On a Worker’s Bill of Rights

Quillette is one of the more interesting and (what I would term) non-partisan sites out there — its self-stated mission being to provide a platform for free expression and the free exchange of ideas. It is a site that should be read often, and most pieces are worthy of in-depth consideration.

A piece posted on March 21, entitled “Towards a Worker’s Bill of Rights,” by one Gideon Scopes, is (like most other pieces) both provocative and interesting. However, in the end, despite identification of an issue which has proven relevant, I think Mr. Scopes’ solution would prove a cure worse than the disease itself.

The problem which Mr. Scopes identifies is the ability for companies, (particularly progressive-leaning ones, as it seems) to terminate employees at will for personal expressions. In his own words:

Google fired a highly accomplished engineer because he had the audacity to question the dogma that the gender gap in technology is solely the result of discrimination. Starbucks pushed out an employee who was the target of unsubstantiated allegations of racism. The CEO of Mozilla was forced to resign after activists objected to his political donations years earlier. And there is every reason to believe that there are many more instances involving everyday people that did not make the headlines.

Mr. Scopes’ ultimate question, therefore, is whether our rights are truly protected if, when we exercise them, we can be summarily terminated by our employer. As he puts it, “ other constitutional rights — including the all-important freedom of speech — remain unprotected against the actions of private entities at the federal level.” Or, as he adds later, if corporations can fire us for engaging in certain activities important to a liberal democracy, such as writing letters to editors, posting political content online, and so on, “we ought to question how free we truly are.”

He then proposes his remedy to these concerns, which is a federal bill of rights, in the form of law (not constitutional amendments), to protect certain rights of workers. It is not one-sided in favor of workers — rather, it attempts to balance what we find in the Constitution in the Bill of Rights with the rights of corporations to control their environment and workers. So, for instance, while off-duty / off-site, workers may say a great deal, and are protected from termination by employers for what is said at those times.

Going through a line-by-line discussion of Mr. Scopes’ ideas would be exhausting, and would turn this into a 300-page-long Medium article. While the idea does have its ironic and oxymoronic merits, I think I can capture some of my major concerns with the idea with a few examples.

First, the proposals would impose costs on small businesses that would make it more difficult for them to survive and compete. Consider one example: corporations are permitted to limit speech on certain issues at their workplace. In order to do so, they must:

[P]rovide a written policy to all employees explicitly stating what issues cannot be discussed. Such a policy must allow or disallow discussion of a particular issue. It may not allow the expression of one position while disallowing expression of the contrary.

One might also look at the suggestion for due-process requirements for employees accused of certain misconduct, which large businesses might be able to afford, but small businesses?

I recognize Mr. Scopes’ desire here, which is to prevent corporations from turning their workplaces into viewpoint-advocacy centers (when the corporations are not dedicated to such, that is) and chilling out other viewpoints through potential for termination. However, consider what sort of costs this would impose on a family-owned or a small corporation — the one or two owners would need to publish a lengthy list of topics not to discuss, and constantly amend it…for their three other employees. This would impose massive costs for small businesses — and turn them into a constant monitor of employees’ speech.

Second (per my prior sentence), for any business, this would no doubt increase oversight of speech. Any given employer, in order to avoid the charge that it was being partial, would constantly monitor the internal discussions of the company, to permit the employer to determine what was being discussed and whether it was conducive to business. Long lists of regulations would be distributed and constantly updated. Water-cooler conversations would be circumscribed, discussions tangentially related to work would be eliminated, and employee political discussions would almost certainly be terminated. It would make Big Brother corporations even bigger and less brotherly.

Finally, I am not sure that Mr. Scopes understands the idea of “interstate commerce” in its full legal scope and meaning. He states:

A Worker’s Bill of Rights would not require any amendments to the Constitution and could be passed as ordinary federal legislation. Considering that enacting any such measures at the state or local level could cause companies to move their businesses to other states, these issues affect interstate commerce. Therefore, the federal government has the power to pass such legislation under the Constitution.

Borrowing from The Heritage Guide to the Constitution, the Commerce Clause has been defined by the Supreme Court in different ways, but at least one case has said that the federal government may regulate “[a]ny human activity or other phenomenon that has any ultimate impact on activities in more states than one.” However, recently, the Supreme Court has limited the reach of the Commerce Clause. In the words of The Heritage Guide:

In Lopez, Chief Justice William H. Rehnquist wound his way among the Court’s precedents to strike down a federal law that had criminalized the possession of a gun near a school. He declared that the commerce power extends to (1) “the use of the channels of interstate commerce”; (2) the regulation of “instrumentalities of interstate commerce, or person or things in interstate commerce”; and (3) a local commercial activity having a “substantial relation” to interstate commerce.

Further, later:

In Morrison, the Court struck down a suit for damages for rape, even though the suit would have been permitted under the Violence Against Women Act. Here, Chief Justice Rehnquist explained Lopez by emphasizing that noneconomic activities (violence against women, or violence against men, or violence in general) could not be aggregated to establish a substantial connection to interstate commerce.

I would hazard that such a federal law would fall, at least in some of its provisions, under the Lopez / Morrison view. Moreover, I believe that other parts of the US Constitution would have more substantial problems with the suggestions. That said, in order to avoid turning this essay overly lengthy, I am closing for now.