The European Model in Action

As I mentioned, I’m currently reading Thomas Geoghegan’s Were You Born on the Wrong Continent? Geoghegan’s day job is as a labor lawyer, so naturally there’s a good deal of discussion of German employment law practices and how they differ from America’s. At one point, for example, Geoghegan tries to explain the American system of employment at will to a group of German students:

I’d thought that, in the first class, I’d explain how, in the U.S., people could be fired for any reason at any time, or for no reason at all. “Here’s an example. I work for you for twenty-nine years, one year from retiring. One day I wear a yellow tie to work. You say, ‘I don’t like your tie. You’re fired.’ In the U.S., you can do that.”

The students are, understandably, incredulous, to the point that G is forced to backtrack a bit:

“Sure, we fire people for no reason, or for the color of their ties – yes, we do. But we don’t do it every day.”

It’s true that people don’t get fired every day for wearing a yellow tie. In fact, I’ve never heard of someone getting fired for wearing a yellow tie. The closest thing I can think of to the yellow tie story was a story from the 1990s in which a guy at a supermarket was fired for wearing a particular team jersey the day of the Superbowl (the owner was apparently a fan of the other team). That caused a decent sized stink; big enough that if something like the yellow tie incident were to occur, big as this country is, I think I would hear about it.

Legally, Geoghegan is right. If an employer wants to fire someone for wearing a yellow tie, he has the power to do so legally. But employers generally don’t do this, not simply because they are nice guys, but because while doing so isn’t illegal, it isn’t practical either. If a boss fired an employee for such an obviously arbitrary reason, he would find a few months down the line that all his employees were quitting on him. No one wants to work for someone who fires people because he doesn’t like their tie.

So Geoghegan’s example is purely hypothetical. On the other hand, Geoghegan does offer some real life examples of how German labor law works in practice that aren’t hypothetical. For example, earlier in the book Geoghegan meets with a German labor lawyer and goes with him to court to watch him in one of his cases:

He told me about his client, a bank teller, a forty-something woman who, a year or so ago, began to have aural hallucinations. She “heard” voices, and she began yelling back, even as she was dealing with customers. “So,” Eckhardt said, “the bank has put her in the back room, where she can’t shout at the customers.” She could just go on yelling by herself.

As a result, she had sued the bank for the transfer to the back room.

If yelling at the voices in your head in front of bank customers is not enough to harm your career prospects, you might wonder: what is?

The answer to that comes when Geoghegan is talking with a union representative about the power unions have over employment decisions:

“We must be consulted about everything.” He said this included the appointment of the supervisors. “I remember at our company, they wanted to promote a rightist. But we said no.”
“A what – what’s a rightist?”
“Political,” he said. “He was not politically correct.”
“And it was just because of his politics?”
He flicked an ash. “We could do it. Why not?”

I know that Geoghegan means his book to be pro-Europe, but quite frankly anecdotes like the above don’t really fill me with envy. I’d rather face the hypothetical prospect of being fired for wearing a yellow tie over the real prospect of not being promoted because I wasn’t politically correct.

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9 Responses to The European Model in Action

  1. RL says:

    This is a great series of posts. Keep ’em coming.

  2. Tito Edwards says:

    BA,

    Nice article.

    It’s fascinating at what is happening now in Europe with many countries now adapting austerity programs to roll back many great benefits such as retirement at 45 (Greece) and the four day work week (France).

    So much so that today there are massive protests all across Europe protesting these cutbacks.

    As to “right to work”, I haven’t read anywhere that they will be modifying this law anytime soon (Der Spiegel).

  3. c matt says:

    Even his far-fetched example is not quite accurate. What would really happen in the US is the employer would get sued for firing a guy one year from retirement either under the ADA or as interference with collecting retirment benefits. 99 out of 100 juries would find the “yellow tie” a mere pretext (whether it was or not). In a sense, he may be theoretically legally correct, but not in reality legally correct (at least, not in any US jurisdiction of which I know, and in some of which I do know, he might be up for some stiff punitive damages).

  4. M.Z. says:

    If a boss fired an employee for such an obviously arbitrary reason, he would find a few months down the line that all his employees were quitting on him.

    You don’t seem to have much practical experience in this regard. If you make under $12/hr, this is so common so as not to be newsworthy. After all, one’s recourse is nil.

    On a larger scale, if we followed your tautology, we’d find no sexual harassment (or whatever dysfunction you choose to measure) in the workplace. Quite simply if employers treated their female employees as play things, the employer would find they have no female employees and all the male employees would leave in disgust over the boorish behavior. Yet, we indeed find dysfunction in the workplace.

  5. Blackadder says:

    Every job I had until my mid-20s paid less than $12 an hour, and I never heard of or witnessed this sort of thing.

    Contrast this with sexual harassment. We know that sexual harassment occurs and that it’s not a once in a life time occurrence because there are many reported accounts of it happening. The same isn’t true for people being fired for wearing a yellow tie. Maybe that’s because people being fired for wearing a yellow tie is so common as to not even be newsworthy. But I kinda doubt it.

  6. Art Deco says:

    You don’t seem to have much practical experience in this regard. If you make under $12/hr, this is so common so as not to be newsworthy. After all, one’s recourse is nil.

    FWIW, not any place where I have ever worked.

  7. M.Z. says:

    Am I to understand you both to be saying that you are unfamiliar with anyone being fired for anything but legal cause* or are you claiming that you have seen no one fired for what you deem arbitrary reason?

    * Legal cause is defined as sufficient to deny an unemployment claim in most jurisdictions.

  8. Art Deco says:

    Strange as it may seem, the department managers I have worked for over the years did not consult with me ‘ere giving someone the heave-ho, and there is not always workplace chat when this happens. I can recall two things that got people fired on the spot: not showing up for work and mishandling confidential information. I would not categorize either reason as arbitrary. I worked in the under-$12-an-hour segment well past my middle 20s.

    Again, one person’s experience, yours or mine, is of very circumscribed significance or no significance; that of our acquaintances not much more so. I think Dale Price has practiced labor law and may have a broader and deeper apprehension of the anatomy of workplace conflict, though I would tend to think the sort of conflicts which end up on the labor lawyer’s desk might be a very unrepresentative segment.

    To add a qualification to Blackadder’s original point: a supervisor who would can someone for wearing a yellow tie to work is (one may wager) infected with character and personality defects which are likely to damage the performance of his workforce and generate attrition from the decay in morale. Whether it catches up with him would be dependent upon a number of unspecified ifs.

    The question at hand would be whether making dismissal under select circumstances a cause of action incorporates a social benefit worth the cost to institutional flexibility from the loss of discretion. An appended question would be whether the affront to justice in certain circumstances would trump any loss of utility.

  9. RL says:

    I spent 25 years in the sub $10/hour manufacturing and wholesale industry and have never witnessed such arbitrary firings. In most firings I have witnessed or had to do myself it was usually a thing that was long in coming and by all rights should have been done sooner. Many times it was quite painful either because it was person with a history and who you really wanted to straighten back up or that the firing left you with a big gap in your ability to get the job done.

    The low wage jobs and workforce are low wage for a reason. It’s not really the Man trying to keep the people down, it’s that the work isn’t of great value and requires relatively little skill or education. Understanding this, managers and supervisors are generally far more tolerant and appreciative of the fact and generally cut a lot of slack where at a manager of a $50k/year employee wouldn’t.

    As mentioned above absenteeism/tardiness is probably the cause of over 90% of firings at that level. Poor workmanship/quality and substance abuse making up the vast majority of the balance (I’m bracketing out layoffs for downsizing purposes here).

    Of course too, at will employment cuts both ways. How many times has an employee just up and quit? Not called in and just showed up on payday or sent his spouse in to collect a check? There is no recourse for the employer either. As I think about it, I would say more than 95% of the cases were simply employees quitting. Out of over 250 employees that came and gone I can count on my fingers how many times we had two weeks notice. Not saying that’s it’s really something owed, I’ve quit both ways, but without out it, it’s quite an arbitrary termination of employment from the employee side.

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