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ceptance of an economic
theory that has hardly achieved universal legitimacy.
A less conceptually radical way of covering much of the same territory has
been suggested by O'Neil (1993) in connection with the employment relationship.
Rather than trying to analogize too broadly and perhaps inappropriately
from the narrow property orientation of fiduciary duties, he suggests modifying
a legal obligation already embedded in the employment law. Currently, employers
can demand a duty of loyalty from their employees derived from the original
law of "master and servants." Employees can be sued for acts of disloyalty that are
not actually criminal, such as revealing secrets or "stealing" business opportunities.
IRRELEVANCE OF FIDUCIARY DUTIES TO SHAREHOLDERS 287
learned about through one's job, away from the employer. O'Neill proposes
making this duty reciprocal so that employers cannot take advantage of their
workers through deliberately misleading them or unnecessarily disregarding their
interests in making decisions.
Such a reciprocal duty of loyalty might enjoin a profitable employer from
laying off employees if it can offer no rational business purpose beyond that of
trying to convince investors to bid up the price of the stock. Similarly, corporations
would be held accountable for lying to employees regarding their future
relationship, or replacing permanent employees with temporaries or part-timers
in order to avoid paying benefits. Loyalty defined as honest communication and
the avoidance of corporate enrichment at employee expense would go a long
way toward creating fiduciary-like protections for employees. At the same time,
managers would not be constrained from any ethically justifiable business decisions,
including such unpleasant ones as downsizing in order to stay competitive.
Moreover, if compelled by threat of lawsuit to behave ethically toward employees
and other stakeholder groups, many firms might actually discover that
two-way loyalty creates no impediments to long-term profitability (Jones, 1995).
A similar duty might be extended to the communities. Communities could
rely and, if necessary, sue upon promises made by businesses in return for tax
favors or infrastructural investment. Companies would be forced to temper their
requests with realism and honesty. Some might argue that these new legal duties
place corporate boards and top executives under "too many masters." But as
Macey and Miller point out (1993), corporate leaders already serve many masters,
and it is difficult to see that requiring that they treat those from whom they
expect cooperation with honesty and care would be unduly burdensome. Moreover,
even if such behavior does, in some instances, raise the cost of doing
business, it is difficult to understand why society as a whole would not be better
served with slightly higher prices here and there, if they were the by-product of
more dependable and trustworthy interactions.
Conclusion: Implications for Stakeholder Theory and Practice
If a corporate board's fiduciary duty to stockholders amounts to little more
than protecting their mvestmerits from self-dealing, and if neither shareholder
nor raiders, courts or legislatures, communities or labor unions impose very serious
restrictions on management's ability to direct the corporation, then what
are the implications of this reality