Restating Employment Remedies
32 Pages Posted: 2 Oct 2015
Date Written: October 1, 2015
Abstract
As far as Remedies is concerned, the new Restatement of Employment Law is very much a mixed bag. Perhaps the most obvious conclusion is one we did not need a Restatement to know: the law’s remedial scheme generally favors employers although this may largely stem from the reality that most employees are judgment proof or at least not worth pursuing for whatever money might be collected. That is, this may largely explain the law’s slant towards injunctive relief for employers. As for enhanced monetary remedies against faithless servants, the explanation is probably more historical than logical, stemming from an ill-defined “fiduciary” notion that transitioned from trust law through various confidential relationships into what we now know as employment law.
The new Restatement, however, does not often tilt the playing field further towards employers and sometimes makes modest efforts to level it. Its disapproval of the inevitable-disclosure rule comes to mind. Further, some of its innovations — a new test for modifying overbroadly restrictive covenants — might be of some utility in this regard. Nevertheless, other policy choices — the adoption of the lowered-sights doctrine for mitigation efforts and the rejection of reinstatement for employees discharged in violation of public policy — seem very dubious. As for its reformulation of the rules about enforcing restrictive covenants, the blackletter might or might not do some good in curtailing the unconsidered spread of such covenants. Finally, Employment Law failed to address issues of potential importance where it could have made some improvements or at least offered useful guidance.
Keywords: faithless servant, mitigation, lowered sights, inevitable disclosure, employee remedies, employer remedies, public policy tort
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