Faden and Beachamp: How, Exactly, Is a Worker S Right to Know Supposed to Work

Faden and Beachamp: How, exactly, is a worker’s ‘Right to Know’ supposed to work?

The Point:

While it is generally agreed that workers have a ‘Right to Know’ about hazards in the workplace (and therefore employers have a correlative ‘Duty to Inform’), few agree about what that right entails. The result has been that few recognize/acknowledge the legislation with respect to a worker’s right to know in the U.S. does not satisfy the requirements of ethics.

The Strategy:

Part I: Outline the nature of the ambiguities with respect to a worker’s ‘right to know’.

Part II: Outline the state of the relevant U.S. Legislation.

Part III: Present an ethical standard by which to identify when the right to know ought to apply.

Part IV: Consider whether the law matches the requirements of the ethical standard.

Part V: Conclusion.

Part I:

We all agree that employees have a right to know about workplace hazards. Nonetheless, we don’t know the scope of that right, and more importantly, the correlative duty of employers to inform.

How much information is enough? Who has to deliver the information? Who has to verify the information? How much effort has to be put into gathering new information? And most importantly,

Does the relevant legislation (in the U.S.) satisfy the requirements of morality?

Part II:

Much legislation has developed in the U.S. over the last 20 years dedicated to giving meaning to an employee’s right to know of workplace hazards. And many prominent companies have introduced training and information programs reflecting their recognition of a worker’s ‘right to know’.

But the statistics with respect to injuries in the workplace continue to suggest that the legislation has been largely ineffective. Much of the problem is the result of a lack of enforcement, and a resulting lack of compliance.

Part III:

What moral standard should we turn to?

Given the analogy between employers/employees and doctors/positions, along with the often conflicting nature of the employer-employee relationship, we should employ a ‘reasonable-person’ objective test, supplemented by some subjective considerations to determine the scope of the ‘right to know’.

The ‘reasonable-person’ test consists in asking how much information is required by a reasonable person under similar circumstances to be informed? This test is then supplemented by inquiries about whether the individual in question has any unique sorts of concerns about the task.

The big advantage to this position is its emphasis on communication between the two parties as a means of giving life to the employee’s right to know, instead of an overly narrow focus on the employer’s duty to inform.

Many workers however, are not covered by the legislation, and so don’t even know that they have a right to be informed. Even where the workers do know of their rights, they have difficulty exercising them given the shortcomings of the legislation.

Part IV:

It has been extremely difficult to implement/give meaning to the worker’s right to know in the legal system, in part because its scope has not been identified, and in part because of the practical realities of the business world.

One of the key components to such a right is that workers must be secure in their right to refuse to work when conditions are dangerous, and not lose their jobs.

So while legislation allows many workers to refuse hazardous work without repercussion, many remain unprotected by this legislation, and even those that are protected are limited to protection in ‘extreme circumstances’.

This is insufficient if the right to know is going to have any meaningful effect; workers must be allowed to refuse both conditions that present lesser injuries, as well as when the outcome of the risks faced is uncertain.

Part V:

It is clear from empirical data that the legislation intended to give meaning to a worker’s ‘right to know’ has not succeeded in eliminating injuries in the workplace.

It is also clear that it is not morally effective inasmuch as it does not really provide workers with any reliable means of acting in defence of their right to know.

And this is odd; given that workplace injuries are expensive, negatively affect employee moral, and potentially impose criminal liability on corporate managers, you would think the companies themselves would take greater steps to making their workers’ right to know meaningful.

Automobile Workers v. Johnson Controls, Inc. (1991)

The Issue:

Can an employer discriminate against its female employees in order to protect those women’s unborn children? - (the Court’s answer is ‘no’).

Johnson prohibits fertile women from making batteries, because the process involves lead, and occupational exposure to lead produces increased health risks, especially for developing fetuses. So Johnson excludes all fertile women from working therein.

The Court determines that this practice is discriminatory because, irrespective of their altruistic intent toward the unborn babies of their workers, Johnson does not exclude fertile men from battery making. The appropriate test is whether women can continue to perform the essentials of this job while pregnant, and it appears that they can.

The point of this case for our purposes is that it shows companies can make mistakes about how to interpret their ‘duty to inform’ – here, all they should be doing is informing women of the potential risks; they cannot, and should not, make these decisions on their employees behalf.