If the law of the workplace could be anthropomorphized into a family of four siblings, here’s how it might go: labor law would be the oldest, a raconteur spinning yarns about the old days; employment discrimination would be the middle child, an activist vigorously standing up for justice and equality; employee benefits would be an accountant, quietly off to the side at family dinners; and employment law would be the oddball youngest child, jumping from activity to activity without rhyme or reason.1 I teach employment law, and it is often compared to a “catch-all” or “grab-bag” category: anything that doesn’t fit in the other courses is covered there. The Fair Labor Standards Act is paired with covenants not to compete; unemployment compensation is alongside the at-will doctrine. This hodge-podge looks like an unfortunate intellectual shambles when contrasted with labor law, which has the coherence of an overarching (and little amended) system of regulation, as well as employment discrimination, which has a limited set of comparable federal statutory schemes. Perhaps as a result, the employment law course tends to be one that a professor picks up on the side, to accompany one’s main interest in one of the other three subjects.
Sam Bagenstos has set himself the task of cleaning up this particular set of Augean stables by providing an overarching theory to justify our set of employment law doctrines. In Employment Law and Social Equality, Bagenstos sets out a “social equality” theory of employment law under which individual employment doctrines can be understood, as well as justified, for their promotion of social equality. Jumping off from his work on social equality and antidiscrimination protections, Bagenstos notes the difference: “[w]here employment discrimination law targets the threats to social equality caused by occupational segregation and group-based subordination, individual employment law should be understood as targeting the threat to social equality posed by a boss’s ability to leverage her economic power over workers into a more general social hierarchy in and out of the workplace.” (P. 232.) He argues that social equality—the notion that each of us are equal members of our communities—serves as the primary justification for many important employment law doctrines, such as employee privacy and autonomy protections, antiretaliation provisions, arbitration regulation, child labor laws, and overtime protections. Nimbly straddling the line between positive and normative claims, Bagenstos argues that social equality can serve as a theoretical lens for both seeing the law and critiquing it. As an example, he argues that critics of the at-will rule are primarily concerned with its effects in undermining social equality, and that the rule should be dismantled for propping up workplace hierarchies. His “social equality” theory thus serves as a tool for understanding the law as well as a sword for attacking it when it exacerbates existing hierarchies.
As an employment law professor, I deeply appreciate Bagenstos’s effort to provide some theoretical backbone to the field, particularly in contrast to the omnipresent (and omni-encompassing) reach of law and economics and its utilitarian methodology. Of course, the “social equality” lens need not be exclusive of the economic one; both can coexist and even provide complementary justifications for the same doctrine.2 Similarly, I think Bagenstos need not identify his theory as one that covers all of employment law or one that applies only to employment law. He wisely chooses those doctrines that best match up with his theory, in either a positive or a negative sense, and provides keen doctrinal insights into the operations of these provisions. In particular, I believe his interest in the confused and often neglected realm of employee political speech and activities is an important one, and he neatly demonstrates how social equality would counsel for much greater protection for employee political participation. But social equality need only be one theory or justification within a set of justifications—one lens among many. And why try to tie it to the grab-bag of employment law? The article reads somewhat as if Bagestos had selected the category and then matched it to the theory; but why is employment law even a meaningful category? In fact, why is employment at all a meaningful category? Why do we base so many of our laws on the initial threshold requirement that the person be defined as an employee for purposes of the relationship in question?
Employment should not be a meaningful category simply because it provides an easy entry point for carrying out policy goals that could be equally relevant to other legal situations and dynamics. Instead, we should ask: what is so special about employment that it justifies its own legal meaning? From my perspective, employment is special because of the employer: employees would not be employees but for their relationship with an entity defined as an employer. Employers take on the responsibility of having employees not by self-description or by legal decree, but whenever they form relationships that are best characterized as employer-employee. Using the traditional common-law tests, employers provide direction and exhibit control over the work that employees do.3 Employment is a useful legal category because it is defined by how the employer has constructed its actual relations with its workers. Because employees are those “controlled” by the employer, the employer has responsibilities towards its employees that extend beyond the average contractual relationship. It is not a generalized sense of social equality that is at issue: it is equality within the firm, both economic and social, that employment law seeks to engender.
That is a discussion that I hope will continue on into the literature. In the meantime, praise be Bagenstos for shining the light of social equality into the rough mess of employment law, and finding some gold that glitters back.
- See Orly Lobel, The Four Pillars of Work Law, 104 Mich. L. Rev. 1539, 1539 (2006).
- As one example, law and economics may try to swallow social equality by making its goal of equality in social relations part of the “preferences” that economic analysis measure and balance in evaluating different policies.
- I have argued that a better concept is participation: employees are those who participate in the continuing business of the employer. Matthew T. Bodie, Participation as a Theory of Employment, 87 Notre Dame L. Rev. 661 (2013).