The Market Ticker
Commentary on The Capital Markets

Huffington Bullcrap has once again tried to play the gender warrior card, this time with the so-called "Paycheck Fairness" act that was (again, and properly so) killed in The Senate.

Senate Republicans on Monday blocked for the fourth time a bill that would strengthen federal equal pay laws for women.

The Paycheck Fairness Act would ban employers from retaliating against employees who share salary information with each other, impose harsher penalties for pay discrimination and require employers to be able to show that wage gaps between men and women are based on factors other than gender.

Sounds good, right?

Who could oppose equal pay for equal work?

You'd be wrong.

For the most part, we already have that.

Note (from the same article)

Women working full-time in the U.S. earn an average of 77 cents for every dollar men earn, according to the Census Bureau. A small portion of that gap, economists say, is due to employers paying women less than men for the same work.

What's the rest?

Two factors -- a choice not to work in the same professions or under the same demands, and time voluntarily taken off for other pursuits (specifically, family pursuits.)

If I take two months off for the birth of a child I should expect to be penalized for that in my advancement through my career.  It's a choice to have children, and it's further a choice as to how I structure my affairs in doing so.  It is not the employer's responsibility to subsidize, support or otherwise pander to my personal choices.  It is my responsibility; after all, I get all of the enjoyment (that is, the benefit) out of raising said kids, yes?

But look at what the bill actually says, provides and requires:

(2) Despite the enactment of the Equal Pay Act in 1963,
many women continue to earn significantly lower pay than men
for equal work. These pay disparities exist in both the private
and governmental sectors. In many instances, the pay
disparities can only be due to continued intentional
discrimination or the lingering effects of past discrimination.

Economists say otherwise; we are now declaring as a matter of Congress something that is a lie.

Worse, look at the proscriptions:

(a) Bona-Fide Factor Defense and Modification of Same Establishment
Requirement.--Section 6(d)(1) of the Fair Labor Standards Act of 1938
(29 U.S.C. 206(d)(1)) is amended--
(1) by striking ``No employer having'' and inserting ``(A)
No employer having'';
(2) by striking ``any other factor other than sex'' and
inserting ``a bona fide factor other than sex, such as
education, training, or experience''; and
(3) by inserting at the end the following:
``(B) The bona fide factor defense described in subparagraph
(A)(iv) shall apply only if the employer demonstrates that such factor
(i) is not based upon or derived from a sex-based differential in
compensation; (ii) is job-related with respect to the position in
question; and (iii) is consistent with business necessity. Such defense
shall not apply where the employee demonstrates that an alternative
employment practice exists that would serve the same business purpose
without producing such differential and that the employer has refused
to adopt such alternative practice.

So now an employer has to prove a negative.

The employee doesn't have to prove the employer discriminated based on gender (and not, for example, because said person was incapable of maintaining a 24x7 call due to being a single parent with a toddler at home, or because they took two months off to have said kid) -- the employer has to prove, in each case where such an allegation is made, why the difference exists and there must be no opinion ensconced in same -- in other words, it must be something like "education, training or experience" and it must be not a business preference but rather necessity.  Further, the employee can retrospectively devise such an "alternative practice" and the employer must accept it, irrespective of whether they find it equivalent, desirable or whether it comes with additional cost and, if so, how much cost it entails.

Remember, the test is not "reasonable business practice" it's business necessity.

Good luck with proving all of that, and if you can't you're breaking the law on a mere allegation.

The people that come up with this crap need to have a little Swastika branded on their foreheads as does anyone who supports this sort of Nazi garbage.  As anyone who has any knowledge of formal logic knows proving a negative is damn near impossible -- and that's on a good day.  

In many cases it is impossible, which turns such legislation into a shakedown machine.

The violence this sort of legislation does to business is immense.  Even in the 1990s it was broadly illegal to discriminate on the basis of gender.  But it was also very ill-advised to do anything that might be interpreted that way, no matter the justification.  I could not, for example, ask a female applicant if she intended to start a family and take off for a couple of months to give birth -- and it didn't matter how business-critical the job was either.  

The smaller the firm and more-specialized your position, that is, the better you are at it and the more different you are than the other people who work there the more this ****s you as an employee and the worse it is for the employer too.   Grabbing someone random off the floor in customer service to answer the front desk phone is no big deal -- as long as half your customer service people aren't out with the flu (and yeah, that does happen!)  But who do you grab to be the on-call dude that can fix a fileserver that is offline with a cryptic error message at 3:00 AM? 

Before I ran MCSNet I worked in two positions for two different firms that expected me to be "on call" pretty-much 24x7 for this exact reason.  They meant it too; that pager went off a lot, and when it did I was expected to respond, including going into the office at 0-dark-****me.

That would have been flatly impossible if I was a single parent of a toddler.  Incidentally, I later was such a single parent (many years later) and turned down a material number of contract jobs after selling MCSNet for this exact reason -- I could not meet the (reasonable, from the customer's point of view) demand for on-call response any time, day or night, which might happen to include hopping in a car or airplane.

Is it discrimination if the employer requires this of the job and refuses to hire someone who can't meet that requirement, or fires someone who says they can and then leaves them in the lurch when the time comes and that fully-disclosed and expected part of their job thus cannot be fulfilled?

I say no; I was well-compensated for those expectations (fully-realized expectations at that in terms of what was expected of me) and there was nothing wrong with the employer for expecting it, or with me in accepting the job under those conditions.

You're entirely within your rights to pursue a path in life that has "balance", as you define it.  But you're not entitled to demand that other people mold their requirements to you.  Doing so is theft, incidentally, and when you enlist the government to shove a gun up someone else's ass to make them accommodate your personal choice the proper word for it is extortion.

There would be something very wrong with my insistence that said employer make available some "other means"; for example, that the firm spend money to outfit my apartment with some means of completely remotely logging into any of said machine(s) to do whatever.  Remember, the test up above is business necessity and no alternative available (nobody said anything about "at reasonable cost", "easily", or "with equivalent operational risk.")

Yes, maybe 9 times out of 10 I could have remoted into the machine in question somehow -- if an accommodation was made for it when that was originally designed!  Today, for example, I have an IPMI port on the servers that I commonly use for exactly this reason -- so I can get into them from a remote location.  Then?  There was no such port on the servers in question.

There was probably a way to build something that might do the same thing, or buy it, but at what cost and operational risk when the alternative is that I get in my car and drive to the office, which presents neither cost or operational risk?  Oh, and what happens when it's a bad port on the switch that's the cause of the problem -- something that you can determine in 10 seconds by looking at it, but if you're in your underwear on a remote -- not so much.

Finally there is a provision in the bill that bars "no salary disclosure" policies.  As a former employer I can tell you exactly why those policies exist and they have perfectly-defensible business purpose.

Many times someone has the "same" job but a different salary.  A huge percentage of the time it is actually unlawful or exposes the employer to lawsuit for the employer to disclose why.  The reason may be related to disciplinary action, performance and demonstrated ambition, or something that is very job-related but private between the employer and employee.  I can come up with dozens of reasons without trying very hard, some of which come with an actual legal stricture and all of them come with at least an ethical reason to keep my mouth shut as the guy on the hiring side of the desk.  People get "chances" all the time in life with employers taking a risk on the possibility that despite what looks like a bad hire it's really a good one -- and sometimes you think things are going the other way too.  Some disciplinary matters are quite serious and yet they have little in common with the standards of proof in a courtroom, nor should they -- ever.

As soon as you allow people to talk about pay you set up a situation where you can be accused of disparate pay for equal work and there is nothing you can say to refute the allegation.  Of course if the government gets involved you'll get to make your case, but that's not the problem -- the problem is that the morale destruction that occurs in the meantime, and for which you have no defense, is enormous.  This bill not only bars such policies but further and far worse, makes illegal retaliating against someone who does this even if it causes a severe morale problem in the firm you are unable to address.

At MCSNet there was no "formal" policy barring talking about salary between employees but it was communicated quite clearly that any sort of action that fomented dissent among the staff was very likely to result in you being fired.  If you were crazy enough to start comparing notes against the other people in the department come payday you could, but if that led someone to stick their head in my door and demand to know why Joe made less than Jane, when I had a very good reason for the difference but could not, either legally or ethically, discuss why, your ass was out the door.  And the simple fact of the matter is that unless Joe and Jane were hired yesterday for the same position it was very likely, based on their different abilities, desires, drive and job performance, that a year or two later they'd have different salaries!  (As an aside, given the email I've gotten, yes, I know the NLRA's "fuzzy" interpretation by the NLRB specifically considers any sort of discussion between staff that is for "collective protection" a "protected activity"; have at it and there was no bar on doing so.  Nonetheless the fact remains that this is yet another thumb-on-the-scale as a reason not to start or run a business that employs people today, and if you don't understand that you're not very bright.)

This is a bad bill that fuels the grievance industry in this country, it imposes a burden of proof that is impossible to meet, it requires "accommodations" irrespective of cost or business risk and bars all of the above as a determining factor in salary!

**** that and **** anyone who supports it.

View this entry with comments (registration required to post)
 

When are you folks in the black community going to do something about this ******* in the Oval Orifice that keeps using your orifices as playthings for his policies?

The Obama administration is moving to ease access to student loans for parents with damaged credit, a policy reversal that could saddle poor families with piles of debt but also boost college enrollment.

Under a plan likely to take effect next year, the Education Department would check the past two years of a borrower's credit, instead of the current standard of five, for blemishes such as delinquencies or debts in collection. Also, any delinquent debts below $2,085 would be overlooked; currently, delinquencies of any amount are grounds for rejected applications.

These are what are known as "Plus" loans.

They carry a higher interest rate than Stafford loans and they have another terrifying feature -- they're not taken out by the students, but by the parents.

Stafford caps loans at $57,000, roughly.  That's far too much, but at least there's a cap.  There is no cap on PLUS loans.

Virtually all of the young adults out there with $100,000+ in college debt have these destructive lending scams loaded upon them.  It can't be otherwise, due to the Stafford limits, for the most part.  For one of those people who finds themselves unable to get a job in their chosen field, or for whom the salaries in that field (e.g. social work, journalism, etc) are simply insufficient to pay the debts off their parents can be impoverished.

Since Reagan, then Clinton and then Bush all destroyed (incrementally) the ability of borrowers for student loans to discharge them in bankruptcy this leads to an intractable problem.

The real issue is that college shouldn't cost more than a few thousand dollars a year. There is utterly no reason for it to cost more than $20,000 or so for the entire four year course of study, which on an inflation-adjusted basis would mean that you could work full-time in the summer and part-time during the year (e.g. weekends) and put yourself through with no assistance from anyone else.  

That, by the way, was entirely possible right up until the mid 1980s when the loan scam system took off.

The fix is to force downward the cost of college, and the means to do that is to withdraw the "easy loan" game and start prosecuting under the RICO laws along with the Sherman and Clayton acts any and all educational institutions that try to use their credentialing system as a means of forcing you to go through their schools.

Education is a good thing -- but not if it comes at the expense of living in a refrigerator box.

View this entry with comments (registration required to post)
 

You know, it's never the original event -- it's always the cover up.  Obstruction of justice, evidence tampering, destruction of official records, you know, all those things that get you.  And it looks like it might "get" Hitlery this time.

A former State Department official has told lawmakers that Hillary Clinton allies privately removed politically damaging documents before turning over files to the supposedly independent board investigating the Benghazi terror attack.

That's probably a crime.

And since her chief of staff was allegedly overseeing this, guess who fries for it?  Not just them -- Hillary too.

Of course the State Department is denying it.  I'd deny it too, considering that at best it's career-ending and at worst it might get you some time in Club Fed.

According to The Daily Signal report, Maxwell walked in on the weekend session on a Sunday afternoon after hearing about it. He reportedly claims he saw stacks of documents when he arrived as well as an office director who worked for him -- but who hadn't told him about the assignment. 

Maxwell reportedly claimed she told him they were instructed to go through the stacks and pull out items that could put anybody in the NEA "front office" or seventh floor -- where the secretary's office is -- in a "bad light." 

Maxwell said he "didn't feel good about it" and left a short time later. 

Hoh hoh hoh hoh hoh.....

Bill Still has picked up on it too.

This is gonna get interesting....

View this entry with comments (registration required to post)
 

From the CFTC, effective allegedly today:

Rule 575. Disruptive Practices Prohibited
All orders must be entered for the purpose of executing bona fide transactions. Additionally, all non-actionable messages must be entered in good faith for legitimate purposes.
A. No person shall enter or cause to be entered an order with the intent, at the time of order entry, to cancel the order before execution or to modify the order to avoid execution;
B. No Person shall enter or cause to be entered an actionable or non-actionable message or messages with intent to mislead other market participants;
C. No Person shall enter or cause to be entered an actionable or non-actionable message or messages with intent to overload, delay, or disrupt the systems of the Exchange or other market participants; and
D. No person shall enter or cause to be entered an actionable or non-actionable message with intent to disrupt, or with reckless disregard for the adverse impact on, the orderly conduct of trading or the fair execution of transactions.

To the extent applicable, the provisions of this Rule apply to open outcry trading as well as electronic trading activity. Further, the provisions of this Rule apply to all market states, including the pre-opening period, the closing period and all trading sessions.

So let me see if I get this right.

Several years after I posted a Youtube video over a holiday in which I showed clearly (by video evidence) orders being entered that were simply intended to be canceled, years after this started, all of which is in direct violation of the Securities and Exchange Act of 1934, 15 USC §78i(a), we now have a "rule"

Let me remind you what that law says:

(a) Transactions relating to purchase or sale of security
It shall be unlawful for any person, directly or indirectly, by the use of the mails or any means or instrumentality of interstate commerce, or of any facility of any national securities exchange, or for any member of a national securities exchange—
(1) For the purpose of creating a false or misleading appearance of active trading in any security other than a government security, or a false or misleading appearance with respect to the market for any such security,
(A) to effect any transaction in such security which involves no change in the beneficial ownership thereof, or
(B) to enter an order or orders for the purchase of such security with the knowledge that an order or orders of substantially the same size, at substantially the same time, and at substantially the same price, for the sale of any such security, has been or will be entered by or for the same or different parties, or
(C) to enter any order or orders for the sale of any such security with the knowledge that an order or orders of substantially the same size, at substantially the same time, and at substantially the same price, for the purchase of such security, has been or will be entered by or for the same or different parties.
(2) To effect, alone or with 1 or more other persons, a series of transactions in any security registered on a national securities exchange, any security not so registered, or in connection with any security-based swap or security-based swap agreement with respect to such security creating actual or apparent active trading in such security, or raising or depressing the price of such security, for the purpose of inducing the purchase or sale of such security by others.

In other words all of this activity is already illegal.

And has been for about 80 years.

(Oh, by the way, why is there an exemption for manipulation of the market for a government security?)

Yet we need a rule to stop what has been able to generate (under that same law) actual legal sanction (not just a "rule") since the Securities and Exchange Act went into effect.

Are you ready to admit that the entire ****ing market is nothing other than a scam, given that nobody will enforce black-letter anti-fraud provisions that have been on the books for 80 ****ing years?

View this entry with comments (registration required to post)
 

2014-09-15 07:10 by Karl Denninger
in Editorial , 198 references
 

No, really?

We only respond if there's video.

That's one lesson that can be drawn from the belated reaction to football player Ray Rice knocking out his fiancee in an elevator. Rice was arrested back in February, and in July was suspended for two games. But once video of the actual punch surfaced this week, he was banned indefinitely.

Time and again, we are informed of outrages — Rice's domestic violence; beheadings and******by the fanatics calling themselves the Islamic State; Donald Sterling's racism; abuse of prisoners at Abu Ghraib — but only grow outraged and force action when video or audio or images emerge.

How many injustices get short shrift because nobody's recorder was rolling?

Yeah, like in Ferguson?

So here's the thing -- why is it that in Miami the cops don't want cameras?

I'll tell you why: Because cameras exonerate the good guys and nail the bad ones, whether the bad guys are perps or cops, and it is more important for the union to protect the bad cops than the good citizens.

Yeah.

If you want to know why so many of our police departments are in fact little more than bands of armed thugs, there it is.

Are there potential issues with cameras on cops?  Sure.  One of them is privacy and the ability to indefinitely go back and look for activity you can then use later on.  But there's a simple solution to that: Video that is not tagged as evidence in an arrest at the time, or is not requested as a part of a complaint within 90 days is destroyed under penalty of criminal sanction for anyone in the department or elsewhere in the government who misuses it.

So basically video is there for one purpose and one purpose only: To document what really happened during an official action, and if there are no charges laid at the time and no complaint is raised about conduct within a reasonable time then the video is destroyed.

Tampering with video that is part of an actual arrest or is documentary of a complaint becomes a criminal offense individually prosecuted against the department members involved, as is archiving or otherwise using "stale" video later on to cook up charges that were not laid at the time.

Problem solved on the privacy aspects of things, I suspect.

So let's catch the bad guys, whether they're wearing magical blue costumes or black hoods, and help provide the evidence to exonerate the good guys.

View this entry with comments (registration required to post)
 

Main Navigation
Full-Text Search & Archives
Archive Access
Get Adobe Flash player
Legal Disclaimer

The content on this site is provided without any warranty, express or implied. All opinions expressed on this site are those of the author and may contain errors or omissions.

NO MATERIAL HERE CONSTITUTES "INVESTMENT ADVICE" NOR IS IT A RECOMMENDATION TO BUY OR SELL ANY FINANCIAL INSTRUMENT, INCLUDING BUT NOT LIMITED TO STOCKS, OPTIONS, BONDS OR FUTURES.

The author may have a position in any company or security mentioned herein. Actions you undertake as a consequence of any analysis, opinion or advertisement on this site are your sole responsibility.

Market charts, when present, used with permission of TD Ameritrade/ThinkOrSwim Inc. Neither TD Ameritrade or ThinkOrSwim have reviewed, approved or disapproved any content herein.

The Market Ticker content may be reproduced or excerpted online for non-commercial purposes provided full attribution is given and the original article source is linked to. Please contact Karl Denninger for reprint permission in other media or for commercial use.

Submissions or tips on matters of economic or political interest may be sent "over the transom" to The Editor at any time. To be considered for publication your submission must include full and correct contact information and be related to an economic or political matter of the day. All submissions become the property of The Market Ticker.