In this article, Professor Ruben Garcia argues that the Restatement of Employment Law ("REL") misses the opportunity to address power relations between employers and employees as part of the "law as a whole" in the torts of the workplace. He argues that the omission shows the limits of restatements generally. However, there were other roads not taken by the drafters that might have acknowledged these power differentials in the final draft. Professor Garcia also argues that the normative choices that are made by the REL about the doctrine of compelled self-publication are based on questionable footings. "[A]cceptance of the doctrine [of compelled self-publication] would have a chilling effect on the free flow of information."' There should be no compelled self-publication if the employer tells the employee of its intent to repeat the defamatory statement to future regulatory bodies or employers. This highly unlikely scenario means that the doctrine is all but dead. But why? What incentives would employers have to give employees notice that they planned to defame employees to prospective employees?
In the workplace, the tort of defamation and the attendant privileges serve different purposes. Defamation liability can serve the important purpose in a tight labor market to ensure that workers are not unfairly prevented from obtaining other opportunities. While the need for the REL has been debated, now that the final REL has been published, it remains to be seen what its impact will be on all areas of employment law. The impact of the REL may be relatively slight on defamation and wrongful interference torts for the various structural reasons discussed in this important article.
21 Emp. Rts. & Emp. Pol’y J. 563 (2017).
Garcia, Ruben J., "Where's The Power - Defamation and Wrongful Interference in the Restatement of Employment Law" (2017). Scholarly Works. 1185.