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.
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?
> Is it unfair for an employee to be fired for a bumper sticker? Yes.
Is it though? If I'm working at starbucks and my bumper sticker says 'VOTE OBAMA', perhaps that would be crossing the line. What if it says 'Don't Drink Starbucks!'. Perhaps I get a job at a republican political think tank that works for the GOP? Do I really expect not to be fired if I have a bumper sticker left over saying 'vote Obama'?
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_.
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.
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.
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.
There are more employees than employers. Thus, the vast majority of people are unsympathetic to the hard decisions that employers make - many people have direct experience under a boss who is a jerk, very few have been forced to make the extremely difficult and taxing decisions employers are forced to make, where the buck stops with you and the rock and hard place calls are all yours.
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.
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.
[+] [-] grellas|16 years ago|reply
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|16 years ago|reply
If the law could distinguish small from large businesses, why not set this law to only affect the large ones?
[+] [-] electromagnetic|16 years ago|reply
Is it though? If I'm working at starbucks and my bumper sticker says 'VOTE OBAMA', perhaps that would be crossing the line. What if it says 'Don't Drink Starbucks!'. Perhaps I get a job at a republican political think tank that works for the GOP? Do I really expect not to be fired if I have a bumper sticker left over saying 'vote Obama'?
[+] [-] eplanit|16 years ago|reply
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|16 years ago|reply
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)?
[+] [-] barmstrong|16 years ago|reply
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|16 years ago|reply
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.
[+] [-] lionhearted|16 years ago|reply
There are more employees than employers. Thus, the vast majority of people are unsympathetic to the hard decisions that employers make - many people have direct experience under a boss who is a jerk, very few have been forced to make the extremely difficult and taxing decisions employers are forced to make, where the buck stops with you and the rock and hard place calls are all yours.
[+] [-] sumeetjain|16 years ago|reply
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|16 years ago|reply
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.
[+] [-] angelbob|16 years ago|reply
[+] [-] kqr2|16 years ago|reply
http://www.slate.com/id/2106714/