Modifying At-Will Employment Contracts

This Article addresses the problem of “mid-term” modification of employment—the common employer practice of introducing adverse changes in incumbent employees’ terms of employment on penalty of termination. It calls for a universal reasonable notice rule under which courts would enforce mid-term modifications only where the worker received reasonable advance notice of the change. An employer’s sudden imposition of new terms prevents employees from exercising what is often their only form of bargaining power —the ability to credibly threaten departure. Rejecting retrograde judicial approaches that turn on the presence or absence of consideration, the Article argues for a “procedural good faith” rule that directly polices the risk of coercion consistent with contemporary contract modification law. Courts should enforce mid-term modifications only where the employer provides enough advance notice to allow the employee time not only to meaningfully consider the proposed change, but also to compare and secure alternate work

Public Law and Private Process: Toward an Organizational Justice Model of Equal Employment Quality for Caregiver

This article considers the relationship between prescriptive law and voluntary employer behavior in redressing the structural exclusion of working caregivers. In the last decade, several courts interpreting the Americans with Disabilities Act have held that employers are statutorily required to engage in an interactive process with workers to identify ways of accommodating their disabilities. In so doing, they have created procedural rights for workers that are distinguishable from and supplemental to the substantive right to reasonable accommodation afforded by the statute. This move resonates with developments in Title VII jurisprudence, such as the creation of an affirmative defense to harassment liability for employers who implement preventative policies. It also exemplifies what can be thought of as a second generation response to structural exclusion, one that calls for greater cooperation between advocates of reform and employers themselves, in recognition of the fact that stimulating viable private solutions and a social commitment to change are essential components of any enduring workplace reform agenda. Drawing on this literature and courts\u27 development of the Americans with Disabilities Act interactive process requirement, this article suggests that a comparable approach can be useful in redressing other types of workplace disparities, such as the attachment and promotion gap between working caregivers and unencumbered workers. It suggests that emphasis on procedural protection for workers may incentivize the development of positive voluntary procedures for preventing and correcting structural impediments to the advancement and inclusion of these workers. In so doing, it refines the relationship between public regulation and private behavior in reaching the goal of true workplace equality

Mainstreaming Employment Contract Law: The Common Law Case for Reasonable Notice of Termination

This Article simultaneously exposes a fundamental error in employment termination doctrine and a paradox in contract law jurisprudence. Contemporary employment law has developed under the assumption that at-will parties may terminate their relationship both without reason and without notice. This Article argues that the second half of this formulation—the idea that parties reserve the procedural right to terminate without notice—is neither historically supported nor legally correct. Employment at will, as originally expressed, was a mere duration presumption reflecting America’s rejection of the predominant British rule favoring one-year employment terms. While subsequent case law expanded the presumption in various ways, a reinterpretation that requires advance notice of termination remains compatible with the way in which most contemporary courts articulate the rule. In fact, an examination of general contract law reveals that in a variety of nonemployment contexts, courts impose on parties to an indefinite relationship the duty to provide reasonable notice while still safeguarding their right to terminate at will. Such an obligation serves not only as a gap filler in the face of contractual silence, but also as a good faith limitation on parties’ exercise of substantive discretion. Absent such a notice requirement, employment is an illusory relationship, one that lacks the modicum of consideration necessary to create a binding contract. While courts have sought to circumvent this problem by theorizing employment as a unilateral contract, that formulation is ill-suited to the reality that both sides generally anticipate an ongoing, dynamic relationship. This Article recasts employment as a bilateral contract terminable at will by either party upon reasonable notice. Establishing a reasonable notice obligation will grant terminated workers paid transition time to seek new employment and develop new skills. At the same time, adopting this rule paves the way for a more unified body of contract law. The case for deviations from general contract principles is strongest where context-specific rules fulfill the reasonable expectations of the weaker party. Employment-specific contract rules, as they currently stand, do precisely the opposite. While ordinary contract law cannot adequately protect workers’ interests in all circumstances, this Article demonstrates that in at least some instances mainstream doctrine, properly understood and applied, can produce results that are both good for workers and in harmony with existing law

Accommodation Subverted: The Future of Work/Family Initiatives in a \u27Me, Inc.\u27 World

This article considers the viability of mandated employer accommodation of family caregiving in a work culture that prizes employee mobility and independence. Extant accommodation mandates, such as the Americans with Disabilities Act and the Family Medical Leave Act, have been only moderately successful in deconstructing discriminatory work structures that operate to exclude underrepresented workers. Court decisions interpreting those laws frequently invoke equality principles to limit their reach and preserve employer discretion, while decisions favorable to disadvantaged plaintiffs have often occasioned popular backlash. These circumstances call into question the efficacy of accommodation as a vehicle for achieving results-based equality for caregivers. Such difficulties must be analyzed against the development of what I call a “Me, Inc.” work culture, an environment typified by worker assumption of responsibility for training and education, increased employer demand for “extra-role” behavior, significant worker mobility and a corresponding decline in long-term employment relationships. The emerging view of workers as autonomous companies is in direct tension with society’s historical designation of the employer as the party primarily responsible for accommodating the “life-cycle” needs of its workforce. On a practical level, changes in the nature and duration of work relationships mean that employers will have limited ability to absorb costs associated with accommodation, and, more significantly, that any judicial interpretation or popular conception of the employer’s duty to accommodate will be constrained by the expectation of employee self-reliance. The article therefore cautions that expansive efforts to mandate employer accommodation of caregiving risk internalizing the norms they reject and are unlikely to succeed on their own in establishing a wholly new work ethic more inclusive of family caregiving. It proposes instead a preliminary three-part approach to redressing caregiver disadvantage that corresponds to the three pre-existing channels of federal employment regulation: vigorous pursuit of class-based discrimination claims, reinvigoration of collective bargaining, and the creation of a government-administered system of wage replacement that incentivizes employer-initiated programs to assist caregivers

Just Notice: Re-Reforming Employment At-Will

This Article proposes a fundamental shift in the movement to reform employment termination law. For forty years, there has been a near consensus among employee advocates and worklaw scholars that the current doctrine of employment at will should be abandoned in favor of a rule requiring just cause for termination. This Article contends that such calls are misguided, not (as defenders of the current regime have argued) because it grants workers too much protection vis-à-vis management, but because it grants them too little. A just cause rule provides only a weak cause of action to a narrow subset of workers – those able to prove their firing was for purely arbitrary reasons. It fails to account for the justifiable, but still devastating, termination of workers for economic reasons, by far the most common reason for job loss today. In this way, the rule is not only inadequate, but anachronistic. Just cause protection is consistent with a mid-twentieth century view of the social contract of employment, which anticipates a long-term, symbiotic relationship between employer and employee in an economy dependent on internal labor markets. Under such a system, the just cause rule gave legal force to parties’ social contract of employment. In contrast, today’s employers operate principally in an external labor market in which implicit promises of long-term employment have been replaced by implicit promises of long-term employability. Both companies and workers anticipate significant job turnover both in times of economic turbulence, such as the current downturn, in which employers are forced to shed numerous workers due to financial hardship, as well as during economic bubbles, in which companies lay off workers and reorganize for strategic reasons. Given these practices and expectations, the goal of termination law ought not to be protecting individual jobs but rather assisting workers in the inevitable situation of job loss. To that end, the Article proposes the adoption of a universal “pay-or-play” system of employment termination. Absent serious misconduct, employers would be required to provide advance notice of termination or offer wages and benefits for the duration of the notice period. In contrast to just cause proposals, “pay-or-play” recognizes the necessity and value of employment termination. Rather than encouraging parties to maintain status quo relationships, “pay-or-play” seeks to facilitate transition. It affirms managerial discretion in hiring and firing by eliminating fact intensive inquiries into employer motive. At the same time, it makes real employers’ implicit promise of employability by granting workers a window of income security in which they can comfortably search for the next opportunity

Temporary Termination: A Layoff Law Blueprint for the COVID Era

The COVID-19 pandemic led to Congress’ passage of two groundbreaking pieces of legislation, mitigating the financial toll on individuals unable to work due to the pandemic. The protections include: paid sick time, job protected leave for routine childcare, and expanded unemployment benefits. The current worker protection system affords insufficient rights in the event of an economic termination. The accommodations arising from the COVID-19 pandemic have long been demanded and could pave the way for enduring employment reform. This Article encourages the recognition of “temporary termination” for employees terminated for economic reasons. Arnow-Richman advocates for the following “temporary termination” rights: advance notice or its equivalent severance pay; ability of employers to classify such workers as temporarily separated; streamlined employee access to unemployment benefits; entitlement to reinstatement when work becomes available; and a deferred severance pay if the employer is unable to reinstate the employment

Temporary Termination: A Layoff Law Blueprint for the COVID Era

The COVID-19 pandemic led to Congress’ passage of two groundbreaking pieces of legislation, mitigating the financial toll on individuals unable to work due to the pandemic. The protections include: paid sick time, job protected leave for routine childcare, and expanded unemployment benefits. The current worker protection system affords insufficient rights in the event of an economic termination. The accommodations arising from the COVID-19 pandemic have long been demanded and could pave the way for enduring employment reform. This Article encourages the recognition of “temporary termination” for employees terminated for economic reasons. Arnow-Richman advocates for the following “temporary termination” rights: advance notice or its equivalent severance pay; ability of employers to classify such workers as temporarily separated; streamlined employee access to unemployment benefits; entitlement to reinstatement when work becomes available; and a deferred severance pay if the employer is unable to reinstate the employment

Cubewrap Contracts: The Rise of Delayed Term, Standard Form Employment Agreements

Modern companies increasingly use standard form agreements, such as arbitration and non-compete agreements, to “contractualize” discrete aspects of their workers’ obligations. Frequently such agreements provided to the worker after an initial oral agreement of employment has been reached, what the article refers to as “cubewrap” contracting practices. Courts and scholars have yet to develop a consistent contractual theory of the enforceability of these documents. In contrast, consumer contracts have been standardized for decades, and the problem of “terms in the box” contracts, in which key terms are similarly delayed, has been extensively debated. This article draws insights from the “terms in the box” literature to suggest a possible framework for judicial and legislative responses to the rise of “cubewrap” contracts

Noncompetes, Human Capital, and Contract Formation: What Employment Law Can Learn From Family Law

Despite historical attention to such issues, the current approach to noncompete enforcement has been consistently criticized from a range of perspectives for not appropriately protecting the interests of either party. In Part II of this Essay, I take those criticisms as my starting point, discussing contemporary changes in the labor economy and in the popular expectations surrounding employment relationships that challenge the existing doctrinal test. In Parts III and IV, I consider possible changes to the doctrine, focusing primarily on the trend toward greater recognition of the contractual force of premarital agreements between spouses. In so doing, I use the ultimate relational contract to advocate for greater attention to formalities in the penultimate relational contract. \u2

Beyond the Glass Ceiling: Panes of Equity Partnership

This Article, prepared for a “micro-symposium” on Professor Kerri Stone’s monograph Panes of the Glass Ceiling (2022), explores the partnership pay gap in large law firms and the role of high-profile litigation in facilitating pay equity. There is a rich literature and extensive data on the gender attainment gap in elite law practice, particularly with regard to women’s attrition from practice and poor representation within the partnership ranks. Less attention has been paid to the way in which the exceptional women who achieve equity partner status continue to lag behind their male peers. This Article explores “Women v. BigLaw,” a cluster of equal pay cases brought by women partners in the late 2010s against elite firms. Using Stone’s work as a lens, it reveals how the same unspoken beliefs that underlie the law firm glass ceiling operate above it, placing women partners at the bottom of a new compensation hierarchy centered on origination credit. Due to historical allocations, a culture of deference toward male rainmakers, and implicitly biased attorney development and evaluation practices, origination operates as a form of “legacy credit” that locks in preexisting entitlements favoring male partners. Despite this, gender equity in law practice has been framed principally as a professional value, not a legal imperative. Women v. BigLaw and the unprecedented use of the court system by women lawyers reveals, however, that partnership pay practices pose a liability risk to firms. This new reality may incent structural change in ways that attention to gender equity as a managerial and professional goal could not