The Proposed Restatement of Employment Law at Midpoint
36 Pages Posted: 7 May 2013
This article examines the proposed Restatement of Employment Law at midpoint, seven years into the process, now that roughly half of the chapters have been written. (The article also introduces symposium papers from the nation's leading employment law scholars assessing the new chapters.)
In 2007, the ALI began the project without identifying the purposes of a restatement of the common law in this area. The proposed restatement was built upon the somewhat antiquated and widely criticized "at-will" rule. Choosing the at-will rule as the foundation of this restatement continues to be the most significant policy choice made by the drafters in terms of structure and consequences. By choosing the at-will rule, the drafters missed an opportunity to found the restatement on a better reasoned principle.
To date, state supreme courts have cobbled together various legal protections against wrongful discharge from five different theories in their continuing efforts to refine and improve the common law of employment. The resulting variety of judicial reasoning makes any attempt to standardize a singular restatement a gross oversimplification of current law. Rather than account for these many differences by providing choices, or rather than start from a central premise of best practices, the ALI resorted to the at-will rule as the historical common denominator. The article calls for more thorough empirical examination of all fifty states' decisions as the necessary basis to accurately assess the current legal landscape. The article also calls for state supreme courts to continue their good efforts to refine the common law of employment as being in the best interests of their states rather than relying upon this proposed restatement.
The new chapter 8 declares a far-reaching general duty of employee loyalty owed to employers. The provenance of such a general duty, not identified by the drafters, cannot be found in authoritative sources. It is also at odds with the reciprocity principle in the at-will relationship under which employers owes no similar duty to employees.
This second critique continues from articles published in Employee Rights & Employment Policy Journal Volume 13 in 2009.
Keywords: restatement of employment law, common law, employment termination, employee privacy, duty of loyalty, at-will, covenants not to compete, theories of employment protection, methodologies to assess multiple states’ common law, wrongful discharge, master-servant
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