Seinfeld Redux

Thanks to the folks at American University Labor Law Forum for linking to my Seinfeld post.  They've got a good website over there and consistently put together a valuable publication.

With that encouragement, I'll note that since posting, a friend reminded me of The Race, Episode 96, where Kramer and Mickey take jobs as Santa and an elf at Coleman's Department Store.


Kramer complains to Mickey about the work:

KRAMER: Hey, Mickey when do we get a break? My lap is killing me.
MICKEY: There is no break.
KRAMER: This place is a sweat shop.

Elaine's communist boyfriend, Ned talks shop with Kramer while visiting the mall:

KRAMER: Eight hours of jingle belling and ho ho hoing. Boy, I am ho'd out.
NED: Anyone who works here is a sap.
[Mickey attacks Ned]
MICKEY: Watch it!
KRAMER: Whoa, whoa, come on.
NED: You understand the Santa's at Bloomfields are making double what you are?
KRAMER: Double?
NED: I bet the beard itches doesn't it?
KRAMER: You got that straight.
NED: So when you get a rash all over your face in January do you think Coleman's will be there with a medical plan?
MICKEY: Look, you take that commie crap out into the street.
NED: Kramer, I've got some literature in my car that will change your whole way of thinking.
KRAMER: Talk to me baby.
MICKEY: Don't listen to him Kramer, you've got a good job here.

Eventually, Kramer adopts Ned's communist views and tries to enlighten a young child.

KID: I want a racing car set.
KRAMER: Ho ho ho ho A racing car set! Those are assembled in Taiwan by kids like you. And these Coleman pigs, they sell it at triple the cost.
KID: But I want a racing car set.
KRAMER: You see kid, you're being bamboozled. These capitalist fat cats are inflating the profit margin and reducing your total number of toys.
KID: Hey, this guy's a COMMIE!
MICKEY: Hey, kid, quiet. Where did a nice little boy like you learn such a bad word like that? Huh?
KID: Commie, Commie, Commie . . . (unknown) .
MICKEY: Santa is not a Commie. He just forgot how his good friend stuck his neck out for him to get him a good job like this. Didn't he Santa!
STORE MANAGER: Is there a problem here?
KRAMER: ho ho ho ho.
KID: This guy's a Commie. He's spreading propaganda.
STORE MANAGER: Oh yeah? Well that's enough pinko! You're through. The both of ya'
MICKEY: I got two kids in college.
KRAMER: You can't fire me, I'm Santa Claus.
STORE MANAGER: Not anymore. Get your skinny ass out of here.

The episode brings to mind several questions.

1. Can the store manager legally fire Kramer for being a communist? Although there are no federal laws protecting employees on the basis of political orientation, New York (where the show takes place) joins the District of Columbia and Puerto Rico in offering some employment protections on the basis of political activities.  In addition, some cities have similar protections.  However, whatever protections are out there, Kramer's communist activities seem antithetical to the goals of the department store which include selling stuff like racing car sets and keeping kids happy in Santa's lap.  On the other hand, the statement made by the store manager, "enough pinko" might be construed as demonstrating a certain level of animus...

2. Can the store manager legally fire Mickey for Kramer's communist activity? Mickey's firing is certainly less fair than Kramer's, but he might in some ways be less protected because he is not being discriminated against for his own political activity.


3. How about the parting comment, "Get your skinny ass out of here?"  Typically, Santas are a little on the heavy side, and so Kramer might claim that in addition to being discharged based on his political affiliation, he was discriminated on the basis of being skinny.  In the state of Michigan and some cities, but not in New York, it's unlawful to discriminate on the basis of weight (fat or skinny).

4. Can they make Kramer and Mickey work without breaks? Check with the New York Department of Labor.

Seinfeld and Labor and Employment Law

Since posting about the Information Age causing "worlds to collide", I get a fair number of visitors who search Google for things like "George Costanza and Employment Law." I feel bad because I don't think my post is what they had in mind.  A lot of Seinfeld episodes touched on work situations, and so it's not surprising to see these kinds of searches. To try to give those visitors a post more in line with what they were searching for, here are some Seinfeld episodes that touch on labor and employment law subjects and a little bit of comment from me.

                                                             Kramer at Work

Episode: The Strike (Epidsode 166)

Plot: Kramer returns to H&H Bagels after striking for twelve years.  The strike ends when the minimum wage rises to the wage that the employees had demanded when the strike began.  Kramer returns to the bagel shop where the manager tells him that he needs help over the holidays and hires him.  Kramer subsequently becomes interested in Frank Costanza's Festivus holiday. Wanting to celebrate Festivus, Kramer asks for December 23 off.  The manager explains that he hired Kramer specifically for the holidays, Kramer says that his rights are being violated and walks out.

Comment: This episode raises two issues: the strike and religious accommodation.

    The Strike.  It appears that this was an economic strike rather than an unfair labor practice, thus 

Kramer was not necessarily entitled to immediate rehire.  Do strikes ever go twelve years? It's rare, but it has happened before. A strike at Diamond of California lasted thirteen years.

    Religious Accommodation. Kramer has two problems here: First, he has to demonstrate a strongly held religious belief that requires him to miss work on the day in question.  At this point, it looks like Kramer is interested in Festivus, but it's hard to say he had a strong belief about it.  The second problem is that Kramer was hired specifically for the holiday season and so H&H can argue that giving him the day off would be unduly burdensome.  

Elaine at Work

Episode: Friar's Club (Episode 128)
Plot: A deaf employee is hired at J. Peterman.  The deaf employee (perhaps conveniently) fails to hear when work is assigned to him, and Elaine is repeatedly stuck with extra work.  Antics ensue.
Comment: Unlike other forms of discrimination, there is no "reverse discrimination" under the ADA.  Thus, Elaine can't claim to be discriminated against on the basis of not being disabled.

Jerry as an Employer

Epidsode: The Maid (Epidisode 175)
Plot: Jerry hires a maid for his apartment.  Jerry and his maid begin an affair.  Eventually the maid no longer cleans his house, but still wants to be paid.  Jerry refuses to pay as he wonders what he is paying for.
Comment: The episode raises an interesting point in a quid pro quo sexual harassment situation.  If the employee stops doing his/her job functions, but continues to be paid, are criminal prostitution laws implicated?


                                                        George at Work

Episode: The Red Dot (Episode 29)

Plot: George drinks scotch at work with a cleaning woman after hours and the two consummate an affair in the office. The cleaning lady gets upset and threatens to tell the boss about what happened. To pacify her, George gives her a cashmere sweater with a red dot on it. Once she discovers the dot, the cleaning woman reports George and he is fired.

Comment: As is often the case, George provides the audience with good examples of how not to behave. George may well have created a hostile work environment and his attempt to buy off the woman was both inappropriate and inept.

Update: Jon Hyman notes that a recent case Stevens v. Saint Elizabeth Med. Ctr. (6th Cir. 8/29/13), addresses the issue of whether George could have sued the employer for sexual harassment based on his firing. 
 

Episode: The Boyfriend (Episode 34)

Plot: George tries to extend his unemployment benefits by making up a company, Vandelay Industries, and telling the unemployment officer that he is close to a job there.  George involves Jerry in the scheme by providing Jerry's number as the number of the fictitious company.

Comment: Here's what the State of New York has to say about unemployment fraud:

When someone collects unemployment insurance (UI) benefits by lying to the Department of Labor, he or she is committing fraud. We take UI benefits fraud very seriously. It is a crime that affects businesses and workers. It drives up UI taxes on law-abiding businesses, and it frustrates honest workers. We need every dollar to help those who honestly need these benefits.

Episode: The Barber (Episode 72)
Plot: George interviews for a job.  It seems like he is about to be offered the job but the interviewer suddenly has to leave. George is left uncertain as to whether he has the job or not. He decides to show up and start working. George is handed a file to work on, but has no idea what he is supposed to be doing. Eventually, he meets the client whose file he is working on (Penske). Penske seems to offers him a job, but is likewise interrupted before the conversation is finished. In reliance upon Penske's offer, George quits in order to take it. However, Penske has been indicted and the company can't hire anyone.

Comment: In the ordinary circumstance, it is easy to know when an employment relationship has begun, but as in other contract scenarios, offer and acceptance aren't always clear.

Episode: The Maestro (Episode 113)

Plot: George decides that he should help a security guard who works at his fiance's uncle's (Mr. Ross) store and must stand all day. George gives the guard a chair and the guard asks if it is all right by Mr. Ross. George explains to him that he is the owner's uncle and says not to worry about it. The guard is later asleep when the store is robbed.
Comment: Whether a person has the authority to speak on behalf of an employer is not always clear.

Episode: The Millennium (Episode 154)
Plot: George is working for the New York Yankees and gets recruited by the New York Mets to be their head scout. The Mets tell George that they can only hire him if he gets fired from the Yankees. George tries to get fired by wearing and getting food on Babe Ruth's jersey, pseudo streaking through a game, and finally trying to destroy a World Series Trophy by dragging it with his car. His boss claims responsibility for the trophy incident, gets fired and takes the Mets job.

Comment: The teams seem to have an interesting "no raid" pact. George and the Mets recruiters demonstrate what bad faith is all about.

Episode: The Butter Shave (Episode 158) and The Voice (159)

Plot: Recovering from an accident, George is walking with use of a cane. He is hired at Play Now apparently because of the cane. Play Now, thinking George has a disability, provides him with a personal, fully equipped wheel chair accessible bathroom. When George sprains his good leg, Play Now buys him a motorized cart as a result. George runs into trouble with legitimate cart riders and after being chased by them, picks up his cart and runs. George's boss sees him running with the cart. Play Now wants to fire George since they know he has been faking his disability. However, George has a one year contract and try as they may, Play Now cannot make the work environment hostile enough to drive George out. It all ends when George allows Kramer to drop a ball full of oil from his office window. The oil injures Jerry's girlfriend and the lawsuit puts Play Now out of business.
Comment: Is ficitious disorder/Münchausen syndrome a disability itself?

Seinfeld Audience at Work

Episode: The Junior Mint
Plot: Jerry does not know his girlfriend's name, but knows that she was teased about it in school.
Comment: From Wikipedia:

A conversation in Milwaukee the day after the episode aired led to a lawsuit in which jurors awarded Jerold J. Mackenzie $26.6 million on July 15, 1997. Mackenzie was terminated by Miller Brewing Co. on the basis that, amongst other reasons, discussing the episode with his secretary constituted sexual harassment.^[2] Later, however, the decision was overturned by the court of appeals, and the ruling of the appeals court was affirmed by the Supreme Court of Wisconsin.^[3]

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One more episode on a subsequent post: The Race, Episode 96.


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  Apparently a CLE seminar was once offered on (non-labor and employment) legal issues from the Seinfeld series.

Worlds Colliding

George is changing clothes after a swim in cold water when he is walked in on...

  

One theme that ran through the Symposium on Technology in Labor and Employment Law was the way that technology is blurring the line between our personal and our professional lives and the ease with which anybody can access everything about us.  I am a big fan of Seinfeld and in thinking about this theme I couldn’t help but recall an episode where George Castanza was caused much trouble by his "worlds colliding".  George liked his life with his friends to be separate from his life with his girlfriend.  When his girlfriend became friends with his friends, his "worlds collided" and everything broke down; we risked losing Independent George.  This situation strikes me as a very pre-Information Age predicament.  With the advent of Facebook, LinkedIn and Google, can anyone truly keep their worlds separate?  Could George, for instance, have pretended to be an architect or a marine biologist?  Could Jerry have pretended to be married to get his girlfriend a discount on dry cleaning?  Social media and simple Google searches would probably have foiled these plans.

The problem of course is that like George, many of us want to keep our worlds from colliding.  We have multiple "worlds" including at least a work world and a personal world, and we like the different facets of our lives to have some boundaries of separation.  For instance, people feel that their work world is where they make money, and that it shouldn't be affected by how they spend, borrow, or repay their money; thus there is rising resistance to the use of credit history in pre-employment screening. Many people would not want their "friend world" meeting their "financial world", let alone their "work world" meeting their "financial world."  The idea that an employer should get a peek at your credit before or during your employment is one that offends our sense of privacy and separation of worlds.  Thus several state legislatures have passed and others are debating the passage of laws that curb the practice and the EEOC lodged a disparate impact suit against Kaplan for its use of credit history.

But credit history is just one piece of information in a multitude of data that is available to members of our various worlds.  The Information Age is upon us and our personal information is out there for the looking.  Many hiring managers check out the Facebook life of candidates.  George Castanza would probably not have gotten away with his pretence of requiring a cane to walk, if say management had seen pictures of him pushing his way out of a burning building.  Your friends may be checking how much money you make at your company's website, salary.com, or sites like app.com (federal employees).  Furthermore, your boss, coworkers, or friends can take a look at your house and see how much it's worth at sites like http://www.spokeo.com/.  Your work performance may even be rated by your coworkers at cubeduel (I hope none of my coworkers have joined cubeduel, but I refuse to log in to find out).  Keeping your information compartmentalized is likely going to be harder and harder.

How can people keep their personal and professional worlds from colliding?  As I see it, they can take measures try to limit what’s out there and available on the web, they can push for laws that restrict employers from accessing information on the web, or they can push for prohibitions on employers using certain information against them.  As to keeping things off the web, an individual can take actions toward limiting what’s out there, but my reading of the writing on the wall is that more and more will be available.  A person can limit what they say on a site like Facebook, but at some point their lack of Facebook presence may become glaring: what’s this guy trying to hide?  Moreover, you can’t keep other people from talking about you on Facebook or Cubeduel, etc.  You can, as David Thompson instructs, stop filling out mall surveys and signing up for bonus cards.  But with increased publishing of everything on the web, clever data miners and unsympathetic hackers leaking any detail in their path, like it or not you can’t keep off the grid. Even anonymous commenting on websites and blogs is being pushed out.  As to limiting employers from accessing information, there seems to be a constitutional issue with that as the right to free speech includes both speaking and listening.  Finally, limiting what employers can use against against potential and current employees comes with it the difficult (but not impossible) problem of proving that the employer has used the prohibited information against them.  As you can see, I’m not an optimist on privacy protection.

I’m not calling for an end to privacy; I am as scared about the loss of privacy as the next guy. (Besides I don’t advocate for political causes on this blog). But, I’ll offer this question anyway:  If we are going to be stuck with a loss of privacy, is this truly something new and are there any upsides?

I like to visit those historical recreations of ancient dwellings.  The last one I visited was in Moundville, Alabama.  The dwelling where the entire family lived was one room and not very big.  I remember thinking to myself, “these people had no privacy.” I shared a room with one of my brothers growing up, but compared to the people who lived there I had an incredible amount of privacy as a child.  I think most people throughout history have lived in similar close quarters.  What’s more, they lived in small intertwined communities where there were no strangers and the actions of each were the knowledge of all.  Changes in modern life have given us an unprecedented amount of privacy.  In villages of the days gone by, there was little room for secrecy.  If I did not repay a loan to a neighbor, I might expect it to be harder to get a loan from a different neighbor because likely word would have spread.  This effect kept people honest.  Anonymity has the opposite effect.  There has been an outcry that accountability is being lost in our society.  How much of that is do to our privacy/anonymity? If our reputations mattered more, would we behave differently?

On the other hand the new lack of privacy is something completely different than the old.  Where in the past, hundreds or so in your village might have known all about you, now hundreds of millions can know about you.  And of course in the past things weren’t written down for all to see forever.  If you made a passionate argument one night with a group of friends as a teenager, it is unlikely that your words would come back to haunt you when you were a town elder trying to obtain a leadership position.  But if a teenager today makes some argument on Facebook, they may have to answer for what they said twenty years later.  In a way we have outsourced some of our thinking to Google: certainly knowing that information is out there lets us keep from memorizing facts, and knowing that other people may have thought about things lets us search the web for their insights.  So when our searches are tracked by Google, in a way, our thoughts are tracked.  Surely, in past societies, people could keep their thoughts private.  And what is more central to Independent George than his ability to think about what he wants without fear of repercussion?

George was worked up because his Boyfriend George and Independent George lives were colliding, but I imagine that for most people, the place where the rubber meets the road with the loss of privacy (like in many areas) is where the lack of privacy starts to affect a person’s income.  Therefore, I think we can expect employment law to be at the forefront of the privacy debate.  I am going to read Thompson’s book Wild West 2.0, if anyone has other suggestions on good books or articles on this topic, I would appreciate it if you send me an email or leave a suggestion in the comments (anonymous comments are allowed here).