Comment on Chapter 4 of the Restatement of Employment Law: Principles of Employer Liability for Tortious Harm to Employees

Authors

• Michael C. Duff, Saint Louis University School of LawFollow

Document Type

Article

Publication Date

2017

Abstract

Teachers of torts and workers' compensation law may find the emphasis of Chapter 4 of the Restatement of Employment Law more than a little odd. Throughout the chapter the reader is reminded repeatedly that in most of the tortious scenarios presented a workers' compensation statute "may" apply. In fact, this is a gross understatement. With the exception of intentional torts (sometimes) and nonphysical tortious harms (most times) nearly all injury that could befall an employee in a United States workplace is covered exclusively by workers' compensation law.¹ In other words, for most employees in the United States the exclusive remedy for a workplace injury is provided by a workers' compensation statute, state or federal, private sector or public sector.²

Moreover, the reader is not supplied any explanation as to why tort has been displaced in this manner, an additional oddity for a chapter styled "Principles of Tortious Harm." Workers' compensation law represents, in effect, the largest and most successful (at least in terms of longevity) tort reform movement in American legal history. Thus, the general rule in a chapter on employer liability for tortious harm in the workplace is that tort usually does not apply in the workplace.

To be clear, the principles in connection with the small segment of tort law that has been left intact by the workers' compensation regime seem adequately set forth throughout Chapter 4 and are, in the main, accurate. Nevertheless, one is left to question why, as a practical matter, tort law, the clear exception to the general rule of near-absolute workers' compensation liability, is the focus of the chapter. The reader is neither informed that the reason workers' compensation supplanted tort in the workplace, beginning about 1911, was because of tort's remedial inadequacy;³ nor apprised that the quid pro quo "Grand Bargain" of torts for workers' compensation rights was premised on the overall remedial adequacy of the exchange.⁴Rounding out the context not supplied, since around the early 1970s the continued adequacy of this workers' compensation for tort exchange has been subject to serious national debate and doubt.⁵

These Chapter 4 omissions might not be so glaring outside the context of an employment law Restatement. Within that context, however, they are quite noticeable. It is hard to overstate the importance of workers' compensation law to the development of employment law. Most states in the United States enacted workers' compensation statutes by 1922: before the Railway Labor Act; before the National Labor Relations Act; well before Title VII; and just before the enactment of the second Federal Employers Liability Act.⁶ Workers' compensation statutes effectively set a precedent for government intervention in the labor market and, as scholars Price Fishback and Shawn Kantor have argued, were arguably the very prelude to the welfare state.⁷ Thus, in these circumstances, it is somewhat jarring to limit a treatment of remedies for workplace injuries to a necessarily cramped discussion of "tortious harm." The following commentary on section 4.01 expands on this idea.

Recommended Citation

Duff, Michael, C. Comment on Chapter 4 of the Restatement of Employment Law: Principles of Employer Liability for Tortious Harm to Employees. Employee Rights and Employment Policy Journal, vol. 21, no. 487, 2017.