Employee Rights

The National Labor Relations Board frequently interviews or subpoenas employees to help determine whether an employer has committed an unfair labor practice. Many employers, however, have advised their employees that they may refuse to cooperate with the Board's efforts. Professor Teeter argues that such advice has an inherent tendency to coerce employees and to frustrate the Board's vindication of their statutory rights. After reviewing the inconsistent approaches tribunals have taken to this problem, the author recommends that employers be prohibited from counseling employees regarding their participation in the Board's proceedings. Professor Teeter concludes that the Board itself should be the one to inform employees of their rights and obligations in cases against the employer.

The article reviews the recent debate about workplace democracy. It first presents and critically discusses arguments in favor of democratizing the firm that are based on the analogy with states, meaningful work, the avoidance of unjustified hierarchies, and beneficial effects on political democracy. The second part presents and critically discusses arguments against workplace democracy that are based on considerations of efficiency, the difficulties of a transition towards democratic firms, and liberal commitments such as the rights of employees and owners to work for or invest in non-democratic firms. The conclusion summarizes the debate and argues that experiments with democratic workplaces as what Erik Olin Wright (2010) calls "real utopias" could deliver new insights and thus move the discussion forward.

In this paper, we explore a popular flexible work arrangement (FWA), home-based telework, in the Indian IT industry. We show how IT managers used the dominant meanings of telework to portray telework as an employee benefit that outweighed the attendant cost—intensified work. While using their discretion to grant telework, the managers drew on this portrayal to orchestrate a negotiated exchange with their subordinates. Consequently, in exchange of telework, the employees consented to accomplish the intensified work at home, despite their opposition to the intensified work in the office. Thus, whereas the extant studies consider work intensification as an unanticipated outcome of using FWAs, we show how firms may use FWAs strategically to get office-based intensified work accomplished at home. While the dominant argument is that employees reciprocate the opportunity to telework with intensified work, we show a discursively orchestrated negotiation that favors management. A corrective policy measure is to frame telework as an employee right.

On September 5, 2017, a decision of the Grand Chamber of the European Court of Human Rights (ECHR) in Bărbulescu v. Romania (Bărbulescu) helped define the boundaries regarding employee privacy in the European workplace. The Bărbulescu decision held that a Romanian employee's legally protected right to privacy was violated when his employer monitored personal messages he sent from a company account, reversing a previous decision by the ECHR in this case that had expanded employers' rights to monitor employees.

Rights claims are ubiquitous in modernity. Often expressed when relatively weaker agents assert claims against more powerful actors, especially against states and corporations, the prominence of rights claims in organizational contexts creates a challenge for virtue-based approaches to business ethics, especially perspectives employing MacIntyre’s practices–institutions schema since MacIntyre has long been a vocal critic of the notion of human rights. In this article, I argue that employee rights can be understood at a basic level as rights conferred by the rules constitutive of practices. As such, employee rights correspond to the obligations of practitioners to treat fellow practitioners according to the standards of excellence and requirements of justice. Thus, one way that managers can ensure that their core practice is well-functioning is to recognize employee rights. One implication of this argument is that managers should adopt a more positive stance toward labor unions, inso...

Employers seeking to control employee behavior outside of working hours is nothing new. However, recent developments have extended efforts to control employee behavior into new areas, with new significance. Employers seek to control legal behavior by employees outside of working hours, to have significant influence over employee's health-related behavior, and to monitor and control employee's social media, even when this behavior has nothing to do with the workplace. In this article, I draw on the work of political theorists Jon Elster, Gerald Gaus and Michael Walzer, and privacy scholars Daniel Solove and Anita Allen, to show what is wrong with this extension of employer control of employee's outside of work behavior. I argue that there are ethical limits on the controls that employers may put on their employees' out of work behavior, and that many of these limits should be enshrined into legal protections which would prevent employers from conditioning employment on the regulations criticized.

© Matthew Lister, 2021.

In this paper, we explore a popular flexible work arrangement (FWA), home-based telework, in the Indian IT industry. We show how IT managers used the dominant meanings of telework to portray telework as an employee benefit that outweighed the attendant cost—intensified work. While using their discretion to grant telework, the managers drew on this portrayal to orchestrate a negotiated exchange with their subordinates. Consequently, in exchange of telework, the employees consented to accomplish the intensified work at home, despite their opposition to the intensified work in the office. Thus, whereas the extant studies consider work intensification as an unanticipated outcome of using FWAs, we show how firms may use FWAs strategically to get office-based intensified work accomplished at home. While the dominant argument is that employees reciprocate the opportunity to telework with intensified work, we show a discursively orchestrated negotiation that favors management. A corrective ...

Rights claims are ubiquitous in modernity. Often expressed when relatively weaker agents assert claims against more powerful actors, especially against states and corporations, the prominence of rights claims in organizational contexts creates a challenge for virtue-based approaches to business ethics, especially perspectives employing MacIntyre’s practices–institutions schema since MacIntyre has long been a vocal critic of the notion of human rights. In this article, I argue that employee rights can be understood at a basic level as rights conferred by the rules constitutive of practices. As such, employee rights correspond to the obligations of practitioners to treat fellow practitioners according to the standards of excellence and requirements of justice. Thus, one way that managers can ensure that their core practice is well-functioning is to recognize employee rights. One implication of this argument is that managers should adopt a more positive stance toward labor unions, insofar as they are a key way for employees to ensure that their voice is heard, and their rights respected.

The validity or invalidity of the core provision raises a substantial question of whether there should be a Restatement of Employment Law at all at this time. Certainly, the action of a reputable organization such as the ALI issuing a document that this particular statement of the at-will rule is the law, if in fact it is not accurate, would be damaging to the long-term common law process of refining rules by evolution. This is especially true in this circumstance, where only after a long period of judicial inaction while the rule had fallen into virtual desuetude, from the late nineteenth century to the late twentieth century, forty-nine state supreme courts have begun again to work out new rules in the evolutionary process which is the common law. Thus, the ALI’s assertion that the at-will rule “is” the law today, if, in fact, the law is in considerable flux, would be inaccurate. State judicial acceptance of the assertion would be counterproductive to the common law process. There...

Anita Allen’s Uneasy Access: Privacy for Women in a Free Society was one of the first books to try to work out a feminist perspective on privacy, given long-standing feminist doubts and ambivalences about its effects on women.  In contrast to a philosophical literature which largely ignored feminist concerns with privacy, Allen set out to consider privacy from an explicitly feminist perspective, drawing on philosophical and American legal debates in order to do so.  The result was a highly readable book, which provided an excellent survey of competing attempts to describe the nature and value of privacy, and a helpful account of their relative strengths and weaknesses.  Arguing that feminists should revise, not reject, privacy, Allen showed that the ability to restrict unwanted access to our bodies and thoughts is essential to freedom for women, as for men. I am, then, grateful to have an opportunity to celebrate Allen’s work and, in particular, a book which has inspired me over the years.  Nonetheless, I must agree with Judith DeCew, in her review of Uneasy Access, that its central claims are not wholly persuasive.  In particular, Allen’s insistence that decisional and restricted access privacy have nothing to do with each other leaves it unclear how the content of our claims to solitude, anonymity, confidentiality and seclusion are to be determined and, normatively, how we are to decide which forms of privacy are valuable and which are not.  This paper therefore attempts to build on the strengths, while correcting for the weaknesses, of Allen's arguments.

Rights claims are ubiquitous in modernity. Often expressed when relatively weaker agents assert claims against more powerful actors, especially against states and corporations, the prominence of rights claims in organizational contexts creates a challenge for virtue-based approaches to business ethics, especially perspectives employing MacIntyre’s practices–institutions schema since MacIntyre has long been a vocal critic of the notion of human rights. In this article, I argue that employee rights can be understood at a basic level as rights conferred by the rules constitutive of practices. As such, employee rights correspond to the obligations of practitioners to treat fellow practitioners according to the standards of excellence and requirements of justice. Thus, one way that managers can ensure that their core practice is well-functioning is to recognize employee rights. One implication of this argument is that managers should adopt a more positive stance toward labor unions, insofar as they are a key way for employees to ensure that their voice is heard, and their rights respected.

In this paper, we explore a popular flexible work arrangement (FWA), home-based telework, in the Indian IT industry. We show how IT managers used the dominant meanings of telework to portray telework as an employee benefit that outweighed the attendant cost—intensified work. While using their discretion to grant telework, the managers drew on this portrayal to orchestrate a negotiated exchange with their subordinates. Consequently, in exchange of telework, the employees consented to accomplish the intensified work at home, despite their opposition to the intensified work in the office. Thus, whereas the extant studies consider work intensification as an unanticipated outcome of using FWAs, we show how firms may use FWAs strategically to get office-based intensified work accomplished at home. While the dominant argument is that employees reciprocate the opportunity to telework with intensified work, we show a discursively orchestrated negotiation that favors management. A corrective policy measure is to frame telework as an employee right.

On September 5, 2017, a decision of the Grand Chamber of the European Court of Human Rights (ECHR) in Bărbulescu v. Romania (Bărbulescu) helped define the boundaries regarding employee privacy in the European workplace. The Bărbulescu decision held that a Romanian employee's legally protected right to privacy was violated when his employer monitored personal messages he sent from a company account, reversing a previous decision by the ECHR in this case that had expanded employers' rights to monitor employees. Co-authored with Emily Fedeles.

In this paper, we explore a popular flexible work arrangement (FWA), home-based telework, in the Indian IT industry. We show how IT managers used the dominant meanings of telework to portray telework as an employee benefit that outweighed the attendant cost—intensified work. While using their discretion to grant telework, the managers drew on this portrayal to orchestrate a negotiated exchange with their subordinates. Consequently, the employees consented to accomplish the intensified work at home in exchange of telework despite their opposition to the intensified work in the office. Thus, whereas the extant studies consider work intensification as an unanticipated outcome of using FWAs, we show how firms may use FWAs strategically to get office-based intensified work accomplished at home. While the dominant argument is that employees reciprocate the opportunity to telework with intensified work, we show a discursively orchestrated negotiation that favors management. A corrective policy measure is to frame telework as an employee right.

Any procedure requiring a “fair” election must honor the rights of both those who oppose and those who favor a union. The National Labor Relations Act (“Act”) is wholly neutral when it comes to that choice. Under the terms of the Act, employees have the right to form unions but also have the right to refrain from such activities. The National Labor Relations Board’s (“Board”) role in representation elections is to ascertain the employee's’ wishes concerning unionization, and not to influence that fundamental choice.  The Board’s appearance of neutrality may be undermined through fraternization, the delegation of duties, and allegedly partisan statements or actions.

In Athbro Precision Engineering Corp., the Board stated that elections could be set aside whenever a Board agent's misconduct destroyed confidence in the election process or could be interpreted as impugning the Board's election standards. Yet, despite this decision, the Board has been reluctant to invalidate elections despite highly questionable associations between its agents and parties to representation elections.  Thus, it has frequently been left to the circuit courts to uphold the Board’s earlier concern for maintaining the integrity of the Board’s election standards. As a result, it remains uncertain when and why the elections will be invalidated due to the appearance of Board partisanship.

Even in the face of these issues, there is a greater need to preserve faith in the sanctity of representation elections. Therefore, the Board and federal courts should move vigorously to nurture the Athbro standard and keep faith with the workers’ rightful expectations that their freedom of choice shall remain unfettered.