4-6 pages double-spaced Business Ethic Paper!!!

A Defense of Employee Rights Author(s): Joseph R. Des Jardins and John J. McCall Source: Journal of Business Ethics, Vol. 4, No. 5 (Oct., 1985), pp. 367-376 Published by: Springer Stable URL: http://www.jstor.org/stable/25071520 . Accessed: 11/09/2013 13:34

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Joseph R. Des Jardins

A Defense of Employee Rights John J. McCall

ABSTRACT. Recent trends in business ethics along with growing attacks upon unions, suggest that employ ee

rights will be a

major social concern for business

managers during the next decade. However, in most of

the discussions of employee rights to date, the very

meaning and legitimacy of such

rights are often uncriti

cally taken for granted. In this paper,

we develop

an

account of employee rights and defend this concep tion

against what we take to be the strongest in-prin

ciple objections to it.

I

During the past few decades much of the public and academic attention paid to the moral cli

mate of business has been focused upon issues

which are essentially external to business opera

tions. In particular, the discussions in business

ethics have focused primarily on those areas

where business operations impact upon the well

being either of society as a whole or of those

consumers who purchase the products which

business provides. Witness the change in social

consciousness with respect to environmental

concerns and the increasing demands for truth

in advertising and product safety. Until recently, little public attention has been

paid to those moral issues which are

essentially

Joseph R. Des Jardins is Assistant Professor at the

Department of Philosophy of Villanova University. He is co-editor, with John McCall, of Contemporary

Issues in Business Ethics (1984) and An Introduction to Ethics (forthcoming, both published by Wads

worth.

John J. McCall is Assistant Professor at the Department

of Philosophy of St. Joseph's University and formerly at Iowa State University.

internal to the operations of business. Nonethe

less a growing concern with the welfare of

employees may be changing all of this. The

public interest in worker safety which gave rise to OSHA and the public outcry which

followed the most publicized cases of whistle

blowing attest to this concern. Indeed, many

believe that employee rights will be the major social issue confronting business managers

in

the next decade. Already most major business

journals have published articles addressing such

topics as employee privacy, due process, free

speech, and access to the findings of safety in

spectors.1

Unfortunately, these academic discussions of

employee rights often fail to carefully define the

meaning of 'employee right' and often fail to

adequately defend why such rights can be

reasonably ascribed to workers. Recent political

events make these failings especially pressing. The power and effectiveness of unions have

eroded significantly in the past few years. Deci

sions by the Supreme Court, the Reagan Admi

nistration's Department of Labor, and N.L.R.B.,

along with the recession and a

declining mem

bership, place in jeopardy the traditional institu

tional mechanism for protecting employees. There is a danger, then, that the welfare of

employees will be without significant protection unless some other means for protecting certain

basic human goods in employment can be

found. As one step towards finding such other

means, this paper defends a conception of

employee rights as

presumptive moral entitle

ments not subject to bargaining within the

employment agreement, and by defending this conception against those who would raise

in-principle objections to it.

Journal of Business Ethics 4 (1985) 367-376. 0167-4544/85/.15 ? 1985 by D. Reidel Publishing Company.

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368 Joseph R. Des Jardins and John J. McCall

A number of different uses for the term

'employee right' follow from the origins and

grounds for such rights. Thus, for example,

'employee right' might refer to a

right possessed

by employees on the basis of contractual agree

ments with employers. Alternatively, it might refer to a right possessed

on the basis of govern ment

legislation. Thirdly, 'employee rights'

might refer to

rights possessed independently of any contractual arrangement or legislation. Instances of an employee right in the first

sense

might be rights to a

particular package of health

care benefits or rights to a

specific number of

paid holidays each year. An instance of an em

ployee right in the second sense would be an

employee's right to corporate contributions on

her behalf into the social security fund. We will

not be concerned with either of these meanings in this paper. Rather, our focus will be on the

third meaning above and, hereafter, 'employee

right' will refer to entitlements possessed by any

employee and possessed independently of indi

vidual contractual agreements or acts of govern ments. On our view, such entitlements can exist

independently of specific contracts or

legislation because the basic moral rights of human persons can

place constraints on the treatment those

persons receive when operating within their in

stitutional or social roles.

To help clarify this notion of employee right, notice that, in general, both parties

to an em

ployment agreement pursue certain goods.

Managers seek to maximize profits, insure pro duct quality, maintain their firm's long-term

growth and stability, etc.

Employees seek high

wages, good benefits, safe and pleasant working

conditions, etc. In pursuit of these goods, the

desires of management and employees often

conflict. Higher wages can mean lower profits,

greater benefits can threaten long-term stability.

To resolve these conflicts and, ideally, to achieve

an efficient distribution of these goods, manage ment and employees negotiate

an employment

agreement. During the negotiation, some

goods are

bargained away in an effort to secure other

goods. Notice also, however, that not all goods

are

open to negotiation. Those goods protected by

legal rights, for example, are not

subject to con

tract bargaining.

An employer

cannot insist that, as a condition of employment,

an employee

accept a wage below the minimum established

by law. Nor can an

employer use worker's

compensation payments as a bargaining chip.

Acceptance of sexual harassment also cannot be

made a condition of employment. Such goods are deemed so valuable that they have been

re

moved from the negotiating table. Only under

the most unusual circumstances might they be

overridden. In effect, such goods are part of the

costs of doing business. It is presumed that em

ployees are entitled to such goods and

even the

financial well-being of the firm cannot override

this entitlement.

Clearly, there is reason to accept the existence

of some legal entitlements which lie beyond the

scope of employment bargaining. We believe,

moreover, that there is a wide range of other

goods to which employees should also have

presumptive entitlement. What we are

calling

'employee rights' are, like the minimum wage,

goods which should not be subject

to normal

employee-employer negotiation. Unlike the

minimum wage, employee rights in our sense

are secured by moral and not

merely legal entitlements.

More precisely,

an employee right

in our

sense will be a general and presumptive moral

entitlement of any employee to receive certain

goods or be protected from certain harms in the

workplace. We hold an employee right such as

this to exist whenever there are valid moral

reasons which are independent of the specifics of any employment

contract and which support the provision of the appropriate goods

or treat

ments. If there are acceptable moral grounds for

recognizing such an

employee right, then that

right creates prima facie moral obligations

on

the part of others who are able to provide the

relevant goods or treatment. In general, this

conception of an

employee right can be defined

as an entitlement that places presumptive moral

constraints on the content of the employment contract. Those constraints define, in part, the

moral limitations on the employment contract

by removing certain goods from the bargaining

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A Defense of Employee Rights 369

process. In this way, employee rights function to

prevent employees from being placed in the

fundamentally coercive position of having to

choose between their job and other basic human

goods or treatments.

Since we wish to defend this conception of

employee rights against objections that might be raised against it,

we need to emphasize several

aspects of our conception more directly. First, we should note that the rights, obligations, entitlements and constraints to which we refer

are moral ones. We are not addressing here the

question of whether there should be other social or

legal constraints enforcing the moral require ments that our conception of employee rights

places on

employment contracts.

Second, under our conception the existence

of an employee right places moral limitations

upon both prospective employers and employ ees since it presumptively

removes certain goods or treatments from the class of items which

are subject

to bargaining

or negotiation in

em

ployment contracts. This marks an important distinction between employee rights

in our sense

and other, more ordinarily recognized, rights.

Many, if not most, rights which an individual is

held to possess are entitlements to goods over

which the individual has the power of exchange. That is, normally

a right such

as a right

to my car is such that I can decide to surrender my car

in exchange for

some agreeable compensation.

However, our conception of employee rights

places prior constraints on the content of em

ployment contracts in such a way as to limit

the contracting powers of prospective employ ees. Thus, on our reading,

an employee right

to

due process before dismissal is an entitlement

which the employee is not free to bargain away in

exchange for other goods. Hopefully, the

reasons for this perhaps peculiar attribute of

employee rights will be clear on the basis of the

arguments which follow.2 The third thing

we should note is that we are

not claiming that there

never are any considera

tions which would be sufficient to override the

presumptive entitlement provided by a

validly

grounded employee right. We are

simply arguing

that the class of considerations which could

legitimately override the presumptive entitle

ment does not include considerations such as

(simply) increasing profit margin for a business

or (simply) increasing wage levels

or other

financial benefits for employees. We only mean

that the goods or treatments at issue in a validly

grounded employee right should not be part of

the normal economic bartering process.

Finally, we should emphasize that in commit

ting ourselves to the possibility of an

employee

right (in the sense described) for all employees, we are not

committing ourselves to the claim

that all employees are

thereby entitled to receive

exactly the same

goods or treatments. What we

do hold, however, is that all employees would

have exactly the same entitlements, though

those entitlements, when accurately described,

might allow for differences in treatment or

differences in the provision of goods. .

This last qualification allows that the specific

objects of an

employee right can be tied to the

specific role or service for which the employee

contracts. Thus, an employee right to privacy

might be an entitlement, possessed equally by all

employees, to be free from prying into matters

of their past that are not reasonably job-related. Thus, for a construction worker, questions about educational performance might

not be

relevant while for a university professor such

questions most certainly would be relevant.3

Again, we hold for a conception of employee

rights which sees the rights of employees as both

uniform and beyond the bargaining process. But, we do not hold that this requires that every

employee in every job category must be pro vided exactly the same goods

or treatments.

We believe that our conception of employee

rights corresponds with what many commenta

tors in business ethics have in mind. Discussions

of employee rights to free speech on political

matters, for example, must implicitly see those

rights as

placing prior constraints on employ ment contracts and as being beyond the normal

wage bargaining process. However, most of the

discussions of employee rights which have ap

peared so far all assume that it is sensible to dis

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370 Joseph R. Des Jardins and John J. McCall

cuss the nature of specific employee rights and

to investigate what obligations those rights gene rate in practice.

There are some who would find this presup

position unacceptable because they would deny that there are any grounds

at all for recognizing

employee rights in the first place. For example,

arguments which claim (for whatever reason) that the conditions of the employment

contract

are properly left to the market-place

are com

mon in our society, if such arguments are cogent,

then we would have to agree that the rights of

individual employees cannot be specified prior

to the actual contractual agreement. Since

contracts will vary widely, this would have the

practical consequence of denying the existence

of any substantive right for all employees in all

employment contexts. Of course, when one

rules out the existence of such rights in

general, discussions of the nature and extent of specific

rights become superfluous. We believe that a strong case can be made for

the existence of numerous employee rights. We

also believe, therefore, that the major arguments which raise in principle objections

to employee

rights must be answered before we can proceed

to discussions of the validity of specific employ ee

rights. It is important to understand that we

are not arguing here for the necessity of

re

cognizing any particular employee right. We

only intend to show the failing of the major

arguments against employee rights in principle,

arguments which claim that no employee right can ever be justified. Having demonstrated such

failings, we

only will have established the

legitimacy of discussing whether this or that

particular right ought to be acknowledged.

II

The most common argument which raises an in

principle objection to the legitimacy of employ

ee rights is

one which derives from a concern

with a right to

liberty, a

right which classically is

understood as a right to non-interference in

one's affairs.4 Some argue that if we accept a

right to

liberty, then recognizing employee

rights prior to and independently of the employ

ment contract is an undue interference with the

parties to the contract and hence a violation of

their rights to

liberty. In essence, this argument

claims that the recognition of a

right to

liberty

requires that the content of contracts be left

under the complete control of the persons

making the voluntary agreement.

Usually, of course, this argument is offered

from the perspective of owners of capital who

claim that employee rights such as we have in

mind would constitute an illegitimate constraint on their ability to control, use, and dispose of

their legally owned property. For instance,

employers might argue on the basis of a right

to

liberty as follows: In exchanging their property

for employees' labor, employers should be free

to set whatever restrictions on that exchange which they think proper. Likewise, employees should be free to accept or reject the terms of

employment. By establishing prior conditions on this contractual arrangement, employee

rights deny employers the right to enter into

any voluntary agreements which both prospec tive employers and employees deemed mutually

acceptable. Thereby, employee rights in our

sense deny them the right

to control their

property. If an argument such as this employer voiced one succeeds, then obviously the debate over

specific employee rights is moot since such

rights would not only be without moral founda

tion, they would be morally objectionable interferences with free individuals.

In response to this employer argument, let us

first point out that liberty is an

important ideal

in our society because we believe that indi

viduals, for the most part, ought to be able to

exercise control over their own lives. Actions

which interfere with voluntary agreements thus are in danger of denying a basic belief in the

dignity and autonomy of the person. We must,

however, also realize that employment contracts

are not always ideally voluntary agreements

since realities of the employment market often

place significantly more power in the hands of

the employer than in the hands of the indi

vidual prospective employee. This is especially true in times of high unemployment. To

a

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A Defense of Employee Rights 371

lesser degree it is also true in other circum

stances; individual employers are often able to

forego additional hiring while every individual

in a society such as ours must find work in

order to sustain his/her very life and dignity. In these circumstances of unequal power, the

concept of a voluntary agreement becomes

empty, since voluntary agreements and the con

trol over one's life which they provide are

significant only when there are real and multiple

options.5 "Accept my contract offer" from a

prospective employer when there is small

chance of a living wage elsewhere can present no

more a voluntary and agreeable choice from the

employee's view than "your money

or your life"

from a gunman. (This, of course, is not meant to

suggest that employers personally have the same

moral standing as a

holdup man.) Thus, any

liberty to which we have a right might

not be

violated by employee rights which place con

straints on the contract in order to protect

employees. In particular, liberty would not be

violated if the constraints are ones that are

needed to make the circumstances of the con

tract approximate more fully an

ideally volun

tary agreement.

Against this response, some might point out

that unions strengthen the bargaining position of employees and therefore

no prior moral

constraints are needed in order to preserve the

voluntariness of the employment contract.6

This, of course, will not do as an analysis of the

employment circumstances in the United States

since in our country union membership accounts

for only 20?25% of those employed at any one

time. The vast majority are still in need of

guarantees that contract agreements will be

voluntary in a real and morally significant

sense.

Moreover, since levels of unemployment in

modern industrial societies are quite variable, the only real guarantee of long

term and stable

equity in contract agreements may lie in some

generally recognized limitations on the content

of those employment contracts. We can respond

to the employer use of the liberty argument

against employee rights in

general, then, by

noting that such rights may actually be neces

sary to protect the very value which liberty

represents, the freedom to exercise control over

one's own life.

We can also make another response to the em

ployer-voiced liberty argument. Even if we

believe that employment contracts usually

satisfy the conditions necessary for real volun

tariness and control over one's life, there are still

other possible justifications for limitations on

contract content. In fact, our society already

generally accepts limitations on the liberty

to

contract. Note the restrictions on what can be

agreed to in a contract which are apparent in

statute, in rulings by congressionally chartered

agencies (such as the FDA, the FTC, and the

SEC) and in judicial decisions such as those

dealing with manufacturer liability for product

safety. For example, consenting adults are not

free to enter into just any contractual agreement

concerning the use and sale of drugs. The drug

seller must be licensed, the drug tested and

approved, and in some cases even then the buyer

still needs a prescription from an independent,

licensed third party. Society also places restric

tions upon the liberty of individuals to contract

for the purchase of such things as plutonium,

explosives, automobiles with dangerously located gas tanks, lawnmowers without safety

shields, etc.

In each of these cases, society accepts the

judgment that even

voluntary agreement will

not justify contracts

on certain matters. Only the most extreme ideologue will find such

rulings and legislation unacceptable. Yet the

justification of these limitations on contracts

presumes that there are important values, e.g., the well-being of the public

or of individual

consumers, which can supercede the value

placed upon liberty of contract. Thus, unless

one rejects the propriety of these limitations

on the content of contracts, one will have to

agree that the placing of prior constraints on

the content of contracts is not necessarily

illegitimate. Thus, someone who employs the liberty

argument against employee rights generally is left with but one option. He might

assert

that while there is a collection of values which

can on occasion supercede freedom of contract,

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372 Joseph R. Des Jardins and John J. McCall

those values which employee rights aim to

protect are not members of that class. However, since various employee rights may be justified in various ways, since such rights might

re

present numerous and different values, those

who oppose employee rights on the grounds

of liberty must address each particular employ ee

right and its proposed justification in turn.

Thus, the liberty argument as voiced by

an

employer can offer no moral grounds for

a

wholesale rejection of all employee rights.

Accordingly, we must draw the conclusion

that the respective validity of employee rights and employer liberty

can only be determined

after a separate discussion of each proposed right.

Ill

A second broad, and to our minds potentially more serious, challenge

to the validity of em

ployee rights as a class also comes from an ap

peal to liberty. This time, however, the appeal is made by employees rather than employers. Some prospective employees may

see the con

straints which specific employee rights place up on the employment agreement

as a threat to

either their wage level or their very employment. For instance, an employer recognizing employee

rights to privacy might find guaranteeing those

rights a

costly affair.7 The resulting economic

condition of the business might force the em

ployer to make wage offers lower than those he

might otherwise have made. Employees could

then complain that the recognition of an em

ployee right in practice infringes

on their ability to bargain for higher wages.

This employee critique amounts to an asser

tion that restrictions on the content of volun

tary employment agreements are

paternalistic restrictions of their liberty

to decide which goods to

forego and which to bargain for. This argu

ment, like the employer appeal to liberty, has

the potential for making discussions of par

ticular employee rights moot since it demands

total freedom for the employee in deciding the conditions of employment

? a freedom

which an employee right in our sense disallows.

We take this to be a serious challenge to em

ployee rights in that it appeals to the very value,

the liberty of employees, which we had relied

upon in our earlier response to the employer voiced liberty objection. Indeed, it might be

claimed that one employee right is the right of liberty and that this right should guarantee

employees the freedom to enter into any em

ployment agreement of their choosing. Ulti

mately, however, we do not think that there is

an inconsistency here.8 We

never claimed above

that employee liberty was an

overriding value; it

was one value among many which might support individual employee rights against the employer voiced claim of liberty. Further, what

we said

above demonstrated that anyone's liberty, whether employer

or employee, is often justi

fiably restricted by other values. To expand on

this will take us into a more detailed response to

the employee-voiced liberty challange. As a

general argument against all employee

rights, this liberty argument has serious failings. In the first place, if individual prospective

employees are to use this argument to rule out

any prior restrictions on the content of employ ment agreements, they

are committed to

claiming that in every case the decision as to

what constitutes their individual good is best

left to them as individuals. In the present con

text, this becomes the claim that paternalistic interference in an individual's life is morally

objectionable and that individuals ought to be

left to direct their own lives. These are very

strong claims. For while we are

legitimately cautioned about paternalistic interferences

with

people, we

certainly accept that some such inter

ferences are allowed. The classic cases, of course, are those where the irrational or the mentally deficient are restrained for their own welfare.

However, we need not attempt to assimilate all

paternalistic interferences to cases where the

individual is assumed to be frequently irrational.

We also entertain the morality of such inter

ferences for normally rational adults. Consider

as examples the restrictions

on the availability of prescription drugs

or the rules requiring seat

belts in all automobiles. Thus, while we find

that allowing individuals to control their own

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A Defense of Employee Rights 373

lives is a significant value, we do not believe

that this right to control is absolute.

Once one accepts this conclusion, then one

is thereby committed to the proposition that

liberty cannot presumptively rule

out all inter

ferences, even paternalistic ones, and that a

decision about whether liberty is of overriding

importance can

only be made by analyzing the

merits of particular alternative claims. Even in

the employee's hands, then, liberty cannot

generate an argument capable of proving that

employee rights are

unacceptable in general. The liberty argument used by employees

becomes even less convincing when we

recognize that employment conditions

can threaten goods,

e.g., health, which normally rational individuals

would not surrender except under duress. Thus, it would be reasonable to suggest that with such

goods at stake, employees wishing

to bargain

them away need to make an argument in parti cular cases that such bargaining is

not irrational.

This, of course, simply means that they

must

discuss the specific goods that specific employee

rights aim to protect and that liberty

cannot be

grounds for their dismissing the need for such

discussions altogether. A final response to the employee liberty argu

ment against employee rights

in general is also

telling. If as the argument suggests,

we allow

each employee to

bargain individually, the

ability of other employees to gain protections

in bargaining is effectively undermined. This

result is common in circumstances where

separate individuals, all pursuing their own

interests, can create circumstances where the

interests of all are harmed. For a related ex

ample, look to the need to prevent individual

employee bargaining in union shops. If this were allowed, the goods available only through coordinated bargaining would be impossible since the employer could play the employees' interests against

one another. In order to show

that employees in general ought not to be

prevented from individual bargaining by the

recognition of any employee rights, one would

have to show first that the value of such liberty was more

significant than the good the particu lar right aimed

to protect. It is possible for

example that liberty may be more

significant than participating in business decisions but not

more significant than employee safety. But this

simply means that we have to approach the issue

right by particular right, and that we cannot

dismiss employee rights wholesale on the basis

of the liberty argument. So, we reach the same

conclusion once more: an appeal to

liberty, whether by employer

or employee,

cannot serve

to prove that there is, in principle, no need to

admit the validity of any employee right.

IV

Another common argument for freedom of

contract which has been offered frequently in

our society is the utilitarian one. Essentially

this argument asserts that restrictions on market

agreements will lead to less desirable conditions

for the society than will the absence of such

restrictions. Usually, this utilitarian argument is

advanced in defense of a laissez-faire or free

market economy. Defenders of the laissez-faire

economic system such as Milton Friedman have

often argued that the most

productive economy is one where individuals are left to pursue their

own economic interests in as free and un

restricted an environment as possible.9 On this

view, employee rights, as some among a number

of needless restrictions on the content of con

tracts between self-interested parties, jeopardizes the overall economic well-being of society. Thus, free market theorists will reject all employee

rights as harmful deceits.

In response to this argument, we should note

that its cogency depends upon a belief in an 'in

visible hand' which guarantees that the indepen dent pursuit of self-interest by

numerous indi

viduals will always result in the greatest cumula

tive amount of interests being satisfied in the

long run. This belief is more than questionable;

it is clear that unrestricted individual pursuit of

economic interests is neither necessary nor

sufficient for the overall well-being of society.

Unregulated market activity will not guarantee

well-being. Examples from game theory exist

to show that the players in an

unregulated game

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374 Joseph R. Des Jardins and John J. McCall

of self-interest are often worse off than they would have been had they coordinated their

efforts by mutually accepting limitations on

their behavior. (Consider the arms race as one

example.) Beyond these points, we all perceive

the grave dangers to the long

run general interest

in the deterioration of the environment when

business operates without environmental regula tions. Thus, lack of restraints, e.g., a laissez-faire

economy, will not always result in the greatest interest of society.

Alternatively, lack of restraints on economic

activity is not necessary for economic well

being either. Western European economies, as

well as the Japanese economy, operate under

significantly more restrictions on the market

than does the American economy. Yet the

standard of living in Sweden, Germany, and

Japan is relatively high. Thus, there appears no

convincing reason to believe that a free market

is either a necessary or sufficient condition for

realizing the well-being of society, if it is neither,

however, there is no reason to accept the free

market theorists' wholesale rejection of employ ee

rights. Their argument is only as

convincing as the invisible hand thesis on which it depends.

Of course, an opponent of employee rights on

utilitarian grounds does not have to be a defen

der of the free market. He need not argue that

all restraints on voluntary agreements are

unacceptable because of their long run

negative

consequences. He might simply claim that this is

just true of employee rights limitations even if

not true of restrictions in general. Thus, one

might argue that society's long run interest is

harmed by OSHA legislation but not by environ

mental protection statutes.10

First, against this argument it is helpful to

remember here that Sweden, Germany, and

Japan (all states with high standards of living) have broad social or legal guarantees of employ ee

rights. Second, this sort of argument cannot

be an argument against all employee rights in

principle. For surely the success of the argument

depends on establishing the likely consequences of recognizing various rights. Of course, though, the consequences for society in recognizing

an

employee right to safety could be very different

than those in recognizing a

right to whistle

blowing. Again, the argument must be made on

a case by

case basis, looking at each particular

right proposal in turn. Thus, the utilitarian has

no more means for offering a

single argument to reject all employee rights than does the de

fender of a right to liberty.

V

One final argument which raises an in principle

objection against employee rights requires comment.

Many argue that employee rights will prove too costly in practice. They would

claim that the costs to business are so high that both employer and employee will be

harmed. (This argument is distinct from the

utilitarian argument concerning the welfare

of society at large.) Though this off-hand

dismissal of employee rights is often heard, it

cannot easily support the intended conclusion

that no employee rights can be acceptable.11

First, we must recognize that the concept of

'too costly' is vague, admitting interpretations

ranging from 'leading to financial collapse' to

'lower profits'. At the latter extreme, while it

may be true that recognizing employee rights will detrimentally affect profits

to some degree,

lowered return on investment cannot by itself

be a reason for dismissing all employee rights. Even if we believe that managers and owners

will resist the establishing of rights for employ ees prior to the employment contract, certainly

we cannot accept the proposition that no value

or concern is morally more

significant than

profit. Thus, to show that profits are reduced

cannot dispense with all employee rights since

one would also have to show, further, that no

employee right could be based on moral con

cerns more significant than profit. That, of

course, requires discussion of the moral founda

tions of specific rights and means that lowered

return is not by itself a reason

against employee

rights generally. At the other extreme of interpreting 'too

costly', the financial ruin of the enterprise, it

is clear that establishing employee rights need

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A Defense of Employee Rights 375

not have this predicted consequence, either for

all proposed employee rights or for all businesses.

Thus, if the proposed cost argument is to be

a

rejection of employee rights in to to, the evi

dence for the conclusion simply is not there.

VI

While there are undoubtedly other possible argu ments against employee rights

in general,

it

should be obvious by now that all will have the same

failing. For in order to reject employee

rights in principle as so many wish to do, one

might advance an argument to show that

no

limitations upon contract content are accept able. Since, on analysis, this is

a position no

one

could wish to hold, any who desire a wholesale

dismissal of employee rights must focus on the

limitations on contracts which such rights

impose. But since the grounds for various

rights might be different and since the problems

in implementing those rights surely vary, argu

ments against employee rights cannot be whole

sale and instead must focus on the strengths or

weaknesses of particular rights. But that is to

give up the argument and to

recognize that the

opponent of employee rights must engage him

self seriously in discussions of specific employee

rights. There simply is no easier route.

We remind the reader that we have argued

explicitly only that the legitimacy of employee rights must be addressed by discussing specific

rights, each in their turn. We have until this point

made no claim that any one of those specific

rights must be recognized

in practice. To empha size this, we should point out that any of the

foregoing arguments against employee rights

generically might be raised against some one

of the specific rights proposals. However, at the

same time we also caution the reader against

raising those previous argument too glibly.

Implicit in our responses to the foregoing argu

ments are suggestions which could lead to the

conclusion that those critical arguments do not

provide serious countervailing moral considera

tions to the presumptive moral standing of

particular employee rights. This is so, in part, because our arguments suggest that there often

are legitimate restrictions which should be

placed upon freedom of contract. Appeals to

the legitimacy of consumer protection and

environmental laws because they protect the

welfare of current or future persons are cases

in point. If those restraints on contracts are

legitimate, the burden of proof falls on those

who claim that similarly justified restraints in

the form of employee rights are not

legitimate.

Notes

1 For

example, the Harvard Business Review alone has

published the following articles: 'What Business Thinks

About Employee Privacy', by David Ewing (Sept.?Oct.,

1977); 'Your Employee's Right to Blow the Whistle',

by Kenneth Walters (July-Aug., 1975); 'Protecting All Employees Against Unjust Dismissal', by Clyde Summers (Jan.-Feb., 1980); and 'Your Right to Fire',

by David Ewing (March?April, 1983) Also, Fortune has

published Alan Westin's 'The Problem of Employee Privacy Still Troubles Management', (June 2, 1972). Business Week has published 'A Fight over Freedom to

Fire' (Sept. 20, 1982) and Business and Society Review has published 'The Case for Corporate Democracy', by Mark Green, Alice Teffer Marlin, Jules Bernstein, and Victor Kambler (Summer 1980) and Alan Linowes' 'Is Business Giving Employees Privacy?' (Winter 79?80). 2

Of course, there are analogues to this 'peculiar'

feature in the area of constitutional rights.

Few w'ould

be willing to allow that a right to vote should be seen

as a right which can be bargained away for money. 3 Cf. George Brenkert's excellent discussion of employ ee

rights to

privacy in 'Privacy, Polygraphs, and Work',

Business and Professional Ethics Journal 1, No. 1,

(1981). 4

Arguments of this sort in defense of liberty as the most fundamental

right abound among libertarian

philosophers and political theorists. Cf. the arguments in favor of the free market in the writings of Robert

Nozick, Frederick von Hayek, John Hospers. Classically, libertarians

object to any interference with uncoerced

contracts and they do

not believe coercion exists in

normal contractual arrangements between individuals

of unequal economic status. Given this, libertarians

would object that employee rights, as prior constraints on the behavior of contracting individuals, would be an

unjust interference in free market transactions. 5

Of course, some may claim that liberty need not be

violated when one has few options,

even when the

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376 Joseph R. Des Jardins and John J. McCall

diminishing of real options is the result of the behavior

of another agent. First, one might claim that a violation

of A's liberty occurs

only when the restriction of A's

options is the result of an intentional interference by another with A. Thus, A 's liberty would not be violated

if an employer, intending to better his own economic

status, acts in a way that has the limiting of ^4's options

as an unintended result. The difficulty with his line of

argument, however, is that we certainly recognize cases

where one individual violates the rights of another, albeit unintentionally; we often hold people responsible for actions with unintended harmful consequences. ('I

didn't mean to* is often an unacceptable excuse.) The

fact that an interference is unintended, then, does not

mean that it cannot be an injustice. For

development of

this point in connection with the right to liberty, see

James Sterba's 'Neo-Libertarianism' in his Justice:

Alternative Political Perspectives (Wadsworth, Belmont,

Ca., 1980). Alternatively, some

might argue that em

ployer actions are interferences with the options

of a

prospective employee, while also arguing that these

actions are not interferences with anything to which the

employee has a

right. The set of interferences here is not

identical to the set of unjust interferences. However, if

one takes this second approach, then the problem of

distinguishing between unjust and not unjust inter

ferences arises. In this regard, see Ronald Dworkin's

'What Rights Do We Have?' in his Taking Rights Seriously

(Harvard University Press, Cambridge, Ma, 1977). It is

difficult to draw this line in such a way that no em

ployer interference could be a violation of a right. Consider an

employer who offers a job only

on the con

dition that the employee provide sexual favors or a

pledge not to join a union. Most of us would find such

conditions to be unacceptable interferences. However,

anyone who wishes to use this argument against em

ployee rights in

principle must argue that such limita

tions are not unjust. Clearly, this would be difficult to

do. 6

Cf. what Donald Martin argues in 'Is an

Employee Bill of Rights Needed?' in Attack on Corporate America,

ed., M. Bruce Johnson (McGraw-Hill, New York, 1978). See also H. R. Northrup's

comments against the

need to

allow employees

a voice in management decision-making in 'Worker Participation', in Individual Rights in the

Corporation, eds.: Alan Westin and Stephen Salisbury

(Pantheon, New York, 1980). 7 Cf. again both Northrup (op. cit.) and Martin (op. cit.). Northrup suggests that

union membership

is more

interested in cents-per-hour increases that in specific

employee rights. Martin argues that an employee bill of

rights would penalize some workers who wish to better themselves. A right

to privacy, for example, makes it

impossible for prospective employees to present them

selves as more attractive candidates for a position than

others since employers could be denied access to rele

vant information. In general, Martin sees

employee

rights as preventing the choice by prospective employees for more

"oppressive personnel policies ...

requiring

compensation of pecuniary and non-pecuniary differen

tials over and above what they would receive from alter

native employments".

8 The

potential contradiction, of course, is that the

employer liberty argument was criticized from the

importance attached to the liberty of employees. Now,

we might

be seen as denying the

importance of employ ee

liberty, though, of course, we do not.

9 Cf. Milton Friedman's 'The Social Responsibility of

Business is to Increase Its Profits', The New York Times

Magazine, Sept. 13, 1970. 10 Cf. Tom Donaldson, Corporations and Morality

Prentice-Hall, Englewood Cliffs, NJ, 1981) p. 38.

Donaldson sees as a potentially difficult argument

against employee rights that they might generate gross

inefficiency. Such inefficiency would detrimentally affect productivity, of course, with

the consequence

that there would be less employment and fewer goods

for society. As teachers of business ethics well know,

this attitude appears frequently. Students often hold

that environmental protection is necessary and even

cost-beneficial while they simultaneously believe that

employee rights, as a

piece, are not cost-beneficial. It is

intriguing to note that this position is commonly held in

conjuction with the belief that employee's well-being is

sufficently protected by unions and/or the open market. 11

Cf. the results of David Ewing's survey of subscribers

in the Harvard Business Review 55 (Sept.?Oct., 1977),

p. 91. Three-fourths of Ewing's respondents felt that

employee rights are

increasing the costs of

products to

consumers and 43% felt that stockholders receive less of

a return because of such rights. Standard economic

theory suggests that this would lead, if true, to relative

disincentives to purchase and to invest. These, in turn,

lead to a slower economy and potential wage losses

for employees.

Department of Philosophy, Villanova University,

Villanova, PA 19085, U.S.A.

and

Department of Philosophy, St. Joseph's Univ.,

Philadelphia, PA 19131, USA.

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