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californialaw
New member
Username: californialaw
Post Number: 39
Registered: 11-2004
Rating: N/A
Votes: 0 (Vote!) | | Posted on Thursday, December 30, 2004 - 01:32 pm: | 
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Abstract:
Is forced Employer Mandated Involuntary Tipping of other Individuals the same as Involuntary Servitude?
Statement:
For the purposes of definition and understanding of the correlations of hypothesis, it is necessary to first explain the definition of Involuntary Servitude. For all intensive purposes, Involuntary Servitude is a condition of compulsory service or labor performed by one person, against his will, for the benefit of another person due to force, threats, intimidation or other similar means of coercion and compulsion directed against him. In the consideration on whether the service or labor was performed by someone against his will or involuntarily, it makes no difference that the person may have initially agreed, voluntarily, to render the service or perform the work. If a person willingly begins work but later desires to withdraw and is then forced to remain and perform work against his will, his service becomes involuntary.
The fact that the subject be paid a salary, wage, or other means of compensation is irrelevant and not a determinative of the question as to whether that person has been held in involuntary servitude. In other words, if a person is forced to labor against his will, his service is involuntary even though he is paid for his work. However, it is necessary to prove that the person knowingly and willfully took action, by force, threats, intimidation or other form of coercion, causing the victim to reasonably believe that he had no way to avoid continued service, that he was confronted by the existence of a superior and overpowering authority, constantly threatening to the extent that his will was complexly subjugated.
Argument:
In California, as it has long been upheld in the Leighton V. Old Heidelberg case in 1990, involuntary tip pooling is permissible, whereas, an employer can force an employee to tip out other employees as a condition of work. Since it is obvious that the idea of Slavery, Involuntary Servitude applying to tip pooling although a strained one, we shall for the purposes of argument ambit the legality only to the extent that it involves the mitigating factors that render the Leighton ruling to passively allow for involuntary servitude prima facie. Compulsory Service requires or compels an individual to do something against his will. Since it can’t be disputed that the employer is in charge, command, or in some other power over the employee, the victim or employee is presumed to be in servitude of his employer without dispute.
Since the courts have already ruled effectively that an employer can force an employee against his will to relinquish a part or in whole the tip gained by an individual to another group of employee for the purposes of “fairness to prevent chaos in the workplace”, the forceful aspect is also without dispute, since the employer is forcing the employee by compelling and coercive interests to work and give a portion of his work product to the pool thus satisfying work performed for the interest of another person due to the force that has already been ruled ‘permissive’ by the courts. The food server has been deprived of the will to opt-out of the environment since the courts and all administrative rulings hold that the servitude and forceful and involuntary working contribution ambits prosperity and peace.
Hence, the superior and all governing powers of the courts have left the average employee with little or no recourse against the injustice. While it can easily be argued that the will of the employee is not in question or infringed since he could easily just leave the place of employment and seek employment elsewhere, the same rule could and would diminish and deprive over 120 years of legislation aimed at targeting and destroying involuntary labor of any kind. Slaves could just have easily escaped the plantation and ran north, as many did. This did not ambit or protect the idea of slavery as being “free will”. It is long since been upheld that the days when a servant was the slave of his master have long since past. There is no necessity of depriving an employee of free will to further ambit the prosperity of the employer or other individuals as appropriated by the employer as the recipients of the work product of another.
Force is both physical and emotional, as the courts as far back as Cicero have recognized. To wit, just because the chains of the auctioneer are no longer on the worker, does not change the fact that the emotional bondage of helplessness and emotional involuntary servitude is there actuate that a forceful and willful deprivation of Civil liberty has transpired within the workplace when an employer forces an employee against his will to participate and give up his work product. The very abolishment of slavery has not changed the fact that the rights of so many have become enslaved to the very capitalistic nature of our society.
The fact that one is paid, no matter how much, does not change the fact that if an action is done with force, involuntarily, and is for the purposes of work to the benefit of another, involuntary servitude presents its ugly face.
P.S.- I wrote this as merely academic, so George don't post this idea in other forums...  ~ Sure, it is a legal argument but still a very strained one.. Im still working on it..
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teleburst
New member
Username: teleburst
Post Number: 684
Registered: 06-2003
Rating: N/A
Votes: 0 (Vote!) | | Posted on Thursday, December 30, 2004 - 03:27 pm: |
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"Compulsory Service requires or compels an individual to do something against his will. Since it can’t be disputed that the employer is in charge, command, or in some other power over the employee, the victim or employee is presumed to be in servitude of his employer without dispute".
This is the case with virtually any job that has an empolyer/employee relationship. In a tratidional office job, you are required to clock in, whether or not you think it infringes on your right to privacy or religious beliefs. Of course, you can refuse to clock in, but you won't get paid for your work. In some jobs, you MUST clock in, due to insurance regulations (and possible governmental regulations). Surely this must fall under the "involuntary servitude" doctrine, right?
"Since the courts have already ruled effectively that an employer can force an employee against his will to relinquish a part or in whole the tip gained by an individual to another group of employee for the purposes of “fairness to prevent chaos in the workplace”, the forceful aspect is also without dispute, since the employer is forcing the employee by compelling and coercive interests to work and give a portion of his work product to the pool thus satisfying work performed for the interest of another person due to the force that has already been ruled ‘permissive’ by the courts".
However, the employee is getting benefit from the portion of his or her "work product". He or she is relying on the work product of others and is paying them in order to increase his or her own work productivity.
The work place infringes free will on some many different levels that you can't single this example out as something particularly onerous. Also, involuntary servitude DOES indeed imply two concepts, either singly or in concert. That would be the concept that one is owned by another as a piece of chattel. The other would be the idea of loss of ability to leave that servitude. While a slave might indeed be able to 'escape", technically, under the local regulations, they are still property of the slave owner. Then you get involved in jurisdictional considerations (things like extradiction, etc.).
Also, I understand the point that you're making. But what would prevent you from extending this concept to other aspects as well. For instance, I work for an hourly wage for a company but I don't like the idea that I'm not making X dollars more because of the insurance rate that the company is paying, or the fact that they grant a stock dividend to the stockholders. Every cost of the company could be challenged because I don't feel that I'm making what I'm "worth". The bottom line, within reason, should be what I'm taking home AFTER my tipout, not any incidental expenses that I might incur along the way. I must pay for my own laundry while chefs get their chef's coats laundered by the company, for example. I must buy my own pens, wine tool, lighter and other things that I need to perform my job. These expenses aren't much different than paying a back waiter for their service. One might argue that this should be the responsibility of the employer, but that argument can be made for my OWN job as well. |
californialaw
New member
Username: californialaw
Post Number: 40
Registered: 11-2004
Rating: N/A
Votes: 0 (Vote!) | | Posted on Thursday, December 30, 2004 - 03:47 pm: |
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Teleburst, I can always count on you to make me see the arguments, I guess thats why I post here... Seriously..
Although, as I am reading your reply, a little light bulb started blinking (actually more like a dim light that you find in pocket key chains oh well). Seriously, I know its very far fetched, but on a purely academic level, I don't see why not. Sure, the door is open to various tears in the legal system, but the case law is seriously not there and the interpretations are so loose that I am confident at least a good case could be made, hell I think even a writ for mandamus would be appropriate. The last time this country has seen an involuntary servitude claim was 1971, which involved a soldier who made a claim that he was held against his will, which sparked a huge debate in washington over the vietnam war and whether or not it was constitutional to force soldiers to war.
In any case, I promise to investigate it a little and get back to you...
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george
New member
Username: george
Post Number: 340
Registered: 05-2003
Rating: N/A
Votes: 0 (Vote!) | | Posted on Friday, December 31, 2004 - 11:44 am: |
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Californialaw. While you are really making a great effort to address this problem you are failing to see the most clear provable offence which is aginst the customer. While Calififornia along with many other states are writing laws which state and imply that tips are intended for those who serve the customer or provide direct service to the customer they are violating the 14th amendement of our Constitution which provides that no state shall pass any law which deprives any person of liberty. The states that have passsed laws based on case law which suggests that tips are the sole property of those who serve the customer are denying the public of their right to determine who tips are intended for. When the courts suggest that employers may share tips among all those workers who the courts feel the customer intended to tip and states write laws which state that employer required tip pooling is permisable based on these judgements these staes are in fact writing laws which deny customers their right to determine who their tip is intended for. Can you not see the problem?
While you may spend years attempting to prove some offence by employers against their employees, the offence being committed against customers due to state allowed employer required tip pooling is undeniable and easily provable.
When a state enacts laws which allow employers a legal ability to take tips away from one employee so that they may be given to another, the state is implying that there is an entitlement on the part of the other employee being given part of the tips presented. That state by determining an entitlement of the customers tip is denying customers their constitutional right to determine who should be legally entitled to their tip. Customer are denied their right to give tips to an individual in California for clearly an employer is allowed by state law to deny the customer such rights and may take the tip away from the intended recipeint so that it may be shared among those who the court has determined are legally entitled to such moneys.
This is the issue which should be addressed. California and many other states have made it clear that these laws were passed for concern of the public and yet they injure the public by stripping them of their constitutional rights. |
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