Whether you’re speaking out on Palestine, supporting a union drive, or wearing the wrong shoes, at-will employment laws mean that your freedom of speech effectively stops at work, and your boss has the power to fire you.
A pro-Palestine protest at New York University, whose law school student body president had their job offer rescinded for issuing a statement of solidarity with Palestinians. (Fatih Aktas / Anadolu via Getty Images)
The Israeli strangulation and bombardment of Gaza has prompted waves of opposition across the world, with rallies in support of Palestine from Jakarta to Caracas and everywhere in between. In the West, where our governments and other major institutions back Israel’s actions to the hilt, protesters’ free speech rights have been under attack. The governments of France, Germany, and the United Kingdom have each prohibited or limited demonstrations. Germany has banned rallies and even invoked the struggle against antisemitism to target Jews who dissent from the murderous policies of the self-proclaimed Jewish state.
Thanks to the First Amendment, the United States has faced much less of this problem of direct state suppression — though the battle is ongoing, with courts’ records on legalizing or banning actions related to boycott, divestment and sanctions of Israel producing mixed results thus far. But the First Amendment only protects against suppression of speech by the government: it offers no protection against private power.
And private power can marginalize dissent by threatening people’s livelihoods. Some employers have terminated their employees for social media posts expressing support for Palestine, and, in one well-publicized case, a corporate law firm rescinded a work offer to a law student.
While these high-profile cases get media attention, the strongest impact on chilling dissent flies under the radar: the many unknown employees who fear losing their jobs if their views are discovered. Many have admirably spoken out nonetheless, but a huge number of people are keeping a lower profile, making their dissent less visible and less effective. Others are, no doubt, staying silent in fear.
A peculiar feature of US law makes this possible: at-will employment. With few exceptions, your employer can effectively fire you for whatever reason — your support of Palestine, your involvement in a union drive, or the color of your shirt — they damn well please.
The United States is exceptional in the world for granting employers this extraordinary power over their employees. Most employment is “at-will” — that is, across nearly the entire country, an employer can terminate a worker’s employment, in the words of one 1884 case, “for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.”
US employers don’t just have this discretion to terminate. Their power also often extends to controlling myriad aspects of their employees’ lives: how they dress, how they speak, whether and when they can use the bathroom, and their expression of political opinions on and off the clock. Courts have long ruled in favor of the employer’s prerogative on all elements of the workplace relationship.
Of course, employer power over employees is hardly unique to the United States. In capitalism, most workers must work for one boss or another to survive, so an employment contract is necessarily a contract of adhesion. But other high-income countries have laws to mitigate this power imbalance: they require employers to present good reasons for termination, they mandate severance, and some make it difficult to terminate workers in the first instance.
In the United States, by contrast, the law exacerbates the already profound power gap between employers and workers. Chris Bertram, Corey Robin, and Alex Gourevitch summarize the true significance of the US employment contract: workers “may think they’re only agreeing to do a specific job, but what they are actually agreeing to do is to obey the commands and orders of their boss.”
So when Jackson Frank was hired as a basketball writer at PhillyVoice, his contract likely did not say anything about Israel or Palestine. But when he spoke out against the 76ers’ declaration of support for Israel and expressed “solidarity with Palestine,” his employer was free to give him the axe.
One possible response to all this would be to expand free speech protections to apply to the workplace. To complement the First Amendment’s protection against state restrictions on speech, we could pass additional laws preventing employers from penalizing their employees for expressing their views (at the least on matters not directly related to work and outside the scope of your work). But this is not enough.
Many states, and public employers generally, already have such protections. But they do not necessarily protect a worker who speaks out; often, the employer is merely required to state any other potentially legitimate reason for termination.
This is part of a broader pattern in which the at-will rule “swallows its exceptions.” If an employer wants to practice racial discrimination, to retaliate against whistleblowers, or to suppress union organizing — all officially illegal acts — it is free to conjure up any half-credible pretext to justify its decision. Then the targeted employee has to lawyer up and fight the firing in the courts, which requires significant time and money and allows most employers to get away with the firings.
There are many legal limits on what an employer may do to its employees, but the employer prerogative and the at-will rule reduce these limits to mere formalities. In the case of free speech, many states do not even pretend to protect such a right: they allow an employer to openly and publicly penalize or terminate their employees based on their speech.
Another potential solution to this problem relies on unions, one of the most effective tools for fighting against employer domination. Unions regularly fight for their members to have better job security. Most union members are not at-will employees: their employers cannot terminate them without just cause.
But the story is different when we look to unions’ relationship to non–union members. For ages, many unions have viewed their role as advocating for the workers they represent, not for workers generally. Most (with notable exceptions) have not prioritized fighting for just-cause or free-speech protections for workers that they do not represent.
The long tradition of social justice unionism, recently revitalized, is a counterweight to this narrow approach. US labor law incentivizes a narrow focus on servicing bargaining unit members, but many within labor do not adopt this restricted lens. If more unions view their role as representing the working class as a whole, and not merely representing a particular bargaining unit, more will fight for protections for all workers.
If more unions view their role as representing the working class as a whole, more will fight for protections for all workers.
The next step forward is to change state employment law to shift power in the workplace. We should grant employees free speech rights in the states where they do not yet have them, and we should adopt a general set of principles ensuring that employees have due process protections in the workplace. The idea that the employer gets to make these decisions should be scrapped.
Perhaps the most important thing we should abandon is the rule that an employer is free to act against its employees first, by terminating or demoting them, and that the law can only step in afterwards in response. This puts the burden on employees to demonstrate that they were wronged, when they have less money, less time (since they must look for jobs), and often higher health insurance costs.
The burden should be on the employer to first show just cause for terminating someone. Only if they make such a showing should anyone have to suffer the painful ordeal of being unemployed.
This goal is difficult, but by no means impossible to achieve. Public employees already have just-cause protection and some free speech rights. Montana has just-cause protection, and New York has just cause for fast food workers, though both states still allow the employer to act first and then face possible legal challenge. The District of Columbia applies the principle proposed here to landlord-tenant law: it puts the burden onto the landlord to make a just-cause showing before pushing any tenant out. They could apply the same principle to the workplace.
There is a large constituency for this just-cause campaign, including liberals, socialists, and even some self-styled conservatives. Labor unions are more popular than they have been in ages, reflecting a skepticism of employer power and a sympathy with workers’ concerns.
Even the new right wing is developing its own criticisms of private power: proposing regulation of privately owned social media sites as quasi-public fora (which they are) and denouncing “cancel culture.” While there can be much quibbling about what “cancel culture” means, in most readings, it contains at least an implicit endorsement of the idea that your boss should not be able to fire you simply because of a political disagreement. While there is no shortage of incoherence or hypocrisy among the anti-”canceling” crowd, it’s not all a sham.
Many movements, not just the struggle for justice in Palestine, would benefit immensely from protecting employee jobs and freedom of speech. The past decade has seen prominent social justice protests by people with visibility and wealth, from the Hollywood actors condemning harassment in #MeToo to the NFL players taking a knee against systemic racism. They acted courageously, but their wealth and status gave them the security to speak out.
Strengthening the employee’s side of the employment contract would bring this security to everyday people and enable more expressions of collective conscience. Concrete action towards a just society, like Wayfair employees’ boycott of ICE and Google employees’ opposition to contracts with the Israel Defense Forces, would become more common and more powerful.
A free society is one where people can speak their minds without facing prison or penury, whether the issue is a small matter of daily convenience, or voicing opposition to our government’s unconditional support for mass starvation and slaughter. Right now, American workers who speak up, for Palestine or anything else, lack the protections they need and deserve — raising the question of just how free we are.Original post