They'll be bowling alone at Guardsmark tonight. The National Labor Relations Board
(NLRB) doesn't want the employees chatting it up off the job.
On June 7 the three Republican appointees on the five-member board that regulates
employer-employee relations in the United States handed down a remarkable ruling
that expands the rights of employers to muck around in their workers' lives
when they're off the job. They upheld the legality of a regulation for uniformed
employees at Guardsmark, a security guard company, that reads, "[Y]ou must
NOT . . . fraternize on duty or off duty, date or become overly friendly with
the client's employees or with co-employees."
The board majority held that the guards probably would interpret this to be
a no-dating rule, pure and simple. In her dissent, member Wilma Liebman wrote
that the rule plainly specifies both dating and fraternizing, a term that covers
a range of activities that go well beyond (or fall well short of) dating. That
certainly was the reason that a San Francisco security guard local of the Service
Employees International Union brought the case to the NLRB in the first place:
The rule as written could preclude any attempt by the guards to meet to form
a union, or even to talk about work-related issues.
Guardsmark General Counsel Gary Leviton says that the company rule isn't as
restrictive as it may sound, that it applies only to guards working for the
same client, lest their judgment of who may constitute a threat be compromised.
He adds that the company hasn't invoked the rule to thwart its workers' attempts
to unionize, and, indeed, Guardsmark and the SEIU have reached an accord on
unionizing its San Francisco employees since the complaint was first filed.
(Guardsmark also provides security guards at The Post.)
But the NLRB ruling mentions none of the caveats that applied at Guardsmark;
it is now a precedent that can be applied to a far wider range of workers in
a far wider range of situations. Indeed, as the precedent for this ruling, the
board cited an earlier decision upholding the right of a hotel to ban its employees
from fraternizing with guests. That hardly seems a parallel set of circumstances
-- closer to perpendicular, if you ask me -- and it sure doesn't inspire any
confidence that the current board will seek to limit the impact of its Guardsmark
So are there any off-duty activities that an employer can't proscribe? A number
of companies have anti-dating rules, of course, and rules against sexual harassment
have rightly become de rigueur. But by the language of this decision, what about
meeting up in a neighborhood bar after work? Going over to Ed and Joanie's for
dinner and some poker? Just how much control over our personal lives do the
citizens of the land of the free want to accord to our employers?
Drug habits off the job clearly can affect performance on the job. But I've
somehow missed the body of literature that documents how employees' joint attendance
at picnics can cause dangerous lapses at work. There is quite a body of literature
that documents the superior performance of companies whose employees are encouraged
to share their ideas with co-workers and management. But if a company elects
to deny itself that benefit by denying its workers the right to fraternize,
that's perfectly fine with the NLRB.
There's a word for the kind of employer-employee relationship that the NLRB
has just sanctioned. It's "feudal." The brave new world that emerges
from this ruling looks a lot like the bad old world where earls and dukes had
the power to control the lives of their serfs -- not just when the serfs were
out tilling the fields but when they retired in the evening to the comfort of
their hovels. But then the Bill of Rights in America has never reached very
far into the workplace. And now, the strictures on workers' rights within the
workplace are being extended without.
We Americans largely believe we live in a country that cherishes, or at minimum
strives to cherish, the rights of the individual. This is one of our foremost
mass delusions. As employees and consumers, our rights are routinely subordinated
to those of business. The reason that personal information on 50 million consumers
has been compromised, stolen or lost is that we have no effective laws -- indeed,
no federal laws at all -- protecting the privacy of our data; the opposition
from big business has doomed all serious attempts to ensure consumers' privacy.
So as we fight to bring liberal democracy to quasi-feudal backwaters in distant
lands, we might remember that the fight for individual rights in the American
workplace -- and now, beyond it -- is itself a long way from a victorious conclusion.
And thanks to the NLRB, it just got longer.