Tuesday, April 27, 2010

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.

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