** elbows matt_mcl to one side to post the apposite Anatole France-ism:
“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
Yeah, and since that is the only job that could ever possibly exist, your chances of becoming an indigent are 100%. I now see where my logic is faulty…
Nice point. However, there have been times and places (“company towns” early last century) where Evil Captor’s point was effectively true. And I uspect you can find communities and even small regions sufficiently depressed economically to make it true today. Also, the relative difficulty some people experience in getting another job tends to put employers at an advantage regarding the conditions of their work.
Unless EvilCorp, Inc is in collusion with the government, and assuming they have done nothing illegal, then the fact that you have no other external choices for employment doesn’t really matter. Move, or create your own job. The fact that the founders of EvilCorp were able to create jobs, doesn’t mean they have to give one to you.
Here’s how you analyze this:
a) Do you actually have an employment contract. Yes, I understand that you stipulated such, but the majority of employer/employee relations in the U.S. are probably not governed by a contractual relationship. So, if you don’t have one, then you’re S.O.L (except for point 2, below). They can fire you if your kid bullied the manager’s kid at school, there aint much you can do about it.
b) Are there any superseding federal/state laws dealing with the employer/employee relationship? As has been pointed out, the US federal constitution makes very few restrictions on private relationships between private parties (including corporations). One of these is the Thirteenth Amendment’s restriction on Slavery. You can’t even voluntarily place yourself in servitude to someone else, for example.
So that hurdle cleared, you look to State Constitutional provisions, Federal law, state law, local laws, etc. all of which may have provisions limiting how the employer/employee relationship may work. Civil rights laws, for example, are in this class
c) Now we circle back to the employment contract. If you have a contract and the contract seeks to limit an activity that isn’t touched upon by other laws, then the only remaining question is whether that contract term is unconscionable. If a court would find your contractual provision dealing with your employer’s attempt to limit your ability to write about tibet unconscionable, then it will get thrown out of the contract and the employer won’t be able to enforce that provision.
At that point, you can’t answer with any sort of definitiveness whether or not Employer X can limit Employee Y’s activities to A, B, or C.
Good analysis, Rumor. However, allow me to point out that the courts have often held in favor of a tacit, effective contract of employment when the words and deeds of the employer evince an implication that there are acceptable and unacceptable behaviors for employees. For example, the existence of an Employee Handbook or a list of prohibitions posted in a place public to employees such as a break room may be construed to mean that behavior not contrary to the contract or prohibitions list is in fact not grounds for termination. (Making it “termination without cause” or possibly even “for improper cause” in terms of labor law.)
I wouldn’t gripe with your point about implied contracts (I didn’t bother with them as they weren’t really applicable to the notion of how far an employer can go to limit an employee’s activities)
but I would really question, in an at-will employment regime, whether the existence of an implied contract touching on certain aspects of the e/e relationship can get interpreted to mean that the employer can only fire you for cause (i.e. violation of the implied terms of the employment relationship). (now, obviously, this may be different for unemployment insurance rules for charging employers for a firing or stuff like that)
I don’t know of any example of it ever happening, but I’m certain that seven kinds of shit would hit the fan if a corporation ever tried to coerce how it’s employees vote in elections. Possibly it’s happened that in a company-owned town the local officials were bribed and ballot boxes were stuffed or certain people discouraged from voting. But to flat out tell employees “vote Republican or you’re out of here”…
This was the first example I thought of as well.
The Constitution expressly forbids “unwarranted searches and seizures of the…person”, and despite the fact that there was no such thing as urinalysis in that day, this passage pretty clearly prohibits the federal government piss-testing you without cause/a warrant.
And last I heard, the feds don’t engage in such random testing of citizens for precisely this reason, but they have long been actively encouraging corporations/employers to do so, since THAT is not considered unconstitutional.
And yeah, they can fire you at will (or not hire you) for damn near any reason as long as they don’t come out and SAY it’s because of your race or age or sex or religion. (actually, SOME employers CAN discriminate based on religion, like the YMCA or other organizations with a religious bent, but run of the mill secular corporations? No.)
no, the constitution does not expressly forbid “unwarranted” searches and seizures. it forbids “unreasonable” searches and seizures.
jeez, if you’re going to put quotes around something like this (i.e. not a paraphrasal quote) at least get it right.
because there’s a huge difference. the difference being the fact that the federal government is more than able to piss-test you without cause or a warrant in many circumstances. Think federal government employees and military soldiers.
and they are not “in bed” with private employers as some conspiratorial way to evade their prohibition on unreasonably drug testing random citizens.
Employment law is of course a huge field in each of the various states, but in addition to discrimination based on social groups, nearly all states prohibit certain other types of firings too.
Retaliatory discharge is a big one; that is, firing an employee for engaging in specifically protected conduct, such as filing a discrimination claim, or reporting an unsafe or illegal employment practice (ie., “whistle blowing”).
In many cases, employers are specifically prohibited from firing employees for filing suit against the company, such as workers’ compensation, ERISA or unpaid wage/overtime claims.
Let me help you nonetheless because it is obvious you do not see. Given that almost everyone NEEDS a job to avoid becoming indigent, and that almost all businesses REQUIRE signing over certain basic rights as part of the standard job contract, people are therefore COMPELLED to sign over their rights by corporations, there is little or no element of choice present. See?
Sure…
The concept of “job turnover” doesn’t actually exist. This is a lie that helps us feel sorry for companies.
“Resignation letters” are myths only in books of fiction.
“Weighing 2 or more job offers” only happens in the movies.
Since there is no element of choice, you are plucked away by the evil corporation from your high-school graduation ceremony and kept in bondage until the day you die. No choices at all.
Ruminator, if turning over basic rights wasn’t part of the standard employment contract, your words might mean something. As it is, leaving one employer who limits your rights to hire on with another employer who limits your rights is pretty much a meaningless change.
John, has it ever occurred to you that there is a reason that most people are not self-employed? You’re just forbidding EVERYONE from living under bridges again.
Then please create a company and be the boss that doesn’t limit any rights. You will have job applicants standing for miles eager to work for you.
Or are you saying these companies are limiting your rights to start a business?
Add the use of tobacco to the list of what companies can restrict their employees from doing.
Yes, one company among hundreds of thousands or millions or whatever the number is. That would solve everything. Whatever the reason that practically all companies choose to restrict employees’ rights in ways that governments do, there is no denying that they do it, and the ubiquity of the practice means that those practices are in fact denied to all, or practically all. Let’s get real here.
Yes it would. Evil Captor works at Evil Captor Inc and runs it the way he wants. Problem solved.
They do it because they are run by people – and people have preferences for who they want to associate with. They are not restricting rights if they can’t enslave you against your will. The (potential) employees voluntarily weigh the exchange of their compensation with the expectations of conforming with the company’s preferences.
If the employee finds that the conforming to the company’s guidelines is unacceptable, he needs to find another company with more acceptable rules, or freelance, or start a company, or go live with his parents.
If the current menu of available job choices are all equally bad, the employee needs to upgrade/update/change his skillset (go to school or self-study) so he can look at a different menu of job choices. If the current city doesn’t have attractive job listings, the employee needs to move to where the jobs are.
There are always choices.
It’s as real as it can get. In one of my first jobs, the company asked me to wear a pager to be on call. I refused, and quit the job. I got another job that didn’t require a pager. At another job, the company was closing my Florida office and required that I relocate to Pennsylvania. Instead of doing that, I quit and did freelancing. There are always choices. If there were no choices, I’d still be working at the fast food job I had when I was 16 and still asking permission to go to the bathroom. I’m 16 and I have NO CHOICES, my LIFE IS OVER, and I’m HELPLESS!!!