James Freeman on sat 25 aug 12
John...
Let's forget for a moment the intricacies of the Wages and Hours statutes.
What I wish to discuss is an area of law called Equity. Equity simply
means fairness, despite the intricacies of the law or the lack of specific
statute.
Let's say I approach you and say, "John, I have some work that needs doing
around my farm. I've got about 20 hours of work this week, and next week
I'll have about 60. I'd be willing to pay you $10 per hour for all 80 of
those hours if you want to do the job." Let's also say that you agree to
those terms. In this case, both parties are happy with the arrangement,
and both know the terms going in. We have a "deal", fair and square. We
have "equity". We both knew the terms going in, and we both agreed to
them. To now come in a month or a year or several years after the work has
been performed and say you want more money is patently unfair. You are
attempting to alter the terms of the contract on an ex post facto basis.
Amherst College instituted an extremely "progressive" student code of
conduct several years ago. While I am not certain it is still in effect
now, one of the sections dealt with the terms under which amorous
activities could occur between students (Really!). Beside a requirement to
seek specific verbal approval of the other party before each step in the
process, such as May I unbutton this garment? May I remove that garment?
May I touch you here?, they introduced an ex post facto rape clause
(Really!). In order to prevent supposed predatory "taking advantage of"
behavior, the college ruled that the female half of what was a consensual
encounter had 24 hours after the fact to change her mind and deem the act
non-consensual, and therefore rape. Really! I think you (and anyone with
a functioning brain) would agree that this arrangement was patently unfair.
You and your partner had a deal. You both agreed to the terms of the
deal. Now, the next morning, your partner decides that she shouldn't have
slept with you (should have been on your "A" game, fella!), so now you are
guilty of rape and kicked out of school. She has unilaterally changed the
terms of your deal after the fact. I ask you how this is any different, in
equity, than what you are proposing to do to Penland ex post facto?
Back to my farm example, let's say our original deal was for two 40 hour
weeks. I now come up to you and say, "John, I know we agreed to two 40
hour weeks, but the crops are not cooperating, so can you just work 20
hours this week and 60 hours next, and call it even?" If you say "Sure, no
problem", we still have a fair and equitable deal. We both agreed to the
amendment to our original terms, so neither party is injured. We both
receive precisely what we now bargain for. Even in this case, neither
party is injured. No harm, no foul.
Lastly, while I don't know the specifics of how Penland works, I believe it
would be pretty easy to argue that the artist-helper positions are actually
salaried, and not hourly labor at all, and therefore immune from Wages and
Hours statutes. It could also likely be argued that they are "contract
labor" positions, the artist-helpers actually being independent
contractors, so again immune from Wages and Hours. There are also other
exemptions from Wages and Hours which may apply. Should any of these
possibilities, equity, salary, or contract labor be in play, the fact that
Penland offered a settlement to any of the workers would have been merely a
good faith gesture on their part. During my time running my company, I had
probably half a dozen Wages and Hours claims filed against me by
disgruntled former employees. I never lost a single case. I suppose I am
lucky, because if it were today they probably would have just walked into
the building carrying sacks of Chick-fil-a sandwiches and killed me!
"Give yourself to the Dark Side. It is the only way you can save your
friends. Yes, your thoughts betray you. Your feelings for them are strong"
-Darth Vader
As others have advised you, John, turn away from The Dark Side. It isn't
healthy.
All the best.
...James
James Freeman
"Talk sense to a fool, and he calls you foolish."
-Euripides
http://www.jamesfreemanstudio.com
http://www.flickr.com/photos/jamesfreemanstudio/
http://www.jamesfreemanstudio.com/resources
KATHI LESUEUR on sat 25 aug 12
On Aug 25, 2012, at 9:29 AM, James Freeman wrote:
> <believe it
> would be pretty easy to argue that the artist-helper positions are =3D
actually
> salaried, and not hourly labor at all, and therefore immune from Wages =
=3D
and
> Hours statutes. It could also likely be argued that they are =3D
"contract
> labor" positions, the artist-helpers actually being independent
> contractors, so again immune from Wages and Hours. There are also =3D
other
> exemptions from Wages and Hours which may apply. Should any of these
> possibilities, equity, salary, or contract labor be in play, the fact =3D
that
> Penland offered a settlement to any of the workers would have been =3D
merely a
> good faith gesture on their part. >>=3D20
James,
I've sat on several juries, and seen others, where cases were made that =3D
employees charged they were not paid overtime that they were due. =3D
Another, a claim for workmen's comp for a job related injury. In each =3D
case the employer argued that the employee was "contract labor" or =3D
"salaried" and, therefore, not entitled to overtime or workmen's comp..
As I'm sure you know, it doesn't matter what you call the employee, it =3D
matters what their responsibilities were and how much control the =3D
employer had over how they carried them out. In one case I sat on, a =3D
woman was called the "office manager" and so the employer said she was =3D
not entitled to overtime. We found that her duties were clerical as =3D
defined by the labor code. She did not possess the authority or =3D
independence of action that a manager position required. Therefore, we =3D
found that she was entitled.
In a very public case in Ann Arbor, a young delivery boy was shot while =3D
delivering papers. His parents sued the Ann Arbor News for workmen's =3D
comp. The News claimed that he was an "independent contractor" and as =3D
such they had no responsibility. They even had a contract with carriers =3D
that called them "independent contractors". The jury found in favor of =3D
the parents. The News dictated when the paper was to be delivered. It =3D
dictated how it was to be delivered ( in a mailbox, on the porch, in the =
=3D
driveway). The News required that carriers collect payment for them. =3D
Carriers did not buy papers from the News and then deliver them and =3D
collect as they pleased. Controlling all of these activities made them =3D
an "employee" eligible for workmen's comp. For carriers who delivered =3D
papers to the kids (bundle drivers), it was a different case. They =3D
picked up papers and delivered by a certain time. But, that time was =3D
very flexible. They could run their route any way they wanted. They had =3D
nothing to do with collection.
Lots of companies try to get around wage laws by using terms like =3D
"salaried" or "contract labor", but it is what and how they employees =3D
carry out their work that matters in the legal world.
KATHI LESUEUR
http://www.lesueurclaywork.com
James Freeman on sat 25 aug 12
On Sat, Aug 25, 2012 at 10:42 AM, KATHI LESUEUR
wrote:
I've sat on several juries, and seen others, where cases were made that
employees charged they were not paid overtime that they were due. Another,
a claim for workmen's comp for a job related injury. In each case the
employer argued that the employee was "contract labor" or "salaried" and,
therefore, not entitled to overtime or workmen's comp..
As I'm sure you know, it doesn't matter what you call the employee, it
matters what their responsibilities were and how much control the employer
had over how they carried them out.
Kathi...
Yes, of course. I don't disagree with a word you said. It changes nothing
I said.
Workers' Comp is another matter altogether, and not part of John's case.
It is almost impossible for an employer to beat a workers' comp claim, at
least in the state of Michigan. We had a maintenance man who claimed he
injured his shoulder moving a ladder, and could no longer work. He got a
doctor to agree. We hired a private investigator who took photos of this
gentleman carrying 80 pound bundles of shingles up a ladder to his roof, on
his bad shoulder. We had photos of him bowling with his bad shoulder.
Playing softball. Many other strenuous activities. We thought we had a
slam-dunk defense to deny his claim. Nope! Judge gave it to him. Ignored
our evidence. That guy milked us for the remainder of my career, and
probably is still milking the company.
Take care.
...James
James Freeman
"Talk sense to a fool, and he calls you foolish."
-Euripides
http://www.jamesfreemanstudio.com
http://www.flickr.com/photos/jamesfreemanstudio/
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Snail Scott on sat 25 aug 12
On Aug 25, 2012, at 8:29 AM, James Freeman wrote:
> Let's say I approach you and say, "John, I have some work that needs doin=
g
> around my farm. I've got about 20 hours of work this week, and next week
> I'll have about 60. I'd be willing to pay you $10 per hour for all 80 of
> those hours if you want to do the job."
This was the situation when I was the student tech
in college. The job was for twenty hours a week, at
minimum wage. At the start of the term, the workload
was a bit more than twenty hours, but dropped off
sharply as the beginning classes started their work.
It picked up as that work needed firing, and glaze
buckets needed topping off. Toward the end of the
semester, though, the work was a good bit more than
20 hours, as all the kilns were firing 'round the clock,
broken things needed fixing, and supplies got used
up at a frantic rate. We (me and the student techs
who'd gone before me) tacitly considered our jobs to
be on salaried terms: they paid us X dollars a week to
make sure all the necessary work got done, however
much it happened to be that week. No walking away
from necessary tasks just because we's hit twenty
hours already, but the compensation was no busywork
just to fill the timesheet when things were slack. Did it
add up to exactly twenty hours of work averaged out
through the whole semester? I'm not sure. Maybe more,
maybe less. We treated is as: you do all these tasks,
and you will get this amount of money. Neither I nor
my predecessors, as far as I know, ever had a problem
with that. It seemed fair and sensible. Naturally, we
never discussed with this with the department accountant.
We filled out our time sheets with imaginary work hours
adding up to exactly twenty hours a week and turned
them in with a smile.
When a new faculty member was hired, she was appalled,
and immediately demanded that a strict accounting of only
actual worked hours should appear on the time sheets.
What a nightmare! Just the hours spent firing the gas kilns
exceeded twenty hours a week fairly often. It never
mattered before, because we just did our own projects,
going out to check the progress and adjust the dampers
or burners now and then. To keep track of five- and ten-
minute increments of work, over an eight or ten hour period?
Can't call it continuous work, or it adds up too fast, but at the
same time, it required that we be on premises, not in other
classes or other jobs, so it did take our time in that respect.
We could fill the time between kiln-checks with mixing
glaze, cleaning shelves, etc, but the timing of those tasks
can't always coincide. The new professor's idea was to only
fire kilns during the hours I acted as lab monitor, but that
meant spacing out firings in a was that cut severely into the
firing schedule.
The old way certainly violated a whole range of labor laws
and more, but it worked, and everyone involved found it
satisfactory. Those labor laws were enacted for good
reasons and with the best of intentions, but they didn't suit
the circumstances, making the work actually harder on the
worker. Important things went undone when the twenty hours
had been used up, but in weeks when there wasn't twenty
hours of necessary work, we had to invent tasks or go unpaid.
I know such casual understandings are common for such jobs
in many places, and as long as all parties concerned are in
agreement, I have no issue. I have no idea whether the
Penland staff had such an understanding with the institution
or not. If they were indeed asked to work beyond the limits of
their agreement (even if the agreement was not on paper),
then they should be properly recompensed, and Penland
should be nailed to the wall for failure to do so. But, if they were
doing what they understood the work to be from the outset, and
paid accordingly, no one should be protesting on their behalf.
In my experience, a great many well-intentioned interventions
merely backlash against those they are meant to help.
Raises in the minimum wage benefit some, but often leave others
doing all the work of the laid-off employees for just a few cents
more per hour, and the laid-off staff get nothing. Housing laws
sometimes ensure proper standards, but sometimes people who
are evicted 'for their own good' from substandard housing end up
having no housing at all.
What's 'fair' on paper doesn't always add up in practice, and my
life experience in many jobs has led be to see discrepancies
between contract obligations and actual fair treatment. I admire
John Britt's idealism in this dispute, but I am inclined to wonder
what the affected Penland staff actually think is equitable.
-Snail
James Freeman on sat 25 aug 12
On Sat, Aug 25, 2012 at 9:29 AM, James Freeman m
> wrote:
Amherst College instituted an extremely "progressive" student code of
conduct several years ago.
The college I referred to was actually Antioch College, not Amherst. Sorry
to besmirch Amherst (and, thanks, Janet!).
Take care.
...James
James Freeman
"Talk sense to a fool, and he calls you foolish."
-Euripides
http://www.jamesfreemanstudio.com
http://www.flickr.com/photos/jamesfreemanstudio/
http://www.jamesfreemanstudio.com/resources
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