Your Rights
Your Government Lets Your Boss Take Them Away
I have a guest stack today for you! This was written by Kim Reifel,1 a former business journalist who spent most of her professional career in companies that provide talent-related data and consulting services to employers around the world. Today, she is focused on issues related to the American workplace and the state of workers’ rights.
I am delighted that she offered to contribute this excellent reflection on ways in which many of our employers have conditioned us to accept the loss of our Constitutional rights.
I hope she will elaborate on this topic more in the months to come!
Ongoing federal government violations of the Constitutional rights of U.S. citizens and residents shock the conscience. Many question (and fear) whether those violations will become more pervasive.
I question (and fear) that as well. But I also question whether Americans have ever had such rights, fully and functionally, in the way we tend to assume we have.
Americans’ Constitutional rights of speech, privacy, association, due process, etc. are largely disanimated or surrendered whole as a condition of being employed. Workers are thus prevented from realizing the fair value of their labor, and therefore their Constitutional rights are of greatly diminished value to them.
In the U.S., what the Constitution grants us as rights of citizenship our employers take away.
This systemic separation of U.S. citizens from their Constitutional rights is an unappreciated driver of the stark democratic (and social) decay we’ve experienced in recent years.
It is time for America to step more fully into its promise as a seat of democratic freedom, in which the rights we are granted as citizens inure to our benefit as workers.
Our Rights and Their Role in Our Lives
Constitutional rights are rights citizens have with respect to their government. First Amendment speech rights, for example, protect you from imprisonment or asset seizure if your speech offends those in power.
These rights have been reasonably durable over the country’s history. In America, it has not been common for citizens to be thrown in prison or fined because of things they’ve said (so far).
To be sure, these rights have been applied discriminatorily at times, though they have also tended toward expansion and greater inclusion over the years.
Yet when we talk about those rights, it’s mostly in terms of the values they represent, not in terms of the role they play in making our lives better, healthier, wealthier, and more secure. Who’s ever heard a politician focus on how the freedom to speak your mind inures, directly and specifically, to your benefit?
But just because we don’t talk about them much doesn’t mean they aren’t important. If people benefit from such freedoms, it’s important that they understand, in great detail, how their rights help them lead better lives.
Delivering a “better life” is the point of any government, and certainly the basis upon which democracy asserts its superiority: it’s supposed to deliver better results to its citizens than a monarchy or a dictatorship precisely because it is more equal and more free.
One reason our rights matter is that the state, like all states, has a monopoly on violence and, as such (and for other reasons), is far more powerful than individuals. It can imprison you, show up with guns, take all your stuff, etc.
Individual rights in the context of government monopoly on violence (or asset seizure or imprisonment) are the only real way we have to counterbalance that power. Balancing that power is what democratic principles, based on equality, are all about. In American democracy, the government serves at the behest of citizens, not the other way around. Our rights are, again ostensibly, both evidence and insurance of this.
Rights are also the reward of participation. Participation is central to a thriving democracy, as we are seeing in dramatic fashion today. Democracies are neither inevitable nor self-sustaining—fewer of them are in the world today than 20 years ago—and they require high levels of participation in order to survive and self-renew.
There are many ways to demonstrate how disengaged Americans are from their political systems, but perhaps the most straightforward is that more people opted out of voting altogether than voted for either of the Democratic or Republican candidates last year.
This is a bracing fact in any election year, and has long been the case, but it is especially bracing when one party’s candidate is a multiple felon and insurrectionist who has promised to end elections.
It’s reasonable to assume that so many Americans have opted out of participation because the value of their rights, in real terms, is so negligible to them. Why are they negligible to them?
In large part it’s because those rights don’t exist in the very sizeable corner of society where we need them most if we want to build a happy, thriving, and secure life: the workplace.
How Do Employers Destroy Rights?
On one level, it’s easy to understand, plain to see, and wildly overt: workplaces are not democracies. They are, in the estimation of some academics who study this topic and even of the executives who make a lot of money by holding enormous power over workers, dictatorships.
There is no pretense in American workplaces that workers have rights that mirror those provided them through the Constitution. There have been legal protections against unsafe working conditions, rules around overtime pay, rules against harassment, etc., but companies can and routinely do, for example, fire people for the things they say. The First Amendment doesn’t protect us from employers.2
There is no pretense in American workplaces that workers have rights that mirror those provided them through the Constitution.
Companies also have broad rights to violate worker privacy protections, undermine association protections and deny due process before separating employees from the asset of the value they create through work. The rest of the Bill of Rights doesn’t protect us from employers either.
The operating assumption is that the work you perform, and its value, belongs to the employer, but there’s never been an adequate, enduring explanation for why that should have to be the case. The classic argument, of course, is that Capital (your employer) owns “the means of production.”
Basically, this argument boils down to:
If it weren’t for us, you’d have no job. We risk all our capital building this company, so you that you can have work. Therefore, the value of everything you do, say, think, create belongs to us, the employer, and we have near absolute dominion over it and you.
That this argument3 has been allowed to prevail, not least by our politicians and lawmakers, is a testament to the chronically disempowered state of workers since forever. It is also a testament to the way political representatives of both parties have abdicated their responsibility to represent worker interests.
The “means of production” argument is logically problematic. It assumes its own conclusion, which is that there’d be no workplace if it weren’t for Capital, and ignores the at least slightly more logical perspective that the investment capital came from somewhere, and that somewhere most certainly was someone’s work.
The argument then proceeds into circular oblivion, but the unavoidable, logical end point is that even if one were to cede that “Capital” creates the workplace, it in no way follows that therefore all the rights and privileges flowing from that workplace belong to Capital, for there is no creation of value – of money/profit – without workers to do so.
There is a very long and fascinating history that explains how we got to where we are with respect to the division of value created from work and the rights that belong to workers. It boils down not to a carefully crafted economic theory that enjoys a long and unassailable track record of success, but rather to something far, far less difficult to grasp: an imbalance of power.
Employers deny workers’ rights because they can, because doing so directly enhances profit by limiting workers’ power to demand a greater share of the value they create, and—most notably in this context—because the U.S. government permits it.
It’s Not Like This Everywhere
Is America worse than other countries when it comes to workers’ rights? Yes.
An annual study conducted by ITUC, a global trade union organization, ranks countries around the world based on their violation of worker rights. America scores a 4.0 out of 5.0, where 5.0 is the worst. It shares a ranking with Venezuela, Burkina Faso, Peru, Sierra Leone, Greece, and Qatar. By contrast, the ranking for Europe as a whole is 2.73.
The U.S. is cited for its record of union busting at companies like Facebook, Google and Amazon, the proliferation of app-driven gig economy jobs with no benefits and little worker protection, massive violations of privacy principles through surveillance, and the systemic effect of limiting rights through its labor law, including the denial of due process prior to termination.
Concerns about the presence of CEOs from Facebook, Google, Amazon, and Tesla on the stage of the felon’s Inaugural this past January reflect known problems with money in politics. Less obvious is that that expression of power—that line of corporate heads standing next to the president when he was sworn in—was made possible by an enormous extraction of labor wealth, itself made possible by the denial of rights, all of which has been (conspicuously) sanctioned by the government.
Mark Zuckerberg of Meta, Jeff Bezos of Amazon and The Washington Post, Sundar Pichai of Google, and Elon Musk of various companies were seated next to the felon’s family and in front of cabinet members during the second inauguration in January 2025. Pool/AFP via Getty Images
Yes, But You’re Free to Leave: Monopsony and Information Asymmetry
Corporate interests have long argued that the supreme test of the obvious and inherent freedom of the American labor market is that workers are “free to leave,” and that this freedom to go elsewhere serves as a market force (a kind of benevolent Unseen Hand) that stifles abuses and pay suppression.
As compelling a selling point as that might have been in medieval Europe when it was first sold as the latest in employee benefit innovations after feudalism lost is allure, that’s not really how freedom works.4
First, the American labor market is monopsonistic or put another way it’s a highly concentrated group of buyers (employers). The core problem with any concentration of buyers (monopsony) or sellers (monopoly) is that they have outsized power to control and/or pervert the market.
In the labor market that means outsized control not just over the availability of jobs but also workers’ pay. Here’s a good overview written during the Obama administration.
More than half of Americans work for large companies (more than 500 employees), and those companies represent less than 1% of all employers in the country. The much-discussed concentration of overall wealth in the hands of a few in America has a revealing analog in a concentration of labor wealth in the country.
This represents a significant, destructive imbalance of power. These relative few companies are the ones with the most influence on employment practice standards, not just for all other large companies but for most companies, period.
This power imbalance is exacerbated by the fact that workers are locked out of the databases used to determine market rates (pay rates) for jobs. Employers use those databases every day to create offers for new employees, determine annual pay increases, or evaluate their companywide pay structures.
This is an obvious problem for any worker, as it would be for any participant in another part of the economy.
This is why there are so many laws that address the issue of price information asymmetry in other markets. These laws dictate disclosure of the rates buyers have been willing to pay and sellers have been willing to accept (price displays at grocers and stock tickers are examples).
Any imbalance in who has access to price information creates an imbalance of power and an unfair advantage. Price information symmetry, by contrast, is the cornerstone of theories around the efficiency (read: supremacy) of free market capitalism.
But information about what employers pay employees for jobs—in other words, pricing in the labor market—is not required to be made public and is not freely available to all parties in a transaction. Here again, the U.S. government permits this.5
The concentration of overall wealth in the hands of the few in America has a revealing analog in a concentration of labor wealth in the country. A small percent of companies employs the majority of Americans.
Lack of Due Process
Going back to the initial premise that our Constitutional rights are dismantled at the workplace, let’s look at another one in more detail.
In what way can it be said that the workplace robs us of that arguably most pivotal of all rights, due process? What does undermining due process look like in the workplace?
It looks like employment at-will (EAW). EAW states that employers can fire employees for any reason, or no reason at all, at any time. This is a uniquely American phenomenon that is very broadly used throughout the country.
Other counties don’t permit it because it so clearly allows employers to assert power that undermines the functioning of the market by disempowering workers. It deepens the power imbalance.
If an employer can fire you, if it can separate you from the value you create, with no reason, then it’s Game Over. You lose all other rights, all other protections. For example, what force can laws have against discriminatory firings based on race or age or sexual orientation if an employer can fire you for absolutely no reason?
How can an employee rely on remedies from unfair or unsafe labor practices if they can be fired without cause? How can a worker even safely argue for more pay, more privacy protections, access to market pay rates, or better hours if they know they can be canned at any time at the whim of their boss?
For this and other reasons, other countries require cause to separate a citizen from the value of the work they do. They recognize that workers have rights to the value they create at the workplace and need protection from the arbitrary destruction of that value.
EAW is particularly problematic in a government dominated by corporate interests. The guys on the Inaugural stage in January were put there by the incoming head of state, and their presence there is not just a symbol of government acceptance of corporate leaders having a seat at the state’s table (which is repugnant enough), but is also an indication of how the head of state views the composition of the government: at least in large part, as a confederacy of employers. And he wants everyone—including all workers—to know it.
Here's The Harm, There’s The Foul
As a result of America’s legal structure governing the workplace, Americans are unfree. The scope of that unfreedom swamps the freedoms they are granted through the Constitution.
The harm of that is hopefully at least in part obvious for all the reasons that having rights in the first place are obviously good. The bottom line is that rights support the holder’s ability to increase their wealth (among other things) based on their skills and abilities, and suppression of those rights inhibits the freedom to do that.
This is the result of choices our government has made that other countries have not.
Has there been actual, direct, harm to American workers as a result? Well, yes, as thoroughly established by data that show workers have received a shrinking portion of the value they create for decades. The increasing concentration of wealth among the few demonstrates the same.
Has there been actual harm to American workers as a result? Well, yes.
The ownership of value that stems from individual rights—that SWAG of democracy—has been transferred from the state to the corporation, with help from the state (in the form of its laws).
So, when politicians carry on about the jobs they’ve added or how their policies will increase “good” jobs in the future, what they are saying without saying is that they are working furiously to get you to a place where you accept a paycheck as payment for the value of your rights. What they never promise is to ensure your rights are up to the task of keeping you free from the effects of power imbalances enjoyed by your boss.
Is it so out of line then to assert that the corporate structure—which vastly curtails our Constitutional rights in an effort to extract ever greater amounts of the value we create in our jobs, with permission of lawmakers—is effectively the government?
Is it really so surprising, given this, that people have stopped showing up at the voting booth, that they have tuned out from both the issues and the politicians leveraging those issues for power? Is it so surprising that so many Americans have determined that democracy—as we are currently living it—just doesn’t work for them?
What Needs To Change
American’s have two sets of starkly unequal rights, one granted by their government and one—far more limited—granted by their employers. Numerous policy areas are in need of change if we want worker and citizen rights to be one and the same.
Worker rights must be secured in law, and limitations placed on employers related to how they violate the privacy, association, due process, and speech values embedded in the Constitution.
The two specific policy areas addressed above are relatively straightforward: we need to end EAW and we need to ensure that employers and workers have access to the same information about market rates for jobs.
Beyond these, I’d also suggest we look at the following:
Shareholder primacy theory (SPT). SPT is an influential facet of the philosophical/moral arguments surrounding the broader topic (similar to the “means of production” argument mentioned above). SPT states that companies must do whatever they can to maximize profit on behalf of shareholders (so-called owners), and therefore are basically compelled to extract ever-greater amounts of value from workers. The theory hinges on a supposed legal compulsion that does not in fact exist. Nonetheless, SPT is used out as a defense for a long train of corporate abuses, employee and otherwise. We need legislation to define the responsibilities of corporate boards to clarify the obvious, which is that shareholder interests are but one among many responsibilities corporations must manage, including those of the organization’s employees.
Value creation/equity sharing. The ultimate harm of unequal rights is that workers, flatly, get a smaller portion of the value they create at work than they otherwise would be able to obtain. We need to create legislation to encourage employee-owned companies with employee board representation.
Employment contracts reform. There are numerous issues associated with employment contracts, starting with the fact that they are contracts between vastly unequal parties, which complicates the validity of any contract. The type of issues that arise include unfair and unjustified employer limitations on where employees can work after their employment ends (aka, noncompetes). Employment contracts also can, and often do, limit a worker’s ability to earn income outside of that job, again with no justification beyond the employer’s interest in controlling workers’ income.
End Citizens United. Although there are many reasons beyond those of worker rights to reform our election laws, certainly workers would stand a better chance of retaining their civic rights if their employers, who to-date have been granted far greater power over those rights than the government, are not also allowed to dictate to that government by virtue of the enormous sums they donate to candidates.
Provide healthcare to all. It’s less expensive and more effective than employer-sponsored healthcare, which is how most working Americans get their health insurance. Employer-sponsored healthcare is also a significant lever allowing employers to keep employees in their places, accept less in compensation, and forego their rights.
Kim can be reached at kimreifel@gmail.com and found online @kimberlyreifel.bsky.social.
American workers have always been vulnerable to being fired for their speech, and with the advent of social media, such firings occur more frequently. As a recent study shows, both employers and employees are clear that workers have little protection from being fired for the things they say. A very recent case involves a lawyer who tried to help an immigrant family.
This argument was more (but still not completely) convincing back when companies were built on the capital of a small number of owners, who put at risk their own personal capital to grow the company. Today, around 80% of growth is funded by profits, which of course, are produced by workers doing the work of the company. Beyond profits, companies are much more likely to fund growth through debt than stock. Stock offerings, outside of initial offerings, represent a very small portion of the growth capital of any given company.
In truth, it wasn’t well received by the serfs, either.
The Bureau of Labor Statistics was established to help address this information gap, but the data methodology is not well suited to modern organizations and is rarely used to set pay at American companies.
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