Philosophy 323

1
Philosophy 323

• Ethical Treatment of Employees
• Hiring and Firing

2
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.

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Denying the Right to WorkEmployment 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.

4
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 dont think so.
• Laws constraining the employment relationship in
  favor of the employee greatly outnumber those in
  favor of the employer.
• Who is most vulnerable?

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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

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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.

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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.

8
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.

9
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
  ones 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.

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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.

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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?

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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.

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Advantages of Workplace Democracy

• Makes work more fulfilling.
• Encourages self-respect.
• Improves morale.
• Encourages participation in other public
  institutions.

14
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.

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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.

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The Argument from Utility

• For employers
• MonitoringDiscourages 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

17
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.