Free speech, unfair dismissal and unions

by John Quiggin on March 4, 2018

I’m seeing a lot of comments from the political right and centre-right worrying about the possibility that workers may be fired for expressing conservative views. For example, here’s David Brooks (paywalled, I think) linking to Andrew Sullivan.

It strikes me that this would be a really good time for people like Brooks and Sullivan to campaign for an end to employment at will, and the introduction of the kind of unfair dismissal laws that protect workers in most democratic countries, but not, for the most part, in the US. Among other things, these laws prohibit firing employees on the basis of their political opinions. Better still, though, would be a resurgence of unionism. Union contracts generally require dismissal for cause, and unionised workers have some actual backup when it comes to a dispute with employers.

There was a case during the recent equal marriage debate in Australia that illustrates both points. A children’s party organizer fired a worker who posted on Facebook opposing equal marriage. This would have been clearly illegal if the worker had been a regular employee but the employer relied on the claim that she was a contractor. Converting workers to independent contract status has been an important element of union-busting strategies in Australia. The resulting legal situation is unclear. It was reported at the time that the Fair Work Ombudsman was investigating the case, but I haven’t been able to find out whether there was an outcome.

Unsurprisingly, religious opponents of equal marriage were very critical of the employer in this case. But they’ve been far more concerned about protecting their own special exemptions as church employers to sack anyone who disagrees with their religious views, than to consider the implications of the quasi-plebiscite, which showed that they are in a shrinking minority.

{ 19 comments }

1

Brett 03.04.18 at 6:22 pm

How does unfair dismissal work with speech in the workplace versus outside of it? A ban on firing for outside speech seems straightforward (unless you hired someone specifically to be a brand promoter or mascot in their daily life), but I haven’t seen any indication that employers are required to, say, let employees harass other employees with religious proselytizing or the like.

2

Ian Maitland 03.04.18 at 7:35 pm

Let’s not throw the baby out with the bathwater. The evidence that I have seen doesn’t support the claim that employment at will (EAW) is being abused. Ten years ago, U Penn’s Michael Wachter surveyed contract enforcement in U.S. labor relations and found that, despite enjoying “enormous arbitrary discretion under employment at will few employers seem to make use of it.” A moment’s reflection is enough to see why the reputational costs of abusing EAW are prohibitive.

In addition, there are half a dozen or so “public policy” exceptions to EAW. Thus an employer cannot fire an employee for blowing the whistle on a company for, say, cooking its books, filing false tax returns, illegally dumping hazardous wastes, and so on.

Why deep-six EAW rather than, say, include discrimination on the basis of political opinion in the list of public policy exceptions? Alternatively, states might adopt California’s Unruh Act that makes it illegal for businesses to discriminate based on political viewpoint. Violating the Unruh Act is, I believe, one of the charges that James Damore has made against his former employer, Google.

Now, I could understand if your proposal was really a Trojan horse intended to restore the power of labor unions for other reasons. But I don’t want to accuse you of being sly.

3

TM 03.04.18 at 8:54 pm

Conservatives would never ever fire an employee for political reasons right? David Brooks’ strategically dishonest hit piece doesn’t deserve to be taken seriously.

https://www.nytimes.com/2018/02/17/us/gay-teacher-fired.html

4

Chris M 03.04.18 at 10:06 pm

You can bypass the NYTimes paywall in toto by adding NoScript to your browser.

5

Dr. Hilarius 03.04.18 at 11:43 pm

It’s not possible to know how many workers are fired for unfair or trivial reasons. Given the lack of legal recourse most cases never come to the notice of anyone other than the involved parties (other than a few family or friends). Even in cases where someone has been fired for reasons that violate an protective statute the worker is likely to have a difficult time finding a lawyer willing to take the case.

Many Americans imagine they have protection against termination when they are an at-will employee. It’s only after they are fired that they learn the actual situation.

An at-will employee can be fired for speech outside the workplace whether or not it impacts their employer. They can be fired for a bad haircut or any other reason so long as it does not involve discrimination against a legally protected class.

6

Collin Street 03.04.18 at 11:52 pm

“enormous arbitrary discretion under employment at will few employers seem to make use of it.”

This is true!

It’s also true that of the ~12million black people in the US under Jim Crow, a very small fraction — fifty to sixty a year — were personally lynched: despite their effective impunity, lynch mobs only formed and killed on rare occasions, which suggests that maybe concerns about lynch-mob impunity were overblown.

Which is to say, I kind of think you might be missing the point here: the numbers you are pointing to are true, but you are arguing beyond what they indicate and you haven’t noticed.

The people who aren’t sacked because in fear of being sacked they stop themselves from saying or doing things that in all justice they should be freely able to do don’t show up on the “unfair dismissal” statistics you’re looking at but nevertheless represent people impacted by at-will employment. Or, for another angle, somebody who waves a gun around shouting “if you tell me I’m fat and ugly I’ll kill you” and who doesn’t actually pull the trigger is still silencing what would be said; “I didn’t actually kill anyone so there’s no problem” is an argument that would be mocked… but this is in fact the argument you’re making, only in a different context.

“Nobody’s actually killedsacked so there’s no real problem”.

7

Collin Street 03.04.18 at 11:59 pm

Employment at will enables:
+ people who want to sack people for bad reasons, whom we shouldn’t encourage, and
+ people who want to sack people for good reasons they can’t demonstrate… whom we shouldn’t encourage for different reasons.

And this is the case regardless of the definition you’re working on for “good” and “bad” reasons. If you can’t say “I sacked them because of this problem and that problem that I tried to fix around XXX by talking to them about YYY”, if you need the ability to sack people arbitrarily to run your busines… you’re not running your business very well and the State should step in and help.

8

Faustusnotes 03.05.18 at 1:17 am

Ian how is the argument a Trojan horse for reintroducing unions when John says “better still” we should empower unions?

9

Ian Maitland 03.05.18 at 1:45 am

Dr, Hilarius & Collin Street:

Please do me the favor of reading what I said before dumping on it. I am aware that EAW permits employees to be fired for good reason, bad reason or no reason at all. Don’t go all legalistic on me.

My point was that, no matter what the law permits, employers have strong incentives not to abuse their freedom. After all, companies are not in business for the purpose of firing people. They have an economic interest in the relationship working out. Ernst Fehr et al. (2008) similarly report that “firms may incur extremely high costs if they treat workers in ways that are perceived as unfair.”

I think it was Prof. Pauline Kim who surveyed workers subject to EAW and found that a majority had no idea that they could legally be fired at will. They believed that the law protected them from dismissal without cause. Now I ask you, how frequently do you think employees in those workers’ workplaces were dismissed arbitrarily? Obviously it was rare, or you’d expect workers to have noticed.

I think that finding is also responsive to Collin’s point that the threat of EAW may be as or more effective than its use. Plainly, the workers surveyed by Kim were not afraid of arbitrary dismissal — they believed it would be illegal.

10

Moz of Yarramulla 03.05.18 at 2:38 am

the political right and centre-right worrying about the

… way that gander has been sauced.

One of the joys of algorithmic employment systems is that what used to be the rare exceptional exploitation of the law by employers can easily become the new norm. Stuff like managing staff rosters so no-one ever qualified as permanent or full time used to be tricky and required detailed knowledge of edge cases, these days it’s done via computer and local managers often require authorisation to get a set of shifts approved if it breaks rules like those.

I expect that what used to be HR “enterprise software” to manage hiring and firing will very quickly (has already?) become a website where you click through a checklist and it gives you the documents you need to manage your staff (and suggests what you can and can’t say, even).

Reversing “at will employment” and casualisation will take more than a few low-level right wing drones getting fired. Those laws benefit both employers of low wage workers *and* the well-connected high level staff who flit from job to job. In Australia we have Vicki Campion who was found several positions within the Liberal Party at short notice. She’s not going to become an activist against short term contracts despite the fast churn she’s experienced. Maybe for having her boss get her pregnant, but not for the “unexpected promotions”.

11

J-D 03.05.18 at 3:38 am

Ian Maitland

Ten years ago, U Penn’s Michael Wachter surveyed contract enforcement in U.S. labor relations and found that, despite enjoying “enormous arbitrary discretion under employment at will few employers seem to make use of it.” A moment’s reflection is enough to see why the reputational costs of abusing EAW are prohibitive.

I think I’ve reflected for more than a moment, but I don’t see it. Can you tell me what I’m missing?

I’m also curious about Wachter’s survey. It seems to me that one might reasonably expect different results from a survey of employers and a survey of employees, so I’d like to know more about what form this survey took, and how Wachter reached the conclusion you quote.

12

Collin Street 03.05.18 at 6:46 am

Now I ask you, how frequently do you think employees in those workers’ workplaces were dismissed arbitrarily?

Why are you arguing like this? You’ve already conceded the point that rate-of-dismissal is a bad proxy for rate-of-abuse; do you not realise what that means for the arguments you can and can’t legitimately advance?

13

Layman 03.05.18 at 11:42 am

Ian Maitland: ‘Ernst Fehr et al. (2008) similarly report that “firms may incur extremely high costs if they treat workers in ways that are perceived as unfair.”’

How much history do you have to ignore in order to maintain the belief that firms never treat workers unfairly because they understand that it is expensive for them to do so?

14

Moz of Yarramulla 03.05.18 at 7:20 pm

Alternatively you could look at the man-bites-dog stories about those few companies that try to treat their employees well. From puff pieces about cafeterias with nice food, the fad for stupid office furniture (we have a desk shaped like a Dalek!) to the “we have a policy of not sexually assaulting our employees, unlike other companies”.

Those stories would not exist because they would be so mundane if it was true that “firms never treat workers unfairly because…”. For that matter, we wouldn’t need laws against being complete b’stards if that was true.

15

TM 03.05.18 at 8:27 pm

“The CEO of Westgate Resorts sent a company-wide e-mail warning that voting for Obama could cost workers their jobs. … Hertel-Fernandez offered evidence that in some workplaces employees feel strong pressure to toe the company line: He finds that in firms that more closely monitor workers, employees were more likely to engage in political activities at the behest of their employees. Employers also sometimes use warnings of job losses to prompt participation, and employees were most likely to engage in political speech at the behest of their employer in areas with high levels of unemployment. …
In fact, one reason employers can coerce speech is because of the Citizens United decision, which Kennedy has often claimed was about free speech. As Hertel-Fernandez explained, the decision “permits managers to use their employees’ time and effort—a corporate resource—in elections.” Hertel-Fernandez wrote that “many employers can now require that their workers participate in partisan electoral politics, and can even discipline or even dismiss workers who refuse to engage in those activities. …
And while the Koch brothers deliver materials to workers telling them whom to vote for, unions are barred from distributing such materials. The Court’s priorities are clear: speech for corporations, but no speech for workers.”

https://www.thenation.com/article/how-employers-already-compel-speech-from-workers/

16

J-D 03.05.18 at 9:36 pm

Ian Maitland

I think it was Prof. Pauline Kim who surveyed workers subject to EAW and found that a majority had no idea that they could legally be fired at will. They believed that the law protected them from dismissal without cause. Now I ask you, how frequently do you think employees in those workers’ workplaces were dismissed arbitrarily? Obviously it was rare, or you’d expect workers to have noticed.

I work in a large organisation. I have no idea of the frequency with which employees are dismissed. This is not a good basis for drawing any conclusion about that frequency. Maybe it rarely happens; maybe it happens a lot and I just don’t hear about it. Why would you expect that I would hear about it, if it were happening?

17

Dr. Hilarius 03.06.18 at 5:12 am

If arbitrary firing of at-will employees is rare then getting rid of at-will employment shouldn’t be much of a burden on employers.

18

Ian Maitland 03.07.18 at 10:01 pm

Hilarius @ 17

I didn’t say firing at will is rare. I said that arbitrary firing at will is rare.

Employers want to be able to fire bad employees without finding themselves sucked into a quagmire of endless litigation. (PS Other employees are in favor as well. Don’t forget the inconvenience they are put to covering for no-shows, etc.).

If employees agree that the fired employee deserved to be fired, that is perfectly consistent with a belief that employers have to show cause for dismissals.

PS, as the saying goes, employees can fire their employers too — by quitting.

19

J-D 03.07.18 at 11:46 pm

Ian Maitland

Other employees are in favor as well.

How do you know that? What is the evidence of employees supporting increased power for employers to dismiss employees?

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