Philosophy 223
Ethical Treatment of Employees:
Hiring and Firing, Worker Safety,
Whistleblowing
The Right to Work?
• As we noted in our discussion of rights
based theories, talk of rights is an
important element of the moral and ethical
analysis of the employment relationship.
• While the set of rights that it is reasonable
to consider will occupy our attention for the
next few weeks, today we are going to
focus our attention on a basic one: the right
to work.
Denying the Right to Work:
Employment at Will
• Employment at Will emerges from common law.
• Asserts that in the absence of specific law or contract,
employers have the right to hire, promote, demote, and fire
whomever and whenever they please.
• Also asserts that employees have parallel rights: quit
whenever they please.
• Employment at Will is the principle that governs the
employment of 50-60% of the private workforce.
• Only public employees are uniformly exempted.
• EaW does not contradict EEOC regulations: i.e.
discrimination based on sex, race, religion, nationality,
etc.
Employment at Will: Equal Rights?
• The strongest ethical justification for EaW
is based on the apparent equality of the
employment relationship.
• Is the relationship really a reciprocal one?
• The courts clearly don’t think so.
• Laws constraining the employment relationship in
favor of the employee greatly outnumber those
in favor of the employer.
• Who is most vulnerable?
Other Justifications for EaW
 When an employee takes a job they voluntarily commit
themselves to the terms of that job, including the
knowledge that they are an “at-will” employee
 A system of due process will interfere with efficiency
and productivity of corporations
 Legislation or regulation will undermine an already
overregulated economy
Criticisms of EaW
 Firing an employee without providing good reasons treats them
like a piece of machinery and does not show them the respect
they are due as persons.
 Loyalty, trust, and respect are expected of employees, thus,
reciprocal obligations are entailed by employers.
 It is not clear that due process will necessarily entail increased
costs and decreased efficiency.
 The right to due process that employees in the public sector
enjoy is grounded in the property rights of workers in their
employment.
 Permanent workers are entitled to their jobs unless they show poor
work habits.
 Being fired can often cause substantial damage to an employee
including making it difficult and sometimes impossible to find new
employment.
Another Alternative: Due Process
• Due Process also has its roots in Common Law.
• Magna Carta: limits to the arbitrary authority of
the king.
• Due Process rights protect individuals from the arbitrary
uses of authority.
• Based in the principle that even legitimate
authority requires justification for its
employment.
Due Process In the Workplace
• When the principle of Due Process is applied
in the workplace, it typically takes one of
two forms:
• Substantive: right to demand a rationale/reasons
for decision. Typically takes the form of a
procedure that must be followed in making
employment decisions.
• Procedural: right to mechanisms to dispute
decisions.Examples include written standards,
appeal process, and established disciplinary
practices.
Justifications for Due Process
• Arguments in favor of due process rights typically
invoke the principles of justice and fairness.
• Application of these principles typically refers to a
distinction between power and authority.
• Power in this context is the ability to impose one’s will on
another.
• Authority refers to situations when the exercise of power is
legitimate.
• The use of power without authority violates
standards of justice and fairness. To the extent
that Due Process guarantees that power is used
with authority, it is justified by those standards.
Criticisms of Due Process
• Critics of Due Process have raised four
concerns.
• Freedom: imposition of due process rights
violates the freedom of participants in the
employment market.
• Fairness: due process imposes burdens on the
participants in the employment market.
• Property Rights: due process illegitimately
restricts the property rights of business owners.
• Efficiency: due process lessens the efficiency of
our economic institutions.
Participation Rights
• The focus on legitimate uses of power in the
discussion of Due Process raises another
question:
• Where does the authority of business owners and
managers come from?
• Perhaps we should ask, “Where does the
authority of our political leaders come
from?”
• What is the significance of this analogy?
Participation Rights: Workplace
Democracy
• Is the analogy to our political context
appropriate?
• Both are significant social institutions with
coercive power; in both, power arises from
ability to grant or deny important goods; in both,
institutional roles specify who has the power.
• If the analogy fits, then there seems to be
good reason to conclude that authority
arises in business in way analogous to
politics: consent of the governed.
Advantages of Workplace
Democracy
• Makes work more fulfilling.
• Encourages self-respect.
• Improves morale.
• Encourages participation in other
public institutions.
Epstein “In Defense”
Epstein examines the
justifications for contract
(employment) at will.
Providing a primarily utilitarian
defense of EAW, Epstein concludes
that EAW is morally justified on
these grounds.
The Argument from Fairness
 Fairness
 Freedom of contract is a basic liberty akin to our
freedom to choose marriage partners or religion
 It is an unacceptable violation of that freedom
for government to interfere with our ability to
create our own contracts
 If terms are unacceptable then that is the
responsibility of that party since he freely
entered into the employment relationship, yet
both retain the freedom to leave the relationship
at any time.
The Argument from Utility
 For employers
 Monitoring—Discourages theft, encourages productivity
 Administrative costs – cheaper to merely fire someone than
having a process in place
 Imperfect information – no way to be certain an employee will
fit when you hire them
 For employees
 Imperfect information
 Mobility – easier to explore alternative employment options
 Both sides
 Reputational losses – the risk of reputational losses
discourages abuses of the system
The Argument from Distribution
 With regard to the principle of
distributive justice, Epstein argues
that there is no clear way to show
that banning EAW will lead to a more
fair or just redistribution of wealth.
 Given current levels of income and
wealth inequality, couldn’t we expect
that it would?
Worker Safety
“The Right to Risk Information”
 Faden and Beauchamp examine the
arguments surrounding the right of access
to risk information and the right to refuse
workplace hazards.
 Their thesis is that in order to claim that
employees have freely assumed the risks of
employment they must be aware of those
risks and, lest the right to risk information
be an essentially one, we must also
recognize the derivative right to refuse
workplace hazards.
OSHA
 Balances workers’ rights to a safe work place with
the continued viability of business
 Generally safety improvements that offer substantial
improvement in safety without threatening the continued
function of the company are required
 Uses utilitarian cost benefit analysis to balance the
costs to industry versus the savings to the economy
as a whole
The Right to Risk Information
 The reasonable person standard
 What a fair and informed member of the relevant
community would see as sufficient.
 Subjective standard
 What each individual would subjectively
determine is a sufficient amount of information.
A Balancing Act
 Industry resists full disclosure of
information because of trade secrets.
 OSHA balances between the safety
concerns of employees and the
viability of industry.
A Right to Refuse?
 A right to know is worthless without a right
to refuse.
 Workers have the right to request an OSHA
inspection if they believe an OSHA standard
has been violated or an imminent danger
exists.
 Have the right to participate in inspections.
 Are protected from retaliation for
exercising their OSHA rights if there is a
legitimate safety or health complaint.
Limits of OSHA
 OSHA does not cover small businesses
(fewer than 10 workers), federal,
state, or municipal employees
 Does not require workplace health and
safety committees
 Without collective bargaining power there
is a concern that workers cannot
sufficiently protect their workplace rights
Walkouts
 OSHA regulations allow for walk outs “if there is a
genuine danger of death or serious injury” where
workers jobs are protected.
 What about cases where risks are less serious or more
uncertain?
 What if workers cannot afford the loss of pay when
they walk out?
 Should employers be required to pay them?
 Legitimizes strike with pay which management and
Congress have traditionally found unacceptable.
Standards for Justified Walkouts
 Good-faith subjective standard – the worker honestly
believes that a health hazard exists.
 Reasonable person standard – requires the belief to be
reasonable under the circumstances as well as sincerely
held.
 Objective standard – requires evidence, often
established by an expert, that the risk exists.
“Occupational Health and Safety”
 Boatright examines the moral foundations for a
right to occupational health and safety.
 He argues that the common law defense of
voluntary assumption of risk is a faulty principle
since it rests on how a right to a safe workplace is
worked out.
 In the end he argues for a strong duty to not only
provide safety information to employees but a duty
to seek out safety information and a correlative
right to refuse the hazards that are discovered or
disclosed.
Safety vs. Health Hazards
 Safety Hazards: generally involve loss of
limbs, burns, broken bones, electrical
shocks, cuts, sprains, bruises, and
impairment of sight or hearing.
 Health Hazards: factors in the workplace
that cause illness and other conditions that
develop over a lifetime of exposure.
Justification of a Right to a Safe
and Healthy Workplace
 Follows from the right to survival.
 Cost-benefit analysis: essentially utilitarian
reasoning balancing the costs to industry
with the savings to the economy as a whole.
 Seems to be the motivation governing Congress’s
passing of OSHA.
The Question of Causation
 Direct Cause: Companies are responsible for
those harms that result “directly from the
actions of employers where the employer is
at fault in some way.”
 Two factors that allow employers to deny
their actions are a direct cause:
 Industrial accidents are typically caused by a
combination of factors, often including the actions of
workers themselves.
 It is often not practical to reduce the probability of harm
any further than it has already been reduced.
VAR and Coercion
 Voluntary Assumption of Risk is a common law
defense which claims that employees voluntarily
(without coercion) assume the risk inherent in their
work
 Coercion:
 Getting a person to choose an alternative that he or she
does not want.
 Issuing a threat to make the person worse off if he or she
does not choose that alternative.
 A threat involves a stated intention of making a person
worse off in some way.
Is it so easy?
 The defense of voluntary assumption of risk
seems to be circular.
 Employers claim that they are freed from
responsibility when workers assume the
risks of employment without being coerced.
 However, whether employees are coerced
or not depends on the right of employees to
a safe and healthy workplace and the
obligation of employees to provide it.
Is There a Right to Know about
Risks?
 Kantian Deontology: in order to operate as an
autonomous agent we must possess the requisite
knowledge such that we may rationally make
proper decisions.
 Utilitarian: workers who are aware of hazards will
be better able to protect themselves.
 Some economists hold that allowing market forces to
determine the level of acceptable risk is the best means to
secure welfare. This requires a trade-off between
compensation and risks. However proper knowledge of the
risks is required in order to successfully negotiate these
trade-offs.
Corresponding Duties
 The right to knowledge about risk requires
the fulfillment of four duties by employers:
 the duty to reveal information already possessed;
 the duty to communicate information about
hazards through labeling, written
communications, and training programs;
 the duty to seek out existing information from
scientific literature and other sources;
 the duty to produce new information (i.e.
through sponsorship of new studies).
Justifications for Refusing
Hazardous Work
 The employee reasonably believes
that the working conditions pose an
imminent risk of death or serious
injury.
 The employee has reason to believe
that the risk cannot be avoided by any
less disruptive course of action.
Whistleblowing
Whistleblowing: The Basics
• Whistleblowing is an attempt by a
member or former member of an
organization to disclose wrongdoing in
or by the organization. It takes both
internal and external forms.
• The difficulty with whistleblowing is
that it seems in obvious conflict with
another obligation: loyalty.
Who Blows the Whistle?
• The average whistleblower is a 47-year-old family man
with 7 years on the job and a strong belief in universal
moral principles.
• Most whistleblowers who work for private businesses are
fired by their employers, 20% remain unemployed after
6 months, 25% report a decrease in family income, 17%
lose homes, 54% report harassment by their peers at
work, 80% report physical deterioration, 10% attempt
suicide.
• Despite these figures, most whistleblowers admit of
few regrets and assert that they would do it again.
A Difficult Position
 Whistleblowers
are typically pulled in (at
least) three directions.
 All employees have obligations to their employers and their
co-workers which are relatively obvious and easy to
specify.
 However they also have obligations to the communities in
which they live and work, up to and including the global
community.
• If this isn’t complicated enough, whistleblowers obviously
have a responsibility to themselves and to their loved ones.
“Paradoxes”
 Davis briefly examines the case of Roger Boisjoly
and his blowing the whistle on Morton-Thiokol
following the Challenger disaster. He then applies
this case to the standard theory of whistle-blowing
and discovers that this case does not seem to
satisfy the demands of this theory.
 As a result, he proposes an alternative “complicity
theory” of whistle-blowing.
What is morally problematic with
whistle-blowing?
 Whistle-blowing is morally problematic
because employees are seen to have a
prima facie duty of loyalty to their
employers
 Prima facie – (first face) at first sight – accepted
as correct until proven otherwise
 Why does it make sense to say that
employees owe loyalty to their employers?
The Standard Theory of WhistleBlowing
 W-B is permissible when (149):
 (S1) The organization that the whistle-blower belongs to will,
through product or policy, do serious and considerable harm.
 (S2) The whistleblower has reported the threat of harm to her
superiors and it is obvious that her superiors will do nothing
effective.
 (S3) The whistle-blower has exhausted all additional internal
procedures.
 W-B is required when S1-S3 obtain and (149):
 (S4) The whistle-blower has evidence that would convince a
reasonable, impartial observer that she’s correct.
 (S5) The whistle-blower has good reason to believe that blowing the
whistle will prevent the harm at a reasonable cost.
Justifications of W-B
 W-B justified by application of a (fairly weak)
version of the harm principle (for W-B).
 “people have a moral obligation to prevent serious harm to
others if they can do so with little cost to themselves” (149).
 In this instance the harm principle is a form of
“minimally decent samaritanism.”
 Not a form of “good samaritanism” which requires
going beyond the moral minimum.
Three Paradoxes of Whistle-Blowing
 Paradox of Burden – whistle-blowers generally act
at considerable risk to themselves, thus the weak
justification offered by the specified harm
principle is inadequate.
 Paradox of Missing Harm – only a subset of harms
are “serious and considerable,” many significant
harms (deception, injustice) don’t rise to the
standard.
 Paradox of Failure – whistle-blowers are rarely
successful at preventing “serious and considerable
harm.”
An Example: The Challenger
Disaster
 The Standard Theory fails to show why
Roger Boisjoly is a justified whistle-blower.
 Yet Boisjoly is widely considered a prime
example of a justified whistle-blower.
 Under the standard theory not only should he not
be praised but he should be condemned for
betraying his loyalty to Morton-Thiokol.
 We need a theory of whistle-blowing that
can explain why cases like that of Boisjoly
are justified.
Complicity Theory of W-B
 W-B is morally required if:
 (C1) What you reveal derives from your work at the
organization.
 (C2) You are a voluntary member of that organization.
 (C3) You believe that the organization is engaged in serious
moral wrongdoing.
 (C4) You believe that your work will contribute to the
wrongdoing if you do not reveal it publicly.
 (C5) You are justified in your beliefs regarding C3 and C4.
 (C6) Beliefs C3 and C4 are true.
What about Boisjoly?
 Though he has problems with the standard
theory, he does quite well with the
complicity theory.
 (C1) Boisjoly’s testimony consisted of information
regarding his work for Thiokol.
 (C2) Boisjoly was voluntarily employed with Thiokol.
 (C3) Boisjoly was convinced that Thiokol was misleading
the commission.
 (C4) The information he passed on to his superiors was
used in the cover-up, thus he was complicit in the coverup.
 (C5) Boisjoly was justified in his beliefs.
 (C6) Boisjoly’s beliefs were true.
“W-B and Employee Loyalty”
 Duska begins by examining the notion that whistleblowing requires a moral justification. He then
goes on to examine notions of loyalty, ultimately
concluding that companies are not something that
can legitimately demand loyalty.
 He concludes that if employees do not owe loyalty
to their employers then there is no need to morally
justify whistle-blowing.
Company Loyalty?
 Loyalty is a wholehearted devotion to
another person.
 Loyalty entails self-sacrifice without the
expectation of reward.
 We can have loyalty to groups that are
bound by mutual fulfillment and support.
 Companies are not such groups since they
are solely bound by division of labor and the
generation of profit.
Loyalty and W-B
 A common suggestion is that w-b is disloyal because
it is analogous to calling a foul on your own team
(158).
 Duska argues that this is a bad analogy:
 business has no end with clear winners or losers such as in a game;
 the “game” of business affects all stakeholders, not just the
“players” who actually work in the firm.
 Thus, there is no duty of loyalty owed to an
employer and since employees do not owe a duty
of loyalty to their employers there is no need for a
moral justification for whistle-blowing.