Common sense and compassion in the workplace has been replaced by litigation.
The topic deals with many issues regarding the employee at the workplace. While about two decades ago the employees were at the mercy of the employer and the wage contract, more and more activism and the international requirements on protection of labor has created the needs of government interference which resulted in many laws and requirements beginning with social security and now encompasses a plethora of legislation.
However the argument that common sense and compassion in the workplace has been replaced by litigation is not entirely correct, though the topic has to be seen from the view that litigation has created the laws, and forced the adoption of laws and welfare measures. In the same context it is also argued that greed, corporate or individual can offset compassion and commonsense. Therefore enforcement of laws and the need to comply with regulation alone is a sure way of ensuring worker rights at the work place. Coupled with compassion and commonsense the working of these statutory requirements can become better. Litigation thus is a necessity to mould the society and the law, and it is the argument of this paper. It is true that litigation plays a major part today and it is a necessity.
The Rights and Litigation:
In this context we can examine the process from the time of employment to the employee leaving the organization and see if litigation has replaced commonsense and compassion and if there was any compassion at all in the first place. It can be shown by examination of research materials that while in some countries the 'conscience based arrangements work' it is sadly lacking in the U.S. For example there exist many outdated laws in the U.S. that actually hamper welfare of employees. In a research by Torres and Preziosi (2008) a review of the FLSA regulations showed that the outdated law is applied to the current day workforce and the relationship between management decisions based on this regulations, have a very negative impact on compensation systems and the business "resulting in legal exposure and associated costs as well as business impact. Preventative measures could be taken to avoid and/or correct these challenges via policies and systems." (Torres; Preziosi, 2008)
Thus the implementation of mandatory statutes can have a negative impact. If employment and selection has legal hurdles the termination and the process of adhering to all the clauses of the contract and the employee welfare requirements can cost the firms the sky. This reduces the profit margins and therefore it can be argued that the firms that lack bigger financial resources, small and even medium-sized businesses may experience difficulty in terms of the compensation and fringe benefit offerings needed to attract qualified full-time, permanent employees. This has spawned the more recent -- temporary and contract employee to whom these benefits do not occur. The temporary and part-time contract approach to staffing greatly reduces the legal requirements and costs imposed, and this has caught on in companies in Europe. Thus the use of temporary staff is increasing in the small and medium-sized businesses even for specialized functions. Thus the temporary employment is a means of avoiding employment taxes, reducing fringe benefits, eliminating worker's compensation benefits, reducing capital and maintenance costs reducing bookkeeping and payroll preparation costs and so on. (Zimmermann; Gowan, 1999)
These constraints often make these firms cut corners and come down heavily on labor. Secondly the attitudes and the values of the individual firms decide the issues. If we compare the work culture of countries for example, there can be found that the attitudes of the U.S. employers differ and often are more based on litigating than settling. Researchers conducted a study on the multinational corporation's employee termination practices in the United States and Canada show that between these countries there is no differences and the employees' legal protections in the two countries and the company claims a uniform corporate employee termination process. In comparison the researchers point out to structural and procedural differences in the employee termination process. The methods of using attorneys and quasi-legal personnel to comply with regulatory requirements, and the researchers in comparing these practices confirm that In the United States money is directed toward legal professionals -- "paying lawyers" and in Canada there is importance of severance packages -- "paying workers." (Nielsen, 1999) This shows that there can be no compassion or even enforcement of right if there is no possibility of facing a suit and this inconvenience which is more costly than compliance often makes the managers adhere to fair policies.
The nature of employment is thus changing and with that the employee loyalty and the need for the employee to belong. Likewise the corporate culture in the west is also changing. Today the society demands a different set of behavior from the corporate entities. Today the important buzz word is corporate social responsibility -- CSR. Organizations are expected to "give something back" to the society and these must naturally be congruent with actual practices and may impede understanding and further development of the concept. Authors researching this phenomenon have pointed out that manager's perceptions, organizational demographics, perceived influence of stakeholders, all influence the organizational performance. (Lindgreen; Swaen; Johnston, 2009)
In the U.S. The disclosure of certain environmental and climate change related information is mandated, while the EU rules require the disclosure of certain non-financial key performance indicators, including information relating to environmental and employee matters. In other words the EU rules shows the indicators that relate to employee matters. There is ambiguity in the U.S. context of mandatory declarations and the U.S. system will not meet the need of the current transparency Directive found in Europe. (Szabo, 2011) So the arguments that commonsense will prevail to bring about justice falls flat.
Laws and Compassion
Let us see if compassion works. In a study aimed to describe the epidemiology of ADA charges alleging employment-related discrimination due to HIV and to investigate the charge-filing behavior of workers with HIV. It was shown that workers who were female (odds ratio (OR) = 0.79, p < 0.01), aged less than 25 years (OR = 0.36, p < 0.01), and aged 25-34 years (OR = 0.77, p < 0.01) filed disproportionately fewer charges. This was also in relation to the Americans with Disabilities Act -- ADA to provide persons living with the human immunodeficiency virus -- HIV and other vulnerable populations with legal means of redress against discrimination, yet virtually nothing is known about how the intended beneficiaries have used these protections. (Studdert, 2002)
The Employee Retirement Income Security Act of 1974 -- ERISA, a federal law regulating private employer-sponsored employee benefit plans required a large number of interpretations. ERISA's broad preemption language has been judicially interpreted to preclude states from most forms of regulation of employer health plans, including benefit design, except through regulation of insurance products and incorporating employer expenditure requirements in state health reform financing. (Borzi, 2008)
One of the important aspects is that it is by law that the actual way the demographics of the workplace are determined. The demographics of the workplace and the law that affects workplace interactions and the tendency of the workplaces to foster constructive co-worker interactions are all based and made possible by judicial interventions and though there must be in true spirit the informal sociability, cooperation in the work must allow many rights by common law for example the firm and others recognizing individual employee 'privacy' rights, for example. (Estlund, 2003)
These do not occur spontaneously or by group willingness but often is a result of a judgment in litigation. For example the question presented is whether an agreement between an employer and an employee to arbitrate employment related disputes bars the Equal Employment Opportunity Commission -- EEOC from pursuing victim-specific judicial relief, such as back pay, reinstatement, and damages, in an enforcement action alleging that the employer has violated Title I of the Americans with Disabilities Act of 1990 -- ADA, can be settled only through court as in the Baker case where the court held g that arbitration agreements can be enforced without contravening the 'important social policies' furthered by the ADEA. (United States Supreme Court, 2002)
It can thus be asserted that the civil rights enforcement caused the equal opportunity in employment, as well as in education, housing, and public accommodations. The Civil Rights Act of 1964 outlawed compliance measures on classical personnel practices. Thus if equal opportunity law had been as clear-cut as wages- and-hours laws, personnel would have had little work to do to comply. (Dobbin, 2009) While about two decades ago the employees were at the mercy of the employer and the wage contract, more and more activism and the international requirements on protection of labor has created the needs of government interference which resulted in many laws and requirements beginning with social security and now encompasses a plethora of legislation.
The litigation has not replaced commonsense and compassion…