Wednesday, July 1, 2009

Secunda on the Proposed Restatement

Books The Wisconsin Law Journal recently had an article looking at the proposed Restatement of Employment Law and the Labor Law Group's opposition to the project.  The article features comments from people on both sides, including blogger emeritus Paul Secunda (Marquette) and Chief Reporter Sam Estreicher (NYU):

Last month, three chapters were adopted, covering the definition of an employment relationship, the employment at-will doctrine and the tort of wrongful discharge in violation of public policy. Several more chapters will be presented to an advisory group this month, but it is likely to take three to four more years before a complete draft is presented for a vote of ALI’s members, said Samuel Estreicher, chief reporter for the Restatement, who teaches employment law at New York University School of Law and is of counsel to Jones Day.

The Labor Law Group, a group of mostly employment law professors, opposes the Restatement and held its own conference presenting its criticisms. . . . Although he is not a member of the Labor Law Group, Marquette law professor Paul M. Secunda was asked to co-chair the group critiquing the chapter on wrongful discharge in violation of public policy.

Secunda said there are a number of reasons why creating a Restatement for employment law is a bad idea. “A lot of the employment law that we’re talking about is state law, and states vary widely in things such as the employment-at-will doctrine, privacy protection, covenants not to compete, and the list goes on,” Secunda said.

He noted that the law is still evolving quickly and has many different aspects to it, drawing from federal law, the federal constitution, state law and state constitutions, as well as state common law. “It is one of the most dynamic areas in the law right now. Trying to stop it at this point in time is troublesome, because who knows what the law is going to look like five years from now?” Secunda said. “Do we want judges who generally see a Restatement project as being influential to be stuck on what our thoughts are on the various issues today?” . . .

The most contentious area of the Restatement is its endorsement of the at-will doctrine as the default rule.  Estreicher defends that position, contending that “no doctrine is more firmly established in American employment law” and noting that the draft provides an appendix citing the 49 states that adhere to it as the default rule. (Montana requires “good cause” for termination.)

But [Cliff Palefsky, an advisor to the Restatement and a plaintiffs’ attorney at McGuinn Hillsman & Palefsky in San Francisco] said calling the at-will doctrine the default rule is “misleading.” He said that while “at-will” employment used to mean a worker could be terminated for any reason at all, in the past 20 years, Congress and state legislatures have passed so many statutes barring discriminatory discharge, based on age, race, jury duty, whistleblowing, disability, family leave and others, that the doctrine no longer carries the same meaning. “In fact, the at-will doctrine as it existed is dead. This draft [of the Restatement] is not only trying to keep it alive, but doesn’t recognize that the exceptions dwarf the rule,” Palefsky claimed.

Many more comments both defending and criticizing the project in the full article, so check it out.

-JH

https://lawprofessors.typepad.com/laborprof_blog/2009/07/secunda-on-the-proposed-restatement.html

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