Jottings By An Employer's Lawyer

Monday, May 21, 2012

Somewhere in a Smoke Filled Room Your Future Is Being Determined


Well that's a little dramatic, but after staying up late to watch my Spurs complete their second sweep in a row,  the subtle part of my brain is not working as well as it should be.

Although said in jest, the comment does have some truth (except for the smoky rooms), as the American Law Institute is meeting in D.C. this week and will be taking up Chapters 3 and 7 of the Restatement of Employment Law. This according to Paul Secunda, one of the editors at the Workplace Prof Blog, who will be in attendance. American Law Institute - Restatement of Employment Law.

According to Professor Secunda, Chapter 3 on compensation and benefits is authored by Sam Estreicher of NYU, and Chapter 7 which deals with privacy and autonomy interests in the workplace is authored by Matt Bodie, from St. Louis University.

Although it will be known as the Restatement of Employment Law, Third, it is actually the first. The 3rd moniker is because this is the third general round of Restatements done by the ALI. The first round was from 1923 to 1944. The 2nd round started in 1952, and the 3rd round started in 1987, and included Employment Law for the first time.

Because it takes considerable time to reach the consensus of the various reporters and advisers, and then go through the Council itself, it may well be some time before it is finalized. A list of the project participants can be found here.

Even when final, its impact will come only as courts adopt it.

But if you think it could not have impact on your world, think of the four theories of privacy rights (only three of which have been accepted by Texas courts) and intentional infliction of emotional distress. Although the latter has been substantially restricted in Texas, both concepts have been important in my career, and both arose gained prominence (if not their existence) from the Restatement of Torts.

As I have always understood the Restatements, they are meant to be a combination of what the law is, plus some looking forward to what it should be, so whatever comes out could very well be an important force, although that force is likely to be felt long after my active days of practice are ended.

If you want a preview of where it's headed, some of the drafts are available from the ALI's website under the Restatements of the Law - Employment Law section.


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