Freedom of Contract, Poverty and Democratic Citizenship

It is typical in advanced capitalist nations for employers to make employment conditional on employees agreeing that they will not do anything to damage the reputation of the organization they work for, including publicly criticizing that organization. Of course, most companies have whistleblower policies that provide employees with a process and channel to report about breach of existing policy or regulation through internal mechanisms. However, while these mechanisms offer a means to raise grievances about coworkers or the company as a whole breaching their existing policy or the letter of the law, they are not designed to deal with more generalized criticism of the organization on ethical grounds.

In light of the fact that existing whistleblower protections do not provide a channel for more generalized ethical critique of an organization’s operations I want to turn to the question of whether it is legitimate for employment to be made conditional on an employee not engaging in public ethical criticism of the company they work for. To limit the scope of this question I will look at Canada, in particular, rather than advanced capitalist nations as a whole. In particular, I will argue that under the existing political economy Canada this kind of employment clause is not legitimate as it undermines democratic citizenship, but that under more egalitarian economic conditions these clauses could be legitimate.

The general defense for the legitimacy of making this kind of non-criticism clause a condition of employment is that according to the notion of freedom of contract citizens should be able to agree to contracts with other citizens or organizations as far as possible. The key to this view is that the freedom to make agreements and engage in contracts is integral to the freedom of a society. Consequently, citizens should not be prevented from engaging in contracts as this would be paternalistic and not respect the right of citizens to make their own decisions.

Futhermore, another point that supports the legitimacy of employment contracts that include a non-criticism clause is that even if this non-criticism clause imposes a significant burden on persons, someone always has the right to leave their job. Thus, while they may give up their right to critique an organization or set of organizations publicly, they do not give up this right indefinitely as they can always leave the company if they choose to engage in this criticism.

Now, of course, there are exceptions to this defense of freedom of contract based on considerations of fairness and equity that are codified in Canada’s laws. For example, citizens are not able to sell themselves into slavery even if they want to, as this would alienate one’s most basic freedoms. Furthermore, one cannot agree to a contract that pays below the minimum wage even if you are so desperate that agreeing to this wage seems desirable, as it is postulated that all people who work should not be paid below a certain level. However, while there are quite a few exceptions the case remains that the notion of freedom of contract dominates the social imaginary of Canada.

Under the current conditions in Canada while there are some social protections for the vulnerable the state typically does not ensure that all of its citizens are guaranteed an income that can support a decent life. While minimum wage laws and social assistance ensure that all are provided with some level of income, relying on these sources of income is not enough to avoid poverty or support a decent way of life. For example, about 1 in 7 Canadians lives in poverty which goes to show that there are still many Canadians who are not being provided with adequate resources and opportunities (material, educational or otherwise) to secure a decent life.

While poverty does not equally affect all groups in Canada, as aboriginals, the mentally and physically disabled are at greater risk, the statistic provided above shows that poverty is a significant risk for all Canadians. No matter what your race, sexual orientation, gender and physical and mental capabilities are in Canada you are at risk of being in poverty because if you do not have either a income sufficient to avoid poverty, or someone to support you financially, there is no guarantee that you will have enough to live a decent life, and it is most likely that you will not have enough to live reasonably well.

This is the context in which Canadians live and under which non-criticism clauses are made conditions of employment. Consequently, I think it is deeply problematic, in this context, to legitimize non-criticism clauses as this forces citizens to have to choose between economic security and their ability to publicly critique their organization for engaging in legal practises that they and others may find deeply problematic.

Now, it should be noted that some public criticisms of an organization by an employee may be reasonable grounds for dismissal. For example, going on Facebook and calling your boss a “fucking douchebag prick” because he would not let you take Monday off seems to me to be reasonable grounds for dismissal. However, if I work for a construction company and publicly write on my blog that the company that I work for needs to stop taking advantage of Temporary Foreign Workers (TFWs) because this is having a pernicious effect on Canada, and our specific community, I hardly see this as reasonable grounds of dismissal. And yet under the current regime of non-criticism employment clauses this would be reasonable ground for dismissal because if my blog had gone viral and lead to a boycott by other companies, or by criticisms from NGOs, this would negatively affect the ability of the company to make profit. Consequently, as an employee I would have done something to damage the companies reputation and cause it to lose profits. In which case I have violated the terms of employment and am subject to firing by taking actions as a citizen to protect the public interest.

Consequently, what is wrong these non-criticism clauses in the current economic context of Canada is that they are too vague, and require citizens to not only engage professionally with their employer, but also to be a loyal ambassador for their company in public life, if they are to maintain employment. It may be legitimate to require that employees do not engage in personal criticism of other staff, or slander against the company, but it is not legitimate to require that employees do not engage in public ethical criticism of your company’s practises as this undermines democratic citizenship. It undermines democratic citizenship because in an economic context where being unemployed puts one in danger of poverty asking people to choose between economic security and freedom to critique will likely encourage people to choose economic security. While the freedom to speak out is deeply important, it is a far less pressing need than those immediate basic needs that economic security takes care of, and so far fewer people will be willing to risk unemployment and speak out against what they see as legal, yet unethical practises. Inevitably, most people will choose to remain silent on these kind of things if they feel that they risk not being able to provide a decent live for themselves and their families. By using these non-criticism clauses we thus insulate organizations from public criticism of questionable practises and thus weaken the ability of the citizenry to question and debate the validity of these practises as far fewer people will speak out. This undermines democratic citizenship as it weakens the ability of the body politic to effectively understand existing questionable practises in organizations and discuss how to deal with them.

This negative effect on democratic citizenship is further reinforced, as there are very few employment options that do not require an employee to agree to a non-criticism clause. Some very small businesses do not have these kinds of clauses due to their general informality, and being self-employed also would avoid this, but these options are not significant enough to create a significantly unburdened option apart from risking unemployment and not engaging in public criticism of one’s employer.

Therefore, while, in the current Canadian context banning the kind of non-criticism clauses that prevent employees from publicly speaking out about legal, but potentially unethical practises, that the organization they work for engages in, would go along way to strengthening democratic citizenship, it is still not an ideal solution. While democratic citizenship is important, so too is the prevention of poverty. And banning these aforementioned legal clauses will not necessarily help combat poverty. As a result I think it would be better to change the existing political economy so that the risk of poverty was so negligible that citizens were not forced to choose between economic security and the freedom to critique legal, yet ethically questionable practises. Under these conditions there would be less of a need to ban these clauses as they would not undermine democratic citizenship, as citizens would not have to risk poverty if they were to speak out against the organization they work for. But I suspect that this change in political economy will not occur anytime soon given that we currently inhabit a political moment dominated by an ideology of privatization and efficiency, so perhaps loosening the ability of employers to silence employees in this area is a good step in the right direction.


Works Cited

“Just the Facts.” Canada Without Poverty RSS. N.p., n.d. Web. 06 Sept. 2015.

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