past, and a political dynamic resulting from those experiences.

Some of this experience is quite old; the “good old days” weren’t all that good, and the sacrosanct nature of the employment contract was never very sacrosanct — you can go back to the pre-Enlightenment era laws of Merry Olde England and find Acts of Parliament and royal decrees limiting the term of apprenticeships to seven years and requiring the masters of apprentices to actually teach the craft and provide room and board to their otherwise-uncompensated workers because of conditions we now label as “Dickensian.”

Of course, the object lesson in that neologism is that Dickens was writing about a state of affairs that had persisted for quite some time and generated widespread sentiments of injustice. Dickens wouldn’t have been as popular as he was if he hadn’t touched a cultural nerve: stories like David Copperfield’s and Oliver Twist’s were heartbreakingly common on both sides of the Pond, and political institutions responded with regulatory laws.

And we’ve had all sorts of awful experiences of our own. Share cropping and peonage. The Triangle Shirt factory fire. Strikes busted by Pinkertons. Racist management, racist unions. On-the-job rapes. And lots more, less dramatic, more morally-gray kinds of friction than all these.

So we can talk about a “contract of employment” all we like.  But the relationship is far from a free contract between just you and me.  At least this resembles a contract insofar as there is an offer — “I will work for you for X dollars per hour” — and an acceptance, and an exchange of something that can be legally recognized as being of value between you and I, even if neither of us really gets to take away from the relationship everything that we bargained for. It’s not just what we bargained for, it’s what society in general, acting through the political process, expects of each of us.

The fact that so much of this modification of the employment relationship comes from bad experiences in the past indicates quite a lot of things about human existence. In a purely contractual relationship, the law will only protect the bargained-for, explicit terms of the parties’ agreement; the law will not protect someone from having made a bad deal. But the law does intervene to protect employees from bad deals — it intervenes in granular, atomic detail; it intervenes often; it intervenes so much that most of us have come to accept its intervention as part of the natural, expected, and comfortable universe of our economic reality.

 

V: The Perhaps Not So Radical Notion Of A Special Relationship

specialrelationshipSo let me propose that the idea that a contract is the foundation a contemporary employment relationship is, if still technically correct, a truth that is very substantially obscured by all of the regulatory superstructure that has been placed atop that foundation.

Not every legal relationship is contractual. The relationship of parent to child, for instance, is not treated by the law as a contract. There are obligations and responsibilities between parent and child, to be sure, and the cultural assumptions underlying those legal obligations are very powerful. But it’s not a contractual relationship, it’s something else.

And for particular individuals, they might choose to govern themselves contrary to cultural expectations and, with some effort, can gain legal exemptions or variances from the traditional legal responsibilities and obligations that otherwise might apply. (For instance, a child might gain emancipation, or a parent might adopt a child, or a court hearing a disputed child custody case might allocate parental obligations and responsibilities amongst the disputants.)

We might call this a “familial relationship,” which is more than a little bit tautological. But then again, nearly every other descriptor of this sort of relationship will also wind up being tautological. The point to take away is that it’s a special relationship unto itself. It seems culturally just a bit offensive, and certainly off-putting, to describe the relationship between parent and child as contractual. Yet we seem to have little discomfort (anymore) with the idea that the law can intervene and dictate facets of that relationship, like mandatory schooling, providing the child with nourishment and shelter, prohibiting gross acts of abuse, and regulating the financial contributions for this sort of support when parents split up for whatever reason.

So too is the relationship between spouses properly considered a “contract” of marriage despite the lingering inaccuracy of that phrase. Marriage again creates a regime of default mutual legal obligations and responsibilities, which again are predicated upon particular cultural assumptions, which again are subject to modification by mutual consent of the parties or intervention of the government in particular cases.

Nor are family relationships the only ones in which the law functions as an arbiter or guarantor of the terms of the relationship. Many providers of professional services may only render those services under regulated conditions — as a lawyer, the law tells me that I may not discriminate amongst potential clients based upon my subjective racial or religious preferences, for instance; a doctor always owes a battery of legal duties like competence, candor, loyalty, and confidentiality to her patients even if the subject of those inquiries has nothing to do with the kind of medical advice she has been asked to dispense; in many cases both the doctor and I have caps set upon the fees we may charge for our services. Does this render our relationship with our clients, patients, customers, etc. any less contractual?

A specific agreement between the parties is but one dimension, and not always the governing facet, of the actual terms of their relationship.

Employment is so heavily-regulated that about the only facet of that relationship that needs to be negotiated at all is its mere existence. After that, if the parties haven’t agreed on anything else, the law allows the employer to make ad hoc decisions about what is to be done and when, and the law fills in the gaps on just about everything else, from how much the employee is to be paid to what kind of equipment the employer must provide to the worker. And if the worker doesn’t like it, she can quit, although we also have some understanding that “just quitting” is quite often not a viable real-world choice.

 

VI: Concluding Thoughts

So it seems to me that culturally, we have already tacitly come to accept the firm hand of government intervening in the employment relationship as a matter of course. We do this typically with little conscious thought or acknowledgement. But so much of this departs from our traditional legal notions of what a contractual relationship really is that it often seems to me that we are not discussing a contract anymore at all.

Maybe, then, it’s really more like a parental relationship, or a cousin of a fiduciary relationship like that of an estate’s trustee managing assets for the benefit of a beneficiary. Maybe it’s more of a way employer and employee create a commonwealth of sorts, one where each undertakes to look after the welfare of the other, at least in some specific subject matter areas? Of course, these are analogies meant to demonstrate the larger concept; the reality of it is that employment is it’s own thing, not exactly like any other legal relationship.

What would a legal regime that integrated this cultural reality into the formality of its regulatory environment look like? It seems to me that in the short run, it wouldn’t look all that different than the way things look now. We’d just dispense with the notion of a contract as the summit of the employment relationship, and make whatever deal had been struck as a facet of it.

In the long run, law and culture reciprocate on one another. Should the law abandon the pretense of employment being a regulated contract and move to the idea of this being a regulated relationship, with a contract being only one part of it, I suspect that we’d have a lot less hostility to things like Obamacare and wage regulation.

Over time, we’d probably also have a more paternalistic attitude between employer and employee. We’d move closer to an ideal where employer and employee have moral obligations to take care of one another and be loyal to one another for both short- and long-term durations. I suspect that would be good for productivity in the long run, and if so, that might maybe even good for profitability in the long run, too.

But we’d also have employers and employees being much more selective about forming these relationships, at least for the sorts of jobs that are held by breadwinners. Education and accumulation of experience would become more important, since employers would at least feel and may be impelled to make substantial investments in their workers, and workers in their employers.

In the very long run, notions of personal identity might involve some degree of synthesis between employer and employee. Even as it is, when friendly strangers prompt me to tell them about myself, I usually begin with a description of what I do for a living before I even talk about my family and certainly before I describe my hobbies or interests or cultural preferences or my overall assessment of my own happiness. In a world where my employment was considered not just a legal contract but a special regulated relationship, I suspect that would become even more true than it already is.

Burt Likko
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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179 thoughts on “Non-Contractual Employment

  1. You can even go further back to see regulation. The English Government first enacted employment laws in the period of Black Death to prevent labor from being mobile and demanding higher wages.

    The problem with pay cuts in the 19th century was that the pay cuts did not correspond to a drop of rent in the company town or a drop in prices in the company store. Pullman tried to be enlightened but ended up failing badly in other measures.

    There used to be parental expectations or relationships between the employee and employer. An apprentice could also be considered a future son-in-law/heir if the Master had only daughters. The same was true in early offices. According to Cubed: The Secret History of the Office, modern white collar culture was not created until the 19th century. Most early 19th century offices were small and cozy. You had 2 or 3 partners and a handful of clerks. Clerks could eventually rise to being a partner and/or son-in-law of one of the partners. The initial pay for clerks was low (50 dollars a year) but the raises could be quick. The same thing could theoretically happen today especially at smaller businesses and S-Corps.

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    • The English Government first enacted employment laws in the period of Black Death to prevent labor from being mobile and demanding higher wages.

      Good point. I particularly like the spectacle of a pre-Black Death lord trying to find a way to unload himself of all the “claimants on his beneficence” (i.e. serfs) and his grandson trying to find a way to prevent his subjects from quitting the manor and serving someone else.

      I also think you point to something else. Employment has probably for a very long time had a strange relation in the law and policy. Now and perhaps for the last 120 years or so, it is and has been conceived largely as a contract issue. But before then and, if Burt is right and if I read him right, after then, it might be something else.

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  2. Haven’t read it all yet, but in the early going this strikes me as a contender for the best post in the history of the site. It’s a post that seems to have been waiting in the aether to be plucked down and given pixellated form by someone equal to the task. I can’t think of anyone more so able than to have done it.

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  3. Excellent piece, Burt. You actually touch on something I’ve been thinking and struggling with a bit recently.

    Independent schools are a bit of a unique environment. For the most part, we are and have been union-free since our inception (there are some exceptions but they are rare). The nature of our work makes abruptly firing or quitting very problematic. We are in the business of providing care, meaning we tend to attract a certain type of person to our ranks. And we talk a lot (and tend to work hard at) fostering things like community within our institutions. As such, employment in independent schools is very often seen more akin to a relationship than a contract. But the law and broader culture do not reflect his. Consequently, problems can arise.

    There is growing dissatisfaction among my colleagues (myself included) with our administration. This is due, in part, to the increasing sense that we are seen as cogs in a machine — easily replaceable and of little inherent value. Not only does is this demeaning in general and insulting in particular to professionals armed with masters degrees and performing a task that is nearly impossible to standardize (despite what some reformers might argue), but it is also very much antithetical to how most folks in independent schools — employers and employees alike — tend to see their relationship. Many of us mention that one of the reasons we choose the independent sector over the public sector is because we wanted to avoid this very type of relationship. We wanted to work somewhere where mutual care and concern were seen as vital to the employment relationship/contract. We didn’t want to work somewhere where employees were exploited — denied mutually-agreed upon provisions of their contract because the labor market favors the employer, even if this is done so legally — and independent schools tended to both promise and deliver on this expectation.

    The difficulty in my situation is that one side tends to see our engagement with one another as a relationship such as you describe at the end there and the other tends to see it strictly as a contract. The new administration (just wrapped up year three) has a very, very different mindset. And the problem — at least I think it is a problem — is that the employees are starting to adopt this mindset. Throughout my tenure there, I have been constantly willing to step up and perform duties beyond my job description if I am able to and if it serves the interests of my students, my colleagues, and/or our institution. This is how I came to find myself teaching 8th grade health (something I arguably wasn’t able to do but nonetheless did my damnedest anyway).

    But no more. When I recently floated the idea that I be relieved of certain formal responsibilities because I was being asked to do more elsewhere, I was told/threatened that my pay would be cut. “You have a contract,” I was more or less told. It didn’t seem to matter that I went above-and-beyond my contract when I was asked; my employer had no interest in going above-or-beyond her end of the deal. So, no more. I will do what I am contractually obligated to do and no more. I will bust my hump for my students and those colleagues who I feel indebted to (through a mutual sense of indebtedness) but will not go a step out of my way for my employer because that seems to be the sort of relationship she wants. So be it. I am not happy with this. This is probably the primary driving factor in me seeking employment elsewhere. But when expectations between employer and employee are not aligned, well, whatever relationship they might have is likely to suffer; especially if the nature of those divergent expectations are what type and form of relationship they are in in the first place.

    Perhaps it is a bit arrogant of me to insist that the institution is going to suffer if the current administration stays the course in this regard. Maybe their view of the employer/employee dynamic is the better one. I do think there are some ways in which a more contractual view of the relationship between schools and teachers can better serve our education system; a relationship that considers mutual care important should not seek to meet that need at the expense of the institution’s primary charges, its students (e.g., bad teachers should not retain employment simply because it is the “caring” thing to do). However, this can simply go too far at times. Teaching is something that is done as much with the heart and the soul as it is with the mind or the hands. You can take care of my mind with professional development opportunities and fill my hands with the proper tools to perform the task. But if you do not care for my heart and my soul, it is hard for me to perform what I’ve been tasked to do as best I can.

    Maybe I am overstating how unique the independent school world is in this regard. I’m sure there are other fields/industries that function similarly. Regardless of the nature of the industry or the ideal way of looking at the employer/employee dynamic, both sides should be earnest and respectful in their dealings with the other. Ultimately, this is what is not happening at my current place of employment, which is why it is unlikely to remain such any longer than it must.

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    • Do you work with my wife? I’m joking but you sound like you’re in the same situation as her. The school is arts focused and originally had been one big happy family. New administration came in and now everyone’s watching their backs and keeping their mouths shut in fear of retaliation. The teacher turnover has been so bad that the board of directors requested a private survey – and the teacher in charge of conducting the survey was let go without any warnings.

      The thing is that when she first started we both would have been happy to say that the school was fine without any unions since the relationships were pleasant. Now we would prefer someone there to negotiate the rules for a formal contract.

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      • What’s amazing is that employers seem generally bewildered by employee unhappiness. They create a work environment wear nobody feels appreciated and fears being fired at any moment. They sense a change in mood and conduct a survey. When they don’t like what they hear, they just sack the messenger. The cluelessness is legendary.

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      • We currently have an “Emperor’s New Clothes” situation. I recently got taken to task because I asked questions which not only exposed an ongoing issue, but which by the very nature of asking questions indicate I was less than fully satisfied. “People will think there is a morale problem if you ask questions like that!” “But there is a morale problem!”

        My boss has gone the other way: she simply didn’t put out the end-of-year survey that is customary. She says she didn’t get around to it and that we should just write down any feedback on index cards. Ridiculous.

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      • What’s amazing is that employers seem generally bewildered by employee unhappiness.

        There was a cartoon that was xeroxed and xeroxed over and over again and showed up stapled on every cubicle in the building at that one job I worked.

        A guy sitting behind a desk was yelling “why don’t our temporary employees show any company loyalty?”

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      • My brother used to work at a retail outlet in a mall, and once he received a note from company headquarters addressed to Hanley Scott and informing of how much the company valued him. Oddly, getting his name wrong didn’t enhance his company loyalty.

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      • I recently called our telecom provider to discuss possible discounts. We had graduated out of all “new customer” promotions and were now paying full freight. The woman I was speaking with insisted there were no other promotions we qualified at that time. However, throughout the conversation, she started every other sentence with, “We really value your loyalty.” When I finally pointed out that charging me more because I’ve been a customer longer doesn’t really make me feel valuable, she insisted that they really DID value me and I just wasn’t getting it. I eventually just had to say, “I don’t think you know what that word means.”

        I understand why they offer new customer incentives. I understand that this woman was likely reading from a script and had limited discretion with regards to pricing. She didn’t really deserve the brunt of my frustration. But, seriously, it’s bad company policy to think that just saying something is enough to make it true.

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    • This is why unions are important. Without collective bargaining most people are seen as cogs in the machine rather than as assets by employers. One teacher or office worker or whatever is much like another.

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      • I actually disagree, . My understanding of unions is that they contribute to the “cog” feeling. My counterparts in public schools confirm this feeling: some have been told not to go “above and beyond” because it makes others look bad. Everyone gets the same raises regardless of effort or competency. Teachers are shifted around from school to school.

        I’m not anti-union, mind you. I just don’t know that they necessarily combat that particular aspect of the problem.

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      • I agree with , If anything, I would think that collective bargaining encourages more cog-like thinking. You are an X, you do Y and get paid $Z. We have certain rules on how to treat X and what they are required and not allowed to do. You will do Y, no matter what your individual strengths are because that’s what Xs do.

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      • Not for nothing do union members refer to one another as brother and sister. I sometimes call at this because the relationship between union members and unions is more heavily contractual then the relationship between employer and employee. Breaches of those contracts become infested with heavy emotion, similar to that of breaches of family obligations. Nevertheless, the remedies available for those breaches resemble strongly the remedies available in a preacher contract situation.

        But, any labor lawyer can tell you that there is a complex and weighty body of statutory law governing the purportedly contractual relationship between union and management. There, there is a fair amount of legal micromanaging of the negotiation and administration of collective-bargaining agreements as between unions and management; with unions representing the employees acting collectively.

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      • Even without unions, employers treated employees as cogs. This was especially true in blue collar, unskilled employment. One factory worker or minor was like another. Unions might discoruage innovation in some ways but they provide a lot of necessary protection.

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      • The reason why unions don’t generally encourage going above and beyond is that doing so is rarely rewarded by management in most fields of employment. The only exception are people who work on the base salary and commission level. You wrote of a teacher than went above and beyond and got fired when she made a reasonable request for more. Lots of people in management seem to want to have the lion’s share of the profits and if they refuse to reward or even punish employees for going above and beyond than why should employees do so?

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      • Some companies don’t reward “the extra mile”… but some do. It’s going to vary from place to place, boss to boss. I can personally go either way. I definitely take notice of whether or not initiative is rewarded and display it accordingly. I’m also more likely to stick around a place where it is than where it isn’t. Which is kind of odd, because in the abstract “Just do your job from 9-5” is attractive to me. In practice, it breeds exactly the amount of loyalty as one might expect.

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      • as someone who is in a union, and has also managed union members before, is correct, in that you are now seen as no longer working for the company, but for the union, or at best have divided loyalty. As far as the union is concerned, good only flows from the union, never from the “company.” Managing union members is intensely easy, as all you have to do is follow the contract. Managing a business with unions is very hard, as all you have is the stick, no carrot. In other words you can only punish, as any reward has to come from the union, and if you do reward an individual, you will be grieved, as that deviates from the contract.

        A union management contract is inherently antagonistic, as you have two groups vying for authority over labor and neither one of them can come at a given issue from the prospective of the other group.

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      • It should be pointed out that there is a degree of causality that runs both ways. Unionism is most appropriate where a degree of coggification has already occurred or makes the most sense.

        A lot of the places I’ve worked, I’d look at unionization and wouldn’t even understand how it would work. Job descriptions changed on a daily and hourly basis. They had to. At other jobs, whether I would have supported unionization or not, I could at least see a rationale for it.

        It seems to me that unionization would make less sense at an independent school like Kazzy’s than at a school that’s part of a district, under more centralized control, has statutory requirements, etc.

        Which makes the issue at Kazzy’s school less along the lines of unionization or lack of unionization, and more about management being stupid.

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      • From my father (who was in a union for many years, before moving to management) unions discouraged working ‘above and beyond’ because doing so was potentially costing another union member’s job and/or because management would take advantage of it, depending on your viewpoint.

        Having personally seen the delight in which management will exploit someone’s willingness to work ‘above and beyond’ (ie, assign that work to you as a matter of course and overload you until 40+ hour work weeks, unpaid overtime, and the like are a fact of your job) I can understand their viewpoint.

        While some people may, rarely, be paid extra for doing the work of 1.5 people — most will just keep working unpaid overtime to get it all done, and when they burnout and get replaced the new hire will find that 1.5 people’s work of work is his assignment.

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      • I see no reason why a union contract has to include work rules. The main reason why they were put into place for blue collar (or pink collar jobs when it came to teaching and nursing) was largely because the feeling was that if there weren’t rules, management would try to extract extra work with no extra pay coming from it.

        However, if there’s a white collar or even a service job where people do multiple jobs, there can still be collective bargaining for all the people who aren’t salaried employees, without saying somebody who is employed as a Folding Tech I can’t hang up any clothes. ;)

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      • Some people, like myself, go above and beyond because we care about what we do and want to be the best at it regardless. I’m going to bust my hump for my students because I care about them. If this nets me more money, great. But it probably won’t and I’m okay with that. Maybe that makes me a sucker… who knows.

        But that same employee also did other things to go above-and-beyond, such as hosting special breakfasts with students to celebrate achievements. She did this at her own cost and with her own free time. Admin didn’t even know it was happening for a while. And she asked for no additional salary for it. But when admin did fight out, they ordered her to stop. Not because it conflicted with our mission or our values or anything else related to the quality of instruction and education we offered. Rather, the teacher in the room next door complained that it made her look bad because she didn’t do those things.

        So beyond not rewarding going above-and-beyond, my administration actively discourages it unless it suits their own interests.

        No one should be discouraged from working harder or better if they are doing it of their own volition.

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      • The wider array of employees you’re dealing with, the more divergent interests. At one of my jobs – and this is one of the more could-be-union places I’ve worked – my division putting limitation on hours would hurt the people over in account management. More money for this department means less money for that department. I have difficulty envisioning an internal union when job areas are too dispersed. I have difficulty envisioning an inter-company trade union with such abstract job descriptions.

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      • Will Truman, my evidence is anecdotal but lots of workplaces of any size and all types seemed plagued by bad management these days. My only theory on why this is, is that management basically thinks that they could get away with. I’d argue there cluelessness might be ruse but the bewilderment seems to universal and sincere not to be genuine in most cases. There seems to be a situation where management knows that they can get away with treating their employees horribly for the most part but doesn’t quite comprehend why people don’t like this.

        I disagree with you about unions. There are plenty of relatively non-cognizable fields of employment that have some really great unions. Most of the theatrical unions and many public sector unions fall under this category. Unions allow the employees to argue as one and it gives them more power. That puts them on better footing when dealing with management.

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      • My faculty union’s contract is an interesting case study. The union came about in the ’70s as a direct consequence of a president seen by the faculty as very antagonistic and capricious. Absent that dynamic, there’d probably have been insufficient demand to ever form a union.

        And the contract reflects that dynamic. In order to get the college on board the faculty had to leave them more independent power than they would have liked. It includes a no strike clause, which of course severely hampers the faculty in contract negotiations. And while it has a lock-step sequence of pay raises based on status (Instructor, Assistant Prof, Associate, Full Prof), highest degree, and years of service, it also allows the administration to bring someone in at whatever level they want, so if the Prez really wants someone, they can bring them in with extra years of service, starting them at a much higher pay (which won’t sit well with those who’ve actually worked as long or longer and make less).

        That’s all informative and revealing, but probably not truly surprising. What I find most interesting is how poorly some of my colleagues and friends comprehend the bargaining process. Every time the contract comes up for negotiation, someone is sure to object that the union didn’t get the no-strike clause stricken. They seem to think that just standing firm on that point will make the administration accept it, but don’t grasp what a huge cost that would be from the administration’s perspective.

        That is all to say, if the employer is forced into accepting a union, they’ll try to negotiate the contract to benefit themselves every bit as much as the union will.

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      • employees to argue as one

        But the employees aren’t one. That’s another aspect of the problem. Account Management may be content to work longer hours, and would be frustrated with Processing because things aren’t getting done in time. When I worked in the office of a fabricating facility, my interests differ from people in the shop. The notion of collective bargaining works better in some contexts than others.

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      • I do very much agree with the fact that employers often misplay their hand (see that post I sent you earlier). I don’t view unions as a solution to this from the management’s perspective, though, because unions almost definitionally aren’t interested in the qualitative aspects that management is also often overlooking.

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      • Without collective bargaining most people are seen as cogs in the machine rather than as assets by employers. One teacher or office worker or whatever is much like another.

        Respectfully, this worldview assumes that collective bargaining will change the attitude that management has about its workers. If management views them as cogs in the machine prior to collective bargaining, they may well view them as more expensive and harder to get rid of cogs in the machine that are a pain in the ass to deal with every time a collective bargaining agreement has to be re-negotiated.

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      • As another example, the chemists at my college have a higher opportunity cost of being a college prof than do most of the English, History and Political Science profs (among others). But our contract requires equal pay.

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      • Dave, at the same time most people do not have much power when it comes to individual bargaining. For the most part they need the job more than the job needs them. Only when you get into really high level employment is the reverse true. Collective bargaining creates a more level playing field for most employeees.

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      • Dave, at the same time most people do not have much power when it comes to individual bargaining. For the most part they need the job more than the job needs them.

        This is true, but it does not mean as much as people often make it out to mean. Most employers have many times more power than any individual employee or job applicant. At the same time, however, employers rely on their ability to attract and retain good employees to stay competitive in their industry. The way to attract and maintain good employees is generally to offer people a compensation package that is roughly in line with the opportunity cost of their time and labor.

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      • The way to attract and maintain good employees is generally to offer people a compensation package that is roughly in line with the opportunity cost of their time and labor.

        You sure? I mean, hmm…stagnant wages, soaring profit, CEO pay at ludicrous levels…seems like something’s been off kilter for decades now.

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      • Morat20, exactly. CUNY recently got into the press for giving its new CEO a very nice six-figure salary and a rent-free luxurious apartment while their adjunct professors are being paid peanuts. NYU is another school thats known for its rather extravagant gifts to its top administrators and certain special people like Henry Louis Gates, Jr. whose getting a free apatment from them even though he teachers in Harvard. The difference is that NYU pays its adjuncts well because their adjuncts have much better union representation.

        Dave, very few companies have ever acted like this for employees at the low and medium ends of the hierachy. The general tendency was to get as much out while giving as little as possible.

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    • This is due, in part, to the increasing sense that we are seen as cogs in a machine — easily replaceable and of little inherent value… Many of us mention that one of the reasons we choose the independent sector over the public sector is because we wanted to avoid this very type of relationship.

      There are people who like to be cogs in a machine, but there aren’t many of them. Even those who have jobs where they are interchangeable with a robot fastening a widget, over and over again.

      It’s funny, the “Scientific Management” fad of the 1880s-1930s contributed to the rise of the union in American labor history simply because it was so easy to take that train of thought and regress it to treating people worse than labor animals. Although there were some efficiencies to be gained by a workflow analysis, taking it to 11 is horrible management practice and pretty much anybody who reads more than a couple of pages of management literature knows this.

      And yet, every year, a newly minted crop of MBAs forget all the qualitative stuff they learned in business school, they graduate and move into management positions, and they go batshit crazy with the quantifiable parts of their job and sow the seeds that eventually turn them into bosses just like yours, Kazzy.

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      • I’m wondering why management is so pig-headed about this. My only explanation is that the upside from being short-sighted is so great from their standpoint and the downside so little that they have the luxury of forgetting about the qualitative part of management. The only real remedy is employee solidarity in the form of unions and collective bargaining. Individual employees have little power but collectively employees have a lot of power.

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      • “There are people who like to be cogs in a machine, but there aren’t many of them.”

        I would say though, that the vast majority of people value *predictability* in their daily routine, both in work and in life.

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      • I’m wondering why management is so pig-headed about this.

        Because it takes a lot of skill to be a competent manager, and it takes not only that set of skills but additional ones to be able to evaluate good managers (kind of like assessing teachers). And, quite simply, there are too many management positions to fill. I don’t think it’s so much pig-headedness as it is trying to fill positions, and coming up with metrics to justify hiring decisions that enable all this sort of thing.

        Like, who really wants to hear “we’re not hiring the best and the brightest, we’re hiring people to fill positions because it’s just impossible to find competent management”? Nobody. And indeed, unless you’re a skilled manager talking to another skilled manager, telling this to your boss would probably get you fired, right?

        My only explanation is that the upside from being short-sighted is so great from their standpoint and the downside so little that they have the luxury of forgetting about the qualitative part of management.

        Well, when you need a full assortment of tools in a toolbox, but all you can hire is hammers… you’re going to justify hiring the best hammer you can. And then hiring quality hammers becomes the metric by which you measure success, unless you work really hard at making sure you’re still looking for screwdrivers and awls and whatnot.

        Which leads to more hammers.

        The only real remedy is employee solidarity in the form of unions and collective bargaining.

        I think you jumped too far ahead. There are a number of problems, here:

        * This requires the employee union to have competent management, and we already established that there aren’t enough management folks to go around.

        * This moves the problem of assessing management out of the problem domain entirely. Now it’s not a matter of having effective management, it’s a matter of making the union happy.

        Put another way, I don’t see good managers in heavily unionized sectors, either, do you? How many teachers in the public school unions still have problems with terrible principals or terrible school boards or terrible district managers?

        All of them?

        * The actual problem is getting good management, not making labor happy. Because good management leads to happy labor (see: any well-run company, and there are still several despite the difficulties in hiring good management). Trying to move the problem to “make labor happy” is shifting the goalposts, and creating more perverse incentives.

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      • I think my particular boss relies on the fact that we are the only independent school within about 30 miles (more, depending on which direction you go) and that we teachers have limited options for employment. It’s supply-and-demand. And if that is how she wants to run the school, well, that is her prerogative. But it is drastically changing the culture of the school. And maybe that’s what she wants. Again, her prerogative (at least insofar as she meets the expectations as laid out by the Board). But she shouldn’t be surprised when all the benefits that came from the prior way of doing things are washed away with the drawbacks she is attempting to excise.

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      • As we discussed in my “Cogs & Clockwork” post, what a lot of employers find out is that their leverage applies to those who can’t leave, while the most desirable employees can’t leave because they are the ones that will have other opportunities.

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      • Exactly, . I had forgotten about that post but you’re exactly right. It is amazing how short-sighted some managers can be. Especially in independent schools, where it is generally assumed that they will get at least a four-year leash unless their actions are grossly incompetent or criminal. I know four years isn’t the longest period of time, but it should be sufficient for someone to say, “I can look beyond the next 12 months.”

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      • “It’s funny, the “Scientific Management” fad of the 1880s-1930s contributed to the rise of the union in American labor history simply because it was so easy to take that train of thought and regress it to treating people worse than labor animals. Although there were some efficiencies to be gained by a workflow analysis, taking it to 11 is horrible management practice and pretty much anybody who reads more than a couple of pages of management literature knows this.”

        As opposed to the period before then, where Jeffersonian yeoman craftsman treated their apprentices as if they were part of the family.

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      • This requires the employee union to have competent management, and we already established that there aren’t enough management folks to go around

        My casual observation suggests that there are 5 kinds of union managers.

        1. Those who are cajoled into and grudgingly accept the role because nobody else is stepping forward.p

        2. Those who seek out the role because they’re very angry at management and think someone needs to stick it to them.

        3. Those who seek out the role because they have a quasi-Marxist vision of how the world should/does work.

        4. Those who seek it because it affords them a personal benefit (whether a little bit of power or a lighter work load).

        5. Those who seek it because they have good management skills and enjoy the management task.

        I can’t pin a distribution on the types, but in my experience #5 is regrettably rare.

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      • Couldn’t you change a few words around and say the same things about most people in management? Isn’t the dirty little secret about work in general is that only a very few people in the world are actually great at managing people and most of those people aren’t running a call center or a mid-tier office park?

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      • Yes, sort of. I don’t think 2 or 3 would apply and 1 less often (maybe). 4 probably applies in spades. Aside from those details, though, I think it sounds like we’re both in agreement with Patrick that truly good managers are rare.

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      • Like, who really wants to hear “we’re not hiring the best and the brightest, we’re hiring people to fill positions because it’s just impossible to find competent management”?

        Perhaps this is a case of, “First, you need to have good managers handy”, but whatever happened to actually training good managers?* I think some places are trying, but it’s an inconsistent thing, and I don’t think there is a manual.

        My wife was recently telling me about one of her upper level managers who was on a rotation through her department. The manager was horrible at actually talking to the workforce, and my wife’s team was not shy about commenting on the managers poor interpersonal communication skills. She heard through the grapevine that the manager was counseled to improve, although no one knows if the manager was given any support, or left to figure it out on their own.

        *This is a problem all up & down the chain, in that no one wants to take on the cost of training new hires anymore, for a variety of reasons, not all of them economic.

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  4. Excellent post, Burt. This is by far the most intelligent response to a libertarian perspective that I can remember seeing here. Of course that could be seen as damning with faint praise, given the plethora of “you just want to get rid of government” comments floating around, but in fact I mean it is an outstanding and very demanding challenge to libertarians, not at all easily answered. I imagine the knee-jerk response is, “yes, but employment should be a contract,” but that doesn’t even begin to address your critique.

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  5. Good article Burt.

    Some thoughts:
    I never categorized my employment as a “contract”. I have an agreement, spelled out in the offer letter for x amount of pay, time off, benefits, etc. Those are all subject to unilateral change by my employer. I can’t see how anyone could call that a contract. There ARE real employment contracts but the majority of people don’t fall under them.

    I’m glad you and your fellows have realized your real significance to the organization. Everybody is replaceable. However, there is a difference between knowing this and being treated like this by manglement. (I find knowing my true position/worth/status much more valuable than believing I’m some unique person who the organization can’t live without-yes there are some of those, but few.) Everyone wants to feel appreciated and probably should be. As to your situation you described, that’s bad management. The natural reaction now is for you to say “that’s not in my contract” when you’re asked to go above and beyond. Again, not in the best long term interest of the company, but we can be notoriously short sighted.


    Dear god, when you list out all the legal points impacting employment, I read through them thinking “wow, I forgot about that one”. However, I suspect that most employees are blind to the impacts of these laws. “Amazingly, people just deal with this, for the most part.” Yes, the people who are responsible for complying with the law, monitoring it, and the reporting requirements, but the vast numbers of employees just get hired and work all the while all this goes on “in the background”.

    Your list a nice example of how we are “not free”, contrary to the illusion so many people have.

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    • One of the difficult things about the education “market” is how hard value is to assess. We’re not selling widgets which people can compare to other widgets easily. My school could fire me and replace me with a cheaper and lower quality alternative and it probably wouldn’t have much of an impact on their bottom line. Not immediately, at least. It is unlikely that any parents are going to leave over one teacher (though it is certainly possible). What is more likely to happen is that they make this same swap three or five or seven times — whatever it takes to reach a critical mass whereby the change in quality of what we provide is more evident. The reputation we’ve earned will shift and that will have a very real impact. It will be difficult to say, “Enrollment has dropped because of decisions X, Y, and Z,” again because of the complicated nature of education.

      But much of that is simply inherent to the current system. My particular institution simply has really poor management on a number of levels and for a number of reasons.

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      • Case in point: A former colleague used to really go above-and-beyond. She was initially a classroom teacher but then took on an additional role overseeing our auxiliary programs for which she received a very modest stipend. The latter role was supposed to be largely clerical in nature: gather class offerings from teachers, sent out email blasts to parents, gather permission slips, etc. Nothing to major. Of course, it blew up from there and she was putting in 10+ hours a week to meet a bevy of new expectations for the program. Being a hard worker and someone who takes great pride in what she does, she did what she had to do despite ending up being paid less than minimum wage.

        After a year of this, she went to admin and asked for a raise to compensate her for more fairly and to account for the bevy of other things she did that were not part of her job description (namely, running the middle school student and the faculty talent shows). She was told to take a walk.

        The auxiliary program has suffered greatly in her absence. It got handed off to someone else — someone less well-equipped to run it — with the same pittance of a salary. The talent shows never happened; no one else stepped up to do them.

        We ignore all this when we look at dropping enrollment numbers. “It’s the economy,” we’re told. Um… no… it’s not.

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      • ,
        Actually, I think the ONLY way to value education is the output. By that standard, many schools have very little. Of note is one county in the state where I live that has very good schools. A lot of people move to this county just for the great schools.

        And don’t confuse “replacable” with “just as effective”. I see this all the time in my work as well. It’s short sighted, but that’s how it is.

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      • Would that county still have great schools if say, the population doubled in ten years and 50% of the new population lived under the poverty line? Probably not. I would be a lot of “good” teachers would become “bad” teachers according to the latest metric thought up by a guy with an MBA.

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      • Would that county still have great schools if say, the population doubled in ten years and 50% of the new population lived under the poverty line? Probably not. I would be a lot of “good” teachers would become “bad” teachers according to the latest metric thought up by a guy with an MBA.
        You could take the greatest school in the US, transplant it and it’s staff into the worst school district in the US and you’d find…

        Most of the staff burn out or left, the grades didn’t budge after a mild spike the first year, and the school went bankrupt because it couldn’t afford the teacher’s previous salaries and they were surprisingly unwilling to take a pay cut to teach in a bad school in a poverty stricken area.

        Dad schools are a conflux of things, but it mostly boils down to ‘poverty’. Poverty means it’s impossible to pay for quality instruction (from teachers to supplies) and poverty means the students generally have bigger concerns than school. Poverty means teachers burn-out after banging their heads into the wall of their student’s lives.

        Of course, unlike every other field (except possibly nursing), teacher’s aren’t supposed to be concerned by [ay or other such trivial material goods. It should be a vocation, where pay is practically immaterial next to the joy of a child’s learning. *snort*

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      • Right. I’m sure I’ve said this phrasing before, but the biggest problem in education would still exist if you busted every union, eliminated public schools, and gave every parent a voucher for education – the fact our child poverty rate is one of the highest among developed countries (but hey, we’re beating Romania – USA! USA!).

        I’m not saying everything would be butterflies and rainbows if we knocked our child poverty rate down from 20-odd percent to ten percent, but maybe we can try that before we destroy public schools?

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      • Oops – forgot the link and yes, before somebody jumps in, I’m well aware that “poor” in the US is different than “poor” in Bulgaria. However, in both places, when you’re poor, kids go hungry, light bills don’t get paid, and where those kids live is more dangerous than the median. Oh, and yes, this is from UNICEF, so it’s obviously all a socialist plot. :)

        http://www.washingtonpost.com/blogs/worldviews/wp/2013/04/15/map-how-35-countries-compare-on-child-poverty-the-u-s-is-ranked-34th/

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      • Yeah, , that was pretty much a terrible ruling with no actual basis in law and will very likely get overturned on appeal. If you don’t believe hippies like me or Scott Lemiuex over at Lawyers, Guns, and Money, because we both obviously hate poor kids, then believe Orin Kerr over at (http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/11/i-like-the-result-but-the-opinion-has-problems/) the Volokh Conspiracy.

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      • Jaybird,

        That decision is basically DOA on appeal. Orin Kerr’s (if you want a very non-liberal opinion of it) post on Volokh on it was basically an extended eye-roll. It, legally, was just a truly awful, awful decision. It didn’t even make sense — the core of it was underpants gnomes ridiculous.

        Strict scrutiny like that says, effectively, the law must be applied fairly in both theory and practice. (Poll taxes and literary tests, for instance, were technically applied equally to all but failed the ‘in practice’ part as they gave a disparate impact). The basic decision logic was “Bad schools can’t fire bad teachers easily, that makes them bad schools, therefore disparate impact” with no actual explanation of how good schools, laboring under the same rules, did not have this problem. (Poll taxes and literacy requirements for voting, OTOH, it’s pretty easy to show why whites got past it to vote and blacks, by and large, didn’t).

        It’s not like poor schools even had a higher % of tenured teachers.

        As a matter of fact, poor schools have less — higher burnout rates. Poor schools have serious trouble HIRING teachers (good schools generally have tons of applicants), not firing them. So the judge’s actual decision will make the problem worse, as he’s slashed one of the few benefits that good and bad schools offered equally (as good schools can and do afford higher salaries, better classrooms and surroundings, more prepared and focused students….).

        Really, really, REALLY bad legal reasoning. It doesn’t hang together either in a legal sense or a logical sense — pretty much a solid example of judicial activism, as it’s pretty clearly a judge who had a goal and tortured the law to get there.

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      • Measuring educational output in a fair way is damn near impossible. There are so many variables that go into it. Plus how do you measure things like social-emotional growth, love of learning, and the other things I key in on in my role? It’s possible, but very, very, very difficult and very, very, very time and labor intensive.

        A teacher’s quality can be assessed. It’s not easy, but it’s doable. It is not done via standardized tests.

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      • We actually used to have a rubric-based metric evaluation system under the old regime. We were rated along a number of criteria from 0 to 4 or 1 to 4 (I don’t exactly remember) with a fairly detailed rubric used to determine what rating was assigned. It wasn’t perfect. There was inherently a certain level of subjectivity to it. I suppose some of this could have been boiled out with wholly objective measures employed in some areas, but this could not have been done in all and likely would have yielded minimal gains but at great cost. E.g., under the Professionalism strand, being “always” on time to meetings helped score a 4 while being “usually” on time to meetings helped score a 3. Now, if someone was 2 minutes late to 1 meeting all year, should they get the “always” or the “usual”? Technically, the usual. So “always” is probably a fairer representation of what that part of the evaluation is getting at. Saying they were on time to 99.2% of meetings would be most accurate, but the time and effort it takes to tabulate that for all employees* is prohibitive. But other things, like “Engages with children in a developmentally appropriate manner,” could only be purely objectively measured by recording every interaction and breaking down every word, facial expression, etc.

        So, metrics can be employed though they are still going to have some level of subjectivity to them. I don’t have a problem with that, provided those doing the evaluation are well-trained.

        * I imagine such records might want to be kept for employees who are not meeting expectations to provide evidence in the event discipline is pursued. But it is not necessary for the entirety of the staff.

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      • Anyway, back to the case, if it is, in fact, dead on arrival then I guess it’s just another blip.

        If, however, they find that tenure is more likely to protect a burned out teacher waiting for his or her pension than a young and firey upstart who inspires students to write their own poetry, it seems like maybe there is a problem here.

        But, hey, I went to a good school district. My experience with teachers and whatnot was an awesome one and I left the public school system with a hell of an education.

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      • “Well, the number one thing that strikes me as odd in any given discussion of education is the (unshared?) assumption that one of the points of public education is to provide employment.”

        Employment to whom? The teachers??? I do not share that assumption. Generally speaking, I am troubled any time an argument is made that we absolutely must do X not because of the merit of X but because doing X creates/protects jobs. I don’t like it when Congressmen push for outdated military programs/projects to continue because it creates jobs in their districts and I sure as hell don’t like it if we are doing something that doesn’t further educative goals because it keeps teachers employed.

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      • @jaybird

        It was my understanding that the issue was that bad teachers who couldn’t be fired were being sent to struggling school districts because there was less backlash against them there. The tony suburban school couldn’t get away with teachers on probation but it was easier to hide them in struggling inner city schools where there might be lower expectations or a less-involved parent base or if other factors could be used to explain away their poor teaching.

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      • At a former employer, we had something that was really quite measurable. When I first started, there was the “Board of Shame” which was the scorecard. It was still slightly game-able and thus was gamed. We also had the matter of one of our best people getting low scores because he was given all of the “problem” assignments while another person got the highest scores despite a mediocre accuracy rate.

        At some point, they determined that it would be easier not to measure accuracy at all and just measure output. You can guess what happened then. The idea was that it would help QA because we would no longer have to enter the data. It was, it turns out, terrible for QA because for every minute they saved there it cost them fifteen in catching more and more errors.

        They ultimately did away with it because, well, the managers knew who the good ones were and weren’t. So did QA. It was best to just proceed on that basis.

        Where it gets problematic is when you can’t rely on metrics or managerial discretion. What’s left?

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      • If, however, they find that tenure is more likely to protect a burned out teacher waiting for his or her pension than a young and firey upstart who inspires students to write their own poetry, it seems like maybe there is a problem here.
        Um, no. Tenure would be a “benefit” — a plus about your job, generally given in lieu of higher salary.

        Like my current employer pays me less, but offers a more generous vacation policy than my last. Ergo, I find myself looking at potential new employers under the “Is what they’re offering minus the cost of purchasing X days extra vacation still higher than my current salary”.

        Tenure is generally considered a benefit — for university level ‘classic’ tenure it’s obviously one. For K-12 teachers (in those states that offer it) it’s closer to a sizable perk — you’re generally far easier to fire than a university prof, it’s not guaranteed employment — but it makes it harder for some board member with a grudge or annoyed principle to can you, since it requires some actual cause).

        In any case, if you remove an actual perk or benefit from a job, you’re reducing it’s overall value, yes? Whether you think it’s a good perk or a bad perk from an outsider’s perspective, it’s STILL reducing one of the perceived benefits of the job. Which is, of course, pretty much exactly equivalent to a pay cut of some size or other.

        Which means the judge literally ruled that if every teacher in the state took the equivalent of a pay cut, this would improve bad schools.

        If this seems stupid to you, it’s because the decision was stupid — it claimed there was a disparate impact but never demonstrated it, and so the result is…a fix that had a uniform result that in no way changed the situation on the ground. Every teacher in the state basically took a pay cut, which obviously won’t fix the problem. Which is a pretty good piece of evidence that the judge was completely out of his gourd.

        Meandering back to your original point: Seriously, bad schools have problems retaining teachers. They have problems finding applicants. Because teachers can get the same or better pay and benefits in another school that is, basically, a lot less stressful.

        Bad schools are not plagued with burnout cases making time to retirement. Burned out teachers quit, or transfer to less stressful schools (ie: Better ones) and then make time to retirement, if they’re going to do that. Most just quit, the only burnout cases that stay tend to be close to retirement anyways.

        Sadly, at no point in this case did anyone really investigate whether bad schools had a problem with being unable to fire tenured teachers. It was, literally, just assumed based on an offhand comment from one expert who suggested 1 to 3% of teachers would probably be bad (based on the fact that, well, 1 to 3% of everyone sucks in their given job) and as he stated later, he didn’t even mean ‘firing’ bad he meant literally ‘needed more training’ bad.

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      • It was my understanding that the issue was that bad teachers who couldn’t be fired were being sent to struggling school districts because there was less backlash against them there. The tony suburban school couldn’t get away with teachers on probation but it was easier to hide them in struggling inner city schools where there might be lower expectations or a less-involved parent base or if other factors could be used to explain away their poor teaching.

        Based on? My school district consists of one high school, three or four junior highs, and maybe a dozen or so elementaries. Texas doesn’t have tenure, but school transfers simply don’t happen. Teachers apply for jobs at other schools in the district, but it’s the exact same as any large employer having an internal jobs board.

        Maybe that’s different in California, but even then — that’d only be within districts (obviously one district isn’t going to accept another district’s teachers like there’s some sort of NFL-style trading going on), and even then you’d have to show it at trial not just assume it was true.

        And seriously, it’s not that hard to fire teachers, even with tenure. It varies by state, but generally it’s just requiring due cause. I don’t know California’s specifics off-hand, but the process is roughly equivalent to handling firing a cop. Including the lay-off process (last in, first out).

        You know, you have to basically show they weren’t performing to standards and you gave them fair warning and a chance to fix it, pretty much the exact same documented steps my — non education, non-union — company handles, except I think teachers get an independent panel rather than HR reps.

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      • ,
        Frankly, since education is “for the children”, I don’t see any other metric other than “are the children being educated”. Yes, but the devil is in the details. Of course. But the bottom line is that. Understand I’m not talking about how to evaluate teachers. That may or may not be a factor in children learning. The simple thing is, that by that measurement, there’s a lot of schools not doing what they are supposed to: educating children.

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      • jaybird,

        One, that’s New York and not California. I thought we’d been over the fact that education — including teacher’s, teacher’s unions, tenure, and all of that weren’t federalized even remotely. (Again, Texas here — no tenure. Period. Oh, there are ‘permanent contracts’ but none are offered anymore and no one knows anyone who has one).

        As for rubber rooms, IIRC — not enough adjudicators. You can fire a teacher for just cause, which requires some amount of evidence (depending on the cause. Absenteeism is easy, for instance. Problems less subject to objective metrics, harder). New York has like 100,000 teachers and only had 20-something arbitrators.

        Rubber rooming is lazy administration (IE “Don’t want to fund enough arbitrators, don’t want to bother finding anyone up for arbitration work to do, so we’ll just rubber boom them) whining about having to do their job. “Oh noes, I has to pay for arbitration AND gather evidence? That’s so hard and I haven’t hired enough arbitrators, let’s just get rid of tenure so I don’t have to work so hard”.

        Years long wait for arbitration? Hire more. Teachers not allowed to teach until their case is resolved — if it takes so long to handle their case that it’s worth complaining about, you can certainly find them work to do. Grading papers, for one. Free up other teacher’s time.

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      • I know this isn’t relevant but there isn’t actual evidence that unionized teachers produce poorer outcomes. Plenty of high performing states have teachers unions and plenty of low performing states don’t have unions. The one statistical analysis i found a couple of years ago controlling for the obvious factors like income found almost no difference between states with and without teachers unions. There are certainly bad anecdotes about teachers unions but overall, unless someone can show some data, there is no apparent difference.

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      • The simple thing is, that by that measurement, there’s a lot of schools not doing what they are supposed to: educating children.
        Actually, to be specific — it appears schools in areas of grinding poverty aren’t educating children well. They others do quite well.

        Which leads to the question: Why is geography and student demographics such a key indicator?

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      • it’s of note that the plaintiffs in this case are all from big cities, and IIRc, were all students in mega-districts that consist of hundreds of schools. For example LAUSD is the second biggest school district in the nation after new york, consists of over a thousand schools and serves 700,000 students.
        I can’t speak for LAUSD, but I know with our local school districts, job openings must be offered to internal tranfers first, and only open to outside applicants if there are no qualified teachers seeking the transfer. I believe (though I’m not 100% sure on this point) that layoffs are based on district seniority as well, so that a position held by a senior teacher became redundant, a more junior teacher in a different position might be laid off to make room for that teacher’s transfer. In a place like LAUSD, it can be a lot easier to make a bad teacher someone else’s problem instead of firing them.

        One of the experts in the case testified that, basically, well run districts don’t have problems dealing with bad staff, and that the issue of spending many years and tens of thousands of dollars to fire a teacher was an issue of incompetent administration. Sadly, the judge in the case ignored this, along with most of the evidence presented by either side, and created an opinion that seems completely unmoored by the actual facts of the case.

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      • , bad teachers aren’t being transferred to disadvantaged schools because there’s less backlash. Those school just can’t attract decent employees in general, and are stuck with teachers who can’t get work anywhere else.

        A few of my classmates in my teacher training program work, or did work, at such schools. The schools couldn’t find any credentialed teachers, so they’ve hired long-term subs and student teachers to fill those positions. You’d have to be a pretty terrible teacher indeed to be a worse option that someone whose only qualifications are a bachelor’s degree in a non-education field and the passage of a test that covers 8th grade math and 10th grade English.

        These teachers aren’t retained because firing tenured teachers is too hard. They’re retained because the teachers that would be hired in their place aren’t any better.

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    • “As to your situation you described, that’s bad management. The natural reaction now is for you to say “that’s not in my contract” when you’re asked to go above and beyond. Again, not in the best long term interest of the company, but we can be notoriously short sighted.”

      Why? They’ve been extracting extra labor for no pay. As Kazzy’s learning, the teachers are quite expendable, the child be d*mned (and don’t think that management cares as much for the children as the teachers do).

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  6. Nice piece. Might be worth noting that particularly in the case of a large corporate employer, much of the contractual boilerplate is written down, in the employee’s handbook (or whatever they call it). The employer may not ask the employee to sign the agreement, but it’s all spelled out, often in horrendous detail. When I went to work at Bell Labs back in the 1970s, the handbook was a rather thick three-ring binder, and new employees were advised to read the whole thing.

    On a tangent, about unemployment insurance. UI is a federal/state thing, with states encouraged but not required to operate a conforming program. The stick is the federal unemployment insurance tax/premium: it’s high enough that most states can operate a program with a smaller tax, and if the state operates a conforming program most of the federal tax on employers is never collected. Every state operates a conforming program.

    In the PPACA case, the Supreme Court seemed to say (IANAL, and maybe I’ve gotten the wrong impression) that the feds couldn’t make a potential punishment so extreme that states had no real choice but to conform. UI seems to fall into that category — all states participate, and while in theory the feds would operate a UI program in a state that didn’t participate, the federal Dept of Labor lacks the staff and computer systems to do so. That is, the stick is big enough that they know they won’t have to do actually operate a program.

    Thoughts?

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    • I submit for your consideration that the large employer you discuss, with the thick, detailed, complex policy manual, represents even less of a contractual situation then the mom and pop store that hires on a handshake. That large corporation with the thick policy manual has, with 100% certainty, placed as one of the first sentences of that manual the disclaimer “this is not a contract.” Somewhere else, nearby that sentence, is another sentence: “management reserves the right to change, alter, repeal, modify, or add to any or all of the contents of this manual, at any time, and without notice.” If management exercises that right, and changes the policy on the fly, without telling anyone in advance that it is doing so, what are the chances that management is going to alter the compensation to employees to compensate them for the change in the terms of their employment agreement? Functionally zero. Management is going to do what it wants, when it wants, and it’s going to keep on paying you what it wishes to. The employee, meanwhile, does not have the right to alter the terms conditions policies or functionally any other essential terms of the relationship, certainly not unilaterally and without notice. That’s certainly an important relationship between you and your employer, and mutual agreement that these terms will govern that relationship may well be a facet of it, but that’s not a contract.

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      • Burt,
        I know folks who have worked on contract — and when the employer decided to slash the already-discounted pay rate, they found cheaper people to fulfill the terms of the contract.

        It strikes me that part of what’s broken about most employment contracts is the binary nature of negitations: “Take it or Leave it”

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      • Certainly some yes, also some no. Yes, there were places that said “company reserves the right to change these terms without notice.” OTOH, in some cases those reservations were meaningless — once promised by someone in a position to know, some retirement benefits are fixed. Eg, once they tell me that I’ll have health insurance forever once I meet specific age-plus-years retirement criteria, they’re stuck with that. Unless, of course, they go through the necessary legal mechanisms like bankruptcy, which voids lots of their contractual agreements. As pilots for multiple airlines have learned the hard way.

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      • Are you familiar with Richard Edwards’s “Rights at Work: Employment Relations in the Post-Union Era.” In that book, Edwards argues that case law seems to be evolving in the direction of making employee manuals obligatory on the employer, even presumably if there is a statement that “this is not a contract” and that “the terms may be changed whenever.”

        The book came out about 20 years ago, and Edwards is an economist, not a lawyer, so I don’t know how much I trust his argument. But if he’s right, that might qualify your comment a bit. It might more deeply substantiate your broader argument in the OP, however, inasmuch as the case law might be evolving in a “relationship” direction as opposed to a *merely* “contractual” one.

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  7. The IRS does a lot to prevent crappy terms of employment, due to the threat/annoyance of an audit.
    However, if you don’t /mind/ an audit…

    It is possible to pay someone in chickens.

    It is also possible to pay someone a variable rate based on the tides, but such must be presented as a table and not an equation in the W2 salary slot (the equation implied that it would be possible to pay someone 0 dollars for their work, on a given day).

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    • Because it’s not as simplistic as you think, Barry. We had a good discussion about that post sometime back here. I have lousy google-fu or I’d link to it. But in a nutshell, a lot of us considered forcing to fuck outside the bounds of the implied contract.

      But if you want to boast about the “most hardcore libertarians” saying X, the congratulations, you’re that guy all over again. And as everyone says, don’t be that guy.

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  8. Kazzy, your original comment shows absolutely nothing new in the history of labor, and especially of teaching. You and the other teachers thought that this was a ‘relationship’, meaning something over and beyond just a job for money.

    Management, of course, didn’t think this way, although they encouraged you to think so. If the original management actually did think that way, note that they were replaced with people who thought otherwise.

    As for unions making you cogs, you yourself are already thinking that way. You have a specific job, which you will do. You will only go above and beyond for people in your personal network. You no longer expect otherwise. Management is saying that you are an X, and will be paid Y. What they continue to do is to try to persuade you to do Z, with no additional pay, and where Z can be indefinitely expanded.

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    • Prior management wasn’t really “replaced”. The former head retired and one of the two assistant heads left that same year when she wasn’t considered for the position, taking a head role elsewhere. The other assistant head stayed on for two years before leaving of his own volition for a bevy of reasons (at least one of which was friction with the new head). I worked for one year under the prior administration. It wasn’t perfect. But one thing that headmaster did in his 17-ish years on the job was demonstrate a deep and persistent care for his faculty and staff as people. Many people who worked longer under him than I did have repeated the same refrain: “This used to be a second home, a family. Now it’s a job.”

      Now, maybe the new head is acting under orders of the Board, which is what she is ultimately accountable to. Maybe they wanted the ship tightened up or costs cut above other objectives. Who knows. But if that is the case, it is disingenuous to pay lip service to institutional culture and whathaveyou while ultimately seeking to do something else.

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      • “Prior management wasn’t really “replaced”. The former head retired and one of the two assistant heads left that same year when she wasn’t considered for the position, taking a head role elsewhere. The other assistant head stayed on for two years before leaving of his own volition for a bevy of reasons (at least one of which was friction with the new head).

        In the sense of ‘fired/pushed out and deliberately replaced’, no.
        In the sense the old group is gone, yes.

        ” I worked for one year under the prior administration. It wasn’t perfect. But one thing that headmaster did in his 17-ish years on the job was demonstrate a deep and persistent care for his faculty and staff as people. ”

        Note that that is not necessarily a recommendation, from the view of higher management. That meant that he likely wasn’t getting optimal production out of the labor units.

        “Many people who worked longer under him than I did have repeated the same refrain: “This used to be a second home, a family. Now it’s a job.””

        It always was a job. At times, a job can carry extras, but in the end it’s a job. Sort of the whole point of this whole discussion.

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  9. When I worked for that managed service company sub-contracted out to that major multi-national corporation, I was also asked for some bodily fluids and told that a condition of my service was that I would provide more whenever I was asked to do so.

    Oh, and the bodily fluids would be tested by a biochem testing facility for a handful of markers and if any of those markers showed up, my employment would be declined (and, if established, terminated).

    I assume the fluids were tested by a testing facility, anyway.

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  10. On Section II (Lack of Consideration):

    In my view, the employment relationship is remade anew every single day. I wake up in the morning and have the choice to go to work, or quit. If I go to work, then I accept the rules that were rolled out yesterday. (This is particularly ironic for me, since I’m an in-house counsel and therefore the one rolling out the rules.) The guarantee of employment is simply an agreement to pay a certain amount of money if termination occurs before a certain date; except in rare situations (like union contracts) no court will require an employer to keep an unwanted employee on staff.

    Being employed, in California, is to a certain extent a status change. What’s a status, you may ask? It’s your major life events. Fetus v. Born. Minor v. Majority. Single v. Wed. Free v. Convict. Competent v. Incompetent.

    For each status, the State of California delivers a significant regulatory regime. Fetus? Your mother can kill you. Born? Not so much. Employed? Congratulations, you now have a whole series of statutory rights and responsibilities that didn’t exist before.

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    • I think that this is right. I don’t agree with Mr. Likko’s point that the ability to change terms unilaterally means that the relationship somehow is less than contractual in nature. Rather, it simply is the result of the contract being “at will” on the part of both parties.

      To use a non-employment example, I filled-up my car at the gas station yesterday. I paid a certain amount per gallon for the gas that I bought. That was a “contractual” exchange, based my agreement to pay the advertised price of the gas. However, the gas station can unilaterally change the price later that day, and I can unilaterally decide to buy gas at another station. Nothing in the relationship obligates either party to continue the relationship on the same terms on which it began.

      Still, if the gas station demanded more than the advertised price after pumping the gas, or if I refused to pay the advertised price after the gas was pumped, the wronged party could take the case to court claiming breach of contract.

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    • “In my view, the employment relationship is remade anew every single day. ”

      In other words, the standard libertarian attitude.

      Burt, I’m being a dick here, but I would appreciate it if you’d ask him to not pursue it. The internet is full of this standard line, and IMHO there are no more fruitful discussions to have on it.

      On the other hand, if you’d like this comment thread to devolve to Standard Internet Meme (i.e., wasting your time), that’s your privilege.

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      • You know, bro, if you don’t start none there won’t be none. If you’re so concerned about threads devolving into Standard Internet Meme then maybe opening with that Crooked Timber link is not the way to roll.

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      • In other words, the standard libertarian attitude.

        No, it’s the reality for most of us that are in the business world. Apparently you don’t know much about the business world aside from what your ideology tells you.

        Burt, I’m being a dick here, but I would appreciate it if you’d ask him to not pursue it. The internet is full of this standard line, and IMHO there are no more fruitful discussions to have on it.

        I would appreciate it if you stopped whining every time reality offends your political sensibilities and step away from this conversation.

        You have no idea how sick I am of your immature bullshit. Go cry a fucking river elsewhere for all I care.

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      • umm, no. Because labor is at-will on both sides, the labor contract / employee manual is essentially day-to-day. And therefore the State of California has created an enormous body of legislation that backfills all the details that are far too exhausting to renegotiate daily. At some level, the Labor Code is a little like the UCC, with less room for variation, in that it sets the standard implicit terms of every contract.

        My very small point, such as it was, is that the role of the State is so pervasive in the employment context that it is useful to analogize employment to other status changes recognized by the State.

        Libertarians don’t believe in the role of the State in setting those implicit terms, or so they’ve told me.

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      • Because labor is at-will on both sides

        Only technically. Our economic system, of which our government and its particular way of doing certain things is a part, has created an environment in which my most people’s need to work for their current employer far outweighs their desire to do so, even if they like their job (it’s not uncommon to see something happen in the life of a person who likes his or her job that would make it much better if he or she could leave that job, but can’t, because insurance, the job market, etc.).

        As I’ve said many times, and will try to say in a post this week, one of the greatest moral failures of our society is how many of the people within it are almost completely dependent on their employers for their quality of life — their homes, their health, where their children go to school, what they eat. It’s hard for me to call anyone on the dependent side of that relationship working “at-will.”

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      • Chris: Agreed. When your choices are work or starve, the phrase ‘at will’ is pretty ironic. But it’s also the language that lawyers use. 20+ years after passing the Bar, I am incapable of writing any other way. (French? I decided to learn French this summer.)

        Law firms, especially large ones, are notoriously harsh places to work. And these days sophisticated clients are much better placed to drive down rates. This makes the owners of the business — the equity partners — particularly lovely to work for. Couple that with the debt many young lawyers have and the few high-paying jobs available, and being a young lawyer can be a particularly toxic choice of employment.

        At one firm where I worked, the popular phrase among the legal staff was “The beatings will continue until morale improves.”

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      • Law firms, especially large ones, are notoriously harsh places to work.

        When I worked at one of the Wall Street banks, many of the people I worked with were people that were formerly employed at the big corporate law firms (Sullivan & Cromwell, Fried Frank, etc.) that washed out of their associate program and ended up in the investment banking groups.

        Given the brutal workplace that is the typical investment banking floor, especially for an analyst or associate, I can only imagine how bad it is at a law firm.

        I heard they used to work bankers hours – 9 to 5. 9 am to 5 am.

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      • Well, I do have some actual work to do myself during the day so I can’t monitor the thread constantly. Whether that’s an open-ended regulated relationship, an ongoing contract, or a periodically-renewed contract, we all have professional obligations. Now that I’ve a few moments to bring to bear here:

        As a matter of commenting protocol, saying “I’m being a dick here” kind of confuses and irritates me. The best practice is at least “Don’t be a dick.”

        Substantively, and have articulated a more traditional version of how the law construes employment through a contractual lens. I’m skeptical of the renewed-daily contract theory, at least in my more heretical moments, because both employer and employee have reasonable expectations that there will be further employment in the future.

        And certainly when I handle matters, I bear this model in mind because that is how the law treats it as a formal matter. Many lawyers look on the laundry list of regulations and say that these are statutory modifications to the contract, or gap-fillers the way that the Uniform Commercial Code fills in the gaps for the sales of goods. When I go to court, I bear that model in mind too. I’m aware that this contract-subordinate-to-relationship concept is heretical; the orthodoxy is that the contract is king and everything else is ultimately subordinate to that notion.

        I’m just not convinced that this model accurately reflects how people behave in the real world.

        As an employer, I make projections about my business’ capabilities based on the idea that in the future I’m going to have my employees around to fulfill the contracts I make on behalf of the business. I don’t wake up in the morning and wonder, “Hey, is Elmo the Employee going to show up today?” (Or if I do, I’m probably not a particularly good employer, and I certainly shouldn’t be making any commitments to customers that require Elmo’s involvement.)

        As an employee, I make projections about my personal finances based on the idea that in the future, I’m going to still be drawing a paycheck roughly equal to what I’m making today. I don’t wake up every day and think, “Wow, I wonder if Boris the Boss is going to tell me to go home when I show up to work later?” Or if I do, then I’m probably doing relatively marginal sorts of work, and the employment relationship is pretty weak. In an ongoing, steady employment relationship, I just expect that Boris is going to start assigning me work when I show up, and Boris just expects me to show up and do the work he assigns me.

        Why? Because that’s just what we all do.

        I don’t know of any other contractual situation which combines both the fluidity of the material terms and the rapid periodicity of the “renewed-every-day” model articulated here — particularly because for the most part, terms of employment do not often change as rapidly as this. In other sorts of contractual or sort-of-contractual situations, parties become entitled to reasonably rely on the other party’s behavior as time passes and the behavior in question accumulates in consistency. For instance, in a lease of real property, even if the written lease says “Tenant will pay Landlord $1,000 a month by cashier’s check deliverable to 123 Main Street,” but the Tenant instead direct-deposits the $1,000 a month into an account that Landlord designates, every month for a two year period, the Tenant has a pretty good argument that the course of dealings has made direct deposit an acceptable form of payment and Landlord has a very hard case to make that Tenant has breached the lease by tendering payment in this way again.

        What is so special about the employment contract that course of dealing is not an appropriate basis for reasonable reliance of future terms? “Because it’s at will,” is the default response, but that’s is also the case with other kinds of open-ended business relationships.

        In any event, I’m not suggesting a revolution in our legal regime just yet. Even if I were seated on the appellate bench I would not do so. But I do think that the concept bears out under serious reflection, and a regulated relationship model may well be a very useful way of thinking about employment. Actually, it might not be not so different from the “change of status” model indicates at the end of his prime comment; one’s “status” as, say, alive or dead, on active duty with the military or not, male or female, within or without a legally-protected group, all can affect legal rights, contractual rights, and so on. One’s status as employed as opposed to not employed triggers cultural expectations, business expectations, and legal expectations that run between employer and employee.

        The contract may not be king; perhaps it is merely one of many members of the governing council.

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      • There are few things more awful than lawyers smugly agreeing with each other. ;)

        Saying that the employer can change the terms of employment without notice because employment is at will is a circular argument. Or perhaps a definitional one — an at-will employment relationship is one, by definition, in which an employer can unilaterally change the terms on a going-forward basis. The employee can then take it or leave it.

        The better question, to me, is why we vest so much power in the employer. California is not exactly known for a libertarian legislature. I think (without a shred of evidence, so really I’m just guessing) that everyone — employers and employees alike — has simply bought into the idea. Reducing the power of an employer to have total control over terms, wages, vacation policy and the like is something that the French might do. (Quelle horreur!)

        (With inequality the subject of much discussion, and with the growing evidence that European labor is very competitive with US labor on an hours-worked basis, I wonder if a new labor movement might arise here in California.)

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  11. Kazzy:

    “So beyond not rewarding going above-and-beyond, my administration actively discourages it unless it suits their own interests.”

    I think that the key was that this was something they didn’t see as productive labor; if that teacher had taught two merged classes to cover for a quit/fire in the middle of the year, they’d have been fine with that.

    From your description of the way that they worked, they wouldn’t have paid her any more, and if her test scores had dropped, she’d be in deep doo-doo, but they wouldn’t have minded if she had done double labor on a single check.

    “Rather, the teacher in the room next door complained that it made her look bad because she didn’t do those things.”

    There’s nothing in your description of management there to support that; they seemed rather indifferent to teacher morale.

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    • They cared about the teacher looking bad insofar as parents were beginning to prefer one to the other. Which always ends up happening when you have two teachers teaching the same grade/subject, but you don’t want to arm parents with tangible differences they can point to. It makes life difficult for administrators. So the response was to even the playing field to the lowest common denominator because that was easiest.

      It was easier, ergo preferable, for admin if neither teacher went above-and-beyond. So they cited a teacher for going above-and-beyond. It didn’t serve their interests, so they put a stop to it.

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  12. Patrick: “Put another way, I don’t see good managers in heavily unionized sectors, either, do you? How many teachers in the public school unions still have problems with terrible principals or terrible school boards or terrible district managers?

    All of them?”

    First, do you have mother lovin’ thing to back that up? You’re just asserting things.

    Second, if you have a union and still have problems with bad management, that doesn’t mean that the union is not helping, and it doesn’t even mean that the union is not helping a great deal.

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    • First, do you have mother lovin’ thing to back that up? You’re just asserting things.

      Oh, are we playing “provide a citation” now? Noted.

      On this particular question, are you fucking kidding me? I need to provide some sort of citation that teachers gripe legitimately about principals and school boards? Go read any blog ever written by anybody who teaches.

      Second, if you have a union and still have problems with bad management, that doesn’t mean that the union is not helping, and it doesn’t even mean that the union is not helping a great deal.

      I’ll note that I didn’t say that, precisely.

      The union may be protecting some employees from some consequences of bad management. That certainly helps the employees.

      However, it’s clearly not helping produce better management, which is the problem I was talking about, no?

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  13. I going to throw a bit of a rude thing here, specifically to Kazzy –

    What is your complaint, that we should care about? As far as I can tell, you don’t like unions lest you be treated like a cog. Not that this stops you from (a) being treated like one anyway, and (b) complaining about it.

    Either get a job with another school, change careers, found your own school, or go to a bar and tip the bartender generously for listening.

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      • My point, James (I thought that it was clear) was that Kazzy was rejecting even the idea of unionization, because he’d be ‘cogified’, even as he complains about being cogified.

        I was (quite clearly) pointing out that by Kazzy’s standards, he’s in that very situation of “fish you, just go find another job.”.

        On the ‘Rescued comment’ thread, it’s been suggested that Kazzy go to his bosses’ boss (or to their boss) and complain. I notice that Kazzy is not doing this.

        I’m not criticizing him, because both he and I know what the situation would be. Kazzy would be immediately fired for insubordination or another legally valid cause, no unemployment compensation, and he/she would be seeking a job in a lousy market after being fired for cause.

        There was a tagline used one somebody’s comment somewhere, from the Drew Carey Show:

        ‘Why didn’t you tell me that your problem was that you didn’t like your job? There’s a support group for that – it’s called ‘everybody’, and we meed at the bar at six!’.

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      • On the ‘Rescued comment’ thread, it’s been suggested that Kazzy go to his bosses’ boss (or to their boss) and complain.

        Can you point to where that was suggested?

        I notice that Kazzy is not doing this.

        Actually, from Kazzy’s own comment, he did in fact try to make things better for a year.

        I’m not criticizing him, because both he and I know what the situation would be. Kazzy would be immediately fired for insubordination or another legally valid cause, no unemployment compensation, and he/she would be seeking a job in a lousy market after being fired for cause.

        Well, since he apparently grappled with his boss for a year without getting immediately fired for insubordination, I guess that puts paid to what you know, don’t it?

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    • As an aside, Kazzy has been pursuing one of those options. That doesn’t make it any less a shame that the school he’s been devoting umpteen hours a week for years any less unfortunate.

      Barry’s position here seems to be the further philosophical distancing between person and employer. There’s something to be said for that, though the notion of devoting so much of oneself to an organization for which they have no fondness seems counterproductive. My employment history is one of being loyal to a fault, but one can go too far in the other direction. I think it also lends itself to a degree of apathy that tends to be bad for all involved. Leading people to “grin and bear” it rather than agitate for internal change.

      The employer that I had that I cared most about… it took a fair amount out of me. The frustration with the mistakes that I saw. The internal battles. At the same time, that’s living, man. When I left, I actually wrote the COO a really long letter. For which he thanked me. At least some of the changes I proposed were in the works when the economy tanked and the company got hit by a tsunami.

      But frustrations and all, I look back on that era with some fondness. I never cared as much about a job before that, and never cared as much after.

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      • The employer that I had that I cared most about… it took a fair amount out of me.

        Yeah, I’ve had jobs where I would work 55+ hours and feel bad about going home at the end of my unscheduled shift. I busted my butt for the owners which included light babysitting, taking a deer hit by the owner’s truck to a butcher in the back of my little Pontiac Le Mans, and taking a coffee cup full of white wine to the owner’s wife when I sometimes discovered her crying in the closet.

        Man, I *LOVED* that job.

        I never want to work anywhere like that again.

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      • “Barry’s position here seems to be the further philosophical distancing between person and employer. There’s something to be said for that, though the notion of devoting so much of oneself to an organization for which they have no fondness seems counterproductive. My employment history is one of being loyal to a fault, but one can go too far in the other direction. I think it also lends itself to a degree of apathy that tends to be bad for all involved. Leading people to “grin and bear” it rather than agitate for internal change.”

        If I had options (I’m pursuing them) I’d be gone. That’s my point, and the situation that Kazzy is in. His employer has far better options than he does, and it’s going to be that way for a loooong time. And even if he/she gets another teaching job at an independent (non-commie) school, why should it be different? He/she’s intellectually realized what the dynamics are – the teachers might care about the students, but management does not.

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      • Not all schools are the same. When a school exists on the basis of getting parents to send their kids there, some of them are going to actually care about the kids. Or at least reward the teachers. Because that’s how you keep kids (especially the kids you want) enrolling.

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    • BTW, I don’t mean to be unnecessarily rude, but am asking sincerely.

      Kazzy, you’ve found out that you are indeed a cog, albeit one which might be treated better than one by management, but only if management feels like it. It’s true that in the long run, this school might go out of business[1] or the current management team might be pushed out (by the same Board that brought them in?), but from your complaints ‘the long run’ is rather long.

      You’ve mentioned that this is the only independent school for a distance.
      This leads to a partial ‘lock-in’ effect on employees – by economic rationality, management *should* take advantage of this and extract what economic gain they can.

      [1] If you’re still there in a year or two, and enrollment is still going down, be aware that the management will be strongly tempted to screw the teachers out of their last paychecks, and perhaps not make required payments for benefits, Social Security/unemployment compensation, etc. On the other hand, that’s economically rational, so long as they don’t get hurt by it.

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      • Except that what happens is people do end up leaving anyway. Kazzy will be gone, even if it means relocating. Others might choose to be SAHM’s (or SAHD’s). Others still may leave teaching altogether.

        Those who have options, and drive, will find something to do. People with options and drive are probably the ones you most want to keep. Because, ultimately, teachers are not cogs. Some are better than others. Some will keep the school more attractive to parents than others. Some will spearhead initiatives that will attract students (or better) students, and some won’t.

        That’s the problem with these policies, on a logistical level. When I worked at a place that had a crap poor economy for computer people, the company sought to take advantage of that. Turns out, that was a good way to keep mediocre employees and a bad way to keep stand-out employees.

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  14. Kazzy said:

    “A former colleague used to really go above-and-beyond. She was initially a classroom teacher but then took on an additional role overseeing our auxiliary programs for which she received a very modest stipend…[o]f course, it blew up from there and she was putting in 10+ hours a week to meet a bevy of new expectations for the program. Being a hard worker and someone who takes great pride in what she does, she did what she had to do despite ending up being paid less than minimum wage.

    After a year of this, she went to admin…”

    Key phrase emphasized. If it “blew up” then she should have asked for a raise to cover it right away. She didn’t do anybody any favors by putting in so much free labor for a year. Management obviously didn’t consider it worth so much effort, or else someone would already be doing it (or, at least, they’d be paying for “10+ hours a week” instead of “a very modest stipend”.) It’s likely that if she had gone in and said “you know, doing this right takes a lot more time than I was planning”, then they might have said “oh, then we should stop doing it, because we don’t have the budget for that”. And then the whole mess wouldn’t have happened.

    I’m sure she was a lovely wonderful person who was a hard worker and took great pride, but she was hired to work hard and take great pride in teaching. If she’s spending so much effort on something else, then her performance as a teacher will suffer; and if that effort is off the books, then the management has no way to identify what the problem is. As far as they know, she’s teaching worse because she’s becoming a worse teacher. The “10+ hours a week” is invisible to them because she didn’t tell anyone about it!

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    • It’s likely that if she had gone in and said “you know, doing this right takes a lot more time than I was planning”, then they might have said “oh, then we should stop doing it, because we don’t have the budget for that”. And then the whole mess wouldn’t have happened.

      Well, perhaps.

      But it’s certainly the case that if you’re giving somebody a bunch of benefit for free, they don’t know what the benefit is worth. Not just because they don’t see the true cost, but also because they probably never had it spelled out to them what they were getting.

      By far, the most common pushback I get from people when I tell them what their charge rate is is based entirely upon the fact that they don’t realize what they’re getting for that charge.

      That’s part of my job, to explain what it is that I’m doing, and why it is to their benefit.

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  15. Will Truman

    “Except that what happens is people do end up leaving anyway. Kazzy will be gone, even if it means relocating. Others might choose to be SAHM’s (or SAHD’s). Others still may leave teaching altogether.”

    Slooooooooooooooooooooowly. And in the case of your second and third sentences, it means people having a worse life.

    “Those who have options, and drive, will find something to do. ”

    Over the looooooooooooong run.

    “People with options and drive are probably the ones you most want to keep. ”

    Not necessarily. From everything that Kazzy has described, management does want cogs.

    “Because, ultimately, teachers are not cogs. ”

    They can be. And how does the management at Kazzy’s school view teachers?

    “Some are better than others. Some will keep the school more attractive to parents than others. Some will spearhead initiatives that will attract students (or better) students, and some won’t.”

    Management seems to disagree.

    “That’s the problem with these policies, on a logistical level. When I worked at a place that had a crap poor economy for computer people, the company sought to take advantage of that. Turns out, that was a good way to keep mediocre employees and a bad way to keep stand-out employees.”

    True. And many people suffered.

    Perhaps it’s viewpoint. The long run, Big Picture doesn’t interest me.

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    • The bigger picture doesn’t care if you care. The long run doesn’t tend to exit.

      Like people, employers often make decisions that prove to be counterproductive past the short run. It’s possible that Kazzy’s employer will never have any regrets. My experience is that employers that do this sort of thing frequently find themselves frustrated with the results. I can’t remember how many times aforementioned employer expressed dismay at employees’ unwillingness to Buy In. There actually seems to be a pretty direct relationship, actually, between employers who generate low morale and employers concerned about morale.

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      • There are exceptions, of course. I have the honor of having worked for one of the five worst employers in the nation (according to employee satisfaction surveys). They went to ridiculous lengths to antagonize all but the most loyal employees. In that case, though, it was very much a part of their human resources model. The high turnover was an accepted cost. They treated their employees like cogs, but had actually laid the groundwork so that they could and could do so profitably.

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      • “There actually seems to be a pretty direct relationship, actually, between employers who generate low morale and employers concerned about morale.”

        That’s something I can agree with. To the extent that management actually cares.

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    • “From everything that Kazzy has described, management does want cogs.”

      Or maybe management doesn’t want its employees burning themselves out with overtime work, which is why they don’t “reward or recognize initiative”. They don’t pay you extra for working extra because they don’t *want* you to be doing extra work.

      *Or*, maybe, management doesn’t *know* how much work it takes to do the job properly, because everybody just does all the extra work for free and doesn’t tell them about it until they’ve been doing it for a year. Maybe management would be willing to raise its prices and pay people more (or, more likely, hire someone to do the job full-time and allow the teachers to go back to spending 100% of their time teaching.)

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      • Quoting Kazzy’s original comment: “There is growing dissatisfaction among my colleagues (myself included) with our administration. This is due, in part, to the increasing sense that we are seen as cogs in a machine — easily replaceable and of little inherent value. Not only does is this demeaning in general and insulting in particular to professionals armed with masters degrees and performing a task that is nearly impossible to standardize (despite what some reformers might argue), but it is also very much antithetical to how most folks in independent schools — employers and employees alike — tend to see their relationship. Many of us mention that one of the reasons we choose the independent sector over the public sector is because we wanted to avoid this very type of relationship. We wanted to work somewhere where mutual care and concern were seen as vital to the employment relationship/contract. We didn’t want to work somewhere where employees were exploited — denied mutually-agreed upon provisions of their contract because the labor market favors the employer, even if this is done so legally — and independent schools tended to both promise and deliver on this expectation.

        The difficulty in my situation is that one side tends to see our engagement with one another as a relationship such as you describe at the end there and the other tends to see it strictly as a contract. The new administration (just wrapped up year three) has a very, very different mindset. And the problem — at least I think it is a problem — is that the employees are starting to adopt this mindset. Throughout my tenure there, I have been constantly willing to step up and perform duties beyond my job description if I am able to and if it serves the interests of my students, my colleagues, and/or our institution. This is how I came to find myself teaching 8th grade health (something I arguably wasn’t able to do but nonetheless did my damnedest anyway).

        But no more. When I recently floated the idea that I be relieved of certain formal responsibilities because I was being asked to do more elsewhere, I was told/threatened that my pay would be cut. “You have a contract,” I was more or less told. It didn’t seem to matter that I went above-and-beyond my contract when I was asked; my employer had no interest in going above-or-beyond her end of the deal. So, no more. I will do what I am contractually obligated to do and no more. I will bust my hump for my students and those colleagues who I feel indebted to (through a mutual sense of indebtedness) but will not go a step out of my way for my employer because that seems to be the sort of relationship she wants. So be it. I am not happy with this. This is probably the primary driving factor in me seeking employment elsewhere. But when expectations between employer and employee are not aligned, well, whatever relationship they might have is likely to suffer; especially if the nature of those divergent expectations are what type and form of relationship they are in in the first place.”

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      • Kazzy’s description is in no way inconsistent with my interpretation. He’s just taking the attitude of “I do extra work when I feel it’s necessary to do a good job, but my employer isn’t willing to recognize that or reward it, and that is wrong”. I am suggesting that it’s not so one-sided as that.

        If I went to the garage to get my car’s oil changed, and they brought it back to me and said “your tires and brake pads were kind of worn so we replaced all of them too”, I’d say “hey that’s nice”. If they said “and we want extra money for doing all that extra work for you”, and I said “no way, I didn’t ask for it”, then I don’t see how I would be the bad guy there.

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  16. Burt,

    Are you suggesting “employment as a relationship and not as a contract” is a good thing, or a bad thing? In other words, are you trying to describe things “as they are” or “as they are and should be even more”?

    I ask because I’m not sure it’s a good thing. My reservation about employment as a relationship is that it seems to me most “relationships” tend to have fewer opportunities for exit than “contracts.” Or rather, as “relationships” tend more and more to resemble “contracts,” the legal opportunities for exit tend to increase. At least that is my hypothesis.

    You mention in passing that marriage is more and more referred to as a “contract” instead of something else (e.g., a “compact” or a “covenant” or whatever the law calls it). But inasmuch as the opportunities for exit have increased–coverture ending or receding, no-fault divorce–people tend to see it more as a contract. I find that view of marriage much more liberating than an older view.

    Perhaps the correlation I posit between “relationship,” “contract,” and “exit” is only incidental to the few examples I can think of. And perhaps “exit” actually exists independently of “relationship” or “contract.” But I’m concerned about an employee’s right/prerogative to exit. If what you describe in this OP is true, is that a trend that’s bad for employees?

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    • It seems to me most “relationships” tend to have fewer opportunities for exit than “contracts.”

      Well, according to the most caricatured arguments on the Right, having no freedom of exit on your employment relationship would be entirely one-sided in the employee’s favor, because they could do nothing and never get fired. :)

      From the pushback I’m getting on my post, where I talk about taking a course of action that *might* get you fired in order to make the workplace better, the argument from generally the leftie sort of commentator seems to be “nobody will do that, because they might get fired!”

      But inasmuch as the opportunities for exit have increased–coverture ending or receding, no-fault divorce–people tend to see it more as a contract. I find that view of marriage much more liberating than an older view.

      That may or may not be a good thing. I mean, coverture ending is probably a good thing. Having no out for a woman in an abusive relationship is clearly a bad thing. But just because something is more liberating doesn’t mean that it’s better… necessarily. One could argue that we’ve perhaps gone too far the other way.

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      • the argument from generally the leftie sort of commentator seems to be “nobody will do that, because they might get fired!”

        Yes, because most people enjoy having an income. Frankly, you’d have to be either REALLY confidant of your ability to quickly land a comparable job, independently wealthy, or have other means of support not to have that be a huge factor in your calculus.

        In fact, the only group I can think of that routinely will do that are independent contractors, whose entire business model is rapid turnover of jobs — in short, their professional live, savings, and living patterns are built on quickly locating work and periods without it.

        I’m not sure how that’s a “leftie” pushback, though. It seems, you know, common sense. Maybe only leftists worry about income?

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      • That may or may not be a good thing. I mean, coverture ending is probably a good thing. Having no out for a woman in an abusive relationship is clearly a bad thing. But just because something is more liberating doesn’t mean that it’s better… necessarily. One could argue that we’ve perhaps gone too far the other way.

        I should be clearer about my commitments and what exactly my reservations are. First and foremost, I’d hate to see the law evolve to where an employee can’t quit whenever he/she wants to. I don’t care as much about employers, although you’re right that for them, not being able to fire anyone means they can’t exit from the situation either. And again, from a sympathetic to what I perceive to be the interests of employees side, I acknowledge that if employers can more easily get rid of employees, they (the employers) will be more willing to hire someone in the first place.

        Second, I believe that the prerogative exit is presumptively a good thing. In other words, I presume it to be good unless there’s a countervailing claim. A parent “exiting” the family and abrogating his/her responsibilities to children is bad and ought to be compensated for, say, by compulsory child care payments. A spouse leaving another spouse because of an abusive relationship or even irreconcileable differences? I’d say it’s presumptively a good thing that a spouse can do that, although the individual circumstance might differ. An employee being able to quit whenever he/she wants to is in my opinion good, but I wouldn’t allow a brain surgeon to quit in the middle of delicate surgery, leaving someone at danger.

        But back to your main point…..maybe the correlation I see between relationships vs. contracts and fewer vs. more opportunities for exit is 1) nonexistent or present only in a select number of examples; 2) not causal; or 3) both.

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      • Yes, because most people enjoy having an income. Frankly, you’d have to be either REALLY confidant of your ability to quickly land a comparable job, independently wealthy, or have other means of support not to have that be a huge factor in your calculus.

        Again, Morat, just like on that thread, you’re assuming stuff I’m not saying.

        In fact, the only group I can think of that routinely will do that are independent contractors, whose entire business model is rapid turnover of jobs — in short, their professional live, savings, and living patterns are built on quickly locating work and periods without it.

        I’ll note here that most independent contractors live and die on their reputations, so working with a bad client is tricky and exiting from that relationship can actually be much more difficult, and have longer-lasting negative consequences, possibly than a normal 9-5 type corporate dude.

        I’m not sure how that’s a “leftie” pushback, though. It seems, you know, common sense. Maybe only leftists worry about income?

        Aside from the snark that it seemed like there was a correlation between “commentors’ alignment with the Left side of the spectrum” and “really reading something other than what I wrote”…

        generally the left seems to assume axiomatically that there is a massive imbalance between an employer and an employee, and thus it follows that a more equitable relationship model than contractual model would be appealing; fewer opportunities to exit are typically sought after by the left, as most opportunities to exit are currently held by the employer.

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      • generally the left seems to assume axiomatically that there is a massive imbalance between an employer and an employee, and thus it follows that a more equitable relationship model than contractual model would be appealing;

        If I still qualify as a leftie (besides being lefthanded), my assumption about the “massive imbalance between employer and employee” is probably one of the chief markers, because it’s an assumption I still cling to. I am, however, willing to negotiate and posit that the imbalance is not as “massive” as some (presumably Morat, but also others here) believe. I also believe that the contractual model–buttressed by extra-employment welfare guaranties–has possibilities for being the best society and polity can do. That latter belief probably makes me more a neo-liberal than anything.

        (I’m not writing to criticize, just observing how what you said could apply to me. For the record, I think the assumption you cite is indeed a key, though perhaps not sufficient, marker of who is “left” and who is not.)

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    • Well, first of all. , I don’t see the historical trend as being an evolution of marriage towards a more contractual cultural understanding. It is my impression that the trend history is that once upon a time, marriage was seen as a very contractual, very economic, very power-focused sort of transaction, and is becoming less so. You no longer need to marry the boss’s daughter in order to secure your place in a business. Marriages to secure class prestige and economic status for mutual family advantage are becoming more stratified into the higher levels of Western society.

      Your last question, whether a move towards a relationship based rather than contract based lens through which our culture views employment would be a good or bad thing for employees is a sort of difficult question to answer. What does it mean for something to be good for an employee? Would they move from a 40 hour workweek to a 20 hour workweek be good for employees? Presumably, employees would only earn half as much money in that world. I’m not so sure that that would be a good thing.

      Right now, we have a constellation of notions about what it means for an employer and employee to treat one another fairly. To a very large degree, the constellation is shaped by many of us buying into the notion that employment is principally a contract. We create laws in response to employers, and sometimes employees, deviating from the cultural norms outlined by that constellation we have drawn in our minds.

      We don’t have to draw the lines between the stars that way. The same stars would still be there, but a different culture would see different patterns in them. (To pursue the analogy, the stars in the constellation might be things like monetary compensation, provision of healthcare insurance, vacations, expectations about productivity, expectations about loyalty, notions about when one is working or at leisure, etc.) If we demote the importance of the contract in our understanding of this relationship, we are sure to draw a different constellation, and therefore our idea of what is good and bad will also shift.

      For instance, consider the cultural expectation of a 40 hour workweek. In a principally contract driven view of employment, we believe that the employee owes the employer 40 hours of work per week, and in exchange the employer owes the employee 40 hours of pay. In other kinds of relationships, we don’t seek to quantify the time of one’s contribution. The quality of effort matters in some relationships. The quality of the end product matters in some relationships.

      Children are expected to help clean up around most middle-class homes, although the expectation of the child’s qualitative and quantitative contribution to housework is not necessarily the same as that of an adult, or even a teenager. The child who does nothing is thought of as disobedient, lazy, or otherwise not contributing to the household. The child who contribute much is thought of as helpful, industrious, and praiseworthy. But, in times when cleanup is not necessary, the children are frequently left at their leisure. Children enjoying leisure time when work is not necessary are not typically thought of as lazy.

      Employment won’t ever be quite like that, but hopefully that gives you some idea that maybe rewards and expectations don’t have to be evaluated along the heavily quantified calculus typically used today. Perhaps, what matters in an employment relationship is the quality and quantity of the workers output. Particularly in cases where a workers output is difficult to isolate from that of other workers, even other metrics might be used. Effort, maybe, or peer evaluation. It’s difficult to think of a system that can’t be gamed, but that’s because we are so used to thinking of systems that are created essentially as games.

      I certainly do not propose that we enter a regime and which exit from a relationship is a very difficult thing. But then, other kinds of relationships have exits available as well. A marriage may end in the divorce, and the historical trend has been to make divorces easier and easier to get, meaning that the exit is easier to reach. Most states have no-fault divorce now. That was not always the case. Parental rights maybe terminated, typically by court order only, but that happens from time to time. Fiduciary relationships have a contractual to mention such as that between attorney and client, but there are noncontractual aspects to that relationship as well. No one forces and attorney and the client to stay together forever, although there are dimensions of that relationship that may persist after it has formally ended. Still, if I decide I don’t want to represent a particular client anymore, in most cases I simply have to tell the client that and offer her the file. Sometimes, I might need to get a judge to agree to let me quit, but that kind of permission is typically granted freely.

      The legend of Japanese workplace culture is one where the expectation is of employment for life. I have always doubted that this legend is congruent with reality. I don’t know for sure. But what I do know is that there is a higher degree of commitment to workers by employers who buy in to management styles that larger Japanese industries seem to have adopted. E.g., to my knowledge, Toyota has never laid off employees, nor forced pay cuts on them. In the company’s entire history. During the recent economic crisis, Toyota employees in the United States were asked to produce fewer cars, because demand decreased. Toyota used this time to retrain its employees, and to solicit ideas from them about how to improve productivity for the future. There has to be some sort of a notion that the company owes more to its employees then just a paycheck. In return, the company seems to expect more of its employees than that they show up and turn wrenches for eight hours a day. And the employees, on the whole, seem to be happy to meet that expectation.

      Is that good or bad? On balance, and from my current cultural paradigm, it seems good to me.

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      • Burt,

        Thanks for the very thoughtful response. Most of it I’ll just have to chew over, and I think you’re convincing me about the evolution of marriage. Perhaps what I see there as an increasingly “contractual” relationship is just an increasing (over the last 150 years) recognition that the men aren’t the only ones involved in making the choices, and that women (as well as men) have greater likelihood of exit. (And inasmuch as exit can be initiated without the consent of the other, it’s non-contractual (I imagine) because the change is unilateral.)

        The rest of your stuff, again, I’ll have to think on. I do think it’s a good thing for firms to owe their employees more than simply a paycheck. My main resistance is that I see most workplaces as places of contention and some form of coercion. Maybe that’s the latent/former Marxist in me. I don’t know if “contract” or some other “constellation” (which is an excellent metaphor, if you ask me) works better to recognize the power imbalances that I believe inherent in most work situations. But again, it’s interesting to think on.

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      • Indeed, , part of what makes my musings smack of heresy is rejecting the assumption (well-baked into the law and, to a large degree baked into our culture) that the relationship between labor and management is necessarily and always adversarial and generally is a zero-sum game. And while it often is that way, I don’t think that it needs to be the case.

        I’m just an idealistic free spirit that way, I suppose.

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      • I guess what I just said is contradictory: I claim (or at least agree with you) that the employe-employee relationship doesn’t need to be antagonistic, and yet say some degree of antagonism is inherent in the relationship, even when there are other elements that aren’t antagonistic. So, I guess the relationship really does need to be antagonistic, at least in my view. Still, I don’t think that antagonism sums up the relationship in its entirety.

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  17. Patrick,

    Have you read Hirschman’s Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States? It’s relevant to what you’re saying, and I think you’d grok it pretty readily.

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  18. Jim Heffman June 17, 2014 at 7:08 pm
    “Kazzy’s description is in no way inconsistent with my interpretation. He’s just taking the attitude of “I do extra work when I feel it’s necessary to do a good job, but my employer isn’t willing to recognize that or reward it, and that is wrong”. I am suggesting that it’s not so one-sided as that.
    If I went to the garage to get my car’s oil changed, and they brought it back to me and said “your tires and brake pads were kind of worn so we replaced all of them too”, I’d say “hey that’s nice”. If they said “and we want extra money for doing all that extra work for you”, and I said “no way, I didn’t ask for it”, then I don’t see how I would be the bad guy there.”

    To me, that’s a poor analogy, and is reading a lot into Kazzy’s statements. For example, he ended up teaching an extra class, not making cute decorations during the evenings.

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  19. Dave June 17, 2014 at 1:17 pm
    “@James Hanley
    He’ll always be “that guy”.”

    I’m the guy who’s always amazed at just how right-wing the people at this place are.

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      • The two posts which most impressed me were:

        1) The post on the slavery-supporting ‘minister’ (I and one other commenter were the only ones who found something odd in this).

        2) The Hobby Lobby post, where pretty much everbody (including Burt!) were fine with the owners of a for-profit corporation demanding exemptions from the laws to suit their religious beliefs. They wanted all of the protections of a corporate entity, but wanted to be able to project their personal beliefs into it – but only when they wanted to.

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      • I don’t remember being fine with that. I remember arguing a) a corporation is inherently incapable of having a religious belief, and b) the individuals who own and operate a corporation are not the same thing as the corporation, so their religious beliefs are irrelevant because as individuals they aren’t being asked to do anything.

        So I would have denied all of the plaintiffs the relief from the Contraceptive Mandate that they requested.

        In our mock court, my argument a) prevailed by a vote of 4-1, but my argument b) lost by a vote of 3-2.

        Now, I guess in a technical sense I’m okay with the plaintiffs asking for relief, because that’s better than them simply ignoring the law and doing whatever the hell they wanted; that’s why we resolve disputes like that with courts and lawyers instead of with guns. But I would not have granted them the relief they requested.

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  20. Patrick, I can’t copy your comment because I’m on an iPad, and something’s wierd, but please meditate on the difference between ‘boss’ and ‘bosses’ boss’.

    If you’re going to slam me, at least get your facts right.

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  21. Michael: “Unless, of course, they go through the necessary legal mechanisms like bankruptcy, which voids lots of their contractual agreements. As pilots for multiple airlines have learned the hard way.”

    One thing which impressed me a lot over the past few years was the sheer power of corporate bankruptcy. It should not have, because I’ve seen it all my life, but it was a sharp reminder that in any deal with a corporation, you shake hands, and can be left holding just the empty glove.

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