Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, July 1, 1990 TAG: 9006290776
SECTION: BUSINESS PAGE: E1 EDITION: METRO
SOURCE: PAMELA MENDELS NEWSDAY
DATELINE: NEW YORK LENGTH: Long
Maltby is the coordinator of the Taskforce on Civil Liberties in the Workplace. Launched about a year ago by the American Civil Liberties Union, the project aims to expand Bill of Rights guarantees such as free speech and the right to a fair hearing into the workplace.
For now, Maltby is concentrating on two shorter-range goals: informing the public of what the ACLU considers a dearth of worker rights and encouraging state legislatures to pass bills to increase them.
"If the government wants to penalize you - even if only for a $25 traffic ticket - you've got a right to tell your side of the story and defend yourself," Maltby said recently in an interview at his office in ACLU headquarters overlooking 42nd Street in Manhattan. "But you can work for a company for 20 years and lose your salary, your health benefits, your pension - lose it all and never be able to tell your side of the story. And there is nothing you can do about it.
"Ninety percent of the people who call us for help we have to turn down on the telephone, because the Bill of Rights does not apply to the workplace."
In the ideal workplace, Maltby said, whistle-blowers would be protected. Anyone who believed he or she had been fired without just cause would have a right to appeal the dismissal to an impartial party. And employee privacy rights would be protected through such means as limits on drug testing and electronic surveillance.
The agenda does not appeal to many business owners, whose advocates argue that employees already are protected by law and judicial precedents, that union contracts provide additional safeguards and that more government interference in the workplace would gum up industry.
Stephen Bokat, vice president and general counsel of the U.S. Chamber of Commerce, describes the ACLU project as "patently absurd." Bokat said civil rights legislation outlawing employment discrimination based on sex, race or other characteristics - as well as some state court rulings that have reinstated employees who were unjustly fired - gives plenty of help to workers. "We have a free enterprise system, and I don't think free enterprise means having government dictating what's going to happen in the workplace," he said.
Robert Ward, spokesman for The Business Council of New York State, New York's major business lobbying group, is even more pointed. "Employers have rights, too," he says, and one of them is "the right to fire an employee not doing a good job."
Business people are not the only ones to criticize the project. While Maltby's project is endorsed by the ACLU, he concedes that not everyone in the organization is enthusiastic about it.
"I'm somewhat ambivalent and probably leaning against our involvement in private workplace issues," said Natasha Lisman, a Boston lawyer and self-described "card-carrying member of the ACLU," and member of the board of directors of the Massachusetts Civil Liberties Union.
Lisman believes that the ACLU should concern itself with constitutional matters and that by stepping beyond them, the group strays from what she considers its proper role as a politically neutral champion of the Bill of Rights.
Workplace rights, Lisman said, are more an economic or political concern and are more appropriately pushed by unions or other workers' organizations.
To defend the workplace project, Maltby points to a statistic: About half the 50,000 or so complaints the ACLU and its state affiliates receive yearly are workplace-related.
Maltby believes that exceptions to the common law doctrine of "employment-at-will - in which an employee may be fired at the whim of a supervisor - are so few that they're of little use to most workers. In California, for example, only about 4 percent of those who were wrongfully discharged in 1987 received relief through the courts or through settlements, according to a Labor Law Review analysis Maltby wrote. And most U.S. workers are not unionized.
Maltby believes that planting civil rights on the job is a logical extension of the work of the founding fathers, who more than 200 years ago feared the enormous powers of the crown, but never conceived of corporations capable of exerting great control over people's lives.
The issue of employee rights is made more pressing by advances in technology. Computer and telephone monitoring of employees is now commonplace, he says, and genetic analysis could be used in the future to keep people from getting certain jobs.
Furthermore, Maltby believes people can enjoy greater rights at the workplace without disrupting efficient business operations; that the idea is not to keep lazy workers from being fired, but to assure that no one loses his or her job without a good reason.
A copy of Studs Terkel's "Working" rests on the bookshelf in the small Manhattan office that Maltby, who divides his time between New York and Philadelphia, shares with another ACLU lawyer. The office has a just-moved-in look about it: A framed poster of Monet's "Years at Giverny" is still on the floor. And the scene outside Maltby's office - a front-row, center view of Les Gals Adult Center with its advertising of XXX-movies provides Maltby, a trim, tall man with blue eyes, a chance to display his dead-pan sense of humor. "Some people think that's poetic justice," he says, without having to explain that his sometimes controversial employer has often been criticized for defending offensive speech.
Maltby, a longtime civil libertarian who graduated from law school at the University of Pennsylvania in 1973, believes much of his mission is to convince the corporate community that expanded employee rights are not only not a bad thing, but a means of boosting business.
"I think respecting the Bill of Rights is the sanest thing an employer can do," he says. "People tend to paint this as a tradeoff between running an efficient company and civil rights. Most of the things we're advocating wouldn't hurt a company - and some would help."
How? "If you want people to do more than just show up, if you want them to put energy into the job, they are more likely to do that in an atmosphere where they are treated fairly."
He refers to his own experience in the business world. For 12 years, Maltby worked - first as general counsel, then as an executive vice president - at Drexelbrook Controls Inc., a Horsham, Pa.-based manufacturer of electronic-measuring and control systems, principally for the chemical industry. ("We keep Bhopals from happening," Maltby said.)
In the mid-1980s, as concern about drug abuse swept the workplace, Drexelbrook was faced with deciding whether to test employees for drug use. "I found I couldn't adopt the kinds of policies the chamber of commerce tells the employer to have," Maltby says.
Drexelbrook, which has about 300 employees, chose not to test for drugs. Instead, it trained supervisors to help employees perform well or to find out why an employee was not doing a good job. Drexelbrook also set up an employee-assistance program offering confidential help to employees whose problems were affecting their work.
Other employers earn high marks from Maltby for their rights-conscious workplace policies.
But Maltby is convinced that the time for workplace rights has come. The founding fathers, he notes, rigorously protected the rights of only white male property owners.
"Over the years, the country began to realize that was just too narrow," that women and racial minorities had rights, he says. "We've finally realized we all ought to have the rights at work, too."
by CNB