You Prevent Private Coercion With Labor Market Regulation

McArdle has joined the ranks of conservatives suddenly concerned about private coercion. In a prior post, I discussed Dougherty’s entry into that discussion and so here I want to also address McArdle’s.

Overall McArdle’s piece mostly mirrors the ones that came before it: mass outrage at someone’s opinions or statements can destroy their ability to get employment, something they need to survive. This is not entirely unlike the way a state might kill you or throw you in prison for your opinions or statements. McArdle makes sure to say private sanctions are not as bad as state sanctions, but it seems like they certainly could be as bad. After all, a private sanction that fully eliminates your ability to get income is a death sentence. You literally starve without income.

Like the other writers working in this genre, McArdle struggles to understand that there exist institutions perfectly capable of stopping this kind of thing, albeit institutions that conservatives loathe.

Mass private coercion, which even if not quite as bad, still needs to have safeguards put in place to protect individual liberty. But we have no legal or social framework for those.

The legal framework that provides safeguards to protect individuals from private coercion is called labor and employment law. Through that framework we create rules that forbid employers from terminating people for certain reasons. These reasons include discrimination on the basis of race, gender, religion, and some other categories. They include retaliation against certain worker conduct: self-organization, whistleblowing, and filing complaints with government agencies. The list goes on.

In the case of conservatives being worried that major corporations no longer share their social worldview and are thus prepared to oust them for expressing it, one very obvious solution to that problem would be to amend the Civil Rights Act to include political opinions and statements as one of the things employers cannot discriminate against.

Such a rule already exists in Denmark’s equivalent of the Civil Rights Act:

The Anti-discrimination Act prohibits direct and indirect discrimination on the labour market on grounds of:

  • Race, colour or ethnic origin
  • Religion or belief
  • Sexual orientation
  • National or social origin
  • Political opinions
  • Age
  • Disability

Or, if you want to be more comprehensive about it, you could pass a law that forbids terminations carried out for reasons other than incompetence or economic redundancy. By whitelisting the kinds of things you can fire people for, you get out ahead of having to constantly add to the blacklist of things that you cannot be fired for.

As I pointed out in my Dougherty post, these kinds of protections do more than directly block the application of coercion. Once they are well-established, they should stop efforts to apply the coercion in the first place. People try to get businesses to fire people, get web hosts to drop content, and get payment networks to cancel payment services because these entities actually have the power to do these things. Once the power is removed, it will become futile to try this stuff and so people will stop trying it. If you don’t believe me, ask yourself why nobody thinks to call the local sheriff to have the people whose opinions they don’t like arrested?

Ultimately, conservatives will never come around on the utility of basic labor market regulation, even as they somewhat comically grasp in the dark towards that obvious conclusion. This is because a major constituency of the conservative coalition is very affluent people whose interests are best served by ensuring managers have as much discretion to hire and fire as possible.

You Need Rules

This piece about Google Guy from Michael Brendan Dougherty was filed a week ago, but I only now have enough time to respond to it. In the post, Dougherty vents his frustration with the argument that conservative labor market institutions are responsible for the termination of Google Guy.

The argument he criticizes goes like this: Google was only able to fire the guy because our employment laws give Google discretion to fire anyone for any reason or no reason at all. If we had a different set of laws that only permitted Google to fire someone for incompetence or economic redundancy, this could not have happened.

Dougherty’s response is to just say that, though it is true the laws give Google the power to make this kind of move, Google only made the move because of the pressure it received from liberals. If liberals had not pressured Google, then it would not have exercised its power to dismiss him.

Dougherty sees this as a rebuttal to the argument about labor market institutions, but it is perfectly compatible with that argument. Once Dougherty’s insight is added, the synthesized argument becomes: Google only fired the guy because 1) it had the legal power to do so and 2) it received pressure to do so. If either (1) or (2) is removed, the termination does not occur.

Given this understanding of the situation, what exactly are we supposed to conclude? If you think, as Dougherty does, that the termination was unjust, what would he actually have us do about it?

Presumably, he would want a state of affairs where Google retains the power to arbitrarily dismiss anyone but people just decide not to pressure them to use that power. Though this kind of posture makes great fodder for a blog post, it is completely ridiculous in reality.

For as long as Google has the power to do something others want them to do, those others will pressure Google to exercise it. This is true broadly. Whenever you allocate power to some person, at least some people will pressure that person to use it in the way they want to see it used. And this is not a left or right thing. It is true across the board and a lot of pressure to apply power in one way or another has nothing to do with anything remotely political.

If you really want to cut this kind of thing out, you need to replace dictator-like power with rules. Rules will strip Google of the power to act and give it an ironclad reason to refuse to act. When rules are in place, Google would turn to the pressure groups and say “sorry folks, our hands are tied.” And, once the rules are well-established, it wouldn’t even have to do that because nobody would bother to pressure them in the first place, knowing it was futile. By removing the power to fire, you remove the demands to fire, killing two birds with one stone.

I understand why libertarians and management types object to rules requiring a “just cause” for termination. But I can’t figure out why more economically squishy social conservatives like Dougherty object to them. From the outside, it seems like yet another instance of social conservatives being taken for a ride by the business wing of the conservative coalition.

The Trump NLRB Will Smash the Google Guy

The Google Guy who wrote the memo about Google’s diversity efforts has provided great fodder for the take-makers. Was he doing free speech? Was Google doing political correctness? Can a non-government actor hurt free speech? These and other profound questions about the nature of liberalism are all at stake.

Curiously enough, nearly every person’s opinion about the correct application of underlying speech principles in this case can be predicted by their substantive political orientation rather than their views on liberalism per se. The same of course was true in the Kaepernick case before this one, or the Duck Dynasty case before that, or the Dixie Chicks case before that. If you were inclined towards cynicism, you might even conclude that nobody actually cares at all about abstract procedural liberalism, that society is simply an unending power game, and that nobody is actually motivated by the arguments they write for publication.

Thankfully, we don’t even have to consider any of that here because this post is not about that. It is about the Google Guy’s chances at the NLRB, a topic I have been urged to write about by multiple people.

I said on Twitter and still believe that, under current NLRB law, the Google Guy has a good chance of being reinstated for the following reasons:

  1. The Google Guy complained about working conditions to other employees, which is generally protected activity under Section 7 of the NLRA.
  2. Although the Google Guy used corporate email to communicate with other employees, the NLRB ruled in Purple Communications that you can do that.
  3. Although the Google Guy’s comments were offensive to many, they probably are not so offensive that they lose protection of the NRLA under the NLRB’s Atlantic Steel test. For example, this statement from Pier Sixty, LLC is not so offensive as to lose protection: “Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
  4. Although the NLRB has never directly confronted the issue of what to do where the way someone has engaged in protected activity could also be a violation under Title VII of the Civil Rights Act, the Administrative Law Judge in Arthur Young & Co. dismissed an employer’s attempt to use Title VII to defend its termination. The judge rejected the defense in a short footnote, saying the employer’s assertion that there may have been a Title VII violation was implausible. My best guess is that the claim this email represents a Title VII violation is similarly flimsy and thus a defense that said “we had to fire him because we needed to protect ourselves from a Title VII lawsuit” would be similarly rejected by the current members of the NLRB.

But this analysis will all change once Trump’s appointees to the NLRB come in:

  1. The Trump NLRB will want to overturn Purple Communications, which was decided in 2014 and reversed prior NLRB precedent on the question of the use of corporate email. The pre-2014 rule favored by conservatives says that corporate email systems are company property and so employees have no right to use them in ways not sanctioned by the boss.
  2. The Trump NLRB will also want to give employers as much latitude as possible in firing someone for offensive remarks, and so may even be willing to interpret Atlantic Steel to permit termination in this case. By lowering the bar for what counts as too offensive to be protected, they will make it easier for employers to find ways to get rid of union activists.
  3. Since the Title VII argument has not been directly confronted by the NLRB before, it is also conceivable that the Trump NLRB would rule that employers have the right to terminate employees engaged in protected activity where there is any colorable Title VII claim resulting from the way that activity was conducted.

In basically all cases, a conservative NLRB will want to reduce the ways workers can coordinate with one another, and increase employer discretion to terminate employees. When I raised this point on Twitter, someone said that this might be different under Trump because wouldn’t such a ruling feed into the political correctness and whatnot that he hates. And to that I can only laugh: at the end of the day, what conservatives want to do is shift power to bosses over workers, and they are really good at keeping their eyes on the prize.