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… liberty and justice for all

The National Workrights Institute in Montgomery stands up for employees’ rights

Melinda Sherwood, Business Editor
   Those who have seen the 1997 film "Gattaca" will recall its unsettling depiction of life and work in the "not too distant future," when genetics have evolved to a point where each person’s life expectancy and likelihood of disease is ascertained at birth.
   As a result, those born "naturally," complete with flaws, are confined to work the most menial jobs, while their genetically enhanced brethren are guaranteed top posts in the best companies.
   In the workplace of the future, employers not only reserve the right to monitor employees’ electronic communications, they reserve the right to monitor their identity, through random and frequent urine tests and hair and skin analyses — all in the name of quality assurance and security.
   An unlikely scenario, you might think, given current laws that prohibit employers from discriminating on the basis of sex, race and religion.
   Yet, there are no laws on the books today that prohibit private companies from making genetic testing, say, a condition of hire, says Lewis Maltby, director of the National Workrights Institute in Montgomery, a nonprofit advocating for human rights in the workplace.
   "Genetic testing is going to become a reality very soon unless we stop it," says Mr. Maltby, an attorney who established the institute, formerly a branch of the American Civil Liberties Union, in Montgomery four years ago.
   And it’s not hard to see why — just imagine all the money companies might save if they were able to determine which employees might get sick and burden the company’s health care system, he says.
   "Employers aren’t doing it yet because it’s not quite yet cost-justified," he said, "but the cost of testing always drops considerably over time."
The "black hole" of human rights
    Genetic discrimination is only one of the issues the National Workrights Institute has identified as a human rights violation in the workplace. Drug testing, monitoring of employee e-mail, employment contracts that require employees to give up their right to sue and employers’ blanket right to fire employees "at will" are among some of the common employment practices that the institute would like to change.
   Mr. Maltby and his "ragtag army" of advocates — legal director Jeremy Gruber, office manager Sheila Vaidya and legal interns Nanette Green and William Tran — work to educate the public about such issues and help lawmakers draft legislation that protects workers’ interests. Their goal is to have many of the rights guaranteed to citizens under the U.S. Constitution, like freedom of speech and freedom of privacy, extended into the private sector.
   "America sets the standard in the world for human rights, but you leave your rights behind when you go to work in America," said Mr. Maltby. "The Constitution and Bill of Rights do not apply to private corporations. You have no freedom of speech, no right to privacy, no right to due process before you’re punished. All the rights in the Bill of Rights that all Americans treasure, that we fought wars to protect, go up in smoke when you go through the office door."
   Experts believe that at least 150,000 people are unjustly fired every year, according to the institute’s Web site. Examples include an employee who was fired for being late after a family member died. Employees have also been fired for protesting the concentration of carcinogenic saccharin in children’s aspirins, for refusing to falsify medical records — even for refusing to vote as their employers wish.
   "If you were standing on Nassau Street last March expressing your feelings about the coming war in Iraq," said Mr. Maltby, "and your boss drove by and saw you on what he or she considered the wrong corner, you could have been fired the next day with no legal recourse.
   "Basically," he continued, "your boss can do whatever he wants to you as long as he doesn’t do it because of your race, gender or religion."
The other side
   This unpleasant reality, however antithetical to our country’s tradition of protecting civil liberties, is also one that most working Americans accept as an implicit part of the employment agreement.
   After all, who would defend an employee’s right to free speech if it involves derogatory remarks to coworkers or clients and hurts business? Clearly, an employer’s right to lead a successful business should outweigh a worker’s right to free speech.
   Workers also routinely submit to drug tests or hand over medical records, even sign away their right to sue as a precondition of hire. As the argument goes, if one company’s policy doesn’t agree with you, you’re "free" to seek a livelihood elsewhere.
   "Employment is still a voluntary bargain between free people," says John Sarno, executive director of the Employers Association of New Jersey, a nonprofit organization with more than 1,000 members that provides information and training to employers. "If they don’t want to take the (drug) test, they don’t have to have the job. That’s the freedom of contract."
   The employer community’s main objection to granting workers’ broader rights in the workplace is the likelihood that it will lead to a flurry of litigation, said Mr. Sarno.
   "I don’t oppose workers’ rights in principle, and I think workers certainly have rights and certain protections under the national Labor Relations Act (which protects workers’ rights to organize)," said Mr. Sarno. "We also have laws protecting employees from job discrimination, but I think a Bill of Rights for workers — it’s unclear whether a state can pass that type of law because the federal law may overrule or override what the state can do in this area, that’s number one, and the other concern is the possibility of a flood of frivolous litigation."
   However, the court system is not as bad as employers say it is, Mr. Maltby retorted.
   "Employers win the vast majority of cases that employees bring," he said. "You can’t withhold rights that people deserve because you don’t like the court system. It’s simply not fair."
In the hot seat
    While he has spent the last two decades campaigning for workers’ rights, Mr. Maltby has also sat on the other side of the desk, as corporate counsel and human resources director for a large multinational company.
   A native of Abbington, Pa., Mr. Maltby got his undergraduate and law degrees at University of Pennsylvania and spent the first half of his career as general counsel at Drexelbrook Engineering, in Horsham, Pa., a company that specializes in preventing toxic spills. When he was promoted to executive vice president, part of his job was to oversee the company’s employee policies.
   "I’ve been a civil libertarian since I was 12 years old," says the Princeton Township resident. "I always had the feeling that people should be allowed to live their lives they way they chose."
   Suddenly, however, he was forced to make HR decisions in the best of interest of his company that would have a large impact on employees.
   "Here I was in a company that had to prevent toxic chemical spills and I didn’t believe in random drug testing," he said. "I had to make decisions I considered principled but at the end of the year the ink had to be black.
   "It’s very easy to complain about corporate policies when you’re on the outside," he continued. "But once you become responsible for corporate HR, you’re really on the hot seat."
   In 1987, Mr. Maltby penned a guest editorial for Inc. magazine stating his opposition to random drug testing, which he basically argued is a bad investment — there is little evidence that drug testing decreases absenteeism, accidents, disability claims and incidents of employee theft and violence, he argued.
   Since then, he has been a nationally recognized expert and prolific writer on human rights in the workplace, appearing in numerous publications and talk shows, from Crossfire to Geraldo.
   He left the corporate world in 1988 and founded the National Workplace Rights Office of the American Civil Liberties Union. He and wife Beth, also trained in law, moved to Ettl Farm in Princeton.
   In 2000, Mr. Maltby and his staff left the ACLU to establish the National Workrights Institute in Montgomery, which works closely with the ACLU on a number of fronts.
One right at a time
   Among its achievements, the institute, while still under the ACLU, helped enact statutes in 29 U.S. states preventing private employers from discriminating against employees’ off-duty behavior, except where that behavior affects their ability to perform their job.
   One of those, a 1991 New Jersey statute, prohibits employers from discriminating against employees’ off-duty tobacco use — it does not cover any other activities.
   "There are literally thousands of employers who tell you that you can’t smoke or drink or engage in risky hobbies (off duty)," said Mr. Maltby. "Some rules are moralistic. And some rules are based on healthcare cost concerns."
   The institute also helped enact a law in Georgia that prohibits employers from punishing employees who blow the whistle on illegal employer conduct; a law in Connecticut that requires employers to give employees notice of surveillance; and nine state laws that eliminate abuses in employment drug testing, such as random testing in jobs that are not "safety sensitive."
   The institute also played a role in drafting a federal bill passed by the Senate last fall that prevents employers and insurance companies from engaging in genetic discrimination. The bill has stagnatedin the House of Representatives.
   But much more remains to be done, said Mr. Maltby. On one end, the institute is trying to convince employers that there are no cost benefits to policies that trample workers’ rights.
   On the other end, the institute has to convince workers, who have been conditioned over time to believe they have no right to certain freedoms in the workplace, that change is possible.
   "People think that having not rights at work is like death and taxes — it’s unavoidable," said Mr. Maltby. "But it’s not. If every American who didn’t like losing their rights at work would tell their Congressman about it, the world would be a much better place."