Not Just Jobs, but Good Jobs
In this era of high unemployment, the United States has increasingly become a country of bad jobs that are held by people desperate to provide food and shelter for themselves and their families. As a result, many workers and unemployed workers have become so desperate that they are willing to forego fair treatment on the job, the enforcement of laws enacted to provide safe, fair, and remunerative work, and the working conditions of other employees who have benefitted from collective bargaining.
For decades, workplace laws have also been weakened by judicial decisions, a process referred to as “judicial amendments.” The National Labor Relations Act’s protections and rights have been progressively weakened through judicial decisions. Before it, the Clayton Act was passed in 1914 to reverse judicial amendments of the Sherman Act that gave federal courts the power to issue sweeping injunctions in labor disputes. In 1932, Congress tried to overturn judicial amendments that weakened the Clayton Act by passing the Norris-LaGuardia Act. Workplace laws continue to be subject to the process of judicial amendments today. For example, Congress amended Title VII in 1978, 1991, and 2009, and the Americans with Disabilities Act (“ADA”) in 2008, in order to overturn judicial amendments and reinstate the protections Congress had created. Other laws, such as the Occupational Safety and Health Act (“OSHA”), have long failed to achieve their purposes as a result of judicial amendments.
When people across this country go to work, they enter a place where democratic rights of due process, equal protection, and voice must be checked at the workplace door.
This situation is certainly sad for those workers and their dependents. But problems created by a society composed of many desperate people are not just a personal tragedy. Their effects erode our collective well-being, the promise of this country, and our survival as a democratic society.
Who Owns a Job?
We need a serious discussion as to whether work in a democracy should be the same as or different from work in a dictatorship. Put another way, should our constitutional rights to due process, equal protection, and freedom of assembly and speech affect the way work is conducted and the roles and rights of employers and employees in the workplace?
The very idea that constitutional and democratic values and rights could – or even should – be part of the fabric of the workplace will strike many as ludicrous. It seems obvious that the workplace belongs to the employer, and an employer can treat its property as it wishes. This means that employers are allowed to set workplace rules, even if the rules are bad ones and even if they are destructive to the company. Employees have no rights to participate in setting rules and processes and are allowed to retain their jobs only as long as they are productive, loyal, and obedient.
Unions and their roles and obligations under federal and state collective bargaining laws do more than just allowemployees to negotiate their terms and conditions of employment. They also create rights to industrial due process and equal protection. Despite their effects on workplace relationships and power, justifications made for union representation and collective bargaining do not include issues of job ownership and the role of work in a democratic society.
However, workplace dynamics and their roles in promoting and maintaining democratic citizenship need to be taken seriously. If an employer is the sole owner of jobs, by what right can law regulate employment and how work is performed? If an employer’s ownership of a job has limits, what is the justification for those limits? These questions are not about abstract rights. They have real consequences.
A common starting point assumes that a job is the employer’s property and that workplace laws are a trespass on that property. However, this view fails to take into account all of the resources and investments that create and maintain jobs. No job exists without joint investments by employers, employees, and society.
Society’s investments in current and future workers include creating and supporting infrastructure that directly benefits employers and companies that operate in the United States. Among public investments that support and subsidize employers are monitoring and controlling diseases and dangers to public health; ensuring we have safe water, air, and food; monitoring and responding to weather and environmental threats; and investing in and directly building public infrastructure, including transportation, scientific discoveries, and education.
One of the most important investments that makes the United States an attractive place to do business is the stability of our system of laws and legal procedures. They ensure that agreements are enforced and disputes are settled peacefully. In addition, employers large and small receive public support through many forms of tax breaks, grants, and other financial aid and supports. Employers are also assisted by state and federal departments and agencies that provide stability, technical advice, and grants. Even more important are laws that allow employers to incorporate. These laws free companies from various sorts of liability that apply to people and allow them to exist in perpetuity. Indeed, were we to account for the dollar value of all types of public support provided to create and support jobs, it would be obvious that all jobs in this country are public sector jobs.
Employees’ work is an investment of their time, thought, education, training, abilities, effort, and commitment to the success of the enterprise. Without these investments, no employer can succeed. The value of these resources, provided by employees, is far greater than the cost of their pay, and their contribution and investments need to be acknowledged and protected.
Each job, then, has multiple investors who can make justifiable claims to joint ownership of those jobs. These property rights deserve to be recognized and protected.
There are many open questions that arise from thinking about jobs in a way that more accurately recognizes the identity of those who invest in the creation and maintenance of jobs. For example, focusing first on the workplace, if employer, employee, and public investments create claims to job ownership, what are the dimensions of that ownership and the boundaries of those rights? How does shared ownership of work affect work processes, duties, and rights? For example, what is disloyalty within a democratic workplace? Who all can be disloyal and to whom?
Second, moving outside the workplace, does the nature of work in a democratic society differ from the nature of work in non-democratic and, especially in totalitarian, societies? Does work performed by citizens, as opposed to subjects, have a special role to play in supporting and maintaining a democracy? Can work itself be a democratizing force? More specifically, should work in the United States be carried out in accord with our democratic values? If we want to preserve democracy, must we ensure that our country’s institutions support democracy and democratic values? Are there costs in not having workplaces that are infused with democratic values?
How can law foster democratic values in the workplace?
For decades, the quality of U.S. jobs has been maintained by an ecosystem of laws protecting employee rights to freedom of association, to choose union representation, and to bargain collectively; to work in safe and healthful conditions; to receive fair compensation; to have medical care, rehabilitation, and financial support when workplace injuries occur; to receive fair wages; to work reasonable hours that allow time for adequate rest and for engaging in the responsibilities of democratic governance; to receive financial support when unemployed and looking for new work; to receive promised pay and workplace benefits; to be protected from invidious discrimination and harassment at work; and to retain rights to privacy.
However, in recent years, rights and benefits derived from working have declined. This decline has tracked the declining percentage of workers who are union members and covered by collective bargaining. It has beenaccelerated more recently by high unemployment that has left workers willing to accept any job and afraid to report violations of workplace rights and by an erosion of legal protections and supports, including through judicial decisions that limit rights.
In the United States, more than in other major countries, health care and other rights are tied to jobs rather than being provided by government. Good jobs are the foundation of our prosperity and well being. It is imperative, therefore, that we ask: How do we reverse the declining quality of jobs? How does our workplace governance become more participatory and aligned with our democratic values? How do we give credit to all the contributions made to workplace success?
For the United States to prosper, what are needed are not just jobs, but good jobs for all. In this country, to be good jobs, work must pay well, but it must also be infused with the spirit and practice of democratic citizenship. Our very democracy depends on providing good jobs, jobs that support the practice of participatory citizenship and this country’s values.