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This is an example of regulating a poorly chosen proxy. If the issue is people getting fired for ignoring a message, make firing people for not being available

by jjk166 5y ago

This is an example of regulating a poorly chosen proxy. If the issue is people getting fired for ignoring a message, make firing people for not being available 24/7 illegal. There are plenty of reasons why after hours messages might be useful and no one really has a problem with them on their own, it's other behaviors which are loosely correlated with it which are the issue. Yes you will always have edge cases, but we should strive to minimize those edge cases as much as possible. In the particular situation of "some people prefer work schedules outside the standard 9-5" it's not even a small edge case, nor an unintuitive one.

crossroadsguy 5y ago
Some people would also prefer to drive on the other side of the road for their own legitimate concerns.
- jjk166 5y ago
  Driving on the wrong side of the road directly causes collisions. Would you rather A) ban driving on the wrong side of the road and thus stop unwanted behaviour or B) leave driving on the wrong side of the road legal but ban british people from driving because british drivers are correlated with driving on the other side of the road? Option A is a well chosen proxy, option B is the poorly chosen proxy I am arguing against.
gjulianm 5y ago
> If the issue is people getting fired for ignoring a message, make firing people for not being available 24/7 illegal. It's much more difficult to prove that a worker is being fired for not being available 24/7 when they company says they have other reasons, than to prove that your boss sent a message out of hours. Your proposal would be practically unenforceable.
- jjk166 5y ago
  It doesn't matter how easily something is measured if it's not a useful measure. The difficulty of enforcing wrongful termination laws in a "right to work" environment is a separate issue, solved by better standards of evidence with clear guidelines.
  - gjulianm 5y ago
    No standard of evidence will solve the fact that you can't ever know the true motives of someone. If someone gets fired because their boss says it was for poor performance, you won't ever know that the thing that the boss cared for was the fact that the employee didn't respond to some slack messages. Find just enough evidence for plausible deniability and you're done. Also, the difficulty of proving the causes of termination will mean that employees will be discouraged to sue. On the other hand, if you ban out-of-hours messages, it's pretty easy to prove you received that message, so it's much easier to enforce. This happens with a lot of similar issues. For example, in my country it's illegal to ask in interviews about family situation, pregnancy, religion... The point is to stop hiring discrimination, but it's much easier to prove that the employer asked me about whether I wanted to have kids than to prove that the employer rejected me because I want to have kids.
    - jjk166 5y ago
      You don't need to know the true motives of someone, you just need to evaluate the likely motives of someone. If a boss says the employee performed poorly, let them show the performance metric by which they determined that poor performance. If it's "monthly sales numbers" and the employee is substantially below average, that seems reasonable. If its "average message response time" then it's an open and shut case. If the employer just says some vague "they weren't doing a good job" but can present no evidence in support of that statement while the employee can show evidence of the boss expecting 24/7 communication, a reasonable person ought to conclude that was a major factor in the decision. The issue is that, because of poor standards of evidence and guidelines, employers are often given an immense benefit of the doubt and employees are hamstrung by dumb rules, allowing courts to do mental gymnastics to say that the employer who fired their best salesperson after they whistleblew because they wore an ugly tie on a tuesday and for no other reason. Yeah, you can avoid that issue in certain cases with a proxy, but sooner or later you just need to fix it. If your goal was simply to make the most easily enforceable law, why go through all the trouble of getting records of after hours messages? Why not just ban the use of instant messaging altogether. Or work email. Or employment. You will instantly stop 100% of employee abuse. Of course this is a facetious statement, we don't want to stop employment, or communication, these things are useful and desirable. We want to do minimal harm while preventing egregious abuse. I think the restriction on interview questions is also an example of a poorly chosen proxy, but at least in that case there is no legitimate reason to ask those questions - you shouldn't be making hiring decisions off those criteria, there should be no need for that information during the hiring process. But if you come into the interview and are visibly pregnant, that protection doesn't do shit for you, because the issue isn't them asking questions. If you have a system in place good enough to prevent a visibly pregnant woman from being discriminated against, you don't need to prevent questions about pregnancy.
6510 5y ago
You are not fired for that, you are fired for responding slower than the other candidate. Employers have to chose all the time. Who to promote? Who gets the shit task? Who will fly to the tropical resort? You end up with millions of individual struggles with boundaries set by need/urgency, ability to say no, how much of a dick the boss is etc etc In NL we have some law for a sector where people need to sleep on their shift while still on call. They get some small hourly compensation for those hours. When called their normal shift starts which has a minimum duration. After working for the maximum number of hours per day/week someone else will have to take over. Perhaps an exception like that could work. Something like 25% of the normal hourly rate for being available. (for example 4 hours after each shift (20h) and 12 hours in the weekend (24h) for 12 hours extra pay) When called it is considered a minimum duration shift of 3 hours, hours beyond 8 or after 18:00 at overtime rate. The 3 hours are removed starting with the last work day of the week and the first of the next.
- jjk166 5y ago
  This is not a situation unique to after hours messages. The workplace is full of instances where an employer can discriminate against an employee in small but meaningful ways, you need robust employee protections, not a series of questionable legal hacks. Replace responding slower with say being a different skin color. If a white and a black employee are equal on meaningful metrics but one gets to go on all the fun trips while the other is consistently given the shit tasks, that's obviously a problem, but you can't simply avoid the situation where the problem might present itself. You need structures in place so that employees can identify that they're being mistreated, notify someone with the power to fix the situation, confirm that the problem has actually been solved, and escalate if not; all without fear of retaliation. That is tough to do, but it doesn't make it any less necessary. Once you have that system in place, it is the logical way to deal with all forms of mistreatment. Then there is no need for special exceptions which substitute one rigid restriction for another.

by jjk166 5y ago

crossroadsguy 5y ago

Some people would also prefer to drive on the other side of the road for their own legitimate concerns.

jjk166 5y ago
Driving on the wrong side of the road directly causes collisions. Would you rather A) ban driving on the wrong side of the road and thus stop unwanted behaviour or B) leave driving on the wrong side of the road legal but ban british people from driving because british drivers are correlated with driving on the other side of the road? Option A is a well chosen proxy, option B is the poorly chosen proxy I am arguing against.

gjulianm 5y ago

> If the issue is people getting fired for ignoring a message, make firing people for not being available 24/7 illegal. It's much more difficult to prove that a worker is being fired for not being available 24/7 when they company says they have other reasons, than to prove that your boss sent a message out of hours. Your proposal would be practically unenforceable.

jjk166 5y ago
It doesn't matter how easily something is measured if it's not a useful measure. The difficulty of enforcing wrongful termination laws in a "right to work" environment is a separate issue, solved by better standards of evidence with clear guidelines.
- gjulianm 5y ago
  No standard of evidence will solve the fact that you can't ever know the true motives of someone. If someone gets fired because their boss says it was for poor performance, you won't ever know that the thing that the boss cared for was the fact that the employee didn't respond to some slack messages. Find just enough evidence for plausible deniability and you're done. Also, the difficulty of proving the causes of termination will mean that employees will be discouraged to sue. On the other hand, if you ban out-of-hours messages, it's pretty easy to prove you received that message, so it's much easier to enforce. This happens with a lot of similar issues. For example, in my country it's illegal to ask in interviews about family situation, pregnancy, religion... The point is to stop hiring discrimination, but it's much easier to prove that the employer asked me about whether I wanted to have kids than to prove that the employer rejected me because I want to have kids.
  - jjk166 5y ago
    You don't need to know the true motives of someone, you just need to evaluate the likely motives of someone. If a boss says the employee performed poorly, let them show the performance metric by which they determined that poor performance. If it's "monthly sales numbers" and the employee is substantially below average, that seems reasonable. If its "average message response time" then it's an open and shut case. If the employer just says some vague "they weren't doing a good job" but can present no evidence in support of that statement while the employee can show evidence of the boss expecting 24/7 communication, a reasonable person ought to conclude that was a major factor in the decision. The issue is that, because of poor standards of evidence and guidelines, employers are often given an immense benefit of the doubt and employees are hamstrung by dumb rules, allowing courts to do mental gymnastics to say that the employer who fired their best salesperson after they whistleblew because they wore an ugly tie on a tuesday and for no other reason. Yeah, you can avoid that issue in certain cases with a proxy, but sooner or later you just need to fix it. If your goal was simply to make the most easily enforceable law, why go through all the trouble of getting records of after hours messages? Why not just ban the use of instant messaging altogether. Or work email. Or employment. You will instantly stop 100% of employee abuse. Of course this is a facetious statement, we don't want to stop employment, or communication, these things are useful and desirable. We want to do minimal harm while preventing egregious abuse. I think the restriction on interview questions is also an example of a poorly chosen proxy, but at least in that case there is no legitimate reason to ask those questions - you shouldn't be making hiring decisions off those criteria, there should be no need for that information during the hiring process. But if you come into the interview and are visibly pregnant, that protection doesn't do shit for you, because the issue isn't them asking questions. If you have a system in place good enough to prevent a visibly pregnant woman from being discriminated against, you don't need to prevent questions about pregnancy.

6510 5y ago

You are not fired for that, you are fired for responding slower than the other candidate. Employers have to chose all the time. Who to promote? Who gets the shit task? Who will fly to the tropical resort? You end up with millions of individual struggles with boundaries set by need/urgency, ability to say no, how much of a dick the boss is etc etc In NL we have some law for a sector where people need to sleep on their shift while still on call. They get some small hourly compensation for those hours. When called their normal shift starts which has a minimum duration. After working for the maximum number of hours per day/week someone else will have to take over. Perhaps an exception like that could work. Something like 25% of the normal hourly rate for being available. (for example 4 hours after each shift (20h) and 12 hours in the weekend (24h) for 12 hours extra pay) When called it is considered a minimum duration shift of 3 hours, hours beyond 8 or after 18:00 at overtime rate. The 3 hours are removed starting with the last work day of the week and the first of the next.

jjk166 5y ago
This is not a situation unique to after hours messages. The workplace is full of instances where an employer can discriminate against an employee in small but meaningful ways, you need robust employee protections, not a series of questionable legal hacks. Replace responding slower with say being a different skin color. If a white and a black employee are equal on meaningful metrics but one gets to go on all the fun trips while the other is consistently given the shit tasks, that's obviously a problem, but you can't simply avoid the situation where the problem might present itself. You need structures in place so that employees can identify that they're being mistreated, notify someone with the power to fix the situation, confirm that the problem has actually been solved, and escalate if not; all without fear of retaliation. That is tough to do, but it doesn't make it any less necessary. Once you have that system in place, it is the logical way to deal with all forms of mistreatment. Then there is no need for special exceptions which substitute one rigid restriction for another.