Gawker runs a weekly Unemployment Stories series of letters from readers. The stories are touching and informative. Some themes have been discussed elsewhere ad nauseum–the longer one is unemployed, the less likely one is to get a job; student loans and health care debt are crippling; unemployment breeds severe depression and often substance abuse; race and sex discrimination happen.
But the Gawker stories also reveal some less obvious ways our employment laws are either failing us or simply being ignored, which both causes and exacerbates unemployment and inequality. Let us count the ways:
Age Discrimination
Please stop rejecting us and just accept us for being once dedicated workers with tireless work ethics, dependable and still trainable. Understand that I did not request an early retirement/ without benefits (LAID OFF) to have my new title read (OLD AND UNEMPLOYED). I still exist and others like me still matter and we still can make a contribution in today’s workforce. Unemployment Stories Vol. 25
I’m 58. I’m still vital, creative, curious, interesting, interested, and resilient. I write, design, have won awards, and have been published, but I’m still 58! I’m too “old” to be “young” and too “young” to be “old.” I’ve become invisible. I’m not eligible yet for Social Security, but I can’t pass for 37 anymore either. And although it’s against the law to discriminate based on age, I’ve seen that it happens in a tacit agreement each and every day. Unemployment Stories Vol. 20
Age discrimination is illegal in the United States. However, as one letter-writer noted above, that doesn’t mean it doesn’t happen. (In fact, age discrimination tends to worsen in a recession.) Discrimination in hiring is also very hard to prove, making lawsuits almost impossible to bring. If someone has a job and then is fired, they usually have some idea of why. But people who aren’t hired usually have no idea why, and even if they have a hunch, that hunch isn’t going to be enough to get them into court.
Part of the reason age discrimination is so prevalent is that employers often feel uncomfortable paying a 50-year-old as little as a 20-year-old. They may assume an older worker doesn’t want to work for such low pay, or they simply feel like it’s unseemly to pay someone with so much experience so little. So employers just end up deciding that older workers are too expensive and simply ignoring them. Of course, any unemployed older person will tell you that they’d rather be making $10/hour than nothing.
In the same way that employers often assume young women are always on the cusp of maternity leave, they also often assume that older workers are a heartbeat away from retirement or disability, or that they’re bored retirees for whom a job is just a way to fill their days rather than a financial necessity.
Of course, employers also tend to stereotype older workers as incapable and afraid of technology. In my practice, I’ve heard managers openly admit that they think older people simply can’t figure out these new-fangled gadgets we use today, or say that older people are “stuck in their ways” and thus untrainable. Of course, many of these managers were, themselves, on the older side. I’m guessing they think of themselves as the exception to the rule.
Pregnancy Discrimination and Maternity Leave
I have become obsessed with not appearing pregnant and endlessly asking my husband for reassurance that I look merely fat. I will never be eligible under the Family Medical Leave Act since I won’t have a year of service before needing maternity leave … It wasn’t supposed to be this way. This was a planned and wanted pregnancy. My former employer was women-owned and family-friendly and I was good employee. Unemployment Stories Vol. 27
Pregnancy discrimination is also illegal. But again, that doesn’t mean too much in the context of hiring discrimination. Employers are, of course, reluctant to hire someone who’s going to need to take at least a few weeks off to recover from a major medical condition. Moreover, many employers still assume that women who have kids either can’t or won’t want to work anymore. Pregnancy discrimination laws were passed as an extension of sex discrimination laws (because many of the stereotypes people hold about women generally relate to pregnancy and motherhood).
Even if an employer wanted to hire a pregnant woman, the woman may not be able to take the job. That’s because the Family Medical Leave Act, the only thing that comes close to a maternity leave law in the US, does not provide for some of the things that a pregnant woman often needs. First, it only entitles employees to unpaid leave. That means that many simply can’t afford to take what leave is available. Second, as the letter-writer above notes, it doesn’t kick in until an employee has been working for a full year–so it’s of no help to pregnant applicants. Finally, it only applies only to companies with 50 or more employees, meaning it doesn’t apply to small businesses.
For the pregnant unemployed, then, there just aren’t options guaranteed under the law. Absent an extremely generous employer who goes above and beyond the law, her only choice is to essentially have her baby over the weekend before showing up to work on Monday morning, bright eyed and bushy tailed.
Lack of Subsidized Child Care
My son was pulled from daycare because we couldn’t afford it, but the catch 22 is that, without him in daycare, my wife had to watch him, which meant that she couldn’t find another job and bring in more income. Unemployment Stories Vol. 20
Many countries provide either free or heavily subsidized child care. The US is not one of these. While the President pledged to expand access to pre-K in his State of the Union address, even if this proposal passed, child care would remain a significant barrier to employment for many women.
While lack of access to child care affects both parents, it tends of affect women more. Despite the gains women have made over the past decades, they continue to earn a fraction as much as their male counterparts. Thus, when deciding which income to give up in exchange for full-time child care, it’s the mother’s career that usually takes the hit.
Even if free universal pre-K were available, kids get out of school before most parents get off work, meaning that someone still needs to be available in the early afternoons, either a stay-at-home parent or a paid caregiver. For many low- and middle-income Americans, the cost of child care dwarfs the actual wages a parent earns, meaning it’s more expensive to work than to stay home. This leaves many parents–mostly mothers–who want to work unable to do so. By the time the child’s old enough to take care of herself, the parent will have been out of the labor market so long that it becomes virtually impossible to break back in.
“Independent Contractor” Misclassification
I have no savings and because the boss had been paying full-time employees on a 1099, I had no chance for unemployment. Unemployment Stories Vol. 27
Misclassifying employees as an “independent contractors” is so common in some fields (especially creative fields), that most people don’t even know they’re misclassified and don’t understand why it matters.
Independent contractor status is reserved for people who work for themselves, hiring out their skills to various different clients. Think of a freelance graphic designer who works from home. She can take jobs or turn down jobs whenever she wants; she has a certain amount of creative control over the project, within broad guidelines; she can decide how best to approach the project and how to use her time; and she owns her own computer and software. She should be getting a 1099 from all her clients.
But if she’s working at a large ad agency, say, with a boss who tells her what to do, how to do it, and when to get it done, she’s not really an independent contractor. She should be receiving a W2.
Why does it matter? First, independent contractors aren’t eligible for overtime pay. While many people assume office jobs make them eligible for overtime, that’s simply not the case. Some white collar jobs are exempt, but many aren’t. And in some of those creative or pseudo-creative fields, where the pay is decent and the hours are long, overtime pay can add up pretty quickly. If you’re a true freelancer, you don’t get overtime (because you’re in charge of your own hours).
Second, employers have to pay unemployment insurance, which means that when the employee gets laid off, they’re eligible for benefits. Employers don’t have to pay this tax for independent contractors (because, theoretically, the independent contractor is always bouncing from project to project), which means 1099 employees don’t get unemployment. If you’re being misclassified–you aren’t a real freelancer, and don’t have other clients waiting in the wings–getting fired means you’re essentially thrown out into the street without a safety net, which isn’t supposed to be what happens.
Finally, employers and employees split the cost of Social Security and Medicare taxes (i.e. payroll taxes). Independent contractors have to pay both their own share and the employer’s share of these payroll taxes (because they’re their own “employer”). Misclassifying employees, again, saves the employer a boatload of cash–and puts that on the employee.
Free Labor Under the Guise of “Internships”
I went on a couple interviews, but mostly I accumulated internships. I walked dogs, picked up dry cleaning, picked up dog shit, dropped off dry cleaning, and tried to do it all so professionally and cheerfully that everyone around me would think, “This girl’s commitment to our dog poop and dry cleaning is so impressive that we must hire her! Or at least reimburse her for mileage. Unemployment Stories Vol. 18
Companies are legally required to pay their employees. Period. So, how do some employers get away with paying nothing? They simply call the (usually young) employee an “intern.” Voila! Free labor.
Except, that’s not what the law says. Companies can avoid paying interns only where the intern is actually gaining some training or educational experience. The easiest test for this is whether the intern is getting school credit. While it’s true that even non-students can benefit from training in a new field, the internship has to exist primarily for the benefit of the intern. If you’re making photocopies all day, you’re not learning much; you’re just a free secretary.
If you’re doing the same work as everyone around you, not only are you not an intern, you’re actually displacing workers who are getting paid. This is illegal for obvious reasons–if everyone can just replace one or two employees with 20-somethings who are willing and able to work for free, then everyone’s wages go down. Who can compete with free labor?
Finally, someone only counts as a true intern where the employer doesn’t really benefit from the intern’s labor. The Department of Labor guidelines are pretty explicit: someone is a true intern where “the employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded.”
That makes sense. Trainees have no idea what they’re doing–that’s why they’re willing to give out their services for free in the first place. In exchange for teaching someone how to differentiate a hammer from a wrench, or how to use InDesign, the employer gets some benefit from the internship in the form of some free labor and possibly a great future employee. If you’re good enough that you don’t need any supervision and don’t make mistakes, then you don’t need the internship–you need a job.
Unpaid internships have also become all but required in certain fields, like some sort of hazing ritual. This means that people who lack the resources to work for free for possibly years at a time can’t get work. This is exactly as pernicious as it sounds. The only people who can get jobs are people so rich they don’t need to work.
The current recession has brought some of these problems to light, but that doesn’t mean they’re new. While age & pregnancy discrimination, misclassificati
Christine Clarke is an employment lawyer at Beranbaum Menken LLP in New York City. She has published in Slate and writes an employment law blog at Wage Against the Machine.
