Towards a Worker's Bill of Rights

Towards a Worker's Bill of Rights

Gideon Scopes
Gideon Scopes

The traditional understanding of civil liberties has been that citizens have individual rights that cannot be violated by the government. This approach has no doubt protected the inhabitants of the United States and other Western countries from some of the worst abuses of power. Citizens cannot be jailed for their religious or political views or punished for a crime on a mere accusation with no trial. However, as society has evolved, we have reached an age in which individual liberty is most threatened not by the government but by large corporations.

There are those who will likely disagree with this premise, arguing that economic activity by private entities cannot infringe on civil liberties because individuals still have the right to choose to do business with other entities whose views are more aligned with their own. However, in the age of mass media and social media, this often does not play out in practice. Those who wish to see change face a variant of the prisoner’s dilemma. If a large group chooses to boycott companies who engage in illiberal treatment of their employees, they have a good chance of coercing those companies into changing their behavior. If a single individual or a small group pushes for change, they are more likely to derail their own careers than to advance their cause.  As such, only those with a great deal of courage are willing to speak out.

As a result of this, there is currently a climate in which workers live under threat of being terminated from their jobs for reasons that violate their individual rights. Google fired a highly accomplished engineer because he had the audacity to question the dogma that the gender gap in technology is solely the result of discrimination. Starbucks pushed out an employee who was the target of unsubstantiated allegations of racism. The CEO of Mozilla was forced to resign after activists objected to his political donations years earlier. And there is every reason to believe that there are many more instances involving everyday people that did not make the headlines.

There are serious questions that we ought to ask about whether this is the kind of world in which we want to live. While there is no doubt that those of us living in the West are far more free than those living under genuinely totalitarian regimes, we ought to question whether our civil liberties are truly protected when we can be fired from our jobs and left without a way of putting food on the table if we choose to exercise them. In the case of civil rights, we’ve recognized for more than half a century that protecting citizens from discrimination by the government is not good enough. We’ve therefore enacted legislation such as the Civil Rights Act, Title IX, and the Americans with Disabilities Act to ensure that individuals are not impeded from equal participation in society by private entities. However, other constitutional rights—including the all-important freedom of speech—remain unprotected against the actions of private entities at the federal level.

Even at the state level, protections that exist may be too weak to be effective. For example, New York protects an employee’s right to engage in “lawful off-duty conduct,” which includes political activities. However, political activities are defined very narrowly to include only running for office, campaigning for a candidate, or raising money for a candidate, party, or advocacy group.  This definition does not include expressing support for, or opposition to, proposed legislation, writing letters to elected officials, volunteering for a party or advocacy group in a capacity other than fundraising, participating in a non-violent protest, writing letters to the editor of a newspaper or magazine, or posting political content on a personal web site or blog. All of the above are widely recognized as activities that are essential to the healthy functioning of a liberal democracy. If corporations can punish citizens for engaging in these activities, then we ought to question how free we truly are.

Future employees at a Google training seminar in France

Therefore, the time has come to begin campaigning for a Worker’s Bill of Rights. This article proposes an outline of what such a measure might look like in order to provide a starting point for discussions.

Principles

A Worker’s Bill of Rights would not require any amendments to the Constitution and could be passed as ordinary federal legislation. Considering that enacting any such measures at the state or local level could cause companies to move their businesses to other states, these issues affect interstate commerce.  Therefore, the federal government has the power to pass such legislation under the Constitution.

Simply applying the Bill of Rights to businesses would not be appropriate. There are many things that would be unconstitutional if done by the government that employers have a legitimate interest in doing. For example, a company has a legitimate interest in prohibiting employees from preaching their personal political views in front of customers while on the job.  A company has a legitimate interest in prohibiting employees from bringing weapons into the workplace if it believes that such a restriction would help protect the safety of those who work there.

That said, this proposal for a Worker’s Bill of Rights is similar in sprit to many of the amendments to the United States Constitution and is therefore modeled upon them. Each section is based on a different amendment and outlines how the rights protected by that amendment should apply in the workplace. Not all amendments are included, as some of the address issues such as the quartering of soldiers or cruel and unusual punishment that are unlikely to arise in an employment context.

The protection of a right in the workplace shall be understood to mean that it will be unlawful for a company to terminate or otherwise punish an employee for exercising that right or to discriminate against an applicant for having exercised that right in the past.

Amendment I: Freedom of Speech

Employees shall have the right, when they are off the job, to engage in political activities of their choosing. Political activities shall include voting or campaigning for any candidate; expressing support for or opposition to any proposed legislation; advocating for new legislation on any issue or the repeal of any existing legislation; donating to any political campaign, political party, political action committee, or other political organization; volunteering with any such organization in any capacity; contacting elected officials by mail, telephone, email, social media, or any other means; participating in non-violent protests; and writing books, opinion pieces, letters to the editor, blog posts, social media posts, or any other type of written or electronic content advocating any political position.

Employers shall have the right to prohibit employees from discussing certain political issues in the workplace. If they wish to do so, they must provide a written policy to all employees explicitly stating what issues cannot be discussed. Such a policy must allow or disallow discussion of a particular issue. It may not allow the expression of one position while disallowing expression of the contrary. This is consistent with the Supreme Court’s interpretation of the First Amendment as allowing subject discrimination while prohibiting viewpoint discrimination. An exception shall be made for certain non-profit employers such as political campaigns and political action committees, for which political advocacy is central to their mission. These employers shall be permitted to prohibit the expression of political views contrary to those for which they are advocating.

Employees shall have the right to criticize their employer’s treatment of employees in discussions with one another and while off the job. They shall have the right, whether individually or collectively, to express their grievances to their employer. Employers may prohibit employees from engaging in such criticism while they are in front of customers representing the company.

Amendment II: Right to Bear Arms

An employee shall have the right to own a weapon for self-defense or hunting as permitted by local, state, and federal law. An employer may prohibit employees from bringing weapons to the workplace if it determines that doing so would help to protect employees’ safety. An employer may terminate an employee who is convicted of a violent crime if it determines that retaining the employee would endanger the safety of others.

Amendment IV: Privacy

An employer may not, as a condition of employment, require that employees allow the company to search their residence, monitor their activities while not on the job, or provide the employer with access to personal email or social media accounts.  An employee shall have the right to engage in any lawful hobbies or leisure activities while off-duty.

Employers may choose to monitor employees’ use of company-provided electronic equipment, to search any personal property that employees bring to the office, and/or to use surveillance cameras to monitor employees while they are at work. However, employees have the right to be informed in writing if they are subject to search and/or monitoring at least 24 hours prior to such policy going into effect.  An employer may not use an electronic device, including but not limited to a camera on a company-provided laptop computer or smartphone, to monitor any employee while the employee is not on company premises. Any employer that does so without the knowledge of the employee being monitored shall be subject to criminal prosecution.

Amendment V: Due Process

In the event that an employee is accused of misconduct, including but not limited to discrimination, discriminatory harassment, and sexual harassment, the employee shall have the right to a hearing before being fired, demoted, or subject to a pay cut. In such a hearing, the employee shall have the right to know the charges of misconduct being made, to access all evidence being used to substantiate these charges, and to cross-examine any witnesses. Prior to offering testimony, all witnesses shall be advised that they will be subject to termination if they knowingly and deliberately make false statements that lead to another employee being fired, although they will also have the right to a hearing prior to such termination. The accused employee shall not be forced to make self-incriminating statements and shall have the right to be accompanied by an attorney or other support person of the employee’s choosing. In order for an employee to be punished, the employee’s guilt must be proven by at least a preponderance of the evidence, although an employer may elect to use a more stringent standard of proof, provided that it does so in a written policy and applies this higher standard in all hearings.

Nothing in this section shall prevent an employer from discharging an employee whose performance does not meet the company’s standards or laying off an employee whose position is being eliminated.  In these cases, a hearing is not necessary.

Amendment XIV: Nondiscrimination

Employees and prospective employees shall have the right to be free from discrimination on the basis of the following protected characteristics: race, religion, ethnicity, sex, sexual orientation, gender identity or expression, national origin, age, disability, or genetics. This right shall be absolute, and there shall be no exceptions for discrimination in the name of promoting diversity or discrimination against “privileged” groups in the name of remedying the effects of past discrimination. Employers may not consider any protected characteristic when making decisions regarding hiring, promotion, or compensation. Employers may not restrict access to any outreach programs, internship programs, training programs, conferences, grants, or scholarships on the basis of a protected characteristic.

The Path to Adoption

Reaching national consensus that a Worker’s Bill of Rights is necessary will inevitably be a long and difficult process. This proposal will likely face opposition both from libertarians who oppose any government regulation of private businesses and by progressives who will incorrectly assume that free speech protections in the workplace would create a hostile environment for women and minorities. A successful campaign will need to draw support from across the political spectrum, appealing to those on the left who are frustrated with the concentration of power in the hands of millionaires and billionaires as well as those on the right who are frustrated with excessive political correctness that has cost well-meaning employees their jobs at companies such as Google and Starbucks. Compromise will certainly be necessary. This proposal is intended only to serve as a starting point on the long path to the enactment of a Worker’s Bill of Rights.

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Gideon Scopes

The author is a software engineer. Gideon Scopes is a pseudonym. Given the current climate surrounding political expression in the technology industry, his real name has been withheld.