Big Brother On and Off the Job

By Harold Meyerson
Wednesday, August 10, 2005

They'll be bowling alone at Guardsmark tonight. The National Labor Relations Board (NLRB) doesn't want the employees chatting it up off the job.

On June 7 the three Republican appointees on the five-member board that regulates employer-employee relations in the United States handed down a remarkable ruling that expands the rights of employers to muck around in their workers' lives when they're off the job. They upheld the legality of a regulation for uniformed employees at Guardsmark, a security guard company, that reads, "[Y]ou must NOT . . . fraternize on duty or off duty, date or become overly friendly with the client's employees or with co-employees."

The board majority held that the guards probably would interpret this to be a no-dating rule, pure and simple. In her dissent, member Wilma Liebman wrote that the rule plainly specifies both dating and fraternizing, a term that covers a range of activities that go well beyond (or fall well short of) dating. That certainly was the reason that a San Francisco security guard local of the Service Employees International Union brought the case to the NLRB in the first place: The rule as written could preclude any attempt by the guards to meet to form a union, or even to talk about work-related issues.

Guardsmark General Counsel Gary Leviton says that the company rule isn't as restrictive as it may sound, that it applies only to guards working for the same client, lest their judgment of who may constitute a threat be compromised. He adds that the company hasn't invoked the rule to thwart its workers' attempts to unionize, and, indeed, Guardsmark and the SEIU have reached an accord on unionizing its San Francisco employees since the complaint was first filed. (Guardsmark also provides security guards at The Post.)

But the NLRB ruling mentions none of the caveats that applied at Guardsmark; it is now a precedent that can be applied to a far wider range of workers in a far wider range of situations. Indeed, as the precedent for this ruling, the board cited an earlier decision upholding the right of a hotel to ban its employees from fraternizing with guests. That hardly seems a parallel set of circumstances -- closer to perpendicular, if you ask me -- and it sure doesn't inspire any confidence that the current board will seek to limit the impact of its Guardsmark ruling.

So are there any off-duty activities that an employer can't proscribe? A number of companies have anti-dating rules, of course, and rules against sexual harassment have rightly become de rigueur. But by the language of this decision, what about meeting up in a neighborhood bar after work? Going over to Ed and Joanie's for dinner and some poker? Just how much control over our personal lives do the citizens of the land of the free want to accord to our employers?

Drug habits off the job clearly can affect performance on the job. But I've somehow missed the body of literature that documents how employees' joint attendance at picnics can cause dangerous lapses at work. There is quite a body of literature that documents the superior performance of companies whose employees are encouraged to share their ideas with co-workers and management. But if a company elects to deny itself that benefit by denying its workers the right to fraternize, that's perfectly fine with the NLRB.

There's a word for the kind of employer-employee relationship that the NLRB has just sanctioned. It's "feudal." The brave new world that emerges from this ruling looks a lot like the bad old world where earls and dukes had the power to control the lives of their serfs -- not just when the serfs were out tilling the fields but when they retired in the evening to the comfort of their hovels. But then the Bill of Rights in America has never reached very far into the workplace. And now, the strictures on workers' rights within the workplace are being extended without.

We Americans largely believe we live in a country that cherishes, or at minimum strives to cherish, the rights of the individual. This is one of our foremost mass delusions. As employees and consumers, our rights are routinely subordinated to those of business. The reason that personal information on 50 million consumers has been compromised, stolen or lost is that we have no effective laws -- indeed, no federal laws at all -- protecting the privacy of our data; the opposition from big business has doomed all serious attempts to ensure consumers' privacy.

So as we fight to bring liberal democracy to quasi-feudal backwaters in distant lands, we might remember that the fight for individual rights in the American workplace -- and now, beyond it -- is itself a long way from a victorious conclusion. And thanks to the NLRB, it just got longer.

meyersonh@washpost.com


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