There was a bill before New Zealand parliament that would give an employer the right to fire an employee for any reason at all within the first 90 days of employment. It got voted through to the next stage because of support from the Maori party. Now I’m assuming very few readers care enough about New Zealand politics to want all the background. But the co-leader of the Maori party is Pita Sharples, and his speech was extremely stupid. Here’s an extract:
I come to this House today, desperately aware of the need of people in my constituency, in my electorate, particularly in South Auckland, to be able to walk in the door to a job. However, we are also committed to protecting
Workers’ Rights – so that workers’ rights are not impinged on, workers are not abused, do not suffer from exploitation.These are heavy issues, and our caucus has grappled with the challenge inherent. What takes precedence? The Right to Work or the Workers’ Rights?
[…]
The impact of systemic bias, of institutional racism, the plight of the jobless are still issues of significance for this nation – and we must have the courage and strength to consider options.
We therefore will vote on principle, wanting there to be room for discussion, but also always aware of the juggling act to protect Workers’ Rights alongside the Right to Work.
There is no juggling act needed to protect Workers’ Rights and the Right to Work. One of workers’ rights is the right to work, and the only way to protect that right is actually protecting it. For example, if you tightened the law on fixed-term contracts, that would be protecting the right to work. If you said that people had to be employed directly, and people couldn’t use temp companies and sub-contractors, that’d protect the right to work. Even a tiny bill like the Employment Relation Amendment Bill, currently before parliament, would protect the right to work (it would enact the protection parliament already tried to give vulnerable workers, but failed due to general incompetence and a ridiculously conservative appeals court).
This bill does not protect the right to work, it attacks it, because it gives employers the ability to arbitrarily deny workers’ right to work within the first 90 days of employment.
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The idea that anti-labor laws protect a “right to work,” although wrong, is at least not incoherent. But applying that rationale to this proposal is insane.
When the best argument in favor of a policy is a patent and obvious lie, flee.
The difficulty with “right to work” laws is not the intent, which is genuinely admirable. The difficulty with them is their actual effect in practice.
To a mild but visible extent, they impede the hiring of new people. Not because employers enjoy reducing the amount of employment in the world, but because it raises the cost of making a mistake in the hiring process. Ordinarily, you bring someone on board, after a couple of weeks it becomes clear there’s been a terrible mistake in some direction or another – you shake hands and depart amicably, with a positively phrased reference.
These types of RTW laws make it more expensive to do that, and companies become predictably more thorough in their pre-employment vetting of candidates, in an attempt to avoid having to keep someone on whose clearly unsuitable. And so hiring is delayed somewhat, and done less experimentally, and so forth.
However, the intent behind the law – to make sure new hires get a fair shake – is a very admirable one.
So, how to reconcile the two desires? On the one hand, to ensure good personnel management at the enterprise, on the other, to keep employers willing to commit in advance to keeping new hires on for 90 days or as long as the new hire themself wanted to keep trying.
My answer would be private action. Employers could offer the policy as a bonus extended to all employees. If employees truly value the service, it would thus serve as a non-cash benefit to them, and they would value employment more favorably at the company offering the policy. So there would be a subtle but real increase in the quality of people desiring to work for the employer offering the benefit; there’s the payoff for them.
Candidates get the knowledge that they’re guaranteed a fair shake, for whatever that’s worth; I imagine it would vary considerably by individual.
Everybody wins. Hooray!
An aspect which is rarely discussed when such newfangled labour laws are introduced, is what sort of culture will these laws interact with – and to what effect?
IN a culture which has already grown cynical, punitive (and not to mince words, psychologically sad0masochistic), one would be mistaken to assume that somehow, magically “good will” will come into operatation, just because the laws are somehow defined as more rational, superior to the old ones.
Rather, one would expect that their introduction will lead to further deterioration of social and labour relations, as employees are fired on the sadistic whim of two-bit hucksters which aspire to being thought of as “top of the food chain” in their own little corner of the jungle.
Where I live 90 days is the standard “probation” period, where employers get a chance to see if the new person in action and determine if they are a good fit for the job.
Personally I think it’s a system that works well. It gives employers just enough freedom that they are slightly more willing to take a chance on somebody who is just out of school or who has been out of the workforce for a while, or who’s experience isn’t in the same industry because they won’t be stuck with that person if they end up not being able to do the job. And of course if the person passes their probation, the employer cannot remove them without showing just cause.
I think 3 months to evaluate somebody’s progress is entirely reasonable.
To some extent, this is why I was hired as temp-to-permanent at my company. To some extent, it can be easier to get your foot in the door if the employer is committing to less. On the flip side, of course, the company committing to less means you get less.
I’m not entirely opposed to having some time when the company can fire you a little more easily–cuts down (well, slightly) on shitty co-workers. Do I believe there aren’t any firms that abuse this tactic by continually re-firing and re-hiring new workers? Of course not. But training is time-consuming and a pain in the ass.
The problem with this is when the “probationary” period for employment turns into a period during which they will not give you any benefits. In a country where employment determines healthcare (goddamned stupid) this is a big deal.
What I really find problematic is situations where there is a huge amount of turnover especially among temps at a company because it sucks to work there. I’ve been at a couple of places like this where the working conditions are so crappy that no one stays. One of the prime places this happened to me was at a canvassing job for Public Interest Research Group. Hardly anyone that was there finished their first week. There was another place I worked where a new group of temps was being trained every other week. Of my group of four or so, I stayed the longest–three weeks or so.
Employers don’t already have the right to fire someone for no cause, esp. in the first 90 days?
I share bean’s understanding that this law would make little sense in the US, where the default labor law doctrine is “employment at will.” Reflecting freedom of association and the prohibition on slavery, the doctrine says that an employee may terminate an employment relationship at any time for any reason or no reason, and the employer may do likewise.
Courts recognize exceptions to this doctrine, however. An employee’s right to quit may be abrogated when employed by the US military. An employers right to fire may be constrained by labor contracts and anti-discrimination laws. But absent some exception to “employment at will,” an employer may fire an employee without reason both before or after the first 90 days of employment.
Is the law suggesting that employers could fire people for discriminatory reasons, or for blowing the whistle on corporate wrongdoing, or for refusing demands for sex, during the first 90 days?
As Robert suggests, policies that bar employers from firing employees can depress employment. Employers may be more willing to lease equipment to enhance each employee’s productivity rather than higher another worker, because the lease can be more flexible. Similarly, employers will be more willing to pay workers overtime than to hire additional staff, because overtime can be canceled.
But beyond depressing employment generally, these policies may promote discrimination. They cause employers to discriminate against the young and in favor of the old. If I don’t have the discretion to hire someone for just a short period, at least I can try to hire someone who will retire after a short period.
Moreover, bureaucracies tend to be conservative places anyway. If no one can really tell how much your individual effort contributes to the bottom line, then you will be rewarded based on appearance more than substance. If you can depict yourself as brilliant, great. For most people, however, the best strategy is CYA – avoid making conspicuous mistakes, and have an excuse for every mistake you make. In hiring, this means hiring the candidate that best conforms to expectations.
Imagine that you must choose between an unconventional candidate with the potential to become a superstar, and a conventional candidate with all the traditional credentials. Any success the new hire achieves will be attributed to the new hire. Any failure will be attributed to the new hire – and to you. If you hire the conventional candidate, you can respond to accusations by saying, “Hey, who could have guessed he’d be such a screw-up? He looked good on paper and in the interviews.” Your ass is covered. But you have no such cover if you hire the unconventional candidate. The problem is amplified if the candidate’s non-conformity is conspicuous (that is, a racial minority, female, physically challenged, unusual hair, unusual clothes, unusually old or young, studder, whatever). If that candidate becomes a screw-up, her very presence will be a constant advertisement for your bad hiring decision.
In the US, large bureaucracies have Affirmative Action officers that try to push back against people’s biases toward the conventional. These officers face a lot of resistance, and are not well loved under the best of circumstances. Some officers make no difference; they are derided for being useless. Others actually make a difference; they are despised for getting in the way of hiring “the best person for the job” in order to promote “social engineering” and other goals unrelated to “getting the job done.” When we increase the stakes of making a hiring error, the resistance AA officers face will increase.
I am of course against wrongful firing, but as a US citizen, it’s hard to get worked up over this controversy, as well as the similar one going on in France right now. It seems reasonable that employers should be able to dismiss their workers for acceptable reasons. As a self employed person, I can say that if I ever decided I needed an employee and I lived in a country where I wasn’t allowed to fire that employee except after a very cumbersome process, I can say I’ d probably decide not to expand the business after all. As a former employee, I can say that when co-workers were fired, from time to time, the rest of was were usually relieved. That is to say, the reason they were fired was symtomatic of a general bad fit with that particular place. Creeps, meanspirited people and so on.
In addition, regulations that inhibit an employers ability to fire (for due cause, of course) actually increase the use of “temp” or “contract” labor. Often these people are employed with the temp agency at minimum or just above.
So, I agree that wrongful termination is wrong and should be actionable, but I’m not sure that I’m for regulations that require employers keep an employee that is a bad fit for some lengthy period of time, either.
You’re saying that as if that isn’t the current situation in New Zealand, and if protection from wrongful firing isn’t exactly what would be gutted by this bill (and you’re not the only one).
The current NZ law definitely doesn’t require that employers keep on bad employees. It just requires that if they aren’t working out they are given an opportunity to improve before being fired, and that they aren’t fired for stupid things like the colour of their skin, or someone’s daughter wanting their job (as happened to me once). A fair process must be followed, but it’s not overly arduous. That said most employers that I have observed have failed miserably at doing things fairly, and thus they get themselves into trouble and liability.
Also this probationary employment idea would reinforce NZ’s current bad management practice around appointments. Jobs are advertised without job descriptions, where the boss has no idea what that person will do, they just feel they need another staff member. This has happened to me – I had to write my own job description after I started. Which of course means that the boss has little criteria on which to base the appointment and tends to just grab whoever seems personable, rather than someone with the skills. Being able to then dump that person within a few weeks or days if the boss changed their mind will only make this practice more prevalent, which is pretty damn unfair on people who apply for positions in good faith.
I know zip about N Zealand labor laws. What constitutes wrongful dismissal and how difficult is the process of dismissal? Could I dismiss someone because they were incompetent, didn’t get along with the others, had very poor hygiene? Would I have to complete some quasi-legal process to rid myself of an employee whom I disliked even if it wasn’t for age/ gender/ religion, etc? What are valid reasons, and would my word, as am employer be enough?