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Rights in the Workplace: A Nozickian Argument Author(s): Ian Maitland Source: Journal of Business Ethics, Vol. 8, No. 12 (Dec., 1989), pp. 951-954 Published by: Springer Stable URL: http://www.jstor.org/stable/25071990 Accessed: 18-02-2016 04:16 UTC

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Rights in the Workplace: A Nozickian

Argument lanMaitland

ABSTRACT. There is a growing

literature that attempts to

define the substantive rights

of employees

in the workplace,

a.k.a. the duties of employers

toward their employees.

Following Nozick, this article argues that

? so long

as there

is a competitive labor

market ? to set

up a class of moral

rights in the

workplace invades workers'

rights to

freely choose the terms and conditions of employment they judge best.

There is a growing literature that attempts to define

the substantive rights of workers in the workplace,

a.k.a. the duties of employers toward their workers.

Thus it has been proposed that employers have (at least prima facie) duties

to provide workers with

meaningful/fulfilling/self-actualizing work, some

degree of control over work conditions, advance

notice of plant closures or

layoffs, due process before

dismissal, etc. (See, for example, Goldman, 1980;

Schwartz, 1984; Donaldson, 1982; Werhane, 1985). The argument of this paper is that in

a competi

tive labor market these standards are superfluous and, indeed, may interfere with workers' rights

to

freely choose their terms of employment. Further

more, these supposed moral rights in the workplace

may come at the expense of non-consenting third

parties ? like other workers or consumers.

Ian Maitland is associate professor of business, government

and

society at the University oj

Minnesota. He is author oj

The

Causes of Industrial Disordoer (Routledge and Kegan Paul,

?983) and articles in the Journal of Politics, Academy of

Management Review, Journal of Business

Strategy, British

Journal of Industrial Relations, California Management Review and elsewhere. In 1988 he ran unsuccessfully for

U.S.

Congress.

Nozick on meaningful work

Since my argument basically extends Nozick's (1974,

pp. 246 ff) discussion of meaningful work, let us

start with that. Assuming that workers wish to have

meaningful work, how does and could capitalism

respond? Nozick notes that if the productivity of

workers rises when the work tasks are segmented so

as to be more meaningful, then individual employers

pursuing profits will reorganize the production pro cess in such a way out of simple self-interest. Even if

productivity were to remain the same, competition

for labor will induce employers to

reorganize work

so as to make it more meaningful.

Accordingly, Nozick says, the only interesting case to consider is the one where meaningful work

leads to reduced efficiency. Who will bear the cost of

this lessened efficiency? One possibility is the em

ployer. But the individual employer who unilaterally assumes this cost places himself

at a competitive

disadvantage and eventually ? other things equal

?

will go out of business. On the other had, if all

employers recognize their workers' right to mean

ingful work (and if none

cheats), then consumers

will bear the cost of the industry's reduced effi

ciency. (Presumably, too, we would have to erect

trade barriers to exclude the products of foreign

producers who do not

provide their workers with

meaningful work, otherwise they would drive the

domestic industry out of business).

What about the workers? If they want

meaningful work, they will presumably be willing

to give up

something (some wages) to work at meaningfully

segmented jobs:

They work for lower wages, but they

view their total

work package (lower wages plus

the satisfactions of

Journal of Business Ethics 8: 951-954, 1989.

? 1989 Kluwer Academic Publishers. Printed in the Netherlands.

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952 Ian Maitland

meaningful work) as more desirable than less

meaningful work at

higher wages. They make a trade-off. . .

Nozick observes that many persons make just such

trade-offs. Not everyone, he says, wants the same

things or wants them as strongly. They choose their

employment on the basis of the overall package of

benefits it gives them.

The market for meaningful work

Provided that the firm's lessened efficiency is com

pensated for by lower wages, then the employer should be indifferent between the two

packages

(meaningful work at lower wages or less meaningful

work at higher wages). Indeed, if workers prize

meaningful work highly, then they might be pre

pared to accept lower wages than are necessary

simply to offset the firm's lower productivity.

In that

case, entrepreneurial employers seeking higher pro fits should be expected

to offer more meaningful work: they will, by definition, reduce labor costs by an amount greater than the output lost because of

less efficient (but more

meaningful) production methods. In the process, they will

earn higher profits

than other firms (Frank, 1985, pp. 164?5). In other words, there is a market for meaningful

work. The employer who can find the combination

of pay and meaningful work that matches workers'

desires most closely will obtain a

competitive advan

tage. Thus Goldman (1980, p. 274) is wrong when he

claims that "profit

maximization may . . . call... for

reducing work to a series of simple menial tasks." On

the contrary, profit

maximization creates pressures

on employers

to offer workers meaningful work up to the point where workers would prefer higher pay to further increments of meaningfulness. Goldman's

claim holds only if we assume that workers place

no

value at all on the intrinsic rewards of their work.

To "legislate" moral rights

in the workplace to a

certain level of meaningfulness, then, would inter

fere with workers' rights to determine what

package of benefits they

want.

Extending the logic (l): employment at will

In her discussion of employment at will (EAW),

Werhane (1985, p. 91) says "[i]t is hard to

imagine that rational people would agree

in advance to being fired arbitrarily in

an employment contract." Ac

cording to her estimate, only 36% of the workforce is

covered by laws or contracts which guarantee due

process procedures with which to

appeal dismissal.

Werhane regards EAW as a denial of moral

rights of

employees in the workplace. But, is it inconceivable that a rational worker

would voluntarily accept employment under such

conditions? Presumably, if the price is right, some

workers will be willing to accept the greater insecur

ity of EAW. This may be particularly true, for exam

ple, of younger, footloose and fancy-free workers

with marketable skills. It is also likely to be truer in a

metropolitan area

(with ample alternative employ ment

opportunities) than a small town and when the

economic oudook is good. Likewise, some employers may value

more highly

the unrestricted freedom to hire and fire (smaller businesses, for example) and may be willing

to pay

higher wages for that flexibility. There may be other

employers ?

larger ones in a position

to absorb the

administrative costs or ones with more stable busi

nesses ? who will find it advantageous

to offer

guarantees of due process in return for lower wages. Such guarantees are also more likely

to be found

where employees acquire firm-specific skills and so

where continuity of employment is more

important

(Williamson, 1975).

According to this logic, wage

rates should vary

inversely with the extent of these guarantees, other

things equal. In other words, workers purchase their

greater security in the form of reduced wages. Or,

put another way, some firms pay workers a premium to induce them to do without the guarantees.

If employers were

generally to heed business

ethicists and to institute workplace due process in

cases of dismissals ? and to take the increased costs

or reduced efficiency out of workers' paychecks

?

then they would expose themselves to the pirating of

their workers by other (less scrupulous?) employers who would give workers what they wanted instead

of respecting their rights. If, on the other hand, many of the workers not

currently protected against unfair dismissal would in

fact prefer guarantees of workplace due process ?

and would be willing to pay for it

? then such

guarantees would be an effective recruiting tool for

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Rights in the Workplace 953

an entrepreneurial employer. That is, employers

are

driven by their own self-interest to offer a package

of benefits and rights that will attract and retain

employees. If an

employer earns a

reputation for

treating workers in a

high-handed or inconsiderate

way, then he (or she) will find it more difficult (or more

expensive) to get new hires and will experience

defections of workers to other employers. In short, there is good

reason for concluding that

the prevalence of EAW does accurately reflect work

ers' preferences for wages

over contractually guaran

teed protections against unfair dismissal. (Of course,

these preferences may derive, in part, from most

workers' perceptions that their employers rarely abuse EAW anyway; if abuses were widespread, then

you would expect the demand for contractual guar antees to

increase).

Extending the logic (2): Plant closure/layoff notification

Another putative workplace right is notice of im

pending layoffs or

plant closures. The basis for such a

right is obvious and does not need to be rehearsed

here. In 1988 Congress passed plant-closing notifica

tion provisions that mandate 60-days notice. Earlier

drafts of the legislation had provided for 6 months'

advance notification.

But the issue of interest here is employers' moral

responsibilities in this matter. The basic argument is

by now familiar: if employers have

not universally

provided guarantees of advance notice of layoffs, that reflects

employers' and workers' choices. Some

workers are willing to trade off job security for

higher wages; some

employers (e.g., in volatile busi

nesses) prefer to pay higher wages in

return for the

flexibility to cut costs

quickly. If employers have

generally underestimated the latent demand of

workers for greater security (say, as a result of the

gray1'ng of the baby boomers), then that presents a

profit opportunity for alert employers. At the same

(or lower) cost to themselves, they should be able

to put together an

employment package that will

attract new workers.

A morally binding workplace "right"

to X days'

notice of a layoff would preempt workers' and

employers' freedom to arrive at an agreement that

takes into account their own particular circum

stances and preferences. In Nozick's aphorism, the

"right" to advance notice may prohibit

a capitalist

act

between consenting adults.

It would mean, for example, that workers and

managers would be (morally) barred from agreeing to arrangements that might protect workers'jobs by

enhancing a firm's chances of survival. This

might be

the case if, say, the confidence of creditors or inves

tors would be strengthened by knowing that the

firm would be free to close down its operations

promptly if necessary.

Likewise, the increased expenses associated with a

possible closure might deter firms from opening new

plants in the first place ?

especially in marginal areas

where jobs are most needed. In that case workers

won't enjoy the rights due them in the workplace because there won't be any workplace. As McKenzie

(1981, p. 122) has pointed out, "[restrictions on

plant

closings are restrictions on plant openings."

The effects of rights to notice of layoffs

are not

limited to the workers. If resources are diverted from

viable segments of a (multiplant) firm in order to

prolong the life of the plant beyond its useful eco

nomic life, then the solvency of the rest of the firm

may be jeopardized (and so too the jobs of other

workers). If the obstacles to plant shutdowns

are serious

enough and if firms are

prevented from moving to

locations where costs are lower, then (as McKenzie,

p. 120, points out) "Workers generally must pay

higher prices for the goods they buy. Further, they will not then have the opportunity of having paying

plants moving into their areas. . . ." And if such

restrictions reduce the efficiency

of the economy as a

whole (by deterring investment, locking up resources

in low-productivity, low-wage

sectors of the eco

nomy), then all workers and consumers will be

losers. Birch (1981, p. 7) has found that job creation

is positively associated with plant closures: "The

reality is that our most successful areas [at job

creation] are those with the highest

rates of innova

tion and failure, not the lowest." Europe has exten

sive laws and union agreements that make it pro

hibitively expensive to close plants, order layoffs

or

even fire malingerers and, not

coincidentally, it has

barely added a

single job in the aggregate in the

1980's (as of 1987). Europe's persistent high unem

ployment is usually attributed to such "rigidities" in

its labor market ? what the London Economist

picturesquely terms "Eurosclerosis."

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954 Ian Maitland

It may be objected by some that workers' "rights

claims cannot be overridden for the sake of economic

or general welfare" (Werhane, 1985, p. 80;

see also

Goldman, p. 274). This is probably not the place

to

debate rights vs. utilities, but this discussion raises

the question of whether workplace rights may some

times violate the rights of third parties (other workers,

consumers).

Respecting workers' choices

The argument of this paper has been that to set up a

class of moral rights in the workplace may invade

a

worker's right to

freely chose the terms and condi

tions that he (or she) judges are the best for him. The

worker is stuck with these rights

no matter whether

he values them or not; they are inalienable in the

sense that he may not trade them off for, say, higher wages. We might

not be willing

to make such a

trade, but if we are to respect the worker's autonomy, then his preferences

must be decisive.

Along the way the paper has tried to indicate how

competition between employers in the labor market

preserves the worker's freedom to choose the terms

and conditions of his employment within constraints

set by the economy. This competition

means that

employers' attempts to

exploit workers (say, by

denying them due procesa in the workplace without

paying them the "market rate" for forgoing such

protections) will be self-defeating because other

would-be employers will find it profitable to bid

workers away from them by offering more attractive

terms. This point bears repeating because many of

the accounts of rights

in the workplace seem to

assume pervasive market failure which leaves em

ployers free to do pretty much what they

want. Any

persuasive account of such rights has to take into

account the fact that employers' discretion to uni

laterally determine terms and conditions of employ

ment is drastically limited by the market.

References

Birch, David: 1981, 'Who creates jobs?', Public Interest (vol. 65), fall.

Donaldson, Thomas: 1982, Corporations and Morality (Prentice Hall, Englewood Cliffs, N.J.).

Frank, Robert: 1985, Choosing the Right Pond (Oxford Uni

versity Press, New

York). Goldman, Alan: 1980, 'Business ethics: profits, utilities, and

moral rights', Philosophy and Public Affairs 9, no. 3. McKenzie, Robert: 1981, 'The case for plant closures', Policy

Review 15, winter.

Nozick, Robert: 1974, Anarchy, State and Utopia (Basic Books,

New York). Schwartz, Adina: 1984, 'Autonomy

in the workplace',

in

Tom Regan, ed., Just

Business (Random House, N.Y.).

Werhane, Patricia H.: 1985, Persons, Rights and

Corporations

(Prentice Hall, N.Y.). Williamson, Oliver E.: 1975, Markets and Hierarchies (Free

Press, N.Y.).

University of Minnesota,

Minneapolis, MN 55455, USA.

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