American Civil Liberties Union Briefing Paper Number 12
THE RIGHTS OF EMPLOYEES
When the United States became a nation more than 200 years ago, the Founders
formulated a Constitution that structured the new society as a majoritarian
democracy. They later added a Bill of Rights to protect individuals from the
tyranny of the majority. But in the 18th century, when the Constitution and
Bill of Rights were ratified, government was viewed as the only major threat
to individual rights. The Founders could not have imagined back then that,
one day, concentrations of corporate power would exist on a scale rivaling,
and in some cases exceeding, governmental power.
Today, most Americans are more vulnerable to having their rights violated by
their employers than the early Americans were to having their rights violated
by the government. Yet because the Constitution does not limit their
authority, private employers are free to violate the civil liberties of their
employees. Nationwide, the ACLU receives more complaints about abuses by
employers than about abuses by the government:
>In California, Sibi Sorkoa was denied a job because he refused to answer
questions about his sex life on a "psychological test." At least two million
job applicants are required to take such tests every year.
>In Pennsylvania, George Geary was fired because he pointed out serious
safety defects in his employer's products. At least 200,000 Americans are
unjustly fired every year.
>In Indiana, Janice Bone was fired because she smoked cigarettes in her own
home. At least 6,000 American companies now attempt to regulate off-duty
smoking and other private behavior.
The American Civil Liberties Union believes that such abuses can only be
prevented by extending, into the private workplace, the protections
guaranteed in the Bill of Rights. Certainly, we recognize that employers have
every right to expect workers to do their jobs. But employees are also
entitled to the same freedoms on the job that they enjoy off the job.
Here are the ACLU's answers to some questions frequently asked by the public
about the rights of American employees.
If the Constitution doesn't apply to the private workplace, what does?
The vast majority of American employees, of whom there are 60 million in all,
are governed by a doctrine called "employment at will." This doctrine, a
relic of 19th century anti-labor laws, gives employers the unfettered right
to fire workers at any time, for any reason, whether grave or frivolous.
Indeed, one can be fired for no reason at all. An estimated 200,000
employees, at least, are unjustly fired in the United States each year.
It is the prevalence of the employment-at-will doctrine that empowers
employers to impose unwarranted urine tests and intrusive "personality" and
"integrity" tests on their employees. The power to fire at will permits
employers to suppress their employees' right to free speech.
Are there _any_ laws that protect employees' rights?
There are federal and state laws that prohibit discrimination against
individuals on the bases of race, religion, sex, national origin, age and
disability. However, these laws require only that employees be treated
equally. Employers are, therefore, free to do whatever they wish to their
employees as long as they do so in a non-discriminatory manner.
A few other federal and state laws provide some protection against specific
abuses, such as urine testing, polygraph testing and retaliation against
whistle blowers. But these laws are extremely limited. The fundamental
human rights of free expression, privacy and due process are still largely
unprotected in the American workplace.
Does the employment-at-will doctrine apply to all employees?
No. There are three broad categories of employees who are not governed by
Government employees: Federal, state and local government workers are
protected by the Fifth and Fourteenth Amendments, which prohibit the
government from depriving any person of "life, liberty or property" without
due process of law. These employees are considered to have a property
interest in their jobs, and the right to due process places significant
restrictions on arbitrary dismissals unrelated to job performance. Some
additional protection is provided by federal, state and local civil service
Union members: Virtually all collective bargaining agreements between labor
unions and employers stipulate that unionized employees can be fired only for
just cause, and only after a hearing before a neutral arbitrator. However,
less than 20 percent of American workers belong to unions today, since union
membership has been declining for years.
Contract employees: Senior executives, academics, performers, athletes and
some other well-situated employees, whose numbers are so small as to be
insignificant, work under individual employment contracts that provide
protection against unjust dismissal.
What can be done about the problem of unjust dismissals?
The ACLU believes that the outmoded and unfair employment-at- will doctrine
should be abolished. Over the years, the many attempts made to challenge
employment-at-will in the courts have produced a few narrow exceptions to the
rule, but these exceptions have helped very few of the people unjustly fired
from their jobs. The ACLU and other organizations advocating employee rights
are actively promoting, in state legislatures, model statutes that encompass
the following basic principles:
>> Employees can be fired _only_ for just cause.
>> "Just cause" means that: the employee's offense adversely affected his or
her job performance; the rule or standard violated by the employee was known
to the employee; and the infraction was serious enough to warrant
>> Every employee faced with termination is entitled to a hearing that
includes the right to confront witnesses, the right to present evidence, the
right to have adequate representation (either an attorney or other type of
counsel), and the right to an impartial arbitrator.
Can employers legally search their employees' lockers, desks and uring
looking for contraband?
The Fourth Amendment, which protects the privacy of citizens from
"unreasonable searches and seizures," gives some protection to public sector
employees against their employers' prying eyes. In general, a government
employer cannot search the person or belongings of an employee in the absence
of any suspicion that the particular employee has done something illegal.
With respect to urine testing for drugs, however: The U.S. Supreme Court has
ruled that government employees can be required to take such tests, even if
the employer does not suspect drug use, if the person's job is "safety
sensitive," or involves carrying a weapon or having access to classified
information. (See ACLU Briefing Paper #5, "Drug Testing in the Workplace.")
Private sector employees, on the other hand, have virtually no protection
against even the most intrusive practices. In all but a handful of states,
an employee can be required to submit to a urine test even where nothing
about the employee's job performance or history suggests illegal drug use.
If the employee refuses, he or she can be terminated without legal recourse.
Employees can be subjected to "sniff" searches by dogs and searches of their
lockers, desks, purses, and even their cars if they park in the company
parking lot. Both job applicants and employees can be required to answer
extremely intrusive questions about their private lives and personal beliefs
on "psychological," "personality" and "integrity" tests.
The advent of computer technology has made possible even more sophisticated
forms of spying in the workplace. More and more employees are being
subjected to electronic surveillance through video display terminals,
observation by hidden cameras installed in work areas and locker rooms, and
monitored telephone calls. With few exceptions, these increasingly
widespread practices are legal.
What can be done to protect the privacy rights of employees?
The ACLU believes that both state and federal legislation should be enacted
to extend privacy rights to private sector employees.
In recent years, some positive strides have been made. In 1988, Congress
passed the Employee Polygraph Protection Act, which ended decades of "lie
detector" abuse in the private workplace. The Act outlaws most random and
pre-employment polygraph testing, which in past years had led to an estimated
300,000 workers per year being branded liars. (See ACLU Briefing Paper #4,
"'Lie Detector' Testing.")
Several states -- Connecticut, Iowa, Maine, Minnesota, Montana, Rhode Island
and Vermont -- have enacted legislation that protects employees from
indiscriminate urine testing. Two states -- Massachusetts and Rhode Island -
- restrict "paper and pencil honesty" tests. Connecticut is the only state
that has a law prohibiting "electronic surveillance, including video
surveillance, of any area designed for the health and comfort of employees or
for safeguarding of their possessions."
The ACLU has developed model statutes to protect employees from unfair urine
testing and electronic surveillance, and is actively lobbying for their
passage in state legislatures throughout the country. The ACLU is also
urging Congress to amend the Employee Polygraph Protection Act to cover so-
called paper and pencil "integrity" tests.
Can employers discriminate on the basis of employees' lifestyles?
One of the emerging issues in the American workplace is the attempt by
employers to control certain private habits and proclivities of their
employees that have no relationship to job performance. Fat people are
victims of lifestyle discrimination, and a growing number of companies are
refusing to hire smokers -- even those who smoke only in their homes. A few
employers exclude people with high cholesterol levels, or high blood
pressure, and those who engage in such risky hobbies as scuba diving and hang
gliding. Others impose lifestyle restrictions: One Oregon company bars
workers who fail to participate in the company's exercise program from
attending company picnics; a Pennsylvania company prohibits its managers from
The driving force behind this trend is economics: Employers concerned about
the escalating costs of employee health insurance are attempting to cut costs
by firing and/or refusing to hire people whose lifestyles appear to place
them at risk of illness or injury. But if reducing health care costs is
accepted as a legitimate reason for employers to regulate the off-the-job
conduct of their employees, then virtually every aspect of our private lives
could be subject to employer control. This would be Big Brotherism at its
What can be done to prevent lifestyle discrimination?
The ACLU believes that, just as legislation has been needed to prevent other
violations of civil liberties in the workplace, legislation is also necessary
to prevent lifestyle discrimination. Just as federal, state and local laws
exist to prohibit employment discrimination based on race, gender, ethnicity,
religion and, in some places, sexual preference, new laws are needed to
protect against discriminatory practices based on employees' private
lifestyle preferences and habits.
Fourteen states have recently enacted laws that restrain employers from
prohibiting legal activities as a condition of employment. For example,
Colorado law makes it "a discriminatory or unfair employment practice for an
employer to terminate the employment of any employee due to that employee's
engaging in any lawful activity off the premises of the employer during
nonworking hours...." Other states are considering bills that prohibit
employment discrimination based on off-duty smoking. The ACLU supports these
Should employers ever have the right to discipline their employees?
Absolutely. Employers have the right to expect an honest day's work for a
day's pay. They have the right to expect that their workers will not be
drunk, drugged, or too fatigued to perform their jobs. They have the right
to set performance standards and expect those standards to be met. They also
have the right to discipline and dismiss employees for just cause.
Even if all the protective laws described in this briefing paper were passed
in every state, employers would still retain the right to discipline and
dismiss any employee whose job performance was lacking.
But wouldn't recognition of civil liberties in the workplace damage the
There is no conflict between free enterprise and civil liberties in the
workplace. Free enterprise should not be taken to mean that every
corporation is a sovereign republic unto itself, whose only law is the whim
of the current CEO. Employers must be free to decide what products to make
(or stop making), what factories to operate and where to locate those
factories, what prices to charge, and how many workers to hire. But they can
make such decisions without trampling on their employees' rights to free
speech, privacy and due process.
The fact is that employers in most other Western industrialized nations, as
well as in Japan, are required by law to respect the rights of their
employees. Nonetheless, those employers' businesses survive and prosper.
Moreover, several American employers, including some of the nation's most
successful corporations, already guarantee their employees' civil liberties
without affecting the bottom line of profits. Those employers believe that
respecting employees' rights boosts morale and, thus, raises corporate
It is ironic that the United States, with its long professed respect for
individual rights, has not yet extended Bill of Rights protections to the
largest remaining group of forgotten citizens -- American workers. It is
time to right that wrong.
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