Employee Rights Movement

Public/Private Distinction

Which rights are protected depends first and foremost on the nature of the workplace. Workplaces are distinguished as either public or private depending on their relationship to the state. Public workplaces are those that are operated by and for the state—that is, governmental agencies. Private workplaces, on the other hand, are defined as those that are separate from the state—that is, privately owned corporations. Although this distinction is often hidden and arguably artificial, the classification of a public workplace versus a private workplace is instrumental in determining the rights granted to employees and the responsibilities assigned to employers.

An employee of the public workplace is protected by the Constitution and its Bill of Rights. Many of the rights protected by the Bill of Rights are considered natural rights or fundamental rights. Even so, these rights are not protected for employees in private workplaces. The private workplace is therefore void of many rights—that is, freedom of speech, due process, and so on—considered fundamental outside the workplace.

The reason for this is quite simple: The original intent of the Constitution was based on the history of the American colonies and their relationship with England. The purpose of the Bill of Rights was to protect American citizens from excessive encroachment by the government, not to isolate citizens from one another. The founders of this country focused on civil society, without knowledge of the strong presence that business would have on the future United States and without anticipating in any way the significant impact this would have on the evolution of distinctly public and private workplaces. Although the operation of these workplaces is remarkably similar, the rights granted to their respective employees remain distinct.

Employment at Will

The default rule for employment in the majority of jurisdictions in the United States is employment at will (EAW). EAW operates in the absence of an employment contract and is recognized as the ability of either [Page 700]the employee or the employer to terminate their relationship at any time, for any reason, or for no reason at all. No justification for termination is required. The only prohibition is against reasons specifically deemed illegal (i.e., whistle-blowing, in those states where whistle-blower protection is in effect, gender or racial discrimination, and so on).

Unless otherwise specified, employees in the private sector are considered employees “at will” and can be terminated at any time. Except in cases where legislation has carved out specific exceptions or in Montana, the single “right-to-work” state, employees have no job security.

Although both employers and employees are ostensibly granted equal rights according to EAW, it can be argued that these rights are equivalent but not equal. There is a significant power imbalance often at play in that it is typically easier for employers to find new employees than vice versa. Furthermore, because no reason for termination is required, employees are stripped of their rights to due process and their prior investment in their work is ignored.

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