Category: Published!

[This article was co-authored with Moshe Marvit.]

You know what should be canceled? The legal right of most bosses to fire you for a “good cause, bad cause, or no cause.”

That status quo is so widely accepted that some progressives don’t think twice about appealing to the authoritarian power of bosses in the pursuit of social justice: Many high profile social media campaigns have been employed to get people who are caught on video committing racist acts in their everyday lives fired from their jobs. But the desire to hold racists and sexists accountable—or the related struggles against sexism, homophobia and fascism—need not be in conflict with the principles of workplace rights.

So-called “cancel culture” is not well-defined, but its critics frequently use the moniker to refer to an activist program of making individuals who harm their neighbors or coworkers with acts of racism, sexism (and worse) accountable through exposure and de-platforming—including attempts to get them fired. Liberal critics have been more likely to raise free speech concerns than any about workers’ rights, while leftists are likelier to argue that free speech doesn’t mean freedom from the consequences of speech.

Depending on what websites you read, “cancel culture” could be portrayed as the biggest threat to society outside of a pandemic with no end in sight, a cratering economy with tens of millions of people out of work and facing eviction, and unidentified men wearing camouflage and carrying machine guns removing protestors from the streets of Portland. The terms of the debate are so problematic that      Trump used the occasion of his July 4 speech to complain of leftists that, “one of their political weapons is ‘cancel culture’—driving people from their jobs, shaming dissenters, and demanding total submission from anyone who disagrees.” Then, because the concept of irony has apparently died of complications from Covid-19, he continued, “This is the very definition of totalitarianism.”

Three years ago, we published an op-ed in the New York Times explaining how U.S. workers lack a basic right to their jobs that many workers in other countries enjoy as a legal standard. As a solution, we proposed a just cause “right to your job” law as a badly needed labor law reform. Since then, we’ve been encouraged to see the issue turn up on many progressives’ agenda.

In the debate between a right to your job and the need to de-platform bigots, some have raised concerns that without the boss’s right to fire an employee for any reason, racists and sexists would get more of a free pass at work. But this argument misses what “just cause” means. It doesn’t mean that employees cannot be fired, it means they can’t be fired for a reason that’s not related to work. Racism, sexism, harassment and other forms of conduct in and out of the workplace that make other employees feel unsafe and violate policies around respect and equity are grounds for discipline and termination—but are also subject to due process. When you look at how “just cause” plays out in areas where it exists—in the public sector, under many union contracts, or in other countries—it’s clear that racists, sexists and harassers are, in fact, disciplined.

Beyond the pale and unacceptable

American workers stand apart from those in other countries, as they’re governed by a body of judge-made law called the “at-will” employment doctrine. The doctrine is built around a sort of false mutuality, where the employee has the “liberty” to quit her job for any reason, and the employer has the right to fire her for any reason. The alternative, commonly negotiated in union contracts, is “just cause”: the principle that an employee can be fired only for a legitimate, serious, work-performance reason. In a union contract—where “just cause” is commonly found—it is usually combined with a progressive discipline system and a grievance procedure to challenge write-ups, suspensions and terminations that a worker feels was unfair.

Progressive discipline typically starts with verbal warning of an infraction or unsatisfactory performance. If, after that warning, a boss thinks that the situation has not improved, it may be followed up with a formal warning in writing, then a suspension without pay and, finally, termination. The progressive steps of discipline reflect an increasing seriousness of infraction, or inability to improve following warnings and remedial supports. Lower levels of discipline might be accompanied by new training or counseling to help the employee improve. But—and this is a key point—while some matters might go through the entire progression of discipline, other more serious infractions might go straight to a higher level of discipline.

A vocal or demonstrative racist creates a hostile work environment for her coworkers, and can be punished—or even fired—under a system of just cause and due process. Let’s look at a few real-world scenarios. Casually browsing through arbitrators’ decisions in New York, we found the case of a professionally-classified employee at a social service agency serving developmentally disabled children and families, who made racist remarks about a supervisor to a fellow worker that other co-workers overheard. Horrified, the co-workers who were subject to an unwelcome racist rant reported it to management, complaining that they were not comfortable working with such an unabashedly racist co-worker. The racist employee was fired. She brought the case to arbitration, arguing that she was not given progressive discipline and was fired without just cause.

The case went all the way up to arbitration and a neutral third-party upheld the termination. The damning judgment: “Under these circumstances, I find that the Employer acted reasonably and had just cause to terminate Grievant’s employment. In maintaining a respectful, productive and safe working environment for a diverse workforce as well as a proper atmosphere for the Employer’s clientele, the use of certain negative language is beyond the pale and is unacceptable, making progressive discipline unwarranted.”

Amy Cooper, the entitled white lady who called the cops on “an African-American” birder in the Ramble of New York’s Central Park is a slightly more complicated case. Cooper was caught on video reacting in a reflexively racist way to a Black man who just wanted to protect some birds from getting gored by an off-leash dog, threatening to unleash some unpredictable police response upon him. She was quickly doxxed, and angry internet hordes demanded she be fired from the investment firm that she worked for. The firm, Franklin Templeton didn’t hesitate to fire her to protect its own reputation. But even Amy Cooper deserved due process.

The targeted campaign against the investment firm arguably made      Cooper’s behavior in Central Park a work-related cause of damage to her employer’s business. More relevant is how uncomfortable her presence in Zoom meetings and on email CC lines would be for her co-workers in the immediate aftermath of her scandalous behavior. It would not be unreasonable for an employer to move directly to a suspension under those circumstances. It could be a suspension without pay while she cooled her heels and consulted with anyone willing to represent her in an appeal. If the employer decided that her time away from regular duties should be spent in implicit bias training or anger management counseling, then the suspension could continue some form of compensation.

If the goal of “cancel culture” is to “make racists afraid again” by making their despicable behavior carry real-world consequences, then Cooper very nearly losing her job would likely have been as effective as her actually losing her job. And under a just cause standard, she probably wouldn’t have been immediately fired for this one terrible offense.

Let’s look at one more example. In a widely-discussed piece for New York Magazine critiquing “cancel culture,” Jonathan Chait complained about the firing of a political data analyst named David Shor. In Chait’s telling, Shor tweeted a link to a paper by Princeton Professor Omar Wasow, which showed that non-violent protests increased the vote for Democrats, whereas protests viewed as violent increased the vote for Republicans. What followed was a Twitter debate between Shor and several others concerning the propriety of Shor posting the paper, wherein Shor was accused of racism and his employer was tagged. A few days later, Shor was fired from his job.

Chait uses the Shor episode, along with several others, to point to a “left-wing illiberalism” that seeks to silence people with opposing viewpoints. However, in Chait’s examples and his discussion of the problems, he almost wholly lets the employer off the hook. He engages in no discussion of at-will employment or how Shor’s employer should not have been permitted to fire him for a “superficially innocuous” tweet, but instead blames “leftists” and “the far left” for causing Shor to lose his job. Nowhere does Chait even mention that it was not the Twitter users who fired Shor, but his boss.

The problem for Chait was a “cancel culture” that included everyone except the powerful arbiter of speech who actually canceled his employment—his boss.

The cause must be just

In her 2017 book, Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It), University of Michigan professor Elizabeth Anderson argues that we think too narrowly about the power and ubiquity of “governments.” We almost exclusively focus on the power of the politicians we elect while ignoring the far more coercive power of our bosses. All workplaces have a system of government. In the United States, a unionized workplace is like a constitutional monarchy. We have some rights and can petition the King. A non-union workplace is a dictatorship. Left-wing activists need to think twice before appealing to the authoritarian power of a boss. Even if the cause of anti-racism is just, the boss’s arbitrary authority to punish his employees for what they do in their private time is a massive restriction of our civil rights.

Corporations are only temporarily embarrassed when right-wing employees spark a controversy. But corporations actually dislike left-wing ideas and are usually all-too-happy to find an excuse to quash them, leaving progressive activists far more vulnerable to campaigns of harassment targeted against their livelihoods. This can be seen in academia, where there has been a multi-year effort to police the speech of academics—on anything from the 1619 Project to the BDS movement—that’s viewed as too far left. Critics have tried to force risk-averse university administrators into firing such professors for tweets that get caught in the right-wing media echo chamber.

All workers deserve just cause protections, and we need to fight for this right as a matter of principle and self-defense. This can be done without endorsing an alliance with the boss that enshrines a broad unchecked power to fire at-will employees.

Do we have a right not to work? The answer is we don’t if Democratic leaders stubbornly try to keep the “era of big government” confined to the 20th century.

Think of a barista right now in Georgia. She’s home collecting unemployment and watching her two kids while the schools and the cafe where she worked are closed. Her boss says they’re reopening next week even as the coronavirus continues its deadly spread, but schools won’t. Governor Kemp, along with other GOP governors, is using the horrifying tactic of threatening to kick workers off unemployment insurance if they don’t return to their jobs. What should she do?

This is the stark choice many workers are left with in post-”big government” America. Return to work and face a deadly virus when intensive-care beds are already nearly full in Georgia and her kids are alone, or stay home and risk losing all income. That so much of the current tension around a healthcare crisis focuses on a patchwork of complex, underfunded state unemployment programs speaks to the dearth of programs and policy tools available to sustain people when work is scarce or conditions are miserable.

Most people’s experiences with the stinginess and arcane rules of our nation’s patchwork of unemployment systems have conditioned us to assume that we’re not eligible and that we should be discouraged from applying, even under desperate circumstances. Blame it on steady erosion of our more than 80-year-old New Deal-era safety net and the decades of attacks on the idea of welfare, capped by Bill Clinton’s era-ending declaration that accompanied the catastrophic 1996 reform bill he signed into law with support of many Congressional Democrats, including our presumptive Democratic presidential nominee.

Our current crisis has exposed two flawed premises around how we think about money: that not all workers deserve enough of it to live on and that the government is incapable of providing it. Like our flagship retirement programs for those over 65 years old, Social Security and Medicare, income replacement can and should be for everyone. Universal, or near-universal, programs like unemployment insurance and Social Security are popular for a reason. They provide much-needed sustenance and promote the idea that everyone deserves to have their basic needs met. Newer social programs have been replaced by stingier, more complicated models that means-test who “deserves” life-saving support. This breeds both unnecessary administrative burdens and resentment between voters who should be united in trying to improve conditions. According to One Fair Wage, 44% of all applicants for pandemic unemployment still haven’t received their benefits.

Worst of all, means-testing makes government programs easy targets and far less effective. Remember Aid to Families with Dependent Children (AFDC) that welfare reform killed? Sixty-eight out of 100 families received it in 1996, when it was replaced by far less generous Temporary Assistance for Needy Families (TANF). In 2018, only 22 out of 100 received aid. The same has already happened to unemployment. Only 27% of unemployed workers received benefits in 2016. The average unemployment benefit (excluding the added $600 per week stimulus), which varies wildly by state, replaces just 38% of the average paycheck. And now the system is under unprecedented strain. Already underfunded, the flood of claims has jammed up government phone lines and websites. In New York alone, hundreds of thousands of workers are still waiting for their checks.

As a way to shore up bank accounts and put food on the table, unemployment was possibly our best option under the rushed circumstances of the CARES Act. But it’s a deeply-flawed compromise that, like the Affordable Care Act before it, utilizes a means-tested patchwork that deals Republican governors in on the implementation of a policy that many of them oppose. And like private health insurance, unemployment ties a critical safety net to the whims of a brutal job market that had hardly even recovered from the 2008 crash.

Many of the unemployed workers that we, a college administrator and labor lawyer, have spoken to have been reluctant to file. One, a building trades apprentice who was still taking her 40-hour OSHA safety class and hadn’t gotten her first work assignment, assumed she would be rejected for unemployment since she wasn’t laid off from a paying job. A stagehand who is not working while live entertainment is out of the question fears that filing would give the employer where he had recently helped form a union an excuse to fire him for “job abandonment.” A lawyer who lost his well-paid job hesitated to fill out a claim form because he felt the system was for “struggling workers,” not someone like him. He worried his claim would dry up resources for people who need it the most. Why should relief for them depend on their employers or governors?

One of the few bright spots of the CARES Act is that it will boost unemployment checks by $600 until July, pushing that wage replacement rate up to 100%. And it covers independent contractors. However, many workers will still be left out or shortchanged, including those whose incomes are too low to qualify, undocumented workers, and tipped workers whose unemployment benefits will depend on whether their employers reported their tips as income.

It is clear that the federal government will need to pass multiple rounds of economic rescue packages. Democratic leaders have to drop their pathological insistence upon means-testing benefits. On one side are Trump’s big promises of across-the-board benefits (bearing his signature), on the other is Republican lawmakers’ actual hardline bargaining to shovel money to corporations while keeping benefits as stingy as possible to force people to drag their carcasses to lousy, dangerous jobs. Caught in between, this is no time to limit expectations and pose as the “more responsible” party. Key to Democratic electoral fortunes is making voters believe that the government can be a force for good in their lives, and that means making demands and fighting like Hell to win them.

Congress’ bi-partisan zeal to swish-swish over one and a half trillion dollars for the initial recovery package puts the lie to every bit of “h0w D0 y0u P@y F0r iT” scare-mongering about universal programs like Medicare for All and the Green New Deal that were trotted out during the presidential debates. The next year will likely prove that both the recovery package and Sanders’ moderate platform are wholly inadequate for solving our looming economic disaster.

Republican Senators like Lindsey Graham and Ben Sasse who publicly fretted that the enhanced unemployment benefit might be—as Bernie Sanders caustically characterized it—“a few bucks more” than their paltry wage said the quiet part out loud. If a government-sponsored income replacement program gives workers the bargaining power to refuse to work without better compensation and workplace protections, would bosses have to take their lives more seriously?

No one should have to choose between unsafe, underpaid work or poverty and starvation.  The point of unemployment insurance (and welfare) is to give workers enough bargaining power to reject unacceptable working conditions and to force bosses to make a job worth doing. We must focus on [expanding programs until there’s universal coverage. That means boosting benefits levels for essential programs like Social Security Disability and raising the federal poverty level ($26,200 for a family of four) to broaden eligibility to programs like Supplemental Nutrition Assistance Programs and Medicaid. We should also restore welfare as we knew it before Bill Clinton dismantled the program. We must also explore capping the workweek and fully subsidizing education and training for those who want it. That’s something worth leaving the house for.

[This post was co-authored with Leo Gertner and originally appeared at In These Times.]