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Jochen Sand/Digital Vision/Thinkstock

Individual Rights in the Workplace

Learning Objectives
After reading this chapter, you should be able to:
Discuss individual rights in the workplace and some of the ongoing debates
surrounding the employers reach.
Analyze the arguments in favor of and against employer restrictions.
Discuss some of the arguments for and against employer rights.
Apply specific ethical theories to the debate over employer restrictions.

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Introduction

n various occupations, workers may be prohibited from exercising certain rights that,
outside the workplace, cannot (or, perhaps, should not) be restricted. At the same time,
it has been argued that some behaviors may be restricted by some employers, even
when the worker is not at work, or their off-duty activity or conduct. This can lead to difficult conflicts between employer and employee, as well as among employees. Here we
will look at some restrictions that may be imposed to investigate to which rights restrictions employees can and cannot object. We will begin this discussion by looking at a reallife incident involving employee activity outside of the workplace.
In September 2012, a number of paramedics were placed on administrative leave by their
employer for working for another company. The company, American Medical Response
Incorporated (AMR) of Connecticut, provides emergency medical care (ambulances,
paramedic services, etc.). The suspended paramedics were working for another company,
Valley Emergency Medical Service (VEMS).
AMR argued that suspension was appropriate because the other company was a competitor, both companies having bid on a service contract. The paramedics, in response, argued
that being suspended was a violation of their rights, and began preliminary work toward
a lawsuit under Connecticuts Unfair Trade Practices Act.
What can and cannot any company control about what their employees do when they are
not actually at work? AMR argued that the paramedics were aware that they could not
work for a competitor; the paramedics claimed that AMR could not legally prevent them
from doing so outside of the work they did for AMR.

4.1The Issue: Restricting Employees Rights as a Condition

ofEmployment

he case involving the AMR employees is one example of the kind of conflict that
arises in the workplace. Those who are in positions of management and those who
work for management often have very different views of what is justified, in terms
of what one can do with ones time off the job. As is so often the case in ethical disputes,
few if any would accept the extremes here. For instance, probably no one would argue
that salaried employees must do everything their bosses tell them; that would amount to
something along the lines of ones boss dictating that workers life. At the same time, just
as few would argue that salaried employees can do whatever they wish, regardless of the
effect on the company for which they work. It is in between these extremes that tensions
arise, and where the rights of the employers must be weighed against the rights of the
employees.

At-Will Employment
Workers are said to be at-will employees, meaning an employer does not need to show
cause for terminating the worker in question, when they are not protected by union contracts, civil service law, or other such provisions. They can be fired for any reason that does

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not conflict with the law, and the employer is not obligated to show why the employee
was fired.
There are some restrictions on at-will employment: employees cannot be fired for their
race, religion, or sex/gender. They cannot be fired for informing on a companys illegal
activity (whistleblowing), or for exercising certain rights such as taking maternity leave,
voting, jury duty, or serving in the military.
In general, the burden is on the employee to show that the termination was unjustified,
given the standard assumption that, unless made explicit at the time of hire, the worker is
an at-will employee.

Conflicts of Commitment and Interest

The story about the paramedics raises a specific question of whether an employer can prevent employees from working other jobs (sometimes called moonlighting.) Often, companies develop policies that restrict outside employment, and these policies commonly
focus on whether or not the outside employment generates a conflict of commitment, or a
conflict of interest. Outside work that generates either type of conflict (or, obviously, both)
would be prevented. While this language is often seen in university policies for faculty,
the basic idea is applicable to many other contexts.
Conflict of commitment refers to outside work that, for one reason or another, prevents an
employee from doing his or her job as it should be done. For instance, if a full-time teacher
has another part-time job that prevents him from getting work returned to students on
time, creates an increase in absences from the full-time job, or harms other aspects of the
job, a conflict of commitment is present. The presumption here is that the employees
main job takes priority and should not suffer due to other work. If it does, that generates
a conflict of commitment. Many universities impose strict policies regarding how many
hours one can commit to outside work.
Conflict of interest refers to outside work that is for a company in competition with a persons employer. Imagine someone doing research for drug company A who is doing similar research for drug company B. Any discoveries or advances that the researcher makes
for company A might be given to company B. This clearly indicates the researcher potentially has a significant conflict of interest; again, many universities and other research
organizations, for this very reason, have strict policies against work that may even possibly lead to a conflict of interest.
The fundamental question to consider here is what rights an employer has to restrict what
employees do in their free time, or when off-duty. Consider the following examples;
which do you think are legitimate policies for an employer to impose on an employee?

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No employee can contribute to Facebook pages that criticize the company.

Any employee who is determined to have a drinking problem will be terminated.
No employee can publish material without the companys approval.
Any employee determined to be committing adultery will be terminated.
No employee can run for political office.
Any employee who uses a product sold by a competitor will be terminated.
No employee is allowed to purchase or view pornography.

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As we saw, many employees fall under the category of at-will employees, employees
who may be terminated without cause. The details of this vary by state; in general, employees are at-will if they are not working under a written contract; this excludes union
members, federal government employees, and any other situation in which an explicit
contract is in force. Clearly, it is in the employers interest to have the companys workers happy, satisfied, and productive; a situation that employees perceive as unfair can
interfere with that job satisfaction. At the same time, employees cannot insist on things
that either violate the conditions of employment or prevent the company from operating
smoothly and profitably.
Consider, for example, an employee named Jim who published several articles in the local
newspaper that were sharply critical of the things done by the company for which he
worked; he then reproduced these articles on his website. There may have been some
merit to Jims complaints, but airing those complaints in the way Jim did not only damaged the companys reputation and its standing in the community but also provided a
weapon for its competitors to use against it. For both reasons, the companys profits fell,
and Jim was fired. Were his rights violated?
On the one hand, Jim was an at-will employee, so the company wasnt obligated to justify
his termination. But even if it were so obligated, it is clear that Jim did not have the right to
do the damage to the company he did, nor to do it in the way he did. Preventing him from
further harming the company clearly outweighed whatever rights he might claim to free
speech: His rights do not allow him to infringe upon the right of the company to be profitable, and thus harm not just the company as a whole, but also those who continue to work
there. Here is a situation where ones right to free speech clearly can be restricted, and in
the workplace, many such restrictions are legitimate and justified in order to protect the
companys reputation, its profitability, and its responsibility to its stockholders.
States have worked hard to carefully describe what employees may legitimately do when
not at work and what kinds of things may be prevented. Some states have extensive statements that indicate precisely what can and cannot be stipulated by an employer as permissible off-duty conduct; other states have considerably less detailed policies and legislation. Because the kinds of conflicts involved are relatively common, state legislatures
continue to develop these policies, and what is and is not permitted has continued to
change. Some states that did not have explicit policies now have them, while other states
have made significant additions to the policies they already have. Some states do not have
such policies.

Conduct Codes
Employers often provide employees with conduct codescodes that stipulate clear
guidelines and expectations of employees regarding how the employer expects employees to conduct themselves and do business. One notable and widespread example concerns drug testing.
Increasingly, companies have required employees to be tested for drug use. Many companies argue that this is a requirement for having responsible, productive employees; other
companies insist that because of the nature of the job, safety requirements demand a clean
and sober workforce. Furthermore, companies that provide services to the public that

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potentially carry some degree of risk have demanded drug-free employees to minimize
that risk.
Some employees, however, have argued that this is a violation of their rights. If a person
does his or her job well, is there any reason to impose drug tests on this employee? Is this
an invasion of privacy? Indeed, some have suggested that company-wide drug testing
may be a violation of the Fourth Amendment. That amendment states
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized. (U.S. Const. amend. IV)
It is not entirely clear that a mandatory drug-testing policy involves
such searches, or if they do,
whether they are reasonable in the
context of this amendment, particularly without a warrant.
The questions become still more complex when one considers whether
the drugs used are legal or not. For
instance, in Colorado, it is legal, for
those 21 and older, to possess one
ounce or less of marijuana. If an
employee smokes marijuana at home
over the weekend, can that employee
Ed Andrieski/Associated Press
be fired for using a substance that is The legalization of marijuana in certain states has
legal? If so, would that justify firing complicated the issue of workplace drug testing.
an employee who smoked cigarettes,
clearly a hazardous substance, yet
legal for adults to purchase and consume? Another issue may arise when considering
who offers services to the public that potentially poses risks to that public: It may be
clear in the case of airplane pilots or cabdrivers, but should heart surgeons and firefighters be drug tested? Should elementary school teachers or parking lot attendants be drug
tested? Is there a slippery slope here, indicating that if some part of society should be
tested, then perhaps everyone should be? One might then ask if a society in which all its
members are subject to drug testing would be a society that is consistent with the Fourth
Amendment or, more generally, with American values.

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The Argument for Drug Testing

The standard argument for drug testing relies on several premises, mentioned above:
Employers have a right to get fair value from their workers.
Drug usage leads to higher workplace absenteeism, increased medicalcosts, higher turnover, and less productive workers.
Drug users have a higher accident rate and thus pose a risk to the public.
THEREFORE
Drug use drives up costs for the employee, in addition to the increased risk
to the public.
Employers are obligated to minimize costs and risks to the public whenever possible.
To minimize these costs and risks, employers must be able to identifydrug
users.
THEREFORE
Employers must have the ability to test employees for drug usage.
Of course, we might point out, in response to this argument, that manyif not allof
these things are also the result of alcohol abuse. We might take this to justify testing for
alcohol use (and abuse), or we might see this as allowing employers too much leeway into
investigating the habits of their employees. We might ask whether most people would be
happy with employers (or politicians) setting standards for reasonable consumption of
alcohol and determining when that standard has been exceeded through random, mandatory alcohol testing.

The Argument Against Drug Testing

The standard argument against drug testing relies on several premises, also mentioned
above:
Employees have a basic right to privacy.
Mandatory drug tests do not indicate reasonable suspicion or cause.
Random, mandatory drug tests are not reasonable searches in the sense
of that term in the Fourth Amendment.
Drug tests indicate presence of a drug, not impairment.
Drug tests have a history of unreliability.
Drug tests are humiliating and invasive.

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Tests that invade a persons privacy without probable cause are not sufficiently reliable, are ineffective, and are humiliating, and should not be
permitted.
Mandatory drug tests do all of these things.
THEREFORE
Employers should not have the right to perform mandatory random drug
tests.
Naturally, proponents of drug testing do not accept this argument, responding that
the potential risk to the public far outweighs any small inconvenience to an individual
employee. Furthermore, one indication of current drug use is past use, and it is clear that
drug use can generate substantial costs to a business. Of course, one who objects to such
drug testing might argue that an employees rights are not really subject to a costbenefit
analysis; if there is a presumed right to privacy, then that right cannot be abridged even if
it leads to higher costs.

Case Study
Drug Testing Welfare Recipients
The state of Florida proposed a law that would require those who received funds from Temporary
Assistance for Needy Families (TANF, also known as welfare) be tested for drugs; a person who
failed such a test would be ineligible to receive such payments.
The law was appealed, and Eleventh Circuit Appeals Court rendered its verdict. Consider the
following:
1. If you were a judge, how would you rule on this case? Should recipients of these funds be subject to drug testing? What are your reasons for deciding as you did?
2. If these recipients should be drug tested, does it follow that anyone who receives such state
funds (paid for by taxpayers) should be subject to mandatory drug testing? Why or why not?
3. What differences do you see between requiring drug tests for welfare recipients and for
employees in companies?
After answering these questions, you may find the Appeals Court ruling of interest:
The only known and shared characteristic of the individuals who would be subjected to Floridas mandatory drug testing program is that they are financially
needy families with children. Yet, there is nothing inherent to the condition of
being impoverished that supports the conclusion that there is a concrete danger
that impoverished individuals are prone to drug use or that should drug use occur,
that the lives of TANF recipients are fraught with such risks of injury to others
that even a momentary lapse of attention can have disastrous consequences.
Thus, the States argument that it has a special need to ensure that the goals of
the TANF program are not jeopardized by the effects of drug use seems to rest on
the presumption of unlawful drug use. (Lebron v. Secretary, Florida Department of
Children and Families, 2013)
The courts entire ruling can be read at: http://www.ca11.uscourts.gov/opinions/ops/201115258.pdf.

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Ethical Questions
As we might expect, employers and employees have sought to resolve disputes over
workforce drug testing by seeking a compromise on the basic question. For instance, a
company might propose to decrease the penalty for failing a drug test; a first-time violation might lead to a warning, or mandatory drug counseling, a second-time violation
might lead to a suspension from work. Only for a third violation would the employee be
terminated. Similarly, employees, whether through a union or some other mechanism,
might accept drug testing but require some degree of cause, fewer tests, or more rigorous
testing procedures to avoid false positives.
We might think there is a fairly sharp contrast between a utilitarian and a deontologist
on this issue, particularly if we focus on the conflict between the right to privacy and
the obligation to minimize the risk to the public. Thus, a utilitarian could argue that we
may wish to respect the individuals right to privacy, but that right is outweighed by the
much greater benefit provided by decreasing the risk to which the public is subject. Thus,
an air traffic controllers right to privacy is outweighed, for the utilitarian, by the much
greater need to make sure the flying publicand anyone else put at risk by an unstable
controlleris as safe as possible. The deontologist might respond that such rightsagain,
assuming there is some inviolable sense of privacycannot be abridged due to some general, potential threat to the public, and certainly not without due cause for abridging that
persons rights.
But this dispute may seem more clear-cut than it really is. After all, could a utilitarian
argue that all of us have a right to privacy, and thus that violating that right for one group
of people could potentially violate the rights of all? If so, then we must determine where
the greatest benefit lies: in protecting the publics safety, or the rights of the individuals
who make up that public? We might ask, finally: What could a deontologist argue in order
to defend mandatory, random drug testing?

Morality Clauses
All of us have moral principles and our standards of ethics; some of these may be informed
by our religious values, our cultural and ethnic traditions, our political views, and our
exposure to moral philosophy, among many other influences. Employees have, and try to
live by, these moral principles, as do employers. As may be obvious, the values involved
may come into conflict. If an employer has a strong set of moral principles, by which he or
she lives, can that employer ask employees to conform to those principles, or at least not
do things that would violate them?
Consider Susan, who lives in a relatively small town, where jobs are hard to come by. She
is interviewed for a job by a local nonprofit agency that lobbies government officials to
impose very strict controls on the possession of weapons. Susan enjoys hunting with her
husband and children and owns several shotguns. The agency offers her a job on the condition that she not own any guns, and that she get rid of any that she already owns. The
agency insists that it would violate the image it seeks to project were its employees to own
and use the same weapons it wishes to restrict. Can it demand that Susan agree to this
condition? She was faced with either not taking the job and thus being put in considerable
economic insecurity, or taking the job and seeing what she regards as her constitutional

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rights violated. The agency realizes that the community has a high unemployment rate,
and thus there is considerable pressure on Susan to accept this condition. Susan could, of
course, take the position and then, if fired, sue the agency. But that strategy would require
hiring a lawyer and dealing with a lawsuit, which is both time consuming and expensive.
Susan, of course, doesnt have to take the job; that decision would preserve her rightsat
the cost of being unemployed or making a great deal less money.
Here we see what might be a plausible reason for an employer to want to restrict the rights
of its employees, and to extend those restrictions outside of the workplace. It might be
argued that without these restrictions, employees may act in ways that are detrimental to
the employer and the company. But there also seems to be a considerable worry here that
such conditions of employment go beyond what the company can legitimately demand
and cannot be shown to lead, necessarily, to putting the company at a disadvantage in
seeking to do what it wishes and needs to do. In short, these restrictions are unfair and
cannot be appropriately required as a condition of employment.
Further concerns are raised here in the context of a tight job market, where economic insecurity and financial need may lead employees, and job candidates, to accept conditions
for work that would otherwise be unfair. This may lead to a situation in which employers
have the potential to restrict rights even further, with the knowledge that it is difficult
to leave a job and/or find another equivalent-paying job. This may lead not only to the
potential abuse of employees legitimate rights but also to a situation in which workers
are unhappy due to that abuse but are unable to leave because of significant restraints on
employment opportunities. Employees should not be put in a position where they are
faced with trading their legitimate rights for financial security, and thus any restrictions
so imposed must meet a very high standard, showing that they are absolutely necessary
for the company to function effectively.

Be the Ethicist
Should Off-Duty Activities Cost You Your Job?
In McLennan County, Texas, six deputies were fired by the sheriff. The deputies have sued, arguing
that they were fired because they campaigned for the sheriffs political opponent in a recent campaign; the sheriff has stated that they were let go due to reorganization of the sheriffs office.
The deputies are what are saw earlier described as at-will employees: They are not members of
a union, have no civil service protection, and serve at the sheriffs will. As one of the local papers
noted, Courts have ruled that sheriffs in Texas have broad discretion in choosing employees and
can fire them with or without cause, absent contractual limitations, as long as the decisions arent
politically motivated. The same article notes that the deputies lawsuit states that they have a
combined 114 years of experience and outstanding performance and service records as sheriffs
deputies (Brown, 2013, para. 10, 12).
The difficulty here, of course, is determining the real reason the deputies were fired. It is clear that
the sheriff was aware of their political activity, but many find plausible the sheriffs claim that there
was no political basis for the firing, and that, rather, it was simply the result of reorganizing his
office.
(continued)

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Be the Ethicist (continued)

For more details on this case, visit http://www.wacotrib.com/news/mclennan_county
/six-ex-deputies-suing-sheriff-county-over-firing-attorney-says/article_90ac4c09-2bb1
-5e00-a35e-ce17f0a49782.html.
Exercise
Determine the differences between the legal questions and the ethical questions involved
here.
How do you think the legal questions should be resolved?
How do you think the ethical questions should be resolved?
Do you think an employer can restrict the political activities of employees away from the
workplace?
What are the implications for employees if an employer can restrict their off-duty political
activities?

Similar issues have arisen in cases where employees religious views conflict with those
of their employees. Such cases raise, again, important ethical questions about whether an
employer has the right to insist that a worker act in certain ways away from the job site.
Can a manager who objects to homosexuality fire an employee he or she finds out is gay
or lesbian? Can an employer who objects to interracial marriage terminate someone he or
she discovers is married to someone from another race? At what point do constitutional
rights override the rights of employers to make free choices about who works for, and
represents, their companies? The courts have ruled that in some cases, a person cannot
be fired for such characteristics as race, religion, or gender, but even in these cases, suits
have been brought to challenge these limitations. Some of these suits have been successful, when, for instance, a religious institution is seen as fulfilling its appropriate mission
by maintaining prohibitions on hiring certain workers.

Case Study
Hosanna-Tabor Evangelical Lutheran Church and School
In a 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Supreme Court decided on the question of whether a minister could sue a
church. In this particular case, an employeeCheryl Perichtook a leave of absence due to health
reasons. When she returned, she and her employees had a dispute, and the church threatened to
fire her. Perich told them if they did fire her, she would sue. The church fired her, and Perich sued,
asserting that her rights under the Americans With Disability Act had been violated.
The church cited its Commission on Theology and Church Relations, referring to First Corinthians
6: 111, stating that Christians should seek an amicable settlement of differences by means of a
decision by fellow Christians. Perich was fired, then, for having sued in violation of official church
doctrine. Perich claimed the church was using this as a pretext for firing her.
(continued)

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Case Study (continued)

The church also noted that Ms. Perich was a commissioned Lutheran minister; to deny its right to
fire her was tantamount to allowing an outside authority, such as the government, to fire and hire
its ministers, which would be a clear violation of the First Amendments Establishment Clause.
Among the many interesting issues here:
Can any organization fire a worker for threatening a lawsuit?
If some companies cannot do this, but a church can, what is the fundamental difference
between the two as employers?
Can a church fire someone even if it may violate that persons constitutional rights?
Exercise
How would you have decided this case? What do you think is the crucial issue between the church
and Ms. Perich that needs to be determined?
A good story about this case, summarizing its details, can be found here:
http://blogs.edweek.org/edweek/school_law/2012/01/supreme_court_backs_church_in.html.
The Supreme Court ruling itself is available as a PDF at:
http://www.supremecourt.gov/opinions/11pdf/10-553.pdf.

Can Employee Behavior Be Dictated by a Company Mission?

Imagine you have been unemployed for several months and are desperate to find a job.
Youve been offered the job of being the representative of a local animal rights group. This
group works to prohibit the wearing of fur; advocates vegetarianism; and seeks to ban
the use of animals for the testing of perfumes, pharmaceuticals, and other products. The
job is a very good one, but as a condition of employment the group requires that you not
eat meat. After all, if you are seen shopping for steaks and pork chops, it would indicate
the animal rights group is a bit hypocritical, in that you are paying for those steaks and
chops with money the group provides. Yet you really like your occasional cheeseburger
and barbecue.
Consider:
Do you take the job?
Is this a fair condition of employment to impose upon you?
Are there limits to what an employer can require of employees, other than those
that would require you to do something illegal?
Here the question arises as to whether an employer can impose certain restrictions on the
behavior and lifestyle of employees because of a corporations mission. Most corporations have mission statements: If an employees private behavior conflicts with his or her
employers mission statement, does the company have the right to fire that employee, or
at least demand he or she change the behavior in question? If so, are there limits to what
the company can demand?

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As in many of the cases we have seen, the tension between what an employer can demand
and what rights the employee retains can generate a difficult balancing act. Again, few if
any are suggesting that employers have the righteven if they wanted itto dictate to
their employees what they do at all times outside the workplace, no more than anyone
seems to be arguing that employees can do anything at all outside the workplace, regardless of effects on the company. But determining where one draws the line is not particularly easy.
As we saw earlier, ethical theories may help us clarify and make more rigorous the arguments involved, but they dont offer some kind of recipe to follow that will result in the
appropriate ethical choice in every situation. There are advantages to having the issues
made clearer, and advantages to drawing on the arguments that have been developed
over centuries to deal with moral conflicts. But to expect theory to resolve these conflicts
is probably being a bit nave.
As we mentioned earlier, most corporations have mission statements. Walmarts, for
instance, is succinct: We save people money so they can live better (http://stock.walmart
.com/investor-faqs). Exxon-Mobils is a bit more expansive: Exxon Mobil Corporation
is committed to being the worlds premier petroleum and petrochemical company. To
that end, we must continuously achieve superior financial and operating results while
simultaneously adhering to high ethical standards (ExxonMobil, n.d., para. 1). These
may seem fairly obvious, but corporations frequently revert to the mission statement to
make sure new company policies are in compliance with it. At the same time, the statements leave a great deal of room for interpretation: For instance, what does Walmart mean
by living better? What are the high ethical standards to which Exxon-Mobil aspires?
Would most of us agree on how to characterize either of these important parts of these
corporate mission statements?
The conflicts that arise tend to do so out of actual implementation of policies that some
may regard as wholly consistent with a mission statement, while others regard the same
acts as in fundamental conflict with it. For instance, imagine a clothing companyJust
Clothesthat uses labor in impoverished countries where unemployment is extremely
high and wages are quite low. One could well argue that Just Clothes is doing exactly
what it should be doing: keeping production costs low, passing on those lower costs by
offering lower-priced products, and providing a good return to its investors. Just Clothes
could also argue that if it did not employ as many people as it did in low-income countries, unemployment would be even higher. Thus, their workers may not make a lot of
money, but they are better off than they would be otherwise.
Now imagine Samantha, whose church has been very active in the area of workers
rights in Third World countries. Samantha has written letters to the newspaper, organized demonstrations and panels criticizing the practice of employing low-cost workers,
and attended several conferences on behalf of her church. She is, in short, very critical of
what she calls sweatshops, objecting not just to low wages, but to substandard housing,
dangerous and unhealthful work conditions, and mistreatment of workers, particularly
women and children.
Samantha, however, works for Just Clothes. The management of Just Clothes is not, understandably, very happy with Samanthas activities. They regard her criticism of sweatshops
as a pointed criticism of Just Clothes, which damages the companys reputation and,

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potentially, could lead to lower sales and lower returns to its investors. Samantha is called
into her bosss office for a discussion of this, and she points to Just Clothess mission statement, which states, Our goal is to sell a quality product while having a positive impact
on the lives of all those we touch. Samantha points out that the workers that produce
their clothes might well disagree that their lives have been positively affected by Just
Clothes, and that actual corporate policy contradicts its own mission statement.
The company is tempted to fire Samantha. She is an at-will employee, but she could well
argue in a court that she has been terminated for participating in constitutionally protected activity (both in terms of her right to free speech and her right to practice her religion). At the same time, the company may regard that risk as one worth taking; after all,
they have considerably more resources than Samantha, and may simply be able to fight in
court longer than Samantha can afford to.

Applying the Theories

Here we see how ethical theory can help clarify some of these issues by focusing on the
specific aspects involved in this dispute. For instance, a utilitarian might attempt to determine the benefits for the company, its domestic workers (including Samantha), and its
low-income employees. Trying to see how one could establish these benefits may well
help establish the difficulties in balancing the utilities involved, which include not just
the bottom line of Just Clothes and the return to investors, but the well-being of all if its
employees. One could, of course, simply determine that what should be done is to follow
a rule, such as implement those policies that return the greatest short-term profit without
harming long-term expectations. But that rule itself may be criticized by Samantha, her
church, and many others who might see determining ones behavior solely on the basis of
profit as obviously unethical.

Case Study
Chick-fil-A
Chick-fil-A dealt with a great deal of controversy after
one of their executives voiced an opinion about samesex marriage.
A significant controversy broke out in 2012 when
Dan T. Cathy, Chief Operating Officer of the Chick-filA chain of restaurants, criticized same-sex marriage.
Many in favor of same-sex marriage harshly criticized
Cathy, while others defended both his right to free
speech and his right to run his business on the principles he holds to.

David Tulis/Associated Press

Some proposed boycotts of Chick-fil-A restaurants,

and even staged Same-Sex Kiss Days in front of selected restaurants, to demonstrate their disapproval of Cathys views. At the same time, some of those supportive of Cathyeither his view or his
right to express itorganized Chick-fil-A Appreciation Days, which drew large crowds to many of
the companys franchises.
(continued)

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Case Study (continued)

Finally, in July 2012, Chick-fil-A released the following statement: We are a restaurant company
focused on food, service and hospitality; our intent is to leave the policy debate over same-sex marriage to the government and political arena.
Exercise
Chick-fil-As mission statement is simply this: Be Americas best quick-service restaurant. It amplifies this a bit by adding its Corporate Purpose: To glorify God by being a faithful steward of all that
is entrusted to us. To have a positive influence on all who come in contact with Chick-fil-A (Farfan,
2013, para. 56).
If you owned a Chick-fil-A franchise, which do you think would be justifiable reasons for firing an
employee? Briefly state why you think this would be justified or unjustified.

You discover an employee is Muslim.

You discover an employee is bisexual.
You discover an employee attends a Christian church that supports gay rights.
You discover an employee has been stealing from the company.
You discover an employees sister is a lesbian.
You discover an employee does not like chicken.
You discover an employee has been picketing other Chick-fil-A franchises.

Technology in the Workplace

We are surrounded by social media; for many, checking their Facebook page, tweeting,
and looking at the Instagram pages of their friends are a frequent occurrence. Indeed,
some may feel left out at a party if they do not use Facebook; often the assumption is
made that virtually everyone participates in this particular form of social media. (For
good reason: As of January 2013, Facebook reported that over one billion people qualified
as active users. [Tam, 2013]).

Social Networking
The phenomenon of social media has raised difficult questions for the workplace, and for
potential job candidates. Perhaps you have complained at a social media site about a boss,
a co-worker, or your company: Is that a sufficient reason for you to be fired? Do you have
the right, in other words, to say what you wish online without risking losing your job?
Should a job candidate expect a potential employer to look at his or her Facebook page?
Is it justified for a hiring decision to be made on the basis of something embarrassing (or
worse) that has been posted on a social media site?
In the movie The Social Network, a dramatic portrayal of the founding of Facebook, Mark
Zuckerberg (Facebooks CEO) is shown having a bit too much to drink, and posting
unpleasant and vulgar remarks about his former girlfriend. When she confronts him

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about it, she points out that things written on the Internet are written in ink, not in pencil; in other words, once something is circulated online, it may be there forever. A picture
or a comment could resurface many years later to damage to a persons reputation, and
there is not a lot that person can do about once it has been posted.
We often hear that the easiest way to avoid this is simply not to post anything that could
ever, conceivably, raise such a problem. This might lead to less interesting comments and
photographs being posted, but it is also difficult to always know what could or could
not, potentially, do damage. (Some cases, admittedly, are clear.) But the ethical and legal
questions that arise focus more on whether someones privacy is violated by potential
employers looking at Facebook pages or other social media sites, and whether it is fair to
base hiring, promotion, and termination decisions on what might well seem to be a simple
exercise of our right to free speech.
With the various issues that have arisen in the context of social media, policies and legislative responses are also in the process of being developed. However, an important decision was made in early 2013 by the National Labor Relations Board; The New York Times
described it like this:
Employers often seek to discourage comments that paint them in a negative light. Dont discuss company matters publicly, a typical social media
policy will say, and dont disparage managers, co-workers or the company
itself. Violations can be a firing offense.
But in a series of recent rulings and advisories, labor regulators have
declared many such blanket restrictions illegal. The National Labor Relations Board says workers have a right to discuss work conditions freely
and without fear of retribution, whether the discussion takes place at the
office or on Facebook. (Greenhouse, 2013, para. 12)
Another issue concerning social media is the question of what a potential employer can
ask job candidates about, regarding their various social media networks. Reports have
surfaced of job candidates being asked for their Facebook passwords, for instance, thus
giving the employer access to candidates pages. Obviously enough, a job candidate may
refuse such a request, but one seeking a job may not feel comfortable in doing so, and may
have good reason to think that such a refusal will harm his or her chance at being hired.
Some employers have defended the practice, arguing that it is one way to make sure that
a person being considered for a job does not exhibit characteristics the employer would
not otherwise know about. In response, the practice has been decried as an invasion of privacy, and may also be a way of determining factorsage, race, religion, among others
that are illegal to consider in many hiring decisions. The question thus arises as to whether
the risk a company assumes in such a hiring decision makes this information sufficiently
valuable that it outweighs the right of the job candidate to keep that information private.

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Section 4.2 The Issue: Employers Rights

Employee Privacy
A final issue that should at least be
mentioned is what, if any, right to
privacy employees retain while on
the workplace. A person who works
for corporation A may, as part of his
or her job, use the phone, the computer, and the Internet; does the
employer have a right to look at any
or all of these things, to see if the
worker is doing what is supposed
to be done? Can an employer, for
instance, monitor telephone calls, or
is that an invasion of privacy? Does
Erik Snyder/Lifesize/Thinkstock
an employer have the right to access
Do employees have any expectation of privacy in the
the clickstream on a workers comworkplace? Do employers have the right to monitor
puter, to be able to see what sites that
telephone calls or emails?
worker is looking at while at work?
Should an employer be able to read
an employees emails that are sent from the workplace? For that matter, if an employee
also works from homewhether due to flextime or taking extra work homeshould
the employer be able to see what sites that worker is visiting? In short, if the employer is
paying a workers salary, does that give the employer legitimate access to any and all of
the forms of communication engaged in by the employee while being paid?

4.2 The Issue: Employers Rights

he issue of workplace rights is typically associated with employeesthose individuals without whose participation a company or organization could not operate. But
there is another side to the rights in the workplace debate: the rights of the employer
itself. The question of just what constitutes employers rights touches on many aspects of
business, but we will restrict our discussion to one example: whether employer-provided
health care should be mandatory.

Few issues have generated controversy as intense as the Affordable Care Act (ACA),
often called Obamacare. Many employers have objected to it as increasing their cost of
doing business; they, and many politicians as well, have objected to various mandates of
the act that they regard as not falling within the legitimate scope of government. Others
have argued that the ACA seeks to lower costs, or at least lower the rate at which costs
increase, and that it addresses a number of issues that polling indicates are popular with
the American public, such as being able to purchase insurance with a preexisting condition, children staying on their parents insurance until age 26, and no lifetime caps on
medical expenses. In general, its supporters argue that the ACA will provide health insurance to many who have been unable to get it.

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The situation is made more complex

by the fact that historically, many
Americans health insurance was
tied to their employers health care
plans. (For those who are retired,
unemployed, or in poverty, other
plans are designed to offer coverage, such as Medicare and Medicaid.) It is not clear that this is an
ideal, or even efficient way to offer
health care. Because it is illegal for
a hospital to turn away someone in
need of health care, many who are
not insured receive their health care
at emergency rooms, which is the
Reuters/Reuters/Corbis controversial
most expensive form of treatment. In The Affordable Care Act, often referred to as Obamacare, is
short, the American health care sys- an extremely controversial and divisive piece of legislation.
tem is one of the most expensive in
the world, yet it achieves outcomes
that are regarded by many as substandard. (Thus, according to the National Center for
Health Statistics, the United States spends twice as much on health care per capita [$7,129]
as any other country, yet ranks 30th in infant mortality and 50th in life expectancy [http://
www.cdc.gov/nchs/]).
The details of the ACA are complex and fluid. Only last year did the Supreme Court rule
the ACA as passing constitutional muster, and implementation of its various provisions is
still taking place. Hence, it is difficult to determine what the results of this law will be for
several more years. However, the ACA and other attempts to provide health care raise a
simple question that itself is important, but controversial: Is health care a right? In other
words, is having access to decent, affordable health care a right, similar to other rights
enumerated in the Constitution and Bill of Rights? Or is health care not a right, but a product like any other that must be purchased by the consumer?

The Argument That Health Care Is Not a Right

There are various ways of arguing that health care is not a right, but we can focus on one of
the more popular versions here. Simply put, on this view, health care is not a right: While
there are certain, inalienable rightslife, liberty, and the pursuit of happinessthat
the Constitution does protect, health care is not one of them. The right not to be harmed
or killed, or not to have our property seized, is what philosophers call a negative right.
Negative rights are justified and legitimate, and only require us not to interfere with the
rights similarly possessed by others.
But we do not have such a negative right to health care, beyond the right to pursue our
own health care and not be prevented from doing so. Rather, the claim that health care
is a right introduces a different notiona positive right. I do not have a right to health
care anymore than I have a right to food, clothing, and shelter. If taxpayers are forced
to pay for my alleged right to health care, then they are being forced to spend money,
presumably against their will, which is, in fact, a violation of their rights. Thus, forcing me

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Section 4.2 The Issue: Employers Rights

to accept that others have a right to health care, which I must pay for, assumes a positive
rightthe right to health careand violates my negative rightthe right not to be forced
to pay for something that I have no say in. The Constitution protects negative rights, and
thus it is a violation of my constitutional rights to force me to pay for anyones health care
(including my own). Since it assumes a fictional positive right and violates my genuine
negative right, health care is not a right any more than it is a right to own a car, a home, or
a pair of cowboy boots.

The Argument That Health Care Is a Right

The argument that health care is a right also takes different forms; some have been offered
on the basis of obligatory Christian charity, others in the name of economic efficiency, and
still others that appeal to the United Nations Universal Declaration of Human Rights (for
which the United States voted). In simple terms,
the argument is: Theoretical access to health care
is insufficient if fundamental obstacles prevent
one from actually obtaining that care. If life, liberty and the pursuit of happiness are protected
rights, and the right to life requires some minimal access to health care, then it follows that that
access is, itself, a right (and is, in that sense, a negative, constitutionally protected right).

iStockphoto/Thinkstock

Supporters of the Affordable Care Act

argue that access to health care is a
constitutionally protected right.

One of the effects of recognizing health care as a

right is that it means everyone will have access
to health care (universal health care); this is turn
will lead to more effective health care delivery
through regular checkups and preventative care,
rather than very expensive emergency room treatment. Furthermore, this will lead to better health
care results and a more productive economy, due
to lower worker absentee rates and a better general quality of life. Universal health care will also
mean that no one will have to choose between
health care and some other expenditure, or face
bankruptcy due to exorbitant health care costs.

Do Employers Have an Obligation to Pay for Employees Health Care?

The purpose of the ACA was to guarantee access to health care for as many Americans
as possible. The goal was to provide this greater access and, at the same time, continue
to develop ways of making health care cheaper in the United States. Health coverage has
traditionally been associated with a workers place of employment, and the ACA continues to follow this tradition by requiring employers to offer health care for their full-time
employees. There are certain technical distinctions made on the basis of the company
in question; businesses employing fewer than 25 employees have different options than
those employing, for instance, more than 100. Those companies not providing health care

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coverage directly have the option of participating in Affordable Insurance Exchanges,

which allows larger groups to pool their numbers in order to lower insurance rates.
One can certainly see how a utilitarian might argue in defense of the ACA; health care is
presumably a benefit, or good; having access to reasonably good, reasonably affordable
health care would seem to lead to the greatest good for the greatest number relative to
the other options that have been suggested. Depending on how one sees health careas
a commodity or as a rightthis would strongly affect how one might regard the ideas
behind the ACA. If a commodity, it is not clear that a deontologist would support one person being required to pay for, or at least subsidize, another persons commodity, good, or
service. After all, most of us would object to being taxed to help pay for another persons
car. But if health care is a right, then it seems more likely that the deontologist would conclude that human dignity is not adequately respected without guaranteeing people the
minimum health care that would satisfy the genuine exercise of that right.

4.3 Applying the Theories

arlier we saw the conflict between American Medical Response Incorporated and
the paramedics that were suspended for working for another company. This is one
example of the kind of ethical issues that can arise in the workplace. Most such
disputes, as we have seen, require a delicate balancing act that protects the interests and
the rights of all parties involved, an act that can often be very difficult to do. Rarely are
all parties satisfied, although the results that does leave all parties partially satisfied may
often be indicative of a successful resolution.
We have also seen how ethical theories may not offer recipes, or algorithms, to follow in
order to solve these ethical disputes. Rather, ethical theory helps make clear what is
stake in these disputes, helps us focus on what is relevant (and eliminate that which is
irrelevant), and offers us the reflections of many philosophers who have looked at these
kinds of issues and offered sophisticated and rigorous arguments to help resolve them.
Finally, we have also seen that there is no guarantee that two people who adopt a similar
ethical theory will necessarily agree on how that theory should be applied, and what the
theory will say is the moral thing to do. As we might see with the ACA, one deontologist
might argue that health care is a right that cannot be abridged or violated, while another
might not recognize it as a right and may provide a much different analysis. Indeed, it
may turn out that their disagreement is not so much about universal health care than
its status as a right or a commodity. Consequently, each specific issue must be looked at
carefully, and its details examined, before constructing the strongest argument we can in
support of our position. But it should come as no surprise that two deontologists, or two
utilitarians, may disagree; after all, people may share a common viewpoint but not agree
on many things relative to that viewpoint. But to see this, it might help to look a bit more
at some of these theories and how they can be applied.

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Virtue Ethics
As a legal entity, the corporation is recognized as a persontechnically an artificial
personthat possesses many of the rights people possess under the law. Using this idea,
we can look at the corporation from the perspective of virtue ethics: What does it mean
for a corporation, in this context, to be virtuous? Presumably, we want corporations to act
morally and as good, if artificial, citizens; virtue ethics seems to provide a way of characterizing what is then required of such corporate behavior.
The corporate person is under a number of constraints; however, it must, above all,
maintain profitability. But recognizing that goal, it must also meet the legitimate needs of
its employees, stockholders, and others who provide various kinds of support (financial
and otherwise) to the company. This includes the needs of the community in which it is
found, not just by providing employment, but also by playing the role of good corporate
citizen by supporting charities and perhaps other philanthropic work. It can be a difficult
job to balance all of these obligations, while maintaining focus on the bottom line, but
virtue ethics emphasizes precisely that kind of balance that may offer valuable guidance
to the corporation.
For example, the company must seek a balancea Golden Meanbetween maintaining
employee satisfaction and not distorting its fundamental mission. Thus, it must offer salaries and benefits that are competitive. If the wagebenefit package is too small, employees
may desire to leave the corporation, and it may be difficult to hire new workers. If the
wagebenefit package is too generous, it may take too much away from the quarterly or
annual profits. Just as this balance must be struck, a balance relative to employee rights
must be considered in the larger corporate context. These rights cannot be restricted in
a way that is unfair to those workers, but legitimate restrictions must be maintained for
the corporation to meets its fundamental goal: to be successful (specifically, in a for-profit
company, profitable). Situations can arise where an employee may insist on a right that
may well hinder the company in meeting its goals. In that case, those rights must be balanced against the needs of the corporation, and an appropriate balance must be identified
and maintained.
To examine a specific virtue, corporations should be honest, in dealing with both their
employees and the community in which they are located. Obviously enough, there can be
too little honestywhether defrauding customers, skimming profits, lying on tax forms,
or any number of the familiar examples of corporate behavior that are immoral, illegal,
or both. Yet there can also be too much honesty, such as failing to protect proprietary
information essential to a companys profits, or revealing marketing strategies to employees and, potentially, competitorsthe distribution of which would put the company at a
disadvantage. Neither too little honesty nor too much honesty is in the best interest of the
company or, importantly, in the best interest of its employees. Virtue ethics, then, provides
a way of seeing how to strike the balance here, whereby an appropriate amount of corporate honesty leads to the best results for the company, its employees, and its community.

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Be the Ethicist
The Lilly Ledbetter Act
In 2009, President Obama signed the Lilly Ledbetter Fair Pay Act,
which promoted equal pay for equal work, and allowed lawsuits to
be filed by someone who claimed not to have been paid the same
amount for the same work.
Read the representative arguments on both sides of the issue.
Against the legislation
http://online.wsj.com/article/SB1000142405297020340640
4578070970214587846.html
http://www.noozhawk.com/article/041712_mona
_charen_lilly_ledbetter_fair_pay_act/
For the legislation:
http://www.nwlc.org/resource/lilly-ledbetter-fair-pay-act-0
http://writ.news.findlaw.com/grossman/20090213.html

Charles Dharapak/Associated Press

President Obama signed the

Lilly Ledbetter Fair Pay Act in
2009.

Exercise

Adopt one of the ethical theories we have looked at, and decide
whether you support this legislation or not. Explain how the theory
you adopted helped you defend your decision. Then answer the following:

Which theory did you choose?

Why did you choose that theory?
Did you support or reject the legislation?
How did the theory you chose help in making that decision?
Would a different theory have led to a different result?

Deontology
The deontologist recognizes that companies, whether for-profit or not-for-profit, have a
fundamental requirement: namely to carry out their mission. Specifically in the case of
for-profit corporations, that mission is to make sufficient profit to stay in business and,
preferably, continue to grow. Yet the corporation, even as an (artificial) person, must not
violate certain rules: It must treat its employees, its community, and even its competitors
with respect. It must not follow or develop company policies that it would regard as fundamentally unfair were another company to have those same policies. The deontologist
might explain this in terms of Kants universalization test: If, for instance, company policy
imposes certain restrictions on speech or behavior for its employees, could this policy be
fairly imposed on all companies in the same context? The deontologist might also appeal
to the Golden Rule here: If an employer were to impose a given set of restrictions on
employees, would he or she be willing to work under the same set of restrictions?
We can look at how deontology can be applied here by looking at drug testingin this
case, for airline pilots. The deontologist might well conclude that instituting such drug
tests is precisely the kind of policy that couldeven shouldbe put in place universally
and in all similar contexts. Certainly, someone who imposes such drug tests may be quite

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confident that he or she would be willing to work under such a condition as well; hence,
it seems to conform to the Golden Rule.
But there may be other situations where a company desires to restrict an employees rights
in ways that do not meet the universalization test or dont seem to satisfy the Golden Rule.
Perhaps as a condition of employment, employees are told that they cannot join a union
(or, in contrast, are told they must join the union). Although legal issues complicate the
story, when observed from a moral standpoint, it is not clear that this restriction could be
universalized: that no one could ever join a union (or that everyone must join a union)
would seem to lead to the result that the very notion of a union becomes meaningless.
And it seems quite possible that an employer who tells employees that they cannot join a
unionor must join a unionmight well be unwilling to work under those same conditions, indicating a conflict with the Golden Rule. Consequently, the corporate (artificial)
citizen must, on the deontological view, treat rules in precisely the same way as real citizens must. Any restriction on employee rights that fails to satisfy the universalization test,
or conflicts with applying the Golden Rule, thus risks the genuine possibility of being an
unfair, unjust, and immoral restriction.

Some Conclusions
In considering the fundamental goal of a for-profit company or corporation, the virtue ethicist and the deontologist do not really disagree. Both recognize that such a company must
make a profit to remain in business and must impose certain conditions on its employees
and potential employees to do so. The tension comes not so much in applying the specific
theories as in determining where an employers rights to impose such conditions are legitimate, and where they infringe on the rights of employees. It may seem easier to strike an
appropriate balance between these two sets of rights in theory than it is in practice.
Consider a company that receives much of its business from contracts with the federal
government. This company has spent years developing a close relationship with Senator
Smith, who represents the state where the corporate headquarters are located. The members of the companys board of directors are particularly close with Senator Smith, and he
has made it one of his highest priorities to see that the company receives favorable attention in the awarding of federal contracts. The company benefited by supporting Smith,
and Smith benefited in turn. Currently, Senator Smith is now running for reelection, and
the CEO of the company is the director of his campaign.
Ann is an employee of the company and a staunch opponent of Senator Smith. She has
worked long hours outside of work for Senator Smiths opponent, and has contributed
both time and money to Smiths opponent.
The issue here is one of the limits to what the CEO of Anns company can do, relative to
Anns political views. Can he ask her to remove a political sign from her office cubicle?
Can he ask her to remove a bumper sticker from her car, because she parks in the company
parking lot?
A fundraising picnic has been scheduled, organized by the CEO, for Senator Smith.
Admission is $25, and it has been made abundantly clear to all employees that their attendance is expected. Clearly enough, the company cannot require this attendance, but Ann

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is convinced that her chances for promotion and salary increases will be harmed if she
does not attend.
Here we have what seem to be competing rights: the right of the CEO to do what he thinks
is in the best interest of the company (and, he might argue, therefore in the best interest
of Ann herself), and Anns right to participate in politics in the way she sees fit. Virtue
ethics, deontology, or any of the other ethical theories we have at our disposal may offer
some insight into how this conflict might be resolved, but none of the theories can likely
provide a solution that is satisfactory to all involved. As we have seen before, ethics can
offer a good bit of insight into the problem, by identifying what is at stake, and how the
conflict itself might be most accurately characterized. Yet, as we have also seen, we may
be expecting too much from any ethical theory if we think there is an easy procedure to
follow that will result in the one correct answer.

Where Do We Go From Here?

It is, generally, to the advantage of both the employer and the employee that their company thrives: All are then better off. In addition to maintaining its own economic wellbeing, a successful corporation can offer the community a number of things that will make
it better off, such as support for the arts, schools, and general culture of the community.
Not to be overlooked is what is also known as the ripple effect: A successful company
will pay its workers the kind of wages that filter through the rest of the community. A
well-paid worker who takes her family out to dinner thus helps those who work in the
restaurant, and those workers in turn may have sufficient disposable income to buy things
that support still others.
But conflicts do arise, between what an employer thinks is the right thing to do for the
company, and what an employer thinks is right for the employer. Weve seen a number of
examples of this kind of conflict, and most of us are familiar with being asked to do things
at work that can, at least potentially, generate these kinds of problems. The situation, of
course, is made worse when unemployment is high and jobs are difficult to find. That situation makes most employees more reluctant to register objections, even if legitimate; many
will prefer being employed to having their rights maintained while being unemployed.
As a result, the employer has just a bit more leverage to impose conditions on employees,
and on job candidates, that can become increasingly unfair to those employees.
Here we see the not-infrequent situation where real life confronts what ethics may tell us is
the correct, moral, or just thing to do. At what point does one refuse to violate ones moral
code? If we are being harmed, or being treated unfairly, do we stand up for our moral
principles, or do we simply take it, realizing the importance of remaining employed? Does
it depend on how extreme the case is? Would we be willing to lie to keep our job? Would
we be willing to ignore certain legal requirements to keep our job? Would we be willing
to harm others, or at least risk harming others, to keep our job? Again, we find ourselves
between two extremes: We may be willing to overlook a relatively insignificant moral
infraction to keep our job, but we may be absolutely unwilling to commit a crime in order
to keep our job. Many issues in business ethics, as we have already seen, arise from trying
to find the appropriate balance between these two extremes. Ethics may help up us find
it; however, it doesnt guarantee that we will find it, or that everyone will agree with our
conception of the balance we do strike.

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Be the Ethicist
Unionization
A manufacturing companycall it United Manufacturers, or UM for shorthas had a long history of running a good, profitable company. However, due to some changes in management and
policy changes, including some cost-cutting measures, some of UM workers have started discussing
among themselves the possibility of joining a union, in order to have it represent their grievances
against the recent changes made at UM. A few particular employees have been identified as ringleaders in attempting to organize a vote among workers in order to gain union representation.
You are in upper management, and you do not want your workforce to be unionized. Which of the
following might be good strategies to adopt to avoid a vote being held by your employees to determine whether they will or will not be represented by union?
1. Threaten the ringleaders with being fired, if they do not drop their union activities.
2. Have the workers designate some spokespersons, and meet with them to discuss their
grievances.
3. Read the emails of the suspected ringleaders.
4. See if you can get any of the ringleaders relatives deported.
5. Address the grievances you think are legitimate complaints.
6. Impose mandatory drug testing for your entire workforce.
7. Hire extra security to prevent outside union members from gaining access to your work site.
8. Show employees videos that are designed to show the bad aspects of unions.
9. Fire the ringleaders.
10. Require job candidates to sign a pledge never to join a union.
11. Raise wages in order to compete with competitors whose workers are unionized.
12. Begin monitoring and taping phone calls made by the ringleaders.
13. Have the ringleaders killed.
Many courses, texts, seminars, and websites exist that are devoted to helping companies avoid
unions being organized in the workplace. Here are some examples:
http://www.gaebler.com/How-to-Prevent-Unionization.htm
http://www.xperthr.com/topics/hr-management/union-avoidance/
Exercise
Read the following description of the National Labor Relations Act (often called the Wagner Act):
http://legal-dictionary.thefreedictionary.com/Wagner+Act
Now review the things you saw as appropriate ways to prevent unionization occurring at UM.

Which of those would violate the Wagner Act?

Which might violate the Wagner Act?
Which would not violate the Wagner Act (or be legal)?
Are all of the things you identified as legal also ethical?
Are any of the things that you identified as ethical be seen as ethical by all the ethical
theories we have seen?
If different theories conflict on what is ethical to do in this situation, how do those conflicts arise?
Which ethical theory do you think is the best to apply in trying to achieve your goals while
both following the law and remaining consistent with your ethical values?

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CHAPTER 4

Key Terms

Chapter Summary

n this chapter, we have seen a number of conflicts that can arise in the workplace. While
most companies have as their goal to make a profit and provide a return to their investors, some practices developed to achieve those goals can seem to invade employees
privacy. Other policies that corporations develop may restrict what an employee can do,
or even require employees to act in ways that are in conflict with those employees own
values. While we have looked at a few of these conflicts, there are, of course, many more.
Some of the issues looked at in this chapter include the following:
How outside work can lead to a conflict of interest and/or conflict of
commitment;
What rights are involved in mandatory drug testing;
Whether an employer can ask an employee, or job candidate, for a Facebook
password;
Whether a corporate mission statement can infringe on a workers right;
What a workers right to privacy includes, and does not include;
Whether a boss can monitor employees Internet usage;
If health care is a commodity or a right;
If health care is a right, whether an employer obligated to provide it; and
Whether a company can impose specific moral values on an employee by prohibiting certain activities.

Ethical theory offers extremely helpful tools to solve these problems by clarifying the language involved, identifying what is and isnt relevant to the problem at hand, providing
rigorous arguments for specific ethical principles, and offering valuable critiques of the
shortcomings of competing views. As one might imagine, just as with our own individual
conflicts, workplace conflicts are bound to arise. If ethical theory, and common sense, can
give us the tools to have a better chance of resolving these conflicts, then we should avail
ourselves of these tools to help us do so.

Key Terms
Affordable Care Act (ACA) Also known
as Obamacare, a statute passed in 2010
designed to increase the health care coverage for Americans.
Americans With Disability Act A federal law, passed in 1990, prohibiting
discrimination based on a wide range of
disabilities.

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at-will employment Employment that

can be terminated by either employer or
employee without providing a justifying reason. Certain specific legal and
constitutional exceptions restrict at-will
employment.
conflict of commitment A conflict that
arises from time spent in additional
work, and which may lead to interference
with a workers institutional or original
commitments.

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Exercises

conflict of interest A risk to ones primary

work interests, due to influences from
another job or time commitment.
mission statement The statement of a
company, corporation, or institutions fundamental purpose and goals.
moonlighting Slang term for a second job,
often not reported to ones other employer.

CHAPTER 4

off-duty activity/conduct Conduct and

activity that takes place while off the job.
negative right The right not to be subject
to an action by another person or group,
usually seen as preventing or prohibiting
actions by these others.
positive right The right to some assistance
by another person or group, usually seen
as obligating those others to provide that
assistance.

Critical Thinking Questions

1. Whistleblowing occurs when an employee informs legal authorities of some
unethical or immoral behavior in which his or her company is involved. Should
whistleblowers be protected from being fired for such activity? How might a
utilitarian evaluate the value of whistleblowing?
2. Do mandatory drug tests assume that employees are using illegal substances?
What harm might such tests do to the workplace environment and relations
between workers and management?
3. You are applying for a job you would really like and sorely need. The person hiring you, at the end of the interview, seems optimistic about your chances of being
hired, and concludes by asking you to fill out a few forms, including one that
asks you for your Facebook password. What do you do?
4. The Preamble to the Constitution of the United States mentions that one of the
things it seeks to protect is the general welfare. Is the general welfare promoted
by having universal health care? Why or why not? How might a deontologist
object to a policy of universal health care?
5. If employees are being paid, what rights do they retain while at work? Is the
employer legally obligated to respect a workers right to privacy, morally obligated to respect a workers right to privacy, both, or neither? Might some argue
that there is no such general right to privacy?
6. Some ethicists worry about the tyranny of the majority. If a company is owned
and managed by adherents of a specific religion, is there a risk that they might
violate the rights of their workers who either follow a different religion, or no
religion? What kind of policy might the company adopt in order to avoid such a
violation, or even the appearance of such a violation?

Exercises
1. Describe a conflict of commitment and a conflict of interest that could occur outside a university setting.
2. Consider this scenario: Teds employer fires him because it becomes known that
he smokes tobacco products at home.
Visit http://www.ncsl.org. Type off duty conduct discrimination in the search field at
top right. From the results list, click the first link (PDF). Find a state where Teds fir-

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CHAPTER 4

ing would be prohibited. Now find a state where it is not clear whether this firing
would be prohibited. Finally, see if there is a state where this firing would not be
prohibited.
3. Consider the following real-life incidents:
A Georgia teacher claimed that she was fired for having pictures on her Facebook page that showed her drinking alcohol.
A Massachusetts teacher was forced to resign after posting that she thought
the town she taught in was snobby, and that she was not looking forward
to the coming school year.
A North Carolina waitress was fired for complaining about a very small tip
she received.
An Albuquerque police officer was demoted to desk duty for listing his job
description as human waste disposal.
A Massachusetts firefighter was terminated for Facebook posts that involved
cursing and slurs against homosexuals.
See these links for more information:
http://www.businessnewsdaily.com/1329-facebook-horror-stories-how-a-postcan-cost-you-your-job.html
http://www.sminorgs.net/2011/06/more-nominees-for-the-digital-hall-of-shameand-how-to-avoid-becoming-one-yourself.html
http://www1.whdh.com/news/articles/local/capeandislands/12003630380176/
words-on-facebook-cost-bourne-firefighter-his-job/
Now, write an example of a comment that one might see on Facebook or Twitter
that should get someone fired. Write a comment that one might see on Facebook
or Twitter that should not get someone fired. Finally, write a comment that reasonable people could disagree about, in terms of whether it would be a justified cause
for dismissal.
4. Some employers have considered cutting workers hours in order to avoid the
requirement to cover their health care costs; a couple of these cases are outlined
here:
http://www.deadline.com/2013/04/cinemacon-theaters-cut-employee-work
-hours-obamacare-affordable-care-act/
http://www.huffingtonpost.com/2012/11/09/papa-johns-obamacare-john
-schnatter_n_2104202.html
Others have objected to the ACA as inadequate, calling for a single-payer plan
to make sure all Americans have health care. They point to other countries health
care planssuch as Germanys and Taiwansas truly universal, more cost- efficient, and generating better outcomes:
http://www.pnhp.org/facts/what-is-single-payer
http://www.healthcare-now.org/

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Suggested Resources

CHAPTER 4

What are the advantages of not having health care and employment tied
together, as has been traditional in the United States?
What are the disadvantages of not having health care and employment tied
together, as has been traditional in the United States?
Imagine you are talking with someone who advocates a single-payer or universal health care system, and you ask that person why you should have to pay for
another persons health care. What is the best response the individual might offer?
Imagine you are talking with a libertarian, who rejects all health care plans that
are not entered into voluntarily. You ask if the law that requires hospitals to give
medical care, regardless of ability to pay, should be eliminated. What is the best
response the libertarian could offer?

Suggested Resources
At-Will Employment
http://employment.findlaw.com/hiring-process/at-will-employee-faq-s.html

Conflicts of Interest and Commitment

http://www.fas.harvard.edu/~research/policy/coi.html#policies

National Conference of State Legislatures: Labor & Employment

http://www.ncsl.org

Affordable Care Act: Small Business Information

https://www.healthcare.gov/small-businesses/

Monitoring Employees
https://www.privacyrights.org/fs/fs7-work.htm

Passwords and Legislation

As of January 2013, six statesMichigan, California, Illinois, Delaware, New Jersey,
and Maryland, have passed laws making it illegal for companies to request Facebook
passwords.
http://news.cnet.com/8301-1023_3-57561743-93/six-states-outlaw-employer-snooping-on
-facebook/

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CHAPTER 4

Facebook itself has objected to the practice, claiming that such requests violate its terms
of service agreement.
http://www.forbes.com/sites/kashmirhill/2012/03/23/
facebook-doesnt-want-employers-asking-for-users-passwords/
Federal legislation making this practice illegal has also been considered, although it was
defeated when first introduced.
http://www.nbcnews.com/technology/technolog/
demanding-facebook-passwords-may-be-illegal-senators-warn-bosses-557169
http://www.usnews.com/news/articles/2013/04/18/
legislation-preventing-employers-from-asking-for-facebook-passwords-defeated

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