The Washington PostDemocracy Dies in Darkness

Employment law still has roots in the Middle Ages. That’s terrible for workers.

Employers are much better positioned than workers to weaponize the legal system.

(Manuel Balce Ceneta/AP)
5 min

Imagine clearing out your desk on the last day of your job, ready to begin a higher-paying position elsewhere. But just as you turn in your keys, your boss hands you a court order preventing you from taking your new job. Instead, you need to come back tomorrow to the same job — for the same pay — if you want to work at all.

This is exactly what happened in January to seven employees of ThedaCare, a health-care system in Wisconsin. As the employees were preparing to leave their positions for more lucrative jobs at Ascension, another regional health-care network, ThedaCare sued Ascension and asked a court for a restraining order — which was granted — to stop the workers from taking the Ascension jobs until ThedaCare could hire their replacements. This happened even though there was no dispute that the workers were “at-will” employees and supposedly free to quit at any time.

The restraining order was lifted three days later, but for those three days the employees were essentially held against their will by ThedaCare with no certainty about when — or if — the court would allow them to start their new jobs.

While observers expressed shock and outrage, the court's initial order is less surprising when considered in light of the historical roots of U.S. employment law, which has its origins in English laws governing the relationship between domestic servants and their masters.

Those laws, which arose from medieval norms that English courts enforced, created a rigidly hierarchical relationship between masters and servants. Servants were typically bound to work for their masters for a specific duration. During the term of service, a servant was expected to live in the master’s house, abide by the master’s rules and perform whatever tasks the master requested. No matter how bad working conditions were, the servant could not quit, since their labor was considered the property of the master. In fact, masters could have servants arrested if they attempted to leave their service early.

Beginning in the 1700s, scholars and judges began applying master/servant rules to other types of work relationships that were historically less hierarchical. By the late 1800s, the master/servant paradigm had effectively become the default legal model for all employment relationships in the United States. Factory workers who quit their jobs could be arrested for vagrancy and forced to choose between returning to the factory or staying in jail. Farmhands hired for the harvest season were forced to follow every one of their employer’s commands — no matter how unfair or dangerous — or else risk being fired without receiving any pay.

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Laws passed by Congress and the states since then have hacked away some of the worst parts of this legal heritage. Employees today have the right, for example, to be paid a minimum wage, have a workplace free of health and safety hazards, and to engage in collective action or join a union to press for better pay and working conditions.

But there are many areas of modern labor and employment law where the old master/servant roots are still visible. Courts have traditionally granted employers a unilateral right to impose workplace rules — just like masters could dictate terms to their servants in Old England. This dynamic is especially evident in workplace surveillance and privacy practices, where employers have a nearly limitless right to spy on workers, even when a worker is supposedly off-the-clock, giving many workers scarcely more right to privacy than a servant living in a 16th-century manor house. Employers increasingly use electronic surveillance and automated management to force workers to work at a dangerous pace and arbitrarily change pay and other terms of employment. The result is a power imbalance between employers and employees that carries too many echoes of exploitative legal history.

Courts have often justified this asymmetry by casting modern employment as an arms-length contractual relationship. Because employees today are “at-will” and not bound to a specific term of service, courts have reasoned that workers can avoid employers’ rules simply by quitting. In reality, workers who live paycheck-to-paycheck or need to work multiple jobs to make ends meet may be unable to afford even brief periods of unemployment, particularly since unemployment insurance payments are usually unavailable to workers who quit. In most states, employers can also use noncompete agreements to severely restrict employees’ ability to seek other work.

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Moreover, as the Wisconsin lawsuit vividly illustrates, employers are much better positioned than workers to weaponize the legal system to protect their interests. In fact, companies often require their workers to sign forced arbitration agreements that strip them of their right to seek relief from the courts, even in cases of civil rights violations.

The Wisconsin lawsuit is a reminder of the vast power employers still hold over workers. As electronic surveillance technology becomes cheaper and ever more sophisticated, these threats to workers’ autonomy and dignity will continue to increase. That trend will continue unless policymakers take action to grant workers stronger protection from employers who still treat them as little more than servants.