Chapter 7: Privacy and Autonomy

Abstract

In 2003, the American Law Institute launched a project to restate the common law of employment. Shortly thereafter the Labor Law Group (LLG), an organization founded in 1948 composed of law faculty who research and teach in that area, though it well to consider what the ALI was doing. The Group’s overture to the ALI, more closely to engage with it, was rebuffed. As the ALI project progressed two LLG conferences critiquing the project’s work-in-progress were held and the proceedings published in the Employee Rights and Employment Policy Journal. The ALI’s Reporters declined the Group’s invitation to attend both conferences; their subsequent drafts declined to acknowledge the Group’s criticisms. The final text of the Restatement was adopted by the ALI in 2015. The LLG held a summarizing conference at the Indiana University School of Law in November, 2016. The ALI’s Reporters were invited and again declined to attend. The collection to be published in the Employee Rights and Employment Policy Journal.

This essay, part of the Group’s chapter-by-chapter critique, unpacks the document’s treatment of the law of employee privacy and autonomy. It concludes that by the ALI’s own standards the document is at all critical points opaque and incoherent, wanting in explanatory content or expository power. The document’s basic thrust is to “have the law buttress managerial prerogative and reify the status of employee as servant.”