The War is Over But What Impact Will the Restatement of Employment Law Have?

When, a number of years ago, the Council and the Director of the American Law Institute announced that the Institute was undertaking a project in the area of labor and employment law, it followed its long tradition of deciding the project’s subject, its type and who would be the Reporters without input from the membership at large. That the topic was employment law was not a surprise. After all, Lance Liebman, the ALI’s Director, is a well known teacher and scholar of employment law. The nature of the project, a Restatement, was, however, somewhat of a surprise. Restatement projects look to the common law in a particular area. A problem with a Restatement of the common law of employment is that the common law plays a small role in a large, ungainly, some would say, disorganized jumble of state and federal laws, statutes and common law covering a wide range of issues that bear on employment. There is little apparent coherence to it. So, in the admittedly small world of labor and employment academics, it was no surprise that the idea of a Restatement provoked widespread protest. Some feared that a Restatement of Employment Law would “cement” in place law that was woefully inadequate for present much less future times. For some, that fear was exacerbated by the choice of the Reporters and the initial Advisory Group. I liked the idea of an ALI project but, given the mishmash that is labor and employment law, hoped for a Principles project to develop a policy basis that could be used to develop a coherent body of labor and employment law.

In face of the protests, the project moved slowly at first as some Reporters left and others joined the project. Once three chapters had been completed and approved by the ALI Council, the opposition got organized to try to stop those chapters, and indeed the whole project, from proceeding any further. Many of those opposed undertook the unusual move toorganize and hold a well- attended meeting at Hastings to present and to develop critiques that argued that the Restatement project should be abandoned. The work of 18 employment law academics was presented at the meeting. The results of that meeting and the critiques prepared for it were sent to all ALI members for their consideration before last May’s annual meeting that had the first three chapters on the agenda for adoption. The critiques were also published in a special issue, volume 13, issue #1 of the Employment Rights and Employment Policy Journal,

Given the heated nature the whole issue had become, it should be no surprise that the dispute became personal. The lines were drawn with the ALI on one side and the Labor Law Group on the other. While the debate at the ALI meeting this past May was heated, the membership, as it generally does, accepted the recommendation of the Council and approved the first three chapters more or less intact.

That approval seemed to help turn the corner on the project and the opposition to it. Perhaps resigned to the project’s continuation, many of the opponents have now decided to pitch in to help make it as good as it can be. On September 25 and 26, the Fourth Annual Colloquium on Current Scholarship in Labor and Employment Law, held this year at Seton Hall law school, had two plenary panels dealing with two new chapters of the project that were still early in development. One dealt with torts – defamation, intentional interference with contract covered by Chapter 6 along with discussion whether torts such as false imprisonment should be among the torts covered by the Restatement. The other covered Chapter 7’s treatment of employee privacy. The Chief Reporter, Sam Estreicher from NYU, and the two Reporters dealing with the two chapters, Michael Harper from BU and Matt Brodie from St. Louis U., made presentations followed by interesting and constructive responses from a number of law professors who have done work on these topics. Having moderated one of the panels and observed the other, I was surprised at how low key it all turned out to be. In fact, there was no heat at all.  At the end of the second panel, Ken Dau-Schmidt from Indiana Bloomington, who had originally helped organize the Hastings conference, announced that he had joined the ALI Advisory Group for the project and that he would be happy in that role to be a conduit for suggestions for improvement made by any interested members of the labor and employment law academic community. Thus, a truce was called, the war is over.

Once the Restatement is completed and approved, the question will be its impact on the common law. Restatements on a number of areas of the common law – torts and contracts, for example – have had major influences on the development in those particular areas of law. The ALI prefers Restatements to other types of projects precisely because their influence is made obvious by the citations common law courts make to them. Thus, many of those opposed to the Restatement were afraid the Restatement would have considerable effect on the common law. They feared the Restatement would have the net effect of retarding the development of employment law. Instead of leading toward better law, the existing, but inadequate, employment law reflected in the Restatement would be authority to keep that law in place. Only time will tell what the final Restatement will look like and, of course, its influence on the development of the common law is not at all clear. It is likely that, at least as to the first three chapters, the Restatement will be read together with the extensive critiques published as a result of the Hastings meeting. Every party pointing to the Restatement as secondary authority will get back arguments based on these published critiques. Reading the Restatement together with the critiques will present a broader view of the possibilities for development in the common law of employment than looking at either alone. So, ironically, the first three chapters may have a positive influence in part because of the protest. Given the truce, however, the chapters yet to be developed may lack the kind of call-and-response that those first three have benefitted from. These later chapters may, however, be bolstered from within if those who opposed the Restatement do pitch in to make it as good as it can be and if that input influences the final product.

 The deeper question is whether, even with broader input, the Restatement, as developed so far, will be seen as all that useful. Following in a long tradition of Restatements of American common law, this Restatement has little reference to the labor and employment laws in other countries. That seems to continue the generally held though unstated and dangerous notion that U.S. law is the way to deal with problems with the small variations among the states reflecting the possible range of solutions. American employment law is exceptional. Juxtaposing it with the quite different approaches other countries have taken to the same problems would inevitably spark a debate as to what policies do, and what policies should, animate our labor and employment law. Because of that unexamined but parochial assumption that U.S. law is the only way to go, the Restatement has little need and makes no effort to theorize American common law – the common law is what it is and that is that. Policy discussion is not needed because the formal rules are relatively clear. I think, however, that the genie of comparative law has come out of the bottle because of an increasingly globalized economy. Comparative law makes it much easier to articulate the policy underpinnings of any particular area of the law. This Restatement, and all subsequent ones, will need to articulate policy support for the positions taken as to what the common law is and what it should be. The absence of development of the policy underpinnings of the common law now weakens the Restatement enormously when there is so much more known about alternative approaches developed in different legal cultures around the world.

While the Restatement project continues to roll on, there is a recent effort to attempt to theorize U.S. labor and employment law. Steve Befort, a University of Minnesota law professor, and John Budd, a University of Minnesota management professor, recently published “Invisible Hands, Invisible Objectives: Bringing Workplace Law & Public Policy into Focus (2009). They develop what they describe as a triad of the fundamental objectives of American workplace law:

            “Efficiency: effective, profit-maximizing use of labor and other scarce resources;

             Equity: fairness in the distribution of economic rewards, the administration of   employment policies, and the provision of employee security;

             Voice: meaningful participation in workplace decision-making.”

While the first objective is not, in our culture, disputed, the other two certainly are. The laissez-faire assumptions that underpin U.S. labor and employment law do focus on the first objective of efficiency. By the same token, that same philosophy leaves the free market to develop whatever equity and voice inputs that people are willing and able to pay for: “As efficiency-related concerns . . . have come to dominate public discourse, the idea of regulating markets, corporations, and the employment relationship to achieve other goals besides efficiency – namely, various elements of equity or voice – have come to be viewed very negatively.” Based on their careful development of why equity and voice are necessary for a healthy economy with a productive workforce, Befort and Budd call for “explicit discourse on how to work out a balance in today’s employment relationship using the framework [of all three policy objectives].” That discussion would, of course, be highly contested but a result of that discussion may be to narrow the range of differences and to come to some greater degree of understanding and consensus about the how to develop a coherent structure of labor and employment law to best serve the interests of our country now and in the future.

I always thought that the ALI would be an excellent forum for that policy discussion since its membership includes prominent practitioners, jurists and academics. But, the format of a Restatement project does not easily lead to deep policy discussion. Even if it did, the focus on the common law is but one small part of all that there is that we call labor and employment law. With the Restatement in the works, it is probably too late for the ALI to now undertake a broader Principles project focusing on the development of sound employment policies: The ALI put the cart before the horse. Another forum is necessary. Will legal academics organize that forum? I look forward to the initial call for papers.

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