Thursday, October 25, 2018

From the archives: The Employer Bill of Rights

I recently came across an interesting blog, entitled, 10 Workplace Rights You Think You Have — But Still Don't. Written by plaintiff-side employment lawyer Donna Ballman, it suggests that employees have far fewer workplace protections than they might think, and rights like wrongful termination, free speech, and workplace privacy simply do not exist.

That post got me thinking about a post I wrote 7 years ago — The Employer Bill of Rights.

After more than 20 years representing employers in workplace disputes, the one conclusion that I can reach with absolute certainty is that American employees do not lack workplace rights. There is a veritable alphabet soup of laws that protects employees:

  • 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 

Not to mention myriad common law exceptions to employment at-will and other employee protections.

In other words, the group that lacks workplace rights is employers. We are the marginalized and the unprotected, living in fear of making any personnel decisions because they might result in expensive lawsuits.

For that reason, I drafted the Employer Bill of Rights. (I even wrote a book about it.)

  1. The Right to Hire on Qualifications

  2. The Right to Fire on Performance

  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

You can read my full explanation for each of these rights at the original post, here.

In the seven years since I first drafted the Employer Bill of Rights, my opinion on the balance of power between employers and employees hasn't softened. I still believe that the alphabet-soup of employment laws, plus employers' fear of expensive and protracted litigation, has gutted employment at-will.

What do you think? Is the balance of workplace power tipped one way or the other? Please share you opinions in the comments below. I may just curate the best for a future post.