A Op-Ed Column about a Summer Employment

The following column was written by me in the summer. (7/3/05) It's an opinon column, but as you can tell, it's about my employment at my summer job. I'm interested to see if there are any shared sentiments in your own personal work experiences?


"Summer Time, Summer Grind?"

College is 6 weeks away, and it couldn’t come sooner.

Yes, staying up until 3 am to write a ten page research paper is thrilling. I enjoy drinking my cappuccinos and eating beef flavored Ramen noodles to satisfy my late night hunger and caffeine fix. Lack of sleep, manufactured energy, and artificial pasta, are the kinds of nights I long for.

Oh, the tests, I don’t want to forget about those great exams that determine 50% of my course grade. That’s right, I enjoy looking at the syllabus at the first day of class so I can begin planning my study schedule, only to wind up cramming the hours before, when I knew about it 3 months in advance.

Don’t forget those fabulous group projects we all have to do. It’s always a pleasure sitting down with your newly assigned group, playing a game of “mix and match” when each person is available to meet, and on what days, and what times. The saying goes that more minds are better than one, so such logical and wise groups always have perfectly planned schedules of who does what, by what date. Well, again, only to find yourself meeting at the library at midnight, before giving your presentation the next day.

How could I forget? Who doesn’t love the parking conditions on campus, and in town? I enjoy planning my day about where I’m going to go in order to get back sometime after 5 pm so I can park in front of my building… that always give me such a rush.

Wow, yea I really miss college already…

I mean why would I want to go back anyway when my summer job is great! I don’t think I can leave it and live without it.

That’s right, it’s my life long aspiration to work at a place for $7.50 an hour, stuffing pork, chicken, or steak into a tortilla. I dream about making tortilla chips and taco shells all night, and the best part is, I get to wake up at 7 am Saturday morning and fulfill that dream. That’s a quick "dream fulfilling turn-around time". . . one night must be a record.

If cleaning is your thing, this place has that for you too. You can choose from an array of small tasks, including, but not limited to: sweeping the floor, sweeping the kitchen, moping the floor, cleaning the tables, washing the dishes, wiping the windows, spraying the toilets, scrubbing the sinks, then cleaning the sink drain… yes, a list of endless possibilities.

The best part of the day though comes when the customers swarm the front door like a pack of hungry wolves. Now I don’t know what anyone has told you, but the best customers to serve are the Asians and Indians, by far. It’s always a pleasure to have these people, who take their lovely time trying to decide what kind of food they want. The best position to experience this though is at the register, where they try to talk their way into the most food, for the cheapest price. Who needs to take business strategy classes when I can learn the art of negotiation there?

I just get such fulfillment, knowing that when I come home every night from a hard days work, that I helped satisfy so many peoples’ hunger today. I take the utmost pride in the fact that there were over 500 people served, and that my restaurant made $5,000 today. I’m definitely part of a winning team that treats me like the important individual that I am, and of course, that’s definitely shown by their gesture of my handsome hourly wage.

Forget the business and spanish minor I already earned, and the three years of studying journalism. My summer job is where it’s at and I’m having so much fun and learning so much, while advancing my career at the same time. Instead of going to law school next year, I think I should aspire to become the head manager of the store. Well, I shouldn’t dream so big right now, my immediate promotion might be to supervisor of dishwashers.

Yep, college couldn’t come ... any sooner.

Speaking of Sports and Sexual Harassment . . . .

Isaiah Thomas (current New York Knicks team president and former Detroit Pistons player) has been accused of sexual harassment in a federal lawsuit.

Coaches Sidelined for Sexual Misconduct

Two coaches in elite women's sports have recently found themselves shunned for alleged inappropriate sexual conduct and/or sexual harassment.

Tim Nardiello, a coach for the American women's skeleton team, will not be allowed to accompany the team to the Torino Olympics this winter. He was accused of harassing two members of the women's national team, though an arbitrator recently found insufficient evidence to support the claims. Nevertheless, the United States Olympic Committee decided Tuesday that Nardiello will not be allowed to act as a coach at the Torino games, citing a number of violations of the USOC's Coach's Code of Ethics (including, notably, rules prohibiting sex between coaches and athletes).

Similarly, last week, the New York Times reported (registration req'd) that the Women's Tennis Association (the governing body for women's professional tennis) banned Joe Guiliano for life. Guiliano, who had coached various women over the years including Americans Ashley Harkelroad and Tara Snyder (both of whom confirm a history of inappropriate behavior by Guiliano), was banned as a result of a complaint filed by Russian Evgenia Linetskaya after Guiliano allegedly assaulted her when she was competing in a tournament in August in Carlsbad, California.

Harkelroad and Snyder never formally pressed their complaints against Guiliano.

Nardiello's experience shows the powerful repurcussions of such complaints, even when later determined to be unsubstantiated. Should that give athletes (or women/people in general) pause when deciding whether to report suspected inappropriate sexual behavior or sexual harassment?

On the other hand, what role, if any, did Harkelroad and Snyder play in failing to protect subsequent victims of Guiliano? If they had been more proactive in their complaints, could they have saved Linetskaya (and, perhaps, others) from being victimized?

I certainly do not intend to play "blame the victim" here. But, I do mean to probe the difficult issues surrounding whether to report suspected inappropriate sexual behavior or sexual harassment and how such reports should be handled.

Where Title VII Does Not Reach

Apropos of our recent class discussion of "who's an employer": Check out this story from Salon, which discusses how federal equal employment opportunity laws are inapplicable to claims of sexual harassment and abuse of employees at a casino owned (but not operated) by a small California-based Indian nation.

A couple of quotes from Taking on a Nation, by Peter Byrne:

The [EEOC] gave them the right to sue, but also told them it had no jurisdiction to investigate their claims themselves, because the casino is on Indian land, which is sovereign territory. Regina Brown, speaking for the [California] state agency, says pretty much the same thing . . . .

[Attorney for the plaintiffs] Debra Smith . . . explained why the Thunder Valley lawsuit should be allowed to proceed. The court had jurisdiction, said Smith, becuase the tribe had failed to protect the women's civil rights. She argued that the tribe's sovereign immunity from lawsuits was trumped by the equal rights provided to all people by the constitutions of California and the United States. She said that the state never intended for tribes to be able to use the tool of sovereignty to take away the civil rights of others. She said it was especially wrong to let a tribe's business partners hide behind Indian sovereignty.**

Ruling against Smith, [the judge] threw the case out of court. "It's a question of law," she said, without elaborating.

**NOTE: Though the United Auburn Indian Community owns the casino, it was financed and is operated by Station Casinos of Las Vegas.

Recommendations

Working by Studs Terkel and Gig, by Bowe, et. al., can be really fascinating books to read. I've not read either book cover-to-cover, but I'm working on it in a piecemeal fashion. To that end, I'd like to get your recommendations for the best (i.e., most interesting) entries to read. Leave your vote in the comments section and tell me why you think it's worth my time.

My votes (so far):

Pretzel Vendor Isabelle Quinones in Gig: I was fascinated by the way she speaks so casually about both stealing from her employer -- about whom she also speaks quite highly, saying "he is a really good man - truly benevolent" -- and starting an affair with a co-worker, which (of course) ends badly.

Garbarge Man Roy Schmidt in Working: I was intrigued by how he found meaning in his work and enjoyed it much more than the "office job" he'd previously worked. In addition, I appreciated the way he described the physicality of the back-breaking work he does.

Posner and Becker on Tenure

At the fascinating Becker-Posner Blog, the current posts by Richard Posner (a judge on the U.S. Court of Appeals for the 7th Circuit, University of Chicago law professor, and early groundbreaking scholar in the field of "law and economics") and Gary Becker (a University of Chicago economist and Nobel laureate) comment on tenured employment. We will be focusing on the contractual aspects of the employment relationship over the next couple of weeks, particularly the employment-at-will rule (the functional opposite of tenured employment) and its exceptions.

Becker and Posner present a number of economics-based arguments against tenure at all levels of employment, including those sectors where it's most accepted and ingrained: academia and federal judgeships.

Read them (Posner's original post and Becker's comments).

Also, check out the comments to these posts, as they are often interesting.

Arbaugh v. Y&H Corp.: Supreme Court To Decide Import of Title VII's 15-Employee Minimum

On Wednesday, January 11, the U.S. Supreme Court heard arguments in a mundane little employment law case, which has some fairly important practical consequences.

The case involves a claim under Title VII of the 1964 Civil Rights Act. Only employers who employ 15 or more employees for 20 or more calendar weeks during the current or preceding year are covered by Title VII. As Professor Joanna Grossman aptly puts it in her interesting and clearly-written preview of the case on FindLaw's Writ, Title VII "exempt[s] small 'Mom and Pop' establishments." The question that the Supreme Court will answer in Arbaugh v. Y&H Corp. is what that employee-minimum means in legal terms. Is it a factual allegation that a plaintiff must prove to prevail in a case? Or is it a jurisdictional requirement that a court must be convinced is true or, if not, refuse to hear the case, because it lacks the authority to render a judgment without the minimum number of employees (regardless of how long the case has been going)?

The issue has real life consequences. A review of the facts giving rise to the case will show why.

Jennifer Arbaugh was employed at Y&H Corporation (d/b/a the Moonlight Café) as a bartender and waitress for ten months. She claims that during that time she was sexually harassed by Yalcin Hatipoglu, one of Y&H’s owners.

Arbaugh sued Y&H claiming sex discrimination under Title VII. Following a jury verdict in favor of Arbaugh after a two-day trial and nearly a year after Arbaugh filed the complaint, Y&H filed a motion to dismiss the case arguing that the court lacked subject matter jurisdiction over the case. Y&H contented that it did not fit the legislative definition of “employer” in Title VII, because it did not employ 15 or more employees for 20 or more calendar weeks during the time period relevant to the case.

The court treated the motion to dismiss as a motion for summary judgment and entered an order vacating and reversing the jury verdict and judgment. The court determined, as a matter of law, that Y&H did not have the requisite number of employees and that, as a result, the court lacked subject matter jurisdiction over the case. In particular, the magistrate judge (using a combination of the economic realities test and the common law control test) determined that the owners, their wives, and the delivery drivers were not employees for purposes of Title VII. If they had been counted, Y&H would have been a covered entity. The appellate court, the U.S. Court of Appeals for the Fifth Circuit, agreed with the trial court.

So, despite the fact Y&H basically conceded that it had at least 15 employees (by failing to raise the issue before the trial when it would have been expected to do so) and despite the fact that Arbaugh had carried her burden at trial to prove that she'd been discrminated against by Y&H, the court turned Arbaugh's victory into an utter defeat. When the court determined that Y&H did not have the required 15 employees, it determined that it had no jurisdiction. Therefore, it had no authority to have heard the case or rendered a judgment. Arbaugh loses.

As the excellent SCOTUSblog discusses in its entry on this case, this issue has split the courts. Six federal appeals courts agree with the Fifth Circuit's decision in Arbaugh and treat the 15-employee minimum as jurisdiction. Five others disagree and treat the employee minimum as an issue of the factual merit of the Title VII claim.

Grossman predicts that Arbaugh will win the appeal, because the text of Title VII and the policy arguments weigh in her favor. What do you think? Grossman does not find much merit in Y&H's arguments. But isn't there a fairly strong policy (and intuitional) argument in Y&H's favor?

(For the record, I tend to agree with Grossman, but think she may too easily brush aside the appeal of Y&H's argument.)

Welcome

This blog will use, as a jumping-off point, a variety of laws and legal regimes that target and regulate work and the workplace in order to explore how life, work, and law interact and, more specifically, to analyze some important policy issues that affect how we live, by affecting how we work.

We'll highlight articles in the mainstream media, comment on relevant posts by other bloggers, and provide some original content flowing from our class readings and discussions.

While this blog is intended primarily to be an extension of the seminar for the class participants, we welcome the thoughtful and respectful contributions** of anyone who is interested in the topics we pursue.

**NOTE: For the time being, we are happy to permit comments from readers who are not members of our class. However, this is not a public forum and the administrator of this blog will exercise the right to close comments to non-members and/or delete unhelpful, off-topic, and intemperate or disrespectful comments without notice and subject only to his reasoned judgment. Non-anonymous comments are appreciated and will be less likely to fall prey to arbitrary and capricious deletion.