More than any other concept it espouses, the United States of America is beholden to its belief in privacy and personal liberty. But consider this:
“Most people don’t know they give up their rights as American citizens when they go to work every day,” says Lew Maltby, president of the Workrights Institute at 166 Wall Street. “The Bill of Rights doesn’t apply to private parties or private companies.”
In the grand design, that’s a good thing. We should be able to expel or exclude someone from our homes, regardless of the reason, Maltby says. Private companies, regardless of their size or purpose, ought to be able to shed employees detrimental to the enterprise. But in spite of a litany of discrimination laws and countless lawsuits seeking retribution for some perceived injustice, the one salient fact employees of any company ought to know is that anyone can be fired for pretty much any reason at any time and there isn’t a thing anyone can do about it.
Maltby will speak on workplace rights issues as part of Rider University’s “Global Shifts/Digital Lives: The Future of Labor and Work In America,” on Wednesday, April 9 at 7 p.m. at the Bart Luedeke Center. The free event also features the panel discussions, “Your Job Is Being Outsourced,” led by Ali Mir of William Patterson University, and “The End of Autonomy: Digital Technologies in the New York City Taxi Industry,” led by Biju Mathew of Rider. Lynn Rivas, also of Rider, chairs the event. For more information, call 609-896-5000.
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 — Drexelbrook’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. Call 609-683-0313 or visit www.workrights.org for more information.
In terms of worker rights, there are some protections. You cannot be discriminated against for things like your religion, your race, your gender, your country of origin, or your sexual orientation, among others. And these protections have helped level a playing field that, until 1964, looked the other way when companies denied jobs to blacks. Unfortunately, Maltby says, they serve to cloud a deeper truth that going to work essentially means leaving America’s cherished notions of freedom at the door.
First, says Maltby, the number of anti-discrimination laws that abound in this country, from the ones protecting women or gays to the ones protecting smokers who only puff at home, are not always consistent. What you could get away with in New York is not what you could get away with in Ohio.
Second, existing statutes are very specific in what they outlaw, and usually target aspects deemed inherent to being a person. None of us, after all, had any say in our ethnicity, our sex, or our skin color. Religion, though not an inherent state of being, also finds protection under the law, and that includes actions consistent with being part of a particular faith. As it is illegal to fire someone for being Catholic, Maltby says, it is illegal to fire someone for attending mass, since mass is an inherent part of Catholicism. But protections do not extend beyond what is intrinsic. Not all Catholics, for example, are pro-life, so while a Catholic is protected from being fired for receiving communion or going to confession, he could be fired for attending a pro-life rally, just because his boss doesn’t like it.
Third, the overall number of these laws gives people the illusion that they are protected against all forms of discrimination in the workplace, but that, Maltby says, is simply untrue. While you are protected for being gay, you could lose your job if the boss disapproves of the number of sexual partners you have had over the past year. You cannot lose your job for being white, but you can lose it for contributing to the KKK.
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.
“You couldn’t fire all the Republicans or all the Democrats without decimating the business,” he says. But could you be fired for being a Democrat? Ask Lynne Gobbell, who was fired from her job at Enviromate in Moulton, Alabama, for sporting a pro-John Kerry bumper sticker on her car. Or the Fulmers, a South Carolina couple whose espousal of liberal beliefs on their personal blog offended their boss and got them fired.
Maltby downplays the idea that politics is a common factor in the firing of anyone. Often, he says, employers do not concern themselves with whomever an employer supports at the polls. Still, it is one of the reasons you could be fired, whether anyone thinks it is fair. More commonly, people are fired for espousing and expressing inherently controversial ideals, such as communism or, in some circles, nudism. It comes down to the numbers.
“You could fire all the nudists and it would be just two people,” Maltby says.
An interesting footnote is that employers do not have to be consistent in who they fire, nor for their reasons. You could be fired for your John McCain bumper sticker while your coworker keeps her job, despite the McCain posters, mugs, flags, and buttons on her corkboard.
What are the rules? For the most part, if you are fired, the boss is under little obligation to tell you why. And if he does, he can get away with saying almost nothing substantial.
“The trouble is, you never know what the rules are,” Maltby says. “All a boss has to say is, ‘you were using your E-mail in an inappropriate manner.’ 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, Maltby says, to something as seemingly innocuous as sending your wife of 15 years a flirty E-mail from your your private account on your lunch hour.
“If your beliefs can make somebody angry it could get you fired,” Maltby says.
Say what??? While Maltby emphasizes most employers’ basic sense of reason — or at least their awareness of the catastrophic effects of dismissing qualified, dedicated workers — he does admit that, on occasion, employees are let go for seemingly ridiculous reasons. Spanish-speaking workers have been fired for speaking Spanish in the office; Ross Hopkins of Colorado was fired from his job distributing Budweiser beer because he was seen drinking Coors in a bar. And to my own question, “What if I took a Russian language course for the fun of it?” Maltby answers that with a last name like Morgan, there is no recourse against a boss who, however ludicrous it might sound, hates the Russian language. “You might have a shot if you had a Russian last name, you could argue it was part of your heritage,” he says. “But you’re out of luck, Scott.”
And one other thing — it is perfectly within an employer’s rights to question you about your personal life, beliefs, or activities.
Privacy. An increasing number of employers are offering electronic perks to new hires — cell phones, laptops, handheld personal assistants. And it makes a certain sense, Maltby says. Why, after all, shell out for an expensive new computer when the company is giving you one that you can use for work or personal pleasure?
But these perks are company property, and as such, are an open book through which employers have to right to look any time they want. Maltby cites the story of one Harvard professor who, in handing over his university-issued computer for an upgrade, was nearly fired (and did lose his chair) when the IT department noticed he had used it to log onto a very legal (and comparatively tasteful) adult website.
While it might seem obvious that company property is governed by company standards, it is less understood, Maltby says, that companies can monitor anything you do that involves the company itself. Logging into the company server from home? The company can now monitor everything you do until you log out, despite the fact that you are on your own computer in your own home.
Privacy, Part II: Tracking.: As technology grows, companies can easily and cheaply exploit it to keep an eye on you every minute of the day. Company cars, cell phones, even laptops that you are allowed to use as if you own them yourselves can be equipped with GPS systems that tell your boss where you are all the time. Some bosses, Maltby says, make it a condition that you don’t shut the cell phone off for any reason. Your new perks can keep track of where you go, what you do, and what you say.
If it helps anyone breathe more easily, Maltby almost whimsically dismisses the idea that companies are hatching sinister plots designed to spy on you. No one, he says, is really devising Big Brother schemes. But human nature being what it is — which is nosy — Maltby says that if given the chance, people will look.
Privacy, Part III: Google: We all surf Google. So much so that the word “googling,” lowercase letters and all, is now part of the Miriam-Webster dictionary. Increasingly, Maltby says, employers are googling prospective employees — another avenue in the employment process that, in and of itself, makes sense. Having been professionally involved with labor issues for so long, Maltby says he understands the need employers have to ensure they are hiring good, qualified people.
But googling is a growing concern for Maltby, who does not want to see employers sifting through webpage after webpage looking for weapons to use against employees. More bothersome for him is the fact that if employers do start sifting, there is nothing anyone can do to stop them — especially if someone has volunteered something about themselves.
“Employers read blogs all the time,” Maltby says. “And googling is going to turn into standard operating procedure, if it’s not already.”
The danger in blogs, he says, is that they offer an employee absolutely zero recourse. “You’d have a hard time convincing anyone that it’s an invasion of privacy when you put it out there yourself,” Maltby says. The other danger in blogs is that since people typically do them in their off-hours, they feel as if their rights to freely vent about the boss or the job are protected. And in the America beyond the cubicle they are. But just about anything you write can get you fired.
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.