Free speech, unfair dismissal and unions

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.

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

“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”.

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

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”.

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?

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.

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?

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.