Americans get fired for nothing

Book Review

“Can They Do That? Retaking Our Fundamental Rights in the Workplace”

By Lewis Maltby

Penguin Group, 2009, 288 pp

A friend of mine got fired for helping organize a union. “You can’t do that,” she told the bosses. Sure enough, after a visit from the union lawyer, they agreed that indeed they couldn’t, so they told her to come back to work on Wednesday. She did, and they fired her immediately, “for nothing.” She’s still fired. That’s America.

A new book by an experienced labor attorney probes the depths of American employment law then offers hope for change. The American workplace, Maltby explains, is a virtual dictatorship with few worker rights except for those won by unions and a few federal anti-discrimination laws. The book is full of outrageous stories about people being fired for little or nothing. Example: one woman was fired for having a Democratic bumper sticker on her car.

Attorney Lewis Maltby worked as an attorney for a “progressive” employer before deciding to take up the good cause. He worked for the ACLU and then founded the National Workrights Institute. Their web page is www.workrights.org. It explains, “The National Workrights Institute is a non-profit organization based in Princeton, NJ. We believe that all workers are entitled to their rights in the workplace.”

The topics on the web site are approximately the same as those in the book:

Alternative Dispute Resolution
The privatization of workplace justice has the potential to bring benefits to employees, but the system must be voluntary and fair.

Drug Testing
Random drug testing is not only an invasion of privacy but it does little to make the workplace safer or more productive.

Electronic Monitoring
Your employer may be watching and recording all your activities at work.

Genetic Discrimination
Employers have access to genetic information and can use it to discriminate against applicants and current employees.

Lifestyle Discrimination
Should employers be able to regulate the legal off-duty activities of their employees?

Medical Privacy
Should your employer have access to sensitive medical information?

Plant Closings/Mass Layoffs
Employees are entitled to notice when their company shuts down or conducts a major layoff. But most people don’t receive it.

Right to Organize
Freedom of association is among the most fundamental of workplace human rights.

Whistleblower
Could you lose your job for notifying the proper authorities that your employer is violating the law?

Wrongful Discharge
You can lose your job for reasons that are unjust, arbitrary or simply non-existent

The site encourages workers to tell their own stories, and they offer advice to the recently dis-employed.

One of the best sections in the book explains the legal concept of “employment at will.” Even though it seems to go against everything Americans believe, and even though employers can’t fire their workers for certain reasons, they can almost always fire them for no reason at all!

Maltby gives us the back story on page 61: “In 1877, an obscure legal writer from Albany named Horace Wood wrote a treatise summarizing the employment law of the time. Wood stated that under American law, employment is a relationship “at will” in which an employer could fire a worker at any time, without notice, for any reason, no matter how arbitrary, or for no reason at all. Workers had the supposedly equal right to quit at any time without reason, which reminds many people of Anatole France’s comment about how French law in the nineteenth century prohibited rich and poor alike from sleeping under the bridges of Paris.

“Wood wasn’t much of a scholar. He cited only four cases in support of his claim that employment at will was the law of the land. To make matters worse, in not one of the four cases Wood cites did the court rule that employment was at will….”

Maltby writes that Horace Wood was not guilty of much more than being inept. The real villains are the judges who mis-used Wood’s work: “Despite wood’s shoddy scholarship, courts across the country began citing his treatise in support of rulings that an employer had the legal right to fire an employee at any time without reason. By the turn of the century, Wood’s rule had become American law.”

It’s not all bleak in the book. Maltby believes that legislation can solve some of the problems, and that his institute can often help individuals who have been unjustly fired.