(Topics: Private Sector | Back to Home)

We should start with a discussion of what it means to have a right. But that's something else entirely. Here are the key points:

1. Employers have the right to decide who can work for them and what those people do, with few limitations
2. Employees have the right to decide who to work for and what to do, with few limitations
3. Both employees and employers have the right to be treated consistently and predictably within the confines of the law, and without fear of retaliation

That might make it seems fairly straightforward. If you have a company, you can hire and fire people. If you want to work for a company, you can apply or quit. And no matter who you are, the law still applies.

But of course it gets more complicated than this. And one way to understand the relationship between employees and employers and their rights and responsibilities is to think about the job itself. That is what it means to find, have, keep, lose, offer, or end a position of employment.

You have the right to look for a job. That means you can go out and knock on doors, send letters and emails, put in applications. That might seem obvious, but it is an element of a free society. In other places and times in the world, you would not want to go asking strangers if they have any work that you can do. But here, you have that right.

You also have the right to expect that published or provided information about available jobs is accurate. Things like pay, hours, working conditions, benefits, and requirements. And you have the right to expect that any job requirements, published are not, are entirely legal [1].

If there is a job posting listed, you have the right to believe that it represents a real job [2]. If you talk to a company in private and they give you details about the job, you have the right to believe those terms are real.

Of course, just because you get an offer and accept it doesn't mean the company is forced to take you on board. Sometimes circumstances change. But your rights are protected if the reason they changed their mind is because of unlawful discrimination [3].

Once you are working at a job, you have a right to be treated fairly and appropriately under the law. But that's complicated, because the law is complicated. For example, if your boss asks you to work overtime and warns you could be fired if you don't, that might seem unfair. But in many situations, it's perfectly legal [4]. Because, the logic goes, there are other jobs out there. And if you don't like the rules of this job, you can always go somewhere else [5].

This is an essential outcome of our capitalist economy. Broadly speaking, having a job is a privilege that can be revoked by the employer at any time. Think of the place where you are working as your customer, and that customer can decide they don't want to pay you for what you have to offer.

While this may feel contrary to what many people think about “having a job” it is the way our system is structured now. Just because you have a job today, doesn't mean you'll have a job tomorrow.

Furthermore, having a job is really only about getting paid something you agreed to [6] and not being asked to do anything dangerous or illegal [7].

There are a few circumstances in which you are promised to be able to keep your job. The big ones are:

1. You are deployed to serve in the military, and then come home [8]
2. You are temporarily unable to work in your job due to your own medical issues or taking care of someone in your immediate family [9]

Other than that, you may not be able to keep a job. No matter how good your performance, no matter how often you arrive at work on time, your employer can generally dismiss you for no reason whatsoever.

Lots of people think this is unfair, and one way to address it is to coordinate with other workers in your company/organization/industry and form a union. Which of course, is your right too. This is the nature of the law. We can make contracts and agree to them (or not agree to them). And in some situations, an employee may be able to establish an agreement with an employer to clarify what it means to have or not have a job.

Once you've lost your job, you have two paths available to you. The first is whether or not you think the nature of the job loss was unlawful. There's a fancy word that covers a lot of these cases: retaliation. If you were fired because you did something that is right (such as report a crime) then you may have a case [10]. But what is going to be the result? That you get your job back at a place where you might not be liked? That you get a little bit of money? These outcomes are not that common, and they are hard to litigate.

The second path following job loss is actually a form of social insurance. If you lost your job through no fault of your own [11], you can likely get some income through a program called unemployment. It's important to note that employers pay for this on a state level [12]. The purpose of unemployment is to provide a protection against job loss for individuals and help them until they find their next job. (Because, large scale unemployment is bad for the economy.)

This path also includes another type of social insurance, which is also paid for by employers. This is workers' compensation, which is for people who are injured on the job. To a degree these programs are the same thing, because they are both designed to help out the displaced worker.

If you lose a job, you can push back. But also, you usually have access to some resources to help you. Whether those resources are sufficient (or a good idea) is another topic, but this is where to begin.

Who can a company offer (or not offer) a job to? The answer might seem obvious: anyone they want to. But that's not true either. The law protects people from being denied a job offer on the basis of certain criteria [13]. For example, you cannot deny someone a job because their race, sexual orientation, religion, etc. But how does the government tell if that's the reason a business didn't offer that job?

Likewise, there are some positions where the nature of the job requires a particular type of person. For example if you're making a movie and casting the actors, you're going to select people that match the role. And there are also more controversial examples as well [14].

To summarize: you can offer a job to anyone you want, but the reasons can't be discriminatory, unless there is a valid legal reason to discriminate. To quote the Equal Employment Opportunity Commission website, “these rules can be complicated.”

What happens when a job ends? It depends on how it happened. And it's complicated:

• If you left the job voluntarily, then that's the end of it.
• If you left the job involuntarily, then it depends on the reason why you left:
  
  
  • Were you injured on the job? You may be able to claim workers' compensation.
  • Were you injured off the job or fell sick? There may be health or disability insurance or other clauses in your employment contract
  • Did your employer require you to leave? If so:
    
    
    • Were you laid off as part of a larger reduction in force at the company? If so you may be able to claim unemployment insurance or receive outplacement services.
    • Were you fired directly, and if so:
      
      
      • Does it seem to be for no reason or were you not given a reason? You may be entitled to find out why, but in most situations you are not.
      • Was it because of something you did? If so:
        
        
        • Was what you did illegal? You may be subject to legal action.
        • Was what you did a violation of written company policy? There may be legal consequences, especially if you impacted the company's success or damaged their equipment or reputation.
        • Was what you did in response to someone else's poor actions? You may have been fired as part of retaliation and have a legal claim against the company.

This should illustrate some of the complexity of employer and employee rights. Because even when it comes to just one event—the end of a job—it's hard to explain concisely what will happen.

The reason why the discussion of employee/employer rights is so political is because of the presumption of power. Some people think that companies have too much power over workers, that they can exploit them for low wages, treat them poorly, and unjustly discriminate in hiring, promotion, and recruitment practices. Other people think that workers have too much power over employers, because they can unionize, make frivolous claims, or endanger companies by sharing trade secrets.

But neither of these points of view is universally true. In some situations employees have a lot of power, and in some situations employers have a lot of power. It depends on the situation.

That's not a satisfying answer. But politics should be able telling the truth. And once we acknowledge that something is complicated and that quick, absolute answers don't work, then we have space to begin doing the work.

Which is why the topic of employee/employee rights matters so much: we all have work to do, and work we need done.

[1] https://www.eeoc.gov/prohibited-employment-policiespractices

[2] Yes, it's illegal to post a fake job ad. People do this sometimes because they want to guage market demand or because they are straight up identity thieves.

[3] https://www.thebalancecareers.com/when-can-a-company-withdraw-a-job-offer-2061407

[4] https://www.findlaw.com/employment/wages-and-benefits/is-mandatory-overtime-legal-.html

[5] This is where the whole discussion of employee and employer rights gets sticky.

[6] The subject of pay is enormously complicated. You can be paid in cash, in a promise to receive cash, in things valued as cash such as health insurance, food, lodging, and so on. There are also (basically) two categories of people who get paid: employees and contractors, and for employees there are so-called exempt and non-exempt, and the laws that apply to each of these categories and subcategories are different.

[7] This is complicated too, because what is “dangerous or illegal” depends on where you are and what you are doing.

[8] https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide/

[9] https://www.nolo.com/legal-encyclopedia/can-you-be-fired-from-job-while-leave-with-disability.html

[10] https://www.eeoc.gov/retaliation

[11] It depends, but if you stole from your employer, failed a drug test, or broke safety rules, you are probably not eligible for unemployment.

[12] In the sense that employers “pay for anything.” Like with all taxes, in an open economy all costs are in a sense passed on to someone else.

[13] https://www.eeoc.gov/employers/small-business/3-im-recruiting-hiring-or-promoting-employees

[14] https://www.siop.org/Research-Publications/Items-of-Interest/ArtMID/19366/ArticleID/1624/Really-I-Come-Here-for-The-Food-Sex-as-a-BFOQ-for-Restaurant-Servers