Employee vs Employer Bill of Rights

Last Updated Oct 12, 2011 12:52 AM EDT

Liz Ryan, at Business Week writes about the need for an Employee Bill of Rights. She does not like the "at will" employment status that most employees have--this merely means that companies and employees can both end employment without notice and without reason. But, lack of cause for firing is the least of her suggestions. Here are the "rights" that she thinks employees should have:
  1. The Right to Be Hired Based on Qualifications
  2. The Right to Be Paid the Market Wage
  3. The Right to Know What's Expected
  4. The Right to Succeed Together
  5. The Right to Have a Life
  6. The Right to Speak Up
  7. The Right to Be Treated With Respect
  8. The Right to Keep Learning
  9. The Right to Relevant Information
All of this sounds warm and fuzzy and wonderful, except for the part where it would be utterly ridiculous to implement. How so? Even something that seems obvious like, "The Right to Be Hired Based on Qualifications" would be a nightmare if enshrined in law. When the job market is down (like it is now), you can end up with hundreds of qualified candidates. Your hiring decision is not going to be based on any hardline qualifications because your top 100 candidates are all "qualified." But, now you have to fight a lawsuit to prove that your decision was the most qualified. And, in a market where you don't have a lot of candidates, what happens when none of the candidates are "qualified"? You have to pick someone, so if candidate A has skills X and Y and candidate B has skills Y and Z and you decide that Z is more important than X, just wait for candidate A to sue saying you picked B based on something other than qualifications. Or worse, Candidate C has skills X, Y, and Z, but is a complete slimeball. How will you defend yourself? Do you need an anti-slimeball policy? Oy.

And here's another warm fuzzy thing that stinks: The right to be paid a market wage. Who determines the market? Here's at tip: If someone offers you a job and the salary is too low, you can just turn it down. See? It doesn't require any government reinforcement. If no one will take the job at the low wage, then the company will either eliminate the position all together or raise the salary. If we have some sort of government regulatory board then salaries will become artificial. Instead of responding to the market, you'll have to fight a regulatory battle to approve any changes. And what if you're not the best worker? What if you're a pretty lousy widget maker, but Bob's House of Widgets is willing to employee you because you'll work cheaply? If the government requires Bob to pay you the same as someone who is a fantastic widget maker, guess what? Bob will not hire you. He will hire the fantastic widget maker. Salary regulations don't tend to hurt people at the top, but people who are at the bottom.

All of the remaining (speaking up, being treated with respect, etc) are all so subjective that they would be impossible to regulate. Yes, I would love to always have all relevant information. However, sometimes even bosses don't have all relevant information and sometimes it doesn't become obvious until later that it would have been relevant to know something earlier. It's impossible to have all of these things and have a functioning company.

Employment Attorney, Jon Hyman, also disagrees with Ms. Ryan, but he argues it from a different standpoint. First, he says, employees do have rights, and lots of them. He lists:
  • Title VII: race, color, religion, sex, and national origin
  • PDA: pregnancy
  • ADEA: age
  • ADA and ADAAA: disability
  • GINA: genetic information
  • USERRA: returning veterans
  • FMLA: family leave
  • FLSA: minimum wage, overtime, and child labor
  • ERISA: benefits
  • COBRA: continuing health coverage
  • OSHA: safety
  • NLRA: labor
  • FCRA: background checks
  • WARN: plant closings
Mr. Hyman then proposes an Employers Bill of Rights instead. His suggestions are:
  1. The Right to Hire on Qualifications and Fire on Performance
  2. The Right to Criticize
  3. The right to Control Operations
  4. The Right for You to Follow Our Work Rules
  5. The Right to Be Told When There is a Problem
  6. The Right to Receive an Honest Day's Work
  7. The Right to Have Our Say Before You Form a Union
  8. The Right to Reasonable Notice
  9. The Right to Be Treated With Respect
  10. The Right to Confidentiality
Some of you are saying, "Companies already can do all those things!" Theoretically, that is true, but I believe Mr. Hyman would like these things to be done without having to constantly look over our shoulders for fear of a lawsuit. He's a fan of qualifications, but he believes that employers should get to chose what those are. His reason for the first point is:
We want to be able to hire a white male under the age of 40 without fear of a lawsuit from every protected class we did not hire. We want to be able to fire without the fear of an expensive lawsuit when you fail to perform.
Basically, he argues that employers should be able to make decisions on who to hire, who to fire, what their work rules are and what employees should be allowed to do and say that affects the company without the fear of a lawsuit. Even if a company wins a lawsuit, the cost can be through the roof. (One company I worked for estimated that it cost $300,000 to defend against a lawsuit that made it to court, even if our case was solid and we won. The suing employee (or former employee) isn't required to pay any of that cost, and can often get an attorney to take their case on a contingency basis.)

Let a company decide how they want to operate, how much they want to pay their employees, and if they want these employees to complain about their managers on Facebook. Then let the people decide if they want to work under those conditions. If you don't want to work under those conditions, then don't accept the job.

In an ideal world, everything would be sunshine and roses. Employees would always get great salaries. Employers could always trust that their employees would work hard. The world isn't ideal. Trying to legislate it doesn't solve the problems, and in fact, can make them worse.

For further reading:
Photo by mikebfotos, Flickr cc 2.0

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