Sunday, February 8, 2009

Proposed Restatement of Employment Law

Llg_3The Labor Law Group and Hastings College of Law just wrapped up a Conference on the Proposed Restatement of Employment LawThe Labor Law Group organized three working groups, one each on the three chapters of the proposed Restatement that are available in draft form. The working groups are Chapter 1, Existence of the Employment Relationship; Chapter 2, Employment Contracts Termination; Chapter 4, The Tort of Wrongful Discipline in Violation of Public Policy.

I discerned two clear themes.  First, substantively, there are parts of the proposed Restatement -- especially in the Comments -- that slant heavily toward employers, though there are parts of the proposed Restatement as well that are on the progressive side.  Second, the scholarship behind the proposed Restatement is extraordinarily sloppy -- cases are mis-cited, facts are wrong, holdings are wrong, and cases do not support the propositions for which they are cited.  For this reason alone, I believe that ALI should put a hold on the proposed Restatement until it can be cleaned up.  I believe that the proposed Restatement, if passed in its present form, would be an embarrassment to the American Law Institute and would call into question generally its commitment to accurate scholarship.

Thanks to Joe Grodin and Ken Dau-Schmidt for organizing the conference.


I've received a fair amount of pushback on my characterization of the proposed Restatement of Employment Law as containing sloppy scholarship.  I stand by my characterization, at least with regard to the subsection I reviewed.  Consider the following, all of which are from the proposed Section 4.02: Scope of Protected Activities for Public Policy Tort Exception, which I was assigned by the Labor Law Group to comment on:

The Reporter's Notes say Illustration 18 is based on Kanagy v. Fiesta Salons, Inc., 541 S.E.2d 616 (W. Va. 2000).  However, the case does not support the illustration for which it is cited, for two reasons.  First, the Illustration says the retaliation was for reporting that a product did not comply with federal product-safety regulations, but the case involved a plaintiff-employee discharged for reporting that her supervisor was practicing cosmetology without a state license.  Second, the Illustration is about a wrongful discharge for internal whistleblowing (a report to a supervisor), while Kanagy is about external whistleblowing (a report to an investigator for a licensing board).

Likewise, Illustration 22 is not supported by the case cited for it in the Reporter's Notes, McLean v. Hyland Enterprises, Inc., 34 P.3d 1262 (Wyo. 2001).   Mr. and Mrs. McLean both were fired after Mr. McLean refused an assignment to use an unsafe modified mast truck to pull a well.  The actual case, however, differs from the Illustration in the following ways: (1) both spouses were employed by the employer; (2) Mr. McLean -- not Mrs. McLean -- reported the purported safety violation; (3) Mr. McLean did not report the purported safety violation until after he had been fired; (4) Mrs. McLean argued that she was fired in retaliation for Mr. McLean's having reported the safety violation; (5) the state workers' safety division investigated and found that there had been no safety violation; (6) there was nothing in the case about many reports of safety violations having been made, or of safety violations being widely known within the company; (7) the court found that because the McLeans had access to an administrative remedy, they had no claim for wrongful discharge.  In short, the "case" in the Illustration bears very little resemblance to the case from which it supposedly is derived.

The parenthetical summary for Lindemood v. Office of the State Atty, Ninth Jud. Cir., 731 So. 2d 829 (Fla. Dist. Ct. App. 1999) (cited in subsection d) incorrectly states that the plaintiff in this case was an independent contractor. The plaintiff in Lindemood  "was an employee of the State Attorney's Office" (emphasis added), and as such she was protected from wrongful discharge under Florida's public whistleblower statute.

The summary of Cilley v. N.H. Ball Bearings, 514 A.2d 818 (N.H. 1986) (cited in subsection e) gets the facts wrong, and the holding is inconsistent with the text of the Restatement. The summary states that the plaintiff was fired because he refused to lie on behalf of another manager who was improperly using company employees for personal gain.  To the contrary, it was the plaintiff himself who (according to the employer) had been using company employees for personal gain -- this was the reason the employer gave for the discharge.  The plaintiff's public policy argument had nothing to do with the use of employees for personal gain: he was arguing that his discharge was caused by another official's desire to get "revenge against him, which grew in part from [the plaintiff's] earlier refusal to lie to the company president on the other official's behalf" about a matter unrelated to the plaintiff's use of company employees.  The court reversed summary judgment for the employer, holding that a "jury could find [that plaintiff] was discharged for refusing to lie and that public policy supports such truthfulness."  The text of the Restatement does not support the notion that an employee's refusal to lie to the company president about internal matters, without more, would support a public policy tort.

These four examples all came out of the proposed Section 4.02.  At Saturday's conference, speaker after speaker indicated that such mis-stated cases, far from being anomalous, were the norm.

I am not attacking personally the Reporters, all of whom I respect tremendously.  Nor am I making here an ideological argument against the proposed Restatement.  I am merely asserting that before any group purports to "restate" American employment law, that group should be darned sure that the cases support the "black letter" that the drafters purport to draw from the cases.  Otherwise, it might appear that the drafters wrote the black letter first, then had poorly-supervised research assistants seek case support afterward.  A Restatement should proceed in the opposite direction.


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Thanks for the timely post, Rick. Your readers might better appreciate the seriousness of the criticism if you were to post a list of the participants and attendees, and perhaps link to the draft reports. This is something the ALI simply must address before going forward.

Posted by: Dennis Nolan | Feb 8, 2009 10:44:34 AM

I agree with Dennis. I would be fascinated to see the sections devoted to the law of forced-unionism, for instance.

Posted by: James Young | Feb 8, 2009 7:00:06 PM

How will all the information delivered at the conference be published and how will it be presented to the ALI?

Posted by: Mike Zimmer | Feb 9, 2009 8:01:40 PM

Mike: the draft reports are being revised right now. They'll be desktop published and sent to the ALI (and, I'm sure, anyone else who is interested) well before its scheduled vote. It will then come out as an issue of the Journal Employee Rights and Employment Policy.

Posted by: Dennis Nolan | Feb 9, 2009 10:47:47 PM

James Young:

Restatements deal with common law rules, not matters governed by federal statutes. The NLRA rules you dislike are set by a federal statute. They are thus not within the scope of any possible Restatement of Employment Law (just as Title VII, FLSA, and other federal statutory rules are not).

I assume you know all this, and simply like to type the phrase "forced unionism" periodically to express your frustration with the past 70 years + of the NLRA.

Posted by: Joseph Slater | Feb 10, 2009 6:45:21 AM

Joseph, I am always entertained by the far Left's penchant for projection, i.e., your attribution to me of "frustration." It is not "frustration" to refer to the regime of the NLRA --- I was perhaps inelegantly referring specifically to forced dues, not merely representation --- as "forced unionism"; it is accuracy. Now, I am well aware that those of you on the far Left prefer the camouflage of euphemism, but it is most appropriate to identify it for what it is.

And, of course, were you as enamored of the common law as you pretend to be, you would at least acknowledge that the NLRA alter at which you worship was in serious derogation of the common law.

Posted by: James Young | Feb 12, 2009 11:37:50 AM

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