Ageism-Regulating Off-Duty Conduct
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chapter_4.docxChapter 4
In various occupations, workers may be prohibited from exercising certain rights that, outside the workplace, cannot (or, perhaps, should not) be restricted. At the same time, it has been argued that some behaviors may be restricted by some employers, even when the worker is not at work, or their off-duty activity or conduct. This can lead to difficult conflicts between employer and employee, as well as among employees. Here we will look at some restrictions that may be imposed to investigate to which rights restrictions employees can and cannot object. We will begin this discussion by looking at a real-life incident involving employee activity outside of the workplace.
In September 2012, a number of paramedics were placed on administrative leave by their employer for working for another company. The company, American Medical Response Incorporated (AMR) of Connecticut, provides emergency medical care (ambulances, paramedic services, etc.). The suspended paramedics were working for another company, Valley Emergency Medical Service (VEMS).
AMR argued that suspension was appropriate because the other company was a competitor, both companies having bid on a service contract. The paramedics, in response, argued that being suspended was a violation of their rights, and began preliminary work toward a lawsuit under Connecticut's Unfair Trade Practices Act.
What can and cannot any company control about what their employees do when they are not actually at work? AMR argued that the paramedics were aware that they could not work for a competitor; the paramedics claimed that AMR could not legally prevent them from doing so outside of the work they did for AMR.
4.1 The Issue: Restricting Employees' Rights as a Condition of Employment
The case involving the AMR employees is one example of the kind of conflict that arises in the workplace. Those who are in positions of management and those who work for management often have very different views of what is justified, in terms of what one can do with one's time off the job. As is so often the case in ethical disputes, few if any would accept the extremes here. For instance, probably no one would argue that salaried employees must do everything their bosses tell them; that would amount to something along the lines of one's boss dictating that worker's life. At the same time, just as few would argue that salaried employees can do whatever they wish, regardless of the effect on the company for which they work. It is in between these extremes that tensions arise, and where the rights of the employers must be weighed against the rights of the employees.
At-Will Employment
Workers are said to be at-will employees, meaning an employer does not need to show cause for terminating the worker in question, when they are not protected by union contracts, civil service law, or other such provisions. They can be fired for any reason that does not conflict with the law, and the employer is not obligated to show why the employee was fired.
There are some restrictions on at-will employment: employees cannot be fired for their race, religion, or sex/gender. They cannot be fired for informing on a company's illegal activity ("whistleblowing"), or for exercising certain rights such as taking maternity leave, voting, jury duty, or serving in the military.
In general, the burden is on the employee to show that the termination was unjustified, given the standard assumption that, unless made explicit at the time of hire, the worker is an at-will employee.
Conflicts of Commitment and Interest
The story about the paramedics raises a specific question of whether an employer can prevent employees from working other jobs (sometimes called moonlighting.) Often, companies develop policies that restrict outside employment, and these policies commonly focus on whether or not the outside employment generates a conflict of commitment, or a conflict of interest. Outside work that generates either type of conflict (or, obviously, both) would be prevented. While this language is often seen in university policies for faculty, the basic idea is applicable to many other contexts.
Conflict of commitment refers to outside work that, for one reason or another, prevents an employee from doing his or her job as it should be done. For instance, if a full-time teacher has another part-time job that prevents him from getting work returned to students on time, creates an increase in absences from the full-time job, or harms other aspects of the job, a conflict of commitment is present. The presumption here is that the employee's main job takes priority and should not suffer due to other work. If it does, that generates a conflict of commitment. Many universities impose strict policies regarding how many hours one can commit to outside work.
Conflict of interest refers to outside work that is for a company in competition with a person's employer. Imagine someone doing research for Drug Company A who is doing similar research for drug company B. Any discoveries or advances that the researcher makes for company A might be given to company B. This clearly indicates the researcher potentially has a significant conflict of interest; again, many universities and other research organizations, for this very reason, have strict policies against work that may even possibly lead to a conflict of interest.
The fundamental question to consider here is what rights an employer has to restrict what employees do in their free time, or when "off-duty." Consider the following examples; which do you think are legitimate policies for an employer to impose on an employee?
No employee can contribute to Facebook pages that criticize the company.
Any employee who is determined to have a drinking problem will be terminated.
No employee can publish material without the company's approval.
Any employee determined to be committing adultery will be terminated.
No employee can run for political office.
Any employee who uses a product sold by a competitor will be terminated.
No employee is allowed to purchase or view pornography.
As we saw, many employees fall under the category of "at-will employees," employees who may be terminated without cause. The details of this vary by state; in general, employees are "at-will" if they are not working under a written contract; this excludes union members, federal government employees, and any other situation in which an explicit contract is in force. Clearly, it is in the employer's interest to have the company's workers happy, satisfied, and productive; a situation that employees perceive as unfair can interfere with that job satisfaction. At the same time, employees cannot insist on things that either violate the conditions of employment or prevent the company from operating smoothly and profitably.
Consider, for example, an employee named Jim who published several articles in the local newspaper that were sharply critical of the things done by the company for which he worked; he then reproduced these articles on his website. There may have been some merit to Jim's complaints, but airing those complaints in the way Jim did not only damaged the company's reputation and its standing in the community but also provided a weapon for its competitors to use against it. For both reasons, the company's profits fell, and Jim was fired. Were his rights violated?
On the one hand, Jim was an at-will employee, so the company wasn't obligated to justify his termination. But even if it were so obligated, it is clear that Jim did not have the right to do the damage to the company he did, nor to do it in the way he did. Preventing him from further harming the company clearly outweighed whatever rights he might claim to free speech: His rights do not allow him to infringe upon the right of the company to be profitable, and thus harm not just the company as a whole, but also those who continue to work there. Here is a situation where one's right to free speech clearly can be restricted, and in the workplace, many such restrictions are legitimate and justified in order to protect the company's reputation, its profitability, and its responsibility to its stockholders.
States have worked hard to carefully describe what employees may legitimately do when not at work and what kinds of things may be prevented. Some states have extensive statements that indicate precisely what can and cannot be stipulated by an employer as permissible off-duty conduct; other states have considerably less detailed policies and legislation. Because the kinds of conflicts involved are relatively common, state legislatures continue to develop these policies, and what is and is not permitted has continued to change. Some states that did not have explicit policies now have them, while other states have made significant additions to the policies they already have. Some states do not have such policies.
Conduct Codes
Employers often provide employees with conduct codes—codes that stipulate clear guidelines and expectations of employees regarding how the employer expects employees to conduct themselves and do business. One notable and widespread example concerns drug testing.
Increasingly, companies have required employees to be tested for drug use. Many companies argue that this is a requirement for having responsible, productive employees; other companies insist that because of the nature of the job, safety requirements demand a clean and sober workforce. Furthermore, companies that provide services to the public that potentially carry some degree of risk have demanded drug-free employees to minimize that risk.
Some employees, however, have argued that this is a violation of their rights. If a person does his or her job well, is there any reason to impose drug tests on this employee? Is this an invasion of privacy? Indeed, some have suggested that company-wide drug testing may be a violation of the Fourth Amendment. That amendment states
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (U.S. Const. amend. IV)
The legalization of marijuana in certain states has complicated the issue of workplace drug testing.
It is not entirely clear that a mandatory drug-testing policy involves such "searches," or if they do, whether they are reasonable in the context of this amendment, particularly without a warrant.
The questions become still more complex when one considers whether the drugs used are legal or not. For instance, in Colorado, it is legal, for those 21 and older, to possess one ounce or less of marijuana. If an employee smokes marijuana at home over the weekend, can that employee be fired for using a substance that is legal? If so, would that justify firing an employee who smoked cigarettes, clearly a hazardous substance, yet legal for adults to purchase and consume? Another issue may arise when considering who offers services to the public that potentially poses risks to that public: It may be clear in the case of airplane pilots or cabdrivers, but should heart surgeons and firefighters be drug tested? Should elementary school teachers or parking lot attendants be drug tested? Is there a "slippery slope" here, indicating that if some part of society should be tested, then perhaps everyone should be? One might then ask if a society in which all its members are subject to drug testing would be a society that is consistent with the Fourth Amendment or, more generally, with American values.
The Argument for Drug Testing
The standard argument for drug testing relies on several premises, mentioned above:
Employers have a right to get fair value from their workers.
Drug usage leads to higher workplace absenteeism, increased medical costs, higher turnover, and less productive workers.
Drug users have a higher accident rate and thus pose a risk to the public.
THEREFORE
Drug use drives up costs for the employee, in addition to the increased risk to the public.
Employers are obligated to minimize costs and risks to the public whenever possible.
To minimize these costs and risks, employers must be able to identify drug users.
THEREFORE
Employers must have the ability to test employees for drug usage.
Of course, we might point out, in response to this argument, that many—if not all—of these things are also the result of alcohol abuse. We might take this to justify testing for alcohol use (and abuse), or we might see this as allowing employers too much leeway into investigating the habits of their employees. We might ask whether most people would be happy with employers (or politicians) setting standards for reasonable consumption of alcohol and determining when that standard has been exceeded through random, mandatory alcohol testing.
The Argument Against Drug Testing
The standard argument against drug testing relies on several premises, also mentioned above:
Employees have a basic right to privacy.
Mandatory drug tests do not indicate reasonable suspicion or cause.
Random, mandatory drug tests are not "reasonable searches" in the sense of that term in the Fourth Amendment.
Drug tests indicate presence of a drug, not impairment.
Drug tests have a history of unreliability.
Drug tests are humiliating and invasive.
Tests that invade a person's privacy without probable cause are not sufficiently reliable, are ineffective, and are humiliating, and should not be permitted.
Mandatory drug tests do all of these things.
THEREFORE
Employers should not have the right to perform mandatory random drug tests.
Naturally, proponents of drug testing do not accept this argument, responding that the potential risk to the public far outweighs any small inconvenience to an individual employee. Furthermore, one indication of current drug use is past use, and it is clear that drug use can generate substantial costs to a business. Of course, one who objects to such drug testing might argue that an employee's rights are not really subject to a cost–benefit analysis; if there is a presumed right to privacy, then that right cannot be abridged even if it leads to higher costs.
Case Study
Drug Testing Welfare Recipients
The state of Florida proposed a law that would require those who received funds from Temporary Assistance for Needy Families (TANF, also known as "welfare") be tested for drugs; a person who failed such a test would be ineligible to receive such payments.
The law was appealed, and Eleventh Circuit Appeals Court rendered its verdict. Consider the following:
If you were a judge, how would you rule on this case? Should recipients of these funds be subject to drug testing? What are your reasons for deciding as you did?
If these recipients should be drug tested, does it follow that anyone who receives such state funds (paid for by taxpayers) should be subject to mandatory drug testing? Why or why not?
What differences do you see between requiring drug tests for welfare recipients and for employees in companies?
After answering these questions, you may find the Appeals Court ruling of interest:
The only known and shared characteristic of the individuals who would be subjected to Florida's mandatory drug testing program is that they are financially needy families with children. Yet, there is nothing inherent to the condition of being impoverished that supports the conclusion that there is a "concrete danger" that impoverished individuals are prone to drug use or that should drug use occur, that the lives of TANF recipients are "fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." Thus, the State's argument that it has a special need to ensure that the goals of the TANF program are not jeopardized by the effects of drug use seems to rest on the presumption of unlawful drug use. (Lebron v. Secretary, Florida Department of Children and Families, 2013)
Ethical Questions
As we might expect, employers and employees have sought to resolve disputes over workforce drug testing by seeking a compromise on the basic question. For instance, a company might propose to decrease the penalty for failing a drug test; a first-time violation might lead to a warning, or mandatory drug counseling, a second-time violation might lead to a suspension from work. Only for a third violation would the employee be terminated. Similarly, employees, whether through a union or some other mechanism, might accept drug testing but require some degree of cause, fewer tests, or more rigorous testing procedures to avoid false positives.
We might think there is a fairly sharp contrast between a utilitarian and a deontologist on this issue, particularly if we focus on the conflict between the right to privacy and the obligation to minimize the risk to the public. Thus, a utilitarian could argue that we may wish to respect the individual's right to privacy, but that right is outweighed by the much greater benefit provided by decreasing the risk to which the public is subject. Thus, an air traffic controller's right to privacy is outweighed, for the utilitarian, by the much greater need to make sure the flying public—and anyone else put at risk by an unstable controller—is as safe as possible. The deontologist might respond that such rights—again, assuming there is some inviolable sense of privacy—cannot be abridged due to some general, potential threat to the public, and certainly not without due cause for abridging that person's rights.
But this dispute may seem more clear-cut than it really is. After all, could a utilitarian argue that all of us have a right to privacy, and thus that violating that right for one group of people could potentially violate the rights of all? If so, then we must determine where the greatest benefit lies: in protecting the public's safety, or the rights of the individuals who make up that public? We might ask, finally: What could a deontologist argue in order to defend mandatory, random drug testing?
Morality Clauses
All of us have moral principles and our standards of ethics; some of these may be informed by our religious values, our cultural and ethnic traditions, our political views, and our exposure to moral philosophy, among many other influences. Employees have, and try to live by, these moral principles, as do employers. As may be obvious, the values involved may come into conflict. If an employer has a strong set of moral principles, by which he or she lives, can that employer ask employees to conform to those principles, or at least not do things that would violate them?
Consider Susan, who lives in a relatively small town, where jobs are hard to come by. She is interviewed for a job by a local nonprofit agency that lobbies government officials to impose very strict controls on the possession of weapons. Susan enjoys hunting with her husband and children and owns several shotguns. The agency offers her a job on the condition that she not own any guns, and that she get rid of any that she already owns. The agency insists that it would violate the image it seeks to project were its employees to own and use the same weapons it wishes to restrict. Can it demand that Susan agree to this condition? She was faced with either not taking the job and thus being put in considerable economic insecurity, or taking the job and seeing what she regards as her constitutional rights violated. The agency realizes that the community has a high unemployment rate, and thus there is considerable pressure on Susan to accept this condition. Susan could, of course, take the position and then, if fired, sue the agency. But that strategy would require hiring a lawyer and dealing with a lawsuit, which is both time consuming and expensive. Susan, of course, doesn't have to take the job; that decision would preserve her rights—at the cost of being unemployed or making a great deal less money.
Here we see what might be a plausible reason for an employer to want to restrict the rights of its employees, and to extend those restrictions outside of the workplace. It might be argued that without these restrictions, employees may act in ways that are detrimental to the employer and the company. But there also seems to be a considerable worry here that such conditions of employment go beyond what the company can legitimately demand and cannot be shown to lead, necessarily, to putting the company at a disadvantage in seeking to do what it wishes and needs to do. In short, these restrictions are unfair and cannot be appropriately required as a condition of employment.
Further concerns are raised here in the context of a tight job market, where economic insecurity and financial need may lead employees, and job candidates, to accept conditions for work that would otherwise be unfair. This may lead to a situation in which employers have the potential to restrict rights even further, with the knowledge that it is difficult to leave a job and/or find another equivalent-paying job. This may lead not only to the potential abuse of employees' legitimate rights but also to a situation in which workers are unhappy due to that abuse but are unable to leave because of significant restraints on employment opportunities. Employees should not be put in a position where they are faced with trading their legitimate rights for financial security, and thus any restrictions so imposed must meet a very high standard, showing that they are absolutely necessary for the company to function effectively.
Be the Ethicist
Should Off-Duty Activities Cost You Your Job?
In McLennan County, Texas, six deputies were fired by the sheriff. The deputies have sued, arguing that they were fired because they campaigned for the sheriff's political opponent in a recent campaign; the sheriff has stated that they were let go due to reorganization of the sheriff's office.
The deputies are what are saw earlier described as "at-will" employees: They are not members of a union, have no civil service protection, and serve at the sheriff's will. As one of the local papers noted, "Courts have ruled that sheriffs in Texas have broad discretion in choosing employees and can fire them with or without cause, absent contractual limitations, as long as the decisions aren't politically motivated." The same article notes that the deputies' lawsuit states that they "have a combined 114 years of experience and ‘outstanding' performance and service records as sheriff's deputies" (Brown, 2013, para. 10, 12).
The difficulty here, of course, is determining the real reason the deputies were fired. It is clear that the sheriff was aware of their political activity, but many find plausible the sheriff's claim that there was no political basis for the firing, and that, rather, it was simply the result of reorganizing his office.
For more details on this case, visit http://www.wacotrib.com/news/mclennan_county/six-ex-deputies-suing-sheriff-county-over-firing-attorney-says/article_90ac4c09-2bb1-5e00-a35e-ce17f0a49782.html.
Exercise
Determine the differences between the legal questions and the ethical questions involved here.
How do you think the legal questions should be resolved?
How do you think the ethical questions should be resolved?
Do you think an employer can restrict the political activities of employees away from the workplace?
What are the implications for employees if an employer can restrict their off-duty political activities?
Similar issues have arisen in cases where employees' religious views conflict with those of their employees. Such cases raise, again, important ethical questions about whether an employer has the right to insist that a worker act in certain ways away from the job site. Can a manager who objects to homosexuality fire an employee he or she finds out is gay or lesbian? Can an employer who objects to interracial marriage terminate someone he or she discovers is married to someone from another race? At what point do constitutional rights override the rights of employers to make free choices about who works for, and represents, their companies? The courts have ruled that in some cases, a person cannot be fired for such characteristics as race, religion, or gender, but even in these cases, suits have been brought to challenge these limitations. Some of these suits have been successful, when, for instance, a religious institution is seen as fulfilling its appropriate mission by maintaining prohibitions on hiring certain workers.
Case Study
Hosanna-Tabor Evangelical Lutheran Church and School
In a 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Supreme Court decided on the question of whether a minister could sue a church. In this particular case, an employee—Cheryl Perich—took a leave of absence due to health reasons. When she returned, she and her employees had a dispute, and the church threatened to fire her. Perich told them if they did fire her, she would sue. The church fired her, and Perich sued, asserting that her rights under the Americans With Disability Act had been violated.
The church cited its Commission on Theology and Church Relations, referring to First Corinthians 6: 1–11, stating that "Christians should seek an amicable settlement of differences by means of a decision by fellow Christians." Perich was fired, then, for having sued in violation of official church doctrine. Perich claimed the church was using this as a pretext for firing her.
The church also noted that Ms. Perich was a commissioned Lutheran minister; to deny its right to fire her was tantamount to allowing an outside authority, such as the government, to fire and hire its ministers, which would be a clear violation of the First Amendment's Establishment Clause.
Among the many interesting issues here:
Can any organization fire a worker for threatening a lawsuit?
If some companies cannot do this, but a church can, what is the fundamental difference between the two as employers?
Can a church fire someone even if it may violate that person's constitutional rights?
Can Employee Behavior Be Dictated by a Company Mission?
Imagine you have been unemployed for several months and are desperate to find a job. You've been offered the job of being the representative of a local animal rights group. This group works to prohibit the wearing of fur; advocates vegetarianism; and seeks to ban the use of animals for the testing of perfumes, pharmaceuticals, and other products. The job is a very good one, but as a condition of employment the group requires that you not eat meat. After all, if you are seen shopping for steaks and pork chops, it would indicate the animal rights group is a bit hypocritical, in that you are paying for those steaks and chops with money the group provides. Yet you really like your occasional cheeseburger and barbecue.
Do you take the job?
Is this a fair condition of employment to impose upon you?
Are there limits to what an employer can require of employees, other than those that would require you to do something illegal?
Here the question arises as to whether an employer can impose certain restrictions on the behavior and lifestyle of employees because of a corporation's mission. Most corporations have mission statements: If an employee's private behavior conflicts with his or her employer's mission statement, does the company have the right to fire that employee, or at least demand he or she change the behavior in question? If so, are there limits to what the company can demand?
As in many of the cases we have seen, the tension between what an employer can demand and what rights the employee retains can generate a difficult balancing act. Again, few if any are suggesting that employers have the right—even if they wanted it—to dictate to their employees what they do at all times outside the workplace, no more than anyone seems to be arguing that employees can do anything at all outside the workplace, regardless of effects on the company. But determining where one draws the line is not particularly easy.
As we saw earlier, ethical theories may help us clarify and make more rigorous the arguments involved, but they don't offer some kind of recipe to follow that will result in the appropriate ethical choice in every situation. There are advantages to having the issues made clearer, and advantages to drawing on the arguments that have been developed over centuries to deal with moral conflicts. But to expect theory to resolve these conflicts is probably being a bit naïve.
As we mentioned earlier, most corporations have mission statements. Walmart's, for instance, is succinct: "We save people money so they can live better" (http://stock.walmart.com/investor-faqs). Exxon-Mobil's is a bit more expansive: "Exxon Mobil Corporation is committed to being the world's premier petroleum and petrochemical company. To that end, we must continuously achieve superior financial and operating results while simultaneously adhering to high ethical standards" (ExxonMobil, n.d., para. 1). These may seem fairly obvious, but corporations frequently revert to the mission statement to make sure new company policies are in compliance with it. At the same time, the statements leave a great deal of room for interpretation: For instance, what does Walmart mean by "living better"? What are the "high ethical standards" to which Exxon-Mobil aspires? Would most of us agree on how to characterize either of these important parts of these corporate mission statements?
The conflicts that arise tend to do so out of actual implementation of policies that some may regard as wholly consistent with a mission statement, while others regard the same acts as in fundamental conflict with it. For instance, imagine a clothing company—Just Clothes—that uses labor in impoverished countries where unemployment is extremely high and wages are quite low. One could well argue that Just Clothes is doing exactly what it should be doing: keeping production costs low, passing on those lower costs by offering lower-priced products, and providing a good return to its investors. Just Clothes could also argue that if it did not employ as many people as it did in low-income countries, unemployment would be even higher. Thus, their workers may not make a lot of money, but they are better off than they would be otherwise.
Now imagine Samantha, whose church has been very active in the area of workers' rights in Third World countries. Samantha has written letters to the newspaper, organized demonstrations and panels criticizing the practice of employing low-cost workers, and attended several conferences on behalf of her church. She is, in short, very critical of what she calls "sweatshops," objecting not just to low wages, but to substandard housing, dangerous and unhealthful work conditions, and mistreatment of workers, particularly women and children.
Samantha, however, works for Just Clothes. The management of Just Clothes is not, understandably, very happy with Samantha's activities. They regard her criticism of sweatshops as a pointed criticism of Just Clothes, which damages the company's reputation and, potentially, could lead to lower sales and lower returns to its investors. Samantha is called into her boss's office for a discussion of this, and she points to Just Clothes's mission statement, which states, "Our goal is to sell a quality product while having a positive impact on the lives of all those we touch." Samantha points out that the workers that produce their clothes might well disagree that their lives have been positively affected by Just Clothes, and that actual corporate policy contradicts its own mission statement.
The company is tempted to fire Samantha. She is an at-will employee, but she could well argue in a court that she has been terminated for participating in constitutionally protected activity (both in terms of her right to free speech and her right to practice her religion). At the same time, the company may regard that risk as one worth taking; after all, they have considerably more resources than Samantha, and may simply be able to fight in court longer than Samantha can afford to.
Applying the Theories
Here we see how ethical theory can help clarify some of these issues by focusing on the specific aspects involved in this dispute. For instance, a utilitarian might attempt to determine the benefits for the company, its domestic workers (including Samantha), and its low-income employees. Trying to see how one could establish these benefits may well help establish the difficulties in balancing the utilities involved, which include not just the bottom line of Just Clothes and the return to investors, but the well-being of all if its employees. One could, of course, simply determine that what should be done is to follow a rule, such as "implement those policies that return the greatest short-term profit without harming long-term expectations." But that rule itself may be criticized by Samantha, her church, and many others who might see determining one's behavior solely on the basis of profit as obviously unethical.
Case Study
Chick-fil-A dealt with a great deal of controversy after one of their executives voiced an opinion about same-sex marriage.
A significant controversy broke out in 2012 when Dan T. Cathy, Chief Operating Officer of the Chick-fil-A chain of restaurants, criticized same-sex marriage. Many in favor of same-sex marriage harshly criticized Cathy, while others defended both his right to free speech and his right to run his business on the principles he holds to.
Some proposed boycotts of Chick-fil-A restaurants, and even staged "Same-Sex Kiss Days" in front of selected restaurants, to demonstrate their disapproval of Cathy's views. At the same time, some of those supportive of Cathy—either his view or his right to express it—organized "Chick-fil-A Appreciation Days," which drew large crowds to many of the company's franchises.
Finally, in July 2012, Chick-fil-A released the following statement: "We are a restaurant company focused on food, service and hospitality; our intent is to leave the policy debate over same-sex marriage to the government and political arena."
Exercise
Chick-fil-A's mission statement is simply this: "Be America's best quick-service restaurant." It amplifies this a bit by adding its Corporate Purpose: "To glorify God by being a faithful steward of all that is entrusted to us. To have a positive influence on all who come in contact with Chick-fil-A" (Farfan, 2013, para. 5–6).
If you owned a Chick-fil-A franchise, which do you think would be justifiable reasons for firing an employee? Briefly state why you think this would be justified or unjustified.
You discover an employee is Muslim.
You discover an employee is bisexual.
You discover an employee attends a Christian church that supports gay rights.
You discover an employee has been stealing from the company.
You discover an employee's sister is a lesbian.
You discover an employee does not like chicken.
You discover an employee has been picketing other Chick-fil-A franchises.
Technology in the Workplace
We are surrounded by social media; for many, checking their Facebook page, tweeting, and looking at the Instagram pages of their friends are a frequent occurrence. Indeed, some may feel left out at a party if they do not use Facebook; often the assumption is made that virtually everyone participates in this particular form of social media. (For good reason: As of January 2013, Facebook reported that over one billion people qualified as "active users." [Tam, 2013]).
Social Networking
The phenomenon of social media has raised difficult questions for the workplace, and for potential job candidates. Perhaps you have complained at a social media site about a boss, a co-worker, or your company: Is that a sufficient reason for you to be fired? Do you have the right, in other words, to say what you wish online without risking losing your job? Should a job candidate expect a potential employer to look at his or her Facebook page? Is it justified for a hiring decision to be made on the basis of something embarrassing (or worse) that has been posted on a social media site?
In the movie The Social Network, a dramatic portrayal of the founding of Facebook, Mark Zuckerberg (Facebook's CEO) is shown having a bit too much to drink, and posting unpleasant and vulgar remarks about his former girlfriend. When she confronts him about it, she points out that things written on the Internet are "written in ink, not in pencil"; in other words, once something is circulated online, it may be there forever. A picture or a comment could resurface many years later to damage to a person's reputation, and there is not a lot that person can do about once it has been posted.
We often hear that the easiest way to avoid this is simply not to post anything that could ever, conceivably, raise such a problem. This might lead to less interesting comments and photographs being posted, but it is also difficult to always know what could or could not, potentially, do damage. (Some cases, admittedly, are clear.) But the ethical and legal questions that arise focus more on whether someone's privacy is violated by potential employers looking at Facebook pages or other social media sites, and whether it is fair to base hiring, promotion, and termination decisions on what might well seem to be a simple exercise of our right to free speech.
With the various issues that have arisen in the context of social media, policies and legislative responses are also in the process of being developed. However, an important decision was made in early 2013 by the National Labor Relations Board; The New York Times described it like this:
Employers often seek to discourage comments that paint them in a negative light. Don't discuss company matters publicly, a typical social media policy will say, and don't disparage managers, co-workers or the company itself. Violations can be a firing offense.
But in a series of recent rulings and advisories, labor regulators have declared many such blanket restrictions illegal. The National Labor Relations Board says workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook. (Greenhouse, 2013, para. 1–2)
Another issue concerning social media is the question of what a potential employer can ask job candidates about, regarding their various social media networks. Reports have surfaced of job candidates being asked for their Facebook passwords, for instance, thus giving the employer access to candidates' pages. Obviously enough, a job candidate may refuse such a request, but one seeking a job may not feel comfortable in doing so, and may have good reason to think that such a refusal will harm his or her chance at being hired. Some employers have defended the practice, arguing that it is one way to make sure that a person being considered for a job does not exhibit characteristics the employer would not otherwise know about. In response, the practice has been decried as an invasion of privacy, and may also be a way of determining factors—age, race, religion, among others—that are illegal to consider in many hiring decisions. The question thus arises as to whether the risk a company assumes in such a hiring decision makes this information sufficiently valuable that it outweighs the right of the job candidate to keep that information private.
Employee Privacy
Do employees have any expectation of privacy in the workplace? Do employers have the right to monitor telephone calls or emails?
A final issue that should at least be mentioned is what, if any, right to privacy employees retain while on the workplace. A person who works for corporation A may, as part of his or her job, use the phone, the computer, and the Internet; does the employer have a right to look at any or all of these things, to see if the worker is doing what is supposed to be done? Can an employer, for instance, monitor telephone calls, or is that an invasion of privacy? Does an employer have the right to access the "clickstream" on a worker's computer, to be able to see what sites that worker is looking at while at work? Should an employer be able to read an employee's emails that are sent from the workplace? For that matter, if an employee also works from home—whether due to "flextime" or taking extra work home—should the employer be able to see what sites that worker is visiting? In short, if the employer is paying a worker's salary, does that give the employer legitimate access to any and all of the forms of communication engaged in by the employee while being paid?
4.2 The Issue: Employers' Rights
The issue of workplace rights is typically associated with employees—those individuals without whose participation a company or organization could not operate. But there is another side to the rights in the workplace debate: the rights of the employer itself. The question of just what constitutes employers' rights touches on many aspects of business, but we will restrict our discussion to one example: whether employer-provided health care should be mandatory.
Few issues have generated controversy as intense as the Affordable Care Act (ACA), often called Obamacare. Many employers have objected to it as increasing their cost of doing business; they, and many politicians as well, have objected to various mandates of the act that they regard as not falling within the legitimate scope of government. Others have argued that the ACA seeks to lower costs, or at least lower the rate at which costs increase, and that it addresses a number of issues that polling indicates are popular with the American public, such as being able to purchase insurance with a preexisting condition, children staying on their parents' insurance until age 26, and no lifetime caps on medical expenses. In general, its supporters argue that the ACA will provide health insurance to many who have been unable to get it.
The Affordable Care Act, often referred to as Obamacare, is an extremely controversial and divisive piece of legislation.
The situation is made more complex by the fact that historically, many Americans' health insurance was tied to their employer's health care plans. (For those who are retired, unemployed, or in poverty, other plans are designed to offer coverage, such as Medicare and Medicaid.) It is not clear that this is an ideal, or even efficient way to offer health care. Because it is illegal for a hospital to turn away someone in need of health care, many who are not insured receive their health care at emergency rooms, which is the most expensive form of treatment. In short, the American health care system is one of the most expensive in the world, yet it achieves outcomes that are regarded by many as substandard. (Thus, according to the National Center for Health Statistics, the United States spends twice as much on health care per capita [$7,129] as any other country, yet ranks 30th in infant mortality and 50th in life expectancy [ http://www.cdc.gov/nchs/]).
The details of the ACA are complex and fluid. Only last year did the Supreme Court rule the ACA as passing constitutional muster, and implementation of its various provisions is still taking place. Hence, it is difficult to determine what the results of this law will be for several more years. However, the ACA and other attempts to provide health care raise a simple question that itself is important, but controversial: Is health care a right? In other words, is having access to decent, affordable health care a right, similar to other rights enumerated in the Constitution and Bill of Rights? Or is health care not a right, but a product like any other that must be purchased by the consumer?
The Argument That Health Care Is Not a Right
There are various ways of arguing that health care is not a right, but we can focus on one of the more popular versions here. Simply put, on this view, health care is not a right: While there are certain, "inalienable" rights—life, liberty, and the pursuit of happiness—that the Constitution does protect, health care is not one of them. The right not to be harmed or killed, or not to have our property seized, is what philosophers call a negative right. Negative rights are justified and legitimate, and only require us not to interfere with the rights similarly possessed by others.
But we do not have such a negative right to health care, beyond the right to pursue our own health care and not be prevented from doing so. Rather, the claim that health care is a right introduces a different notion—a positive right. I do not have a right to health care anymore than I have a "right" to food, clothing, and shelter. If taxpayers are forced to pay for my alleged right to health care, then they are being forced to spend money, presumably against their will, which is, in fact, a violation of their rights. Thus, forcing me to accept that others have a right to health care, which I must pay for, assumes a positive right—the right to health care—and violates my negative right—the right not to be forced to pay for something that I have no say in. The Constitution protects negative rights, and thus it is a violation of my constitutional rights to force me to pay for anyone's health care (including my own). Since it assumes a fictional positive right and violates my genuine negative right, health care is not a right any more than it is a right to own a car, a home, or a pair of cowboy boots.
The Argument That Health Care Is a Right
Supporters of the Affordable Care Act argue that access to health care is a constitutionally protected right.
The argument that health care is a right also takes different forms; some have been offered on the basis of obligatory Christian charity, others in the name of economic efficiency, and still others that appeal to the United Nations Universal Declaration of Human Rights (for which the United States voted). In simple terms, the argument is: Theoretical access to health care is insufficient if fundamental obstacles prevent one from actually obtaining that care. If life, liberty and the pursuit of happiness are protected rights, and the right to life requires some minimal access to health care, then it follows that that access is, itself, a right (and is, in that sense, a negative, constitutionally protected right).
One of the effects of recognizing health care as a right is that it means everyone will have access to health care (universal health care); this is turn will lead to more effective health care delivery through regular checkups and preventative care, rather than very expensive emergency room treatment. Furthermore, this will lead to better health care results and a more productive economy, due to lower worker absentee rates and a better general quality of life. Universal health care will also mean that no one will have to choose between health care and some other expenditure, or face bankruptcy due to exorbitant health care costs.
Do Employers Have an Obligation to Pay for Employees' Health Care?
The purpose of the ACA was to guarantee access to health care for as many Americans as possible. The goal was to provide this greater access and, at the same time, continue to develop ways of making health care cheaper in the United States. Health coverage has traditionally been associated with a worker's place of employment, and the ACA continues to follow this tradition by requiring employers to offer health care for their full-time employees. There are certain technical distinctions made on the basis of the company in question; businesses employing fewer than 25 employees have different options than those employing, for instance, more than 100. Those companies not providing health care coverage directly have the option of participating in "Affordable Insurance Exchanges," which allows larger groups to pool their numbers in order to lower insurance rates.
One can certainly see how a utilitarian might argue in defense of the ACA; health care is presumably a benefit, or good; having access to reasonably good, reasonably affordable health care would seem to lead to the greatest good for the greatest number relative to the other options that have been suggested. Depending on how one sees health care—as a commodity or as a right—this would strongly affect how one might regard the ideas behind the ACA. If a commodity, it is not clear that a deontologist would support one person being required to pay for, or at least subsidize, another person's commodity, good, or service. After all, most of us would object to being taxed to help pay for another person's car. But if health care is a right, then it seems more likely that the deontologist would conclude that human dignity is not adequately respected without guaranteeing people the minimum health care that would satisfy the genuine exercise of that right.
4.3 Applying the Theories
Earlier we saw the conflict between American Medical Response Incorporated and the paramedics that were suspended for working for another company. This is one example of the kind of ethical issues that can arise in the workplace. Most such disputes, as we have seen, require a delicate balancing act that protects the interests and the rights of all parties involved, an act that can often be very difficult to do. Rarely are all parties satisfied, although the results that does leave all parties partially satisfied may often be indicative of a successful resolution.
We have also seen how ethical theories may not offer recipes, or algorithms, to follow in order to "solve" these ethical disputes. Rather, ethical theory helps make clear what is stake in these disputes, helps us focus on what is relevant (and eliminate that which is irrelevant), and offers us the reflections of many philosophers who have looked at these kinds of issues and offered sophisticated and rigorous arguments to help resolve them.
Finally, we have also seen that there is no guarantee that two people who adopt a similar ethical theory will necessarily agree on how that theory should be applied, and what the theory will say is the moral thing to do. As we might see with the ACA, one deontologist might argue that health care is a right that cannot be abridged or violated, while another might not recognize it as a right and may provide a much different analysis. Indeed, it may turn out that their disagreement is not so much about universal health care than its status as a right or a commodity. Consequently, each specific issue must be looked at carefully, and its details examined, before constructing the strongest argument we can in support of our position. But it should come as no surprise that two deontologists, or two utilitarians, may disagree; after all, people may share a common viewpoint but not agree on many things relative to that viewpoint. But to see this, it might help to look a bit more at some of these theories and how they can be applied.
Virtue Ethics ( Ethical Theory)
As a legal entity, the corporation is recognized as a "person"—technically an "artificial person"—that possesses many of the rights people possess under the law. Using this idea, we can look at the corporation from the perspective of virtue ethics: What does it mean for a corporation, in this context, to be virtuous? Presumably, we want corporations to act morally and as good, if artificial, "citizens"; virtue ethics seems to provide a way of characterizing what is then required of such corporate behavior.
The corporate "person" is under a number of constraints; however, it must, above all, maintain profitability. But recognizing that goal, it must also meet the legitimate needs of its employees, stockholders, and others who provide various kinds of support (financial and otherwise) to the company. This includes the needs of the community in which it is found, not just by providing employment, but also by playing the role of good corporate citizen by supporting charities and perhaps other philanthropic work. It can be a difficult job to balance all of these obligations, while maintaining focus on the bottom line, but virtue ethics emphasizes precisely that kind of balance that may offer valuable guidance to the corporation.
For example, the company must seek a balance—a Golden Mean—between maintaining employee satisfaction and not distorting its fundamental mission. Thus, it must offer salaries and benefits that are competitive. If the wage–benefit package is too small, employees may desire to leave the corporation, and it may be difficult to hire new workers. If the wage–benefit package is too generous, it may take too much away from the quarterly or annual profits. Just as this balance must be struck, a balance relative to employee rights must be considered in the larger corporate context. These rights cannot be restricted in a way that is unfair to those workers, but legitimate restrictions must be maintained for the corporation to meets its fundamental goal: to be successful (specifically, in a for-profit company, profitable). Situations can arise where an employee may insist on a right that may well hinder the company in meeting its goals. In that case, those rights must be balanced against the needs of the corporation, and an appropriate balance must be identified and maintained.
To examine a specific virtue, corporations should be honest, in dealing with both their employees and the community in which they are located. Obviously enough, there can be too little honesty—whether defrauding customers, skimming profits, lying on tax forms, or any number of the familiar examples of corporate behavior that are immoral, illegal, or both. Yet there can also be too much honesty, such as failing to protect proprietary information essential to a company's profits, or revealing marketing strategies to employees and, potentially, competitors—the distribution of which would put the company at a disadvantage. Neither too little honesty nor too much honesty is in the best interest of the company or, importantly, in the best interest of its employees. Virtue ethics, then, provides a way of seeing how to strike the balance here, whereby an appropriate amount of corporate honesty leads to the best results for the company, its employees, and its community.
Be the Ethicist
President Obama signed the Lilly Ledbetter Fair Pay Act in 2009.
The Lilly Ledbetter Act
In 2009, President Obama signed the Lilly Ledbetter Fair Pay Act, which promoted equal pay for equal work, and allowed lawsuits to be filed by someone who claimed not to have been paid the same amount for the same work.
Read the representative arguments on both sides of the issue.
Against the legislation:
Victoria Toensing: Obama Overloads a Tale of Equal Pay
Mona Charen: Lilly Ledbetter Fair Pay Act Isn’t Really for Women At All
For the legislation:
Lilly Ledbetter Fair Pay Act
The Lilly Ledbetter Fair Pay Act of 2009
Deontology (Ethical Theory)
The deontologist recognizes that companies, whether for-profit or not-for-profit, have a fundamental requirement: namely to carry out their mission. Specifically in the case of for-profit corporations, that mission is to make sufficient profit to stay in business and, preferably, continue to grow. Yet the corporation, even as an (artificial) person, must not violate certain rules: It must treat its employees, its community, and even its competitors with respect. It must not follow or develop company policies that it would regard as fundamentally unfair were another company to have those same policies. The deontologist might explain this in terms of Kant's universalization test: If, for instance, company policy imposes certain restrictions on speech or behavior for its employees, could this policy be fairly imposed on all companies in the same context? The deontologist might also appeal to the Golden Rule here: If an employer were to impose a given set of restrictions on employees, would he or she be willing to work under the same set of restrictions?
We can look at how deontology can be applied here by looking at drug testing—in this case, for airline pilots. The deontologist might well conclude that instituting such drug tests is precisely the kind of policy that could—even should—be put in place universally and in all similar contexts. Certainly, someone who imposes such drug tests may be quite confident that he or she would be willing to work under such a condition as well; hence, it seems to conform to the Golden Rule.
But there may be other situations where a company desires to restrict an employee's rights in ways that do not meet the universalization test or don't seem to satisfy the Golden Rule. Perhaps as a condition of employment, employees are told that they cannot join a union (or, in contrast, are told they must join the union). Although legal issues complicate the story, when observed from a moral standpoint, it is not clear that this restriction could be universalized: that no one could ever join a union (or that everyone must join a union) would seem to lead to the result that the very notion of a union becomes meaningless. And it seems quite possible that an employer who tells employees that they cannot join a union—or must join a union—might well be unwilling to work under those same conditions, indicating a conflict with the Golden Rule. Consequently, the corporate (artificial) citizen must, on the deontological view, treat rules in precisely the same way as real citizens must. Any restriction on employee rights that fails to satisfy the universalization test, or conflicts with applying the Golden Rule, thus risks the genuine possibility of being an unfair, unjust, and immoral restriction.
Some Conclusions
In considering the fundamental goal of a for-profit company or corporation, the virtue ethicist and the deontologist do not really disagree. Both recognize that such a company must make a profit to remain in business and must impose certain conditions on its employees and potential employees to do so. The tension comes not so much in applying the specific theories as in determining where an employer's rights to impose such conditions are legitimate, and where they infringe on the rights of employees. It may seem easier to strike an appropriate balance between these two sets of rights in theory than it is in practice.
Consider a company that receives much of its business from contracts with the federal government. This company has spent years developing a close relationship with Senator Smith, who represents the state where the corporate headquarters are located. The members of the company's board of directors are particularly close with Senator Smith, and he has made it one of his highest priorities to see that the company receives favorable attention in the awarding of federal contracts. The company benefited by supporting Smith, and Smith benefited in turn. Currently, Senator Smith is now running for reelection, and the CEO of the company is the director of his campaign.
Ann is an employee of the company and a staunch opponent of Senator Smith. She has worked long hours outside of work for Senator Smith's opponent, and has contributed both time and money to Smith's opponent.
The issue here is one of the limits to what the CEO of Ann's company can do, relative to Ann's political views. Can he ask her to remove a political sign from her office cubicle? Can he ask her to remove a bumper sticker from her car, because she parks in the company parking lot?
A fundraising picnic has been scheduled, organized by the CEO, for Senator Smith. Admission is $25, and it has been made abundantly clear to all employees that their attendance is expected. Clearly enough, the company cannot require this attendance, but Ann is convinced that her chances for promotion and salary increases will be harmed if she does not attend.
Here we have what seem to be competing rights: the right of the CEO to do what he thinks is in the best interest of the company (and, he might argue, therefore in the best interest of Ann herself), and Ann's right to participate in politics in the way she sees fit. Virtue ethics, deontology, or any of the other ethical theories we have at our disposal may offer some insight into how this conflict might be resolved, but none of the theories can likely provide a solution that is satisfactory to all involved. As we have seen before, ethics can offer a good bit of insight into the problem, by identifying what is at stake, and how the conflict itself might be most accurately characterized. Yet, as we have also seen, we may be expecting too much from any ethical theory if we think there is an easy procedure to follow that will result in the one correct answer.
Where Do We Go From Here?
It is, generally, to the advantage of both the employer and the employee that their company thrives: All are then better off. In addition to maintaining its own economic well-being, a successful corporation can offer the community a number of things that will make it better off, such as support for the arts, schools, and general culture of the community. Not to be overlooked is what is also known as the "ripple" effect: A successful company will pay its workers the kind of wages that filter through the rest of the community. A well-paid worker who takes her family out to dinner thus helps those who work in the restaurant, and those workers in turn may have sufficient disposable income to buy things that support still others.
But conflicts do arise, between what an employer thinks is the right thing to do for the company, and what an employer thinks is right for the employer. We've seen a number of examples of this kind of conflict, and most of us are familiar with being asked to do things at work that can, at least potentially, generate these kinds of problems. The situation, of course, is made worse when unemployment is high and jobs are difficult to find. That situation makes most employees more reluctant to register objections, even if legitimate; many will prefer being employed to having their rights maintained while being unemployed. As a result, the employer has just a bit more leverage to impose conditions on employees, and on job candidates, that can become increasingly unfair to those employees.
Here we see the not-infrequent situation where real life confronts what ethics may tell us is the correct, moral, or just thing to do. At what point does one refuse to violate one's moral code? If we are being harmed, or being treated unfairly, do we stand up for our moral principles, or do we simply take it, realizing the importance of remaining employed? Does it depend on how extreme the case is? Would we be willing to lie to keep our job? Would we be willing to ignore certain legal requirements to keep our job? Would we be willing to harm others, or at least risk harming others, to keep our job? Again, we find ourselves between two extremes: We may be willing to overlook a relatively insignificant moral infraction to keep our job, but we may be absolutely unwilling to commit a crime in order to keep our job. Many issues in business ethics, as we have already seen, arise from trying to find the appropriate balance between these two extremes. Ethics may help up us find it; however, it doesn't guarantee that we will find it, or that everyone will agree with our conception of the balance we do strike.
Be the Ethicist
Unionization
A manufacturing company—call it United Manufacturers, or UM for short—has had a long history of running a good, profitable company. However, due to some changes in management and policy changes, including some cost-cutting measures, some of UM workers have started discussing among themselves the possibility of joining a union, in order to have it represent their grievances against the recent changes made at UM. A few particular employees have been identified as "ringleaders" in attempting to organize a vote among workers in order to gain union representation.
You are in upper management, and you do not want your workforce to be unionized. Which of the following might be good strategies to adopt to avoid a vote being held by your employees to determine whether they will or will not be represented by union?
Threaten the ringleaders with being fired, if they do not drop their union activities.
Have the workers designate some spokespersons, and meet with them to discuss their grievances.
Read the emails of the suspected ringleaders.
See if you can get any of the ringleaders' relatives deported.
Address the grievances you think are legitimate complaints.
Impose mandatory drug testing for your entire workforce.
Hire extra security to prevent outside union members from gaining access to your work site.
Show employees videos that are designed to show the bad aspects of unions.
Fire the ringleaders.
Require job candidates to sign a pledge never to join a union.
Raise wages in order to compete with competitors whose workers are unionized.
Begin monitoring and taping phone calls made by the ringleaders.
Have the ringleaders killed.
