Wednesday, January 15, 2014
Exhibit A: The early drafts not only approved the tort of wrongful discharge in violation of public policy but extended it to "other material adverse action." So, for example, Tentative Draft 2, revised in July 2009, provided that the tort reached
an action that significantly affects compensation or working conditions or other action, short of discharge, that is reasonably likely to deter a similarly situated employee from engaging in protected activity.
I don't recall much controversy about this, and it makes sense, right? The animating concept for the tort is that employers ought not be able to deter employees from public-policy furthering conduct by employment-related sanctions. Permitting suit for wrongful demotion is consistent with that notion. Plus, of course, the framing was essentially the same as the that used by the Supreme Court for Title VII retaliation cases in Burlington Northern v. White.
I was more than a little shocked, therefore, to open Council Draft 11 (December 2013) to find the tort cut back to reach only wrongful discharge. See 5.01. Although constructive discharge remains actionable, cmt. c, wrongful discipline has been eradicated root and branch.
The explanation? The earlier version recognized that few cases had recognized wrongful discipline, but argued that the "better approach" was to allow "claims of wrongful discipline short of discharge to go forward, where such discipline is likely to deter" going forward with protected activity.
The explanation for the change? One is that "the majority view of jurisdictions addressing the issue" refuses to extend the tort beyond discharge. Of course, the ALI is not bound to accept the majority view, but what's even odder is that the Reporter's Notes cite courts in 6 jurisdictions finding wrongful discharge actionable at common law (including two state supreme courts) and 6 (including one supreme court) holding to the contrary (once different decisions from the same jurisdiction are aggregated). And, no there's not a trend: the most recent case, from West Virginia, approved a claim of wrongful withholding of wages).
It's not that I think that nose counting should be outcome determinative, nor have I undertaken my own review of the case law, but it's hard to see, taking the Reporters to be accurate, that the proposed formulation is the majority rule. At worst, the division in authority allows the Institute to do what it is best at -- formulating the most appropriate rule.
So what's the policy explanation for the change? The course originally laid out is objectionable because it "would require courts to scrutinize routine employer action on pay, promotion, and the like without a specific legislative directive to proceed." That's a striking passage because it reflects exactly what the public policy tort does with wrongful discharge -- create a tort without legislative direction.
If there's a difference between the two situations, then, it must be the fear that extending the tort would result in the proverbial flood of litigation. But, if that's such a big risk, why have only 12 jurisdictions even addressed the question? And my recollection is that most commentators think this is a "no problem problem" because of the strong disincentives for suing one's current employer.
Finally, the rejected approach would essentially map on to Title VII retaliation law. Of course, there was "legislative direction" for a retaliation cause of action, but the Burlington Northern Court essentially looked to the logic of the provision to define what qualified as actionable retaliation. The ALI should follow in the Court's footsteps, and revert to the earlier formulation.
Absent that, the whole notion of "protected activity" in the public policy tort arena becomes somewhat chimerical -- maybe we should speak of "partially protected activity."
Monday, January 6, 2014
The New Jersey Appellate Division just handed down a troubling opinion that, if not corrected or at least clarified on appeal, has the potential to provide employers with massively greater leverage in dealings with their employees. What is even more remarkable is that State v. Saavedra was decided in a state that is generally pretty permissive with respect to the actions employees can take in pursuing claims under its antidiscrimination and antiretaliation laws.
As the caption suggests, Saavedra is a criminal prosecution, with the defendant having been indicted for “official misconduct” and theft. Her sin was taking a number of documents from her employer, the North Bergen Board of Education, for possible use in her civil suit for discrimination and for retaliation in violation of the New Jersey Conscientious Employee Protection Act. In a nutshell, defendant took hundreds of documents from the Board; her attorney in her civil case against the Board used some of them during the discovery phase of the suit. When her attorney then turned over the documents to Board attorney in the civil suit, that attorney notified the Board's general counsel “who brought the matter to the attention of the Hudson County Prosecutor, who determined that the matter should be presented to a grand jury.” Indictment followed.
Some of the documents contained sensitive information about students, parents, and Board financial dealings (including a parent’s bank statement and a list of students to be seen by a school psychologist). The opinion suggested that the Board could suffer legal liability from the disclosure of such information. But, unlike, say, Erik Snowden, Ms. Saavedra apparently did not publish the documents and appeared not to share them with anyone but her attorney.
The Appellate Division upheld the indictment, and I confess to lacking the expertise to analyze the criminal aspects of this case, although I remain skeptical that any employee who removes documents from a workplace is guilty of theft and, if it is a public workplace, guilty of criminal “official misconduct.” I note that the plaintiff had a pretty low level position, but “official” for purposes of the statute seems to mean only that the defendant is a public employee. The court also had no difficulty with finding that an intent to use the documents to further her civil litigation satisfies the “personal benefit” element of the offense. These conclusions mean that most, if not all, New Jersey public employees face the risk of criminal charges for similar conduct
It is possible that I’m being too harsh, however. First, the Board apparently had a policy in place and employees were trained regarding appropriate use of such documents, so, contrary to the defense attorney’s claim, this wasn’t exactly like someone taking work home. Second, some documents appear to have been originals, and the court refers to evidence that defendant had purposes other than using the documents in support of her civil suit, including “disrupt[ing] the psychiatric treatment of students with special needs,” and exposing the Board to liability. How persuasive that evidence might be is another question, but the possibility may take Saavedra out of the garden variety claims of employees “purloining” employer documents.
What’s surprising about the case is that New Jersey has been especially protective of employees who engage in self-help to document claims under its Law Against Discrimination or its Conscientious Employee Protection Act. While the federal courts would likely hold that firing an employee for stealing documents is not actionable retaliation under, say the antidiscrimination laws, e.g., g., Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253 (4th Cir. 1998) (taking documents from supervisor’s desk not protected under Title VII); cf Niswander v. Cincinnati Insurance Co., 529 F.3d 714 (6th Cir. 2008) (balancing employee and employer interests), New Jersey engages in a much more nuanced analysis.
As I’ve blogged before on Workplace Prof, in Quinlan v. Curtiss Wright. the New Jersey Supreme Court there dealt with an employee who copied 1800 pages of documents and provided them to counsel before he filed suit. When the employer learned of the conduct, it fired her for theft, and when she filed a retaliation claim, it argued that her misconduct justified the discharge.The New Jersey Supreme Court split the difference, essentially rejecting the company’s argument that such conduct necessarily justified discharge but in the process producing a multi-factor test for determining whether such conduct is protected, including:
- whether the employee came upon the documents "innocently"
- whether the employee went beyond sharing them with her attorney to evaluate her claim
- the nature of the documents, including the strength of the employer's interest in confidentiality
- whether the disclosure was disruptive
- the strength of the employee's reason for copying the document (as opposed, for example, to identifying it for a later document request during discovery).
Saavedra, then, had to confront the significance of Quinlan for a criminal proceeding implicating similar employee “theft,” and it found that decision largely irrelevant. It rejected any need for the trial court to apply a Quinlan analysis in deciding whether to dismiss the indictment (although the trial court had covered its bases by suggesting that such an analysis wouldn’t help defendant).
Accordingly, the Appellate Division rejected defendant's argument that “Quinlan essentially prevents the State from introducing evidence before the grand jury that demonstrates a prima facie showing that defendant ‘unlawfully t[ook], or exercise[d] unlawful control over’ the documents. Quinlan did not establish a bright-line rule that automatically entitled defendant to take the Board's highly confidential original documents.” Saavedra cited language from Quinlan stressing the risks of self-help for an employee since a subsequent court may not find her conduct protected.
The one ray of hope for defendant was the possibility that Quinlan may come in by the backdoor later in the proceedings. Defendant had made an “honest error” argument, which the court said “amounts essentially to a claim of right defense.” Under New Jersey law, a defendant may defeat a charge of theft by asserting a defense that she acted “under an honest claim of right to the property ... that [s]he had a right to acquire or dispose of it as [s]he did.” Presumably Quinlan is the basis for an honest claim of right – regardless of whether she actually satisfied the multi-factor analysis. Such a defense, however, operates at trial, not to justify dismissing an indictment, so defendant has to face a criminal trial to assert this defense.
The prospect of prosecution alone, even if an “honest error” defense is available or conviction is otherwise unlikely, would strike many as enough to chill potential LAD and CEPA plaintiffs. But the Saavedra court showed little patience with this argument. “Defendant implies that prosecuting her for theft and official misconduct is against LAD's public policy of rooting out discrimination in the workplace. This implication amounts to a request that we hold it is against public policy to criminally prosecute employees for taking employer public documents.” So framed, the argument was rejected.
That argument, however, resonated with dissenting Judge Simonelli, who would have dismissed “in the interests of justice” largely because
[i]t is fundamentally unfair to criminally prosecute and imprison an individual for theft, and official misconduct, for taking or copying confidential employer documents while engaged in protected activity pursuant to the Conscientious Employee Protection Act and the New Jersey Law Against Discrimination. The law gives no fair warning the conduct is illegal.
(citations omitted). As the last sentence suggests, the dissent relied on Quinlan to undercut whatever fair warning the New Jersey criminal statute might otherwise have provided of the impermissibly of defendant’s conduct.
It’s easy to dismiss Saavedra as a sport case brought by an overzealous county prosecutor. And, of course, the “official misconduct” charge is limited to public sector employees. But the theft charge is applicable to any employee, and the possibility that a vindictive employer would try to persuade a prosecutor to indict an employee who took company documents would certainly chill such conduct. While there is only a trickle of instances to date, Saavedra is only one of several criminal prosecutions of employees for taking documents to prove discrimination or public policy claims.
Plaintiffs’ counsel in New Jersey may well have to reconsider normal advice to clients to “gather evidence”! And what about the client who arrives at your office with a briefcase full of documents, proud of the information she has amassed? Is the best advice now to tell her not to bring suit – no matter how valid the claim – because of the risk of criminal charges? Of course, the risk that a prosecutor will indict is probably very small, but Saavedra renders it more than a logical possibility.
I also remain confused about exactly what constitutes theft of the documents. The court seemed worried more about the potential use of the information reflected in the documents, not merely about the taking of the physical objects (although its reference to defendant taking originals might suggest an intent to sabotage the operations of the Board, but that would seem to be relevant to the official misconduct charge, not the theft “of moveable property” that was charged).
Suppose the defendant, rather than taking originals or using Board paper to make copies, downloaded a PDF copy or took images with her smartphone? And what about electronic “copies” of electronic communications or files, including emails (say, for example, forwarded from one’s work email address to her personal account or copied into a Word document)? What about taking verbatim notes on the content of the paper or electronic documents? What about simply sharing the content (orally) with one’s attorney? The state’s statutes define theft to include “trade secrets,” N.J. Stat. Ann. § 2C:20-1 (g), but the charged offense was theft of “moveable property,” a strange concept in this situation
The point is that if the crime – that is, the theft -- is the taking of the content, not the paper, and sharing it with one’s attorney when contemplating suit, then this case has truly staggering implications, well beyond the particular facts or even LAD and CEPA. On that, at least, it seems there must be substantially greater clarification. Or am I reading too much into this?
Thanks to Kathleen Boozang and Tim Glynn for helping me think through some of the implications of the case.
Tuesday, December 17, 2013
Here is information about a timely symposium at Berkeley Law on mandatory predispute arbitration in the workplace, a trend that has taken off with all the recent pro-arbitration Supreme Court opinions:
Please join The Employee Rights Advocacy Institute For Law & Policy (The Institute) and the Berkeley Journal of Employment and Labor Law (BJELL) on February 27, 2014 for Forced Arbitration In The Workplace: A Symposium at the University of California, Berkeley School of Law (Boalt Hall).
Convened by The Institute in collaboration with the Berkeley Journal of Employment and Labor Law, the Symposium is designed to bring together academics, practitioners, and others in the legal community to engage in a thoughtful dialogue and help raise awareness about forced arbitration of workplace disputes. Articles from the Symposium will be published in BJELL’s Spring 2014 issue.
Program highlights include a keynote address by former Secretary of Labor Robert B. Reich, the Chancellor’s Professor of Public Policy at the University of California, Berkeley.
Monday, December 16, 2013
Over the last several years I frequently have found myself explaining at-will employment to law faculty/students in foreign countries who are incredulous at how little protection American law provides to employees. Now, I'm writing an article for a non-American audience, and I want to make the point that under the at-will rule, employees legally can be fired for bizarre or idiosyncratic reasons. If you have illustrative examples of cases that help illustrate this, please leave a comment. I'd love to collect some good examples to help illustrate the point.
Friday, December 13, 2013
Child abuse has traditionally been viewed as the exclusive province of the child welfare system and the police. But when child abuse accusations are made against an employee, such as a teacher or a childcare worker, it is also an employment law problem. The employer must decide how to respond to the accusations and whether to retain the employee accused of abuse. The employer's role becomes especially important when the child welfare system declines to take action following a report of abuse, or when the alleged conduct is insufficiently abusive to trigger a mandated report to the state.
Ignoring the employment law dimension of child abuse and mistreatment has proven problematic for employers, the accused employees, and the children in their care. Courts and labor arbitrators often inadvertently discourage employers from adopting better internal processes for preventing and mitigating child abuse and mistreatment. Employers who naively defer to child welfare determinations in their contracts and policies can find themselves hamstrung when they later find it necessary to discipline an employee notwithstanding state inaction. Passive employers also harm their employees by failing to provide notice and training on acceptable forms of workplace conduct.
A regulatory system that encourages employers to play a more active role could benefit children and their parents. Workplace-specific policies and practices can be crafted and updated in consultation with the preferences of their constituent parents. Children may be less likely to be harmed where an employer implements robust processes for preventing and addressing abuse and mistreatment.
Monday, November 25, 2013
The False Claims Act recently collided with New York's Rules on Professional Conduct before the Second Circuit, and the FCA came away the worse for wear. At issue in United States ex rel Fair Laboratory Practices Associates v. Quest was a district court's dismissal of a qui tam suit brought by a entity created for that purpose. The basis of the dismissal was that one of FLPA's principals had been General Counsel of the defendant. And not only did the district court dismiss the case but it also barred the plaintiff, its individual members, and the law firm representing it from bringing a subsequent qui tam action.
It's not news that attorneys are often unable to assert whistleblower rights that would be available to other employees because of the rules of professional conduct. But Quest is one of the relatively few cases where a federal right is pitched against state ethical rules. And the FCA is an unusual statute: while it also includes classic whistleblower protections, the suit in question was brought pursuant to the statute's qui tam provisions that authorize relators to file complaints in the name of the United States and to retain a portion of any recovery.
The Department of Justice has the right to intervene in a qui tam action, and the Second Circuit's affirmance of the district court's orders stressed that Justice was not precluded from prosecuting the case (although it declined that opportunity) nor were other potential plaintiffs precluded (although maybe some of the FCA's own provisions might bar them).
The Quest reasoning upholding both the dismissal and the disqualfications was pretty straightforward: the FCA did not preempt state ethics codes and former GC Bibi violated the NY rule against disclosing confidential information. While the relevant rule permits disclosure "to the extent that the lawyer reasonable believes is necessary . . . to prevent the client from committing a crime," the disclosures in question did not qualify. It was true that Bibi was resonable in believing that Quest had the intent to commit a crime, but he could not reasonably believe his discloures were necessary to prevent that crime.
That was because there were alternative means of preventing the crime in question, essentially the information available from other individual members (or perhaps from Bibi himself) that wasn't "protected client confidences."
The court's decision on this point relieved it of having to decide whether the mere filing of the qui tam suit violated New York's "side switching rule," which bars attorneys representing one side in a matter (Quest) from then representing the other (the US since a qui tam suit is in theory brought on behalf of the government). Such a holding would have been far broader than the decision actually rendered since, in theory at least, the Quest qui tam suit could have gone forward had Bibi been more circumspect in what he revealed.
Affirmance of the disqualification ruling was essentially fruit of the poisonous tree reasoning.
The Quest opinion repeatedly invokes the notion of balancing. Thus, it recognizes that it must balance federal and state interests in deciding the degree to which confidential information may be disclosed (although it also suggests that the NY Rule itself balances those interests by permitting disclosure necessary to prevent a crime), and it purportedly balanced the competing concerns of permitting vindication of legal rights against disqualification of plaintiff, its principals, and their attorneys.
But in the end, all this judicial balancing seems to mostly require attorney relators to do a lot of balancing themselves -- walking a tightrope between saying too much or too little. Qui tam claims have been held to pretty high pleading standards in the wake of Twiqbal, and it is easy to see how a plaintiff might feel the need to provide more rather than less information to support its allegations. While the Quest decision can be justified in terms of the text of the NY Rule, perhaps "necessary" to prevent a crime is too high a standard when a federal statute is at stake. A more appropriate standard would focus on the reasonableness of the disclosure in actually preventing the crime in question. At any rate, this is far from the first time that the courts have placed potential relators in very difficult positions.
Tuesday, November 19, 2013
Theodore Eisenberg (Cornell), who has been studying trends in civil rights and employment litigation for nearly thirty years, has just posted on SSRN his article Four Decades of Federal Civil Rights Litigation. Here's the abstract:
Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge trials has been declining for about 30 years; the number of jury trials has been reasonably constant over that time period. Civil rights plaintiff win rates at trial have been steady in both judge trials and jury trials for at least a decade. The success of civil rights litigation, as measured by trial win rates and settlement rates, has been quite low compared to contract and tort cases. Median awards in civil rights trials have increased more than the rate of inflation but median trial awards in both constitutional tort cases and employment cases are below the awards in contract cases and tort cases.
Wednesday, November 6, 2013
Sam Bagenstos has brought to my attention his new article in the Michigan Law Review entitled: Employment Law and Social Equality.
Here is the abstract:
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 Article 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. This Article argues that individual employment law, like employment discrimination 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.
This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this 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.
Very interesting new meta-theory on what animnates employment law. As an ERISA guy, I think Sam's social equality theory equally applies to how the law should protect employee benefit plan participants and beneficiaries from opportunitistic behavior by plan administrators, plan sponsors, and their third party advisors and consultants.
An important new contribution to employment law theory that should be on the top of any workplace prof's reading list.
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 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 (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.