Philosophy 223
Ethical Treatment of Employees:
Hiring and Firing
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 up to
Fall Break, 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.
An 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?”
 Implications of the 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 what we talked about last
time, we might ask in response if
there’s any reason to believe it
wouldn’t?