Want to keep your job? Shut up

Review: Working for the brand: how corporations are destroying free speech

Josh Bornstein, Scribe, $36.99, 304pp.

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Working for the brand: how corporations are destroying free speech by Melbourne lawyer Josh Bornstein is a great read. It is a book about the growth of corporate power over recent decades and one of its more pernicious consequences—companies punishing employees for things they say or do outside of work.

Bornstein argues that, in policing the speech of their workers, employers are becoming key arbiters of acceptable speech, often breaching employment law in the process. He makes a damning case that it is the unequal relations between employers and workers that drive some of the most significant attacks on free speech, and that the motivation of these employers is almost exclusively to protect their brand’s public image.

Bornstein offers countless examples of this phenomenon. Typically, cases involve a person making a comment on social media, which is then publicly attacked online or in the media by some individual or group. The individual’s employer learns of it and sacks them, citing concern about “ethics and integrity”. Most employees targeted this way lose their jobs, some their whole careers, some their mental wellbeing or that of their families, and some their lives as a result of the stress.

On Anzac Day 2015, for example, SBS journalist Scott McIntyre posted on what was then Twitter criticising the celebration of war and the writing out of history of the murders and rapes committed by Australian troops. Twenty minutes later, a Murdoch journalist attacked McIntyre’s posts, followed by other professional right-wingers, including the director of a conservative lobby group, a Liberal Party minister and a Sky News presenter. The next day, McIntyre was sacked by SBS.

McIntrye was a sports presenter, so his comments couldn’t be said to show bias affecting his work. Underlining how arbitrary his sacking was, he had made almost identical social media posts on many previous Anzac Days without any consequences. So it wasn’t what he said or did that was the problem, it was how others responded that led to the end of his career, in this case the others being a cabal of right-wing culture warriors.

The policies of SBS that were cited to justify the sacking were incredibly vague (as such policies typically are), making it almost impossible to defend against. They include requirements that workers “act in line with company values”, “treat others with courtesy”, “be truthful and transparent” and “not bring the company in to disrepute”, which could mean anything to anyone. As a US Supreme Court judge that Bornstein quotes points out, “Vague laws invite arbitrary power ... by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up”.

These types of company policies and codes of conduct are also often contradictory and therefore impossible to adhere to. For instance, being truthful might be in line with company values but also bring the company in to disrepute or come across as discourteous.

Some examples include ABC presenter Yassmin Abdel-Magied, who in 2016 was sacked for posting a pro-refugee statement on Twitter, “Lest. We. Forget. (Manus, Nauru, Syria, Palestine.)” Or an ALP supporter named Ruth who got in to an argument with a Liberal Party campaigner on election day who then tracked down her employer to put in a complaint. Ruth was suspended pending an investigation and later cleared following legal support.

Likewise, co-founder of the anti-bullying LGBTI program Safe Schools, Roz Ward, was sacked by La Trobe University for making a humorous post on her private Facebook account after coming under attack from the Murdoch press, the Australian Christian Lobby and Liberal and Labour leaders. And in December 2023, another ABC radio presenter, Antoinette Lattouf, was sacked after posting a Human Rights Watch report about Israel using starvation as a weapon of war against the people of Gaza.

There is, by contrast, no requirement that a company comply with its code of conduct or stated values. It’s one rule for workers and another for the company heads.

Bornstein’s book mostly tracks this trend in Australia, the US and the UK, noting that it has accelerated over the last 30 years. It has coincided with attacks on trade unions and workers’ rights, privatisation, record profits, transfer of wealth to the richest, wage stagnation, longer work hours and huge cuts to corporate tax rates and regulations—in other words, a one-sided class war.

One important consequence of this is that workers have become less well unionised and therefore less able to defend their interests, while employers have become much more powerful, abusive and exploitative.

It’s gotten to the point that, far from opposing them, we are supposed to feel emotionally connected to corporations, a situation fostered through the manipulative art of brand management. So Nike doesn’t sell shoes, it “enhances people’s lives through sports and fitness”.

The 1980s and ’90s brought with them the rise of “corporate social responsibility” (CSR), consisting of large publicity machines selling the social good of specific corporations, commonly through some minuscule “giving back” via a tax-deductible charity.

In a similar vein, “ethics washing” involves companies promoting themselves as ethical and caring (“a friend and neighbour”, says US telecommunication giant AT&T) so as to avoid and discourage proper regulation or to repair their image after being caught committing abuses.

And with a similar goal in mind, some companies have more recently resorted to giving lip service to progressive movements. Qantas eventually endorsed the campaign for same sex marriage rights in Australia, for example. Amazon stated its support for “the fight against systemic racism and injustice” at the height of the Black Lives Matter movement.

Bornstein notes that, since 2005, new hires at UK universities in marketing and public relations departments have grown nine times as fast as new academic hires. Literal armies of people are being employed to convince us to see corporations as friends and not enemies.

The spread of the internet and social media through the 2000s also gave new “popular” weight to campaigns calling for people to be sacked. The growing social media giants were rewarded with enormous investor dollars for increased user engagement, which often came to be based on cycles of outrage.

In exploring the different angles of this development, Bornstein highlights the hypocrisy of corporations—the vilest and most destructive entities in modern society—posing as any kind of authority on ethics or integrity. He cites Canadian law Professor Joel Bakan, who likened modern corporations to psychopaths, pointing out that “the corporation’s legally defined mandate is to pursue, relentlessly and without exception, its own self-interest, regardless of the often harmful consequences it might cause to others”.

Many of the most successful and ethics-washed companies have killed hundreds or thousands of innocent people, while others have paid poverty wages, destroyed the climate or systematically lied and manipulated consumers. Re-reporting some of those horrendous corporate crimes in the book is a service on its own.

For over 30 years, for example, pharmaceutical giant Johnson & Johnson knew that its talc powder products contained asbestos that was causing fatal mesothelioma and ovarian cancer. The company hid this information, fought against investigations about it and created a shell company to avoid paying damages to around 38,000 victims. In 2022, Johnson & Johnson made $24 billion in sales in one quarter while on average one woman died per day while waiting for her case against the company to be heard.

Apart from being one of the biggest planet-killers in the world, British Petroleum (BP) has experienced explosions at its refineries and rigs in recent decades that have caused dozens of deaths of workers and released millions of barrels of oil into oceans. The company pleaded guilty to manslaughter and other criminal charges after slashing safety budgets and programs that contributed to the disasters. In 2020, 96 percent of BP’s capital expenditure was dedicated to oil and gas, while the company declares that it’s “working to make energy cleaner” and designs it petrol stations in green colours.

Enron, the US-based multinational finance giant, funded a CSR workforce and donated money to arts organisations and environmental groups. When the company collapsed in scandal in 2001, the leaders were found to have hidden billions of dollars of losses and found guilty of fraud, lying, money laundering and insider trading.

Volkswagen was the 2012 recipient of the “Ethics in Business Award” issued by the World Forum for Ethics in Business, and declared its goal to become “the world’s most environmentally compatible automaker”. In 2015, it was discovered that, over six years, the company had installed software in at least 11 million of its vehicles that cheated the tests for pollution emissions, allowing each car to emit up to 40 times the legal limit.

The Commonwealth Bank of Australia, the largest retail bank here, cites “integrity” as one of its core values, which means “saying and doing what is right for our customers, our people, our community and our shareholders”. In 2017, a royal commission found that the bank had knowingly charged dead people fees for financial-planning advice for more than a decade, denied insurance entitlements to customers by manipulating medical reports and colluded with the other big banks to rig interest rates to take more money from customers.

The marketing department of convenience store empire 7-Eleven boasts of embracing “the highest standards” to act “with fairness and integrity”. In 2015 a media investigation found that it had hyper-exploited thousands of workers, often vulnerable migrants who were sometimes paid $5 per hour or pressured to work as “trainees” for months without pay. Pay records were falsified, workers who complained were threatened with being deported. 7-Eleven’s chairman at the time, Russ Withers, was also chairman of the Australian Institute of Company Directors, which promotes and teaches corporate governance.

Then there’s Qantas, where CEO Alan Joyce’s pay package doubled to $24.6 million in the year that he sacked 5,000 full-time workers, and Coca Cola, one of the key corporate sponsors of the 2022 UN climate summit despite being the worst plastic polluter in the world. The list goes on. Corporate corruption, abuse, exploitation and lies are systematic in the boardrooms of the world.

Bornstein’s passion for shaming corporate abuses, manipulation and power gives the book a similar feel to Naomi Klein’s influential anti-globalisation classic No Logo. But Bornstein’s book is elevated by a class framework: he clearly sides with workers and their industrial and civil rights against bosses’ drive for profits.

He understands that the main beneficiaries of the decline in democratic rights, the growth in inequality, the increased vulnerability of employees are the capitalist class and the layer of managers and politicians who act on their behalf.

Importantly, Bornstein doesn’t call for penalties or restrictions against criticism, protest or organising. He argues that workers’ rights are issues of citizenship and democracy. Employers should not have the power to sack employees for actions outside of and irrelevant to their job and to protect their brand and profits. And he argues that it’s a revived trade union movement that is the key strategy for fixing this.

Bornstein does not shy away from confronting the tendency on the left to campaign for sackings on a progressive basis, even though this is much less common. He writes particularly about the case of Israel Folau—the rugby player sacked in 2019 after posting a homophobic bible quote online which provoked a tidal wave of popular condemnation. This scenario creates a conflict of various instincts for socialists and left-wing people—the need to defend workers’ rights and freedom of expression versus the need to challenge right-wing bigots who attack oppressed people.

Bornstein points out the obvious parallels with cases where right-wing campaigns end with progressive individuals being sacked. While having nothing positive to say about Folau, he argues that the corporation involved should not have been the arbiter of speech, and that the question of Folau’s rights as an employee should have been considered by leftists.

It is definitely fraught for the left to campaign for right-wing employees to be sacked by their employer. In most instances, this has the effect of legitimising the use of such power by employers, even if it also signifies disapproval of bigotry. Finding ways to make it clear there is popular opposition to such bigotry without strengthening the hand of management is definitely preferable.

There was an important and positive public reaction attacking and isolating the reactionary ideas of Folau, activated in the aftermath of the victorious same sex marriage rights campaign and the attempted backlash against it, but that did not call for his sacking. Of course, the momentum of such a campaign may lead corporate brand managers to decide it is in their interests to end the company’s relationship with certain individuals, but this is not the same as the left targeting its arguments and demands at these managers, a stance that tacitly accepts that it is appropriate for corporations to police our collective ethics and politics.

Bornstein also opposes using feelings as determinants of what speech is acceptable. One of the more chilling cases he cites is that of Henk Doevendans, a machine operator and union activist for 24 years at BHP Coal. While taking protected industrial action in the middle of an industrial dispute, Doevendans was sacked for breaching the company’s workplace conduct policy by standing near a gate and holding a sign that read “No principles. SCABS. No guts”. The case went all the way to the High Court, which ultimately agreed that Doevendans was sacked because of failing to be respectful and courteous, not because he was actively organising for workers’ rights, and that the sacking was therefore legitimate.

Bornstein points to data indicating that the vast majority of public campaigns to get people sacked come from right-wingers. He argues that these campaigns tend to have far more power behind them (the Murdoch press and ruling political parties rather than likes on social media). And he argues that right-wing people targeted by left-wing campaigns are much more likely to be protected by bosses, an obvious case being war criminal and darling of the Australia establishment Ben Roberts-Smith.

The crux of the problem for Bornstein is the imbalance of power between workers and bosses. He likens the power that modern corporations exert over their employees to political dictatorships, with employers having the right to monitor workers with electronic tracking, limit toilet breaks, impose compulsory drug tests, make them wear what they’re told to and smile on demand.

Approximately 60 million US workers are barred from going to a court to seek redress for unpaid wages or discrimination, and must instead go through their company’s internal arbitration processes, removing even the possibility of independent legal processes.

More and more workers in some industries are required to sign non-compete clauses in their contracts, which prevent them working for rival companies (any other company in their field) for up to 12 months after leaving a job.

And non-disclosure agreements restrict or ban criticism of an employer, including after leaving the job, and are used to hide misconduct and abuse by corporations and management.

In a section about the silencing of academics by university admins, Bornstein argues emphatically that “brand management and academic freedom are mortal enemies”. Likewise, capitalism is a mortal enemy to actual democracy, workers’ right, economic equality and a sustainable planet. How deep can democracy be when a tiny minority own and control the majority of media and the dissemination of ideas? Or when a tiny minority own and control the majority of wealth and production?

Looking around today, we see increasing waves of repression aimed at left-wing activists and those who speak out or organise, most notably people supporting Palestinian rights against the murderous onslaught of the Israeli state. It’s imperative for left-wing people to defend democratic rights and challenge power, not ask the state to protect us.

Bornstein’s book is a radicalising read, publicising a relevant and relatively hidden issue from which to point out the rigged and hypocritical nature of the profit-driven system of capitalism.