Today’s Topics

1. Today’s Topics Employee Rights and Duties

2. Employee Rights and Duties

3. Do Employees Need a Bill of Rights?

4. A Right Is Not Something Government Gives You, It is Something Government Cannot Take From You

5. Employment at Will • An employer may dismiss an employee for good cause, for no cause, or even for a cause that is morally wrong, without thereby being legally wrong.

6. Employment at Will Justifies: • Punishment for Exercising Free Speech • Punishment for Exercising Conscientious Objection • Punishment for Choice of Activities and Associations • Infringing Security and Privacy • Infringing Due Process

7. The Modern Corporation Is Very Much Like A Government • Size • Services Provided

8. Since Corporations Are Government-Like, Employees Need a Bill of Rights

9. Free Speech Free Association During Off-Duty Hours Conscientious Objection No Monitoring of Employees Without Knowledge and Consent Search and Seizure Only Relevant Information in Files No Gratuitous Slams No Disciplinary Action Without Written Justification Due Process Rights to Protect

10. Is The Industrial Democracy Analogy is Wrong • Government entrusted to exercise legitimate force • Costs of switching allegiance between employers is low

11. The Industrial Democracy Analogy Works ONLY in Cases of Monopsonistic Labor Markets

12. Monopsonistic Markets • Where there are few alternative employers, a large competitive labor supply, or exceptionally high costs of moving

13. Absent monopsonistic power, employer-employee relationships are the result of explicit and implicit bargaining that leave both better off. Each must be better off because each is free to terminate the relationship at will.

14. Readings on Employee Rights and Duties • Duska—Employee Rights • Machan—Human Rights, Worker Rights • Hartman—Workplace Privacy • Des Jardins--Moral Limits on Legitimate Testing • Waldholz--Differing Corporate Views of Drug Testing

15. Duska—Employee Rights • Human beings have natural rights (Blackstone) • “The primary end of human laws is to maintain and regulate these absolute rights of individuals” • How does this apply to the workplace?

16. Rights are: • Capacities, Possession, Conditions of existence • “Entitlements through which one lays claim to an object or state of being against another” (p. 258) • Rights are 3-Place Relational Predicates • ‘X’ has a right to ‘Y’ against ‘Z’

17. Rights and Duties • Are reciprocal (a right for ‘X’ imposes a duty on some ‘Y’) • Can be either positive (you must do something) or negative (you must not interfere with something)

18. Is there a right to work? • What would it mean to say that a person has a right to work? • Only in a socialist society (public ownership and control of the means of production)

19. Flow from the inequalities in power between employer and employee Safe work environment Due process and equal protection Privacy Compensation for Injury Pension protection Freedom from harassment Collective bargaining Living wage Employee rights

20. Machan—Human, not employee, rights • There are no special employee rights • The government/industry analogy IS wrong • Labor is a free market and employee rights would distort that market

21. Employee Rights are costly • Employers and employees bargain for rights and salary and BOTH are important in determining consumer cost • The reduction in personal liberty that workers sustain in the firm have a lower value than the increase in earning power. • Rights drive up consumer costs

22. Hartman—Employee privacy • The reality of workplace surveillance • 50% of firms search employee computer files (EFF) • Videotaping employee activities • Reviewing e-mail • Keystroke monitoring • Taping telephone conversations • Review voice mail

23. Why monitor employees? • Potential liability • Product Quality • Efficiency/Productivity

24. Reasonable limits on surveillance: • None in highly private areas (restrooms) • Limit monitoring to workplace • Employees must know about monitoring • No secret or continuous monitoring • Keep only relevant information • Monitoring should be linked to a legitimate business goal

25. DesJardin--Does Employee Drug Testing Violate the Moral Right to Privacy?

26. REMEMBER: A Right Is a 3-place Relational Predicate (Just Like ‘Responsibility’) • ‘X’ has a right to ‘Y’ against ‘Z’ • MUST know the right holder, the duty bearer and the substance of the right

27. A Right to Privacy Protects One Party Against Another Gaining Access to a Specific Piece of Information

28. One Party Violates Another’s Right to Privacy When One Gains Access to Information that Is Irrelevant to the Relationship or Contractually Protected

29. Is Knowledge of Past, Off-Duty Drug Use Relevant to the Employer-Employee Relationship?

30. Pro-Testing Thesis: Drug Use Is Relevant to: • Workplace Safety • Worker Efficiency

31. Anti-Testing Counter Argument • Performance is the issue, not the cause of the performance • This applies to both the Safety and the Efficiency arguments • Parity of reasoning arguments--why worry only about drug related impairment?

32. Drug Tests Are Not As Efficient as One Might Hope • EMIT is 99% sensitive and 90% specific • Assume a pool of 10,000 subjects, with a 5% use rate. • How confident are you that someone who tests positive is a user?

33. Drug Tests Are Not As Efficient as One Might Hope • EMIT is 99% sensitive and 90% specific • Assume a pool of 10,000 subjects, with a 5% use rate. • How confident are you that someone who tests positive is a user? • 34% of those who test positive are actually users

34. Performance Testing Provides a Better Alternative • It address performance and current impairment, not past usage • Performance is clearly relevant, so there are no privacy worries

35. Waldholz--Differing Corporate Views of Drug Testing • Peabody Kidder (investment bank) tests • Drexelbrook engineering does not

36. Peabody Kidder • Testing improves image • Sends a message about the corporation

37. Drexelbrook • The information testing produces is not very relevant • Testing well is very expensive • Testing demoralizes workers and violates privacy • Performance testing is a better approach