Outten & Golden: Empowering Employees in the Workplace

Can They Do That?

January 15th, 2010 | Lewis Maltby

Image: Lew MaltbyLynn Gobbell was fired because her boss didn’t like the bumper sticker on her car.  During the 2004 presidential election, Gobbell put a “Kerry for President” sticker on her bumper.  When her boss saw it, he ordered her to the sticker off.  When she refused, he fired her.

Most people think that what happened to Gobbell was illegal, but they’re wrong.  What her boss did was wrong, but it wasn’t illegal.

What about the Constitution?  Doesn’t the First Amendment protect our right to freedom of speech?  The answer is yes, but only where the government is concerned.  Unlike millions of people in other countries, Americans can openly criticize the government or advocate for positions that are controversial or even offensive without fear of retribution.

But the first amendment applies only to the government.  A private corporation, no matter how large or powerful, can legally ignore the first amendment.  Too many employees have learned this the hard way, when their boss fires them for something they say on their personal blog or MySpace page.

In my upcoming book Can They Do That? Reclaiming Our Fundamental Rights in the Workplace, I explain how all your Constitutional rights essentially go up in smoke the moment you go through the office door.  In addition to free speech, your right to privacy disappears.  While the government has to get a court order to read your e-mail, your boss can (and will) read your e-mail, including messages on sensitive personal subjects, for his/her own amusement.  This breach of privacy extends even further than email – it includes video monitoring, too. When Gail Nelson found out that male security guards were watching her undress in her office after work to get ready for the gym, her suit was dismissed.  She didn’t even get a trial.

Even worse nightmares are coming.  At least a million Americans carry company-issued cell phones, all of which are equipped with GPS.  Any of these employers are at liberty to track their employees 24 hours a day, 7 days a week, 365 days a year.  It could be happening to you right now without your knowledge.  The growth of biometrics (such as electronic fingerprints) may enhance security in some locations, but it also opens the door to identity theft on an unprecedented scale.  No one knows what to do when a hacker, or dishonest employee, gains access to a database containing thousands of fingerprints.

Not only may your boss know where you are every minute of your life, he may control it as well.  Thousands of companies order employees not to smoke or drink, even in their own homes, and fire those who disobey.  As the wellness movement grows, employers are expanding these rules to include diet, exercise, and potentially dangerous hobbies like skiing.

The few rights we do have exist because of federal or state legislation, such as laws prohibiting discrimination based on race, gender, religion, and other improper bases.  But even these rights are in jeopardy as employers require employees to “agree” to give up their right to go to court if their rights are ever violated.  Instead, employees must go to arbitration, where they have few rights to a fair hearing.

Can They Do That? explains what you can do to protect your rights under current law, and how we can change the law to restore our fundamental rights when we go to work.

About the Author: Lewis Maltby is president and founder of the National Workrights Institute and former Director of Employment Rights for the ACLU. He has testified before Congress many times on employment issues and appeared on 60 Minutes, Larry King Live, and Oprah. His views on employment law have been quoted in the New York Times, Washington Post, and other leading publications. He lives in Princeton, New Jersey and is the author of Can They Do That?: Retaking Our Fundamental Rights in the Workplace.

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7 Responses to “Can They Do That?”

  1. tia Says:

    My employer of 1 year ( wife and co- principal) is seemingly retaliating because I have been made a party of the CEO’s ( her husband) apparent affair. While traveling for business with him, he includes an apparent mistress in dinners, lunches and business meetings. I have made an effort to stay in other hotels, and separate myself from as many of these meetings as possible. However, the mistress sends emails to me about the details of the affair on the company email account (despite repeated requests from me for her to stop). Seemingly, one of these emails notified me of the wife’s awareness of their affair, and the next day I was called into a meeting with the wife and HR to require that I take on a major task for the company with an unreasonable deadline, and to require “that I see a company choosen therapist because I seemingly work alot, and seem stressed” There has been no incidents, discussions or issues with any stress in the past by her or anyone else… and I have been promoted twice with rave reviews and bonuses for my performance until this sudden meeting. The therapist requirement is being made a condition of my employment, and I feel like it is retaliation, violation of privacy( appointed therapists), and malignment of my performance record and potential harm to my ability to get life and health insurance coverage. What are my rights, do I have the right to choose when and what therapist I see? What provisions can I take to protect my medical privacy?

  2. Brian Beecher Says:


    This may be just what I’ve been looking for. It is time for us to work together to expand employee rights so that those who believe they are treated unfairly have a fighting chance. I was wondering if you are planning on a speaking tour to promote this book. If you come to the Chicago area, I want to be there. I have a situation right now concerning one of my former employers where I believe I was treated unfairly. Will share it with you in future post. Right now it seems that the only thing we can do is try to bring back unions to their full strength. Back in the days when I was growing up, even though all these employment at will laws were still on the books, most companies treated their people better than they do today, and would even provide counseling if they had, for example, drinking problems. But no more. Hasn’t been that way for about three decades now, maybe more. Things seemed to begin to change about halfway through the 1970’s, and the axis titled big time after Reagan busted the unions.

  3. Charles Read Says:


    I live in Texas a State with an employment at will doctrine. But in every State in the Union any employee, without a contract, can leave anytime they want. With few excptions, normally agreed to by the employee, they can work for whoever they want. They can start their own company, they can go on unemployment if they are fired, they can go on welfare if they don’t want to work.

    Employers provide a job. Employers fund that job. Employers provide the capital to create that job. Employers take the risk of loss of their investment if the company goes under.

    The employee puts up time for pay. No investment of money. No investment of Capital. No risk of financial ruin in the company goes under. No risk of being sued by some greedy lawyer if there is the least percieved prolem with the companies products.

    If an employee doesn’t like a particular employer, don’t work for them. Make a public statement why you won’t. If the reasons are good enough no one will work for the company soon and it will join the heap in the dustbin of history.

    Now more than ever before, the individual employee or potential employee enjoys great power to influence business.

    If they can’t find a company they like start their own. Or write a book and go on tour.

  4. Lewis Maltby Says:

    Charles makes the classic argument against protecting employee rights; “it’s a free country, if you don’t like your job, quit and find another one”.

    He’s not entirely wrong. The government shouldn’t tell your boss how much to pay you or what the benefit plan should be. But there are limits. We have sexual harassment laws today because thousands of women had sex with their boss to keep their job. In theory, they could have quit, but they didn’t have any other job offers.

    We also tell employers they can fire someone because of their race or force employees to change their religion.

    It’s just as wrong for your boss the fire you because he doesn’t like the bumper sticker on your car or something about your personal life.

    Our legislators haven’t done anything about these abuses yet. But they should.

  5. Peterk Says:

    Will be interested to see if you write a follow up book that looks at the problems associated with unions and how they hamper what employees and employers can do.

    were you aware that many of the mandatory drug tests are required by federal law? that employers didn’t want them?
    do you examine why employers may be doing some of the awful things you allege that they do. Could it be because they have been burned by litigators for actions done by employees through no fault of the employers

  6. Lewis Maltby Says:


    Unions aren’t perfect. But virtually none of the abuses in my book occurred in union shops. That’s not coincidence.

    Laws forcing employers to drug test aren’t fair to employers either.

    Why would an employer do something wrong because they had been burned by a litigator in the past? Wouldn’t the employer try to avoid doing things that could cause another lawsuit?

  7. Brian Beecher Says:

    I just realized that I had wondered if you had a speaking tour and somehow it got lost in the shuffle because I get so many emails from verious sources. I feel bad that I missed you when you were in Chicago. I am wondering if any progress has been made in getting more workplace rights issues to the attention of the proper people. Sometimes things can go too far in the opposite direction. We may have needed sexual harassment laws, but they have been taken so far that today the fear of litigation is so strong that even if one looks at someone a certain way with no harassment intent whatsoever he is automatically presumed guilty and is usually dismissed with no possibility of successful recourse. They often speak of creating a hostile work environment, but if one has to go to work practically wearing handcuffs, a blindfold and a muzzle because you have to be so afraid of your hands being in the wrong place, making the wrong look or saying the wrong thing, isn’t that hostile also? It should be.

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