Crooked Timber just posted an article that discusses the posts I’ve written about the workplace. I enjoyed reading it (also- these follow ups) and I’ve been thinking about where we disagree. One charge is that I either am a garden-variety liberal or I am not a defender of freedom. Maybe there is some truth to the first claim, though I value economic freedom and oppose paternalism more than other garden-variety liberals. In any case, this re-labeling doesn’t bother me too much if the libertarian label is all that is holding people back from accepting the arguments. Why is it some kind of ‘gotcha’ to say I’m not a libertarian? Why would the name matter when what we really care about is the view?

What does bother me is the claim that I am not a defender of freedom. Defending freedom is a pretty big part of my practical identity! So of course I agree that neither employers nor employees should impermissibly coerce or deceive people. I think what is going on here is that I defend a vision of freedom that Bertram, Robin, and Gourevitch (BRG) reject. This is where the action is so I will try to say a bit more about it here. The questions are 1) whether the workplace is usually the kind of thing that impermissibly undermines freedom and 2) whether further limits on freedom are the solution.

As I’ve written before, just calling something ‘coercive’ doesn’t get us very far in knowing whether it is an impermissible limit on our freedom. What we really care about is whether interference violated someone’s rights. BRG seem to think that impermissible violations occur any time someone is compelled by the penalty of getting fired to do something that she did not explicitly consent to. On this view, labor arrangements are often impermissibly coercive because getting fired is so devastating that workers are at the mercy of bosses.

I’m with Alex Tabarrok in thinking that this definition is too broad because it would include a lot of practices that are just voluntary mutual exchange. An employer usually does not violate your rights when she exercises her right to stop paying you even if it would be bad for you if she did. Impermissible coercion would require an antecedent entitlement to continued employment and wages. I’m open to this possibility in some cases. For example I find Sophia Moreau’s recent paper about discrimination pretty compelling. Still, I doubt such entitlements or obligations exist in most cases.

BRG are especially concerned with employer’s power to influence our private lives. Why is Corey Robin so concerned with public officials’ off-duty activities but he thinks that workers shouldn’t ever be judged for their off-duty behavior? We ask about the private lives of officials for the same reasons that employers ask for information about the private lives of their employees—employees influence the fate of the company, represent the company, and act on its behalf. Employees can refuse of course, and employers can choose other workers just as voters can choose not to elect a president who refuses to disclose his finances. Often the reasons for private intrusions like drug tests and background checks are even stronger though, insofar as they are used to promote coworkers’ and consumers’ safety, to protect employers from theft, or to prevent rare cases of disability fraud. Concern with the private sphere aims to address wrongdoing in these cases. Employers are not trying to oppress workers. Why would they?

Say we buy the idea that an employer’s power to fire makes workers too vulnerable because unemployment is a serious harm. Even then, I have suggested that a basic income could  mitigate the badness of unemployment and thereby insulate workers from this kind of vulnerability at work. BRG have less affection for the UBI. They say that I overlook the non-monetary costs of leaving a job, (e.g. you’ll miss your coworkers.) Again, I agree that it’s bad for workers when they miss their pals but this is only an impermissible penalty to impose on people if they are entitled to retain the non-monetary benefits of employment. Such a right is over-inclusive. For example, this theory would render temporary employment agreements morally wrong because they ultimately impose non-monetary costs on employees at the end of the contract.

Another claim is that the basic income would not be feasible. This is an empirical point, but people on the Left and Right have suggested that a UBI can be economically feasible, perhaps even with our current level of social welfare spending. In any case, I am surprised to find advocates of workplace democracy complaining that my UBI proposal is not economically and politically feasible, and arguments about a policy’s current political feasibility are not a strike against the justice of any policy.

Finally, BRG propose a thought experiment that is meant to illustrate that good exit options (like a UBI) do not adequately address the tyranny of the workplace:

The limitations of exit as an instrument of freedom can be illustrated by a simple analogy. Suppose Canada were a dictatorship, but the United States welcomed anyone who wished to leave, paid for her ticket and promised her a job. Would that mean that anyone who stayed behind was free?

Yet the workplace isn’t like the Canadian dictatorship because states are territorial, non-voluntary associations and the workplace is not. We are not born into our workplaces. I am more skeptical about political leaders’ rights to rule us than employers’ rights to rule the companies they created. Employers secure the actual consent of their workers while few of us actually consent to political leaders. These asymmetries are normatively important.

To make the Canadian analogy more apt, imagine that Canada was unpopulated but for one person who justly owned all the land. Say he put an ad in the paper that said, “Residents wanted! Beautiful camping and Tim Horton’s Coffee! Must submit to dictatorial rule—cancel any time!” Then, if people moved to Canada for the camping, but found the laws to be too much, they could move on back to the States. Maybe the dictator is still doing something wrong, but we wouldn’t find this scenario nearly as problematic. In fact, this set-up kind of sounds like a homeowners association to me.

This is the heart of our disagreement. BRG think that workers are entitled to the benefits of employment unless they do something that is obviously wrong. They claim that this right requires a lot of regulation and state interference.  The idea is that employees should be able to exercise all their rights in the workplace without fear of getting fired for doing so. On this view employees may even have political rights to control their workplace.

I think that all workers are entitled to make employment agreements for themselves without state interference. Employers have rights to stop extending the benefits of employment to their particular workers just as employees have rights to quit. Employers can permissibly place conditions on employment just as employees can negotiate the terms of their contracts when they are hired. While I agree that no one is entitled to harm others, employers and employees may have rights to do wrong. This means that the law should not prohibit wrongful behavior in all cases. This doesn’t mean that horrible bosses and bad employees act permissibly; I just doubt that further limits on occupational freedom are the right tool to address workplace unfreedom.

I suspect that some of this controversy is because the Crooked Timber crew thinks that my proposal would fail to maximize freedom on balance. I do not focus on the balance of freedom because I think that free choices should be respected, not maximized.

Where does this leave us? BRG propose law, regulation, and economic democracy. They call it more voice. I call it more bosses. I see that BRG have a different conception of rights and freedom. What I still don’t see is why workplace democracy and regulation would be liberating on any conception of freedom. Why are these self-proclaimed liberals are so hostile to the UBI? Do they really think that right to own productive property and contract are so insignificant that they can be radically curtailed and even eliminated without the state and the workplace becoming less free? How did we get to this point where the libertarians are the vocal advocates of a basic income while the Marxist liberals are arguing that what workers really need is less choice?