Distilling the Essence of Contract Terms: An Anti-Antiformalist Approach to Contract and Employment Law

A look at the development of labor and employment law in the U.S. reveals one astonishing principle. There is an underlying assumption that employers own the time and activities of employees, and thus any change in the allocation of rights between employers and employees has to be justified against the “interference” with the rights of employers. For example, whenever legislation has been introduced intended to protect workers\u27 rights, employers have argued that such protections will interfere with the right of employers to control their employees. This argument has been successfully made many times, and it has, I argue, shaped the debate on workers\u27 rights. By arguing that the employees\u27 time and activities are employers\u27 “property,” employers have successfully shifted the default allocation of rights in their favor. The argument, which according to employers has become a truism, can be succinctly stated as follows: since employers “buy” the time of employees, employers presumptively have the right to control all aspects of the employees\u27 life while at work, and at times even outside of work. This argument can be found in both academic writings and in judicial opinions