A Stitch in Haste

Does this family leave policy make sense to you?

--Be a female employee and give birth: get paid leave.
--Be a male employee and adopt a child: get paid leave.
--Be a male employee whose wife gives birth: do not get paid leave.

(Technically it was a question of being allowed to use accrued sick leave rather than receiving new paid leave, but I don't think that matters.)

A male employee of the University of Iowa didn't think that policy made sense.

So he sued.

And lost.

And lost again on appeal.

I think he was right to sue. Yes it's the woman who gives birth -- point conceded. But I think the university shot itself in the foot by giving paid leave to adoptive fathers but not biological fathers. That makes no sense (in legal terms, it fails to satisfy rational basis review). The Eighth Circuit disagrees. The Eighth Circuit is wrong.

My greedy Swiss bank employer has a more enlightened policy: pretty much any employee can take a fairly lengthy unpaid leave for any "family care" reason, whether it's childbirth, elder care, catastrophic illness in the family, whatever. That certainly makes more sense than creating entirely arbitrary distinctions that collapse into an irreconcilable rock-paper-scissors conundrum like this fact pattern.

Anyone have any stories of family leave disputes to share?

The case is Johnson v. University of Iowa, 05-1184 (8th Cir., Dec. 15, 2005) (PDF - 11 pages). Via Decision of the Day.

Professional malcontents have invented yet another faux reason to hate America:

The United States is the only advanced economy that does not guarantee its workers any paid vacation time, according to a report by the Center for Economic and Policy Research. As a result, 1 in 4 private-sector workers in the U.S. do not receive any paid vacation or paid holidays.

This is, of course, utter nonsense. It is flunk-the-final wrong.

Consider three alternative work arrangements, each entailing the same job function and pecuniary compensation:

A. Work eight hours straight.
B. Work nine hours with a one-hour break.
C. Work nine hours with two 30-minute breaks.

All tastes and preferences are subjective, and different people might prefer one schedule over the others for a variety of reasons. But by what bizarre calculus would anyone summarily declare one arrangement "superior" to the others for all workers in all contexts? And who would dare say that Option A is "oppressive" relative to Options B and C simply because Option A does not provide a "paid lunch break"? Finally, who could, with a straight face, insist that a society that restricts the ability to even offer Option A is morally superior to a society that permits it? Since when is a more free society ethically subordinate to a less free society? What are these fools thinking?

Meanwhile, who really pays for those "paid" breaks in Options B and C? Of course not the employer — he's paying the same money for the same work in each scenario. The employee is obviously paying herself for the breaks — by foregoing an hour of free time elsewhere during her day.

The analysis regarding "paid vacation days" rather than "paid lunch breaks" is exactly the same — no difference whatsoever. The only person who can "pay" an employee for a paid day off is the employee herself. Working in the private sector means you perform a certain quantum of work over a certain quantum of time and receive a certain quantum of compensation in free exchange. The fact that the quantum of work is spread out over the quantum of time in a certain irregular pattern due to "vacation days" is as irrelevant as whether the "paid" days off are called "holidays" or "vacation days" or "personal days" or "family care days" or "zoop days." You work what you work and you get paid what you get paid. And if you don't like it, then don't take the job.

And the fact that, in America, competent consenting adults are free to make whatever mutually voluntary "days off" employment arrangements they want — including having no "paid days off" at all — is precisely what makes our system superior — morally and consequentially — to those who feel a need to baby-sit workers and assume that they are all gullible drones who will inevitably be "exploited" by their employers. To imagine that it could somehow be the other way around (i.e., that less free is morally superior to more free) is to demonstrate either an unforgivable naivete or (far more likely) an intentional, dishonest, ulterior motive.

This is the same obnoxious fraud that underlies the notion that "corporations don't pay enough tax." Corporations cannot pay any tax — only individuals can pay tax. Every cent in tax that a business remits to a government was in fact paid either by a customer (as a higher price), by a worker (as a lower wage) or by an entrepreneur (as a lower profit).

And this fraud reaches its apogee — it is the most true — in the context of Social Security taxes: the fact that one's employer remits a "matching tax" to the federal government on top of the tax directly deducted from a worker's paycheck does not mean that the worker isn't the one actually paying both. Whether the tax — which the worker pays in its entirety — actually appears as a line item on the worker's pay stub or not is utterly irrelevant: the worker pays it all. It's an accounting scam deliberately concocted by the New Deal government to confuse people into thinking that "someone else is paying for me."

Bottom Line: There ain't no such thing as a free lunch break. Or a free day off. Or a free Social Security "contribution." And shame on those who, like CEPR, insolently try to persuade the economically illiterate otherwise.

British researchers have determined that workers "cost" their employers £124 billion per year "wasting" time on the Internet:

The average worker devotes 90 minutes a day to "personal" web use and sending emails -- adding up to 43 lost working days every year.
...
The majority feel they deserve an internet break because they work so hard.

However, it does not always go unnoticed because 17 per cent of employees admit to having been caught surfing the web when they should have been working. Two per cent were sacked for the offence.

This is, of course, utter nonsense.

Such analytical frameworks are the diametric opposites of -- yet just as erroneous as -- the one I debunked in this post on how it is the worker, not the employer, who pays for "paid" holidays and vacations.

Let's begin with some basic first principles. Employees who sit at a desk with a computer -- especially a computer with email and Internet access -- tend, overwhelmingly I would think, to be salaried employees, not waged workers. For such employees, the notions that their time "belongs" to their employer, and that not working non-stop "costs" their employer money, are wholly untenable.

The employer of a salaried worker pays a certain quantum of compensation in exchange for a certain quantum of work. Whether that work is achieved in a single, monotonous eight-hour shift, or a nine-hour shift with a one-hour lunch break, or a 9.5-hour shift with 90 minutes of personal web use, is irrelevant. There is simply no "wasting" to lament or "cost" to recoup. If the work gets done in the broad time frame agreed to, then how is the unproductive time "wasted"? The employer is given what she pays for; the employee gives what he is paid for. All else is phantom accounting.

There is no doubt some background noise to such analyses. Wear & tear or capacity constraints on the equipment. The cost of having to monitor and restrict access to inappropriate websites. Productivity gains from giving employees flexibility in how they do their jobs. But those phenomena (which tend to mostly cancel each other out anyway) are all ancillary to the basic paradigm: The employer and worker mutually agree to exchange a amount of work for an amount of compensation. There's not much more to "analyze."

Incidentally, I'd be willing to wager that at least some of those reprimands and terminations were not over "excessive" use of the Internet at work, but for inappropriate use (e.g., emailing trade secrets, submitting résumés to recruiters, or plain old naughty pictures). If the worker breaches his contract with his employer, then that's another matter altogether, and not the faux problem that these (unidentified) "researchers" are lamenting.

There is only "waste" or "cost" from a myopic, refracted -- and just plain wrong -- perspective.

...you might get it:

IBM's response to a lawsuit in which the company was accused of illegally withholding overtime pay from some technical employees[:] IBM settled the case for $65 million in 2006 and has now decided that it needs to reclassify 7,600 technical-support workers as eligible for overtime.

But their underlying salary -- the base pay they earn for their first 40 hours of work each week -- will be cut 15 percent to compensate.

IBM spokesman Fred McNeese said the move would not save the company any money, because the affected employees generally should find that overtime pay makes up for the salary cut. However, internal documents obtained by The Associated Press indicate that many workers will lose money.

"If you don't like it, then quit..." is of course the beginning, but not necessarily the end, of the analysis. If IBM breached employment contracts or committed fraud upon its job applicants to induce them to work for the company in the first place, then shame on IBM.

Nevertheless, the underlying premise of the disgruntled workers -- that one compensation arrangement is intrinsically "more fair" than another -- is unsustainable. An employee does the work she does and gets paid what she gets paid. That and that alone is where questions of fairness must lie. Why should it matter whether compensation is called "base salary" or "overtime" or "zoop"? What does an employee provide IBM, and what does IBM provide the employee? That is where the question should begin and end.

(Questions of equal pay for equal work, compulsory union dues, glass ceilings, ENDA, etc., are separate topics altogether and best left for future blogposts.)

This sturm und drang is reminiscent of my previous post on paid holidays, which are a fiction. There is no such thing as paying (or being paid) for non-work; there is only paying for work itself. Changing one's paycheck terminology -- just like changing one's work schedule -- is, bottom line, merely rearranging deck chairs: just hope that your ship isn't sinking while you're doing it.

Of course, that's not what they're calling it:

[T]he State Senate narrowly approved legislation Monday that would make New Jersey the third state in the nation to give employees the right to take paid leave to care for a newborn or a sick relative.

The measure would be financed by employee payroll deductions that would cost every worker in New Jersey a maximum of 64 cents a week, or $33 a year. Those taking the leave would be eligible for two-thirds of their salary, up to a maximum of $524 a week, for six weeks.

Those not taking the leave, of course, get the "benefit" of having their wages reduced, against their will, for absolutely nothing in return. Because New Jersey is a "progressive" state. Somehow.

The idea of forcing employees to buy something they neither want nor need is the reductio ad absurdum of Social Security and socialized medicine (where the argument is they may not "want" compulsory participation, but they do "need" it -- or so the "enlightened, progressive" politicians and bureaucrats have decided). This aberration is far worse: The entire scheme is premised on the sotto voce recognition that many, perhaps most, workers in fact will not need this coverage, and will therefore be involuntarily subsidizing those few who do. Again, this is somehow considered "progressive" labor policy. Go figure.

(Incidentally, with every worker in New Jersey being forced to buy this coverage, is it not highly likely that more of them will in fact choose to take advantage of it? How many employees will suddenly discover some sick relative somewhere and demand their extra paid vacation family leave time? Will excused absenteeism increase? If so, by how much? And what will be the impact on business conditions in New Jersey as a result? Also, might any businesses choose to locate elsewhere as a result of this new tax? How exactly would that "help" New Jersey workers?)

Unpaid family care leave laws, which violate freedom of contract, are controversial enough. Taxing some people to enrich others is controversial enough when the criterion is inequality of income (the only criterion even entitled to a hearing).

When the criterion switches to "warm fuzzy feelings," such a discriminatory tax is utterly indefensible. Let those who want to enjoy the luxury (and it is a luxury) of parental leave save up for it in advance. Let those who anticipate needing time off for elder care or other family leave needs (and yes that includes the gay partners of AIDS sufferers) do likewise. Leave your coworkers -- and their wallets -- out of it.