CHAPTER 3:
ETHICAL TREATMENT OF EMPLOYEES
Video/DVD Tips:
The Insider (1999).
ABC News Great TV News Stories: From Disaster to Discovery: The Challenger Explosion (2001) 60 minutes.
ABC News Classics: Space Shuttle Challenger Disaster (2007) 23 minutes.
When We Left Earth: The Shuttle (episode 5) (2008). Discovery Channel.
Articles:
Patricia H. Werhane and Tara J. Radin, “Employment at Will and Due Process”
Werhane and Radin examine the arguments in favor of and against employment at will (EAW). Ultimately they defend a position that EAW treats employees like a disposable resource, violating the respect that they are due as persons.
1) Employment at Will (EAW) - A common law doctrine in place in the U.S. that holds that barring a contract or other guarantee, that employees work at the discretion of the employer and may be fired or may resign at will
a) EAW does not apply to federal employees
b) Cannot fire for legally protected reasons, i.e. discrimination based on sex, race, religion, nationality, etc.
2) Justifications of EAW:
a) Proprietary rights of employees guarantees the right to hire and fire whomever, whenever they wish
b) EAW defends employee and employer rights equally
c) 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
d) A system of due process will interfere with efficiency and productivity of corporations
e) Legislation or regulation will undermine an already overregulated economy
3) Objections to EAW:
a) 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
b) EAW does not protect employer/employee rights equally. Employers have much greater power to treat employees arbitrarily than do employees.
i) Employees have a corollary obligation to not treat employers in an arbitrary fashion.
c) Loyalty, trust, and respect are expected of employees, thus, reciprocal obligations are entailed by employers.
d) It is not clear that due process will necessarily entail increased costs and decreased efficiency.
e) The right to due process that employees in the public sector enjoy is grounded in the property rights of workers in their employment
i) Permanent workers are entitled to their jobs unless they show poor work habits
ii) Being fired can often cause substantial damage to an employee including making it difficult and sometimes impossible to find new employment
4) Due Process - holds that employees have a right to be protected against the arbitrary use of power by management.
a) The use of managerial power, such as firings, demotions, etc., must be justified
5) Two Types of Due Process:
a) Substantive Due Process - requires employees to be terminated for just cause and protects employees from being fired for arbitrary reasons
i) Just Cause – Specifies acceptable reasons for termination
6) Procedural Due Process - provides clear expectations of what is expected of employees and provides a step by step evaluation procedure.
a) The right to a hearing, trial, grievance procedure, or appeal when a decision is made regarding one’s employment
i) Grounded in ideals of respect for persons and fairness
ii) Does not preclude companies from laying off employees for economic reasons
Discussion:
1) Werhane and Radin contend that EAW is a violation of the respect employees are due as persons. However, if employees voluntarily accept the terms of their employment, including being at will employees, is it proper to say that they are not provided the respect they are due when employers are merely following the rule of the contract that was agreed to?
2) There are rather clear utility exchanges that are made between policies of due process and EAW. What are some ways that you can imagine that the utility losses required by a policy of due process may be minimized (or inherent inefficiencies you potentially see in EAW policies)?
Richard A. Epstein, “In Defense of the Contract at Will”
Epstein examines the justifications for contract at will. Providing a primarily utilitarian defense of EAW, Epstein concludes that EAW is morally justified on these grounds.
1) Three arguments in favor of Contract at Will:
a) Fairness
i) Freedom of contract is a basic liberty akin to our freedom to choose marriage partners or religion
ii) It is an unacceptable violation of that freedom for government to interfere with our ability to create our own contracts
iii) 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.
b) Utility
i) For employers
(1) Monitoring
(2) Discourages theft
(3) Encourages productivity
(4) Administrative costs – cheaper to merely fire someone than having a process in place
(5) Imperfect information – no way to be certain an employee will fit when you hire them
ii) For employees
(1) Imperfect information – no way to be certain the job will be a good fit
(2) Mobility – easier to explore alternative employment options
iii) Both sides
(1) Reputational losses – the risk of reputational losses discourages abuses of the system
c) Distribution of Wealth - no clear way to show that banning EAW will lead to a more fair or just redistribution of wealth
Discussion:
1) Werhane and Radin provide a strongly Kantian critique of EAW, while Epstein provides a primarily utilitarian defense of the practice. Are these two positions fundamentally at conflict with one another? Is there a possible way to find a commonly acceptable position?
2) Epstein claims that the positions of both employers and employees are essentially even with regard to EAW. Do you find this line of argument convincing? Why or why not?
Ruth R. Faden and Tom L. Beauchamp, “The Right to Risk Information and the Right to Refuse Workplace Hazards”
Faden and Beauchamp examine the arguments surrounding the right of access to risk information and the right to refuse workplace hazards. The authors contend that in order to claim that employees have freely assumed the risks of employment they must be aware of those risks. However, the right to risk information is an essentially empty right without the means to do something about it which entails the derivative right to refuse workplace hazards.
1) OSHA:
a) Balances workers’ rights to a safe work place with the continued viability of business
b) Generally safety improvements that offer substantial improvement in safety without threatening the continued function of the company are required
c) Uses utilitarian cost benefit analysis to balance the costs to industry versus the savings to the economy as a whole
2) The Right to Risk Information:
a) The reasonable person standard
i) What a fair and informed member of the relevant community would see as sufficient
b) Subjective standard
i) What each individual would subjectively determine is a sufficient amount of information
3) Balancing Sides:
a) Industry resists full disclosure of information because of “trade secrets”
b) OSHA balances between the safety concerns of employees and the viability of industry
4) The Right to Refuse Dangerous Work:
a) A right to know is worthless without a right to refuse
b) Workers have the right to request an OSHA inspection if they believe an OSHA standard has been violated or an imminent danger exists
c) Have the right to participate in inspections
d) Are protected from retaliation for exercising their OSHA rights if there is a legitimate safety or health complaint
5) Concerns:
a) OSHA does not cover small businesses (fewer than 10 workers), federal, state, or municipal employees
b) Does not require workplace health and safety committees
i) Without collective bargaining power there is a concern that workers cannot sufficiently protect their workplace rights
c) What do you do when an OSHA inspection and determination will take time and the threat is imminent?
d) OSHA regulations allow for walk outs “if there is a genuine danger of death or serious injury” where workers jobs are protected.
i) What about cases where risks are less serious or more uncertain?
e) What if workers cannot afford the loss of pay when they walk out?
i) Should employers be required to pay them?
ii) Legitimizes strike with pay which management and Congress have traditionally found unacceptable
6) Standards for Justified Walkouts:
a) Good-faith subjective standard – the worker honestly believes that a health hazard exists
b) Reasonable person standard – requires the belief to be reasonable under the circumstances as well as sincerely held
c) Objective standard – requires evidence, often established by an expert, that the risk exists
7) Limitations on Justified Walkouts:
a) Is a walkout justified only until a formal review has begun?
i) May take a long time before action is taken or a decision is reached
b) Is management required to remove the hazard until a decision is reached?
i) May result in unacceptable economic burdens
Discussion:
1) The right to refuse workplace hazards has a fundamental conflict with the ability of a business to operate effectively (if employees refuse to work there can be no production). How should these competing interests be balanced? Support your position with appeals to ethical theories.
2) Do you believe that OSHA’s standards are sufficient to protect the rights of workers? Explain.
John R. Boatright, “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.
1) Safety vs. Health Hazards:
a) Safety Hazards – generally involve loss of limbs, burns, broken bones, electrical shocks, cuts, sprains, bruises, and impairment of sight or hearing
b) Health Hazards – factors in the workplace that cause illness and other conditions that develop over a lifetime of exposure
2) Justification of a Right to a Safe and Healthy Workplace:
a) Follows from the right to survival
b) Cost-benefit analysis – essentially utilitarian reasoning balancing the costs to industry with the savings to the economy as a whole
i) Seems to be the motivation governing Congress’s passing of OSHA
3) 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”
a) Two factors that allow employers to deny their actions are a direct cause:
i) Industrial accidents are typically caused by a combination of factors, often including the actions of workers themselves
ii) It is often not practical to reduce the probability of harm any further than it has already been reduced
4) Voluntary Assumption of Risk – a common law defense which claims that employees voluntarily assume the risk inherent in their work
5) Risk and Coercion:
a) Coercion generally consists of:
i) Getting a person to choose an alternative that he or she does not want, and
ii) Issuing a threat to make the person worse off if he or she does not choose that alternative
(1) A threat involves a stated intention of making a person worse off in some way
b) 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.
6) The Right to Know About Hazardous Work:
a) Justifications:
i) Autonomy – in order to operate as an autonomous agent we must possess the requisite knowledge such that we may rationally make proper decisions
ii) Utilitarian –
(1) Workers who are aware of hazards will be better able to protect themselves
(2) 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.
b) Requires the fulfillment of four duties by employers:
i) The duty to reveal information already possessed
ii) The duty to communicate information about hazards through labeling, written communications, and training programs
iii) The duty to seek out existing information from scientific literature and other sources
iv) The duty to produce new information (i.e. through sponsorship of new studies)
7) Justifications for Refusing Hazardous Work:
a) The employee reasonably believes that the working conditions pose an imminent risk of death or serious injury
b) The employee has reason to believe that the risk cannot be avoided by any less disruptive course of action
Discussion:
1) Boatright recognizes that employers cannot claim that they are not responsible for occupational hazards if employees were coerced into accepting workplace hazards. What are some effective strategies that you can imagine for preventing coercion related to workplace hazards?
2) Boatright recognizes a potential strategy regarding workplace hazards in which acceptance of hazardous work conditions may be balanced by negotiated increases in compensation. Do you believe that all workplace hazards should be up for negotiations over compensation or should there be a minimum baseline which, even if employees would be willing to assume the risks for increased pay, they should not be allowed to? Defend your position.
Michael Davis, “Some Paradoxes of Whistle-Blowing”
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.
1) What is morally problematic with whistle-blowing?
a) Whistle-blowing is morally problematic because employees are seen to have a prima facie duty of loyalty to their employers
i) Prima facie – (first face) at first sight – accepted as correct until proven otherwise
b) Why does it make sense to say that employees owe loyalty to their employers?
2) The Standard Theory of Whistle-Blowing:
a) Whistle-blowing is permissible when:
i) (S1) The organization that the whistle-blower belongs to will, through product or policy, do serious and considerable harm
ii) (S2) The whistleblower has reported the threat of harm to her superiors and it is obvious that her superiors will do nothing effective
iii) (S3) The whistle-blower has exhausted all additional internal procedures
b) Is required when S1-S3 obtain and: