Should Work Be More Like BDSM Role-Play?

“You can’t say ‘orange’ to your boss.” Wait a minute, what?!? Is “orange” some kind of offensive slang I’m not aware of? I don’t think so…so taken in isolation, this sentence from David Graeber’s book Bullshit Jobs (p. 282) seems odd. But it’s actually quite important. “Orange” is being used here as an example of a safe word analogous to what someone would have in erotic role-playing involving bondage, discipline, dominance and submission, and sadomasochism (BDSM). Graeber is right—you don’t have a safe word at work, but you should.

It’s easy to envision a sadistic boss who enjoys humiliating or inflicting pain on others. We might also joke that only a masochist could put up with certain bosses or jobs that look painful to us. But at a more fundamental level, many, if not all, jobs can be seen as having a (non-sexual) sadomasochistic nature because of the dependency nature of the employment relationship. In her book Sadomasochism in Everyday Life, Lynn Chancer argues that “many workers, like the masochist, find themselves subject to chains of command that induce extreme dependency and a tendency toward the experience of oneself as inferior relative to an allegedly superior authority” (p. 106). And for bosses, “perpetually insecure himself or herself (why else would the capitalist need to figuratively bind and restrict the freedom of the worker?), no level of control really satisfies” (p. 109) so there is a sadistic-like (in psychological terms) continual push for dominance. Chancer further argues that the feeling of power is more satisfying or authentic when the subordinate exhibits some resistance or independence (hence bosses want employees with initiative), but not so much as to threaten the hierarchy.

So paid work in a hierarchical system with economic, legal, and other inequalities has important elements of a sadomasochistic relationship. But (non-pathological) BDSM role-playing has other critical features (Elena Faccio et al., Forbidden Games: The Construction of Sexualityand Sexual Pleasure by BDSM ‘Players,’ Culture, Health & Sexuality, 2014). Specifically, BDSM players design the rules of the game, are aware of their roles, and can withdraw their consent at any time by the use of an agreed-upon safe word. As Graeber notes, “This is precisely what’s lacking in real-life sadomasochistic situations. You can’t say “orange” to your boss. Supervisors never work out in advance in what ways employees can and cannot be chewed out for different sorts of infractions, and if an employee is…being reprimanded or otherwise humiliated, she knows there is nothing she can say to make it stop” (pp. 121-2).

You might say, but a worker can say “I quit.” But this is only a safe word if a worker can easily find similar work and pay elsewhere—an assumption frequent in mainstream economic (neoliberal) thought and associated public policies, but often not a reality for many workers.

Graeber argues that a universal basic income would turn “I quit” into a safe word because at least some level of income would not be dependent on a particular job. I would add that there are other things that could also be done to make work more like BDSM role play that fulfills the BDSM “safe, sane and consensual” (SSC) code:

·       Require employers to provide a written statement to all employees disclosing all terms and conditions of employment, including being able to be fired at any time for almost any reason. This might not change the actual terms and conditions of employment, but it would at least give workers more clarity about what they are signing up for.   

·       Enact statutory protections for employee free speech in which private and public employers are not allowed to violate an employee's freedom of expression either in or out of the workplace. Again, this might not change the actual terms and conditions of employment, but it could give workers more power to articulate their desires and object to certain things.

·       Grant workers the right to meet with their employer to request a flexible work schedule, a certain number of hours, or other scheduling items. This could help workers be part of designing at least some of the “rules of the game.”   

·       As Steve Befort and I have argued in Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus, the United States should enact an American Good Cause Termination Act in which employees can only be fired if there is “good cause” for such an action. A just cause standard is nearly universal in U.S. union contracts, and in CEO contracts. By outlawing both bad and irrelevant reasons for dismissing employees, this could give workers greater power to object to onerous conditions without having to quit, and could also better protect them if they wanted to form a union to improve their power.

None of these would necessarily fully solve the dependency issues inherent in the modern employment relationship. That is, work for many might be hopelessly sadomasochistic. Which means that it's important for us to think about ways to create a better balance to promote what I've called "employment with a human face." Or as provocatively put forth by Graeber (p. 283): “What would be the equivalent of saying “orange” to one’s boss? Or to an insufferable bureaucrat, obnoxious academic advisor, or abusive boyfriend? How do we create only games that we actually feel like playing, because we can opt out at any time?”

Perhaps surprisingly, then, making the employment relationship more like (non-pathological) BDSM role-playing with its SSC principles would be a good thing. You should be able to say “orange” to your boss. And many other things, too.

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Note: ICYMI, in last month's blog post I wrote about some of my other reactions to Graeber’s Bullshit Jobs. 

What Happens in the Aftermath of the Janus Ruling?

In 2018, all eyes in the labor relations community were focused on the Supreme Court in anticipation of its ruling in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Workers who are represented by a labor union cannot be forced to join a union and pay full dues, but in the absence of a right-to-work law, it has been possible to require them to pay an agency fee (equivalently, “fair-share fee”) to cover the costs of representing them. The question in Janus was whether mandatory agency fee arrangements in the public sector violate an individual’s free speech rights. This is only a question relevant to the public sector because the Constitution only prohibits the government from infringing on speech—there are no prohibitions against a private sector employer limiting an employee’s speech.

The free-speech argument against public sector agency fees is that mandating these payments means that a governmental body is forcing someone who does not belong to the union to subsidize the speech of others (the union) who they don’t agree with. Note carefully that this requires seeing public sector collective bargaining as rising to the level of public expression that enjoys constitutional protections. Opposed to this view is a counter-argument based on seeing collective bargaining as part of the employment relationship, not part of public discourse. So if states want to allow agency fees and prevent free-riding, then this should continue to be within their authority as regulators of the public sector employment relationship, consistent with other precedents in which public sector employees do not have free speech rights when speaking as workers rather than citizens.

When the Janus decision was issued last week, no one was surprised by the verdict: five conservative justices outnumbered four liberal justices in declaring that mandatory  agency fee arrangements in the public sector are unconstitutional free speech violations. This makes the entire U.S. public sector a right-to-work sector in which public sector unions will only be financially supported by union members. As such, this is arguably the most significant Supreme Court ruling affecting labor relations in a long time. It is also a highly-charged decision because Janus and related cases have been funded by conservative political groups seeking to weaken the labor movement as a counterweight to Republicans in the political arena. Indeed, President Trump’s tweet in support of the ruling boasted “Big loss for the coffers of the Democrats!”:

So this case is about much more than individual free speech. But will it be successful in weakening the labor movement?

In the short-term, Janus is likely to reduce the financial strength of public sector labor unions in non-right-to-work states (agency fees were already prohibited in right-to-work states) as nonmembers stop paying dues. Labor unions might also have to spend more time and money fighting additional lawsuits that will likely be filed by conservative groups seeking to get previously-paid agency fee amounts returned to workers. But it might not be all bad news for organized labor.

Some states might take legislative steps to lessen the impact of the Janus ruling. Possibilities include not requiring unions to represent nonmembers in grievance hearings; allowing unions to charge nonmembers for specific services such as grievance representation or arbitration; giving unions time during new employee orientation to meet new workers; making it difficult for anti-group workers to contact workers; and giving union members paid release time to recruit others into the union. It might also be legal for public sector unions to negotiate an agency fee arrangement that includes an opt-out clause allowing objectors to donate their fee to a charity.

At an even more fundamental level, recall that the Janus decision relies on elevating collective bargaining to a level of public speech that is entitled to constitutional protection. Ironically, then, this could bring new levels of legal protection to public sector collective bargaining. For example, state laws that restrict collective bargaining to narrow occupations or prohibit it altogether might be now be unconstitutional violations of free speech. Attempts to legislate further limitations on public sector bargaining, as in the case of Wisconsin, could also be challenged on this same basis. These issues will take years to work through the legal system, however.

So without waiting for favorable legislative or legal action, what can the labor movement do? The labor movement has had several years to prepare for this kind of ruling, and the primary response is to focus on internal organizing. This emphasizes relationship-building with bargaining unit members so that workers feel that they are a necessary part of a vibrant organization that effectively represents their interests. When this is successfully, not only will workers join their union and pay dues, but they will also be more engaged which further creates a more dynamic organization. Janus might also contribute to a feeling among public sector workers that they are under attack, making them receptive to collective action, as was demonstrated earlier this year in the statewide teacher strikes in West Virginia, Oklahoma, and Arizona. So there is the distinct possibility that the labor movement ends up stronger than it was before the Janus decision.

From Google to Top Dog hot dogs via Charlottesville: What About Employee Free Speech?

It’s been an “interesting” week. First, a Googler was fired for his infamous memo on the alleged biological roots of gender inequality. And now Top Dog, a California hot dog chain, has fired a cook because he was identified on social media as a participant in the white supremacist demonstration in Charlottesville. These firings are probably legal in the United States because of employment-at-will, but should they be?

Most workers in the United States are at-will employees. As explained by a Tennessee court way back in 1884, this means that employers “may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.” Employment-at-will is not unlimited. Workers covered by union contracts or similar civil service rules are likely shielded from the vagaries of at-will employment by policies that require a just or good cause for being disciplined or terminated. And there are legal exceptions, such as nondiscrimination protections (you can’t be fired because of your gender or race, for example), and some very specific judicial exceptions. But these exceptions are much narrower than most people believe. Most workers can’t be fired for a reason that violates a specific nondiscrimination law, but otherwise employers generally do not need a good reason to fire someone. So even if the cook has been misidentified, he can still be fired because Top Dog doesn’t need a good reason for firing someone.

But what about the First Amendment protection of freedom of speech and expression? Doesn’t this protect the Google engineer and the hot dog cook? No. The First Amendment protects freedom of expression by restricting governmental limitations on freedom of speech; it does not prohibit private organizations like Google and Top Dog from limiting speech and expression. Contrary to popular beliefs, U.S. workers generally do not enjoy the right to free speech and expression. So the firings of the Google engineer and the hot dog cook were likely legal.

But should they be? In our book Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus, Steve Befort and I advocate for broad freedom of speech protections for employees. The effectiveness of the political process as well as respect for human dignity require that employees be able to exchange ideas, complain, attend meetings and demonstrations, and blog or tweet about issues of either public or private concern. With that said, a difficulty with any free speech protection is how to accommodate views that are unpleasant and contrary to our own. These difficulties will never disappear, but currently they are solved in the work arena by giving employers all the power. I think it would be better to have some protections. 

And yet, the events of the past week dramatically highlight that these protections should not be unlimited. Rather, there should be statutory protections for employee free speech in which private and public employers are not allowed to violate an employee's freedom of expression either in or out of the workplace absent a legitimate business justification for a specific limitation. If a worker who has been disciplined or discharged can make a case that this stemmed from expressive activity (which isn’t in doubt for the two workers here), then the employer must demonstrate a "substantial and legitimate business reason" for the action to be legally acceptable.

What would this mean for the Google engineer and the hot dog cook? Would their reprehensible actions be protected? Probably not. Behavior that harms the employer’s reputation as well as behavior that causes other employees to be unable to work with him or her are generally seen as giving the employer a legitimate business reason to discipline or fire a worker even when that worker is protected by a just cause contractual provision (as in the United States) or wrongful discharge statute (as in Canada). So firing the Googler and the cook would likely be legal. We do not have to concede all employee rights to freedom of expression in order to denounce the behaviors of the past week. 

Admittedly, there might be other circumstances which might make us uncomfortable. Would firing a worker who attended a Black Lives Matter rally be acceptable because racist co-workers refused to work with this individual? Or would it be illegal to fire someone charged with sexual assault outside of the workplace if that worker doesn't work with anyone else (see the Ontario case of Merritt v. Tigercat Industries)? There are no easy answers here, or in many other areas of legal standards. But I submit that some standards are better than none. 

So the Google engineer, the hot dog cook, and many other U.S. workers should have greater speech and expression protections than is currently the case. But these protections shouldn’t be unlimited. Granted, this isn’t as efficient as giving employers unilateral authority.  As with many other aspects of the employment relationship, we need to find a balance between complex, competing interests. 

Employment Relations in a Post-Industrial Post-Democracy Era?

If one had to come up with a shorthand for the values of the field of employment relations, a strong contender would be “industrial democracy.” For starters, employment relations scholars seek to understand the rules of the workplace. Organizations are therefore seen as industrial governments that can be autocratic, technocratic, or democratic. The employment relations ideals of fairness and self-determination are best served by the democratic form of industrial government (“industrial democracy”) in which unilateral, unchecked managerial authority is replaced by orderly rules, participatory rule-making, checks and balances, and due process in dispute resolution. That (non-Marxist/critical) employment relations scholars see the employment relationship as analogous to a pluralist political society in which multiple parties (e.g., employers and employees) have legitimate but sometimes conflicting interests reinforces the preference for decision-making and dispute resolution processes that respect a diversity of rights and interests.  

The main vehicle for delivering industrial democracy has typically been labor unions  because imperfectly competitive labor markets and capitalist legal systems favor employers over individual employees. Labor unions that are legally and financially independent of management are the needed counterweight to managerial power, and are therefore necessary for giving employee voice legitimacy through the negotiation and enforcement of collective bargaining agreements. Consistent with this thinking, labor unions have a long history of promoting collective power as a way to bring democracy to the workplace, and to strengthen political democracy by creating independent and responsible rather than subordinate and repressed citizen-workers. 

We’ve already seen what happens to employment relations and labor unions when the “industrial” part of industrial democracy disappears. That is, the decline of manufacturing and traditional blue collar occupations have paralleled the steady decline in private sector U.S. union density. Though the relationship isn’t necessarily causal, it’s hard to deny that labor unions have struggled as the nature of the economy and the workforce have shifted, and probably not coincidentally, the size of the field of employment relations has simultaneously declined.  

But clearly there should be an important space for post-industrial worker voice as well as for employment relations scholarship. Unions are experimenting with different representation strategies, new institutions (especially worker centers) are emerging to give non-traditional workers a voice, and employment relations scholarship is broadening beyond a traditional focus on labor unions.

But perhaps a new challenge looms…the decline of support for democracy. In “The Democratic Disconnect” (Journal of Democracy, July 2016), Roberto Foa and Yascha Mounk report disturbing trends from individual responses to the World Values Survey. For example, 26 percent of U.S. millennials characterize choosing leaders in free elections as unimportant and 24 percent indicate that democracy a bad way to run a country. These percentages are significantly higher than those reported by older generations. Similarly, 72 percent of Americans born before World War II say that it’s essential to live in a democracy, but among millennials that percentage plummets to 30 percent.

I incorporated these statistics into a presentation I made earlier this month entitled “Two More Problems Facing the Field of Employment Relations, and the Need for Inclusion” at the annual conference of the Labor and Employment Relations Association (LERA). To be honest, I did this primarily to be provocative, and maybe we shouldn’t place much weight on attitudinal surveys. But other indicators keep popping up. In "Why Republicans (and Trump) May Still Win Big in 2020 —Despite 'Everything'," Grover Norquist outlines how the Wisconsin strategy to eviscerate public sector unions (via Act 10) provides a desired model "for Republican political dominance" because "if Act 10 is enacted in a dozen more states, the modern Democratic Party will cease to be a competitive power in American politics" (Ozy, May 28, 2017). In other words, Norquist is championing a blueprint for one-party politics. Other examples consistent with a decline in support for democracy include trends toward greater restrictions on free speech ("Under Attack," The Economist, June 4, 2016) and toward increased support for dictatorships ("America’s Foreign Policy: Embrace Thugs, Dictators and Strongmen," The Economist, June 3, 2017). 

The industrial change was a compositional one, not one in fundamental values. But if support for democracy is truly declining, this could be much more damaging for industrial democracy and for the field of employment relations. The tendency to defer to strong leaders in the name of efficiency and expediency is even stronger in business than in government. If democracy isn’t robustly supported in the political arena, it will presumably be even harder to generate support in the workplace. If achieving post-industrial workplace democracy has been a challenge, imagine the challenge of post-industrial post-democracy. 

So what's to be done? I don’t think there are any easy answers. We need to monitor these democracy-related trends, and if they are real, they need to be reversed. The industrial democracy values of employment relations continue to need champions. Whether post-industrial or not, the values and value of industrial democracy need to be explicitly recognized, not taken for granted.  

Employee Free Speech: Protections Needed in the Social Networking World, and in the Real World

As the Presidential election campaigns heat up, we are likely to see increased political conversations by employees. Unfortunately, while corporations and other organizations have free speech rights, employees do not. In fact, in at least two recent cases, employees have been fired for the simple expressive act of liking someone on Facebook, such as the employees fired by a local sheriff after they "liked" the Facebook page of his political rival. And while speech-related conflicts are perhaps as old as employment itself, the explosion of social media has created new opportunities for expression, such as liking, following, tweeting, or blogging, and therefore has increased the need for protecting employee speech.

Freedom of speech means the right to freely express opinions and views. This should go beyond the literal voicing of opinions to also include expressive conduct such as tearing up a memo in front of co-workers, putting up a poster on your office door, picketing an employer, or liking a Facebook page. The First Amendment to the U.S. Constitution protects freedom of expression by restricting governmental limitations on freedom of speech, but not organizational limitations on speech. When the First Amendment was adopted more than 200 years ago, the United States was largely a rural, agrarian society. The workplace was not a significant aspect of daily life and social interaction. The few employers that existed were very small and not very powerful. How times have changed!

The chilling effect of a lack of employee free speech is revealed by the statement of a state forester in a newspaper story on a controversial plan to allow off-road truck trails in state forests: "I think it would be inappropriate to give my real opinion. We're good employees, we do what we're told." The denial of freedom of speech rights to employees is hard to justify when organizations enjoy these protections. Either this protection for organizations stems from the importance of political discourse in the workplace or from a deeper recognition that the free exchange of ideas is an essential part of being human and is beneficial for all decision-making. In either case, we must ask the same question--given the deep importance of freedom of speech, how can we exclude employees? At the same time, the extension of freedom of expression to workers does not imply unlimited rights to undermine an employer's business or harass co-workers. As in other areas of the employment relationship, a balance is required.

Steve Befort and I have therefore proposed that in the absence of legitimate business reasons or legitimate employee performance issues, U.S. employees should be entitled to a broad freedom of speech protection. The effectiveness of the political process as well as respect for human dignity require that employees be able to exchange ideas, complain, and blog or tweet about issues of either public or private concern. We believe that this can be accomplished in a straightforward fashion with statutory protections for employee free speech in which private and public employers are not allowed to violate an employee's freedom of expression either in or out of the workplace absent a legitimate business justification for a specific limitation. If a worker who has been disciplined or discharged can make a case that this stemmed from expressive activity, then the employer must demonstrate a "substantial and legitimate business reason" for the action to be legally acceptable.

Additional reading: Stephen F. Befort and John W. Budd, Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus (Stanford, CA: Stanford University Press, 2009).