America is a democracy. Your workplace is not. Consider that the only reason you have a job is because someone has allowed you to have it. And the reason you haven’t been fired has far more to do with common sense (and common decency) than anything in the law.
In other words, but for a few reasons specifically spelled out by the law, you can be let go from your job for almost any reason — because you’re too conservative, because you’re pro choice, even because your fridge is stocked with the wrong beer.
Believe it, says Lew Maltby, director of the National Workrights Institute, based at 128 Stone Cliff Road. “The Bill of Rights doesn’t apply to private parties or private companies.”
Maltby will present “Can They Do That?: Retaking Our Fundamental Rights in the Workplace” on Tuesday, April 19, at 7:30 p.m. at the Princeton Public Library, 65 Witherspoon Street. The event, sponsored by NJ Unemployed, is free to attend. Visit www.workrights.us or www.njunemployed.com.
Overall, Maltby says, the system is set up well. We should be able to expel or exclude someone from our homes, regardless of the reason, and private companies, regardless of their size or purpose, ought to be able to shed employees detrimental to the enterprise.
The good news is that there are some protections in place. You cannot be discriminated against for your religion, race, gender, country of origin, or sexual orientation. But past that, there are countless reasons a boss can let you go. And here’s something else to consider — the boss really doesn’t need a reason at all. The boss generally is under little obligation to tell you why he’s letting you go. And if he does give you a reason, he can get away with saying almost nothing substantial. Or use the word “inappropriate.”
“All a boss has to say is, ‘you were using your E-mail in an inappropriate manner,’” Maltby says. “If there’s a vaguer word than ‘inappropriate’ in the English language, I don’t know what it is.”
Indeed, “inappropriate” covers an immense spectrum and empowers employers to use pretty much anything against an employee. Inappropriate can mean anything as obvious as downloading hardcore pornography at work to something as seemingly innocuous as sending your wife of 15 years a flirty E-mail from your private account on your lunch hour.
Another thing to consider: an employer does not have to be consistent in who they fire, nor for their reasons. You could be fired for your Obama bumper sticker while your coworker with the same sticker keeps her job. The rules, says Maltby, are open to a lot of interpretation.
Part of the problem, Maltby says, is that there are such strict workplace rules in effect, each carrying scary-looking penalties and overtones of costly lawsuits. Walk through any HR office and you will see ubiquitous posted signs stating the illegality of discriminating against women or gays or Latinos.
This, Maltby says, is what creates the illusion that your job is safe. Those rules guard against specific practices against specific groups. When we read them we feel we are more covered than we actually are. Your boss wants to give your position to his busty, 22-year-old girlfriend? All he has to tell you is that your services are no longer required.
Even within those specific areas of the law there is a lot of play in the interpretation. Though you cannot be fired for being Catholic, for example, you can be fired for attending an anti-abortion rally. And though you cannot be fired for being white, you can be for contributing to the KKK.
What keeps people from getting fired, Maltby says, is basic common sense. Imagine how many people would be out of work — and, consequently what would happen to a company and the economy overall — if, say, every person of African descent were fired. Or all the Republicans. Businesses would at best grind to a standstill and at worst have to hire new people who need to be trained. The financial costs would be enormous, not to mention the social fallout for any company that blanketly excludes one type of person.
And, Maltby says, most employers do not want to fire people in the first place. Beyond the economics, it’s just not cool to take the livelihoods of people away on things most employers realize is immaterial. Being a nudist in your private life is not likely to have an effect on how many words you can type in one minute.
And, besides all that, there is fear of court. The Miller Brewing Company might be within its rights to fire an employee who has stocked the fridge with Coors, but questionable firings often lead to lawsuits that, even if the employer will survive, will tarnish its reputation and cost money to fight. Small companies in particular have to worry about the financial and social costs of court, even if they win the case.
What you can do. While on the surface employment sounds like a police state, Maltby says it is not. You do have at least some rights. You cannot, for example, be fired for doing something you have a specific legal right to do, such as filing a worker’s compensation claim or, at least in some states, whistleblowing. You also cannot be dismissed for refusing to do something illegal that your boss asks you to do. And if the company has agreed to certain conditions under which employees cannot be fired, those rules cannot be ignored.
A good idea, Maltby says, is to ask questions of employers or prospective employers. Ask what their privacy rules, or any other rules are and perhaps accommodations can be made.
Another good idea, he says, is to write your Congress and state Senate representatives. The reason the system exists as it does is not because employers routinely block progress, Maltby says, but because people do not know that they can simply write letters asking that certain conditions be amended. “You’d be surprised how few letters it takes to get a legislator’s attention,” he says. He estimates 50 letters to a congressman and 12 to a state senator are enough to get them to notice. Once Workrights Institute has the ear of a legislator, he says, better protections can be drafted and, perhaps, put into place. Remember — unless something is specifically outlawed, it is almost always legal for an employer to fire you.
The son of a homemaker and an electrical engineer, Maltby refers to himself as a Philadelphia boy, through and through. Born and raised in the suburb of Abbington and educated in and around the city, Maltby spent his entire college career at the University of Pennsylvania. His degree in history took him to Penn’s law school, where he emerged in 1973 with his J.D.
The first four years of his professional life were spent as a Philadelphia public defender. He then spent 12 years at Drexel Controls Inc., a manufacturer of controls for chemical and industrial companies. Eventually working in — and ultimately as — Drexel’s human resources department, Maltby found there were ways to be a boss and still see the person behind the worker. This led him to the ACLU, for which he went to work in the late 1980s. His division, concentrating on worker rights, eventually became the Workrights Institute, operating independently from the ACLU.
Maltby, who worked in the national office of the ACLU in New York before taking over the Workrights Institute, says he has told such facts to hundreds of people, nearly all of whom are so surprised that they simply refuse to believe him. Though he takes mild comfort in the fact that most employers are gun shy about anything that could possibly land them in court, he admits that it is practicality, not the law, that keeps most people working.