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REGULATIONS: THE EFFECTIVENESS OF AFFIRMATIVE ACTION MEASURES

The controversy is almost always a powerful stimulus to thought. However, there are debates that are so frequently and are so entrenched, that have put us on top of each ear that severely limit our perspective to see things.

I think this has happened with the controversial issue of "affirmative action", which often turns the wrath of the "oppressed majority" and leads us to lose in dramatic battles brain. Thus, first, we ended up focusing solely on a form of affirmative action (preferential treatment ends carried through direct attachment to social groups). Second, the legal considerations are restricted almost exclusively to the determination of the legality and constitutionality of these measures, ignoring the technical analysis of their effectiveness, a measure may be enough to be technically ill-considered criticism without this necessarily having to be illegal. Third, the only perverse side effect is taken into consideration is the possible impact that these measures could have on members of the "oppressed majority", ignoring other issues that may be as important or more, while not as controversial. Fourth, the impact on the "oppressed majority" is usually analyzed from the perspective of "reverse discrimination" when in most cases would be assessed from the principle of equality.

In the best of my ability and within my limitations I have tried to address these problems in an article to come out last month in the journal Industrial Relations (No. 11 June 2010). As you write things with the illusion that someone is "out there" to read them, I take a needed respite from the gloss of the labor reform to make me a little self-advertising, and if I could catch some unwary for reading this effective remedy for insomnia.

The work begins with an examination of the philosophical foundations positive action, hence I think the most important is the criticism of the distinction between "equal opportunities" and "equality of results", which often is used-without much success, "as a crutch to determine the validity of affirmative action.

Secondly, try to pose some questions to clarify the concepts, terminology, since in this issue we have failed to establish a "common language" that allows us to use terms accurately. Use the concept of discrimination that had worked on previous studies : a difference in treatment resulting from the direct or indirect affiliation to a social category that overall real places or persons connected potentially in a position systematic inequality. From there, I wanted to pursue a broad notion of "positive action" as a kind of virtuous reverse discrimination, ie, a social policy that uses the technique of secondment to reduce or eliminate systematic inequalities. This definition leads me to conclude that positive action can be direct or indirect . Indirect positive action is linked to other concepts such as gender mainstreaming and diversity management and generally have fewer adverse effects.

The longest part of the work is referred to the assessment of the effectiveness of affirmative action. I would like this brickbats be useful for those responsible for designing and reviewing these measures (for example, that might be contained in the Equality Schemes). First reference is made to diagnose the situation of inequality and the determination of general and specific objectives. Later, I try to identify the various techniques that could be used to configure the space of possibilities for intervention. Thirdly, I deal with the problems of efficiency and perverse side effects that may arise and going beyond the individual losses that eventually could cause people not assigned to the categories used (although these should also be taken into account), so notes the difficulties in defining the group promoted the problems of scope and coverage, the crystallization of the stereotypes and categories, boomerang effects, problems related to the processing of personal data or the costs to various individuals or entities. Finally, it is valid to focus the analysis of means in relation to these perverse side effects.

So you already have a recommended reading for the beach or the hammock, not all novels are going to be addictive. Hopefully not Off with their digestion.

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EVENTS: TIMELINESS FIGHT?

1. In the preamble to the Decree-Law establishing labor reform ensures that aims to fight the "duality" of the English labor market . This duality is related to the differences between "temporary" workers and "indefinite." The overall strategy seems clear: first, as we have seen in previous entries, reducing the job security of permanent workers, on the other hand, is to hinder the implementation of temporary contracts. In this way one tries to break the inertia that leads employers to agree contracts default temporary.

From previous posts it appears that permanent job insecurity has been a resounding success. The question is what has been achieved at the same time, reduce labor market duality?

2. For starters, I think is more appropriate to speak of "segmentation" of the labor market of "duality" . Segmentation is the division of labor market in a series of "segments" relatively independent where working conditions and job opportunities are very different. In the labor market more than two segments and the segments that can distinguish are not completely closed.

3. Secondly, I think is a mistake to confuse market segmentation with the dichotomy between permanent contract / temporary contract . This distinction is particularly important in Spain, but this is just one of the ways in which legally has articulated segmentation, which is a social and economic reality "before" legal.

4. One of the most important elements through which it manifests segmentation in the English labor market is the seniority . This trait is the result of a series of policy decisions in which I can not stop now. The importance of age has been legally finalized in two institutions: the abuse of temporary contracts and absolute dependence on the length of severance payments.

5. Broadly speaking, the use and abuse of temporary contracts derived from three types of situations: a) needs "really" temporary company, b) the execution of contracts in the context of decentralization production, c) c temporary CONTRACT law fraud.

Certainly, the English economy relies heavily on sectors with high rates of temporary "real", but even so, the data suggest that the bulk of temporary contracts referred to cases b) and c). The assumption b) is supported by case law, which has led to the legalization of abuse. If any contract is automatically seen as a "temporary necessity" is that companies may have almost full squad "permanent" temporary contracts without problems, given that today production is organized on a decentralized and businesses often work for other companies, not directly to the consumer.

6. To truly temporality should have expressly prohibited the automatic link of work or service contract with the execution of a contract [case b)], while recognizing as a reason to dismiss the significant loss of contracts with other companies (which actually would be within the normal business reasons .)

7. Second, the timing should be tackled fraudulent [assumption c)]. Surely, the majority of temporary contracts signed in Spain are fraudulent. What if the contract is terminated and the worker claims? For applying the consequences of unfair dismissal. But often the worker not to claim compensation for dismissal compensation depend on the age and are very low. So, in my opinion, the most effective way to combat fraudulent temporary, addition to clarifying the cause, is putting a floor on compensation for unfair dismissal.

However, the Government has done is to promote compensation for 33 days and give to employers 8 days of compensation for unfair dismissal through a public fund. Reducing compensation for unfair dismissal is encouraged fraudulent temporary. I have the suspicion that the economists who have advised the Government have assumed that the cost of extinction a temporary contract fraud is 8 days' wages per year when it is actually 45 days of salary per year, so the problem is that there is a floor that guarantees the dignity of the poor old worker.

8. What did the government then? As noted by Professor Sanguineti, has not addressed the root problem, but obliquely : increasing the cost of extinction (in accordance with law) of temporary contracts and limiting chain of contracts or duration "excessive" status. Apart from these measures are very mild, compared to enormous lowering of dismissal, again make no distinction between law-abiding businessman and the fails, it does not have the reason or not having it. The legal logic is once again blurred by the simple calculation of costs.

9. Extinction (legal) temporary contracts will (supposedly) 8 to 12 days salary per year of service . say supposedly because the projected increase is gradual, over a period of about 5 years (live decree-law "urgent" measures!). At present, there are going to notice anything. If in 5 years has not been repealed the final difference is not significant for low-seniority workers (4 days' salary per year!). However, be "punished" by the employer as "compliant", which has a temporary need to cover, which the contracting fraudulently.

10. Below this increase proposal clearly flutters "single contract." On one hand it provides the most fair dismissal (20 days per year), on the other hand, gives Fogasa 8 days. 20-8 = 12. If we refer to a contract agreed in 5 years, where, therefore, compensation for temporary contracts is 12 days, the cost of extinction would be the same in both cases (because, in addition, the notice of dismissal, which is usually paid in cash has been equated to 15 days notice of termination of temporary contracts of more than 1 year).

I believe that this measure other that will encourage somewhat long-in- holding permanent contracts at the expense of precarious. But it's a world of appearances, not reality, because what matters to workers is not the type of contract, but real stability. We forget that the cost of extinction of what is really depends on the length of service. Small Workers old, temporary or permanent, are equally vulnerable.

In fact, what may well happen is that many entrepreneurs Executed temporary contracts, but then decide to opt for fair dismissal instead of waiting on schedule or full term. Thus, the term agreed in the contract loses its sense of providing some assurance about its duration. Never mind that it has been agreed a temporary or indefinite. Again the same contract.

11. There is a possible additional side effects. It is possible that an employer who fraudulently contracted, by sheer inertia pay the worker 12 days per year. Is slightly reduced the difference from what I could get the worker claiming (33 or 45 days counting the 8 of Fogasa. This reduction in the difference between the amount collected and that could be obtained by going to trial may discourage demand approach, although the effect is not very large.

12. The second line of the legislature was to limit the duration of temporary contracts. First, it has been "enhanced" rule introduced in 2006 which limited the duration of sequence of temporary contracts, this rule does not work well because it was very easy to escape from it and now this problem has been fixed. Although in most cases, these assumptions chaining of several temporary contracts to cover 24 months are fraudulent, if that is not so, the employer will be "punished" by the system. It seems far more appropriate strategy I have outlined above, namely to strengthen the causality of temporary contracts. Beyond this, the measure is not particularly objectionable, but insufficient. First, because of low seniority workers remain unprotected. Second, because there is no linkage if there is one job or service contract, fraudulent or related to a contract that is renewed continuously.

13. To avoid the latter setting a new absolute limit 3 years extendable to 4 collective agreement. In the vast majority of cases, when a temporary contract reaches 3 or 4 years is clearly fraudulent (or is it the alleged abuse but allowed the contracts). Is not it a bit absurd to suppose that 3 years is a temporary need for the company? Why wait until that date to make it permanent?

14. The problem, again, is that is left unprotected workers with low seniority because the level of protection is again based on this trait . If it is true that the temporary contract is fraudulent, when a worker takes 3 or 4 years with the company is maybe when you start to trade profitably sue the unfair dismissal. From another point of view, it could happen that an employer who had employed fraudulent (with an incorrect perception of the proper compensation) decide to dispose of their workers before they became permanent, involuntary rotation encouraging.

15. In some cases it may be that a contract for over 4 years corresponded to a real need. Such is the case of works and services autonomously and proper nouns, limited run very long time but, as perhaps could happen with a construction or a research project. In these cases, again, is "punishing" the employer to comply with the law. Although it should be noted that the lowering of firing decreases the effect of punishment and that seems to have established an ambiguous form of escape through the first additional provision.

16. Of course, one of the most abusive employers who have temporary contracts without cause, the public administration will continue "going Olympian" of the legal provisions for conversion into permanent contracts, as has been explicitly to say (not in these words: course), the text of the reform. Indefinite, but not fixed. Given the high rates temporary recruitment in the administration, should have tackled this problem.

17. One final note, the transient effects of the reform what they do is produce a multiplicity of types of contract "with different levels of employment protection. and therefore, different groups of workers with different positions of power against the employer: 45 days / year, 33 days / year, 37 days / year, 25 days / year, 8 days / year, 9 days / year, 10 days / year, 11 days / year, 12 days / year. Perhaps this chaos of levels of protection ends with the "duality", but regarding the "segmentation" I'm not so sure it's so appropriate to divide the workers in a multitude of castes. Of course, the oldest are still the most benefit. In any case, under these indemnities s ontinue while the old (and salary) as the trigger-in-practice of "justice" or "injustice" of business decisions.

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Within hours of starting the party.

expects to handle the review and some pictures in my next post.

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DEVELOPMENTS: THE DISMISSAL "BY THE FACE"

1. In the English economy, external flexibility needs of enterprises (= adaptation of the number of workers to productive needs) was channeled through the checkout the employment of older workers less (largely young people, women and immigrants). This strategy has been manifested primarily in two legal institutions: temporary contracts and compensation for unfair dismissal.

2. In this context, unfair dismissal has become a way "normal" to adapt the templates to the economic situation even when there is legal cause for dismissal. Implicitly or explicitly, consciously or unconsciously, most employers do not receive compensation for unfair dismissal as the penalty that the law provides for conduct illegal, but rather considered as the cost involved in a legitimate business decision. When defending business interests complain that the cost of dismissal in Spain is "too high", they often refer to the cost of unfair dismissal. This amounts to criticize something like build houses is very expensive because of how expensive they are the fines associated with breaches of planning legislation.

3. The "strategy of unfair dismissal" has important shortcomings. Thus, even fired for business reasons, though formally through an unfair dismissal for workers older-out "too light" workers with little seniority are completely unprotected against arbitrary dismissals , those deriving from the improved exercise of raw power of the person acting on behalf and not always in the interest of the employer (I like you / you do not I like you, you are docile / you are not obedient, you protest / you the power you submit, you are very effective / you make me no shadow), layoffs "by the face." Since firing older workers continue to leave "too expensive", business demands continue to focus on compensation for unfair dismissal and every new reform, the workers work taking her vulnerable in a situation increasingly precarious.

4. As we have seen in previous entries in the labor reform of 2010 has established an important relaxation of business reasons for dismissal and, moreover, s and have funded severance pay from . As this was not done in a negotiated, but unilateral, has served only to business interests and has got a good goal to the team of workers. But from a legal standpoint, these business claims would have been channeled in a reasonable way: expanding opportunities and reducing legally fire costs of redundancy. This reform would have been, therefore, an opportunity to redress the balance by placing effective limits for unfair dismissal, now even more unjustified, since it has reduced the requirement of cause for dismissal.

5. First, compensation for unfair dismissal depends solely on seniority and salary, without taking into account other factors that may also be important, as the gravity of business failure, the damage suffered by the worker, the worker's conduct and the employer during the procedure, the economic capacity of the company, etc. Second, Contrary to what happens to most civil claims (and has not plunged the world), the amount is completely predictable, which facilitates its consideration as a cost, and I saw a list in which the entrepreneur trying to prorate the monthly salary, as if it were a paid extra. Third, although it has provided a ceiling, what is reasonable, there is no minimum threshold, so that the dismissal "by the face" of workers with low seniority is virtually free. Fourth, wages are forgiven processing employers to recognize the illegality of the dismissal and the employer "good" he is convinced to be right and defend to the end he is punished by the order if the judge finds that the cause is insufficient, while the employer "bad" bouncing "over the hill" and openly admits it is rewarded; be indifferent the reason or not having . reform, despite having eased significantly from the dismissal, has not faced any of these problems .

6. Another gift of order for the defaulting employer is the aberration called "contract for the promotion of permanent contracts, which reduces compensation for unfair dismissal to 33 days salary per year of service . Imagine the law had established a contract "for women" with a lower return on the grounds that this will encourage employers to hire women. Now stop imagining "strange things" and remember that compensation for unfair dismissal is compensation . And not only pay, but largely determines the arbitrary limits of corporate power and therefore the balance of power in the relationship.

However, the building contract for permanent hiring does not apply only to women but also other "disadvantaged groups" in the labor market. Well, actually, the trick is that it applies to almost everyone, so we can not say that it is a form discriminate against women or other social groups. But applying supposedly "disadvantaged" is the way that you can think of anyone to say they have reduced the compensation for unfair dismissal. The thing is not only the requirements are quite extensive, but also that each new reform is an "amnesty" to convert temporary contracts, implicitly, fraudulent contracts, the promotion of permanent contracts. A paradoxical phenomenon very similar to the regularization of foreigners.

7. However, in many cases employers prefer to pay compensation of 45 days (dismissal inappropriate discipline) than 33 (dismissal improper purpose building contract). Not that they are fools. Just happens that no disciplinary dismissal notice, although the disciplinary case is completely false (in other countries, so there is no notice, the cause must be very clear.) Instead, the dismissal notice and this lens has is substituted, as we have noted, for financial compensation. So, if the worker had more than two years in the company for compensation worth 33 days, but for smaller antiquities was the cheapest of 45. Now notice has been reduced by half, so extinction of 33 days comes more profitable if the employee has at least one year and three months in the company. This implies a transfer of disciplinary dismissal unfair dismissal improper purpose and increased the importance of compensation for 33 days.

8. But of course, compensation will not go for 33 or 45 days, but for 25 or 37 days per year of service, because the Wage Guarantee Fund will pay 8 days of salary per year of service also in wrongful dismissal . This is not only a gift to employers, but a legal and moral absurdity. Openly and unequivocally, a public fund is financing part of the cost of an illicit , of dismissal "in the face", thus encouraging the commission of these crimes. For when a fund to finance environmental crime? This measure is an insult to the logic of law, the law-abiding employers, whose contributions feed the fund and redistributed to the defaulters at this level, "to workers who suffer mainly from this concession to the raw power and the entire society English, who holds the public trust. To make matters worse, l business reasons as well have been relaxed it being funded are only arbitrary dismissal, based solely on the logic of power unrelated to any business rationale. Finally, it is expected that this reduction of the allowances paid by employers for unfair dismissal to significantly reduce being agreed upon to get by in the dismissals invalid by violation of fundamental rights or discrimination because readmission is often a realistic solution.

This outrageous action alone justifies and a general strike . Of course, it is hoped that the case merits "Austrian" who want to establish will not improve things (if not press for it), although in Austria, to my knowledge, this fund is to pay compensation for lawful dismissal.

9. There is a final gift to the employers' dismissal. Formerly, the dismissal was held to be unfair if there was sufficient cause and void if they violate fundamental rights or did not meet the formal requirements. Those who managed to defend corporate interests at the time that breach disciplinary dismissal the minimum requirements to be declared as null rather unfair. Why discipline? Because it was in this figure were concentrated layoffs "across the face." Now that seeks the transfer of many of the layoffs "the face" of the disciplinary objectives has achieved the same effect on redundancies objectives. That is, from now on only defects so it is inappropriate.

This seems silly, but it is not. Imagine that you are a business they want to fire someone "on the face," without cause, without reason. What is the punishment for violating the manner prescribed by the laws? As the dismissal is declared unfair. What is not so terrible punishment if the dismissal is unfair YA for lack of cause. And there is absolutely no additional penalty. In other words, they do not care to send a letter of dismissal or discharge conditions orally or even by "conclusive acts, without speaking. It must be remembered that the employee has 20 days to claim the dismissal since learned should be considered. When should be considered learned in a tacit dismissal? What if the judge interprets the employer already expressed in his day and has lost the action? Then the worker is left without compensation.

Ultimately, this reform maintains the horrific regime of unfair dismissal and multiplies the nonsense with new goodies. It is easy to put those things are not right. As a result of this mockery of the principle of causality of dismissal increases the arbitrary power of employers, affecting the entire system of guarantees Labour Law, which is worthless if workers do not dare to cough to avoid unfairly kicked out.