To What Working Conditions Can We Consent?

Among the long list of US imports from China, we can now add the 996 work week. This stands for from 9:00 AM to 9:00 PM, 6 days a week. Technically illegal, but still widely practiced in China, the intense 72-hour work week has found another home in the United States’ frenetic AI startup culture. It raises philosophical questions about free choice, regulations, and just what agreements we should be allowed to enter into voluntarily.

One perspective on this matter would be full freedom of contract — a right for an employer and an employee to voluntarily enter into an agreement without government interference. (This actually was a right in the US for about 30 years in the beginning of the 20th century, when the Supreme Court conjured it up in the now notorious case of Lochner v. New York (1905).) On this analysis, as long as an employee and an employer know what they are getting into – i.e., there is no deception – then the employee should be allowed to take on essentially any working conditions. This would include agreeing to work extremely long hours or take on risky tasks that many would consider harmful or ill-advised.

A freedom of contract perspective is at its least problematic in cases like 996 opportunities at AI startups. Here, the job seeker is likely in high demand with a lot of individual negotiating power and alternative job options. However, this may not always be the case. What about, for example, a small town with a single factory? The factory has a tremendous advantage when negotiating with any individual employee, easily leading to unsatisfactory wages and working conditions. This is obviously an extreme example, but it is generally easy for individuals to be at a disadvantage relative to large corporations. Steps to ensure fairness, that is, allowing parties to negotiate on more even ground, may be important to prevent exploitation.

The factory example also speaks to a general limitation of freedom of contract. A decision can be voluntary, as in no one is being literally coerced into it, but still completely miserable. Our hypothetical small-town factory worker may be choosing between three bad options: unemployment, working at the factory, or leaving town. (Some philosophers, such as the ethicist Michael Sandel, argue that employees can indeed be coerced by circumstances rather than by a person, such as if an individual’s options are work for a particular employer or starve to death.)  Put simply, whether someone chooses their employment voluntarily is a different matter from how good or desirable it is.

Assuming a government cares about its populace having good working conditions, what then?

The most direct strategy is to impose guardrails, such as minimum wages and maximum working time. These set certain working conditions deemed unacceptable as out of bounds.  While this can restrict choice for some workers, the aim is that for most people it facilitates a better work environment, especially for those at risk of being exploited in slanted negotiations.

A second avenue is worker empowerment through stronger rights and protections. For example, by ensuring workers can form collective organizations, such as unions, a government can help to even out power imbalances and better position workers to advocate for themselves. Unlike regulations, this preserves the focus on voluntary agreements between employees and employers, but strives to make negotiations fairer.

Finally, the government can expand the pool of options available to job seekers. If a government provides something like universal basic income or generous unemployment benefits, then a job offer must be at least as appealing to be viable. Again, this does not directly interfere with negotiations.

There are, to be clear, complex economic impacts to each of these proposals that require more than philosophical analysis to untangle.

The original driving question was about what limits can be set on employment agreements. This sets an important baseline. The different strategies above help to ensure working conditions are not unsafe, terribly paid, or otherwise oppressive. But what about having work that does not just squeeze by as acceptable, and meets basic needs, but is desirable and fulfilling? Should this be a goal?

An analogy may be helpful: Do we want consenting to an employment contract to be more like medicine or more like sex?

Medicine is rigorous in ensuring patients consent to medical procedures, but the overall situation is often quite grim. There is never an expectation that someone like their medical procedure, merely that they agree to it. Is a cancer patient being “coerced” into having surgery? Not in terms of how we typically use the word, but their available options may well be surgery or death. In short, medical decisions are often the best of a bad lot.

By contrast, consent for sex is intended to be enthusiastic. People should like sex. If two people are only agreeing to sex, because it’s the best option of a bad set of options, then something has gone very wrong. (Imagine if a housewife only has sex with her husband because she is afraid that otherwise he will divorce her and she will be left without a home.)

For many, employment echoes the medical decision-making context, where one chooses the least bad option in a difficult situation. However, is this really something we want to emulate where we have more control? What would it take to ensure widespread options for making a livelihood that people consent to, not begrudgingly, but enthusiastically?