Since the 1800s, American workers have been subject to the so-called “employment at will” doctrine, which basically holds that employers reign supreme in the workplace.
Under the employment at will doctrine, workers can be fired for any reason that does not violate a law or important public policy. Unscrupulous employers have used the policy to fire workers who have demanded their rights. The doctrine is based on an obscure 1877 treatist written iby an Albany attorney called the “Master and Servant” rule.
In recent weeks, however, social media and the Black Lives Matter (BLM) movement have shaken the employment at will doctrine to its core.
Staffers who support BLM have forced their employers to change fundamental policies – including workers at two large American companies, The New York Times and Starbucks – with breathtaking speed.
Starbucks
Earlier this month, Starbuck told employees they could not wear BLM shirts and pins because it would violate Starbucks’ dress code policy by advocating a “political, religious, or personal issue.”
According to Buzzfeed, Starbucks VP of inclusion and diversity, in a video that has since been removed, said “agitators who misconstrue the fundamental principles” of the movement could use BLM paraphernalia to “amplify divisiveness.”
Staff noted on social media that Starbucks allowed workers to wear accessories supporting marriage equality and LGBTQ rights, even giving them pins and Gay Pride shirts.
On June 12, the company did a 360-degree turnaround and said it would allow workers to wear BLM shirts and pins and even declared it would provide 250,000 Starbucks-branded BLM shirts for baristas and workers who wanted to wear them.
“Starbucks stands in solidarity with our Black partners, community and customers, and understands the desire to express themselves,” Starbucks said in a statement. “We continue to listen to our partners (employees) about how they want to take a stand for justice, while proudly wearing the green apron and standing united together.”
The New York Times
Some 800 employees at the New York Times protested when the paper published an opinion piece on the Op-Ed page on June 3 by Republican U.S. Senator Tom Cotton that called for use of military force as a last resort to quell rioting and looting in cities.
“I’ll probably get in trouble for this, but to not say something would be immoral,” tweeted Nikole Hannah-Jones, who recently won the Times a Pulitzer for her “1619 Project.” “As a black woman, as a journalist, as an American, I am deeply ashamed that we ran this.”
Other staffers began grousing on social media that Cotton’ opinion piece “puts Black @NYTimes staff in danger.”
Editorial page editor James Bennet defended the piece, stating it would “undermine the integrity and independence of The New York Times if we only published views that editors like me agreed with.”
Times Publisher A.G. Sulzberger initially agreed with Bennet but a day later criticized the essay as falling short of NYT standards and accepted Bennet’s resignation. Deputy Editorial Page Editor James Dao, who had signed off and fact-checked the Cotton piece, was demoted. “Last week we saw a significant breakdown in our editing processes, not the first we’ve experienced in recent years.” said Sulzberger.
Breakdown? I’ll say. Cotton’s opinion piece was no different from scores of other such pieces run on the Times op-ed age. It was a sad day for American journalism but, on the other hand, it showed the weakness of the employment at will doctrine.
The Times “resisters” chose to fight, not retreat; It was Sulzberger who backed down.
Employment at Will
In 1877, Albany attorney Horace Gray Wood penned the “Master and Servant” rule, which provides when a worker is hired without a definite end date, the burden of proof is on the “servant” to prove the term of employment was for one year. Over the years, Courts expanded Wood’s theory into the “employment at will” doctrine, which permits an employer to fire an employee without reasonable cause (except when the cause violates the law).
The employment at will doctrine has been exploited by ruthless employers over the years to fire workers who demanded their legal right to fair pay and overtime, sought to unionize, or who simply aged on the job or were injured. Erosion is long overdue.