The 14th Amendment to the Constitution of the United States, the “Due Process” amendment, is one of the most-litigated sections of that document. It is also the only one that specifically abrogates rights, broadly removing the right to vote or hold national office to those guilty of “participation in rebellion, or other crime.”
The due process language is better known for conveying rights to citizens. The key language in Section 1 is “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property…”
That language has been the basis of landmark Supreme Court decisions from Brown vs. Board of Education (1954 – the right for students of any race to have equal access to any public school), to Roe vs. Wade (1973 – legalizing abortion as part of a woman’s right to privacy), to Bush vs. Gore (2000 – requiring standardized vote counting between districts).
Roe vs. Wade was a landmark in constitutional law not only because of the decision on abortion, but also because the decision specifically enumerated the “right to privacy.” I am not taking a position on the wisdom of the decision, that is too volatile for my concept of a business column. The modern approach to enshrining new rights, however, begins there.
Justice Byron R. White wrote a dissenting opinion on the decision. He said: “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right…”
Since 1973, the concept of “rights” not specifically enumerated in the Constitution has become commonly accepted. The right to equal access for the handicapped is one example. The passage of the Affordable Care Act, while not specifically justified by constitutional argument, is based on the presumed right of people to access decent health care. Individuals routinely claim the right to be respected, even from strangers who have no basis for deciding.
Employees have assumed a number of rights in the workplace over the last forty years. They have become so commonplace that few employers would dream of challenging them. How many typical employment policies from just a few years ago have become laughable today?
Rules against the use of company telephones for personal calls have been eradicated with BYOD (Bring Your Own Device). Except for secure worksites I doubt anyone can imagine a business that successfully prohibits employees from personal communications during working hours.
A mandatory physician note to justify any routine absence seems pretty heavy-handed today. We accept the employee’s right to personally determine whether he or she feels well enough to work.
Workers have the right to a safe workplace. That seems logical, and few would argue it, but it didn’t exist forty years ago. I tell younger owners stories of the jobs I did (before OSHA) that they think should have landed my ex-employers in jail for the obvious physical dangers involved.
Employees’ have the right to a workplace free of harassment or discrimination. Watching a few episodes of Mad Men illustrates the pre-EEOC environment fairly well.
There are many others. The right to do work that is meaningful and enjoyable. The right to use company technology to maintain personal networks. (Yes, still being argued in many businesses, but they are losing.) The right to recognition for doing a job well. The right to clear warnings and remedial plans before being terminated.
Small business owners justifiably complain about the increasing costs of compliance with employee rights in the workplace, but most of what we accept as a requirement of being a good employer today isn’t mandated by government rules. It’s driven by competition. What kind of employees would you have if your business was unsafe, uncaring and unreasonable?
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This is a great article and absolutely accurate! I represent a number of small to medium business owners and have owned businesses for many years and I find the credibility associated with online ratings to be quite shocking. As the owner of a law firm I continually stress about having a client get angry about a result in court one day and write a nasty online review the next, especially on a site that doesn’t allow users to delete reviews.
I have one client in particular that has had to reinvent and re-brand his business a few times because of online reviews and another client that was the victim of a consumer complaint site and is spending thousands of dollars trying to resolve the claims, most of which are wholly unfounded. Yet another client had the ex-husband of a girl he went on a few dates with post that he was a pedophile and claim that his business utilized fraudulent practices and was being investigated. Sadly, those posts will probably never come down because no one wants to spend thousands of dollars suing someone who will fight a silly fight and declare bankruptcy at the end of it all. Unfortunately for one of my client’s ex-employees, he is willing to spend any amount of money to get her to remove comments she made online after he fired her.
I would be surprised if employees or employers have analyzed the potential liability associated with posts and responses, or really any content they put online about another person. It is my opinion that most businesses should have new-employee trainings about this topic so as to avoid future problems.
Business owners certainly do not often consider the impact online reviews can have on the sale of their businesses. Buyers can decrease the purchase price substantially if they have to fight bad reviews because getting enough good reviews to offset one bad review is time consuming and costly. Whether or not the review actually impacts the business is irrelevant in negotiations because a seller can’t really prove otherwise.
Something new that is happening in the law is the use of reps and warranties associated with goodwill and how future reviews impact present covenants. We will be seeing a lot of litigation in the future over poorly written or understood reps and warranties in purchase agreements.
Great article John!