Academic journal article Journal of Corporation Law

A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications

Academic journal article Journal of Corporation Law

A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications

Article excerpt

I. INTRODUCTION II. OUR "RHYMING" PAST   A. The American Dream of Economic Autonomy vs. the American     Reality of Employer Dominance       1. The Long Struggle against So-Called "Wage Slavery"       2. A Counterweight to Corporate Power Emerges       3. Ford's Feudal System       4. "Necessitous Men are Not Free Men"   B. Opting Out, v.1: The History of Religious Objections     to the Welfare State   C. The Movement for Minimum Essential Guarantees of Economic     Security, Dignity, and Freedom Includes Access to Healthcare       as a Fundamental Right   D. An Accident of History and Tax Law: The American System of     Employer-Based Health Insurance III. OPTING OUT, V.2: THE HOBBY LOBBY DECISION   A. The Least Restrictive Means Is Taxing the Rest of Us     1. Smith and the History of the Religious Freedom Restoration Act     2. Corporate Personhood Under RFRA     3. The Majority's Application of the RFRA Balancing Test   B. The Broader Implications of Hobby Lobby and Its Effects on Worker     Freedom and Society's Ability to Extend the Social Safety Net   C. Are We Doomed to Repeat the Past?     1. Good Jobs Are Hard to Find, or, in Other Words, Escaping Hobby       Lobby Is Not so Easy     2. The Decision Has Especially Worrisome Effects on Women's       Labor--and Women's Bodies       i. Self-Described "Corporate Religion" Goes Beyond Hobby         Lobby--and Thus, Beyond Hobby Lobby     4. Hobby Lobby's Authorization of Incursions on Workers' Freedom       Comes on Top of Other Employer Intrusions     5. Protecting the Rights of the Few (Employers) over the       Many (Workers)   D. The Implications of Hobby Lobby for Corporate Law IV. CONCLUSION 

I. INTRODUCTION

A job is not a hobby. That is the title of this Article for more than one reason. The first, of course, is because this Article addresses the Supreme Court's decision in Burwell v. Hobby Lobby (1) But more importantly, it reflects a fundamental truth for most workers in a capitalist economy. Few of us work solely because our jobs fulfill all of our emotional, aesthetic, spiritual, avocational, or hedonic needs. Most of us work because we need to feed, house, and otherwise provide for ourselves and our families.

Precisely because most of us must take jobs, we often spend a majority of our waking hours in a domain where the rules are set by others. What to wear, how much we can talk to our colleagues--much less reach out to family members--and what we can say, what we can use the computer to do, and even when we can use the bathroom are all influenced by employers. of course, long before capitalism emerged, there were periods of human history--such as the feudal era--when workers faced even more invasive controls and there was really no limit to the employer's rule, at work or at home.

But it is often forgotten that when the united States made the transition from subsistence farming to industrial capitalism, some feudal practices were revived. As most Americans stopped being small farmers and artisans and began more and more to earn their keep as the employees of large business enterprises, a new strain of feudalism returned in the form of something that might charitably be called "corporate paternalism." Motivated by many factors, employers not only controlled employee behavior during the work days--which were long--and the work week--ditto--but also attempted to control what their workers did with their scarce free time and their scarce wages. Many of these motivations were explicitly phrased in religious or moral terms.

For example, some employers paid their workers not in cash, but in scrip that could only be used in company stores, in part to prevent employees from using their pay to buy liquor. Some employers conditioned employment or higher wages on employees following the employers' moral code, including church attendance on Sundays. The employees' religious beliefs, or how they wanted to spend their own money, were subordinate. …

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