Comment by jjk166
4 years 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.
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.
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.