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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