Stuck in the Old Country

Hanna Rosin’s new book The End of Men–a shorter version of which I read in The Atlantic two years ago–theorizes why women are out-performing men in various economic and employment categories. A recent NYTimes column by David Brooks provides a brief overview of the facts:

In elementary and high school, male academic performance is lagging. Boys earn three-quarters of the D’s and F’s. By college, men are clearly behind. Only 40 percent of bachelor’s degrees go to men, along with 40 percent of master’s degrees.

Thanks to their lower skills, men are dropping out of the labor force. In 1954, 96 percent of the American men between the ages of 25 and 54 worked. Today, that number is down to 80 percent.

Why? Here is Brooks’ brief summary of Rosin’s thesis:

Women . . . are like immigrants who have moved to a new country. They see a new social context, and they flexibly adapt to new circumstances. Men are like immigrants who have physically moved to a new country but who have kept their minds in the old one. They speak the old language. They follow the old mores. Men are more likely to be rigid; women are more fluid.

This theory has less to do with innate traits and more to do with social position. When there’s big social change, the people who were on the top of the old order are bound to cling to the old ways. The people who were on the bottom are bound to experience a burst of energy. They’re going to explore their new surroundings more enthusiastically.

My unscientific anecdotal experience is that female students constitute about 60-75% of my office visits, send about 60% of the emails I receive with questions about course material, and are more receptive to seeking advice about how to improve their course performance.

Challenging Legality of Internships

In class a few days ago we discussed that many–or most–unpaid internships the college students use to pad enhance their resumes fail to satisfy the U.S. Department of Labor’s criteria for unpaid trainee positions and should therefore be compensated positions. (For background see here, here, and here.) Almost all students who spoke on the topic agreed the system was exploitative but they were willing exploitees, willing to work for free to get the company’s name on their resumes. There was no Norma Rae ‘”Union” moment. While one student was sharply critical of these practices most accepted it without complaint and, indeed, with little apparent recognition of why I would raise it as an issue–a small reminder of the differences between students today and my college classmates. Talking about this at dinner a few nights later a friend noted that the reaction likely would have been different at, say, Bunker Hill Community College, where many students could not afford a summer of unpaid work. She noted that some interns have sued over internships that did not provide bona fide educational experiences and expected companies would soon change their internships practices. Based on my students’ passive acceptance of the way things are I don’t share her belief in the imminence or inevitability of change. Unless the change that occurs is revision of the Department of Labor’s rule to ratify most current practices.

If You Post It, They Will Come

This Forbes article’s title sums up its content: What Employers Are Thinking When They Look at Your Facebook Page. It includes a score sheet of “Five Big Qualities” used to rank college students based on information revealed on Facebook. (I hope whoever named it Five Big Qualities does not plan a marketing career): Extroversion, Agreeableness, Conscientiousness, Neurotocism, Openness to Experience. I’m most interested in the view of privacy expressed in a quotation from someone who opposes using Facebook in this way: “In my opinion you have no more business examining my Facebook entries than you would crashing a private cocktail party.” If a simple search allows me to read your Facebook entries then an apter analogy is  ” . . . than you would watching a cocktail party held outside in Central Park in the middle of the afternoon.” People can wring their hands over the appropriateness of winnowing candidates through social media postings, but if it can be found by a simple search, it will be used.

Putting the J.D. to Good Use

Disgruntled law school graduates recently filed a fresh round of lawsuits claiming their schools misrepresented employment statistics for their graduates. (See this post about similar suits filed last summer.) The suits allege the law schools failed to disclose that the employment numbers for recent graduates included (1) jobs for which a law degree is not required (although venti half-caf mocha no whip almost sounds like Latin) and (2) temporary jobs–including jobs created by law schools–that lasted long enough to be included in the post-graduate employment statistics. They also claim the schools misrepresented recent graduates’ starting salaries, data on which I posted about here. According to the Wall Street Journal article linked above,

The employment rate for new graduates last year was 87.6%, the lowest it has been since 1996, according to the National Association for Law Placement’s report on employment and salary for the class of 2010. But only 68.4% had jobs that required passage of the bar exam, and nearly 27% of jobs reported were classified as temporary . . . The lawsuits allege the percentage of graduates working full-time in the legal profession may be as low as 60%. (emphasis mine)

Again according to the Journal, the defendant schools–“selected in part because of their location in large cities ‘with a massive oversupply of lawyers,’ where lower-tier graduates are less likely to be competitive in the job market–include:

  • Albany Law School
  • Brooklyn Law School
  • Maurice A. Deane School of Law at Hofstra University
  • Widener University School of Law
  • Florida Coastal School of Law
  • Chicago-Kent College of Law
  • DePaul University College of Law
  • John Marshall Law School, and
  • Golden Gate University School of Law

Non-U.S. View of Workplace Privacy

In the typical U.S. workplace the employer owns the computer network, which it supplies to employees exclusively or primarily for work-related purposes. Employees generally receive little privacy protection in their workplace email and Internet activity. This article from The Privacy Advisor discusses a recent decision by the Israeli National Labor Court that expands employee privacy in the workplace and establishes a nuanced framework to guide future cases. The article’s author says the decision demonstrates “a general trend of increased sensitivity by the courts outside the U.S. to e-mail privacy.” The decision obviously does not bind any U.S. court, but it does provide a lens through which to evaluate our blunt-instrument approach to these issues.

While not long the article’s description of the National Labor Court decision contains too much information to describe here in detail. Briefly, the decision defines four different types of employee mailboxes and establishes monitoring and reviewing rules for each: “‘professional mailbox[es]’  . . . provided by employers for professional purposes only,” “‘mixed mailbox[es]’ . . . provided by the employer for both professional and personal purposes, ” “employer-provided personal mailbox[es],” and “employees’ private mailbox[es].”  Employers must inform employees of their limited rights to use professional mailboxes and employers right to monitor such mailboxes, must obtain employees’ general consent to monitor such mailboxes, and yet “is nevertheless prevented from reviewing [professional mailboxes’] content without the employee’s specific consent,” even though “the employee is not authorized to engage in [personal] correspondence.” In contrast, U.S. law does not constrain employers’ rights to review the contents of such professional mailboxes. The decision imposes greater restrictions on employers’ power to monitor and review the contents of the other types of mailboxes, ending here: ‘[m]onitoring of [] private mailbox[es] by the employer is prohibited without a court order.”

We will see whether U.S. courts join this general trend.

Carrots and Sticks

My posting is tardy but the New York Times article titled “The Smokers’ Surcharge” appeared a day after we discussed the legality of an employer terminating all employees who smoked cigarettes. The Times article focuses on insurance-premium surcharges, not termination, noting that “[m]ore and more employers are demanding that workers who smoke, are overweight or have high cholesterol shoulder a greater share of their health care costs, a shift toward penalizing employees with unhealthy lifestyles rather than rewarding good habits.” The law encourages financial incentives to employee participation in wellness programs but some employers use other methods to modify employee behavior:

Current regulations allow companies to require workers who fail to meet specific standards to pay up to 20 percent of their insurance costs. The federal health care law raises that amount to 30 percent in 2014 and, potentially, to as much as half the cost of a policy.

When Wal-Mart Stores, the nation’s largest employer, recently sought the higher payments from some smokers, its decision was considered unusual, according to benefits experts. The amount, reaching $2,000 more than for nonsmokers, was much higher than surcharges of a few hundred dollars a year imposed by other employers on their smoking workers.

And the only way for Wal-Mart employees to avoid the surcharges was to attest that their doctor said it would be medically inadvisable or impossible to quit smoking. Other employers accept enrollment in tobacco cessation programs as an automatic waiver for surcharges.

“This is another example of where it’s not trying to create healthier options for people,” said Dan Schlademan, director of Making Change at Walmart, a union-backed campaign that is sharply critical of the company’s benefits. “It looks a lot more like cost-shifting.”

More on Legality of Internships

Here’s a link to a recent NPR story titled Unpaid Interns: Real World Work of Just Free Labor?  It’s timely because in last week’s class we discussed this very issue and because students are scrambling to line up next summer’s employment, paid or unpaid. (Thanks to SS for the article, and for great behind-the-scenes engagement and suggestions.)

Colleges and Internships

A few months ago I posted about the legality of internships, mentioning the U.S. Department of Labor’s Wage and Hour Division’s six criteria to classify a worker as an intern or employee under the Fair Labor Standards Act:

  • The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;
  • The training is for the benefit of the trainees;
  • The trainees do not displace regular employees, but work under their close observation;
  • The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;
  • The trainees are not necessarily entitled to a job at the conclusion of the training period; and
  • The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

The Times article and my post noted the exploitive nature and questioned the legality of ubiquitous unpaid internships.  Students believe they have no choice but to take unpaid internships for experience, to add a line to their resumes, to get a toehold with a prospective employer. The typical unpaid internship doesn’t appear to survive scrutiny using these criteria.  It is not similar to vocational or educational instruction. Interns often perform either routine clerical tasks that would otherwise be performed by paid employees or menial make-work tasks of little educational value.

That post was based on a 2 April 2010 NY Times article titled The Unpaid Intern, Legal or Not? Last Sunday–3 April 2011, a year and a day after the linked article–the Times ran an Op-Ed article titled Unpaid Interns, Complicit Colleges.  (The timing may be coincidence, or may reflect this issue appearing on the Times’ radar as students apply for summer positions.)  The article’s author, Ross Perlin, is the author of  “Intern Nation: How to Earn Nothing and Learn Little in the Brave New Economy.”  His article addresses how colleges enable such internships by providing course credit for them, thereby “helping companies skirt a nebulous area of labor law.”  He notes that “[e]mployers and their lawyers appear to believe that unpaid interns who get academic credit meet [the listed] criteria, but the law seems murky; the Labor Department has said that ‘academic credit alone does not guarantee that the employer is in compliance.’”  A group of university presidents has assured the Labor Department that their “‘institutions take great pains to ensure students are placed in secure and productive environments that further their education,’” but the reality may be different.  Only 30% of 700 colleges surveyed by the National Association of Colleges and Employers required that students obtain academic credit for unpaid internships. Charging students for such internship-related credit is, in Perlin’s words “a cheap way for universities to provide credit–cheaper than paying for faculty members, classrooms and equipment.”  Perlin asserts that the 70% of those surveyed who do not require students to obtain academic credit are “evidently . . . willing to overlook potential violations of labor law.”  He cites his interviews with college career centers which “flatly denied being able to ‘monitor and reassess’ all placements or even postings” as the group of university presidents claim they do.

Students’ acquiescence in this exploitive system does not make it palatable.  They have little choice but to acquiesce if they want something other than an entry-level service industry job.

Right to Review Applicants’ Facebook Pages?

The Baltimore Sun reports that when he reapplied for his former job 29-year old correctional officer Robert Collins was forced to divulge his Facebook password and “watch as his personal page and its postings were perused by an investigator.”  Collins considered this to invade his privacy and complained to the ACLU, which led to the Maryland Division of Corrections “backing off, saying it will suspend such demands for 45 days during a review of the matter.”

What will they learn in 45 days they don’t know now?  Maybe the DOC thinks that’s long enough for this issue to fall off the radar.

Should employers have the right to look at the Facebook posts, pages, and pictures of prospective employees?