Josh Bornstein on how big companies are taking away employees’ private rights

Governments around the world are battling to regulate big tech companies. As the world becomes more interconnected, people are increasingly aware of the vast, often negative, influence these companies play in our lives.

More generally, many corporations extend their power over their employees to their non-work lives.

Josh Bornstein is a lawyer specialising in employment and labour relations law. His new book, titled Working for the Brand: how corporations are destroying free speech, examines the problematic reach of the corporate hand into the private sphere.

He joined the podcast to talk about his book and more.

On big tech companies, Bornstein highlights the kind of damage these companies can cause:

These rampaging large monopolies, out of control monopolies, who as well as changing our culture in many ways have visited many harms, in the form of harm to democracy as well as brutalising culture inciting violence. They are not properly regulated, and we’re seeing the state now trying to wrestle with the problems they are causing. Whether they can be reined in is a question I pose in the book, because they are so enormous.

Bornstein demonstrates how easily companies can silence their employees:

When we go to work, are we engaging in an exchange of labour for income or are we unwittingly forfeiting our right to participate in democracy? Let’s take media companies. [They] are, they tell us, designed to fulfil an important democratic function, which is to hold the powerful to account and to present the truth. There is a disturbing tendency, particularly in commercial media, to impose NDAs on employees not just after they’ve had a terrible sexual harassment dispute but at the point that they sign an employment contract.

There is a real tension between saying we’re in favour of demonstrating the truth and holding the powerful to account while silencing our staff.

But, he says, he’s encouraged by the work of some government leaders:

I’ve heard recently the South Australian Premier talk about imposing a duty of care on big tech towards consumers, and I think that would be a game changer because a duty of care would require big tech companies to prevent harm and a failure to comply with that obligation would result in lawsuits and significant loss of revenue. That sort of approach, a multifaceted approach, which just doesn’t require one regulator playing Whac-A-Mole. But multifaceted regulation, I think is critical when the companies are so powerful.

Bornstein laments the corporatisation of universities but notes their lack of total power, which he sees in other areas:

Universities have been corporatised. It’s well known now. They’ve become large commercial juggernauts headed up by vice-chancellors on commercial CEO salaries, $1.8 million, which is an extraordinary salary for someone working in a not-for-profit institution. They’re a not-for-profit institution, but in many ways now ape corporate profit-seeking entities, and they’ve brought in directors and managers that now apply the usual corporate imperatives, including corporate brand management.

They do try and suppress the academic freedom and speech rights of employees. But it’s an area where they’re not always successful, and that distinguishes them from the rest of the labour market.