I don't think it is obviously correct. Insofar as the US benefits from less restrictive labor laws (eg lower unemployment rate, higher productivity, etc), we should be cautious of any proposal to increase the regulatory burden in firing (and thus also hiring). For instance, this rule would seem to create an incentive for employers to pre-cancel--put in more due diligence before hiring to make sure the job applicant doesn't have any opinions or behavior that are too controversial, as they won't be able to later fire them if they turn into negative PR.
The risk of pre-cancellation seems a fair worry. My hope would be that the policy reduces the tendency of employees' personal views to be regarded a "PR issue" for their employers at all (the same way it isn't, e.g., considered a PR issue for their landlords). But I can imagine possible worlds where the policy fails for this reason.
My God! Political extremism provides you with job protection! You get a job, become a Nazi or Communist, attract attention for your activities and underperform but your boss becomes afraid of litigation if she dismisses you!
But underperforming employees can always try to synthesize a Mob to protect them from being fired. As a general rule, people shall not be forced to keep employees or make wedding cakes. Private employment shall be “at will” (with strong social insurance, Danish model) and if you want to be free to offend people, be self employed, or get tenure.
The suggestion is not to make it illegal to fire anyone who *has* a mob after them, but only to make it illegal to fire someone *because* the mob is after them. One has to establish causation. (At the limit, one could build in that the only acceptable evidence is the corporation openly admitting that they did this, e.g. in social media responses to the mob.)
I think the worry is that just as bans on firing people for gender or race or whatever make businesses avoid firing underperforming people of minority gender or race, bans on firing people for extramural speech might make businesses avoid firing underperforming people who have engaged in controversial extramural speech.
I don't know whether either effect is actually stronger than the object level discrimination that employers naturally engage in without these bans, but it's not always the case that these bans counter this underlying discrimination head-on, rather than the two interacting to produce even weirder distortions.
That’s precisely the point of tenure - to make sure you don’t measure the performance of academics on a yearly cycle when making permanent decisions like hiring and firing.
I don’t think that’s the point of cancel culture protection.
Given that establishing causality was proven extremely difficult (since Hume!), the law becomes mostly inapplicable, and then I can agree, mostly harmless.
I think you're missing the fact that such firing is very easy to mask as firing for something else. _Especially_ in a country like US with "at-will employment" (which is a fancy way of saying "no general firing protection"). And it is quite easy to pressure businesses into using such loopholes, which will make them worse off: they still need to find a way to fire the person because of the pressure, but they also have to make it so they aren't sued for it (or are sued for an acceptable fine: as the saying goes, "in corporate America, fines are just a line in the list of expenses").
Wouldn't it at least help if they cannot *openly* acquiesce to mob demands? Seems harder to demand "find some other reason to fire this employee!" (The employer could just reply, "We looked, and it turns out there is no other reason! Sorry, take it up with your local congressperson.")
It would just mean quiet firing instead of loud firing, and that quietness would soon be disrupted by the mob declaring victory anyway. (Note how Claudine Gay was fired for plagiarism, not for the original position - not that she didn't plagiarize, but realistically, no one in her entire career would look into that if not for the mob demands.)
Also, again, this is kinda moot if you can just say "sorry, we're downsizing, you don't have to come in tomorrow", as, to my knowledge, you kinda can in many jobs in US.
It surely depends how much the employer really *wants* to fire the individual in question. President of Harvard is an unusually prominent position, and there was a lot of pressure in that case. But I expect we could at least better protect random Home Depot employees from getting instantly fired before the mob moves on to their next target.
I don't know - it seems to me very plausible that when a mob comes out against a random Home Depot employee, the local branch can look into the employee, discover that they failed to properly punch their time card once six months ago, and fire them for that. Especially if it's a relatively small mob calling for the dismissal so that there's not a big paper trail for the motivation for digging up the past violation.
OH THEY WOULD. We're talking about people a sizable percentage of whom are invested enough to obsessively track that. It could bring some difference on the margin, but everything above suggests to me that the effect is greatly overestimated.
I’m personally skeptical that mobs are that persistent. Certainly some weird and obsessed people are, but canceling seems more like something you do for a week to signal your loyalty to the One True Faith, after which, most people lose interest or move onto the next opportunity to signal their loyalty.
There is no evidence known to me that the size of the mob matters much. Even if 98% of the people defect after the first week, the remaining 2% are likely to create enough pressure (as they were creating most of it anyway).
It depends on the industry. Many white collar workers could take the employer to court, which would not look good for the employer. A more likely scenario is that the employee would be encouraged to accept a generous redundancy package.
First of all I don't the idea should be to make businesses better off. But in this case I disagree. Often mobs generate counter-mobs, making it a 'damned if we do, damned if we don't' scenario for businesses. The employee leaving quietly may generate some speculation, but will better for the business than a protracted war on social media.
This decision will do next to nothing to remove the protracted war on social media. Do you think Roe vs. Wade made people who wanted "forbid abortion at conception/since six weeks" shut up and they are more active now? The opposite if anything!
And the article seems genuinely surprised that businesses don't push for it, so for that angle the part with businesses supposedly better off certainly matters (regardless of whether that is "the idea" in some abstract sense).
People might still argue on social media, but it will be hard to condemn the business for its action/inaction. That is the point. Punishing it by lets say a boycott would be futile.
As for US businesses not pushing for it. US business are generally somewhat myopic and are more likely to take a silly right wing knee jerk stance than give this proper thought.
> it will be hard to condemn the business for its action/inaction
I wonder if you have actually ever seen the mobs we're talking about. They have no problem demanding illegal and/or stupid actions (like companies breaking their contracts with Israel, for instance).
Sorry to spam the comments but I think it's an important issue and want to suggest that the problem isn't that there are some things that are beyond the pale but that cancel mobs target views that don't have that property and that we have to fix that culturally not just legally.
I think it's always been true, and probably a good thing, that anyone who voices sufficently objectionable. What seems different about cancel mobs is that they target views that our society hasn't adopted a broad consensus that they are beyond the pale. Rather, they represent an attempt to short circuit the usual process of generating social consensus by threatening those who don't comply -- or who are just unlucky. And that's why employment is particularly vulnerable -- exactly because those views aren't so universally abhorrent it renders the speaker a pariah.
And I'd argue that it's vital for our democracy that we don't merely protect jobs but actually have a consensus that it's acceptable to voice views we may deeply disagree with that aren't yet subject to a broad social repudiation. And I think that is something that requires convincing people who have motives other than performance for the most extreme parts of our society to speak up and say -- no I may dislike the view but it's important it be allowed to be voiced. If we don't do that then our political system will gradually spiral out of control since nothing pushes people to extremes as the feeling that they and their values are being disrespected.
In most cases I can think of, the harm to the employer's brand would for not firing someone that they could fire. If an employer didn't have that option, then the brand damage would possibly be contained. As you suggest, there could be an exception for someone explicitly hired for branding purposes, but this exception wouldn't necessarily cover someone hired for other reasons who is, incidentally, linked to the brand (I'm thinking of the case of rugby player Israel Folau, in Australia).
You could still create a threshold that allows an employer to fire someone for their views, but this threshold could be linked to a legal/criminal standard, rather than just public outcry. IE if someone utters illegal hate speech, they can lose their job, but if they express an unpopular opinion, they are OK.
You could actually think of this as a collective action problem: employers, collectively, don't want to be pressured by mobs to fire employees. But, for any individual employer, it's better to give in to the mob then resist them, especially if isolated. This proposed law would give employers a point to rally around and help them circle the wagons, so to speak. It's a way to force cooperation that's actually better for employers.
A lot hinges on whether people think the employer actually wants the option to fire, or is just acting under pressure.
Would this apply to former Houston Rocket's GM Daryl Morey's comments on the Hong Kong protests? These comments risked losing zillions for his team and the NBA at large.
I'd like it to. Foreign pressure on corporations is a huge threat to the free speech rights of Americans, which I consider more valuable than access to authoritarian markets. And note that the same game-theoretic arguments apply here: China only threatens corporations in this way because it's possible for their threats to have an effect. If legislation forced US companies to become transparent Parfitian "threat-ignorers", this would undermine the motivation for issuing such threats in the first place. Compare: https://www.goodthoughts.blog/p/rational-irrationality-and-blameless
In order for that to work, the govt need to be able to sue the NBA/Rockets for billions in order to disincentivize their censorship of their own employees per their own business interest. Not necessarily unworkable, but would require some thought.
Edit: You're commitment point can help here (admittedly), but wouldn't be be panacea.
I leave the game-theoretic commitment issues for another day. However, it does seem tricky to apply this when PR is a core part of an employee's job description. This would be the case for many CEOs, let alone dedicated PR staff. One can try to distinguish between speech made in (and out of) one's capacity as an employee, but that can get pretty slippery.
The general sentiment is good, but trying to formulate an actual policy sounds hard. First thing that occurred to me is that setting out conditions under which someone is victim of an attempted mob cancelling is, as far as I know, not part of any legal system in the world. Or what would count as the mens rea? The possibility of misuse if these conditions are over broad or ineffectiveness if they're quite narrow seems very high. Something more like an exapanded non-discrimnation in employment law that included political belief would probably be more likely to success. If your proposal is about tort law, I'm pretty sure people can and do sue on this kind of basis already, sometimes successfully. Second is that there seem to be clear cases where the business should be able to fire on the basis of the employee's outside-of-work activities (e.g. when there're such clauses in the employment contract [I actually don't like these much but they're at least sometimes reasonable], when keeping the employee will hurt the business). Imagine your local independent left-leaning cafe having an employee outted as a groyper, and then people decide to go to the other cafe because they don't want to have their coffee made by a groyper. Why should the business have to suffer those losses instead of the employee? Maybe something about firm owners take on risk, but if you believe that wait until you find out about how many ways business owners are shielded from risk. (Notice that this is all separate from his at-work performance). Another case is to use the outside-work behavior as sufficiently solid probabilistic evidence of it leaking into at-work behavior in a way that violates employment terms but employee observability is low so it's hard to directly catch such at-work behavior until it's much too late.
In another comment you said that you were hoping some bill like you're sketching would change cultural norms such that businesses don't face "PR issues" and the like for mob cancelled employees of theirs. Maybe I'm misunderstanding, but it seems that the hope is that such mobs would stop pressuring businesses, and or at least businesses wouldn't feel the pressure to terminate mob cancelled employees. Top-down legal attempts to change cultural norms seems wrong-headed because norm change in large civilian populations rarely happens in top down ways. I'm also not even sure there's a robust connection between cancellation mobs and the firing choices of large companies. (Small businesses are a much different story; I see many more examples happen at local levels than at the state, regional, or national level). In the recent Home Depot case, for example, did they fire that woman because if they didn't they would face some sort of probabilistic negative financial consequence, or because they see it as a way to score PR points regardless of the probabilistic changes in bottom line? The latter seems more likely than the former. Businesses will still sometimes want to terminate employees they see as a bother to their operations when a cancellation mobs comes around even if there's this law, and they'll get around it. Cancellation mobs will still come around. When most of the main parties aren't really incentivized to comply with the spirit of the proposed norm, then the norm's not gonna stick even if there's this law.
P.S. I think an issue like this reveals the ideological line between economic-driven liberals and freedom/liberty-driven liberals
People who are specifically interested in the social media aspects of the issue may enjoy this paper by Vikram Bhargava, “Firm Responses to Mass Outrage: Technology, Blame, and Employment” (2020) 163:3 J Business Ethics 379. I'd highly recommend it.
That's the problem with US-focused media, no idea that the rest of the world exists. UK also has an employment tribunal that any employee can apply to if they think their dismissal was unfair. Not perfect, but does mean employers are more likely to offer generous payouts for leaving rather than being taken to the tribunal.
As other commenters have pointed, it does seem like your employer would just try to find some other reason to fire you. One solution might be that in addition to not being able to fire your employees for their political activities or views, companies would be forbidden from publicly announcing that employees have been fired if there is currently a cancel mob after them (maybe they can make the announcement after a fixed period of time long enough for the mob to have moved on).
I feel like this is an assumption that the employer *wants* to fire the employee. If the employer actually wants to ignore the mob, then they would prefer this option, wouldn't they?
I think that in a majority of cases, the employer doesn't particularly care about firing or not firing the random employee - they just care about making the mob go away.
Do you care yo show your statistics for this? Certain in professional work, the hiring process can be lengthy and is taken very seriously. If it involves technical experience then firing someone can be costly. I certain have never heard of an employer that just doesn't care whether someone works for them or not.
why do you think only a minority of jobs require technical experience? Jobs classed as Skilled certainly are not in the minority. As for random Home Depot cashiers, not sure why you think this just about them. How would such a specific law even work? In fact I doubt any of this has much to do with Home Depot cashiers.
Let’s assume the employer wants to appease the mob but doesn’t (independently) want to fire the employee. I still think my suggestion adds value because we may worry that employers may use loopholes to appease the mob. This prevents or at least makes it harder for them to do that.
Besides, in any world where you can put together a coalition to get such a law passed I suspect you can just use said coalition to pressure most companies to adopt this as a norm.
What's bad isn't the cases where genuinely ideological companies fire employees who don't share that vision. If you work for a company trying to create and market gmo augmented rice to save lives in the third world and they find out you've become an anti-gmo activist it's not a tragedy you need to find a different employer.
The bad case is when a giant public company fires someone just because they dont want the bad press. But if you have the support to pass the law you have the support to make the firing itself the bad press without all these drawbacks.
California already has a version of this law which bars firing for political activities off the job. However, it's interpreted relatively narrowly to basically mean running for office, voting or campaigning for something on the ballot. I support that law but bdon't a broader protection isn't workable, likely would be unconstitutional and would have awful incentives (don't hire anyone with controversial views).
Incentives:
In terms of incentives the problem is that litigation is very expensive and quite uncertain. While it certainly was a necessary cost to pay (less clear about now) racial and gender discrimination laws generate massive amounts of litigation and companies take extensive actions that go well beyond what the law literally requires (in substantial part bc you can't expect HR much less the average employee to understand the legal standards).
And unlike those laws where a biased hiring practice itself would induce liability here you just basically never hire anyone who has anything sorta controversial in their social media. You might try to bar that but now it's getting absurd. Half of interview questions are aimed at determining if someone is excited about the job would you not be able to consider the fact that they expressed the view that it was a horrible thing to do?
Also anytime someone fears they will be fired their incentive is to go say something racist to make the company fear a lawsuit.
And how does a company even comply other than by preferentially keeping on publicly avowed bigots who they'd otherwise fire for performance reasons? Ok, you don't want managers to fire workers based on their views but you know what is exactly the kind of evidence you would use to prove bias in a court: the managers own statements online rabidly supporting the other side. Hell, the company couldn't even discipline the manager for saying they believed that people of the opposite party (or even that *particular* employee who gets target by a mob) should be fired because that too is going to be protected by the same law.
So in practice it doesn't even do what you want. Companies try not to hire people who might be controversial but then preferentially keep on the bigots and awful people because they can't actually meaningfully encourage managers to not engage in pretextual firings because most of the evidence that is what is happening is itself protected.
Not to mention it would be the biggest boon to litigation attornies ever.
Practicality:
For such a law to offer meaningful protection, it would need to cover pretty much all speech and some people are assholes or hold grudges. As a practical matter you couldn't run a team or be productive with an employee who loudly accuses the boss or other team members of being pedophiles or monsters (if they disclose that it's pure opinion based on public evidence it's protected opinion). Working together requires something like common purpose and that becomes very difficult it someone has made sure everyone else knows their goal is to take down the company from the inside or wants to ruin the lives of coworkers.
More generally, many corporations aren't pure profit maximizers. They may also have moral or political missions. For instance, someone might form a company to create movies to share the gospels and they are (and should) have first amendment associative rights to hire people who agree with that mission. And even when a company is a pure profit maximizer a big part of deciding who should stay on during job cuts is going to be an estimate of who will be the biggest asset and part of that is going to be how much they believe in the mission of the company especially at startups.
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Look, I like that as a norm but some things have to be norms and not laws.
As noted in some of the other replies, I'd prefer a relatively 'light touch' version of the law where it basically just prevents companies from *openly* firing people in response to cancel mobs, e.g. by announcing that they'd done so on social media. (So, build in a strong presumption that quiet firing for any facially reasonable reason is fine, and can't be proven discriminatory.) It seems like that very light restriction could do a fair bit of good, with no obvious downsides.
But won't that just lead to posts like "We understand that many people were upset about our employee John Smith's posts last month and we'd like to emphasize his views don't reflect our values as a company and that -- after a recent performance review -- Mr. Smith no longer works for us. Unfortunately, for privacy reasons we can't comment any further about the details of Mr. Smith's termination."
Like you are stuck in a bind here. To work your law needs to make it actually true that companies continue to employ individuals with views they find reprehensible so it doesn't constitute an implicit endorsement but that's not achieved if you allow pretextual firings"
Even if you ban merely publicly acknowledging someone no longer works for you -- seems hard as you don't want to prevent companies from responding to boring press inquiries about who is leading their X group -- you'll still just have companies firing the person pretextually and leaking that fact to reporters/activists with the same effect.
Basically, if it doesn't cover "wink wink" firings it's not really useful and if it does you have all the issues about litigating that line.
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Besides, this seems like something we can't solve with law but need to solve with norms.
Laws can jump-start norms (cf. acceptance of gay marriage). The idea is that we could expect less pressure on companies to fire workers for their personal views if it is literally not legal for them to comply with such a demand.
You suggest that "you'll still just have companies firing the person pretextually and leaking that fact to reporters/activists with the same effect." But why expect that?
Two countervailing factors to consider: (1) going to the trouble to find someone to "leak" the info to requires extra work on the part of the company. In most cases I would expect them to take the path of least resistance. Right now, that's complying with the mob. Under the new policy, it's easier to just ignore the mob (point them to the law and disclaim any responsibility for their employees' personal views).
(2) You're holding fixed that having an employee with bad personal views reflects badly on the company's values. But such a "reflection" only makes sense when it's transparently the company's *choice* to keep them on. The law changes the default appearance here, and so could very naturally be expected to change norms here. (Compare: nobody treats a tenant's personal views as reflecting on their landlord. But that might well change in a world where leases could be broken "at will". Even if most landlords could find a pretext to break the lease if necessary, the sheer fact that they'd have to find some other pretext may help to relieve any pressure towards their doing so. It's no longer a deliberate "choice" to keep on the problematic tenant. It's the legally privileged default.)
Richard Chappell proposes a law to ban firing people because a public mob is going after then.
A lot of commentors are objecting that this is bad because at will employment increases efficiency, ad this is a step away from at will employment. It seems to me that there are strong reasons to think that even if at will employment is good in general, a narrow protection against mobbing might still be warranted, but lets grant, for the sake of argument, that this argument Let's also grant, for the sake of argument that at will employment significantly increases GDP.
Being unjustly fired is:
-Extremely common
-Extremely dangerous with respect to health outcomes and suicide
-Has an extreme impact on measured welfare
-A perpetual fear, and thus a harm even to those who aren't fired
The literature on subjective wellbeing, suicide, physiological stress, anxiety and other mental illnesses and firing and job insecurity is big and really interesting. Check it out. And of course, being fired is followed by unemployment, which has huge personal and financial costs.
I strongly suspect that it makes up a large portion of the avoidable part of the misery of the United States, and thus there is enormous value to workers in not being employed 'at will'.
So why don't they negotiate this in their contracts? Or why don't businesses offer secure employment as an enticement? Signalling problems. A worker who is demanding protections against being quickly fired is- rightly or wrongly- seen as giving a signal that their performance might not be up to scratch. Similarly, if businesses offer security as an enticement, they fear that all their applicants will be that portion of the population uniquely afraid of being fired.
Outside it being in the contract, it is also extremely difficult to pick employers that don't arbitrarily fire people, given that HR matters are usually among the most secret in a company- thus there are information asymmetry problems.
Given the ubiquity of results demonstrating that being fired is *terrible* for the firee, I'm inclined to think abolishing at will employment is straight forwardly a good
I don't think it is obviously correct. Insofar as the US benefits from less restrictive labor laws (eg lower unemployment rate, higher productivity, etc), we should be cautious of any proposal to increase the regulatory burden in firing (and thus also hiring). For instance, this rule would seem to create an incentive for employers to pre-cancel--put in more due diligence before hiring to make sure the job applicant doesn't have any opinions or behavior that are too controversial, as they won't be able to later fire them if they turn into negative PR.
The risk of pre-cancellation seems a fair worry. My hope would be that the policy reduces the tendency of employees' personal views to be regarded a "PR issue" for their employers at all (the same way it isn't, e.g., considered a PR issue for their landlords). But I can imagine possible worlds where the policy fails for this reason.
I don't think US unemployment rates are much lower over the long term than comparable nations with worker protection laws.
and of course we should get rid of academic tenure so that universities can achieve higher productivity... or am I missing something here?
My God! Political extremism provides you with job protection! You get a job, become a Nazi or Communist, attract attention for your activities and underperform but your boss becomes afraid of litigation if she dismisses you!
Presumably the legislation could be written in such a way as to allow a general presumption that firings can occur for other reasons.
The main thing is to prevent employers from openly responding to twitter posts with "OK, they've been fired now!"
But underperforming employees can always try to synthesize a Mob to protect them from being fired. As a general rule, people shall not be forced to keep employees or make wedding cakes. Private employment shall be “at will” (with strong social insurance, Danish model) and if you want to be free to offend people, be self employed, or get tenure.
The suggestion is not to make it illegal to fire anyone who *has* a mob after them, but only to make it illegal to fire someone *because* the mob is after them. One has to establish causation. (At the limit, one could build in that the only acceptable evidence is the corporation openly admitting that they did this, e.g. in social media responses to the mob.)
I think the worry is that just as bans on firing people for gender or race or whatever make businesses avoid firing underperforming people of minority gender or race, bans on firing people for extramural speech might make businesses avoid firing underperforming people who have engaged in controversial extramural speech.
I don't know whether either effect is actually stronger than the object level discrimination that employers naturally engage in without these bans, but it's not always the case that these bans counter this underlying discrimination head-on, rather than the two interacting to produce even weirder distortions.
...and of course tenure avoids firing underperforming academics...
That’s precisely the point of tenure - to make sure you don’t measure the performance of academics on a yearly cycle when making permanent decisions like hiring and firing.
I don’t think that’s the point of cancel culture protection.
Given that establishing causality was proven extremely difficult (since Hume!), the law becomes mostly inapplicable, and then I can agree, mostly harmless.
I think you're missing the fact that such firing is very easy to mask as firing for something else. _Especially_ in a country like US with "at-will employment" (which is a fancy way of saying "no general firing protection"). And it is quite easy to pressure businesses into using such loopholes, which will make them worse off: they still need to find a way to fire the person because of the pressure, but they also have to make it so they aren't sued for it (or are sued for an acceptable fine: as the saying goes, "in corporate America, fines are just a line in the list of expenses").
Wouldn't it at least help if they cannot *openly* acquiesce to mob demands? Seems harder to demand "find some other reason to fire this employee!" (The employer could just reply, "We looked, and it turns out there is no other reason! Sorry, take it up with your local congressperson.")
It would just mean quiet firing instead of loud firing, and that quietness would soon be disrupted by the mob declaring victory anyway. (Note how Claudine Gay was fired for plagiarism, not for the original position - not that she didn't plagiarize, but realistically, no one in her entire career would look into that if not for the mob demands.)
Also, again, this is kinda moot if you can just say "sorry, we're downsizing, you don't have to come in tomorrow", as, to my knowledge, you kinda can in many jobs in US.
It surely depends how much the employer really *wants* to fire the individual in question. President of Harvard is an unusually prominent position, and there was a lot of pressure in that case. But I expect we could at least better protect random Home Depot employees from getting instantly fired before the mob moves on to their next target.
I don't know - it seems to me very plausible that when a mob comes out against a random Home Depot employee, the local branch can look into the employee, discover that they failed to properly punch their time card once six months ago, and fire them for that. Especially if it's a relatively small mob calling for the dismissal so that there's not a big paper trail for the motivation for digging up the past violation.
Quiet firing seems like a win, no? I would assume that there would be fewer cancel mobs if the mob did not know that the cancelled was fired.
OH THEY WOULD. We're talking about people a sizable percentage of whom are invested enough to obsessively track that. It could bring some difference on the margin, but everything above suggests to me that the effect is greatly overestimated.
I’m personally skeptical that mobs are that persistent. Certainly some weird and obsessed people are, but canceling seems more like something you do for a week to signal your loyalty to the One True Faith, after which, most people lose interest or move onto the next opportunity to signal their loyalty.
There is no evidence known to me that the size of the mob matters much. Even if 98% of the people defect after the first week, the remaining 2% are likely to create enough pressure (as they were creating most of it anyway).
It depends on the industry. Many white collar workers could take the employer to court, which would not look good for the employer. A more likely scenario is that the employee would be encouraged to accept a generous redundancy package.
And this scenario certainly doesn't leave _businesses_ better off, as the article argues.
First of all I don't the idea should be to make businesses better off. But in this case I disagree. Often mobs generate counter-mobs, making it a 'damned if we do, damned if we don't' scenario for businesses. The employee leaving quietly may generate some speculation, but will better for the business than a protracted war on social media.
This decision will do next to nothing to remove the protracted war on social media. Do you think Roe vs. Wade made people who wanted "forbid abortion at conception/since six weeks" shut up and they are more active now? The opposite if anything!
And the article seems genuinely surprised that businesses don't push for it, so for that angle the part with businesses supposedly better off certainly matters (regardless of whether that is "the idea" in some abstract sense).
People might still argue on social media, but it will be hard to condemn the business for its action/inaction. That is the point. Punishing it by lets say a boycott would be futile.
As for US businesses not pushing for it. US business are generally somewhat myopic and are more likely to take a silly right wing knee jerk stance than give this proper thought.
> it will be hard to condemn the business for its action/inaction
I wonder if you have actually ever seen the mobs we're talking about. They have no problem demanding illegal and/or stupid actions (like companies breaking their contracts with Israel, for instance).
Sorry to spam the comments but I think it's an important issue and want to suggest that the problem isn't that there are some things that are beyond the pale but that cancel mobs target views that don't have that property and that we have to fix that culturally not just legally.
I think it's always been true, and probably a good thing, that anyone who voices sufficently objectionable. What seems different about cancel mobs is that they target views that our society hasn't adopted a broad consensus that they are beyond the pale. Rather, they represent an attempt to short circuit the usual process of generating social consensus by threatening those who don't comply -- or who are just unlucky. And that's why employment is particularly vulnerable -- exactly because those views aren't so universally abhorrent it renders the speaker a pariah.
And I'd argue that it's vital for our democracy that we don't merely protect jobs but actually have a consensus that it's acceptable to voice views we may deeply disagree with that aren't yet subject to a broad social repudiation. And I think that is something that requires convincing people who have motives other than performance for the most extreme parts of our society to speak up and say -- no I may dislike the view but it's important it be allowed to be voiced. If we don't do that then our political system will gradually spiral out of control since nothing pushes people to extremes as the feeling that they and their values are being disrespected.
I like this idea in theory, but I'd like to hear an expert on comparative employment law discuss the best way to do something like this.
I think you are perhaps onto something here.
In most cases I can think of, the harm to the employer's brand would for not firing someone that they could fire. If an employer didn't have that option, then the brand damage would possibly be contained. As you suggest, there could be an exception for someone explicitly hired for branding purposes, but this exception wouldn't necessarily cover someone hired for other reasons who is, incidentally, linked to the brand (I'm thinking of the case of rugby player Israel Folau, in Australia).
You could still create a threshold that allows an employer to fire someone for their views, but this threshold could be linked to a legal/criminal standard, rather than just public outcry. IE if someone utters illegal hate speech, they can lose their job, but if they express an unpopular opinion, they are OK.
You could actually think of this as a collective action problem: employers, collectively, don't want to be pressured by mobs to fire employees. But, for any individual employer, it's better to give in to the mob then resist them, especially if isolated. This proposed law would give employers a point to rally around and help them circle the wagons, so to speak. It's a way to force cooperation that's actually better for employers.
A lot hinges on whether people think the employer actually wants the option to fire, or is just acting under pressure.
Would this apply to former Houston Rocket's GM Daryl Morey's comments on the Hong Kong protests? These comments risked losing zillions for his team and the NBA at large.
https://en.wikipedia.org/wiki/Daryl_Morey#Twitter_comments_on_Hong_Kong
I'd like it to. Foreign pressure on corporations is a huge threat to the free speech rights of Americans, which I consider more valuable than access to authoritarian markets. And note that the same game-theoretic arguments apply here: China only threatens corporations in this way because it's possible for their threats to have an effect. If legislation forced US companies to become transparent Parfitian "threat-ignorers", this would undermine the motivation for issuing such threats in the first place. Compare: https://www.goodthoughts.blog/p/rational-irrationality-and-blameless
In order for that to work, the govt need to be able to sue the NBA/Rockets for billions in order to disincentivize their censorship of their own employees per their own business interest. Not necessarily unworkable, but would require some thought.
Edit: You're commitment point can help here (admittedly), but wouldn't be be panacea.
I leave the game-theoretic commitment issues for another day. However, it does seem tricky to apply this when PR is a core part of an employee's job description. This would be the case for many CEOs, let alone dedicated PR staff. One can try to distinguish between speech made in (and out of) one's capacity as an employee, but that can get pretty slippery.
I agree -- I think I mention in the OP that some exceptions may make sense in light of this.
The general sentiment is good, but trying to formulate an actual policy sounds hard. First thing that occurred to me is that setting out conditions under which someone is victim of an attempted mob cancelling is, as far as I know, not part of any legal system in the world. Or what would count as the mens rea? The possibility of misuse if these conditions are over broad or ineffectiveness if they're quite narrow seems very high. Something more like an exapanded non-discrimnation in employment law that included political belief would probably be more likely to success. If your proposal is about tort law, I'm pretty sure people can and do sue on this kind of basis already, sometimes successfully. Second is that there seem to be clear cases where the business should be able to fire on the basis of the employee's outside-of-work activities (e.g. when there're such clauses in the employment contract [I actually don't like these much but they're at least sometimes reasonable], when keeping the employee will hurt the business). Imagine your local independent left-leaning cafe having an employee outted as a groyper, and then people decide to go to the other cafe because they don't want to have their coffee made by a groyper. Why should the business have to suffer those losses instead of the employee? Maybe something about firm owners take on risk, but if you believe that wait until you find out about how many ways business owners are shielded from risk. (Notice that this is all separate from his at-work performance). Another case is to use the outside-work behavior as sufficiently solid probabilistic evidence of it leaking into at-work behavior in a way that violates employment terms but employee observability is low so it's hard to directly catch such at-work behavior until it's much too late.
In another comment you said that you were hoping some bill like you're sketching would change cultural norms such that businesses don't face "PR issues" and the like for mob cancelled employees of theirs. Maybe I'm misunderstanding, but it seems that the hope is that such mobs would stop pressuring businesses, and or at least businesses wouldn't feel the pressure to terminate mob cancelled employees. Top-down legal attempts to change cultural norms seems wrong-headed because norm change in large civilian populations rarely happens in top down ways. I'm also not even sure there's a robust connection between cancellation mobs and the firing choices of large companies. (Small businesses are a much different story; I see many more examples happen at local levels than at the state, regional, or national level). In the recent Home Depot case, for example, did they fire that woman because if they didn't they would face some sort of probabilistic negative financial consequence, or because they see it as a way to score PR points regardless of the probabilistic changes in bottom line? The latter seems more likely than the former. Businesses will still sometimes want to terminate employees they see as a bother to their operations when a cancellation mobs comes around even if there's this law, and they'll get around it. Cancellation mobs will still come around. When most of the main parties aren't really incentivized to comply with the spirit of the proposed norm, then the norm's not gonna stick even if there's this law.
P.S. I think an issue like this reveals the ideological line between economic-driven liberals and freedom/liberty-driven liberals
People who are specifically interested in the social media aspects of the issue may enjoy this paper by Vikram Bhargava, “Firm Responses to Mass Outrage: Technology, Blame, and Employment” (2020) 163:3 J Business Ethics 379. I'd highly recommend it.
People interested in this topic might find something of use in a recent paper of mine that touches on the it and related topics, available here, open access: https://www.cambridge.org/core/journals/canadian-journal-of-law-and-jurisprudence/article/thats-none-of-your-business-on-the-limits-of-employer-control-of-employee-behavior-outside-of-working-hours/E720E9EF18BC89DFA6E4643CDDA15A49
I am surprised that nobody has yet mentioned that Britain already has such a law. It was relevant to the case of Maya Forstater: https://www.theguardian.com/society/2022/jul/06/maya-forstater-was-discriminated-against-over-gender-critical-beliefs-tribunal-rules
That's the problem with US-focused media, no idea that the rest of the world exists. UK also has an employment tribunal that any employee can apply to if they think their dismissal was unfair. Not perfect, but does mean employers are more likely to offer generous payouts for leaving rather than being taken to the tribunal.
As other commenters have pointed, it does seem like your employer would just try to find some other reason to fire you. One solution might be that in addition to not being able to fire your employees for their political activities or views, companies would be forbidden from publicly announcing that employees have been fired if there is currently a cancel mob after them (maybe they can make the announcement after a fixed period of time long enough for the mob to have moved on).
Yeah, that sounds helpful!
I feel like this is an assumption that the employer *wants* to fire the employee. If the employer actually wants to ignore the mob, then they would prefer this option, wouldn't they?
I think that in a majority of cases, the employer doesn't particularly care about firing or not firing the random employee - they just care about making the mob go away.
Do you care yo show your statistics for this? Certain in professional work, the hiring process can be lengthy and is taken very seriously. If it involves technical experience then firing someone can be costly. I certain have never heard of an employer that just doesn't care whether someone works for them or not.
I thought the point here was for random Home Depot cashiers and the like, not particularly for the minority of jobs that require technical experience.
why do you think only a minority of jobs require technical experience? Jobs classed as Skilled certainly are not in the minority. As for random Home Depot cashiers, not sure why you think this just about them. How would such a specific law even work? In fact I doubt any of this has much to do with Home Depot cashiers.
Let’s assume the employer wants to appease the mob but doesn’t (independently) want to fire the employee. I still think my suggestion adds value because we may worry that employers may use loopholes to appease the mob. This prevents or at least makes it harder for them to do that.
Maybe try…unionizing?
Besides, in any world where you can put together a coalition to get such a law passed I suspect you can just use said coalition to pressure most companies to adopt this as a norm.
What's bad isn't the cases where genuinely ideological companies fire employees who don't share that vision. If you work for a company trying to create and market gmo augmented rice to save lives in the third world and they find out you've become an anti-gmo activist it's not a tragedy you need to find a different employer.
The bad case is when a giant public company fires someone just because they dont want the bad press. But if you have the support to pass the law you have the support to make the firing itself the bad press without all these drawbacks.
California already has a version of this law which bars firing for political activities off the job. However, it's interpreted relatively narrowly to basically mean running for office, voting or campaigning for something on the ballot. I support that law but bdon't a broader protection isn't workable, likely would be unconstitutional and would have awful incentives (don't hire anyone with controversial views).
Incentives:
In terms of incentives the problem is that litigation is very expensive and quite uncertain. While it certainly was a necessary cost to pay (less clear about now) racial and gender discrimination laws generate massive amounts of litigation and companies take extensive actions that go well beyond what the law literally requires (in substantial part bc you can't expect HR much less the average employee to understand the legal standards).
And unlike those laws where a biased hiring practice itself would induce liability here you just basically never hire anyone who has anything sorta controversial in their social media. You might try to bar that but now it's getting absurd. Half of interview questions are aimed at determining if someone is excited about the job would you not be able to consider the fact that they expressed the view that it was a horrible thing to do?
Also anytime someone fears they will be fired their incentive is to go say something racist to make the company fear a lawsuit.
And how does a company even comply other than by preferentially keeping on publicly avowed bigots who they'd otherwise fire for performance reasons? Ok, you don't want managers to fire workers based on their views but you know what is exactly the kind of evidence you would use to prove bias in a court: the managers own statements online rabidly supporting the other side. Hell, the company couldn't even discipline the manager for saying they believed that people of the opposite party (or even that *particular* employee who gets target by a mob) should be fired because that too is going to be protected by the same law.
So in practice it doesn't even do what you want. Companies try not to hire people who might be controversial but then preferentially keep on the bigots and awful people because they can't actually meaningfully encourage managers to not engage in pretextual firings because most of the evidence that is what is happening is itself protected.
Not to mention it would be the biggest boon to litigation attornies ever.
Practicality:
For such a law to offer meaningful protection, it would need to cover pretty much all speech and some people are assholes or hold grudges. As a practical matter you couldn't run a team or be productive with an employee who loudly accuses the boss or other team members of being pedophiles or monsters (if they disclose that it's pure opinion based on public evidence it's protected opinion). Working together requires something like common purpose and that becomes very difficult it someone has made sure everyone else knows their goal is to take down the company from the inside or wants to ruin the lives of coworkers.
More generally, many corporations aren't pure profit maximizers. They may also have moral or political missions. For instance, someone might form a company to create movies to share the gospels and they are (and should) have first amendment associative rights to hire people who agree with that mission. And even when a company is a pure profit maximizer a big part of deciding who should stay on during job cuts is going to be an estimate of who will be the biggest asset and part of that is going to be how much they believe in the mission of the company especially at startups.
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Look, I like that as a norm but some things have to be norms and not laws.
As noted in some of the other replies, I'd prefer a relatively 'light touch' version of the law where it basically just prevents companies from *openly* firing people in response to cancel mobs, e.g. by announcing that they'd done so on social media. (So, build in a strong presumption that quiet firing for any facially reasonable reason is fine, and can't be proven discriminatory.) It seems like that very light restriction could do a fair bit of good, with no obvious downsides.
But won't that just lead to posts like "We understand that many people were upset about our employee John Smith's posts last month and we'd like to emphasize his views don't reflect our values as a company and that -- after a recent performance review -- Mr. Smith no longer works for us. Unfortunately, for privacy reasons we can't comment any further about the details of Mr. Smith's termination."
Like you are stuck in a bind here. To work your law needs to make it actually true that companies continue to employ individuals with views they find reprehensible so it doesn't constitute an implicit endorsement but that's not achieved if you allow pretextual firings"
Even if you ban merely publicly acknowledging someone no longer works for you -- seems hard as you don't want to prevent companies from responding to boring press inquiries about who is leading their X group -- you'll still just have companies firing the person pretextually and leaking that fact to reporters/activists with the same effect.
Basically, if it doesn't cover "wink wink" firings it's not really useful and if it does you have all the issues about litigating that line.
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Besides, this seems like something we can't solve with law but need to solve with norms.
Laws can jump-start norms (cf. acceptance of gay marriage). The idea is that we could expect less pressure on companies to fire workers for their personal views if it is literally not legal for them to comply with such a demand.
You suggest that "you'll still just have companies firing the person pretextually and leaking that fact to reporters/activists with the same effect." But why expect that?
Two countervailing factors to consider: (1) going to the trouble to find someone to "leak" the info to requires extra work on the part of the company. In most cases I would expect them to take the path of least resistance. Right now, that's complying with the mob. Under the new policy, it's easier to just ignore the mob (point them to the law and disclaim any responsibility for their employees' personal views).
(2) You're holding fixed that having an employee with bad personal views reflects badly on the company's values. But such a "reflection" only makes sense when it's transparently the company's *choice* to keep them on. The law changes the default appearance here, and so could very naturally be expected to change norms here. (Compare: nobody treats a tenant's personal views as reflecting on their landlord. But that might well change in a world where leases could be broken "at will". Even if most landlords could find a pretext to break the lease if necessary, the sheer fact that they'd have to find some other pretext may help to relieve any pressure towards their doing so. It's no longer a deliberate "choice" to keep on the problematic tenant. It's the legally privileged default.)
Richard Chappell proposes a law to ban firing people because a public mob is going after then.
A lot of commentors are objecting that this is bad because at will employment increases efficiency, ad this is a step away from at will employment. It seems to me that there are strong reasons to think that even if at will employment is good in general, a narrow protection against mobbing might still be warranted, but lets grant, for the sake of argument, that this argument Let's also grant, for the sake of argument that at will employment significantly increases GDP.
Being unjustly fired is:
-Extremely common
-Extremely dangerous with respect to health outcomes and suicide
-Has an extreme impact on measured welfare
-A perpetual fear, and thus a harm even to those who aren't fired
The literature on subjective wellbeing, suicide, physiological stress, anxiety and other mental illnesses and firing and job insecurity is big and really interesting. Check it out. And of course, being fired is followed by unemployment, which has huge personal and financial costs.
I strongly suspect that it makes up a large portion of the avoidable part of the misery of the United States, and thus there is enormous value to workers in not being employed 'at will'.
So why don't they negotiate this in their contracts? Or why don't businesses offer secure employment as an enticement? Signalling problems. A worker who is demanding protections against being quickly fired is- rightly or wrongly- seen as giving a signal that their performance might not be up to scratch. Similarly, if businesses offer security as an enticement, they fear that all their applicants will be that portion of the population uniquely afraid of being fired.
Outside it being in the contract, it is also extremely difficult to pick employers that don't arbitrarily fire people, given that HR matters are usually among the most secret in a company- thus there are information asymmetry problems.
Given the ubiquity of results demonstrating that being fired is *terrible* for the firee, I'm inclined to think abolishing at will employment is straight forwardly a good