The first involves a decision of the town of Getxo to obligate those of its employees who smoke, to make up the work time lost to smoking ("Salir a fumar te puede costar horas extra, Qué!, June 8, 2006, at 1). Smoking breaks will be timed and that time off, not available to non-smoking employees, will have to be made up. The report notes that this imposition is not popular among Spanish workers. Only 40% of those sampled in Spain thought this was a good idea. In Catalonia, the number of people approving this policy was even less--about 30% of those surveyed. The difficulty is easy enough to see--the employer is seeking to use the employment relationship to legislate social and health policy, and affect the choices of its employees. In one sense, conservatives might say--well and good, all life choices are economic in this way, just usually not so blatantly obvious. That an employer seeks to take on for itself the role once asserted by the church, or the state (for example under Communist totalitarian governments) should make no difference. But, of course, the answer is not that easy. It is true enough that employers ought to be able to direct the work of their employees, and it is also true that a foundation of that direction has to be the fundamental relationship between work duties, time spent at work, and wages. On the other hand, the nature of that fundamental relationship ought to be limited to the economic relationship itself. The difficulty here is that the policy also touches on non economic aspects of worker lives. Those aspects are less clearly the domain of an employer. And certainly employers would seem to have less legitimate authority over non-economic aspects of workers lives than even the state, the church, or a worker's family. But, one might object, this is the sort of thing employers have been doing all along. The response, of course, is that while employers have traditionally had the power to discipline workers for violation of positive law and social custom (for example firing adulterers or women who got pregnant out of wedlock in the early part of the 20th century), employers did NOT take a hand in the formulation of those policies. What one is beginning to see here is the employer as a positive source of social custom rather than as a site where such custom may be implemented or enforced. That distinction is critical, though not widely perceived.
Thus, this regulation seems to privatize the power to regulate an aspect of life once beyond the central control of purely economic actors, like corporations. The economic actor, once a purely passive social actor, has become a serious source of social mores. This suggests, in a very small way, another aspect of the increasingly public role of private economic actors. With globalization, and the privatization of regulation, those aspects of positive regulatory power once solely in the control of the state, or the church, or social groups, now seems destined to those economic actors in which norm making power of an economic kind is increasingly vested. Regulatory power continues to be diffused throughout the social system in ways that might have seemed impossible even a generation ago. With this sort of power may come more state responsibility, a matter with respect to which I have written before. We will be seeing more of this in the coming years.
The other action involved coffee rather than cigarettes. A judge in Valencia ruled that staff members could not be commanded by their bosses to get them coffee ("No estamos para servir cafee al jefe," Qué!, June 7, 2006, at 1). The case is interesting on a number of levels. First, the judge who made the ruling is female. She was likely far more sensitive to the sort of abuse that was at issue in the case--the (male) boss demanding domestic service from his (usually female) staff. To that extent, the increase in gender equality within the judiciary has produced a certain positive movement in the amelioration of the worst aspects of patriarchy in economic settings. Second, the case is even more interesting for the way in which it seeks to regularize the conditions of labor at the lowest levels, that is at the levels where exploitation is most likely to take place without worker objection. Subordination in the work environment can breed exploitation, and the judge noted the many ways in which bosses tended to exploit their position by demanding that their lowest level employees undertake a number of often purely domestic tasks. This is an old story. But it is also a story that most in many cultures, not just ion the West, tend to ignore.
Employers are quick to condemn the ruling as unjustifiably limiting employer flexibility, and there is a certain great truth to this argument ("Se acabó lo de servirle el café al jefe por decreto," Qué!, June 7, 2006 at 2). But flexibility that is not sensitive to exploitation, privileges one aspect of the employment relationship over another equally worthy of the protection of public policy. While the judicial decision in this case, suggesting that workers are limited to those tasks described or reasonably implied from their job description may make for a certain amount of inflexibility, the solution need not be in a system that forgives exploitation in the name of efficiency. Such a choice would essentially impose on the lowest level employees, those with the least wealth, the obligation to subsidize their employers by forgoing remuneration for work required of them essentially without compensation. That would seem unfair, even by the standards of the market--if only because the resulting employer/employee framework is unbalanced and the playing field tilted to one side. The state ought not to subsidize that sort of imbalance. Not that I am against employer freedom to set the terms of employment--but that would require greater care in the definition of the terms of employment; a not too difficult task for large employers used to complex drafting, or even for small employers who are used to honest dealing. It will be interesting, in this as well, to see where this sort of judicial intervention in the employment relationship will lead.