ARI SHAPIRO, Host:
In Alabama, a woman was fired from her job because she would not remove a political bumper sticker from her car. A man in Indiana was fired for having a few beers after work, because his boss thought drinking was a sin. In New York, a teacher was fired by a school superintendent who believed the teacher's obesity was not conducive to learning.
These are all cases outlined in Lewis Maltby's new book called "Can They Do That?" And in each case, the answer is yes, they can. Maltby is the founder of the National Workrights Institute, and he's the former head of the ACLU's National Workplace Rights Office. Good morning.
M: Good morning.
SHAPIRO: So why can an employer, in most cases, fire a worker for a political bumper sticker? Isn't freedom of speech protected by the First Amendment?
M: Freedom of the speech is protected by the First Amendment, but only where the government is concerned. What most Americans generally don't know is that the Constitution doesn't apply to private corporations at all.
SHAPIRO: How many rights do workers have? When we look at privacy, how much can employers eavesdrop on their workers?
M: The only thing a private employer can't do, when it comes to eavesdropping, is deliberately eavesdrop on a personal, oral conversation that takes place at work. Anything else is open season.
SHAPIRO: If I use my home computer to post something publicly on Facebook or Twitter or my blog, could I be fired for that?
M: Absolutely, happens every day. What happens is, people think: I can say whatever I want on my blog; my boss is never going to read this. That's not true. Bosses read people's personal blogs and Web sites all the time, and sometimes for very legitimate business reasons. I used to run a fair-sized corporation, and if I thought somebody was getting ready to quit, I would have loved to have been able to find out in advance so I could start lining up the replacement.
I probably would have looked at their personal blog myself, to see if they were really planning to quit. And what happens is, the boss goes to your Web site because he thinks maybe you're moonlighting for a competitor or you're thinking about quitting and you're not. But your boss sees your blowing off steam about him, takes offense, and you get fired.
SHAPIRO: Well, speaking of Facebook and Twitter, I posted on Facebook and Twitter that I was going to be interviewing you about this book, and one of your former colleagues responded that one of the biggest challenges your Workplace Rights Project faced was that there wasn't much to litigate about, because no decent laws exist to protect workers. Do you agree with that assessment?
M: That's true. I've been getting phone calls from people for 20 years who have been abused in all sorts of ways. And when I tell them, I'm sorry, you don't have any legal rights, they literally don't believe me.
SHAPIRO: Do companies need some of these powers, for example, (unintelligible) more surveillance, I mean, just generally speaking, the ability to kind of invade the lives of their workers?
M: A company really ought to have the right, for many reasons, to make business decisions the way it thinks is best. If your boss thinks you're doing a lousy job and wants to fire you, well, too bad. It's his call, even if he's wrong.
But it's not a business decision when your boss tells you that you have to sleep with him to keep your job or to take the bumper sticker off your car or change your religion to keep your job. That's not a legitimate business decision. That's just abusing the power of the paycheck.
SHAPIRO: But if workers all agree on that, then these companies would be unable to hire anybody and would go out of business. Why doesn't the market work to just extinguish these practices?
M: If the market were perfect, maybe that would happen. But as any economist will tell you, all markets have imperfections, and the employment market is one of the least perfect markets that there is. It sounds perfect in theory to say, well, if you don't like what your boss did, quit and go someplace else.
But losing your job is pretty scary. What if you don't find another job? You could lose your house. How are you going to feed your kids? It sounds nice in theory to say, walk away and look for another job. But in practice, most people just can't take that risk. They just put up with it.
SHAPIRO: Lewis Maltby, thank you very much.
M: My pleasure, Ari.
SHAPIRO: Lewis Maltby is the president of the National Workrights Institute, and author of "Can They Do That?"
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