Are Plaintiffs Leery of the Restatement (Third) of Employment Law?
At its 86th Annual Meeting in May this year, the American Law Institute (ALI) adopted a tentative draft of the first ever Restatement of the Law (Third) Employment Law. (Though the first of its kind, ALI has chosen to title it the "Third" to maintain consistency among the editions of its many other Restatements (Third)). A recent law journal article reports that Plaintiff-side employment lawyers seem not only suspicious of having a Restatement on employment law, but outwardly hostile to the notion in the first place. In particular, despite the historic firmness of the common law "at-will" doctrine across America, Plaintiffs' lawyers are worried that a Restatement re-confirming the at-will doctrine could diminish the relative importance of exceptions carved out by common law and statutes regulating the workplace. Another criticism of the project is the perception that employment law tends to change at a sudden and rapid pace through new legislative enactments and court decisions rendered by the various state and federal courts, including the Supreme Court. However, it is for this very reason that ALI has been working since 2000 to adopt a Restatement on this area of law, as it states on its website: "This project aims to clarify and simplify the area of employment law. Although federal and state statutes regulate the employment relationship, major aspects continue to be governed by law developed by state appellate courts, and doctrine has changed significantly in recent decades." Given the apparent dichotomy between employers, who tend to seek clarity on their legal obligations vis-a-vis employees, and some Plaintiff's side lawyers who perhaps favor ambiguity to foster artful and creative pleading of claims, it will be interesting to monitor whether the Restatement makes it to final publication.
