When it first came on my radar, it was via a twit by Slate’s Mark Joseph Stern.
It’s amazing that passionate foes of “cancel culture” who don’t want people to get fired for stupid or arbitrary reasons have managed to conceal their deep opposition to at-will employment for so long. Welcome to the fight for just cause employment protections, everybody!
It struck me as a non-sequitur, the usual snark intended to shift focus away from the vicious mob they adore to the cause they despise. I wouldn’t have used the word “amazing,” but “incredible,” as it’s not believable that anyone would so flagrantly conflate cause and effect for their own purposes and expect anyone outside of their echo chamber not to see the irrationality.
Then again, it wasn’t nearly as bad as Judd Legum’s “cancel culture doesn’t exist” claim of the day before. So in the scheme of mob apologists, Stern wasn’t at the bottom.
Had the idea ended with Stern’s twit, it would have been unworthy of any serious thought. After all, mob proponents regularly spew irrational arguments in support of their irrational (and abhorrent) causes, and when they get the chance to double down on their causes via imaginary connections, they seize it. Making sense is not a requirement.
The prevalence of at-will employment makes it easier for employers to engage in knee-jerk reactions to short-lived social media controversies. For instance, a Hispanic electrician working for the San Diego Gas and Electric company was fired for cracking his knuckles in a photograph because a social media mob believed that he was flashing a white power sign. The man who took the picture has since admitted that he probably misinterpreted the interaction, and thousands of people have now signed a petition, asking the electrician’s former employer to reverse the mistake. But since the employee has already lost his job, it will be hard for him to obtain justice. As in many other cases, both parties would have been better off if the law had required the company to afford due process to an accused worker before deciding whether or not to fire him.
In the example given, it’s likely true that had the employer not been allowed to knee-jerk fire the guy because social media blew up on him, wrongly, for a few days, his job would have been saved. But this is one example, and while it would have helped in this instance, it wouldn’t have helped for those whose canceling didn’t involve an employer, per se, where the social media outrage didn’t flip on itself a few days later when it was realized the mob blew it, or take into account the implications for the employer’s ability to run its business having nothing to do with a knee-jerk reactions to social media.
The employer is still an employer with all its other at-will employees even when there’s no social media mob demanding an employee, branded a social media pariah, be burned at the stake. Whether you’re for or against at-will employment otherwise is not the issue here; the only question is whether eliminating at-will employment is the solution to the ravages of cancel culture.
There is a better alternative: Contracts negotiated by labor unions often provide so-called “just cause” protections for employees. The tests of just cause typically include questions such as whether the employee was forewarned of the consequences of his or her actions, whether the rules were applied evenly, and whether there was an objective investigation into the employee’s conduct. In other words, it forces employers to conduct a fair process before firing their employees, which gives the accused a real chance to defend themselves. If we really care about free speech and due process, these protections should be available to every American.
There are, of course, a plethora of other considerations involved in the government imposing “just cause” dismissal on private businesses. In the instance of cancel culture, it would provide the employer with a plausible excuse, “Sure, we would fire the person deemed a racist on twitter, but the law won’t allow us to do it.” This, the logic goes, would protect the employer from the mob for “protecting” its employee, whom the mob deems racist and deserving of utter destruction.
But that’s the connection missing here. The employer isn’t the problem at all, but it’s the secondary victim of the mob. The mob will take out its fury on the employer for not imposing the mob’s will by firing whomever it decides is a social pariah and deserve to be fired. And the employer is constrained to make a marketing decision, does it tell the mob to get lost or bend to its will to avoid the secondary effect of harboring a racist, and thus being complicit in whatever evil the mob has determined must be eradicated.
In labor law, secondary boycotts are unlawful. You can’t attack a business that does business with the target of your fury to force it to pressure the target to acquiesce. It’s not because it’s ineffective, but because it’s too effective, and the secondary business has neither done anything wrong nor has the power (or duty) to address the issue. It’s just a collateral victim, subject to ruin for the cause. It’s a bridge too far.
What the mob is doing here is a secondary boycott on the employer for the employee’s assumed evil, even if the evil has nothing to do with the job or the employer. They will destroy the business’ reputation not for anything the business has affirmatively done, but for what it has failed to do, acquiesce to the will of the mob by punishing the mob’s target.
At-will employment is, in those instances where it applies, a potential band-aid on the problem, but it shifts the blame from the cause of the problem, the mob and its demands to cancel, to a symptom, the employer who will throw the employee overboard to save itself from sinking.
Eliminating at-will employment implicates a great many collateral employment issues, fixes nothing with the root problem of cancel culture and, as band-aids go, is unlikely to stop the blood from gushing. It might help by providing the employer with a plausible excuse, but the loss of a job is only one of many life-destroying weapons of the mob. The mob won’t rest until it has destroyed its victim, one way or another.