Philosophy 223Ethical Treatment of Employees:

Hiring and Firing, Worker Safety, Whistleblowing

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.

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.

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.

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?”

• What is the significance of this 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 current levels of income and wealth inequality, couldn’t we expect that it would?

Worker Safety

“The Right to Risk Information”

Faden and Beauchamp examine the arguments surrounding the right of access to risk information and the right to refuse workplace hazards.

Their thesis is that in order to claim that employees have freely assumed the risks of employment they must be aware of those risks and, lest the right to risk information be an essentially one, we must also recognize the derivative right to refuse workplace hazards.

OSHA

Balances workers’ rights to a safe work place with the continued viability of businessGenerally safety improvements that offer substantial

improvement in safety without threatening the continued function of the company are required

Uses utilitarian cost benefit analysis to balance the costs to industry versus the savings to the economy as a whole

The Right to Risk Information

The reasonable person standardWhat a fair and informed member of the

relevant community would see as sufficient.

Subjective standardWhat each individual would subjectively

determine is a sufficient amount of information.

A Balancing Act

Industry resists full disclosure of information because of trade secrets.

OSHA balances between the safety concerns of employees and the viability of industry.

A Right to Refuse?

A right to know is worthless without a right to refuse.

Workers have the right to request an OSHA inspection if they believe an OSHA standard has been violated or an imminent danger exists.Have the right to participate in inspections.

Are protected from retaliation for exercising their OSHA rights if there is a legitimate safety or health complaint.

Limits of OSHA

OSHA does not cover small businesses (fewer than 10 workers), federal, state, or municipal employees

Does not require workplace health and safety committeesWithout collective bargaining power

there is a concern that workers cannot sufficiently protect their workplace rights

Walkouts

OSHA regulations allow for walk outs “if there is a genuine danger of death or serious injury” where workers jobs are protected.What about cases where risks are less serious or

more uncertain?

What if workers cannot afford the loss of pay when they walk out?Should employers be required to pay them?Legitimizes strike with pay which management and

Congress have traditionally found unacceptable.

Standards for Justified Walkouts

Good-faith subjective standard – the worker honestly believes that a health hazard exists.

Reasonable person standard – requires the belief to be reasonable under the circumstances as well as sincerely held.

Objective standard – requires evidence, often established by an expert, that the risk exists.

“Occupational Health and Safety”

Boatright examines the moral foundations for a right to occupational health and safety.

He argues that the common law defense of voluntary assumption of risk is a faulty principle since it rests on how a right to a safe workplace is worked out.

In the end he argues for a strong duty to not only provide safety information to employees but a duty to seek out safety information and a correlative right to refuse the hazards that are discovered or disclosed.

Safety vs. Health Hazards

Safety Hazards: generally involve loss of limbs, burns, broken bones, electrical shocks, cuts, sprains, bruises, and impairment of sight or hearing.

Health Hazards: factors in the workplace that cause illness and other conditions that develop over a lifetime of exposure.

Justification of a Right to a Safe and Healthy Workplace

Follows from the right to survival.

Cost-benefit analysis: essentially utilitarian reasoning balancing the costs to industry with the savings to the economy as a whole.Seems to be the motivation governing

Congress’s passing of OSHA.

The Question of Causation

Direct Cause: Companies are responsible for those harms that result “directly from the actions of employers where the employer is at fault in some way.”

Two factors that allow employers to deny their actions are a direct cause:

Industrial accidents are typically caused by a combination of factors, often including the actions of workers themselves.

It is often not practical to reduce the probability of harm any further than it has already been reduced.

VAR and Coercion

Voluntary Assumption of Risk is a common law defense which claims that employees voluntarily (without coercion) assume the risk inherent in their work

Coercion: Getting a person to choose an alternative that he or

she does not want. Issuing a threat to make the person worse off if he or

she does not choose that alternative.A threat involves a stated intention of making a

person worse off in some way.

Is it so easy?

The defense of voluntary assumption of risk seems to be circular.

Employers claim that they are freed from responsibility when workers assume the risks of employment without being coerced.

However, whether employees are coerced or not depends on the right of employees to a safe and healthy workplace and the obligation of employees to provide it.

Is There a Right to Know about Risks?

Kantian Deontology: in order to operate as an autonomous agent we must possess the requisite knowledge such that we may rationally make proper decisions.

Utilitarian: workers who are aware of hazards will be better able to protect themselves.Some economists hold that allowing market forces to

determine the level of acceptable risk is the best means to secure welfare. This requires a trade-off between compensation and risks. However proper knowledge of the risks is required in order to successfully negotiate these trade-offs.

Corresponding Duties

The right to knowledge about risk requires the fulfillment of four duties by employers:the duty to reveal information already

possessed;the duty to communicate information about

hazards through labeling, written communications, and training programs;

the duty to seek out existing information from scientific literature and other sources;

the duty to produce new information (i.e. through sponsorship of new studies).

Justifications for Refusing Hazardous Work

The employee reasonably believes that the working conditions pose an imminent risk of death or serious injury.

The employee has reason to believe that the risk cannot be avoided by any less disruptive course of action.

Whistleblowing

Whistleblowing: The Basics

• Whistleblowing is an attempt by a member or former member of an organization to disclose wrongdoing in or by the organization. It takes both internal and external forms.

• The difficulty with whistleblowing is that it seems in obvious conflict with another obligation: loyalty.

Who Blows the Whistle?

• The average whistleblower is a 47-year-old family man with 7 years on the job and a strong belief in universal moral principles.

• Most whistleblowers who work for private businesses are fired by their employers, 20% remain unemployed after 6 months, 25% report a decrease in family income, 17% lose homes, 54% report harassment by their peers at work, 80% report physical deterioration, 10% attempt suicide.

• Despite these figures, most whistleblowers admit of few regrets and assert that they would do it again.

A Difficult Position

Whistleblowers are typically pulled in (at least) three directions. All employees have obligations to their employers

and their co-workers which are relatively obvious and easy to specify.

However they also have obligations to the communities in which they live and work, up to and including the global community.

• If this isn’t complicated enough, whistleblowers obviously have a responsibility to themselves and to their loved ones.

“Paradoxes”

Davis briefly examines the case of Roger Boisjoly and his blowing the whistle on Morton-Thiokol following the Challenger disaster. He then applies this case to the standard theory of whistle-blowing and discovers that this case does not seem to satisfy the demands of this theory.

As a result, he proposes an alternative “complicity theory” of whistle-blowing.

What is morally problematic with whistle-blowing?

Whistle-blowing is morally problematic because employees are seen to have a prima facie duty of loyalty to their employersPrima facie – (first face) at first sight –

accepted as correct until proven otherwise

Why does it make sense to say that employees owe loyalty to their employers?

The Standard Theory of Whistle-Blowing

W-B is permissible when (149): (S1) The organization that the whistle-blower belongs to will,

through product or policy, do serious and considerable harm. (S2) The whistleblower has reported the threat of harm to

her superiors and it is obvious that her superiors will do nothing effective.

(S3) The whistle-blower has exhausted all additional internal procedures.

W-B is required when S1-S3 obtain and (149): (S4) The whistle-blower has evidence that would convince a

reasonable, impartial observer that she’s correct. (S5) The whistle-blower has good reason to believe that

blowing the whistle will prevent the harm at a reasonable cost.

Justifications of W-B

W-B justified by application of a (fairly weak) version of the harm principle (for W-B).

“people have a moral obligation to prevent serious harm to others if they can do so with little cost to themselves” (149).

In this instance the harm principle is a form of “minimally decent samaritanism.”

Not a form of “good samaritanism” which requires going beyond the moral minimum.

Three Paradoxes of Whistle-Blowing

Paradox of Burden – whistle-blowers generally act at considerable risk to themselves, thus the weak justification offered by the specified harm principle is inadequate.

Paradox of Missing Harm – only a subset of harms are “serious and considerable,” many significant harms (deception, injustice) don’t rise to the standard.

Paradox of Failure – whistle-blowers are rarely successful at preventing “serious and considerable harm.”

An Example: The Challenger Disaster

The Standard Theory fails to show why Roger Boisjoly is a justified whistle-blower.

Yet Boisjoly is widely considered a prime example of a justified whistle-blower.Under the standard theory not only should he

not be praised but he should be condemned for betraying his loyalty to Morton-Thiokol.

We need a theory of whistle-blowing that can explain why cases like that of Boisjoly are justified.

Complicity Theory of W-B

W-B is morally required if: (C1) What you reveal derives from your work at the

organization. (C2) You are a voluntary member of that organization. (C3) You believe that the organization is engaged in

serious moral wrongdoing. (C4) You believe that your work will contribute to the

wrongdoing if you do not reveal it publicly. (C5) You are justified in your beliefs regarding C3 and

C4. (C6) Beliefs C3 and C4 are true.

What about Boisjoly?

Though he has problems with the standard theory, he does quite well with the complicity theory.

(C1) Boisjoly’s testimony consisted of information regarding his work for Thiokol.

(C2) Boisjoly was voluntarily employed with Thiokol.

(C3) Boisjoly was convinced that Thiokol was misleading the commission.

(C4) The information he passed on to his superiors was used in the cover-up, thus he was complicit in the cover-up.

(C5) Boisjoly was justified in his beliefs.(C6) Boisjoly’s beliefs were true.

“W-B and Employee Loyalty”

Duska begins by examining the notion that whistle-blowing requires a moral justification. He then goes on to examine notions of loyalty, ultimately concluding that companies are not something that can legitimately demand loyalty.

He concludes that if employees do not owe loyalty to their employers then there is no need to morally justify whistle-blowing.

Company Loyalty?

Loyalty is a wholehearted devotion to another person.

Loyalty entails self-sacrifice without the expectation of reward.

We can have loyalty to groups that are bound by mutual fulfillment and support.

Companies are not such groups since they are solely bound by division of labor and the generation of profit.

Loyalty and W-B

A common suggestion is that w-b is disloyal because it is analogous to calling a foul on your own team (158).

Duska argues that this is a bad analogy: business has no end with clear winners or losers such as in a

game; the “game” of business affects all stakeholders, not just the

“players” who actually work in the firm.

Thus, there is no duty of loyalty owed to an employer and since employees do not owe a duty of loyalty to their employers there is no need for a moral justification for whistle-blowing.