05 August 2012

Employment Pictures

'Menschenbild: The Conception of the Employee as a Person in Western Law' by Matthew Finkin in 23(4) Comparative Labor Law & Policy Journal (2002) 577-638 comments that
Even as the civil and common law reflect the Western Legal Tradition, they take very different approaches to employee privacy; the former respectful of it, the latter largely not. This divide is explored using Germany and the United States for comparative examination. Relying on a body of German legal historiography, the roots of the law's conception of the person (Menschenbild) is traced from the sixteenth century Natural Law thought, to the Prussian and Austrian Codes of the eighteenth century on through the economic liberalism of the nineteenth century, and so to today. It explains how German law in the period after World War II joined an eighteenth century idea of the person as a bearer of innate, inalienable rights with the idea of the workplace as a social setting in which these rights must be legally recognized. It explains how the United States cabined that very same eighteenth century concept to the political realm, and, in the employment setting, even today remains largely wedded to the nineteenth century conception of the person as the bearer of only the singular right to contract, i.e. tacitly to concede to the employer managerial power to invade the employees' privacy as a component of the wage bargain.
Finkin argues that -
the law of employee privacy sits astride a continental divide. With only modest oversimplification one can say that, on the civil law side, employees are perceived as persons who bear inalienable rights, assertable against their employers, including a right to privacy. Employers may limit their employees’ privacy only insofar as they are able to satisfy a public authority that the limits they seek to impose are narrowly tailored to realize legitimate, even necessary, business objectives. On the common law side, the law accords the employer near plenary power to govern the workplace; in fact, to govern the worker. By entering upon or remaining in employment, the employee is taken as a matter of contract to have assented to the employer’s control. As Clyde Summers put it, with only slight exaggeration, the law “endows the employer with the divine right to rule the working lives of its subject employees.” That power is limited only by occasional and usually highly particularized expressions of public policy, most commonly found in legislation. 
Great Britain is experiencing the centripetal force of moving in the European orbit, as Mark Jeffery explains, and Brazil is tugged in both directions as its economy develops, as Roberto Fragale Filho and Leonel de Rezende Alvim explain. But, in the main, and despite greater or lesser degrees of protection in France, Italy, and Spain, the generalization holds. 
The divide is captured in how these systems deal with an elemental aspect of employee life in the workplace, the freedom to converse with one another. Under French law, an employer’s power over work rules is limited by the principle that it may “not place restrictions on the rights of persons or on their individual or collective liberties unless these are justified by the nature of the work and are proportional to the goal sought.” Accordingly, the Conseil d’√Čtat struck down a work rule that prohibited not only political or religious discussion at the workplace, but all non-work related conversation, as an unjustifiable infringement upon individual liberty. In other words, under French law, the plant, office, or shop is a realm in which employees may maintain their sociability, so long as the work gets done. 
In the United States, employers in the late nineteenth century sometimes did forbid workers to converse with one another, on pain of immediate dismissal. Today, federal labor law forbids an employer from prohibiting co-worker conversation, but only as applied to speech on non-work (albeit paid) time when that speech concerns their wages, hours, and working conditions. With few exceptions, that is as far as the law goes. Employees who converse with one another on non-work time, but on other matters may be discharged for the conversation. In other words, subject only to a few narrowly crafted statutory exceptions, an employer in the United States may disclaim that the workplace has any room for human interaction and enforce rules to that effect. 
This state of affairs is perplexing. We take it as a commonplace that there is a Western Legal Tradition that draws from common roots and finds expression in a set of common values, however various the means of implementation. We would take it, then, that when the law on both sides of the Atlantic conceives of the legal attributes of being an employed person it would see pretty much the same thing. But the conception of the employee as a person - the law’s Menschenbild -  in the civil and common law differs and sharply. 
What follows will explore that difference using two countries for more specific examination - the Federal Republic of Germany and the United States. It will next take up the historical development of the law’s Menschenbild from social change beginning in the eleventh century and in legal thought that flowered in the seventeenth and eighteenth centuries. Though the well-spring of modern subjective rights is found in that period, legal theory did not at that time undertake any effort to apply them to the master-servant relationship. On the contrary, in the nineteenth century both Germany and the United States moved toward an economic liberalism that conceived of the employee as an abstract, atomistic entity characterized essentially by the capacity to contract. The sale of one’s labor was thought indistinguishable from the sale of any other commodity even though what was sold came to encompass control not only of the labor, but of the laborer. In the wake of enormous social upheaval in the early part of the twentieth century, both countries instituted collectivist approaches to the employment relationship. These laws conceived of the employee as analogous to a citizen of (or stakeholder in) the employing enterprise. That conception never took deep hold in the United States. It was twisted almost beyond recognition in German law of the Nazi period, but it was refurbished and renewed in German law of the post-War period. In that period, the fundamental differences reflected in the two respective country studies took shape. German judges fused elements of eighteenth century legal thought with twentieth century social thought to produce its current law. The United States remained (and remains) largely rooted in the nineteenth century.