Employees and the Right to Privacy
So far, all of our issues have focused
specifically on the doctor-patient
relationship. Now we are moving beyond
that to consider relationships in the
broader workplace. I have heard of
dentists (and other doctors) who treat
their patients with utmost respect but
treat their employees with anything but
respect. The “ethics of the clinic” is no
less important than the more specific
issues of medical ethics. Thus we turn to
issues in medical management.
The plan: Today, we’ll talk about the
employee-employer relationship. Next
Tuesday, we’ll discuss the important
issue of whistle blowing. Then we’ll
conclude with sexual harassment and
discrimination. These are issues that all
employees and employers face,
regardless of profession, but we are
going to turn our focus to the clinic.
Civil Liberties in the Workplace:
Very simple—you don’t have any. Any
that you have are granted by the
employer, and those may be withdrawn
at any time, for any reason. The Bill of
Rights applies to the workplace only to
the extent that the boss wants it to.
Employment at Will:
One of the cornerstones of the
employee/employer relationship is the
“employment at will principle.” It says
that in the absence of law or contract,
employers have the right to hire,
promote, demote and fire whomever and
whenever they please. Moreover, this
may be done with justification, with
inadequate justification or with no
justification at all. What about this
principle? Does it sound fair?
Let’s start with traditional reasons
given in favor of it:
1) The proprietary rights of employers
guarantee that they may employ or
dismiss whomever and whenever they
wish.
2) EAW defends employee and employer
rights equally, in particular the freedom
of contract. The employee can also quit
at any time.
3) When the employee chooses a job, he
or she voluntarily commits
herself/himself to certain obligations and
company loyalty, including the
knowledge that he/she is an “at-will”
employee.
4) Extending due process to the
workplace interferes with efficiency.
5) Legislation and further regulation of
employment relationships would further
undermine an already over-regulated
economy.
Critics: the primary defense of the
principle is flawed. That is, defenders of
the EAW do so based on property rights.
This fails to notice that employees are
PERSONS, not property, and therefore
employees morally require different
treatment than property or robots.
Property rights are not basic rights. That
is, our most basic rights are the negative
rights to freedom--life and liberty. Rights
of ownership cannot override rights to
freedom, for the former require the latter
as a foundation.
But is the employee’s labor the property
of the employer? And can’t the employer
do what he wants with her property? The
false assumption behind this is that labor
is a form of property.
Consider this: we can distinguish
someone from their possessions. But
persons cannot be distinguished from
their working, their productivity. If
someone wants to get rid of their chair,
fine, let them do so without interference,
no harm is done. If an employer wants to
get rid of this particular “labor”, then not
so fine, for that is to get rid of the
laborer. To treat an employee “at will” is
analogous to considering that employee
as a piece of property at the disposal of
the employer, because arbitrary firings
treat rational persons as things. (Note the
Kantian objection to this practice.)
Does an argument for employee rights
violate the freedom of contract? Does the
EAW provide equal protection for the
employee and the employer?
Utilitarian Considerations: The argument
goes that the employer must have the
absolute freedom as a means for
maximizing efficiency. Can we assume
that’s what a manager wants to do?
Requiring justification makes certain that
the moves are justified! That seems to be
in the best interest of the corporation.
More recent arguments in favor of
EAW:
Kantian: it’s fair. We all know what we
are giving and what we are getting. The
importance of the freedom of contract is
important as an end in itself. Freedom of
contract is as basic as freedom of speech,
religion, etc. Any limit on our freedom
of contract limits the power of workers
and employers to transact their business
Utilitarian: 1. Monitoring behavior-EAW is more useful because it allows
corporations to fire employees who are
mis-behaving without having to go
through the expense of legal
proceedings.
2. Reputational losses: Typically, those
who argue against EAW argue that it
unfairly advantages the employer. But,
this doesn’t take into account the
problem of arbitrarily firing folks--you
lose good workers.
3. Risk diversification and Imperfect
Information: If you get stuck with a job
that turns out to be unfortunately not
your ideal, you can find another. Also, it
allows a “let’s try this out and see if it
fits for us” approach.
4. Administrative costs: There are none.
It’s cheap to administer, certainly
cheaper than any kind of due process.
So, you run a dental clinic. Which do
you want? Say instead that you work for
a larger clinic. Which do you want?
Second big issue: What interest does the
employer have in the lifestyle of the
employee? Why is privacy important?
1) We want to control intimate or
personal information about ourselves and
not permit it to be freely available to
everyone. We are concerned to restrict
who has certain kinds of information
about ourselves, the means by which
they acquire it, and those to whom they
may disclose it.
2) We wish to keep certain thoughts,
feelings, and behavior free from scrutiny,
monitoring, or observation of strangers.
We don’t want our private selves to be
on public display.
3) We value being able to make certain
decisions autonomously. We seek to
preserve and protect a sphere of privacy
in which we can choose to think and act
for ourselves (319, text).
Clearly, employers can have an interest
in your behavior while you are at work
or representing the company. Some of
these interests they have taken may be
more reasonable than others. Look at
some of the examples on 320-1.
But what about behavior outside of
work? Look at the case of the gay
stripper, Henry Ford, and Milton
Hershey (320). Furthermore, many
companies use lie detector-honesty tests;
rules about smoking, exercising,
drinking, drug use and testing, sexual
orientation.
Autonomy suggests that we ought to be
given informed consent when our
privacy is being invaded, right? That’s
the values of the medical profession. But,
the employer can lay down these
conditions. In hiring, we may
discriminate (rightly or wrongly) based
on language, physical appearance,
lifestyle, education, employment history
gaps, tests, etc.