Employee Rights and Employment Policy Journal

Working Group on Chapter 1 of the Proposed Restatement of Employment Law: Existence of Employment Relationship?

Abstract

By
Dennis R. Nolan

  Chapter 1 of the Proposed Restatement of Employment Law addresses the keystone issue of employment law:  who is an employee?  Section 1.01 attempts to define the employee.  The next two subsections of the chapter distinguish employees from volunteers (§ 1.02) and owners (§ 1.03).  The final subsection, § 1.04, discusses situations in which an employee may work for two or more employers at the same time.

    The Chapter 1 Working Group found a large number of problems in the current Draft.  One fundamental difficulty is the Draft’s reliance on the Restatement of Agency’s definition of employee:  the purpose of that Restatement’s narrow concept of employment was to limit the liability of suppliers of services under the doctrine of respondeat superior.  That object is obviously unsuitable when seeking to determine which workers are covered by labor protective statutes or by common law protections.  The Working Group recommends that the Draft consider the objects of employment law when defining the employment relationship, and that it rely more heavily on modern cases that do not turn solely on the putative employer’s right to control the work.

    In addition to that conceptual difficulty, the Draft is riddled with inconsistencies (between broad black-letter statements and restrictive Comments, and between the various sections of the Draft itself) and with inaccurate or incomplete descriptions of case authorities.  For example, § 1.02 distinguishes volunteers from employees by relying on the supposed lack of “material inducement” for volunteers, but then ignores several types of material inducements other than direct payment of wages and benefits.  That subsection also ignores the policy reasons for applying certain employment protections (such as occupational safety and anti-discrimination rules) to volunteers even though they may lack a long-term commitment to the work.  The Reporters’ Notes state the default rule that student athletes and prisoners are not employees, without identifying either consensus rules or normative considerations to support that conclusion.  The Notes also ignore contrary authority and international norms hat point in a different direction.  Similar flaws impair §§ 1.03 and 1.04.

    The Working Group believes that the Draft should discuss more fully the philosophical underpinnings of its concept of employment, should accurately and completely cite case authority, should ensure consistency between text, comments, and notes, and should recognize and discuss cases that conflict with the Draft’s narrow understanding of the employment relationship.