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List of statutory minimum employment leave by country
- duncan_bayne 16y agoUSA has 'none' ... which seems right, as I can't recall the Constitution authorising the Federal Government to mandate employment leave.
- devgeeks 16y agoInteresting. So is The Employee Retirement Income Security Act invalid then? It is federally mandated employee benefit legislation, no? -1
- deleted 16y ago[deleted]
- devgeeks 16y ago[EDITED: original comment deleted before I finished typing my response...]
- duncan_bayne 16y agoYes, and yes. If you don't think the ERISA is unconstitutional, then point to the relevant wording that you think gives the Federal Government the right to regulate employment agreements between private individuals.
- _delirium 16y agoIn the American system of government, the constitution isn't interpreted by random individuals voting on how they personally would read the text; it proceeds via caselaw and stare decisis. Since this particular issue was already litigated, ERISA is constitutional; since it was substantially litigated over 70 years ago (I'm not aware of any ERISA-specific controversy that wouldn't also apply to, say, the NLRB or Social Security), it's solidly constitutional. Among the current Supreme Court, possibly only Thomas thinks otherwise; not even Scalia believes that, say, Social Security is unconstitutional. Of course, if you're a historian you can argue over what a historical court should've ruled, but that's pretty irrelevant to the Constitution as a functioning legal document.
- lzw 16y agoWhat you describe is not the American system of government, nor the government as instituted by the constitution. The constitution is explicitly written such that every individual, "random" or not, is expected to enforce it. It is not a document that creates a government which is free to "interpret" it as is convenient to said government. The entire point of the revolution, and the extreme set of limitations put forth in the document was to prevent the government from having the power to interpret the document itself. The constitution does not give the supreme court the power to amend it via ruling or "precedent". The methods for amending the constitution are laid out in the document itself. Since the document does not give the federal government any power to regulate employment, these laws are unconstitutional. It doesn't matter what the supreme court says, as the supreme court is a group of political appointees beholden to the political establishment. IF the constitution is not a functioning legal document, then then it has no power. If it is a functioning legal document, then all these unconstitutional laws are actually null and void (as ruled in Maybury v. Madison) and anyone enforcing them is committing a crime. If it is your position that the existing government is not bound by the limitations of the constitution whenever it decides that it shouldn't be, then the government in question is not a constitutional government, and is, in fact, an occupying force with no legitimate authority. (not that the constitution was anything other than the result of an illegitimate coup in the first place, but for purposes of discussion, I'm granting that the constitution is legitimate.)
- avar 16y agoIt might not be how it was intended to work but it seems much closer to how it works today than what you describe. In practice the constitution in the US is interpreted by the elite, and a sufficiently dissenting view will earn you time in prison.
- anigbrowl 16y agoAbsurdity. The Supreme Court does not amend the Constitution when it rules, it interprets it in order to establish whether legislation is in conflict with it, or which state should prevail in an interstate dispute, and so forth. It most certainly does matter what the Supreme Court says about such matters, because the judicial power of the United States is vested in it and extends to all cases arising under the Constitution. Your view that the lack of any explicit mention of employment means that any federal laws regulating it are unconstitutional is widespread but self-contradictory. For one thing, employment is a fundamental part of commerce.
- wtallis 16y agoDo you think the Federal Government has the power to regulate the content of any kind of contract between individuals? Do you think the Federal Government should have the power to regulate the content of any kind of contract between individuals?
- devgeeks 16y agoI am finding it difficult to believe that I have been downvoted into troll-town for suggesting that legislation enacted by the Federal Government of the United States over the course of the last 62 years might NOT be unconstitutional. Some of which were contested and deemed constitutional by the Supreme Court (though not the one I mentioned as far as I am aware). Are people downvoting me because they hold an honest belief that the Federal Government of The United States is an illegitimate illegal entity backed by a corrupt Supreme Court? Just curious.
- anigbrowl 16y agoGood thing you don't work at DARPA.
- donohoe 16y agoIt doesn't say day anything about the Federal Gov not being able to either.
- jackowayed 16y agoIf you agree that it doesn't say the government can, then it can't by default. The Constitution specifically enumerates the classes of laws that Congress can pass. All other powers are reserved for the states. I'm not a strict constructionist by any means (and I'm personally glad that we've set some shady precedents of the Commerce Clause and Necessary & Proper Clause allowing practically anything), but the Constitution makes it clear that unless a power is specifically given to the Federal Government, the Federal Government can't do it.
- donohoe 16y agoYeah, that is true. However I am of the opinion that things like this are similar to minimum wage (which is also not mentioned in the Constitution) but can be mandated by Congress (though I could be wrong, is it done State by State?)
- jackowayed 16y agoThey have 2 options: * Be able to point to some part of the Constitution that says (either directly or indirectly) that Congress can pass the law * Coerce each state into passing the law, often by withholding funding from states that don't. This is how they raised the drinking age to 21, for example. Congress didn't pass a law saying "Persons under 21 may not drink", it passed a law saying "States that don't raise their drinking age to 21 will only get some percentage of the highway funding they would otherwise get." This method is very effective because federal grants make up about 25% of most states' budgets. But most laws are passed in the first way. Justification often comes from the Commerce Clause (which gives Congress the authority to regulate interstate commerce. But today, unlike in 1787, basically everything is interstate commerce if you think about it right.). Sometimes it also comes from the Neccessary & Proper (or Elastic) Clause, which says that Congress can pass any law that is "necessary and proper" for performing one of the other powers. It was basically there so that people wouldn't view the Constitution as listing the exact laws that Congress can be passed. For example, the Constitution never said "Congress may setup a national bank", but when people claimed that the law doing so was unconstitutional, Hamilton claimed that a national bank was necessary and proper for carrying out the powers of taxation and borrowing, which are given to Congress in the Constitution.
- keithwarren 16y agoWhy cant I upvote you twice!?!
- poet 16y agoWell, the 10th amendment lets any state mandate employment leave if it wants to right?
- keithwarren 16y agoAbsolutely they can, that is the beauty of America.
- _delirium 16y agoA lot of libertarians, interestingly, disagree on this point, though there's a split between the more pro-federalist and less federalist libertarians. Many of the less federalist ones, though, want to revive a stronger federal constitution that preempts state power, especially via reviving the substantive due process doctrine that Lochner used to find a federal "freedom of contract" that would override state labor laws (http://en.wikipedia.org/wiki/Lochner_v._New_York http://en.wikipedia.org/wiki/Lochner_v._New_York).
- lzw 16y agoI believe it is not so much that some libertarians are pro-federalist while others are less federalist. It is that most libertarians recognize that if the federal government was operating within the bounds of the constitution (that is, legally) then states would have much more power relatively, and that this is a good thing. All libertarians also, though, recognize that individual rights do exist, as this is the basis of libertarianism. The constitution doesn't create any rights, it only contains prohibitions on the trampling of various rights. The Preamble of the Bill of Rights makes this clear. According to the constitution, individual rights pre-exist the creation of the constitution, and the BoR is merely there to make doubly sure that the government knows it is not given license to violate them. Libertarians (generally) hold the view that the states do not have such a license either, as being rights, there is no situation (other than consensual explicit agreement) whereby they can be legitimately violated. So, Libertarians may disagree on whether the constitution is a good document or not, but generally agree that it would be a better government than we have now. To quote Lysander Spooner: Either the constitution has authorized the government we have now, or it has failed to prevent it. Like Lysander, I believe libertarians see the constitution as a failed document. I don't think there are Federalist libertarians-- in fact, calling someone a "hamiltonian" is an insult in some libertarian circles. (None of this is to say that you're wrong, but that you presented me an opportunity to expound on this since many people seem to be confused by libertarian positions. At worst I think you and I may disagree on semantics.)
- lukifer 16y agoIrrelevant. The Constitution is a living document, and we have the ability via representatives to rewrite the rules of our social contract, including Constitutional Amendments.
- loewenskind 16y agoSomeone needs to check the Constitution into Git so we can see how it's changing over time.
- shabda 16y agoYo. http://github.com/jcsalomon/constitution/tree/ http://github.com/jcsalomon/constitution/tree/
- loewenskind 16y agoThanks. Doesn't seem to be a complete history though, no?
- cperciva 16y agoThe situation is exactly the same in Canada -- this is an area of provincial responsibility -- but the table entry for Canada mentions that the minimums vary from 10-15 days + 5-10 statutory holidays. Do individual US states set minimums here? (I assume that if this isn't within the powers of the federal government, it's within the powers of individual state governments, right?)
- alaithea 16y agoAs an American who has lived in several states, I have never heard of a state that has minimum leave requirements. A Googling doesn't turn up anything. Anyone else out there know, or does the dearth of info indicate that the states really don't set minimum leave?
- jdietrich 16y agoI'm British, so please tolerate my ignorance for a moment. If I understand US law correctly, the constitution can be amended at will, through a process not exceptionally arduous - certainly more difficult than passing ordinary legislation, but not exceptionally so. Many other federal states have similarly strict requirements when passing federal legislation, but have gone as far as to rewrite their constitutions from scratch. If my understanding is correct, then what explains the US Constitution's position in political culture and discourse? I have been given the strong impression that the Constitution is regarded in many quarters as an immutable guarantee of basic freedoms or a fixed check on the powers of the state, but on a practical level it seems to be no such thing. There is a strong rhetoric in many quarters that if something is allowed or prohibited by the constitution then it is irrevocably and permanently allowed or prohibited, but the history of the document seems to contradict that. The eighteenth amendment was repealed, why not the tenth? If the sixteenth amendment empowered the federal government to collect taxes directly, what would preclude a twenty-eighth amendment from allowing it to impose basic rights for employees? It is my understanding that there is a federal minimum wage. Is this unconstitutional? If so, what real political significance does the constitution hold if it is so freely disregarded? Apologies to all for the barrage of questions, but I have done a reasonable amount of reading on the subject and am genuinely baffled by the almost mythical nature of the US constitution and the apparent gulf between perception and reality.
- Groxx 16y agoI'm American, so please tolerate my spelling of "gray". And my irritation at my own country's weirdness. And my skepticism. I'm at least as in-the-dark about this as you, though I highly suspect it's merely because people want it to be an immutable guarantee of basic freedoms, so they can point to it and say, "See? I'm right by this always-correct document". Every governing body wants something all-important they can point to, forever, to tell them what to do, and to blame if they later decide it's wrong. Until they don't want it to be. Then it's full of / seriously lacking some socio-political fad. Few attempting to change it progress past that stage, granted, and occasionally they are right in both uses, but it's far more often a legal weapon than it is a usable document.
- Zak 16y ago
- mhd 16y agoLots of other people commented on the fact that this could be changed, so I won't get into that – the fervor of state vs. federal debates in the US always surprises me, and I don't want to get shot at the next time I enter Ohio… But would you actually need to have constitutional amendments to do that? Let's say a court decides that not giving your employees leave would be abuse, wouldn't that create a de facto mandatory leave, as you could claim a precedence against contracts without such provisions? (Not a lawyer, not American, generally too naive in these matters, so be kind…)
- Gormo 16y agoBut what would be the basis in law for the court to make such a ruling?
- mhd 16y agoI would have said existing labor laws, but that's not exactly a strong suit for the US, right? No maximum work hours per week, no paid paternal leave etc. (FLSA?)
- yummyfajitas 16y agoThe scenario you describe is what is generally referred to as "judicial activism" - judges creating law from the bench rather than simply applying the law as written. It happens rather often in the US, and is strongly criticized (in some quarters) when it does.
- chc 16y agoA court could decide that, but unless the Supreme Court entirely ceased to do its job, the ruling would probably be reversed. Judges aren't allowed to make up laws.
- halostatue 16y agoIrrelevant. Individual states could do this and there's no constitutional violation. Canada is a federal system as well, which is why our minimum varies.
- rue 16y ago> USA has 'none' ... which seems right, as I can't recall the Constitution authorising the Federal Government to mandate employment leave. The United States is also bound by international treaties and agreements it enters into. Constitutionally. Especially important in this respect are human rights laws and their disposition toward employment.
- dalys 16y agoAlso, there's something strange with the USA row in this wikipedia article http://en.wikipedia.org/wiki/Parental_leave http://en.wikipedia.org/wiki/Parental_leave
- ajju 16y agoSomething else that puts this information in context is the number of public holidays and length of the workweek. Most white collar jobs in the U.S. are 5 days a week in the U.S. but 6 days a week in India, for example. Conversely, India has an amazing number of public holidays http://en.wikipedia.org/wiki/Public_holidays_in_India http://en.wikipedia.org/wiki/Public_holidays_in_India (although most employers will give only a subset of these off).