April 20, 2013
Bodie Defines Employment
The concept of employment is an important legal category, not only for labor and employment law, but also for intellectual property law, torts, criminal law, and tax. The right-to-control test has dominated the debate over the definition of “employee” since its origins in the master-servant doctrine. However, the test no longer represents our modern notion of what it means to be an employee. This change has played itself out in research on the theory of the firm, which has shifted from a model of control to a model of participation in a team production process. This Article uses the theory of the firm literature to provide a new doctrinal definition for “employee” based on the concept of participation rather than control. The participation test better delineates the boundaries of employment and provides a framework for addressing the stresses on firms and workers that are rife within the modern economy.
March 09, 2013
New Book by Stone & Arthurs: Rethinking Workplace Regulation
Rethinking Workplace Regulation: Beyond the Standard Contract of Employment
Editors: Katherine V.W. Stone and Harry Arthurs
(Russell Sage Foundation Press, 2013)
Contributors: Takashi Araki, Harry Arthurs, Thomas Bredgaard, Bruno Caruso, Alexander J.S. Colvin, Mark Freedland, Morley Gunderson, Thomas Haipeter, John Howe, Robert Kuttner, Julia Lopez Lopez, Keisuke Nakamura, Michio Nitta, Anthony O’Donnell, Michael Rawling, Ida Regalia, Katherine V.W. Stone, Kendra Strauss, Julie Suk, and
This volume, composed of chapters by leading scholars from ten countries representing eight disciplines, addresses the impact of globalization, technological change, new management HR strategies, and the financial crisis on the nature of employment relationships in advanced economies. It takes as it premise the fact that the employment relationship has undergone a profound transformation in the past 20 years. For most of the 20th century, employment was built around the standard employment contract, a social practice as well as a legal construct that assumed that workers would be employed with a single firm for an extended period of time, and that they would be provided with decent wages and benefits, and given reliable advancement opportunities within their employer’s internal labor market. That assumption has become untenable. Today many employers have found it to their advantage to outsource work and to reduce their core labor force by utilizing new recruits or temporary workers. They seek to lower labor costs by curtailing pay and benefits and breaking the link between pay and length of service. They are also expanding the use of “project work,” bringing in specialized skilled workers on an as-needed basis rather than developing skills in their own workforce. As a result, precarious employment is becoming common as workers move from the standard employment contract to temporary, part-time and agency work or to self-employment. These developments are documented in an appendix that brings together data from international and domestic sources.
The changes in the nature of employment have undermined many public policies and labor market practices that developed before and after the Second World War. In most industrial countries, collective bargaining arrangements, employment laws, workplace pensions, social security, health insurance and other social benefits assumed that workers will remain with a single employer for a protracted period. Job security has been typically protected through seniority and notice provisions and/or prohibitions against arbitrary or unjust dismissal, and workers have been insulated from the consequences of unemployment through a contributory insurance system. Finally, unions in most countries organize workers on a firm or sectoral basis, on the assumption that their members’ employment with the firm or within a sector is stable and on-going.
In response to the transformation in the nature of employment relations, many countries are experimenting with new regulatory responses to try to balance workers’ security with firms’ demand for flexibility. These experiments include “flexi-curity” strategies, new schemes of social protection, revised legal concepts of contract, innovative approaches to union organization and firm-based “total HR management”, and regional initiatives to stabilize local labor markets. This volume reports on some of these recent experiments, many of which are too new to have proven themselves. Moreover, they have been conducted in specific national contexts that it may be difficult to replicate elsewhere. Nonetheless, an important finding of our project is that some new labor regulatory and labor market policies are developing and that it is important for national policy makers to inform themselves about how other countries are addressing quite similar problems. Hopefully, new ideas derived from cross-national comparisons will inspire them to try things that are not part of mainstream thinking in their own country.
March 04, 2013
Zimmer on the LEL Causes of Economic Inequality
[T]his article demonstrates how extreme economic inequality in this country exacerbates the insecurity most people face. Four areas of labor and employment law are explored to show the risks workers carry and how economic inequality heightens them. While the increasingly globalized economy, and its resulting increase in business volatility, has contributed to economic inequality, in the United States much of that inequality is the consequence of government action and inaction. Government policy has moved from the goal of decreasing inequality after World War II to increasing it in the last forty years. That this has gone unchallenged until the Great Recession is the result of a general decline in focus on inequality in society generally, but also by many academic disciplines. The collective good has lost out to an idealized view of individualism, individualism divorced from the reality of the lives most people lead.
The richest segment of society has invested, and continues to invest, considerable effort to reinforce our focus on narrow individualism and to gain influence in government policy making. While that effort has been undertaken quite broadly, the investment in election outcomes has led to a bidding war between the two parties for campaign and electioneering money. In Citizens United, the Supreme Court opened unlimited electioneering spending to individuals, corporations and other organizations. The government has lost the power to regulate the present “gift economy” in Washington that now drives the establishment of government policy: Buying access to policy makers is not, as a matter of constitutional law, corruption or its appearance and so it cannot be regulated.
Recapturing public policy from the undue influence of money will be quite difficult in face of Citizens United. Further, our politicians and policy makers, without regard to party affiliation, fear change in the status quo and so far resist reforms that are possible even within the tight constraints of Citizens United. The article will discuss the work being done in several academic disciplines to refocus on economic inequality. But a change in academic focus is only one small step in the right direction. Given the momentum supporting the present system, it may take a broad-based social movement to force changes in election spending. That is a prerequisite for government policymakers to escape the overwhelming role that money now plays in establishing national policy to allow them to once again address the real needs of our nation.
February 18, 2013
Bernt on Employment Contracts
Lisa J. Bernt (visiting Northeastern) just posted on SSRN her article (Syracuse L. Rev.) Tailoring a Consent Inquiry to Fit Individual Employment Contracts. Here's the abstract:
This article looks at the fundamental requirement of consent in contracts, and tailors the consent inquiry to fit the particular setting of individual employment contracts. It borrows from the approach some courts have used to assess the validity of waivers of various statutory rights. Those courts look to a non-exclusive set of factors to assess whether the waiver was knowing and voluntary. It also looks at the manner in which courts determine the validity of premarital agreements. Courts pay particular attention to whether the parties entered a premarital agreement knowingly and volun-tarily, and consider various factors, including the opportunity and ability to review and consider the agreement, external pressures on consent, the relative sophistication of the parties, and whether the parties had disclosed financial and other information to each other. Such a consent inquiry also needs to address the particular concerns that arise at various points along the employment relationship.
January 31, 2013
Bagenstos Justifies Employment Law
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this paper argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. Drawing on the author’s work elaborating the justification for employment discrimination law, this paper argues that individual employment law is justified as preventing employers from contributing to or entrenching social status hierarchies — and that it is justifiable even if it imposes meaningful costs on employers.
The paper argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates the point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment-at-will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.
November 20, 2012
Recording RantsThe ubiquity of devices capable of recording conversations gives renewed importance to surreptitious taping, although in most states it remains legal for one participant in a conversation to record it
without informing the other. But in those states (about a dozen) where it is not legal, issues touching on the employment relationship will continue to arise. Memories of Linda Tripp. Last month, Carroll v. Merrill Lynch, was handed down by the Seventh Circuit involving unauthorized taping under an Illinois statute.
While the backstory is more involved, the case boiled down to the recording of a profanity-laced phone tirade on Thanksgiving by one Merrill Lynch employee to another at his home. The latter’s wife recorded the call, and she and her husband played it back at Merrill the next day before reporting it to the police. Merrill promptly fired the caller, who promptly sued Merrill and the husband and wife.
The claim against the couple was violation of the Illinois law prohibiting recording without consent of all parties. Plaintiff’s claim against Merrill was based on the theory that Merrill violated the statute when its agent requested and listened to the previously recorded conversation. Merrill successfully argued that, because the originally recordation was exempt from the statute, the subsequent playback was also exempt.
Anyhow, the court affirmed summary judgment against the plaintiff because Illinois has a statutory exception allowing recordation when the recording party has a reasonable suspicion that a crime is being, or is about to be, committed. Given the extremeness of the plaintiff’s language, the
court found that the wife fell within that exception.
There are a number of subsidiary issues that might be worth exploring in another setting, but the main take-away from the opinion is that it's dangerous -- even if not necessarily wrongful -- for employees to record threatening conversations from co-workers in a number of states. And it is dangerous -- but not necessarily wrongful -- for employers to act on the basis of such conversations.
From the employer’s standpoint, maybe the safer course would have been not to listen to the recorrding but rather to ask the caller about it. After all, the contents of the call are fair game even if the recording isn’t. That said, it might be too much to ask a manager to forebear listening to this kind of thing while HR and Legal figure out whether it’s appropriate to do so.
As important, some other state eavesropping laws -- Delaware, Florida, Maryland, Massachusetts,
Montana, New Hampshire, Pennsylvania -- all lack an express “fear of crime” exception (although one might be judically added).
Thanks to my RA, Allison Martin, for her help on this.
November 05, 2012
Call for News and Articles
Friends of the blog Angela Onwuachi-Willig (Iowa) and Rebecca Lee (Thomas Jefferson) write about the joint newsletter for the AALS sections on Employment Discrimination and Labor and Employment Law. Here is their call for submissions:
We are putting together a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure not included here (http://lawprofessors.typepad.com/laborprof_blog/2012/04/workplace-prof-moves-for-2012-2013.html), please e-mail that news to Angela Onwuachi-Willig at firstname.lastname@example.org.
Second, please e-mail Angela Onwuachi-Willig at email@example.com with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections' members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2012; please hold your forthcoming 2013 publications for next year's newsletter. These publications can be books, articles, and chapters. Please also send a list of your published 2012 articles to Angela Onwuachi-Willig at firstname.lastname@example.org.
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent "big" labor and employment case or significant new labor or employment legislation. Your subject could be a Supreme Court decision (but it does not have to be), a significant circuit court decision (or emerging circuit split), a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Just let us know what you are interested in writing on. Please send submissions to Rebecca Lee at email@example.com.
Please send all submissions by November 18, 2012.
November 5, 2012 in Commentary, Conferences & Colloquia, Employment Common Law, Employment Discrimination, Faculty Moves, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching | Permalink | Comments (0) | TrackBack
November 01, 2012
Arnow-Richman on Just Notice
Rachel Arnow-Richman (Denver) has just posted on SSRN her chapter From Just Cause to Just Notice in Reforming Employment Termination Law for Wachter & Estlund's Research Handbook on the Economics of Labor and Employment Law (forthcoming February 2013). The chapter is a variation on the theme she developed earlier in her article Just Notice: Re-Reforming Employment At-Will for the 21st Century. Here's an excerpt from the abstract:
For the last quarter century, the discourse surrounding employment termination law has focused almost exclusively on the desirability of changing from an employment at will to a just cause regime. This chapter asserts that such a result is neither inevitable nor desirable. A better approach would be to require employers to provide advance warning of termination or, at the employer’s election, pay separated workers their salary and benefits for a designated period. This “just notice” approach has several advantages. First, as compared to a universal just cause rule, and perhaps even to the current system of “at-will plus exceptions,” a just notice rule is likely to engender fewer administrative costs and protect a wider swath of the workforce. Second, the rule has a clear foundation in American jurisprudence. Outside the employment context, contract law requires a party whose performance is discretionary to act in accordance with principals of good faith and fair dealing, including providing reasonable notice prior to terminating an indefinite contractual relationship. Adopting a just notice rule would bring the law of employment contracts more in line with broader contract doctrine. Finally, a just notice rule would refocus the goal of employment termination law on enabling employee transition rather than constraining employer discretion. A just notice system addresses workers’ most immediate need upon job loss – income continuity -- while preserving employers’ ability to determine whom to terminate and why. Such an approach can be normatively justified as giving force to the contemporary social contract of employment. To the extent that expectations of long-term employment with a single employer have been replaced with expectations of long-term employability in an external market, it makes sense that employers should directly bear at least some of the costs of employee transition in the inevitable event of job loss.
From the Financial Times, via The Faculty Lounge:
Some 100 of [UBS]'s fixed income traders in London discovered at the turnstiles that their passes were no longer working when they tried to get to work on Tuesday morning. Other bankers had been contacted by phone or discovered that they might lose their jobs when their email repeatedly bounced back.
October 24, 2012
Last month we were contacted by the plaintiff in a particularly interesting case involving tenure at a religious institution. While we don't ordinarily want to be a forum for disappointed litigants, the decision in Kant v. Lexington Theological Seminary by the Kentucky Court of Appeals is pretty interesting. Essentially, the issue was the effect of a declaration of financial exigency on tenure rights, with the twist that the tenure-granting institution was a seminary. The outcome was adverse to the plaintiff and, although the issues in the cases are very different, it's interesting that this is the second decision in the last few months that seem to undercut the historic protections of academic tenure. The earlier case was, of course, the Sixth Circuit's decision in Branham v. Thomas Cooley, which basically held that tenure at that law school meant a one-year contract.
Although given the Supreme Court's recent decision in Hosanna-Tabor, one might have expected deference to a religious-oriented employer, particularily a seminary, it's also true that the LTS case was one in which the problems of entanglement were at a minimum -- the issue was whether the tenure contact allowed for financial exigency modification and the ministerial exception was not obviously apposite since a contract right was at stake and Professor Kant was a Jewish faculty member at a Christian school -- not exactly the sort of "minister" involved in Hosanna-Tabor.
Nevertheless, the appellate court had little trouble in concluding that it could not resolve the dispute without intruding too far into church matters. The decision suggests that, despite the Supreme Court's refusal in Hosanna-Tabor to opine as to the effect of the now-established "ministerial exception" on tort or contract cases, the doctrine is likely to continue to expand. Further, Kant suggests the strong possibility of the expansion without regard to traditional concerns about avoiding court entanglement with religion.
October 18, 2012
Secunda on Employer Pressure to Vote Republican
Citizen United's generous interpretation of corporate speech means that employers "may now be able to compel their employees to listen to their political views at [workplace] meetings on pain of termination," wrote Paul Secunda, an associate law professor at Marquette University, in the Yale Law Journal. "Although federal law does still prevent employers from issuing explicit or implicit threats against employees who vote for the 'wrong' candidate, short of that, nothing prohibits employers from requiring employees to participate in one-sided political propaganda events."
Employees have little real-life protection from aggressive attempts by employers to sway their votes, Secunda said in a phone interview Thursday.
* * *
"Employers are pretty much able to do what they want as far as putting pressure on employees to vote against a certain candidate," he said.
Secunda said a new "Federal Worker Freedom Act" was needed, to prohibit employers from engaging in mandatory political indoctrination. A new law could comply with Citizen United's broad interpretation of corporate speech, he said.
September 12, 2012
14 California lifeguards were fired from the city's aquatic center for a parody video they made of the popular 'Gangnam Style' music video.
Several lifeguards in El Monte, CA participated in the video but others were fired just for being in the background while it was shot. The pool manager was also fired even though he doesn't appear in the video.
But the guards claim they did it off the clock, while the pool was closed and no patrons were around.
The lifeguards were at-will, so they don't likely have a legal cause of action. Nonetheless, it's not difficult to imagine how a more enlightened employer might have handled this.
August 30, 2012
Who Needs Tenure?
The Chronicle has a story on yet another development at my university: Faculty Review Proposal at Saint Louis University Would Eviscerate Tenure. The proposed policy would institute a program of post-tenure review for all university faculty which would allow the university to terminate anyone (except administrators, adjuncts, faculty on leave, and faculty in the Medical Group or on our Madrid campus) who does not show "continuing and increasing effectiveness" in teaching, scholarship, and service -- a constant "positive trajectory."
This isn't the first time our president has suggested that faculty tenure or other job security is a bad idea, but it's the most comprehensive push to put that into effect across the university. And given recent and not so recent events, the standard seems all too easily abused to get rid of people with unpopular opinions. We'll have to see what happens.
Facebook Advice; Request for Comments
One of my 1L students has asked me to review his facebook page and suggest items to cull to ensure the page does not offend prospective employers. I’m disinclined to review the student’s Facebook account line-by-line, photo-by-photo, and inclined instead to give some general advice. I’ll take my first shot below the jump, but would welcome comments to this post if you have additional advice to add or if you would advise differently.Here’s the message the student sent me, appropriately enough via Facebook:
This is [ ] from your Civpro class. I hope
you are doing well. I had a favor to ask you but it's really okay if you're too
busy. I was wondering if you could peruse my Facebook and give me pointers
about maybe what I should cull as my class moves forward toward taking the bar
and employment. I know employers and the bar association may look into social
networking and I figured you had a good idea over what they would look for.
If you can't look at my page, or just don't want to (I'd understand that too), do you have any general tips for having a professional fb? Thank you so much and I'll see you in class tomorrow.
Kudos to the student, of course, for recognizing that his Facebook page can affect him professionally. Here’s my attempt at providing general advice. As I said before the jump, please add your thoughts as a comment to this post.
- Never, under any circumstances, post (or allow to be posted) anything on your Facebook page that you would not like to see on the front page of your hometown newspaper or the newspaper in the area where you intend to practice law.
- Decide whether you want your Facebook page to be primarily social or primarily professional.
a. If social, start by password protecting the site to the maximum extent possible. Do not “friend” anyone who is not a close relative or a friend in the pre-Facebook sense of the word. Do not friend any workplace supervisor or anyone up the chain of command from you; be hesitant to friend co-workers even if you have a social relationship outside of work. Notwithstanding all these precautions, do not ever violate Rule #1. Post all the non-embarassing photos of your spouse/children/nieces/nephews/etc. you want. Never say anything negative about any past or present employer.
b. Developing a professional Facebook page can be a very effective marketing tool for junior lawyers. Post on the types of cases you’re working on (omitting, of course, anything that might remotely be considered confidential) and professional experiences (“Going to Frankfort to take a deposition.”). A photo of you with your family will help personalize you, but keep the children/family photos to a bare minimum. Post only photos that look professional -- both in content and in form (no grainy nighttime cell-phone shots). Note your recent accomplishments, but do so with humility. Omit personal information, such as relationship status, from your page. Omit social events/photos, unless they are work-related. Never say anything negative about any past or present employer; go out of your way to praise and market your current employer.
I'll be the first one to admit that although I tend to divide Facebook pages into personal OR professional, for most folks, it's a blend of both. Is keeping a rigid divide a good idea? Is it realistic for folks who literally have grown up with the medium? If blending is either good or inevitable, how can users get the best (and avoid the worst) of both worlds? Comments are welcome.
August 10, 2012
When Tenure Doesn't Mean Tenure
Kendall Issac (Appalachian) posts on the recent Sixth Circuit Branham case on his Workplace Dignity blog (it includes a link to the decision). The basics are that a tenured Cooley law professor was fired, allegedly without just cause. Kendall provides a good description of the case, as well the procedural and remedial issues at stake (e.g., Cooley didn't hold a required faculty vote on the firing until 3 years after it occurred). But I wanted to address the first part of the decision, in which the Sixth Circuit holds that "tenure" doesn't necessarily mean continuous employment with just cause protection.
The basis of the holding is the usual language that the employment contract rules the day. That contract incorporates the ABA's tenure policies and language stating that "[n]o tenured faculty member shall be dismissed . . . prior to the expiration of the term of his appointment, except for good cause shown and in accordance with the following procedure." Others know more about the ABA's policies, although I have doubts whether the ABA would agree with the court's interpretation that the policies only make continuous employment optional for tenured faculty (if I remember correctly, some deans even tried to push language to this effect a few years ago, without success). As for the quoted language, the court seems to rely on the fact that Cooley officially had faculty on one-year terms--hence no continuous employment.
As most readers are well aware, courts bend over backwards to avoid continuous just cause employment contracts all the time. But the court's disregard for the normal meaning of "tenure" still strikes me as troublesome. Before this case, did anyone at Cooley--administration or faculty--really think that tenured faculty could be fired at will at the end of any given academic year? I doubt it, or else what's the purpose of tenure? I know that at-will is king, but I think there's a good argument to be made that any reasonable interpretation of "tenure" means some form of continuous employment.
This brings me to another point: why did Cooley push this argument? In addition to possibly having problems during their next ABA re-accreditation, the school basically just spent a lot of time and money to "detenure" its faculty. I've got to imagine that Cooley will either change the language of its policies to make its tenure sound more like real tenure, or they will be facing a far more disgruntled group faculty.
Perhaps a good reminder to check your school's tenure policies . . . .
June 19, 2012
Not So "Customarily"?
At the recent ALI meeting in Washington, where the Institute approved the current version of the Restatement of Employment Law's chapter on Privacy, I criticized one of the proposal's formulations of when an employee has a reasonable expecation of privacy. To no effect, I might add. But not being one to forebear from giving a dead horse another lick or two, let me explain my argument.
The structure of the proposed blackletter requires an employee to have a reasonable expectation of privacy before there can be a violation --although such an expectation does not necessarily mean that the employer's intrusion is actionable since the intrusion must also be "wrongful." § 701
In other words, a REP is necessary but not sufficient, and the Restatement deals with such expectations in a variety of ways. The one I was concerned about had to do with when there was a REP in a physical or electronic location provided by the employer Section 703(b) allows an employer to expressly create such an expectation in subparagraph (1) but also provides in § 703(b) that a REP may be created by conduct when
the employer has acted in a manner that treated the workspace as private for employees, the type of location is customarily treated as private for employees, and the employee made reasonable efforts to keep the location private.
I understood the reciprocal requirements of employer and employee treating the location as private, but was confused by what it meant for "the type of location" to be "customarily treated as private." The word "customarily" suggested looking to other employers' conduct, which seemed to me to put a major crimp in the protection that would otherwise be accorded.
I'm probably saying this more coherently here than I did at the Institute, but suppose an employer treats worker e-mails as private and workers zealously guard that privacy through passwords and other conduct. Should the fact that most employers act otherwise foreclose privacy protection in this setting? As I said in DC, perhaps not very elegantly, doesn't this push towards the lowest common denominator for privacy, maybe only regarding bathrooms?
At the time, I hadn't done much spadework in the cases, but more research since the ALI's Meeting has not alleviated my concerns, nor has it clarified where "customarily" comes from. None of the four cases cited by the Restatement for this section speaks of "custom," although one (Hernandez v. Hillsides, 211 P.3d 1063 (Cal. 2009)), does mention "social norms." I don't have any problem with recognizing privacy expectations when social norms push in that direction (we're back to bathrooms), but I'm not so sure why it would matter to the implied agreement concept that seems to underlay the Restatement's position.
Plus, of course, recognizing a reasonable expectation of privacy in this situation would not open any floodgates since, to be actionable, any intrusion would have to be "wrongful," which requires that the intrusion be "highly offensive to a reasonable person" and that in turn takes into account the "employer's legitimate business and public interests" for the intrusion.
Now I do understand that the expectations of both parties might be shaped by social context, and in that sense broader norms may come into play, but the current phrasing seems ill-adapted to protecting actual privacy expecations in the workplace. I also understand there's only so far in advance of the law that a Restatement can go, but it doesn't seem to me that extirpating "customarily treated as private" from the blackletter would contravene any of the cases cited.
Thanks to Nicole Zito for her terrific work in helping me on this.
June 12, 2012
Public Policy Pistols
A number of us were startled by the recent Kentucky Supreme Court decision overturning summary judgment granted to the University of Kentucky in an action brought by a former employee fired for possessing a semiautomatic pistol in his locked car, parked on University property.
The opinion generated ideological criticism from Professor Bainbridge ("Cases like this illustrate that both right and left are willing to throw at-will employment under the bus to advance policy goals." In contrast, I think at-will employment . . . is a crucial social policy that deserves better from those of us on the right who respect free enterprise and free markets."), but I find it more interesting as an exercise in applying relatively well-established public policy tort principles to a unusual setting.
In Mitchell v. University of Kentucky, 2012 Ky. LEXIS 47 (April 26, 2012), the employee's gun possession violated University rules, but the plaintiff alleged that firing him for that reason would violate the state’s public policy in favor of the right to bear arms, and the state supreme court agreed.
Of course, the University of Kentucky is a state institution, which means that state constitutional constraints would apply and there is a right to bear arms in the state constitution. But the court did not approach the case as a straightforward violation of constitutional rights. Rather, it looked to Kentucky’s “narrow public policy exception” to the at-will doctrine, thereby suggesting that its holding was applicable to private employers as well. To the extent that a public policy claim against a private employer could be predicated on constitutional protections designed to constrain the government, the decision would be radical. Indeed, the Sixth Circuit came out the other way on this precise point in 2009 where the right at issue was found in the Ohio’s state constitution instead of statutes. Plona v. United Parcel Service, Inc., 558 F.3d 478 (6th Cir. 2009), upheld summary judgment for UPS, finding that the public policy barring state interference with the right to bear arms was inapplicable to a private employer; in fact, the Ohio legislature had affirmed the right of most private employment to prohibit firearms on their premises or property.
Back to Mitchell. By invoking the canon of avoidance, the Mitchell court looked to Kentucky statutes rather than the state constitution, and that required sorting through a several laws pointing in different directions. A criminal statute barring carrying of a concealed weapon contained exceptions from its prohibitions, one of which stated that no “person or organization shall prohibit a person from keeping a firearm . . . in a glove compartment of a vehicle…,” and authorized an action to enforce it. That would seem to have resolved the case, except for a fact dispute as to whether Mitchell kept the weapon in his armrest. Kentucky’s legislature might have been a tad over-precise to achieve what were apparently its goals.
Not to worry, however. Another statute dealt with concealed carry licenses, and Mitchell possessed such a license. Although still another enactment authorized colleges and universities to control deadly weapons on their property, it was subject to an exception for licensed concealed carriers, and the provision governing such licenses also barred any “person or organization” from prohibiting a licensed person from keeping a firearm “in his or her vehicle.” No picky limitation to glove compartments here! And yet a third statute specifically barred an employer (as opposed to a person or institution) from firing an employee who possesses a firearm in a vehicle on the employer’s premises.
The court did recognize a tension between the provision authorizing universities to control weapons on their property and the other statutes, but, in light of the license law’s command to liberally construe the right to bear arms and the legislature’s policy in favor of safeguarding weapons in vehicles, the court held that the licensed concealed carrier’s rights prevailed. A concurrence reluctantly agreed.
The decision is interesting in a number of respects. First, given the statutory authorizations of a civil action, it’s not so clear why anyone worried about fitting this case within the state’s public policy jurisprudence. We don’t usually view statutes expressly granting rights to employees as generating common law public policy claims.
Second, while it’s hard to disagree, given the various (if not necessarily consistent) enactments, that the Kentucky legislature meant to generally preserve the right of individuals to keep firearms in their cars, there was also a statute that allowed colleges and universities to restrict that very right. The court’s resolution of the tension seems questionable.
Third, Mitchell illustrates that, when a state has not clearly addressed the question of the right of employers (public or private) to control arms in their workplaces, more general statutory approval of the right to bear arms might trigger public policy protection for armed employees.
Thanks to my research assistant, Justine Abrams, for her help on this.
May 31, 2012
Employee Handbook Version 2.Awesome
I've been meaning to post about this for awhile, and teaching the unit on U.S. Employment Law to my summer students gives me the perfect opportunity. Earlier this spring, the employee handbook from Valve, a gaming company, was floating around the blogs and twitter. It's unusual in that it doesn't talk about the kinds of things we're all used to seeing in handbooks--no policies (exactly), description of benefits (in the usual sense), or disciplinary structure. Instead, it's an introduction into a workplace culture that at least portrays itself as flat (no hierarchy), with work driven by each worker and projects developing organically. The handbook is useful for a couple of things--first as a breath of fresh air, it shows alternative work arrangements might look like. Also, I think I have some serious job envy, although in a lot of ways, it describes what our jobs as law profs are like. Second, it would be a great platform to talk about all of those contract issues that employee handbooks usually raise (sort of the anti-Hoffmann-LaRoche handbook that Rachel Arnow-Richman, Denver, uses to teach transactional skills in employment law), or other issues, like the fact that the figures and cartoons of employees show almost no women, and no people of color, male or female. Anyway, here's the pdf version: Download Valve_Handbook_LowRes
May 21, 2012
American Law Institute - Restatement of Employment Law
Update (5/25): The Membership of the ALI approved all of Chapter 3 and the privacy sections of Chapter 7 (not the autonomy provisions which were not under consideration) on a voice vote. This leaves two chapters left before the Restatement is complete: Chapter 4 (concerning certain tort issues) and Chapter 9 (concerning employment law remedies).
The 89th Annual Meeting of the American Law Institute (ALI) is going on in Washington D.C. over the nex three days. Worklaw profs joining me here include: Cyndi Nance (Arkansas), Miriam Cherry (Saint Louis), Mike Zimmer (Seton Hall), Larry Rosenthal (N. Kentucky), Matt Bodie (Saint Louis/Notre Dame), Alan Hyde (Rutgers-Newark), and Charlie Sullivan (Seton Hall).
Of particular note, tomorrow the ALI membership will take up Chapters 3 and 7 of the Restatement of Employment Law. Chapter 3, penned by Sam Estreicher (NYU), concerns compensation and benefit issues, while Chapter 7 (written by Matt Bodie) concerns privacy and autonomy interests in the workplace (although only the privacy sections will be taken up tomorrow).
Needless to say, for those of us in attendance, it should be a lively and spirited debate tomorrow over these Chapters.
May 17, 2012
Fisk & Barry: Restatement is Really Awful on Noncompetes
Catherine Fisk (UC-Irvine) and Adam Patrick Barry (UC-Irvine class of 2013) have just posted on SSRN their article (forthcoming 16 EREPJ 2012) Contingent Loyalty and Restricted Exit: Commentary on the Restatement of Employment Law. Here's the abstract:
Chapter 8 of the American Law Institute’s Restatement of Employment Law proposes bad law in every sense of the word when it restricts job mobility of current and former employees by imposing a general duty of loyalty and providing for enforcement of non-compete agreements. Its rules are vague and confusing on crucial issues where clarity and precision are needed. In allowing employers to prevent current and former employees from engaging in competitive employment, Chapter 8 is out of sync with the assumptions underlying the at will rule articulated in Chapter 2 of the Restatement, which insists that employment is an at will relationship that either side can terminate in order to pursue more lucrative opportunities with other contracting partners. It is also out of sync with the norms of many contemporary employment relationships in which employees are expected to bring their knowledge and skills to every job and to depart, perhaps after a relatively short-term period of employment, with enhanced knowledge and skills. The only legitimate interests employers have in restraining competition by current or former employees are protected by the law of misappropriation of trade secrets, by the torts of interference with contract and interference with prospective business advantage, and by the corporate opportunity doctrine for managerial employees who owe a fiduciary duty to the firm. The duty of loyalty, as stated in the Restatement and as applied by courts, adds no legitimate protection to employers and is simply anticompetitive. More important, in allowing employers to resort to contract and tort liability to restrict labor market mobility, the Restatement ignores a substantial body of empirical research showing that legal restrictions on mobility are bad for employees, bad for firms, and bad for the economy as a whole. Courts should approach provisions of Chapter 8 skeptically. If they do, the Restatement may fail in its aspirations to shape the law, but at least it will not fail in the ALI’s goal of improving the law.