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Relationship between employer and employee much more nuanced than law assumes, says employment law expert

Workers pour sweat, blood and even dollars into the firms that employ them, especially in a labor market characterized by employment and retirement insecurity, says Marion Crain, JD, expert on labor and employment law and professor of law at Washington University in St. Louis. “Work can shape one’s life in ways that run to the core of identity,” she says.

“Work law, however, ignores these realities of interdependence and mutual investment, committing itself to a model of employment as an arm’s length, impersonal cash-for-labor transaction.”

Crain

Crain suggests looking at other legal models such as marriage law to more accurately respond to the realities of the employment relationship, particularly at termination.

“The employment relationship possesses many attributes that we associate with marriage: emotional and economic investment, interdependence and expectations that the relationship will endure absent bad behavior,” she says.

“Marriage law offers a status-based framework designed to recognize and protect investment in relationships characterized by interdependence and investment.”

While the idea of looking to marriage and family law for guidance in regulating the employment relation may at first seem preposterous, Crain says that the line between emotional affect and economic production has long defied easy delineation. 

“Considering the potential emotional and financial investment employees make in their employers, it’s time to reform the employment law framework from one that assumes an arm’s-length exchange of labor for dollars to one that recognizes employment as a relationship,” she says.

“The differences might be as simple as requiring notice and severance pay linked to longevity and/or investment, as radical as recognizing new common law claims based in property rights for workers, or as straightforward as heeding evidence of emotional harm linked to termination and providing compensation for it.”

Crain explores the employment relationship in “Arm’s Length Intimacy: Employment as Relationship,” published in a recent issue of the Washington University Journal of Law and Policy (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1940691).
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Jessica Martin
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EXPERTS @ WUSTL
Marion Crain
Wiley B. Rutledge Professor of Law and Director of the Center for the Interdisciplinary Study of Work and Social Capital
(314) 935-3459
mgcrain@wulaw.wustl.edu