Employer Rights Regarding Employment
This is written without any research into what legal rights employers already have. Rather, the point here is to start with general issues and use logic and justice to arrive at what rights employers should have regarding whom they employ and on what basis an employee can be fired.
How much leeway should an employer have when hiring or firing? To one extreme is the notion that an employer should be able to hire or fire anyone they want for any reason they want. It is their business. This, I suppose, makes sense if the rights of individuals are supreme. But they are not. The needs of society trump individual privileges.
Now let’s take the issue from the extreme side of a potential employee. This is the notion that an employer is obligated to hire the most qualified person for the job, period, and can only fire someone if they fail to perform their job satisfactorily.
It seems these two extreme positions can only be modified via social justice. The needs of society always trump individual needs. There was a time when blacks, for example, could not be hired in certain jobs. But blacks were citizens and needed to able to work, just like any other citizen. So, in the interests of justice and social necessity employers were told they can’t refuse to hire blacks.
And thus began the road down a tricky slope. The question begs: to what degree should an employer be able to use their own prejudices in hiring? If employers can’t have any prejudicial leeway then I suppose a clearance center could be set up and when an employer needed to hire, the clearance center would simply send out the most qualified available person. That seems a tad heavy handed. Lot’s of time an employer picks a person out of a qualified group with whom they feel most comfortable personality-wise. That seems fair enough unless, of course, the person is uncomfortable with certain ethnics or gays or women or men or older persons or younger persons or how certain people dress etc. Thus, where should the line be drawn? And how do you make someone tolerate the objects of their prejudice?
We don’t have to proceed too far with this before realizing the gray area here is huge. How do we balance personal bias with social justice? No matter where the bar is set regarding the attempt at justice, the issue is nearly impossible to completely solve. An employer can always set up a scenario in which it appears everyone is equally considered but in reality the deck is stacked against certain applicants. This happens a lot. If an employer has 5 candidates all qualified for the job, how do we prove the one armed unattractive black lesbian wasn’t hired because of any of that? Then the lawsuits fly and everyone is tired of it all.
The fewer the employees the less attention hiring practices come under scrutiny. An employer who hires less than 5 employees has more leeway than an employer who hires 100 employees. The ultimate answer is, of course, that the more diversity is respected in any society, the more successful employment justice is achieved. To some extent with these small businesses, the matter gets evened out a bit since some people pride themselves on having a diverse staff and this helps offset those who kind of hire only certain kinds of people.
Right now the legal system stipulates that an employer cannot refuse to hire on the basis of ethnicity, religion, sexual orientation, and so on. All this is fine and noble and proper for a government, but it can only go so far. The real battle is always in the ethical principles of the society at large. This does change and has changed. Early on in my own life I realized there were harmless racists and dangerous racists. I have known people who, in private, will admit they feel it best certain groups stay to themselves in order to keep peace in society, BUT they then go out of their way to be fair to the groups in question because they want members of these groups to get a fair deal, but just not be part of their own social circles. The dangerous racists are those who never miss a chance to make life miserable for the objects of their dislike.
Progress in hiring fairness has improved a lot over the years. In part this improvement occurs because for every prejudiced employer there are often those who do more than their share of hiring those for whom prejudice against them is high. Not only that, but more and more employees see profit in diversity of their staff. If a business supplies a service or product to the public then hiring a hispanic, for example, may help direct more hispanics to the business. And then we also have those who we all should most admire in this area. These are the employers who look at our one armed unattractive black lesbian and if she is qualified, will hire her because if they don’t, it is not certain who will.
One problem that damages our society to a great extent is criminal records. This is a real difficult conundrum. A lot of young people get put in jail for political reasons (smoking or selling pot), or moments of immaturity in which they assault or steal etc. Murder, rape, white collar monetary crimes and others are clearly crimes which any employer would shy away from. But for the lesser crimes, especially in youth, if they are safe enough to be released from jail the least smart thing is to make them unemployable. For these lesser crimes the government should offer a bonus for anyone who first employes them at a meaningful job. After all, it costs around $30,000 a year to keep them in jail so we all have a stake in getting them gainful employment. Gainful employment is the biggest factor which will determine whether they return to crime. Another approach would be to couple assistance in getting a job with the severity of the sentence if they commit another jailable crime. The worst thing to do with these youthful offenders is to simply dump them back in society with a felony on their record.
Now comes the other side of the coin, how much freedom should an employer have to fire someone? This is just as difficult as the hiring side of the question. At one extreme an employer might claim they have the right to fire anyone at any time for any reason. Period. At the other extreme is an employee who feels the only reason they should be fired if they don’t do their job satisfactorily. This is every bit the conundrum as the employing side. If the employer doesn’t want an employee around he/she can always make the situation miserable for the employee. Or give them assignments they know the employee can’t handle, and the gimmicks go on and on, as do the lawsuits. And we again are all tired of it. While there has been improvement here also over time, the present climate is such that almost all employees are feeling the assault by the bottom line and the growing disparity between worker salaries and management salaries. In this sense, most employees are being discriminated against today in that a they are not being given a fair share of profits. The money is increasingly heading to management. Of course this is counterproductive since the less money workers have to spend the greater the decline in the economy.
It would seem fair that owners be required to specifically state what offenses are intolerable and what the punishment will be. This would at least bring some consistency to punishment for the same crime, and give a potential employee advance warning. For the most part, there has been considerable progress in the area of what is unacceptable and acceptable at the work place without a lot of specific regulation. Most people today can wear their hair as they like without workplace discipline. Short of being ridiculously obscene there is not an awful lot of reason to set dress codes for most workers. If an employer wants some sort of attractive and consistent appearance on their workers for the public then the safest thing is to by them uniforms of some sort. This beats arguing over what is a ‘neat’ and presentable appearance. What is really neat is when people learn to find out the guy with dreadlocks or ponytail etc can be one of the best persons in the business with which to deal. Dressing styles, especially for the young, are going to change rapidly over time. This has always been the case and probably always will. So why fight it? It is better for an employer to comment, “Hey shaggy hair, you better be one of my better employees so I don’t begin to notice the shaggy hair too much.”
Fighting it just expends a lot time for what——increased tension at the work place? Some employers have this exaggerated imagination that people do business with them because of the way their employees dress. That is rather rare. Most people are looking for bargains, quality service, and quality products. It is much more likely that it is the employer who gets satisfaction of seeing his/her workers dolled up for work exactly as it most appeals to him/her. These are the same employers who rant that no one is going to tell them how to run their business. For the most part it is best to let it be. They hurt themselves more than anything else. However, it does seem fair that these little dress quirks of an employer be in writing and up front, not arise out of the blue retroactively. It is hard to figure what to do about such policies as no long hair for males. Perhaps employee dress codes should be posted in plain view for the public. After all, if the employees cannot have long hair why should customers be welcome who have long hair? In other words the employer needs to let his/her customers know about his/her dress code prejudices for employees so those who also dress that way can go elsewhere if they choose. Fair is fair. With honesty about personal prejudices we lose some customers and gain others. It is often a crap shot.
Then there is the knotty issue of behavior outside of the workplace. For the most part the employer controls behavior on the job and our legal system controls behavior off the job. We should never take lightly the right of every person to have due process of law for criminal behavior. So the question immediately begs what about a person who commits a serious crime like robbing or assaulting someone outside the work place? The NFL is now attempting to include such crimes as spousal physical fights, improper discipline of children, smoking marijuana and other such common but less clear crimes that have a very individual nature. And of course the NFL, like it operates almost entirely outside any kind of regulation, wants to set up its own judicial system for any kind of behavior they think hurts the NFL image. It is not the crime itself which is so intolerable but the loss of revenue from angry fans. The latter is hardly true since most of us who watch football are addicted to it, and put up with anything and still watch, while Congress waives the NFL’s obligation to be accountable to anyone regarding taxation, punishments, contracts, anti trust laws, and so on. The NFL in America is more like the Vatican in Italy, it is an independent empire.
Under what circumstances should someone lose the right to due process of law before punishment?
Clearly if I kill someone off the job and am waiting trial most people would not like to see me in the workplace, neither customers nor employees. Some employers suspend the worker with pay until after the trial, others suspend the worker without pay until after the trial, and others do not suspend the worker until he is convicted. It seems our judicial system should decide these matters, not owners whose competence to decide such matters is all over the place. If a person is a threat to society then the courts can refuse bond. If the court states the person is no threat then that should be the law in this case and an employer should not be able to fire or suspend without pay. Suspend with pay seems a fair option if the employer is really adamant about not having the worker around before trial.
The NFL already has shown it is not a competent judicial body. How the hell can an enterprise run by a cabal of millionaires with a Commissioner responsible only to them, be in charge of any judicial process? That concept is outrageous. They have already shown their mentality with the Ray Rice and Adrian Peterson cases. First they concluded without any fair judicial process that a 2 month suspension was good enough for someone who punched his wife and knocked her out. Then the video appeared establishing that yes that someone did punch their wife and knock her out. None of the facts changed but suddenly, to appease a change in public opinion, the someone was suspended indefinitely. Image is everything to the NFL, justice to any individual is way down the line.
Domestic assault cases and child punishment cases are very individual and complex. There are many factors to consider, among them:
Is this the first time for the offense?
Has the person received any professional help about the problem?
How severe was the assault?
What was the reason for the assault?
Does the victim(s) want to press charges?
How likely is this behavior to continue?
What kind of punishment will bring the best results for all involved?
What about the person’s total personality as seen by character witnesses of the defense and prosecution?
All of this is best handled by the judicial system, not some corporate enterprise in business to make money and protect an image. If reform is needed, and certainly is, then it is the judicial system where the reform should occur, not setting up the NFL as a separate judicial body at tax payer expense.
Many outstanding business owners often use their anger at a particular behavior by stating they would fire on the spot an employee who committed such an assault. Reality is another story. Rarely is a good employee fired who has a domestic violence incident. And rarely is an employee fired who is not a good parent in one way or another. If you are the employer of a good worker who suddenly has a domestic violence incident you are first shocked, then want to help your good employee get help so that this tendency can be treated and overcome, and then you want to do your part to help the family move on and continue to have a good life minus the physical violence. Domestic violence is relatively common and is a serious problem which needs far more attention by the courts and the medical community in terms of treatment. The person who committed the assault may get convicted and punished but until then rarely does the employer get involved. Child abuse, of any kind, physical or mental, should be reported and act on by the courts and social agencies. How many employers are remotely trained to deal with these cases? What a joke that is.
We all have known many cases of spousal or child abuse but rarely is this an issue as to where we shop. When is the last time we ever heard someone say “I don’t shop at X anymore because one of their employees had a spousal argument and hit their spouse”, or “I don’t shop at X anymore because one of their employees gave his child a ‘whupping’. Both these issues have surfaced big time because two professional and popular football players were caught redhanded, one throwing a punch at his then girlfriend, now wife. The other gave one of his sons a ‘whupping’ that left noticeable scars on the 11 yr old child’s skin. Neither one of these behaviors is acceptable in our society and these behaviors are widespread. There are some 1.3 million known physical assaults on those with whom the attacker has an intimate relationship. And probably as many or more parents who use corporal punishment as a tool of discipline for their children. While human nature may be such that these problems cannot be totally eliminated, the goal is to limit the occurrences as much as possible.
But one thing is logically quite clear: Eliminating such behavior from professional football players does not do hardly anything at all to eradicate the problem. There are about 1700 professional football players and if we manage to stop this behavior among many of the perhaps 20 players who are engaging in this sort of thing, what kind of dent does this put amongst the more than a million other such cases in our country? What are we saying here except so many of us know these players and we don’t want these issues in our face raised by those people we cheer on to win games for us. Any genuine attempt to limit these unacceptable physical assaults on family members has to address the issue is a fair way to all those engaging in such behavior. Anything we do for some to help them stop this kind of behavior need be done for all who engage in such behavior. That’s justice. Anything else is disingenuous window dressing.
The next point to accept is that this is a legal, social, and medical issue, and therefore courts deal with it, not private clubs of any sort setting up their own judicial system. Let the NFL concentrate on football and let our efforts to reduce the occurrence of these kind of assaults be directed at improving the speed and effectiveness of trials and availability of medical help to those with these tendencies. To take the view that at least we are going to better control this system in the NFL, and for the wrong reasons, is a cop-out. For some people to proudly boast that they would fire or suspend a person without pay immediately for spousal abuse or ‘whupping’ a child is nothing more that their way of stating how much they are opposed to such behavior. In reality, such actions are rare. Most of the time the employer knows the employee, has bonded to the employee, and wants to help them with the problem, not destroy a family and create financial problems on top of the already serious problem. So they wait for the legal system to conclude it’s process.
Thus, in the last analysis it is the legal, political, and medical community which need to make changes is the way these two problems are handled. The goals should be early intervention, swift early determination by the courts as to the danger of the individual to their family or anyone at their job, and if this is of concern then the person should be held in jail until after the trial, and the trial should be reasonably swift and of reasonable length. What is fair about similar crimes in similar situations resulting in some trials being over in a day or two and others go on for a month or more? The last thing we should do is let a cabal of wealthy owners set up their own private judicial system. Hell, there is little real justice in much of anything these owners effectuate with their existing exemptions from the law, and to add still another one is simply absurd.
The needed changes in our judicial process to better address spousal abuse and child corporal punishment should be made in the judicial process and these specific changes are not something which I have any expertise to delineate, anymore than most employers have.
