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Can They Do That?

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Image: Lew MaltbyLynn Gobbell was fired because her boss didn’t like the bumper sticker on her car.  During the 2004 presidential election, Gobbell put a “Kerry for President” sticker on her bumper.  When her boss saw it, he ordered her to the sticker off.  When she refused, he fired her.

Most people think that what happened to Gobbell was illegal, but they’re wrong.  What her boss did was wrong, but it wasn’t illegal.

What about the Constitution?  Doesn’t the First Amendment protect our right to freedom of speech?  The answer is yes, but only where the government is concerned.  Unlike millions of people in other countries, Americans can openly criticize the government or advocate for positions that are controversial or even offensive without fear of retribution.

But the first amendment applies only to the government.  A private corporation, no matter how large or powerful, can legally ignore the first amendment.  Too many employees have learned this the hard way, when their boss fires them for something they say on their personal blog or MySpace page.

In my upcoming book Can They Do That? Reclaiming Our Fundamental Rights in the Workplace, I explain how all your Constitutional rights essentially go up in smoke the moment you go through the office door.  In addition to free speech, your right to privacy disappears.  While the government has to get a court order to read your e-mail, your boss can (and will) read your e-mail, including messages on sensitive personal subjects, for his/her own amusement.  This breach of privacy extends even further than email – it includes video monitoring, too. When Gail Nelson found out that male security guards were watching her undress in her office after work to get ready for the gym, her suit was dismissed.  She didn’t even get a trial.

Even worse nightmares are coming.  At least a million Americans carry company-issued cell phones, all of which are equipped with GPS.  Any of these employers are at liberty to track their employees 24 hours a day, 7 days a week, 365 days a year.  It could be happening to you right now without your knowledge.  The growth of biometrics (such as electronic fingerprints) may enhance security in some locations, but it also opens the door to identity theft on an unprecedented scale.  No one knows what to do when a hacker, or dishonest employee, gains access to a database containing thousands of fingerprints.

Not only may your boss know where you are every minute of your life, he may control it as well.  Thousands of companies order employees not to smoke or drink, even in their own homes, and fire those who disobey.  As the wellness movement grows, employers are expanding these rules to include diet, exercise, and potentially dangerous hobbies like skiing.

The few rights we do have exist because of federal or state legislation, such as laws prohibiting discrimination based on race, gender, religion, and other improper bases.  But even these rights are in jeopardy as employers require employees to “agree” to give up their right to go to court if their rights are ever violated.  Instead, employees must go to arbitration, where they have few rights to a fair hearing.

Can They Do That? explains what you can do to protect your rights under current law, and how we can change the law to restore our fundamental rights when we go to work.

About the Author: Lewis Maltby is president and founder of the National Workrights Institute and former Director of Employment Rights for the ACLU. He has testified before Congress many times on employment issues and appeared on 60 Minutes, Larry King Live, and Oprah. His views on employment law have been quoted in the New York Times, Washington Post, and other leading publications. He lives in Princeton, New Jersey and is the author of Can They Do That?: Retaking Our Fundamental Rights in the Workplace.

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Labor is Not a Four-Letter Word

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Several years ago, an upscale supermarket opened in Princeton, where I live. The store was non-union and members of the local UFCW were picketing. Not only did virtually all of my liberal Democratic neighbors cross the picket line as if it weren’t there, when I asked them about it later, they laughed at me.

There was a time when Americans, or at least Democrats, understood the importance of unions. That time has passed. While Democratic leaders support unions and the right to organize, many people who drive a Prius, are pro-choice, oppose the war in Iraq, and support gay rights don’t believe that unions are important. They believe that unions made sense in the 1950’s, in a mass production industrial economy, but that they don’t fit in with the new flexible information based economy.

They couldn’t be more wrong. As the song says, “the fundamental things apply as time goes by”. A fundamental rule of employment is that compensation is a zero sum game. Workers and management can cooperate to increase productivity and increase profits. But when it comes to dividing up the pie, a dollar that goes to management bonuses or shareholders is a dollar that will not go to workers.

Rule number two is that there is strength in numbers. While unions may have less bargaining power than in the past, workers negotiating as a group inherently have more leverage than workers negotiating on their own. Union members continue to earn significantly higher wages and benefits than comparable workers who do not belong to a union. This has always been important to working families. A few thousand dollars a year can mean being able to afford a modest vacation or building a college fund for their children. The extra income received by union workers is especially important at a time when wages are stagnating.

The other principal benefit of unions is less commonly recognized. Despite the greatly publicized exceptions, the law of employment at will reigns in the American workplace. Hard data is elusive, but after 10 years at the helm of the ACLU’s national employment rights office and almost 10 more as head of an independent workplace rights group, I have lost count of the workers who have called me after being fired for the most outrageous reasons imaginable. My personal “favorite” was the man from Pennsylvania who was fired for filing a policy report when he was assaulted by a co-worker who was a drinking buddy of the boss. Although one could argue that the man from Indiana who was fired for having a few beers in a neighborhood tavern after work (the employer was a teetotaler) or the woman from Alabama who was fired for having a “Kerry for President” bumper sticker on her car should win the prize. In virtually all of these cases (including these three), I had to tell the workers, “there’s nothing anyone can do to help you”. Everyone else I know in the field has comparable stories to tell.

This doesn’t happen in union shops. Collective bargaining agreements invariably contain a provision that allows discharge only for just cause, as interpreted by a neutral arbitrator. Just cause protection is like life insurance; there’s a good chance that you won’t need it, but having it when you need can save your family.

How we acquired our collective amnesia about the importance of unions is a mystery. Some chalk it up to well-publicized stories of union corruption. But Enron’s “Kenny Boy” Lay and other board room bandits have received equal coverage, if not more, without turning Americans against management.

What is clear is that Americans need to hear more about unions and how they help real people. Workers that belong to unions need to tell their friends and neighbors about how the union has improved their lives. And labor needs to tell these same real life stories in its public education programs.

The battle isn’t lost. Most Americans still care about what happens to ordinary people when they go to work. They just need to be reminded about how unions make people’s lives better.

About the Author: Lewis Maltby is founder and president of the National Workrights Institute, a not-for profit organization dedicated to expanding human rights into the workplace. Maltby has testified before Congress many times regarding electronic monitoring, drug testing, arbitration of employment disputes, the right to organize, and other issues. He is the author of 6 model statutes on which more than 40 state statutes have been based.

Maltby’s remarks on workplace rights have been featured the New York Times, Washington Post, Wall Street Journal, Los Angeles Times, Time, Newsweek, and other major publications. He has appeared on Larry King Live, Oprah, Crossfire, NPR, and other major television and radio outlets.

Prior to founding the Institute, Maltby was director of the ACLU’s national workplace rights project and executive vice president of Drexelbrook Controls, Inc., a leading manufacturer of industrial control systems. He began his career as a public defender in Philadelphia, Pa.

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