Friday, October 18, 2013
Sandra Sperino (Cincinnati) sends word that on November 15, 2013, The Ohio State Law Journal will host a symposium titled “Torts and Civil Rights Law: Migration and Conflict.” Here's a description:
Increasingly, courts and commentators have labeled federal statutory anti-discrimination claims “torts” or “tort-like” claims, without thoroughly discussing the implications of this classification. Particularly since the U.S. Supreme Court’s 2011 ruling applying the controversial concept of “proximate cause” to a claim of employment discrimination, the lower courts have stepped up their efforts to reshape a number of anti-discrimination doctrines to align with general tort concepts, often with the effect of limiting the scope of statutory civil rights protection. Thus, tort law is playing a more prominent role in statutory interpretation under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).
This symposium will explore the theoretical and doctrinal affinities and tensions between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars.
The symposium is co-hosted by Sandra and Martha Chamallas (OSU), and the cast of speakers is very impressive.
Friday, August 16, 2013
The Chronicle of Higher Education recently ran a story about a professor at VMI who announced that he intended to resign his position. The dean of faculty responded that, “although the procedure you have followed does not strictly conform to the guidelines published in VMI’s Faculty Handbook or Regulations, we accept your resignation.” The professor, Kurt J. Ayau, immediately protested, but the events left his status at VMI unclear. What is pretty clear is that his employer put Ayau in the uncomfortable position of having to backtrack -- which may have been its purpose. In the end, the professor accepted a paid leave, which will give him a chance to look for employment elsewhere. So it's kind of hard to tell who came out on top.
As one of the commenters at the Chronicle suggested, VMI would have been on pretty tenuous ground if it tried to push the “resignation” since Ayau not only failed to tender a written resignation but didn’t even announce that he was resigning; he merely stated his intent to do so.
But the case got me thinking about the law of resignations. Even formal resignations can be rescinded in extreme circumstances. Some of you may remember Odorizzi v. Bloomfield School Dist., where a school teacher had a signed resignation invalidated for undue influence – “multiple persuaders” took advantage of plaintiff’s exhaustion and mental turmoil after being arrested for homosexual conduct to extract his resignation. And, of course, the constructive discharge doctrine can be viewed as another way in which a formal resignation might lose its normal legal effects.
But there’s certainly nothing in "normal" contract law that would require any degree of formality for mutual agreement to terminate a contract – which is what a resignation, if accepted, is. There doesn’t seem to be much law on what is necessary to make a resignation into an offer that can be accepted. This makes sense, of course: in a mostly at will world, either side can walk away by virtue of a mere announcement. But Professor Ayau presumably had tenure, and there are millions of employees working in academic institutions, el-hi, civil service, unions, and under individual contracts where the issue is a real one. To quote an old country song, does Johnny Paycheck’s “Take this job and shove it I ain’t working here no more” constitute an offer that the employer in such cases can accept? (For those country music fans, if any on this blog, I realize that Johnny was merely fantasizing about what he wished he had the “guts to say”).
One instructive case is Mahoney v. Board of Trustees, 214 Cal.Rptr. 370 (Cal. App. 1985), where the court refused to honor a telephone message resigning because the community college was "equitably estopped" by its formal written resignation procedures, upon which the plaintiff had supposedly relied. That might well have been the outcome had the VMI situation been litigated.
In this kind of case, the issue is whether a resignation should be viewed as an offer to rescind a contract, which can then be accepted by the employer. But a resignation can also be viewed as a repudiation of a contract, especially if it is coupled with failure of the employee to perform. Indeed, unjustified failure to show up to work is sometimes described as constructive resignation. The notion of repudiation triggers yet other contract doctrines, under which it's generally held that the act of repudiation must be unequivocal, see Bennet v. Sage Payment Solutions, Inc., 710 S.E.2d 736 (Va. 2011), and it may be that there is more room for argument in this regard about the formality of the resignation.
While all may have ended well for Professor Ayau, the lesson from this kerfuffle is that employees have to be careful what they say in the course of griping about their jobs.
Thanks to Teliza Adams, Seton Hall class of 2015, for her help with this.
Saturday, August 3, 2013
Laura Cooper (Minnesota) writes to say:
There's an amazing new feature on Bloomberg BNA's Labor and Employment Law Resource Center called the "Labor and Employment Law Chart Builder" for instantly creating 50-state charts of state law issues. The user selects a category such as EEO, benefits, or termination; identifies the subcategory of interest, such as enforcement, whistleblowing, or nondiscrimination; selects the states you want included in the chart (including "all") and the information you want such as citations, and then the feature instantly creates a chart with citations that link to the relevant documents, including statutes and regulations.
Saturday, July 20, 2013
In recent months, a plethora of states have turned their legislative attention to protecting employee privacy in the workplace, focusing specifically on passing state laws that protect the "social media privacy" of individuals in their states. ... In a world where technological advancements have made it easier than ever to collect massive amounts of information about those in the workforce and where employers feel an increasing need to collect such information, looming questions continue to exist regarding the proper scope and limits of employees’ privacy.
This article represents one effort to answer these questions while taking the employers’ perspective into account, explaining both the motivations behind and justifications for employers’ efforts to "snoop" into their employees’ private lives. The article describes the means through which employers gather information about their employees, including through some recent, rather novel approaches to collecting such data. In addition, this article discusses the financial, legal and practical concerns that motivate employers to snoop in the first place, arguing that employers engage in this conduct for what frequently amount to very legitimate reasons. More significantly, this article places substantial responsibility for employer snooping with the courts themselves, highlighting particular decisions and doctrines that not only permit, but in fact encourage, employers to engage in these efforts to monitor employees.
At bottom, this paper attempts to put the "problem" of employer snooping into a broader context. While employers certainly should not have access to every aspect of their prospective and current employees’ private lives, and while abuses of the boundaries undoubtedly exist, much of the snooping behavior for which employers have been condemned represents more than just senseless meddling, but rather is part of a sound business plan designed to protect employers, employees and the public at large.
Saturday, April 20, 2013
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.
Saturday, March 9, 2013
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.
Monday, March 4, 2013
[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.
Monday, February 18, 2013
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.
Thursday, January 31, 2013
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.
Tuesday, November 20, 2012
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.
Monday, November 5, 2012
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 email@example.com.
Second, please e-mail Angela Onwuachi-Willig at firstname.lastname@example.org 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 email@example.com.
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 firstname.lastname@example.org.
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 (0)
Thursday, November 1, 2012
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.
Wednesday, 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.
Thursday, October 18, 2012
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.
Wednesday, 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.
Thursday, August 30, 2012
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.
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.
Friday, August 10, 2012
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 . . . .
Tuesday, June 19, 2012
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.