Cross Posted at Legal Schnauzer
Republican presidential candidate Newt Gingrich has caused a stir by saying that Barack Obama is a "food stamp president" and that poor people should want paychecks, not handouts. Gingrich went on to say that he wants to help poor people "learn how to get a job, learn how to get a better job, and learn someday to own the job."
The Gingrich statement presents all sorts of problems, including its ugly, not-so-subtle racial undertones. But perhaps the biggest problem is this: Almost no one in the United States "owns" his job. In fact, most of us essentially work on a day-to-day basis. Given that unpleasant fact of American life, how are people--poor or otherwise--supposed to accomplish something that, by law, cannot be done in this country?
Here is the reality that Newt Gingrich is ignoring: The overwhelming majority of Americans work under an "at will" arrangement. At-will employment is a legal doctrine that means either party in an employment environment can break the relationship without liability, unless a contract expressly states otherwise.
According to the National Conference of State Legislatures (NCSL), Montana is the only state where at-will employment does not prevail.
The basic tenet of at-will employment is this: "You can be fired for a good reason, a bad reason, or no reason at all." Talk to any employment lawyer, and you are likely to hear those words verbatim. The only exception, for the most part, is if an employer violates a federal discrimination law, and those generally are limited to characteristics such as race, gender, age, national origin, religion, or disability.
Having been fired in May 2008 from my job as a university editor, after 19 years on the job and with a spotless work record, I know first-hand how tenuous your hold on any job can be in the US of A.
The bottom line? Most Americans have zero protections in the workplace. If you have a well-crafted employment contract, that should protect you for the term of the contract. If you own the company, you probably own your job. If you fit into any of the discrimination categories above, an employer is likely to think twice before firing you. But I've learned that there is not much reason for many employers, especially large ones, to worry much about discrimination because they are likely to get away with it.
Why? Well, the system is stacked in their favor. Check in your local phone book or do a Web search for "employment lawyers." Look closely for information about the kinds of cases a lawyer takes. Here's a helpful hint: A lawyer who represent plaintiffs, employees who allege to have been wronged in the workplace, usually will call himself a "discrimination lawyer" or something along those lines; a lawyer who represents defendants, employers who have been charged with wrongdoing in the workplace, usually call themselves "labor and employment lawyers."
My unofficial research indicates that for every plaintiffs' lawyer in the employment arena, there are probably 50 defendants' lawyers. And I think that is conservative. The ratio probably is more like 1:100. Plaintiffs' employment lawyers usually are solo practitioners or they work in a small shop of three to five lawyers. Employment defense lawyers tend to work in big firms, with 50 lawyers or more. Who do you think has more pull and resources?
Here is an even bigger kick in the pants for American workers: Discrimination usually is governed by federal laws, so that means employment cases almost always are heard in U.S. courts. Federal judges are appointed at the presidential level, so they tend to come from large, politically connected law firms. And what kind of clients do those firms tend to represent in the employment arena? They represent employers-- the bigger, the better because big companies tend to generate lots of discrimination cases, and that means more cash for the lawyers.
My experience and research indicates that federal judges overwhelmingly favor defendants in employment cases. And since federal judges have lifetime appointments, they are pretty much untouchable and answer to no one. You can be the victim of the most egregious form of discrimination, and a federal judge is likely to ignore the facts and law and rule against you. All you can do then is appeal to a U.S. circuit court--and that is an expensive process, with appellate judges that might be even more predisposed than their trial-court brethren to rule against plaintiffs.
When Newt Gingrich says Americans need to learn how to "own" their jobs, he is full of elephant feces. If you are in a union, you have some protections on the job. But you essentially pay dues in order to "own" union membership and the protection it affords; you don't "own" a job.
Consider my experience: I worked for 19 years at the University of Alabama at Birmingham (UAB) in various editorial positions. Always got good to excellent performance reviews. Always received merit raises when they were available. Never had any disciplinary issues or warnings under university policy. Always got along with colleagues in the workplace. If anyone should have "owned" his job, it was me.
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