Recently-Posted Scholarship

Several timely articles have been posted on SSRN in the last week.  Rather than reproducing their abstracts in individual posts, here are summaries:

• Joseph E. Slater (top left), The American Rule That Swallows the Exceptions.  The “American” rule of employment at-will cripples the effectiveness of the two most important exceptions to that doctrine, the National Labor Relations Act and Title VII.  Scholars often cite at-will as an area in which exceptions swallow the rule but ignore the opposite effect the rule has in undermining rights widely viewed as fundamental.  This article goes beyond the standard critiques of the NLRA and Title VII and uses two other areas of law [union organizing in the public sector to compare the NLRA; Batson challenges to compare Title VII) to make this case.  The article then balances the at-will rule against the exceptions it undermines.  From the inception of the rule, there have been many attempts to create exceptions to it. Today, numerous, small, and often unclear inroads have been made.  This makes the rule less useful to both sides, offering uncertainty to employers yet scant protection to employees.  At the same time, the cost of at-will is the lack of effective labor and anti-discrimination regimes. Scholars and policy-makers should understand this cost when debating labor law, antidiscrimination law, and the future of the at-will doctrine.
• Michael Selmi (top right), Privacy for the Working Class: Public Work and Private Lives.  Privacy has become the law's chameleon, simultaneously everywhere and nowhere. This is particularly true of the workplace where employees often seek some private space but where the law, particularly the formidable employment-at-will rule, typically frustrates that search. As the workplace has expanded both in its scope and importance, additional concerns have been raised about an employer's potential reach outside of the workplace. In this symposium contribution, I explore the privacy issue by asking a fundamental question: what do employees deserve? My answer is that, as a matter of policy, we ought to concede privacy issues as the employer's domain at the specific workplace. This is, in part, because for most employees workplace privacy is not a central concern and the justifications for broad protections of workplace privacy are often quite weak. While conceding the workplace as the employer's domain, I also advocate creating a strict barrier to employer encroachments outside of the workplace so that employers would not be able to interfere with the off-work activity of their employees absent some compelling justification. This would include circumstances in which employers provide employees with computers or other gadgets that employees are permitted to use outside of the workplace.
• Elizabeth Chika Tippett (bottom left), The Promise of Compelled Whistleblowing: What the Corporate Governance Provisions of Sarbanes-Oxley Mean for Employment Law.  This article discusses punitive approaches to whistleblowing -- imposing liability on employees for failing to act in the face of wrongdoing.  There has been little in the way of in-depth analysis of the subject, as it has been almost universally dismissed as a terrible idea.  Punitive approaches to whistleblowing are no longer a matter of mere conjecture, however, since the Sarbanes-Oxley Act of 2002 imposes disclosure-related liabilities akin to compelled whistleblowing on attorneys, executives and audit committee members.  The article then argues that punitive approaches to whistleblowing offer a number of previously unrecognized benefits.  Sarbanes-Oxley is a good illustration of how whistleblower duties can be imposed on high-ranking employees, who are best able to bear the social penalties of whistleblowing.  Indeed, compelled whistleblowing may serve to reduce the stigma of whistleblowing over time and increase organizational responsiveness to voluntary whistleblowers.
• Amy Monahan (bottom center), Federalism, Federal Regulation, or Free Market? An Examination of Mandated Health Benefit Reform. Every state regulates the substance of health insurance contracts issued to its residents, requiring the coverage of certain treatments, services, and providers.  These state-mandated health benefit laws apply only to insured health plans, while self-insured plans (typically sponsored by a large employer) are exempt.  The disparate application of state mandated-benefit laws is criticized as contributing to an unjust and expensive system of health care in the United States.  As a result, state-mandated benefit laws are under attack and the subject of numerous federal reform efforts.  This article explores three possible approaches to mandated benefit reform: (1) exclusive state regulation of mandated benefits, (2) deregulation of mandated benefits, and (3) positive federal regulation of mandated benefits. The article concludes that there are compelling arguments against both exclusive state regulation and deregulation.  While federal regulation is far from perfect, it has significant advantages over the status quo and represents the best way forward for mandated benefit reform.  Current and proposed mandated-benefit reforms are analyzed in light of these conclusions.  The article exposes these reform efforts as coordinated movements toward deregulation, an option that, while respecting individual rights, will harm the sick while improving the position of the healthy.
• Michael L. DeMichele & Richard A. Bales (bottom right), Unilateral-Modification Provisions in Employment Arbitration Agreements.  Unilateral-modification clauses give one party the unfettered right to amend or reject the underlying contract, often with neither notice to nor consent from the other party. State and federal courts are divided on the issue of whether employment arbitration agreements subject to such clauses are enforceable (and the courts holding the arbitration agreements are unenforceable are divided on which of several contract law doctrines apply).  This article argues that under existing contract law doctrines, employment arbitration agreements subject to unrestricted unilateral-modification provisions should not be enforceable.  However, courts should permit employers to retain the ability to unilaterally modify arbitration agreements so long as the agreements provide employees with (1) adequate notice of changes, (2) sufficient consideration for the promise to arbitrate, and (3) conscionable arbitration terms.  Courts can overlay this three-step framework onto existing contract doctrines to fairly and consistently analyze the enforceability of unilateral-modification clauses in employment arbitration agreements.

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