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Patti Waldmeir: Dark side of the American dream

http://finance.sina.com.cn 2003年11月28日 15:21 新浪财经



I went to Wal-Mart the other day to gaze on the dark side of the American dream - and I came home with Christmas lights. Frugality got the better of my philosophy. I went to the store, at the crack of a November dawn, determined to feel the pain of the Wal-Mart workforce, which - if lawsuits are any guide - are held in a peculiarly American form of serfdom.


Allegedly underpaid, overworked, under-insured and unfairly promoted, Wal-Mart workers have been thrustsintosthe centre of a very old argument about how America makes its money.

    剥削那些移民的劳动对不对?即便说他们甘愿冒贫困之险,希冀这是登往富裕殿堂的奠脚石----其实可能永远实现不了,剥削那些移民的劳动到底对不对?这一切是否都只是资本主义的运行规律而已——最廉价者生存(survival of the cheapest)?

Is it right to exploit the labour of immigrants willing to risk penury as a stepping-stone to a prosperity that may never materialise? Is that just the way capitalism works: survival of the cheapest?


Or have we moved beyond that state of nature, to a worldswheresimmigrants are people too, and deserve a union wage? Wal-Mart has suddenly become a lightning-rod for a new national debate about justice and capitalism.

    然而,当我一驶进当地那家沃尔玛巨大的停车场,穿过特大型的商店大门的时候,我就忘了还有什么文化之争,忘了《商业周刊》(Business Week)起的“本顿维尔怪兽” 的绰号。(Beast of Bentonville,以沃尔玛在阿肯色州的总部所在地,本顿维尔市命名。)

But as soon as I entered the vast car park of the local Wal-Mart, and walked through its oversized door, I forgot there was a cultural debate waging around what Business Week calls the "Beast of Bentonville" (after Wal-Mart's backwaters headquarters in Arkansas).


I noticed the apparently weary immigrant staff (and the equally weary immigrant clientele) but what really caught my eye was the full- sized toy kitchen for less than (£18), and the huge box of Christmas cards for less than a Starbucks latte.


With two toddlers in the trolley clamouring for cut-price Barbies and Finding Nemo wrapping paper, I quickly forgot the big picture. And there was no reminder from the cheerful and chatty lady who served us: she mentioned that she was from Togo; she did not mention the cost of her health insurance.


But now that my cupboard is full of tartan tablecloths and Santa centrepieces for the holidays, I can no longer ignore the possibility that frugality could - in certain circumstances - be not a virtue but a crime.


Consider this scenario for a scheme of criminal frugality: a giant retailer contracts out the cleaning of its stores, at rates that could be satisfied only by contractors who hire illegal immigrants and pay no taxes or insurance for them. The retailer passes the cost savings along to consumers, and all appear pleased with the bargain: the company prospers, consumers save and employees earn more than they would in their own impoverished nations. Surely such a win-win deal cannot be illegal?


Experts in immigrant employment law say it is not at all clear how courts will rule, in the matter of Wal-Mart and its immigrants. But they agree that the ruling could have a big impact on Wal-Mart: and what hurts the world's biggest private sector employer could hurt the world's biggest economy.


Everything about Wal-Mart is big, and its lawsuits are no exception: it faces a sex discrimination lawsuit from female employees that, if allowed to go forward as a class action, could be the largest employment lawsuit in American history; and it faces a range of suits alleging unpaid overtime.


But what has really catapulted Wal-Martsintosthe culture wars is a federal investigation of how it cleans its stores.


Last month federal agents raided 60-odd Wal-Marts across the nation and picked up 250 all-night janitors and many documents, hoping to make a case against the retailer for immigration violations. No charges have yet been brought, but they probably will be. And then the issue will be: did Wal-Mart know its cleaning subcontractors were hiring illegal aliens to mop the floors? Can it plausibly claim not to have noticed?


Common sense suggests that Wal-Mart managers must have realised that if janitors did not speak English and were willing to work every night without a break, for less than an hour, they were probably illegal. But common sense is not a legal standard of proof. Wal-Mart says it thought they were legal - but that in any case it is not its responsibility to verify the legality of every person in the vast empire of Wal-Mart contractors and suppliers.

    在关于沃尔玛的责任这一关键问题上,法律并不明确。美利坚大学华盛顿法学院 (American University's Washington College of Law) 研究移民权利的律师,萨拉•保莱蒂(Sarah Paoletti)认为,沃尔玛为该工作设定这么低的工钱,可能就足以证明,它推定知道(constructive knowledge)承包商雇用非法外裔的情况。但她对这一点也并不肯定。而萧•皮特曼律师事务所(Shaw Pittman)的利兹•斯特恩(Liz Stern)则说,如果沃尔玛基于这一点被定罪的话,她会相当“震惊”。斯特恩女士为企业雇用移民提供咨询意见。

The law is not clear on the crucial matter of Wal-Mart's responsibility. Sarah Paoletti, an immigrants' rights lawyer at American University's Washington College of Law, says the cheap rate set for such work by Wal-Mart may be enough to prove "constructive knowledge" that contractors were hiring illegal aliens. But she is not sure. And Liz Stern of the law firm Shaw Pittman, who advises businesses on immigrant employment, says she would be "shocked" if Wal-Mart were convicted on such a basis.


By that standard, nobody would be safe, she suggests: no citizen could rely on a contract maid to clean the house; every visa would have to be checked by every matron. The web of liability would ensnare us all.


But whatever happens to Wal-Mart - either in the federal prosecution, or in the civil lawsuit filed by some of the janitors to piggyback on the federal action - the case is likely to make new law in the area of immigrant employment.


However, that will answer only the question of whether Wal-Mart broke the law as currently written. It will not solve the bigger dilemma: how can justice and capitalism be reconciled? That is a matter not for judges but for legislators, for it is a matter that affects not just Wal-Mart the store but Wal-Mart the cultural and economic phenomenon.

    本文得到FT研究员巴弗纳•帕特尔(Bhavna Patel)的帮助。

FT researcher Bhavna Patel contributed to this article

    作者简介:帕提•沃德米尔(Patti Waldmeir)是««金融时报»»法律和社会问题专栏作家,。尤其关注专门论及聚焦于知识产权、就业法和其他涉及商业及大众关注的法律问题。读者群主要为工商业界人士和一般读者。在移居华盛顿之前,她曾长期在非洲工作。,在1989年至1996年期间,作为驻约翰内斯堡记者站负责人她任«金融时报»驻约翰内斯堡记者站负责人,报道了南非向向民主化转型的过程迈进的过程。

Patti Waldmeir writes a column about law and society [for the Financial Times], focusing on intellectual property,employment law and other legal topics of interest to the business and general reader. Before moving to Washington D.C., she worked extensively in Africa, covering the transition to democracy in South Africa as Johannesburg bureau chief from 1989 to 1996.





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非洲接入移 动通信新世界]


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