

Rights in the workplace - melipone
http://www.npr.org/templates/story/story.php?storyId=123024596
It's about time ...
======
grellas
People have no idea how disruptive to the workplace it would be to give
employees a roving right to sue for any termination that could not be
justified as being "for cause" (which is apparently what the author of this
piece is pushing for).

The issue is not so much a formalistic legal issue as it is a _people_ issue.
While most people are good and decent, a minority are not - they will cause
trouble for the company, for co-workers, for customers, etc. They are just bad
hires who must be let go and there will inevitably be some significant number
of these involved in any range of hires.

In at-will employment situations, the remedy for an employer for a bad hire is
simple. You let them go. No questions asked. No legal difficulties. Even if
the employee falls within a "protected category," it is still easy early on to
make a judgment and act on it without adverse consequences.

If the law were to require, as a default (and as suggested in this piece),
that an employer have "cause" to do such routine firings, then every
employment decision of this type would be the potential subject of a lawsuit
unless an employer is prepared to show "cause" through some documented
evidence. Such an environment only empowers lawyers who will come in and
second-guess the entrepreneurs to no end, all the while suing them for
potentially significant damages for an almost infinite number of reasons ("he
didn't like my bumper sticker," "he didn't like my perfume," or "my looks" or
who knows what). Yes, employers can still act to get rid of bad employees. But
the cost of doing this would go up substantially.

What is in danger here is private associational rights. Today, of course,
everyone agrees that such rights are not absolute. If an employer
discriminates against employees based on some illegitimate criterion (race,
color, creed, etc.), all would concur that this is not something that should
be protected by an absolute concept of private associational rights. Beyond
the illegitimate bases, however, the right to associate with those you like,
and not to associate with others you don't like, is such an integral part of
small business life that we don't even think of it consciously in the
workforce. If this rule is undercut, then all private workplace settings will
become like union shops, or like government settings, where it becomes
basically a terrifying event to plan for and implement the discharge of an
employee.

Is it unfair for an employee to be fired for a bumper sticker? Yes. Do we want
the law second-guessing and lawyers armed to sue over every such employer
decision? Absolutely not. Why? Because any firing, for any reason, can
potentially then be second-guessed and made the subject of a lawsuit and this
would change the whole dynamic of the workplace, certainly for small
businesses.

Small businesses start and fail all the time and people come and go from them
even more so. Does anyone really want lawyers to become an integral part of
the routine dynamics of hiring and firing? Or to have to keep elaborate paper
trails on each employee because every person hired might be a future lawsuit
in the making? I would hope that budding entrepreneurs, of all people, would
see the significant shortcomings with such an approach.

~~~
derefr
It seems, though, that small businesses aren't the employers who would be
targeted by this law—every story I've ever heard about a wrongful firing has
been regarding a large corporation. In such places, there is no single face
for the employee to appeal to within the company, and thus no _people_ that
are able to fix the "people issue"—this is the exact situation where outside
intervention would be helpful.

If the law could distinguish small from large businesses, why not set this law
to only affect the large ones?

~~~
grellas
While I used the impact on small business to most starkly bring out the impact
of such a law, the impact on larger businesses would be no less radical. The
"people issue" is just as acute in large businesses as it is in small. And the
effect of mandating cause-only terminations in large businesses would be to
create something resembling a union-like environment in which "guarantees"
tend to replace incentives, and this is something that employees themselves
have consistently rejected when they vote down things such as unions in the
private sector.

In addition, the pattern is clear in this area: a labor law of this type
applies "only" to large companies when it is enacted. Within a few years, it
is either made universal or is applied by extension of the law to smaller and
smaller enterprises. Thus, once it is acknowledged in principle that
government-mandated "guarantees" trump private associational rights, it would
only be a matter of time before such guarantees applied far more pervasively,
if not universally, in the workplace.

Thus, in my view, the issue needs to be addressed as a matter of principle and
not as a function of the size of the employer. People can disagree but, if
they accept this for large companies as a matter of pragmatism, they will (in
my view) find it applying to the small businesses of the not too distant
future as well.

------
eplanit
Old news, at best; or, misleading hype, at worst.

Corporations are not extensions of the Public Square. It is perfectly
reasonable to require certain behavior as part of an employment agreement. If
I ran a hamburger stand, I would fire any employee who gave political
commentary or rant while serving hamburgers. And, if one chooses to air
grievances against one's employer in the Public Square (i.e. on the Internet,
or in newspapers), it is perfectly understandable that the employer would
dismiss the employee.

To say "the Constitution does not apply to corporations" is in one way simply
false: all legal entities (people, corporations, government) are required to
adhere to the rule of law -- law founded on the Constitution.

But the bigger point is: the Constitution's purpose is not to protect
individuals from corporations -- it's to protect us from _Government_.

~~~
joubert
"But the bigger point is: the Constitution's purpose is not to protect
individuals from corporations -- it's to protect us from _Government_."

Although technically correct, I think the insinuation of your phrasing is
misleading.

The Constitution does 2 things:

a) establish the federal govt

b) delegate certain, limited powers.

Does the constitution not provide the _platform_ for how citizens' _natural
rights_ are protected (Article 3)?

~~~
eplanit
Yes, rights with respect to Government. Article III addresses the power of the
courts.

~~~
joubert
Isn't the ultimate purpose to protect (the natural rights) of citizens,
period?

I.e. protect citizens against the mob (government), other individuals, and
other legal entities?

If not, then why would the constitution delegate certain _powers_ to the
Federal Government?

~~~
eplanit
I think the Constitution defines, beyond the definitions of the core
institutions of power, the bounds of power over its citizens.

Laws, passed by Congress, define the rights of individuals with respect to
each other, employers, etc...as well as the government.

I'm not claiming large authority here -- just recalling civics and government
as I was taught.

------
barmstrong
I've never understood the mindset of labor laws. Employment is a two way
agreement - if either party is unhappy at any time, for any reason, they
should be able to terminate the agreement. In most cases the employee and
employer share risk equally if the other one doesn't work out - and if they
don't share risk equally they can always work out their own agreement (like
options vesting over time) in a private agreement - no reason to get
government involved in that.

Just like if you are upset with a local restaurant you can choose to stop
going, and if they are upset with you they can refuse you service.

What am I missing about labor laws?

~~~
emmett
The key difference between the employment relationship and other mutually
agreed contracts is simple: high switching costs that are mostly asymmetrical.
Losing your job is extremely disruptive to an work, much more so than losing
an employee is to a corporation[1]. Because of this, the labor market is in a
constant monospony situation.

<http://en.wikipedia.org/wiki/Monopsony>

This is unlike, say, the market for going out to eat at a restaurant. There
are very low switching costs for customers with regards to restaurants (and
vice versa), so the market is efficient.

[1] Of course in some situations the opposite applies: highly skilled workers
are very costly for a corporation to replace and generally have no trouble
finding other work. So their bargaining position is excellent and they tend to
get market wages. For example, programmers.

~~~
Tichy
But if your job puts you in the Monopsony position, wouldn't it be fair to say
you picked the wrong job? It might make more sense to try to pick another job
that is in higher demand?

I know switching isn't easy - but nobody ever said that life is easy. Why is
it the corporations problem if people make the wrong career choices in their
lives?

~~~
derefr
Corporations can artificially create a monopsony, just like they can
artificially create a monopoly. The music industry, for example, relies on
making its talent pool—who are in high demand by the _customers_ —feel like
they are in lower demand compared to the record labels themselves, so the
industry will be in a better bargaining position.

Sure, once the market is as efficient as it can be, if there's still a
monopsony, that's tough for the employee. But if the monopsony can be
annihilated without affecting its constituent employers and employees, all the
better for all involved.

~~~
Tichy
How can they artificially create a monopsony? By talking secretly to each
other? It seems to me that if there is a real need, then they would have a
hard time doing that.

Take software developers - if it is still true that they are still in high
demand. How would corporations go about creating a Monopsony for software
developers? Stop producing software? But if software is in high demand, how
would they be able to prevent other companies starting up that develop
software?

------
sumeetjain
From the article:

 _Lynne Gobbell was fired because her boss didn't like the bumper sticker on
her car.

During the 2004 presidential election, Gobbell put a "Kerry for President"
sticker on her bumper. When her boss saw it, he said Gobbell could "either
work for John Kerry or work for me." Gobbell refused to take the sticker off
her car and was immediately fired._

That's pretty hard to believe - unless Ms. Gobbel was working for Bush. Can
anyone here speak to the validity of some of the author's claims? It sounds
like - with the above example at the very least - wrongful termination
lawsuits would punish such firing practices.

~~~
tptacek
In most of the US, "wrongful termination" is an urban legend. In over 40
states, employment is "at-will". You can be fired for any reason or no reason.

The exception is for people working under a contract that explicitly spells
out remedies for termination without cause. Almost nobody has a contract like
this.

~~~
lionhearted
> The exception is for people working under a contract that explicitly spells
> out remedies for termination without cause. Almost nobody has a contract
> like this.

You can negotiate for it or look for a job with it if it's important to you. A
secondary effect of making it harder to let personnel go is that it makes
companies more cautious when hiring. I'm thinking of situations you get in
places like France, where a company isn't sure if they'll need the extra
personnel in a while, so they rely on temp workers or go understaffed so as
not to risk having problems letting people go later.

Tangential: I think people feeling more comfortable freelancing and doing
entrepreneurship and transitioning in and out of salaried jobs and freelancing
and building companies will greatly reduce employee/employer tensions. Lots of
people tend to think of it as "their job" as in their property and a huge part
of their identity, which I think is bad for their personal and economic
growth.

