FAIR LABOR CONTRACTS? WHAT ARE THOSE?

THE MYTH OF EMPLOYMENT IN AMERICA

PART 3 - CONTRACTS

Commerce would not work without contracts. Contracts provide legal assurance that people will adhere to their commitments. Both commerce and the law presume that men do not naturally hold to their word. But no one would take financial risks if they knew their fellow man would not fulfill his promises. So the law supports commerce by forcing men to do what they say. If they don't, they must face dire economic consequences. Men don't like dire economic consequences, so they adjust their behavior to avoid them.

In theory, contracts reflect a perfectly equal bargain between two perfectly equal commercial parties. One party wants something the other has. Each parts with something in order to gain something from the other. It is not gratuitous; it is methodical. One party suffers detriment in the precise proportion that the other obtains benefit. And there are no flaws in the bargaining process: The law presumes that both parties are rational, shrewd, cynical businessmen who know all the risks before committing to do something. Thus, neither can complain when something goes awry: After all, when two rational, equal adults bargain for something, they have a right to delineate who bears the risk if it does not work out.

But does this sound like commercial reality? Certainly not. In most commercial exchanges, parties are not equal. One party inevitably has more money and power than the other. As a result, the stronger party can leverage his strength to foist more risk and burden on the weaker party. After all, the weaker party needs what the stronger party has. So what authority does the weak party have to influence the bargain? He can take it or leave it. If he leaves it, he does not get what he needs. That is commercial reality: A perennial Hobson's choice. The legal myth of "equal exchange between equal bargainers" is a tiny exception to the rule: Unequal, unfair exchange between parties with gross disparities in power.

I always marvel at inconsistencies between legal myths and practical realities. They always reveal a tension between theoretical aspirations and cruel commerce. After all, theory and reality follow different paths. Just because something exists in theory--as it may in legal doctrine--does not mean that it exists in reality. Theory is just an overlay. Theory concerns objective abstractions; as long as a situation exhibits a few technical requirements, it is "so." But practice is more fluid. It does not restrict itself to formulae or aspirations. In practice, the only inquiry is: "Does it work?" If it works in accordance with principle, fine. If not, no big deal.

In most cases, people just want things to work. That is certainly true in commerce. It is one thing to strike a technically enforceable contract. It is quite another to strike a just one. After all, practical realities reflect existing power structures. Things "work" when they please those who have power. Contracts are usually unfair because they work best when they are unfair. The strong offer terms to the weak in a manner that satisfies legal requirements. As a practical matter, they maintain the unequal relationship. The law has nothing to say about that. And that suits the strong just fine.

On some level, everyone knows this. Everyone suspects that contracts somehow "screw them over." They do not exactly know how. They just know that if the other guy does not deliver, they will have no recourse against him. But if you do something wrong--or if something unforeseeable happens--he will have recourse against you. This is why everyone fears "fine print." It is as if everyone who signs a contract resigns himself to the idea that the bargain is one-sided. They know the "fine print" will work against them when push comes to shove. They just hope it doesn't come to that.

So much for equality in bargaining: Everyone who signs a contract knows that he is subjecting himself to the other's unlimited authority. He doesn't even know how much power he's giving the other guy. He just knows the "fine print" gives the other guy license to do almost anything to him.

I see support for my analysis everywhere. Just yesterday, for instance, I watched a clip from the 1998 movie "Player's Club." In it, Bernie Mac plays a sleazy strip club owner named Dollar Bill. In one scene, his DJ (Jamie Foxx) enters his office to complain about how much money he has to forfeit from his paycheck every week. Bernie Mac looks him straight in the eye and says: "I got a contract between me and you that says you do what I tell you to do. Therefore, shut the fuck up. Don't say nothing, don't speak to me, don't look at me."

That concludes the negotiation. Bernie Mac is the employer with power. Jamie Foxx is the employee without it. The contract symbolizes their unequal relationship. It embodies a fundamental disparity in power. By law, it allows the strong party to tyrannize the weak one; it even allows him to silence the weak one when he complains about the terms. True, the weak party can walk away from the deal. But what if he has mouths to feed? Another Hobson's choice.

These are the practical realities. There is no "equal exchange" between "equal partners" in most commercial relationships. Rather, in most cases, the result is more like the exchange in "Player's Club": One party needs a job and a paycheck; another offers a job and paycheck in return for the power to dictate all the terms and control the employee's conduct. As a practical matter, contracts grant power to one party while subjecting the other to the same power. They generally operate in one direction. And if the weak party complains, the strong party just has to whip out the contract and explain why he has the legal authority to do what he is doing. If there's a dispute, the strong party wins. That's practical reality.

I mention all this because it coincides with my weekly motif concerning employment in the United States. Contracts perpetuate the "Myth of Employment in America" by granting legal authority to strong parties to dominate weak ones. Employment "terms" in America are rarely equal. And they certainly do not reflect full and fair bargaining between two evenly-matched commercial entities. Rather, a weak party needs a paycheck. A strong party offers one; and that gives him the right to dominate the weak party's life in exchange for almost nothing.

According to the law, contracts reflect equality. But practical realities paint a vastly different picture. When it comes to contracts, there is a disparity between law and reality. The real questions are: Who wants what; who's giving it; and who gets to say who does what in exchange for it. Those questions are invitations to tyranny. And when private employers operate under the "profit principle," do you really think they will treat employees in a way that threatens their bottom lines? Certainly not: And that is exactly why contract law allows them to function as they do.

So to all the employees out there who are disgruntled with their lot: "Shut the fuck up, don't say nothing. Don't speak to me, don't look at me."

You signed it. You wanted it (kind of). So live with it.

Go ahead and leave. Think you'll be able to pay your rent if you do? It's your choice.

That's not just practical reality. That's commercial reality, too. It's not a fair game.

GAMBLING ON HAPPINESS : LOVE, KNOWLEDGE AND RISK

AN ESSAY

For three years, my close friend Joe Simeone composed an operatic adaptation to the 1952 play "Dial M For Murder." Last week, I attended an opening in which he presented several passages from his work. In brief, the opera follows the same intricate plot as the play: A man named Tony blackmails both his wealthy wife, Margot, and another man named Lesgate; Tony exploits the blackmail to entice Lesgate to murder his wife; the plan goes wrong and Margot kills Lesgate in self-defense; Tony manipulates the evidence to pin the murder on Margot; the police arrest Margot and she is sentenced to death; an enterprising police detective worries about the verdict and discovers that Tony orchestrated the result; Margot goes free and discovers her husband's betrayal.

Through the operatic form, Joe Simeone tells the story with a keener eye for emotion than plot. He did not compose an "operatic thriller;" he composed an opera. As such, he explores the emotional relationship between Tony and Margot with greater detail than the play. At the outset, Simeone tells us that Tony's and Margot's marriage was "loveless," but that Tony had recently begun to shower affections on his wife. To make that point, the opera begins with a sweeping aria in which Margot reveals that she has "rediscovered" her love for her husband. This is ironic, of course, because Tony has already betrayed her; he is even planning to kill her. During the aria, Margot sings a remarkable line: "It's a risk to believe love is real."

Margot may seem naïve for daring to believe that her devious husband actually loves her. But she is not alone. We all want love in our lives because love is a tantalizing pathway to happiness. Yet love is a troublesome thing because it cuts in two directions. We can love and we can be loved. Real happiness exists only when both elements find expression in a relationship. When only one person loves, the result is unrequited disappointment because the other does not return the feeling. And when only one person receives love, the result is awkward discomfort. Put another way, love only really "works" when there is no disparity between the emotions on both sides.

Sigmund Freud said as much. In Civilization and its Discontents, Freud explained that human beings generally "strive after happiness; they want to become happy and remain so." Civilization and its Discontents (Strachey, trans. p. 25). He went on to explain that happiness has both a "positive and negative aim," namely: "[the] absence of pain and unpleasure and the experiencing of strong feelings of pleasure." Id. Additionally, Freud noted that happiness cannot arise as long as unhappiness exists in a person's life. And unhappiness is "much less difficult to experience" than happiness. Id. at 26.

Freud identified three main sources for unhappiness: (1) our own bodies, which are doomed to aging, pain, discomfort and decay; (2) the external world, which can "rage against us with unimaginable forces of destruction;" and (3) our relations to other men. Civilization and its Discontents at p.26. He went on to say that unhappiness flowing from our "relations to other men" represents the worst possible unhappiness: It is the unhappiness of betrayal, deception, unfaithfulness, personal disappointment, spurned love, heartbreak, frustrated yearning and all the other bitter emotions that arise when our relations with others do not follow the path we wanted.

If so much unhappiness can flow from relationships with others, why do people bother with them? Freud posed the same question. He offered one surefire way to avoid "relationship unhappiness:" "Against the suffering which may come upon one from human relationships the readiest safeguard is voluntary isolation." Civilization and its Discontents at p. 27. He called this the "happiness of quietness." By eliminating a source for unhappiness, a person makes it easier to experience happiness.

But Freud acknowledged that "voluntary isolation" is not very satisfying. After all, mere freedom from unhappiness is nowhere near as fulfilling as experiencing positive happiness. For that reason, Freud explained that human beings constantly gamble on love to satisfy their "passionate striving for a positive fulfillment of happiness." Civilization and its Discontents at p. 32.

Put another way, freedom from unhappiness and pain is not enough. People want the ecstasy and joy that flows from real, positive happiness. And positive happiness flows most strongly from that most dangerous category: Relations with other men. Still, the potential emotional payout from love is so great that people all too willingly take their chances with it. Nonetheless, Freud warned: "The weak side of this technique is easy to see; otherwise no human being would have thought of abandoning this path to happiness for any other. It is that we are never so defenseless against suffering as when we love, never so helplessly unhappy as when we have lost our loved object or its love." Id. at 33.

Against this background, Margot sang more than she knew when she observed: "It's a risk to believe love is real." Love is an extremely dangerous risk. When a person dares to abandon himself to love, he makes himself "defenseless against suffering;" he even risks "helpless unhappiness" if he does not get the emotional payout he expects from the relationship. Worse, these unhappy results depend exclusively on "relations to other men." Specifically, the "love pathway to happiness" depends on how another person acts and feels. We humans are subjective creatures. We know only what we sense. Facts exist only to the extent that we manifest a subjective belief in their reliability. In that light, it is very difficult to gauge whether another person feels any emotion as we do, let alone love.

Beyond risk, love is about knowledge. Freud said that love has two components: Loving and being loved. We only feel love's joy when we know another person feels strongly about us, too. It is not enough to feel strongly about another person. Rather, love's intoxicating pleasure only really arises when we are satisfied that another person feels as strongly about us as we do about them.

But how do we know that? It is hard enough to know what exists in anyone else's mind. Yet when we risk our happiness on love, we force ourselves to decipher what another person feels and thinks. This is extremely difficult; in fact, it is nearly impossible. There is no way to know for certain whether another person loves us, because we cannot literally step into that person's mind. Rather, we must examine secondary facts to make inferences about the other person's beliefs. This is an imperfect method at best, but it is the only one we have. Even direct statements from our love interest are not definitive proof of what he feels. Humans are, after all, infamously dishonest.

In this light, it is easy to see that love is no easy thing. It does not just a risk; it demands some faith, too, because the facts necessary to establish love are unknowable.

Again, the question arises: With these thematic difficulties in mind, why bother with love? Consider just how much is at stake. By daring to love, a person opens himself to boundless unhappiness and pain flowing from "relations to other men." True, if his love pans out, he feels overwhelmingly positive emotions: That is the potential payout from the "risk." But in order to experience love, a person must satisfy himself that another person feels a certain way. It is impossible to certainly know what another person feels, so love actually involves a double risk: (1) Risking the relationship in the first place; and (2) Risking that a person will feel the way you expect. Disappointment can arise from either risk. There is nothing you can really do to stop it; you can't control how another person thinks or feels. In this sense, love is also a risk because a person must entrust his happiness to the subjective whim of another person over whom he has no control. And because human beings are notoriously untrustworthy and inconstant, it almost seems an unreasonable risk.

If love is so unreasonable, then why do so many people pursue it? The fact that human beings--like Margot--blindly risk love is testament to the assertion that reason does not rule us. If human beings were entirely rational, they would probably never love. After all, rational thinking involves balancing risks against benefits. A rational mind analyzes the potential pain that could result from a transaction and queries whether the potential pleasure is worth the chance. As Freud explained, love can yield immeasurable pain. And because that pain flows from forces largely beyond our control (i.e., the whims of others), it really makes no rational sense to take the risk. Although love offers a huge benefit in pleasure, a reasonable man would immediately see that it always presents an intolerable risk in pain. That risk would invariably outweigh the benefit in pleasure.

But we know that human beings live to love. They cast reason aside. They take the risk, even though it is unreasonable. Put simply, love's emotional payout in happiness is so intoxicating that it overwhelms human reason. Love's pleasure is so hypnotic that it submerges all potential pitfalls. Among those pitfalls is the dangerous need to place individual emotional well-being in the hands of another person--and that person is probably not trustworthy. Men ignore those risks when they love because it just feels so, so good. If reason held men in check, they would never allow themselves to remain blind to the dangers. But blind they remain; they dive headlong into the risks because it just feels so damn good.

"It's a risk to believe love is real." In one line, Margot expressed the timeless--yet perilously uncertain-- human quest for love. She hinted at the risks. She knew there was a danger. But love made her feel so good that she willingly blinded herself to it. She suspended her reason. Objectively, that might appear foolish. But we all have done it. And we probably always will. Love is never objective.

In short, we all desperately want positive happiness. We are not content with the "happiness of quietness." No, we crave "relations with other men." We gamble on positive happiness by playing familiar games. Those games are rarely reasonable. In fact, most are extremely dangerous.

Love is probably the most dangerous game of all: Enticing, risky, unknowable, unverifiable, tempestuous, fickle, maddening; yet offering pleasure beyond imagination. It is a recipe for unreasonable risk every time.

EMPLOYEEBUILDER®

At Reason, Commerce, Justice & Free Beer, we want to help you get a job. In recent months, the employment market has collapsed. Many people have no work. Many people struggle to pay their bills. Even educated young people have difficulty finding employment in their chosen fields. There simply is not enough money to pay them. Employers have a difficult choice: Either hire employees and cut down on profits, or "minimize" employees to increase profits. In the spirit of American enterprise, we cannot fault employers for choosing the latter course.

This year, we watched two presidential candidates tell us that "creating jobs" is a top priority in America. We agree. At Reason, Commerce, Justice & Free Beer, we believe that America thrives in a culture of employment. In a culture of employment, everyone knows their place. There are employers and employees. There are wage-payors and wage-earners. There is labor and compensation. Employees enrich their employers, making them happy. At the same time, employers compensate their employees, making them happy. Happiness is a question of degree, depending on whether a person is an employer or an employee. For the employer, happiness comes from gross profits totaling $4,400,000 this year as opposed to $4,121,000 last year. For the employee, happiness comes from receiving $28,150 in wages, less taxes, plus a $750 Christmas bonus, less taxes, compared to a mere $450 Christmas bonus last year, also less taxes. Happiness is relative. Everyone is different. Everyone has a different income.

But America faces a problem: Not enough people live in the culture of employment. In these dark economic times, America has lost jobs, not created them. The candidates spoke about job creation. How do we create a job? It sounds simpler than it actually is. A "job" represents a major capital investment. In lean economic times like these, it is difficult to convince those with capital to spend money on something so unpredictable as a person. Yet this is what we must do in order to "create jobs." Employers must have more money to spend.

At Reason, Commerce, Justice & Free Beer, we want to make sure that employers have all the money they need to secure every American a place in the culture of employment. To that end, today we will begin publishing materials in a new series called EMPLOYEEBUILDER®. We want our readers to know what employers want in their employees. We want to clear the air. We want to take the confusion and frustration out of your job search by telling you precisely what employers want in their employees. As the title says, we want to help build employees. To build a machine, you need to know which parts to use. We are confident that our articles will help make you into a finely-tuned employment machine. We are confident that you will scrap all your inefficient parts and retain only the useful ones. After all, as we said, employers are not happy about investing capital in risky ventures like people. But if you build yourself into a superior employment machine, any investor will jump at the chance to pour money into you.

To help you in your quest for employment, we will publish articles from leading employers about the employment characteristics they seek. By reading articles straight from the men who may hire you, you can tailor yourself directly to their requirements. In short, you will "build" yourself as an employee. If you build yourself according to employers' specifications, you will find yourself employed, paid and happy. We hope that you enjoy--and use--the resources we provide in our EMPLOYEEBUILDER® series. Good luck in your job search!


EMPLOYABILITY CRITERIA FOR CORPORATE POSITIONS IN THE 21st CENTURY

By : Ms. Nadia F. Courtney, Placement Coordinator & Human Resources Team Initiative Management Director (Unmarried, Age 29) for Chase Bank, N.A.

Applicants to corporate positions need to show dedication to the employer's mission. We recognize that you may not have practical experience in our precise line of work. But you can still win employment if you meet some very straightforward criteria. Obviously you will begin the process by sending a resume and cover letter. Your resume will count for very little in our consideration. Essentially, we will use it to update your contact information and to see whether you attended a respectable school. Still, just because we look to see whether you attended a respectable school does not mean we care whether you did well. Academic success damages your prospective employability; it does not enhance it. Contrary to popular belief, intelligence and insight do not make a good employee. Much the opposite: Intelligence and insight often undermine singular dedication to the employer's mission. In that light, we urge high-performing students not to assume that their stellar grades will automatically land them a job. Snotty "lone wolves" never succeed. We are looking for "team players." Put generally, lower intelligence and group-oriented thinking much better suit our purposes.

Below, we print key employability criteria for the 21st Century. If you meet these criteria, you can be confident that an employer will hire you. Employees are risky investments. Employers--like all investors--will do their homework to minimize potential risks before committing their money to your wages. True, a good employee makes untold profit for minimal investment. But a bad one can rapidly turn into a money sieve. Please study these criteria carefully. They should guide your job search. If you do not meet them, make improvement so you do. You can build yourself into an employee. Just follow the list.

1. Employees must be between the ages of 21 and 30. Individuals over age 30 tend to have non-work-related commitments that interfere dramatically with workplace responsibility.

2. Employees must be unmarried. Employees with long-term relationships deserve special scrutiny due to the risk of outside emotional commitment that can distract from workplace efficiency.

3. Employees must have no children. Children represent a fundamental commitment of time. This presents an insuperable conflict between the employer's demand for time and the child's upbringing. Employers deserve all your time. Children make it impossible for you to give it to them.

4. Employees must have their own health insurance. Employer-paid health plans cripple profit margins by increasing operating costs. New employees need to buy their own insurance. This is not a cost employers should bear, even if employment leads to increased risks of illness and injury.

5. Employees must never make personal telephone calls or step outside for lunch. Dedication to the employer's mission requires undivided attention. Breaking your focus with banter and meals hurts the man who pays your wages. If you need to eat, bring a bag lunch and eat at your desk--on your own time.

6. Employees with team sports experience deserve special consideration. Modern business is all about teamwork. Success depends on everyone playing their position. Employees who know how to play as a team contribute best to the employment mission. On the contrary, those without team experience put their own ideas before the employer's mission. That is unacceptable.

7. Employees must possess the minimum intelligence necessary to understand employer jargon. Every employer has his own language. Employees must adapt to it quickly. For example, employees must know the meaning of such sentences as: "Fall '08 Coordination Team Management Diversity Initiative Program - Q3."

8. Employees must always be available for overtime work, at no additional compensation. Modern business does not stop at 5 PM, Monday through Friday. Dedication to employer success requires that all employees be prepared to "pitch in" during evenings, nights, weekends, holidays and sick days. The best employees do this cheerfully. No one wins when employees grumble about having to miss the football game on Sunday afternoon.

9. Employees must possess technical skills, such as typing, photocopying, sending faxes, answering telephones, taking notes, operating a computer, sending email, using a calculator, writing with a pen and reading a clock.

10. Employees must never complain. Complaining injures workplace morale, hampering productivity for all. Employers would not have invested money in your wages if they knew you would be ungrateful for the opportunities they offer.

11. Employees must be relatively superficial, obedient, subservient, boring, one-dimensional and tireless. The best employees do not discuss matters beyond those necessary to complete their daily tasks. They do what they are told without complaint the first time. They respect their superiors and they do not ever get tired while on the job. They show up on-time every day and answer the phone with a standard greeting. The best employees are grateful for their jobs. And their work reflects their gratitude.

12. Employees must be relatively good-looking. Employers typically deal with outside customers. Outside customers occasionally encounter employees. When they do, they deserve to see relatively good-looking faces. Good-looking female employees may even be asked to accompany senior managers to client meetings or to perform other business-building initiatives.

13. Employees must be loyal. No one likes a two-face. Employees must never betray employer information to competitors for any purpose whatsoever. Disloyal employees will be fired immediately. Governmental authorities will also be notified. Employees must simply remember who is paying their bills. That should keep their loyalties intact.

14. Employees must be rather stupid and unsophisticated. Stupidity and unsophistication increase the potential for loyalty and dedication to the employer's mission. Stupid and unreflecting employees tend to accomplish employer goals more readily than intelligent or analytical employees. An employee must be intelligent enough to possess the technical skills needed to do the job; any surplus intelligence will be counted against him.

15. Employees must wear standard attire, even during time off. Respect for the employer's mission requires close-knit esprit de corps. Uniform clothing creates pride in the employer's work and a sense of group belonging. Good employees are grateful for their jobs and wages. To that extent, they should wear clothing that bears the employer's name even during time off.

16. Employees must have relatively decent hygiene. Smelly applicants will not be considered.

Good luck. If you can fulfill these criteria, you can be confident that you will obtain employment. Please note that these criteria apply to high-level applicants. Lesser standards may apply for those seeking less challenging work.