Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It)

Philosopher Elizabeth Anderson writes in this 2017 book:

* Walmart prohibits employees from exchanging casual remarks while on duty, calling this “time theft.” Apple inspects the personal belongings of their retail workers, who lose up to a half – hour of unpaid time every day as they wait in line to be searched. Tyson prevents its poultry workers from using the bathroom. Some have been forced to urinate on themselves, while their supervisors mock them. About half of U.S. employees have been subject to suspicionless drug screening by their employers. Millions are pressured by their employers to support particular political causes or candidates.

* Imagine a government that assigns almost everyone a superior whom they must obey. Although superiors give most inferiors a routine to follow, there is no rule of law. Orders may be arbitrary and can change at any time, without prior notice or opportunity to appeal. Superiors are unaccountable to those they order around. They are neither elected nor removable by their inferiors. Inferiors have no right to complain in court about how they are being treated, except in a few narrowly defined cases. They also have no right to be consulted about the orders they are given.

* It may prescribe a dress code and forbid certain hairstyles. Everyone lives under surveillance, to ensure that they are complying with orders. Superiors may snoop into inferiors’ e – mail and record their phone conversations. Suspicionless searches of their bodies and personal effects may be routine. They can be ordered to submit to medical testing. The government may dictate the language spoken and forbid communication in any other language. It may forbid certain topics of discussion. People can be sanctioned for their consensual sexual activity or for their choice of spouse or life partner. They can be sanctioned for their political activity and required to engage in political activity they do not agree with.

* Most workers in the United States are governed by communist dictatorships in their work lives. Usually, those dictatorships have the legal authority to regulate workers’ off – hour lives as well — their political activities, speech, choice of sexual partner, use of recreational drugs, alcohol, smoking, and exercise. Because most employers exercise this off – hours authority irregularly, arbitrarily, and without warning, most workers are unaware of how sweeping it is. Most believe, for example, that their boss cannot fire them for their off – hours Facebook postings, or for supporting a political candidate their boss opposes. Yet only about half of U.S. workers enjoy even partial protection of their off – duty speech from employer meddling. 3 Far fewer enjoy legal protection of their speech on the job, except in narrowly defined circumstances.

* Under the Affordable Care Act (ACA), employers may impose a 30 percent premium penalty on covered workers if they do not comply with employer – imposed wellness programs, which may prescribe exercise programs, diets, and abstinence from alcohol and other substances. In accordance with this provision, Penn State University recently threatened to impose a $100 per month surcharge on workers who did not answer a health survey that included questions about their marital situation, sexual conduct, pregnancy plans, and personal finances. 13 In other cases, employer authority over workers’ off – duty lives is implicit, a by – product of the employment – at – will rule: since employers may fire workers for any or no reason, they may fire them for their sexual activities, partner choice, or any other choice workers think of as private from their employer, unless the state has enacted a law specifically forbidding employer discrimination on these grounds.

* Most workers are hired without any negotiation over the content of the employer’s authority, and without a written or oral contract specifying any limits to it. If they receive an employee handbook indicating such limits, the inclusion of a simple disclaimer (which is standard practice) is sufficient to nullify any implied contract exception to at – will employment in most states. 18 No wonder they are shocked and outraged when their boss fires them for being too attractive, 19 for failing to show up at a political rally in support of the boss’s favored political candidate, 20 even because their daughter was raped by a friend of the boss. 21

* Under the employment – at – will baseline, workers, in effect, cede all of their rights to their employers, except those specifically guaranteed to them by law, for the duration of the employment relationship.

* …managers have numerous other sanctions at their disposal besides firing and suing: they can and often do demote employees; cut their pay; assign them inconvenient hours or too many or too few hours; assign them more dangerous, dirty, menial, or grueling tasks; increase their pace of work; set them up to fail; and, within very broad limits, humiliate and harass them.

* Noncompete clauses, which bar employees from working for other employers in the same industry for a period of years, have spread from technical professions (where nearly half of employees are subject to them) to jobs such as sandwich maker, pesticide sprayer, summer camp counselor, and hairstylist. 41 While employers can no longer hold workers in bondage, they can imprison workers’ human capital. California is one of the few states that prohibit noncompete clauses.

Tyler Cowan responds:

I believe also that a business usually should have the right to fire a worker for Facebook postings or other forms of “outside the workplace” activity. For a start, a lot of workers put racist, sexist, or otherwise discomforting comments and photos into their Facebook pages. When employers fire them, very often it is to protect some notion of the freedom of the other workers . As I read Anderson, usually she frames the issues in terms of the employer versus the workers. But through markets, employers very often are internalizing the preferences of the workers as a whole. The question of workplace freedom often boils down to one set of the workers against another. In that setting, allowing for a lot of apparently arbitrary firing decisions on net may support rather than oppose worker autonomy.
Overall, I find the perspective of the employer and also the perspective of the customer to be lacking in her essay…

* Large numbers of employers go out of their way to make their companies sources of worker dignity, precisely because workers and potential workers value such freedoms and protections. The more your company is viewed positively, the easier it is to recruit talented workers.

* unemployment has major negative effects on happiness and health, far beyond what the lost income otherwise would induce. Does this not indicate that workplaces, overall, are significant sources of human dignity and fulfillment in today’s capitalist world? …The desire to attract and keep talent is the single biggest reason why companies try to create pleasant and tolerant atmospheres for their workers, and why it is rare for businesses to fire workers for their political views or their (nondestructive) off – premises activities.

* I would note that under today’s American “rule of law,” if interpreted literally, the average American commits about three felonies each day (for instance, throwing out junk mail addressed to somebody else is a federal crime punishable with up to five years in prison). 7 Of course, most of us get off scot – free for these and many other crimes. I do think we should clear away many of these laws, but in the meantime they reflect a broader point: just about all workable systems rely on embedded incentives to make them tolerable. In this case, there is very little incentive to prosecute each American for three felonies each day.

* I would ask for a closer look at company bargains with labor unions, co – ops owned and run by their workers, and worker – managed firms. Overall, the literature shows that these structures do not offer significantly greater freedom for workers, at least not in the sense that Anderson describes. One reason is that these organizational structures often are less efficient, and that interferes with their ability to give workers a better deal. Another mechanism is that when workers can get a better deal, they often prefer to take cash rather than extra freedoms or perks. Different organizational forms therefore do not seem to be a significant answer to the problems of workplace freedom, nor are unions.

* Anderson mentions the German codetermination model, whereby workers sit on the boards of corporations. The best study I know indicates that this organizational form costs about 26 percent of shareholder value because of lower productivity, 10 and furthermore a lot of that burden is born by consumers, who of course are mostly workers in another guise. And that result is for Germany, the country where this organizational model probably has been most successful. Furthermore, the codetermination model works best for midlevel manufacturing firms — which are prevalent in Germany — but does not generalize as easily to the service sector, where most workers may have less of a stake in the long – run interests of the firm.

About Luke Ford

I've written five books (see My work has been covered in the New York Times, the Los Angeles Times, and on 60 Minutes. I teach Alexander Technique in Beverly Hills (
This entry was posted in Work. Bookmark the permalink.