[ol]
[li]I don’t understand what you have against the 1st amendment.[/li][li]I don’t understand why you think employers should give up their right to fire or discipline their employees.[/li][/ol]
Then let’s mandate at will nationwide. Assuming you’re serious.
Or, let’s get rid of it altogether, if that’s what you want.
In addition to an expansive view of our right to freely express ourselves, I believe in a rather expansive view of our right to freely associate (or not associate) with who we please, including in employer-employee relationship. That being said, I think it’s probably foolish and unkind to fire an employee for simply being a misguided Greenie, I just don’t think government intervention is an appropriate remedy for that foolishness and unkindness.
If we did, at least that would be philosophically consistent. But if we do support living in a state where employment is NOT at will, then it’s entirely reasonable to mandate under what terms employers can fire employees.
Taking as a whole, all the laws that restrict employers basically say, “Hire and fire strictly for business reasons.” Smart companies follow that rule of thumb religiously. Straying from that can get you in legal trouble, because in the real world the number of laws restricting the reasons you can fire someone varies greatly by jurisdiction and there are a rather large number of such laws. Unless you have a good legal department you probably want to keep things strictly professional, rather than firing employees because you didn’t like their Facebook post criticizing the President.
I think adaher has identified a knotty problem in a free society. (We have a lot of those.) And I think he’s right to complain about motivated reasoning in some of the counter arguments in this thread.
Even though the First Amendment only protects against government censorship (see that one xkcd comic and a thousand internet memes), “free speech” is a value that we’ve generally held to be important for reasons besides “don’t be an evil dictatorship that punishes thoughtcrime.” JS Mill’s On Liberty, as I recall, has some really good pragmatic arguments about why unpopular speech should be encouraged. Like, sometimes unpopular ideas are correct (or partly correct, or are incorrect but will inspire future more correct idea as people argue against them, or…). Free speech doesn’t only make us freer; it makes us smarter. (Let’s hope so.)
And let’s not be naive here: losing one’s job over speech may not be government censorship, but its effect can be worse – thanks, fraying social safety net! (Seriously – if I got fired for advocating, say, socialized medicine, my best recourse would be a Kickstarter or whatever. And we shouldn’t be crowd-funding this stuff.)
On the other hand, the line between speech and action is blurry as hell. (Fuck that “sticks and stones” noise; words can hurt, and a lifetime of hurtful words can be very damaging.) We’d probably feel fine about David Duke getting fired from his cashiering job at the local supermarket for making a habit of slapping the store’s black customers during his free time, whether he was criminally charged or not; can we really argue that his hurtful speech about those customers in his free time isn’t a significant injury, too?
This is a complex conflict between different interests and values. We weigh those interests and values differently, so we’ll resolve those conflicts differently. I’m frankly much more comfortable with a case-by-case muddling through of these issues than I am with attempts to draw new categorical rules (all employees’ extracurricular speech is protected! No, none is!) Not that muddling through is very satisfying, either – but at least it acknowledges the ambiguities and conflicts, and allows for relitigating the really tough cases.
I’ve cited Stanley Fish’s free-speech-skeptical essay before. http://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf
It’s unsatisfying, and there’s something that fundamentally bothers me as a Murrican about codifying free-speech exceptions into law (as Germany does); nevertheless, I’m increasingly convinced that we should be more honest about why we consider this or that cow sacred, and maybe carve off a rib or two when necessary.
Everyone is concerned with “burdensome regulations” on just about everything, including employers’ prerogatives. The disagreements are about what qualifies as “burdensome”. And about how to measure these concerns against competing concerns.
Except that protections for political speech are not particularly burdensome and many states have them. So what is the competing concern?
I’m not sure if I have any problem with existing protections. So far, as described, they seem pretty different than your proposal.
The California law that you linked to appears to require “employers to post a notice to employees advising them of provisions for taking paid leave for the purpose of voting in statewide elections.” I was responding to the question “Businesses could fire employees who took unauthorized time off to vote?” If they’ve followed the proper procedure to get authorized time off, it’d be wrong to fire them. If they are taking “unauthorized” time off, like just not showing up for work, or just leaving in the middle of the day, fire away boss!
Does that clarification / reiteration alter your characterization of my post as “suck it up, buttercup – if I can do it, you can too”
Perhaps in some specifics, although some go even further, making it a criminal offense to retaliate against employees for political speech. Some go further, some are narrower.
But the general ideal, that poiltical speech should enjoy SOME protection from private retaliation, does seem to be supported by some law, which is something I did not know before I posted this thread. This encourages me, because it shows that it’s not just an ideal that few support, there have actually been moves in the past to get these protections enshrined in state and local law. Although I’d love to know who was behind these moves. Was it business pushing for it? Activists that felt persecuted? Complaints from supporters of specific politicians that their employers had retaliated against them for their efforts on their behalf?
Personally I’m interested in the different laws in different jurisdicitons because I find it fascinating. I’m not sure how I feel about these types of protections, but I do think the issue of Nazis and white supremacists is a red herring simply because their numbers are so small.
When I think about the issue of on the job or off the job activity, I think more of things like:
[ul]
[li]organizing a petition[/li][li]supporting gay marriage[/li][li]anti/pro war demonstrations[/li][li]miscellaneous protests[/li][li]lobbying for/against mandatory vaccinations[/li][li]school board participation/activity[/li][li]vehicular bumper stickers[/li][li]animal rights advocacy[/li][/ul]
Basically, there are a lot of things that a person can do outside of work that really don’t affect their ability to be a good employee and I’m not sure if retaliatory action is wise, or even if unwise, should be illegal.
Totally does – sorry I missed the “unauthorized” in adaher’s proposal. My bad! It makes a reasonable policy position – “require employers give employees time off to vote” – unreasonable.
Sorry for the misrepresentation of your view, Ditka. I was too focused on your assertion that these people should vote before or after work like the rest of us --separate from the “unauthorized” issue.
Yeah, if people can ask for time off to vote but don’t, I don’t have much sympathy. OTOH, I think it’s good that employers be required to offer that option, within reason, etc.
All of the above, plus [dunh dunh DUHHHHN] labor unions.
If you’re a worker, and you fear being treated unfairly by your boss, collective bargaining is a great way to express your concerns and set up legal protections. It’s at least as flexible and responsive to changing circumstances as anything you’ll get done through extra-union politics!
And because it would almost certainly trigger the exceptions built into such laws. Exceptions like “ability to treat others fairly”, or “lawful political advocacy”. While advocating for white supremacism is legal, the methods are not always. An employer could cite unlawful gatherings without a permit or being involved in a violent protest, depending on the specifics of their jurisdiction’s laws.
I’d also note that despite “at will” laws, most employers use a form of progressive discipline to shield themselves from lawsuits. Smart employers document all violations of company policy and give warnings, firing for the first offense only for gross misconduct. I too have been in management, and getting rid of employees is not so simple as “I think you’re a sucky worker, you’re fired.” regardless of Florida’s at will laws. You’ve got to document, you’ve got to counsel, you’ve got to warn, you’ve got to train. In that environment, I just don’t see political protections as piling much of a new burden on. Employers are already trained by our legal system to limit employment decisions to business concerns. It’s just that sometimes an angry online mob can become a “business concern”, and that’s what I’m most concerned about rendering harmless.
Right. This stuff is complicated. It’s to everyone’s benefit that we don’t rely on abstractions like “free speech” or “at-will employment” – we should draw boundaries as clearly as we can and have avenues to pursue when people feel they’ve been treated unfairly.
(For all its imperfections, our current legal/constitutional scheme tries to do these things, and I’m very skeptical of any proposed alternatives that don’t take both into account.)
No problem, and I agree with your “more generally” advice. I can even see how my response came off a little bit like “suck it up, buttercup”. If it helps, I’m keenly aware that I’m quite fortunate to have a very flexible work schedule and easygoing boss that will work with me to accommodate things I want / need to do, and that most people aren’t that lucky. I don’t have a lot of first-hand experience, but I can easily imagine the challenges that, for example, a single mom working two jobs might have finding time to vote. It’s one reason I like the general trend towards making vote-by-mail more common: it’s really, REALLY convenient to get your ballot weeks ahead of the election and have time to mull it over and send it in at your leisure. I don’t really mind California’s law about posting notification either. People should be afforded a reasonable opportunity to vote.
More generally, people should be afforded an opportunity to participate in politics without fear of employer retaliation. I don’t see why voting is more special than free speech and deserves accomodation where free speech does not.
I, for a little bit, thought that political affiliation actually was protected, and it was only here that I learned differently. When we had the thread on Kaepernick, I had to go back and look at my labor law poster, because I was sure it said something about political affiliation, I was incorrect on that.
It makes a certain amount of sense, though, the other protected classes are things that you cannot change about yourself (with the possible exception of religion), political affiliation is not. People change their political affiliation all the time. I was born and spent my childhood and my early adult life as a pretty right wing republican, as that was how I was raised. I’ve been on the left side of things for a couple decades, and as I am older and have a business, it would technically probably be time for me to start supporting the conservatives, and I might do that, if they stop being a party that I cannot support.
I would be against digging into someone’s personal life to find things to fire them for, but if someone puts stuff into the public, I don’t see why I should have to pretend I don’t know that about them. I have a couple of jewish employees who would probably not feel comfortable working with a nazi. I have a few other minority employees who would probably not appreciate working with a white supremacist. I know my clients would not allow me to have a nazi work on their dog. To be honest, I do not think I could be a fair employer to a nazi if I had to keep them.
So, since you are against employers being allowed to fire an employee because that employee will cuase other employees to quit, would you also want to put in protections that prevent an employee from quitting due to the political affiliation of their co-workers? I know you already have some method you think you will accomplish to avoid boycotts, but I don’t think that that will work either. It’s not a matter of customers saying “I will not give you money until you fire the nazi.” it is a matter of them saying “I will not patronize a business that has nazis on the payroll. I do not want nazis working on my dog, or making my food, or working on my car, or fixing my car stereo.” People will boycott, they will got o a business that does not employ nazis. Employees will quit, they will go work at a business that does not employ nazis.
All your proposal will end up doing is causing any business that inadvertently hired a nazi to go out of business once the nazi starts nazi’ing. There will be no customers, and no employees other than the nazi, and he will probably quit to go to somewhere that can give him hours.
You may ask, what if you replaced nazi with a different movement, like a gay rights movement? And I would reply that the legal basics are the same, the difference would be the attitude that I, my employees, and society would have towards it.
I have no problem working with someone who advocates for gay rights outside of work. My employees would have no problem with it, and if they did, then I would be more likely to be putting their jobs on the line than the advocate. My customers would have no problem with it, and if they did, well, I’ve already fired a few customers for saying racist things to my employees, and I am sure I will have to do so in the future, I can tolerate bigots as clients, but I cannot tolerate bigotry in my shop.
So, employees won’t quit, customers won’t leave, and I don’t have to work with a nazi.
I’m actually sympathetic to the idea that you should be able to decide who you want to work with. What I’m more worried about is your business being threatened by cybermobs if you don’t hand over someone they are mad at to them, figuratively, by firing them. As a business owner I’m sure your pride would rebel against being forced to fire an employee by some assholes offended by what your employee posted on Twitter.