Issue #21 ‘Power’ has arrived, you can buy a copy online or visit one of the stockists listed here. “Most…
We are not exactly wage slaves, but most of us have to work for a living throughout the prime decades of our adult lives, usually employed by somebody else – whether it’s a richer individual, a privately owned corporation or firm, or a government agency. Often the tasks are boring, alienating, or even degrading, and they can encroach on many of our waking hours when we might prefer to be doing something else. At the same time, many people find themselves with not enough work, underpaid and undervalued work, or insecure work. None of this sounds like a recipe for a free, fulfilled life.
Fortunately, the world of work is not always that bad. At its best, paid employment can involve us in pleasant interactions with others – work- mates, clients, or customers – while performing duties that are challenging, absorbing, and satisfying. For many people, though admittedly these are the fortunate ones, the workplace and its many tasks provide a source of meaning and empowerment. Yet even for those people, work can be a threat to individual liberty. There is a kind of double whammy from the economic need to work, most often for others, combined with employer controls over our behaviour.
The modern contract of employment has origins that ought to make us suspicious. We can trace its beginnings to medieval times, feudal ideas about work and the archaic relationship of master and servant. It is no coincidence that the contract of employment is also known as a “contract of service” (in contrast to a “contract for services” when you hire an independent contractor running her own business). Even as recently as the 18th and early 19th centuries, long after the beginnings of Western modernity, employees were not treated by the law as independent individuals entering into contracts to provide their labour in return for money. Rather, the employer/employee relationship was understood as a personal one between a master and servant, who were assigned roles and statuses somewhat analogous to those of family members.
Under this system, the master incurred certain responsibilities for the servant’s welfare, but also enjoyed great privileges involving extensive control over the servant’s life and conduct. (For more, see Ronald McCallum’s discussion in his incisive employer Controls over Private Life.)
As McCallum explains, the contract of employment as we now understand it is a 19th-century invention that catered to the needs of employers in the wake of the Industrial Revolution. As the early decades of the 19th century unfolded, employers needed a new form of legal relationship to govern large scale factory employment. Factory owners needed to employ numerous individuals for set hours each day, mainly in repetitive tasks operating industrial machinery. From an employer’s perspective, it was necessary to maintain strict discipline during working hours, but there was no benefit in establishing anything remotely like a personal relationship with any individual employee.
The result was a form of time-service contract that provided employees with monetary payment and left them with considerable freedom in whatever time they had outside their working hours. Although there was typically little or nothing in the way of a written contract, the working relationship was regarded as a contractual one. Judges developed its implied terms (terms not explicitly agreed, but held as implicit in every such contract) to include duties on the part of employees that would have been quite familiar to the masters and servants of earlier times. That is, employees were required by law to be obedient, diligent, faithful, loyal, discreet, and trustworthy. Plainly enough, this gave employers ample capacity to enforce discipline and control in the workplace, and otherwise to protect their business interests.
The contractual understanding of the employment relationship is more an artefact of history than a natural necessity, though it has had some advantages for both employers and employees. It is not unduly cynical to suggest that the social and legal reconstruction of the employment relationship in the 19th century was intended to favour the needs of employers, and whatever gains were obtained by employees were a side effect. Notoriously, 19th-century workers endured a great deal of harshness and exploitation. Still, the development of the time-service contract allowed standard employees considerable freedom, especially as the regular working hours in industry were reduced through union campaigns and changing social policy. By and large, factory owners (and other employers who soon took advantage of time-service contracts as the legal basis for their workforces) did not care unduly what their employees got up to outside of working hours.
Despite its bias toward the requirements of employers, the time-service contract eventually brought wider benefits. Combined with the efforts of trade unions and reforming governments, the modern understanding of employment relationships has helped create a society in which unprecedented freedoms are enjoyed by ordinary working people. All the same, how far does this freedom really extend?
We are often too quick to assume that individual liberty is solely a liberty from restrictions imposed by governments. That was certainly not the view of John Stuart Mill, whose celebrated manifesto of freedom, on Liberty, emphasises throughout the more subtle, yet pervasive, tyranny of prevailing opinions and attitudes. If employers use their power to impose their own opinions and attitudes on employees, or to impose whichever opinions and attitudes prevail in the wider society, that is a significant encroachment on the liberty of individuals. In an economic system where most employers have an almost unfettered prerogative to hire and fire, such as exists in the United States, this can lead to frightening situations where zealous employers seek to control even their workers’ out-of-hours expression of religious, social, and political opinions. For more, see Bruce Barry’s trenchant exposé Speechless: The erosion of Free expression in the american workplace. In other Western countries, such as Australia, the law imposes more restrictions on the right to hire and fire, but there is still much scope for employers to exert unwarranted influence on employees’ private lives.
Traditionally, standard employees on time-service contracts are subject to workplace discipline during their working hours, but are largely free of the employer’s control the rest of the time. Even anti-social or criminal behaviour by such an employee will not usually be considered the employer’s business, unless there is some sort of connection to the workplace or some reasonably understandable effect on the employee’s ability to do the job. This is changing as employers increasingly offer written contracts that include extensive codes of conduct aimed at protecting their brand or corporate image.
During the 20th century, new social and technological developments created a tendency toward task-performance (rather than time-service) contracts. Employees on task-performance contracts are required to complete certain tasks or play a certain role within the employer’s operations, as opposed to turning up day by day to provide their allocated hours of service. Many employees are now regarded as professionals or as “staff ”; often they are expected to take work home for completion; often, too, they use equipment provided by the employer even while at home (and often in ways that mingle official and personal use). Since the 1980s, this tendency has been accelerated by the rapid advancement and diversification of computer technology.
All these developments have brought benefits to both employers and employees, but they have a downside. This includes a blurring of work time and home time that can become oppressive. Many of us end up feeling that we are always “on the job” and have no time that is entirely our own.
These new developments encourage employers to assert more and more control over the lives and activities of employees and even potential employees. As employers protect their corporate images, they may monitor the lives of their employees intrusively, expanding the scope of what they consider the corporation’s legitimate concerns. Complaints to employers provide a new mechanism to retaliate against individuals for behaviour or speech that may have little to do with the workplace. With the advent of social media, managers increasingly take an interest in the online footprints of job applicants.
To an extent, these Big Brother tendencies can be ameliorated by legal arrangements that restrict employers’ unreasonable use of their power to hire and fire, but this immediately raises the question of what counts as unreasonable. If employers are enforcing widespread social standards rather than, say, their own religious or political views, this can all too easily be accepted by courts and the public as reasonable. Accordingly, employers can readily become enforcers of social conformity.
Can we push back against this, and do we even want to? How much liberty do we want, and what social role should employers play beyond selling goods and services? The first thing we need to do is identify the problem. We need to raise awareness if there’s to be any hope of reversing an unsettling trend.