Tomasi reserves special opprobrium for labor regulations, as of maximum hours and minimum wages, and disparages workplace democracy. Regulations of labor contracts, he claims, are forms of paternalistic domination. They deny individuals’ rights to “personally negotiate” the terms and conditions of their employment, and deny their personal “independence” as self-authoring economic agents. He concedes that in the industrial age such regulations were warranted for vulnerable factory workers, but claims they are obsolete in today’s “personalized” capitalism, which offers work options tailor-made to each individual’s preferences.
Has Tomasi bothered to check on the typical conditions of entry and work in the lowest ranks of WalMart, say, or the farming, meat processing, fast food, nursing home, and domestic cleaning industries, where millions of workers toil in the U.S.? Such workers would be lucky to get a contract of adhesion, with no terms open for negotiation, but at least with all the terms specified. What they actually get is arbitrary, authoritarian government, with open-ended terms of subjection. In the default legal regime of the workplace, employers may comprehensively govern workers’ ends and means, and minutely regulate their bodily motions. They may dictate what workers can wear. Until recently, many prohibited their workers from urinating on the job. Workers have no privacy: bosses can search their possessions, eavesdrop on phone calls (if they allow phone calls), read their emails, and spy on them in the bathroom. Workers have no freedom of speech: bosses can forbid them from complaining, speaking a different language, and talking to fellow workers about unapproved topics. They can be fired for off-hours activities such as supporting an unapproved political candidate or having a same-sex partner. No wonder 25% of American workers say their workplace is a dictatorship.
While workers at the top have bargaining power to negotiate freedom from such despotism, those at the bottom have long found this a useless tool. Many conditions affecting them, such as dust levels, assembly line speeds, and equipment safety, are not subject to individual tailoring. Others could be individually negotiated, but employers prefer to simply impose terms. Workers have therefore forged other tools to gain control over their work and off-duty lives: fair labor laws, labor unions, workplace democracy. Tomasi bizarrely supposes that they function as paternalistic constraints on workers.
By Elizabeth Anderson In Liberalism, Libertarianism, Social Justice, Symposium on Free Market Fairness
This essay is part of a symposium on John Tomasi’s Free Market Fairness.