Can They Do That?

Lewis Maltby, Can They Do that? Retaking our Fundamental Rights in the Workplace (New York: Portfolio, Penguin Group (USA) Inc., 2009) 248 pages, plus 6 short appendix.

Lewis Maltby writes in the preface of his book that “Learning how to run a productive, profitable company without violating employees’ human rights became the focus of my life.” The focus of his life took shape after law school, a period as a criminal defense lawyer, board member of the Pennsylvania ACLU, followed by corporate lawyer for a new company and then Head of the Department of Human Resources. The focus of his life is also the focus of the book.

Readers start with an introduction that has examples of the doctrine of employment at will: a legal doctrine of work without due process rights. First, there is a woman who was fired for having a John Kerry bumper sticker. Jobs in America come without freedom of speech. Second, jobs come with surveillance where employers can legally monitor and judge email, cell phones, arrest records, medical histories, credit histories, driving records, and demand drug tests, personality tests and psychological evaluation. Jobs in America come without rights of privacy.

The first eight chapters from a total of sixteen chapters cover the varied issues of free speech and privacy in more detail. Readers learn of the origins of employment at will and how it has been applied over many years, and more recently with the evolution of surveillance technologies. Maltby believes many of these policies are unnecessary and fail as well, but there are many practical examples and legal cases to illustrate these points and help job weary Americans protect themselves. These chapters introduce periodic appeals to get active and help change the system; appeals that are sprinkled throughout book.

In Chapter 4 we meet Roger Boisjoly, an engineer at Morton Thiokol, who warned his higher ups that the company’s O-rings on the Challenger space shuttle were likely to fail in the freezing weather at the Florida launch pad. They did fail and he got fired for being right because due process of law does not apply to America’s jobs. American’s can lose a job for any reason or no reason.

In Chapter 7 we meet Becky Thompson who lost her job in a drug test even though she did not use drugs. That is common because companies sometimes contract with sloppy labs that find many false positive tests. Congress decided to require lab certification for all companies doing government funded drug testing, but nothing for people like Becky Thompson who still have no rights because Congress does nothing about the doctrine of employment at will. Many of the same issues apply to dismissals for medical conditions and gene testing; other issues where Congress has been weak or evasive.

The focus changes from Chapter 9 through Chapter 14. Chapter 9 covers plant closings. Federal legislation passed during the Reagan administration requires 60 days notice for dismissing employees, but then readers learn why so many companies ignore the law. Most are bankrupt and without money to pay and a majority have fewer than a hundred employees, which exempts them from the law.

The next five chapters take the reader through labor law and the rights we do have. Chapter 10 has labor law for union organizing and contract negotiations, which means the National Labor Relations Law and amendments. There is discussion of the trials and troubles for labor organizers and the weaknesses of labor law, but also a reminder that unions help secure labor rights by negotiating labor contracts for members, contracts that courts do enforce. Chapter 11 is titled “The Judge Is Not Your Friend” so we can tell what to expect. Narrative here gives a summary of some major labor law cases, especially appellate court review before the Supreme Court. The chapter that follows has a fairly detailed guide to arbitration applied in labor disputes.

Chapter 13 covers the legislated exceptions to employment at will; those dismissed for reasons of race, creed, color, religion, gender, age, nationality and lately genes have some rights. Enforcement to protect these rights can be expensive and difficult even with some help available through the Federal government’s Equal Opportunity Employment Commission. This chapter includes discussion of the Fair Labor Standards Act and what to expect from America’s minimum wage and overtime rules. Also there is brief mention of defamation by employers.

The fifth chapter of the labor rights chapters shifts to international labor rights in the global economy. Free trade agreements like the North American Free Trade Agreement (NAFTA) usually include minimum standards for labor rights for countries to be eligible for free trade, but alas readers learn they are weak and poorly enforced. Reforms are suggested.

The final two chapters leave specific issues for general and gentle persuasion. Chapter 15, Capitalism and Freedom, argues that capitalism and economic growth do not conflict with human rights. The book ends with a wrap up and suggestions for taking back our rights, meaning taking back human rights on the job.

There are six appendixes: an employee bill of rights, a model corporate privacy policy, sample letters and a National Workrights Membership Application. The book does not have a bibliography and virtually no footnotes or footnote references.

Maltby uses an easy to read conversational style intended for a broad audience. He does not cover job issues related to immigration, nor job issues related to ex-cons who have served time. He avoids partisan politics even though labor and human rights permeate America’s politics. The only exception comes at the end when he lists the labor legislation that gives some protection for employee rights with a reminder that all were passed by Democratic votes and the opposition of the Republican Party.

In my experience people who press to make and enforce more rules in employment, or otherwise, do so with an agenda of control. More rules like drug testing give controlling types of people more opportunities to assert authority and tell others what to do. Evidence that drug testing does not work or leads to unfair results will not persuade controller types, they press forward in relentless determination. Too often people looking for jobs find employers who act like they do us a favor to offer a job. Can They Do That will help you remind these people a job in America is a requirement that should be part of your rights.

The Estate Tax

Some national politicians continue to support abolishing the estate tax, a tax on the value of assets at death before ownership is transferred to heirs. The Estate tax has been subject to similar pressures and changes as the federal income tax. Up to 1981 estate tax rates up to 70 percent were applied to the entire value of an estate with only a $50,000 exemption.

Since the early 1980’s Congress has repeatedly reduced the number of estates subject to the estate tax, mostly by raising the exemption. By 2001 the exemption was $1 million and the top tax rate 55%, but 2001 was also the year the Congress agreed to a 10 year phase out of the Estate tax. It is a 10 year phase out because next year, the tenth year, the estate tax is eliminated, but only for one year. The Bush era revisions to the estate tax expire in 2011.

Under the rules that remain for 2009 the first $3.5 million of an estate is exempted from estate taxation and the article reported that only around 100 estates will be subject to any tax, which would bring in $266 billion of revenue despite the small numbers.

At a time of colossal federal deficits the Congress has to make up its collective mind and decide if it wants to amend the current law to avoid losing that much revenue for 2010, when the tax will be zero. The decision for 2010 only applies to one year and only a small amount of revenue, but estate taxes have important social repercussions overtime.

Citizens are not citizens just because they live in the same country and share the same geography. Citizens need to share some common experience to understand each other and cooperate politically and socially. One of those common experiences is the need to finish school and find self supporting work.

If the heirs of the 100 people mentioned above receive $266 billion dollars they have no need to work, ever. They can afford household servants, private tutors, and lavish lifestyles without working and without understanding what other people have to do. They also have enough money to influence media and political agendas and perpetuate their status.

As the matter stands the estate tax of 2011 will be restored to the estate tax of 2001 unless the Congress can agree on new legislation. That was as far as Congress could get toward eliminating the estate tax in the early days of the Bush administration.

Critics in Congress keep pushing to permanently eliminate the estate tax. Eliminating the estate tax will begin building a small class of families with extraordinary wealth that can be diversified around a global economy and permanently protected from market forces.

The term “banana republic” describes a pattern of inequality, usually in Latin American countries, where a few dozen land holders have 90 percent or more of the wealth and the rest live on whatever is left. Despite a well documented increase in income inequality the United States distribution of income and wealth is still a long way from that, but abolishing the Estate tax is a step in that direction.