Life Away From Work
| Author | Matthew W. Finkin |
| Position | Albert J. Harno Professor of Law, the University of Illinois. |
| Pages | 945-974 |
Page 945
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Albert J. Harno Professor of Law, the University of Illinois. I wish to express my appreciation to Professor Dr. Wolfgang Däubler of the University of Bremen and M. Nicolas Mingant of the University of Bordeaux for providing me with some of the leading decisions in Germany and France, respectively.
Has an employee a right to a life away from work? The answer our common law gives is a categorical "no." An employer is free to condition employment on the employee's not doing all manner of things off the employer's premises and on the employee's own, non-work (and non-paid) time. This prerogative is a legacy of the nineteenth century's translation of the law of domestic service, of master-and-servant, into the industrial setting; which idea of prerogative was carried over into the "at will" employment rule adopted by the judiciary in the second half of the nineteenth century.1
In an archetypical case, Payne v. Western & Atlantic Railroad Company,2 the Tennessee Supreme Court confronted whether a commercial tort was worked by a railroad superintendent's order directing the railroad's workers not to shop at the plaintiff merchant's store. The court addressed the order in these terms:
May I not refuse to trade with any one? May I not forbid my family to trade with any one? May I not dismiss my domestic servant for dealing, or even visiting, where I forbid? And if my domestic, why not my farm-hand, or my mechanic, or teamster? And, if one of them, then why not all four? And, if all four, why not a hundred or a thousand of them?3From this premise, the conclusion was inexorable:
- [M]en must be left, without interference to buy and sell where they please, and to discharge or retain employees at will for good cause or for no cause, or even for bad cause without thereby being guilty of an unlawful act . . . .4
The railroad workers made subject to the superintendent's order were not to be thought of by the law as free men, to be "left without interference to buy" where they pleased; they were thought of as being in tutelage to their master, like children.
The exercise of the prerogative the at-will rule accords has become hedged 'round by a crazy quilt of positive law, state and federal. Almost half the states prohibit employers from interfering with their employees' vote in elections, but only a handful assure employees the right to engage in political activity.5 Even as associational life may be subject to an employer's dictate, an employer may not interfere in one's right to join a labor organization,6 a church,7 or to associate with the statutorily disabled.8 More than half the states have legislated with regard to an employee's consumption of lawful products: fifteen protect the right to consume tobacco or alcohol and seven protect the right to use any lawful product.9 New York has legislated to protect engagement in recreational activity,10 and three states protect engagement in any lawful activity;11 though these laws also allow employers to regulate where an adequate nexus to the workplace can be shown. A few states, carrying forward company store prohibitions of the last century, allow for commercial freedom, generally insulating the employee's choice of where to shop, rather than what to buy.12 But, absent positive law, the employer is free to restrict private life as it will.
Last year, I placed these "lawful activity" laws in comparative context, drawing primarily on the law in France and Germany.13These jurisdictions refuse to pay obeisance to the catchphrase of "freedom of contract" when they know very well that the contract Page 947 is one of adhesion in which the employee usually has rather little or nothing to say.14 Nor do they genuflect autoreflexively to managerial prerogative, for it is the function of the law in these jurisdictions to assure that the exercise of that prerogative stays within socially acceptable limits.15 Thus, the French Civil Code guarantees each person a right to respect of his private life;16 and the French Labor Code allows only those restrictions on liberty as are justified by the nature of the work and proportionate to that end.17 The Cour de Cassation has read "private life" expansively, to the point where, as some critics have argued, the distinction between personal life (la vie personnelle) and the more intimate or sensitive matters of private life (la vie privée) has judicially been collapsed.18 The Cour de Cassation, for example, has denied enforceability of a contract clause requiring an employee to move his domicile, that is to move his wife and family, in conjunction with a transfer: the provision was not necessary for his presence at the new location and it unduly disrupted his right to family life.19 Page 948
Germany lacks a labor code, but the labor court system has generated a body of decisional law that a popular legal treatise summarizes in this way:
Off duty time must remain at the workers' disposition alone
. . . . They can choose their circle of friends, can marry whomever they choose if and when they will, can go in for sports, loaf, go for walks, pursue hobbies-whatever appears meaningful to him or her.20The few American states insulating the employee's private engagement in lawful activities seemed to me to embody an analogous conception of the balance to be struck between employer control and private life.
After those remarks were delivered, however, a broadside was published not only against "lawful activity" laws, but against the laws insulating the consumption of lawful products from employer dictate as well.21 The attack is worthy of extended discussion in the following sections, not because its arguments are legally or philosophically novel or especially sophisticated, but for quite the opposite reason: it is worthy of consideration because it perfectly captures American managerial ideology, i.e., a set of beliefs that simultaneously explain and justify the status quo.
The authors essay three grounds as arguably justifying these laws: (1) a "pro-privacy" libertarian philosophy that "employers have no business intruding into the 'personal lives' of employees"; (2) a desire to limit employment decisions to a "business-related or performance-related justification"; and (3) a "desire to separate the work and off-work zones and draw a bright line between them." Fair enough. But however "compelling" these "philosophical reasons" may be, the authors argue that, for three reasons, these Page 949 laws are nevertheless a "bad idea." First, they further "no particular public policy interest." Second, they substitute the courts for the employer in the making of decisions that the employer, not the courts, is best suited to make, i.e., that the "particular off-work activity is related to [or sufficiently related to] the employee's work or the employer's business objective" to justify the constraint. To nail this argument down they set out fourteen hypothetical cases where an employer would be justified in imposing a constraint but where the authors fear a contrary judicial decision. In fact, they argue that an employer should be able to act in these cases preemptively, i.e., in the absence of any manifest harm to the business.22 Third, these laws work an "unnecessary" erosion of and intrusion into the at-will rule, which qualifi recapitulates their arguments: legislation is unnecessary because no public interest is served; because the employer can be trusted to strike a sound balance between business need and employee autonomy; and because of the sacrosanct quality of the at-will rule. This last boils down to a tautology: an erosion of management's right to discharge at will erodes management's right to discharge at will. It need not detain us. Let us then take up the other two.
Contrary to laws prohibiting discrimination on invidious grounds-first, race and sex, later age, and more recently disability-in which the authors concede the public interest, the argument here is that the public has no interest in the orders an employer gives to its employees so long as the employer is not commanding them to do an unlawful act. The argument, deeply rooted in laissez-faire,23 prompts the necessary follow-on: how Page 950 should the legislature be guided in deciding whether the public interest justifies a constraint on freedom of contract? Given the historical taproot of the authors' argument, the answer might be found in the way the courts thought about the problem during the period when the at-will rule was created, when deference to private ordering was at its height.
In 1899, the Tennessee Supreme Court confronted the state's truck law, applied in that case to forbid a coal mine from paying its workers in bushels of coal.24 The system of payment may or may not have worked a reduction in the cash value of the promised wage; that would depend on market conditions and the astuteness of the employee in anticipating them. In the event of a persistent depression in the market price, i.e., of the real wage, the employee was at liberty to renegotiate the terms or to seek employment elsewhere. Was any public interest served in the legislature's intrusion into the way the parties agreed wages would be...
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