Abused by the Boss?

by: Chris Carroll, from: AARP Bulletin, January 7, 2010

With the U.S. economy still in the doldrums and unemployment climbing, consider taking steps that could safeguard your job.

For instance, figure out which comic strips your boss likes and which ones he really hates. Determine her political affiliation, and support whomever she’s voting for next fall. Better yet, memorize everything about the boss and whenever possible, imitate: If he doesn’t drink, you don’t drink. He’s not gay, so you’re not gay. He doesn’t have a chronic illness, so you better not have one either.

But fail at any of these things, and, like Dave Steward, an Iowa casino employee who posted a fateful Dilbert strip at work, you could be out on the street no matter how good you are at dealing poker. And it’s likely your firing would be perfectly legal.

Steward’s story, in fact, is on the mild side of the outrageous, even paranoia-inducing anecdotes of workplace spying and abuse that fill Lewis Maltby’s new book, Can They Do That?: Retaking Our Fundamental Rights in the Workplace. (Read an excerpt here.) So thoroughly does the book demolish the belief in Bill of Rights protection at work that the reader soon feels shielded only by the Third Amendment right not to quarter troops in our homes—or in this context, cubicles. That’s because in parts or in all of the United States, employers can read your e-mail, tap your phones, secretly observe you using the toilet, fire you if you get sick, fire you if you express political views counter to their own or fire you if you’re out of shape.

So it goes, some would say; don’t interfere with the free market! But Maltby, an employment law expert, argues it’s the freedom to fire good workers for reasons unrelated to work performance or company finances that truly hurts company profitability and damages the overall economy.

He spoke with the AARP Bulletin about this and what else employers can legally do to the people who work for them—and what the worker bees can, and can’t, do about it.

Q. Give me the worst example of a firing you know.

A. The most blatantly wrong instance would have to be Lynne Gobbell, who was fired for her bumper sticker. During the 2000 presidential election, she pulled into work with a Kerry sticker on her car. When her boss ordered her to pull it off, she said no, and he fired her. She didn’t have a legal leg to stand on if she wanted to dispute it. That’s because the Constitution generally doesn’t apply to your rights at work.

Q. That seems seriously un-American.

A. People can’t believe it. I give talks and ask, “How many people here think it’s illegal to fire someone for exercising their First Amendment right to free speech?” And almost every hand goes up. People have no idea.

Q. You also relate some awful stories of peeping Tom managers using hidden cameras to watch employees in toilet stalls and changing rooms.

A. Luckily, in these cases it’s a little different than with Lynne Gobbell, which was a black-and-white case of not having legal rights. Here, the right to privacy can come into play in the courts, and sometimes a worker will win one of these cases. But just as often they lose, and the court says it’s legal for a manager to watch employees in locker rooms or bathrooms, regardless of whether there was any actual wrongdoing by employees to justify monitoring.

Q. How has advancing technology, whether tiny pinhole video cameras or e-mail, affected workers’ right to privacy?

A. In the 20 years I’ve been meaning to write this book, worker privacy has gotten much worse. Technological change has been breathtaking. For example, it might have been legal for your boss to read your e-mail 25 years ago, but it didn’t matter because you weren’t using e-mail. The chance your e-mail is being monitored today is almost a certainty.

Q. To play the devil’s advocate, why should an upright and honest employee worry if a boss spies on him or her—maybe not in the bathroom, but while working?

A. Most people don’t care if a boss intercepts an e-mail that says, “Honey I’ll be working a little late tonight.” But some communications are very sensitive: “Honey, how’d your biopsy come out?” That’s not something most people want their boss reading. Whether your spouse’s biopsy is positive or negative is nobody’s business but yours. You can’t always wait until 5 o’clock to deal with a personal issue.

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Q. Is this simply a matter of feeling a little violated?

A. Sometimes it’s more than that. Perhaps the employer finds out about something through the monitoring, like a serious medical condition that might cost the company money. Employers don’t want problems; they’re always looking for the easiest, cheapest solutions. That could mean you get fired.

Q. Is this why you advocate a national health care system in the book?

A. We have to get employers out of the medical business. You can’t expect a business that exists to make profits to pay for medical insurance and yet be blind to the cost of health care.

Q. You suggest other big changes in the way business is done.

A. I’m not recommending that we abandon the free market, but beyond that, everything should change. For example, the legal doctrine of “employment at will,” means you can be fired for almost any reason. No one knows for sure exactly how many people are fired without a legitimate reason, but the best estimates are that it’s at least 10 percent of all firings, or in excess of 150,000 people a year. That doctrine is an atrocity. It was simply fabricated by the courts. You shouldn’t be fired for things that don’t relate to your job.

Q. But you’re not talking about a government-controlled economy, are you?

A. That never turns out well. In China, it was Mao’s running of the economy that may have been the worst catastrophe in human history in terms of lives lost. I’m not advocating that employees can’t be let go for any reason, or that companies have to make bad business decisions to protect workers. But in the case of the firings I describe in my book, it’s the employers who are doing things you shouldn’t do in a market economy—making bad business decisions for silly personal reasons.

Q. Another topic: What rights do older workers truly have?

A. It’s not impossible to fire someone because of his or her age and get away with it, but you’re not likely to get away with it. If everybody who’s getting fired has gray hair, it’s not that hard to crunch the numbers and see if it’s a legitimate layoff.

Q. What about not getting hired because you’re too old?

A. That’s another matter. It’s a lot harder to prove you weren’t hired because of your age. You don’t even know who the other candidates were. You could find out, but only if you go to court. So there’s a lot of discrimination in hiring.

Q. Has anything improved in the time you’ve been involved with employment law?

A. Certain things are clearly better for some, like women and minorities. They are now protected by civil rights legislation, and they can reach levels they could not before because there’s a more level playing field.

Q. How can you protect yourself?

A. There are lots of little things people can do to protect themselves in the area of privacy. If you want to send a sensitive written message, use your cellphone and send a text message rather than an e-mail the company can easily monitor. When you’re home at night and log onto the company network to check the last few e-mails, make sure you log off the system before you check your personal account. That takes you from monitored to not monitored.

Q. Overall, what can we do to protect workers’ rights?

A. Elect government officials who care about human rights in the workplace, and then change the laws. Whether you are pro-employee rights or against employee rights is something most constituents don’t even consider. A member of Congress can vote to shaft employees every time the issue comes up and never lose a vote because of it. If the voters would pay as much attention to their rights as employees as they do to their feelings on foreign policy and school prayer and abortions, we’d have a lot better laws.

Chris Carroll is a journalist from Maryland.