DEAR JOYCE: Settle a $5 bet: My friend claims it's legal for a company to fire you for expressing a political opinion on your car's bumper. I argue that in this nation of free speech, it most certainly is not legal. Who wins? -- H.M.
Pay your friend $5, says Lewis Maltby, a leading human rights lawyer who is president of the National Workrights Institute (workrights.org).
Maltby is also the author of an important new book, "Can They Do That?: Retaking Our Fundamental Rights in the Workplace" (Portfolio/Penguin Group). The book's riveting pages brim with stories of real people whose constitutional rights went down the rabbit hole when they went to work.
A snippet of Maltby's comments on each of these seven things your boss can't legally do to you describes the gist of what really occurs:
(1) Dictate political expression. The U.S. Constitution applies to the government, not to corporations. A private business, large or small, can legally ignore your freedom of speech. An Alabama woman was fired at an insulation company because she refused to remove a "Kerry for President" bumper sticker from her car. Others have been axed for refusing to contribute to a specific political party or for asking inconvenient questions at political rallies.
(2) Deliberately listen to telephone calls. You have no way to know if your boss listened to your personal calls unless he is foolish enough to tell you or to put monitoring equipment where employees can see it.
(3) Lie about you in a reference check. The courts give employers a great deal of leeway in defamation (slander) cases. If it's a close call, the employer typically gets the benefit of the doubt. And you have no way of knowing what your former employer said about you in a reference check unless your potential new employer tells you -- which virtually never happens.
(4) Use your genetic information in making employment decisions. If your employer acquires genetic information during a routine pre-employment physical and refuses to hire you, you probably won't know what happened; employers are not required to explain their reasons for not hiring a candidate.
(5) Fire you for trying to organize a union. If the company fires you for trying to start a union and you get your job back, your boss will terminate you again even if you don't resume organizing. Management will wait for you to make a small mistake -- like showing up late because you were stuck in traffic -- and use it as an excuse to fire you. In their eyes, anyone who tries to organize a union is a troublemaker whom they will find a way to get rid of.
(6) Shut down the company without giving you 60 days notice. If that happens, your only remedy is the equivalent of 60 days' pay, no matter how high your actual damages.
(7) Force you to take a polygraph. This protection is real. Employers rarely demand that you take a polygraph.
MORE DETAILS. Maltby's 275-page book provides complete explanations for the above examples. It also provides many more chilling insights into the absence of personal rights in the workplace:
-- A machinist was fired for having a few beers after work with friends because the company's. owner believed that drinking is a sin.
-- A truck driver who was employed by a company that -- without warning -- closed and canceled its health insurance died three months after the closing when he couldn't pay to continue his cancer chemo.
This book shows you, the employee, how to protect yourself as much as possible under the existing laws, which, more often than not, Maltby says, favor employers.