Arm's Length Intimacy: Employment as Relationship
36 Pages Posted: 9 Oct 2011
Date Written: October 7, 2011
Two important assumptions shape the law of work: that workers and employers possess interests that are diametrically opposed, and that each makes no investment in the other beyond the immediate exchange of dollars for labor. This article explains how law ignores the realities of interdependence, intimacy and mutual investment at work, committing itself instead to a model of employment as an arm’s length, impersonal cash-for-labor transaction featuring employment-at-will as the default rule. It argues that a contractual framework characterized by the assumption of arms’ length dealing and a default rule of unrestricted unilateral exit with no notice or transitional period offers a flawed lens through which to view the employment relation.
This article turns to family law for an alternative legal model that might be more responsive to the realities of the employment relationship. Marriage law is characterized by a status-based framework designed to recognize and protect investment in relationships characterized by interdependence, intimacy, and investment. Notice and waiting periods are standard fare at marital dissolution to ease the transition and encourage couples to salvage marital relationships; temporary support and alimony are available to dependent spouses; and fault is still relevant in many states. Might such a status-based framework be adapted for the employment relationship?
The idea of applying legal principles developed for marriage and family seems at first blush preposterous. Marriage is, after all, about love; work is about money. In a powerful book, sociologist Viviana Zelizer described and critiqued the divide between the two spheres, observing that in real life activities undertaken for love and for profit are often commingled, complementary and even interdependent. Drawing on Zelizer’s insights, this essay returns to first principles, challenging the assumptions that justify the differential treatment of waged work and intimate relationships at law, particularly at termination. What difference might it make to think about employment as an intimate relationship characterized by investment and emotion instead of limiting our conceptual frame to an arm’s-length exchange of labor for dollars? The differences might be as simple as requiring notice and transitional assistance (severance pay) linked to longevity and/or investment, as radical as recognizing new common law claims based in property rights for workers (collective rights to trade secrets?), or as straightforward as heeding evidence of emotional harm linked to termination and providing compensation for it. This essay argues that reconceptualizing employment as relationship – as about both money and “love” – is an important first step toward any of these reforms.
Keywords: work, employment, family, marriage, human behavior, relationships
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