Your Rights In The Workplace
Labor Law Through The Prism Of Democracy
by Jeff Burman
Democracy comes from the Greek word demos, meaning "the people" and kratia, meaning "authority." Taken together, we have "rule of the people." Democracy is the process of participating in decisions that effect us. Not just reading the paper or voting every two years - participating in the most meaningful, effective way possible..
We do live in a democratic society. We get to vote, we have access to due process of law, we can speak freely, we are assumed innocent until proven guilty.
Except when we go to work.
American Labor Law
American labor law is based on English law, in part, on the arcane "Master-Servant Act." From this act, according to Elaine Bernard of Harvard's Labor Studies Department, we have "the underlying rule to this very day, that governs the relationship between the worker and the employer." This is how the notion of owing obedience to your employer became part of American law. If you are "an unfaithful servant" you can be fired. Or should we say "sacked."
Workplace Protections?
Some of us have been required to attend seminars that address one's rights and responsibilities in the workplace. There certainly are legal protections against discrimination based on gender, race, religion, disability or age over forty. There are protections against harassment. There are protections that allow for union organizing. Some have even prevailed in wrongful termination suits.
Despite all of this, you can still be fired for offenses as subjective as failure to do your job or for insubordination. Forget due process. You can legally be fired at the discretion of your employer; conceivably without ever knowing why.
How can this be? Where is it written? In the "doctrine of employment at will." It's something of an advancement over its feudal antecedent. In the past, you weren't allowed to quit without compensating your master, since you might well have been an indentured servant. Now you can quit without penalty, or be fired without cause.
What About Unions?
The premise of American labor law is that the natural state of the workplace is union-free. The rest of American labor law is a series of barriers set higher and higher over which workers must climb in order to be granted specific privileges, including certification, which then allows for collective bargaining. All this, of course, is in the shadow of the autocratic privileges of management.
An Alternative?
In a vigorous democracy, unions seem not only natural but necessary. Unions maximize the impact of an individual's voice. Your voice.
What if unions were deemed the legal norm, and elections were held to either confirm these unions, or decertify them? Imagine, as Elaine Bernard does, a "campaign where people can argue 'No. I do not want responsibility. I do not want to participate in decisions.' Then, if fifty percent plus one vote for benevolent dictatorship in action, [the unions] can be decertified."
Rights Of Ownership
What about the rights of ownership? Of course private property does have rights, as does private capital. But with these privileges come responsibilities to the community these private companies are part of. In the eyes of the law all rights are conferred by the larger community - in our name, as part of the demos.
Such rights include the status of legal "personhood" given to a corporation. Corporations are free to enter into any agreement or contest any agreement that a flesh-and-blood person can. But included in this right of "personhood," corporations are also granted a limitation on liability. After all, how often are corporations imprisoned or even adequately punished for "errors" that effect large numbers of employees, consumers or innocent neighbors? They are deemed privileged entities under the law.
Questions, Questions
If many corporations represent tremendous private concentrations of wealth and power, shouldn't they be subject to democratic control? Or should that be left to the "free market?"
These questions spin off ever more interesting questions.
Are the inhibiting, "self-regulating" effects of the market sufficient to guarantee the healthy give and take required by a democratic system? Or will the influence of business lobbies disrupt this delicate balance?
If employees are compelled to conformity and even subservience in the workplace, can we vigorously participate in our communities and civic life?
Can this free market insure the continuity of human values that are themselves materially dependent upon the market's whims? Are hope, charity and altruism dependent on material comfort, and are despair and rage the result of the absence of this material comfort?
And finally, are deregulation, privatization and free trade deliberate attempts by corporations to expand their autonomy and reduce our democratic control of the lasting effects they may have on us as employees, as consumers or as members of a democracy?
"One dollar, one vote; and one person, one vote are not the same" says Elaine Bernard.
What To Do?
Labor unions are the natural means to oppose the overwhelming imbalance of power in the workplace. Only when unions match the power of corporate cash with the power of sheer numbers can the voice of the demos be heard.
Unity among trade unions is not acquiescence through compromise. A unified labor movement, says Elaine Bernard, is based on informed consent; it's "not charity, it's not stooping to assist. It's forging solidarity amongst equals. It's recognizing that we have things to bring to the table in the organized labor movement. Our allies: the civil rights movement, the church movement, women, environmentalists, gays and lesbians, anti-interventionists, peace movements - we need them. They are us. That an 'injury to one is an injury to all' just isn't some dumb-ass slogan! It's solidarity. And this is how communities of interest are constructed. This is how solidarity is forged. It's forged in open debate. It's forged in struggle. And this is how democracy works...the best way to predict the future is to create it."
