from The Autonomy Myth by Martha A. Fineman
Considering the transformations that have taken place in the workplace strengthens the arguments for rethinking the social contract given changes that have made the family a more tenuous institution. Relationships within the workplace are now much more tentative. However, there are important differences in the nature and direction of the changes that have taken place within the two foundational societal spaces of family and workplace. Unlike what we see in the family, transformations in the workplace, for the most part, have not been in the direction of equality. Nor has there been increased participation for workers in the benefits and burdens of their institution. Workplace relationships remain mired in status and hierarchy, and the workplace is an increasingly unstable terrain for the individual worker.
Like the marriage relationship, the employment relationship often is cast in contractual terms, and the contracting parties are seen as having equal control in the bargaining process. As with marriage, the state has the authority to intervene and impose protective or other terms on the contracting parties. Historically, however, the state has been much less likely to recognize that there is a need for protective action in regard to the employment situation. This reluctance seems inappropriate.
Even more than the power imbalance that benefits husbands in the typical marriage, employers hold most of the power in the typical employment relationship. As a result, the terms of that contract are one-sided, and they subordinate the employee to the dictates of a market that is a take-it-or-leave-it system, analogous to contracts of adhesion that consumers face. Nor has the worker been successful in stating a claim to the wealth accumulated by the employer. By contrast, the property (capital) historically held in the hands of husbands is now susceptible to claims that the wife has made a contribution toward its accumulation that is equal in value to the monetary contribution of the husband.
Laws governing the employment relationship have not even begun to unsettle the historic premise that profit goes to the capitalist, while the worker is left with whatever bargain she or he can strike with regard to wages. The laws governing labor relations certainly favor employers. Unlike their European counterparts (and absent a strong union contract or civil service protections), American workers at all levels are employed “at will.” The employment-at-will doctrine gives an employer the freedom to dismiss an employee without having to state a reason for the action. This power was modified in the mid-twentieth century by legislation that imposed some restraints on employers, barring employers from firing someone based on factors such as her or his race, gender, or religion.
This lopsided employment arrangement is argued to be contractual in nature, thus carrying with it the implication of equal bargaining power because there is a reciprocal right that accrues to the employee. The employee is also free to leave at will, and the employer cannot stop her or him. But such freedom for the individual employee is largely illusory, an abstract proposition taken out of the context of power relations and economic necessity that inform most employment relationships.
Employers can usually hire someone else easily. For the employee, however, a new job may be hard to find, particularly if the employee is older, less skilled, or trained for a specific set of tasks for which there is not a robust employment market. Increasingly, employers require truly specialized employees or those with knowledge that might prove beneficial to a competitor to sign non competition contracts as a condition of employment. These contracts further reduce the possibility of securing new work, should the at-will employee decide to leave.
From the employers’ perspective legally, the employment-at-will doctrine has generally meant there was never much security for workers. Yet assumptions about employer responsibility to employees (at least managerial and white-collar employees) and the expectation that employment would secure some basic social goods are widely perceived as having shifted in the past few decades.
A vision of progressive change in the workplace centered on the individual worker is harder to articulate because there is no consensus about an idealized form of relationship to exemplify equality between employee and employer. Such a vision was supplied in the context of marriage by the idea of an equal partnership between husband and wife, a metaphor that was transferable in part because the relationship is between two presumptively equal individuals. However, in the workplace we deal with an individual, on the other hand, and quite often a large entity or organization, on the other. Even with small businesses, there is no accepted concept of parity and partnership between employer and employee – the relationship is structured as inherently unequal.
Given this, it is difficult to advance a concept of fair bargaining that does not entail workers’ banding together.But in part because they lack proper legal supports, unions have suffered declining membership. One way to establish a more equal social arrangement would be to articulate a theory for more parity in the workplace, in both union and nonunion contexts.
The low level of unionization in the United States leaves most workers without basic equity protections. This would seem to indicate that more regulation is needed to force employers to provide workers with basic protections. Even if the ultimate objective cannot be “equality” in the partnership sense of that term, we could work toward a more just and fair set of conditions governing the individual worker. At a minimum, these conditions should include more job security, better wages, a safe and comfortable working environment, and social benefits such as insurance, thus more “sharing” for the employee in the fruits that her or his labor produces.
In addition, and most significantly for purposes of this book, the basic terms of employment must also take into account changes in the organization and functioning of the family. The workplace must be made more responsive to the needs of workers as members of families, as people who are also responsible for dependency work and who need accommodation as a result. Unfortunately, the direction of the changes now under way in the workplace will make things harder, not easier; for those who are responsible for dependency within the family.