Can Your Boss Really Do That?

Lewis Maltby

Yes, employers can legally ignore the First Amendment.

Lynn Gobbell was fired because her boss didn’t like the bumper sticker on her car. During the 2004 presidential election, Gobbell put a Kerry for President” sticker on her bumper. When her boss saw it, he ordered her to the sticker off. When she refused, he fired her.

Most people think that what happened to Gobbell was illegal, but they’re wrong. What her boss did was wrong, but it wasn’t illegal.

What about the Constitution? Doesn’t the First Amendment protect our right to freedom of speech? The answer is yes, but only where the government is concerned. Unlike millions of people in other countries, Americans can openly criticize the government or advocate for positions that are controversial or even offensive without fear of retribution.

But the first amendment applies only to the government.

A private corporation, no matter how large or powerful, can legally ignore the first amendment. Too many employees have learned this the hard way, when their boss fires them for something they say on their personal blog or MySpace page.

In my new book Can They Do That? Reclaiming Our Fundamental Rights in the Workplace, I explain how all your constitutional rights essentially go up in smoke the moment you go through the office door. In addition to free speech, your right to privacy disappears. While the government has to get a court order to read your e-mail, your boss can (and will) read your e-mail, including messages on sensitive personal subjects, for his/​her own amusement. This breach of privacy extends even further than email – it includes video monitoring, too. When Gail Nelson found out that male security guards were watching her undress in her office after work to get ready for the gym, her suit was dismissed. She didn’t even get a trial.

Even worse nightmares are coming. At least a million Americans carry company-issued cell phones, all of which are equipped with GPS. Any of these employers are at liberty to track their employees 24 hours a day, 7 days a week, 365 days a year. It could be happening to you right now without your knowledge. The growth of biometrics (such as electronic fingerprints) may enhance security in some locations, but it also opens the door to identity theft on an unprecedented scale. No one knows what to do when a hacker, or dishonest employee, gains access to a database containing thousands of fingerprints.

Not only may your boss know where you are every minute of your life, he may control it as well. Thousands of companies order employees not to smoke or drink, even in their own homes, and fire those who disobey. As the wellness movement grows, employers are expanding these rules to include diet, exercise, and potentially dangerous hobbies like skiing.

The few rights we do have exist because of federal or state legislation, such as laws prohibiting discrimination based on race, gender, religion, and other improper bases. But even these rights are in jeopardy as employers require employees to agree” to give up their right to go to court if their rights are ever violated. Instead, employees must go to arbitration, where they have few rights to a fair hearing.

For more on what you can do to protect your rights under current law, and how we can change the law to restore our fundamental rights when we go to work, read Can They Do That?

This post was previously published at Today’s Workplace.

Lewis Maltby is president and founder of the National Workrights Institute and former Director of Employment Rights for the ACLU. He has testified before Congress many times on employment issues and appeared on 60 Minutes, Larry King Live, and Oprah. He lives in Princeton, N.J., and is the author of Can They Do That?: Retaking Our Fundamental Rights in the Workplace.
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