Category Archives: labor law

She-Hulk #2

Today’s post is a short one based on the second issue of Charles Soule’s run of She-Hulk.  Soule continues to do great work, though this issue doesn’t have quite as many legal issues to discuss.  A big one is revealed at the end of the issue, but I don’t want to spoil it.  Instead I’m going to talk about attorneys and non-compete agreements.

When Jennifer Walters left her job with the firm of Paine & Luckberg, she was told that all of her outstanding cases would be assigned to other associates, except for “the blue file.”  As a partner explains, “we took that case as a courtesy to you.  If you go, it goes too.”  We learn a little more about the mysterious blue file in issue #2, but not enough to discuss yet.  What we do see in issue #2 is Walters trying (and failing) to drum up business from clients for whom she did work while she was at Paine & Luckberg.  But wait: is it legal for an attorney to attempt to poach clients from her former employer?  Perhaps surprisingly, the answer is yes.

Non-competition and non-solicitation agreements are a common feature of many employment contracts, especially in industries that are dependent on sales relationships with specific customers or which involve employees learning a lot of not-quite-trade-secrets-but-still-important information.  The specifics vary from industry to industry, employer to employer, employee to employee, and (most importantly) state to state, but basically they seek to prohibit the employee from competing with the employer for a certain amount of time after the employment relationship is terminated.  This can include working for a competitor, working in the same industry, or trying to solicit the employer’s clients.  A few states basically ban the practice outright, and those that allow it do so with significant restrictions.  This usually takes the form of limitations on the geographic, temporal, and industry scope of such agreements.

For example, an employee might be forbidden from working in the same (relatively narrowly defined) industry, for a year or two, within the same city.  This means the employee could find similar work in another part of the country, or work in a related but distinct field, or just wait it out.

New York, where She-Hulk works, is a state that allows such restrictive covenants, but only to the extent that they are reasonable and necessary to protect valid business interests.  The general rule is that they are allowed if they are “reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.”  BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388-89 (1999).  But there is a special rule for attorneys.

In every state that I am aware of (including New York) there is an ethical rule similar to ABA Model Rule 5.6, which states:

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement;

The justification for the rule is found in the comments, which state that

An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer.

One might observe that this is equally true of every other profession and its clients, but there is not necessarily any hypocrisy here.  Remember that this is an ethical rule created by the legal profession, not an exception to the law.  Without this rule it is entirely possible that law firms could impose non-compete agreements on their employees and partners, although one could imagine a court carving out an exception for criminal defendants on the basis of the Sixth Amendment right to counsel.

The bottom line is that, although the firm intended to keep its clients, Walters was almost certainly free to try to poach them.

Lois Lane’s Employment Contract

This will probably be our last post on Man of Steel.  No spoiler warning on this one, as I can set up the issue without giving anything of consequence away.

In Man of Steel, Lois Lane works as a reporter for the Daily Planet (no surprise there).  At one point in the movie, she has a disagreement with her boss, Perry White, over whether to run a certain story, and she threatens to quit.  White tells her that she can’t do that because she’s under contract, and Lois concedes the argument.

Wait, what?

I. Employment Contracts

How can Lane’s employment contract prevent her from quitting her job?  Surely the Planet can’t literally force her to work.  Doesn’t the Thirteenth Amendment have something to say about that?

And it does.  The Planet can’t force Lane to work, and a court can’t order her to work if she breaches her employment contract.  But that doesn’t mean an employment contract is completely toothless from the employer’s point of view.  There are two major techniques that the Planet might have used when drafting the contract to make it in Lane’s best interest to keep working for the Planet rather than quit: damages and a non-compete agreement.

II. Damages

Ordinarily in a breach of employment contract case it’s the employee who seeks damages from the employer, typically arguing that the employer owes them whatever they were due under the contract in the form of salary or other compensation.  Of course, that only works if it’s the employer that broke the contract.  If it’s the employee that reneged on the deal, then things could go the other way.

In cases where the employee is the breaching party, employers don’t often sue for damages because a) employees usually don’t have a lot of money and b) it’s difficult to say how much the employee’s work would have been worth.  This is different from the reverse situation, where the employer typically has deep pockets and it’s very clear what the employee was owed in terms of salary.

One possible solution to this problem is a liquidated damages clause, which says something like “if Lane breaches the contract then she must pay the Planet $X.”  Basically it’s an upfront agreement regarding the damages in the event of a breach of contract.  There are some limits and restrictions on such clauses, but they are, in principle, allowed in employment contracts as long as they are reasonable and not punitive.  See, e.g., Kozlik v. Emelco, Inc., 240 Neb. 525 (1992).

Faced with the prospect of having to pay the Planet the approximate value of her services to them, Lane would probably conclude that it was better to keep working.

III. Non-Compete Agreements

As the name suggests, these clauses bar the employee from competing with the employer after they quit working for the employer.  Usually this means that the employee can’t work for a competitor or in the same industry for a certain period of time, typically no more than a few years.  The agreement may also be limited geographically (e.g. only apply to the city where the employee was working).

Some states strongly disfavor non-compete agreements, whereas others are generally okay with them as long as they are reasonably narrow in scope.  We don’t know where Metropolis is, but it’s likely that it’s in a state that accepts non-compete agreements.  If Lois Lane was subject to a non-compete, then quitting the Planet would mean quitting being a journalist, at least in the Metropolis area.  That’s a powerful incentive not to quit.

IV. Conclusion

Although the Planet might not have literally been able to force Lane to keep working, her employment contract may have effectively done so anyway.

The Surrogates: Flesh and Bone

The Surrogates is a limited-run 2005-06 comic series about which we did two posts (1, 2) late last year, and which was made into a movie starring Bruce Willis in 2010.

This time we’re writing about the prequel graphic novel, The Surrogates: Flesh and Bone. The entire series is available in hardcover. Flesh and Bone is set fifteen years before the main series and deals with a sensational homicide case: a minor operating his father’s surrogate unit beats a homeless man to death, more or less just to watch him die. The killing has all the hallmarks of a major news event: the accused is white, the victim black; the accused is rich, the victim poor; the accused is operating a surrogate, the victim is a “boner,” the kid’s slang for someone who lives his life in the titular “flesh and bone”.

Like the comic series, Flesh and Bone includes various miscellany in the form of advertising materials, news stories, and scholarly articles, all about surrogates and their impact on the world. One of these involves a fictional Supreme Court case where the court ruled that employers may make owning a surrogate a condition of employment. In this post, we’ll look at both the homicide issue and that labor issue, which we touched on last year. Continue reading

Mutant Discrimination: GINA, Genetics and How Professor Xavier is Breaking the Law

This guest column was contributed by Dan Vorhaus, an attorney at Robinson, Bradshaw & Hinson, P.A. and Editor of the Genomics Law Report.

Previous posts here at Law and the Multiverse have discussed the status of mutants under several of our nation’s anti-discrimination laws, including the applicability of constitutional protections afforded by the Equal Protection and Due Process clauses of the 14th amendment and statutory protections afforded by the Americans with Disabilities Act (ADA).

There remains, however, one key piece of important anti-discrimination legislation that has yet to be considered in evaluating the legal protections afforded mutants under the law: the Genetic Information Nondiscrimination Act, or GINA.

I. GINA and Mutant Genetics: A Primer.

GINA represents a historic achievement. Enacted in 2008 after 13 years of debate, many have called it the “first civil rights bill of the 21st century.” Five years later it remains the first and only piece of federal legislation to specifically address the use and effects of genetic information.

Broadly speaking, GINA is divided into two parts. Title I of GINA prohibits health insurers from using genetic information to deny coverage or to set premiums or payment rates. Title II prohibits employers from requesting genetic information or using genetic information in hiring, firing and other employment-related decisions.

GINA’s unique focus on genetic information makes the law of particular relevance to mutants. “Mutants,” as we now know thanks to decades of research by devoted and largely off-panel comic book scientists, are individuals who possess at least one mutated copy of the so-called “X-Gene.” The gene appears to promote the development of superhuman powers and abilities, typically post-puberty.

While much remains unknown about the X-Gene’s structure and function, scientists specializing in mutant genetics have isolated its protein product(s) as evidenced by the deployment of mutant suppression drugs in X-Men: The Last Stand (the drug in question is derived from the mutant Leech). From this we can extrapolate that the location of the X-Gene in the Homo sapiens genome is known and, importantly, that mutations within the gene can be identified through genotyping or even targeted sequencing of the X-Gene itself.

With the identification of the X-Gene and the subsequent decline in cost of genomic sequencing technology, there are a number of scenarios in which a genetic test to “diagnose” a mutant at an early stage, particularly before he or she has developed any superhuman (and frequently super-destructive) abilities, might be desirable. But in light of GINA’s passage, are such genetic tests legal?

II. Mutant Discrimination in a Post-GINA World.

We start with a pair of scenarios in which genetic testing for the X-Gene might be of interest.

First, a health insurer could require applicants to submit to testing in an attempt to screen in individuals with beneficial mutations (e.g., those resulting in unique healing abilities) or screen out individuals with X-Gene mutations capable of generating catastrophic levels of claims exposure (e.g., as a result of an at-times-uncontrollable ability to rearrange matter), thereby helping to more accurately project the insurer’s exposure.

Second, an employer might use the X-Gene test to gain valuable insight about a prospective hire. For instance, a research laboratory might use the X-Gene diagnostic test to double-check that the reserved but well-qualified physicist it is considering for an open position won’t demolish the lab – and everyone and everything within it – if an experiment goes awry.

Prior to GINA’s passage, testing in either scenario would have at least been arguably permissible, although various other anti-discrimination laws, including those discussed in previous posts, might have served as the basis for an effective challenge. Post-GINA, however, the analysis is crystal clear: both of the above examples of X-Gene screening are illegal.

The text of the statute itself offers no ambiguity:

  • A health insurer “...shall not request, require, or purchase genetic information for underwriting purposes.” (§ 101)
  • It is unlawful for an employer “to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions or privileges of employment of the employee, because of genetic information with respect to the employee.” (§ 202)

 Although Congress did provide limited exceptions to the general prohibition on requesting and using genetic information in the insurance and employment contexts, none of the exceptions are targeted at mutants, tests specifically designed to test for X-Gene mutations or are otherwise applicable to the scenarios discussed above.

III. Professor Xavier and Pro-Mutant Genetic Discrimination

While GINA may operate to protect mutants from certain forms of genetic discrimination, we should not forget that the statute is crafted broadly and protects against the misuse of any individual’s genetic information. In other words, just as mutants are protected by GINA, so too are they bound by it.

Consider the case of Professor Xavier’s world-renowned school, variously referred to as “Xavier’s School for Gifted Youngsters” and the “Xavier Institute for Higher Learning.”

While little is known of Xavier’s closely-guarded school, it appears to satisfy the definition of an employer subject to Title II of GINA. (GINA applies to all private employers with 15 or more employees. With roughly a dozen identified faculty members, and likely additional faculty members and administrative and support staff on the payroll, Xavier’s school likely crosses the 15-person threshold.)

Xavier’s school also has an unbroken track record of employing mutants as faculty. While it may seem logical and even desirable to employ mutants in a school dedicated to the education and training of mutants, GINA prohibits the use of genetic information in hiring and other job-related decisions without exception. Even in situations where genetic information might appear to be a legitimate criterion for assessing fitness to perform a particular job, GINA forbids its use by an employer.

Of course, it is highly unlikely that Xavier requires prospective faculty members to submit to a traditional genetic test as a condition of their application and/or hiring. In addition to his well-known psionic powers which allow him to identify mutants using only his mind, many or all of the individuals applying to work at the school have manifest mutant powers. Nevertheless, GINA is clear that genetic information, however acquired, may not be used “in regard to hiring, discharge, compensation, terms, conditions, or privileges of employment.” 29 CFR § 1635.4. No matter how he comes by the information, if Xavier is indeed using genetic information in employment-related decisions, this would be a clear violation of GINA.

Since none of Xavier’s existing faculty members are likely to bring a discrimination claim, how might one arise? The most likely scenario: a gifted but non-mutant individual, perhaps one even possessed of other superpowers derived from, for example, an alien genesis or technological enhancements, seeks a position at Xavier’s school as an instructor but is turned away. Such an individual would be well-positioned to bring a successful genetic discrimination claim under GINA against Professor Xavier and his school. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title II of GINA, provides detailed instructions for filing just such a charge.

As with any new piece of legislation, it will take some time before GINA’s full implications for both mutants and humans become clear. Final regulations for Title II of GINA were published in 2010, but public examples of GINA-in-action remain few and far between, and illustrate the many uncertainties and difficulties of enforcement.  For example, given the EEOC’s difficulty subpoenaing documents from Nestle in a recent enforcement action, one can only imagine the considerable challenges that would await the Commission in attempting to gather the evidence needed to successfully establish a claim of discrimination under GINA.

Nonetheless, the law of GINA is clear, and the coming years may require the Commission and other regulatory bodies to overcome those challenges in order to appropriately enforce GINA both for and against the mutant population. Count on Law and the Multiverse and the Genomics Law Report to continue to keep you apprised of all the latest in GINA, mutants and genetic discrimination law.

Green Arrow # 77

This week we return to our ongoing series on the Green Lantern/Green Arrow collaboration from the early 1970s. The conceit for this story line was set up in the aftermath of issue # 76, in which Green Lantern and Green Arrow worked together to bring down a corrupt landlord. Hal Jordan, working for the Guardians of the Universe as the Green Lantern assigned to Earth, is a law-and-order type temperamentally inclined to side with the authorities and the status quo. But Green Arrow is largely concerned with social injustice and perceived oppression, i.e., where the legal conflicts with the moral. So when the two meet, and Jordan gets it into his head that there might be something to the idea that what is legal is not always what is just, the Guardians decide to send Jordan off with Green Arrow and a Guardian observer to find the “real America” and maybe learn a thing or two in the process.

In issue # 77, the trio arrives in the fictional town of Desolation, located somewhere in the Rocky Mountains. Desolation is a mining town which still seems to operate on something approximating the company town model, wherein the town’s largest employer is not only a business, but essentially owns and operates all of the businesses in town. In some instances, the operating company became the de facto or even the de jure government for a town.

This issue is a mess. It’s both legally and historically problematic, but even worse, it seems to get the basic ethics of its central lesson arguably wrong. Let’s take a look. Continue reading

Gotham Central: Half a Life

The Eisner award-winning “Half a Life” storyline comprises Gotham Central # 6-10, and was first published in 2003. Rather than focusing on a crime, this story is mostly about the outing of Detective Renee Montoya as a lesbian and the consequences that has. Continue reading

Law and the Multiverse Holiday Special: Batman: Noel

For this year’s Law and the Multiverse’s Christmas post, we’re going to be taking a quick look at Batman: Noel, the graphic novel written and illustrated by Lee Bermejo that came out last month. It’s a sort-of retelling of Charles’ Dickens A Christmas Carol with Batman as Scrooge and various other characters as the ghosts of Christmas Past, Present, and Future. Well, maybe more like Batman’s Past, Present and Future. But it’s set on Christmas Eve, so hey. There you go. The main thing we’re going to be taking a look at is the legality of using wireless tracking devices without a warrant. Continue reading

Superhero Corporations I: Vicarious Liability

There are several superhero characters that also happen to be executives of major corporations. Batman, as Bruce Wayne, is the head of Wayne Industries. Tony Stark runs Stark Industries. Reed Richards is in charge of the Fantastic Four’s corporate activities. The list goes on.

A question we haven’t talked about much yet is whether the activities of our heroes can cause liability for their respective corporations and vice versa. There are distinct issues here. The first is “respondeat superior” a Latin phrase meaning “Let the master answer” which is a species of vicarious liability, and “piercing the corporate veil“. The former can create liability for employers as a result of the actions of employees. The latter can create personal liability for executives and owners of a corporation for actions of the corporation. As one can see, these might be issues for our heroes. This time, we’re going to take a look at respondeat superior.

I. Basic doctrine

The basic concept here is that if an employee does something wrong while in the service of his employer, the employer is responsible even if the employer did not directly authorize the action. The most common example is if an employee is driving at the behest of his employer and gets in an accident. If the employee is still within the “course and scope” of his employment, the employer will be liable.

This may at first seem a little unfair, as what we’ve got here truly is “vicarious liability,” i.e. one person being liable for the actions of another. But there are two main justifications for the doctrine. First, if an employee is acting on behalf of his employer and screws something up, it seems a little unfair to let the employer off without any consequences. The employer certainly stood to benefit by having the employee make the trip, so it only stands to reason that they should also bear the risk of that trip. Second, a person acting on behalf of his employer has the potential to get in far, far more trouble than acting on their own. Returning to the driving example again, an eighteen-wheeler can cause vastly more damage than even a big SUV, but most people don’t use eighteen-wheelers to commute. There’s just no cause for an individual to use one of those things in most circumstances, as almost nothing a private individual might want to do requires moving that much stuff around. But businesses can and do need that kind of hauling capacity and so regularly put those vehicles on the road. The risk there is not just to other drivers, but to the owner of whatever stuff is in the trailer. Same goes for moving things around a warehouse: it’s entirely possible for a single trip with a forklift to be worth more than the employee operating it will make this year and next. So the other reason for making employers responsible for the torts of their employees is that employers (or their insurers) are the only ones likely to be able to afford to pay for said torts.

This is true even with insurance, by the way. Most personal auto carriers don’t even sell policies with limits in excess of $300,000 per person, but $1 million is pretty much the default commercial auto liability limit. And it goes up from there. Commercial excess policies with $25 million limits are pretty commonplace, but personal umbrella policies rarely go beyond $1 million.

One last thing to understand here is the distinction between corporate and personal assets. Take Tony Stark as an example. He’s the single largest shareholder in Stark Industries, so he “owns” a significant chunk of the company. But that isn’t the same thing as owning corporate assets. Stark has an interest in the company and as a shareholder has the right to vote on corporate actions. But he does not have any interest in corporate assets as such. This is part of how corporations work. So when we talk about respondeat superior, we mean that a plaintiff can sue Tony directly and potentially get his stock in the company, as those are his personal assets, but also sue the company directly, and have access to corporate assets. So depending on the size of the verdict, it’s theoretically possible for a plaintiff to wind up both owning a company and being owed a big check from the company. This isn’t likely to happen to any of the characters we’re talking about, as Wayne Industries etc. are all worth billions, but it’s not that uncommon an occurrence in small businesses with few assets.

II. Respondeat superior and superheroes

With that basic explanation of the doctrine, let’s turn our attention to whether superhero executives can create liability for their corporations. The answer here is going to be highly fact specific, turning mostly on whether or not the superhero was acting on behalf of the corporation at the time. Fortunately, our superheroes form something of a spectrum illustrating almost the entire spread of possibilities here.

On one end, we’ve got Batman. Yes, Bruce Wayne is the president and largest shareholder, and yes, he uses corporate assets to be Batman. But his activities as Batman are almost completely distinct from Wayne Industries wider corporate activities. It’s a multinational conglomerate with its fingers in almost everything, and only a tiny fraction of its resources are being redirected to Wayne for his Batman activities. More to the point, Wayne goes to some lengths to hide this from the other shareholders, who would probably vote against this sort of thing if they knew about it. Wayne Industries as such does not really stand to gain anything by Batman’s activities either, aside from the general benefit to everyone that is law and order. So in Batman’s case, it seems unlikely that what he does could subject Wayne Industries to liability, as nothing he does really seems to be within the course and scope of whatever employment he might have there.

In the middle is Iron Man. Tony Stark is the largest shareholder of Stark Industries (or something like that), and people know that he’s also Iron Man. But again, Stark Industries does a lot of things which have nothing to do with Iron Man, and Tony’s employment with the company—when he even is employed—doesn’t seem to have anything to do with being Iron Man. Granted, until he went public with his identity, Iron Man did do a lot to serve Stark Industries’ interests, e.g. protecting corporate assets, but once Stark went public, unless Stark Industries explicitly puts Iron Man on the payroll as such or explicitly puts serving as Iron Man in Tony’s job description, the case for vicarious liability is murky at best. It’s possible that it could be there, especially if Iron Man is acting in the company’s interest, but it isn’t a slam dunk case most of the time.

On the other end of the spectrum is Reed Richards and the rest of the Fantastic Four. Fantastic Four, Inc. is the corporate entity that they use to sell things based on Reed’s patents and to generally fund their activities. But that’s about it. Not only is FF, Inc.’s business pretty much entirely about the Fantastic Four, but it’s mission is pretty explicitly to let them do what it is that they do. Vicarious liability should be pretty easy to establish here.

III. Conclusion

So, as we see, respondeat superior is something that at least some superheroes are going to have to worry about. Next time we’ll take a look at the flip side and piercing the corporate veil.

Daredevil #4

In issue 4 of Daredevil, the firm of Murdock & Nelson continues the new business model we discussed in the last Daredevil post: helping their clients represent themselves in court.  Issue 4 introduces us to a few of these clients and includes some great legal issues to talk about.  Spoilers ahead, as usual.

Continue reading

Cybernetics, Contracts, and Specific Performance

Brett asks a question inspired by Deus Ex: Human Revolution, the recently-released prequel to the fantastic Deus Ex. The question is whether an employment contract can include a requirement that the employee be enhanced with cybernetic implants should they be necessary to perform the functions of one’s job. This question has implications beyond Deus Ex, such as the classic 1970s show The Six Million Dollar Man, and the RoboCop series, so rather than a mailbag entry, this one’s going to get a proper post of its own.

I. Employment and Employment Contracts

Let’s start with the first question here: what is the nature of the employment relationship? In general, in the US anyway, employment is “at will“. The basic idea here is that there is no contractual relationship between employer and employee beyond the employee’s obligation to do the work required of him or her and the employer to pay the agreed-upon wages for said work. So, for example, while an employer may not retroactively reduce an employee’s salary, there is generally no reason salaries may not be cut or employees fired at the employer’s sole discretion. This most frequently comes up in the wrongful termination context. A lot of people think that there are laws preventing them from getting fired under unfair circumstances. This is usually not the case. Unless the employer is violating a specific statute or constitutional provision, e.g. discriminating on the basis of race, gender, religion, or national origin, employees can, for the most part, be fired for any reason or no reason at all.

But all of that changes where there is an employment contract. Employers tend to avoid entering into employment contracts where at all possible, as this gives them the freedom to rapidly lay off or replace people if they need to. Union workers are the most numerous example of contractual employees, and most of their rights are really found in the provisions of the contracts they secure through collective bargaining rather than any law. But the fact remains that employers and employees can and sometimes do enter into employment contracts, and like in almost all other cases, there is very little limit to what terms can go in there (non-compete agreements are a notable exception). The courts are very, very reluctant to restrict the ability of private parties to structure agreements between themselves.

II. Employment Contracts and Cybernetics

The question then becomes whether employers can include the requirement that an employee receive cybernetic implants as a condition of employment. This will probably depend on the nature of the requirement. The significant feature here is less the kind of implants (though anything which is likely to expose the employee to unreasonable danger is going to be problematic) than the circumstances of the implants.

A. Implants Required Before Employment

On one hand, say there’s an employer that needs someone to do a very specific job, and that job requires the use of cybernetic implants. Right now there aren’t a lot of implants that augment typical human abilities, but the situation gets a lot more plausible if we remove the mind/machine interface part of it. We’ve already got prototypes of electronic tattoos which can monitor vital signs. How long will it be before someone adds GPS functionality or communications hardware? In any case, if the details of the implant are made clear before the employment begins, it seems likely that such a thing would be permissible, given certain restrictions.

First of all, the employer would probably be required to pay for everything related to the implant, even if that wasn’t a provision of the contract. Current workers compensation laws require employers to pay for workplace injuries and diseases regardless of fault, and characterizing the medical care needed to implant, monitor, and remove cybernetics would certainly seem to count, not to mention the expense of treating infections and other complications. Basically, if anything goes remotely wrong with an implant, the employer is going to have to pay for it. This is actually probably a pretty compelling reason implants aren’t likely to be commonly required of employees for quite some time.

Second, employment-related implants are bound to generate a rather frenetic round of litigation about whether having an implant means you are effectively on company time round the clock. The plaintiff bar would certainly like this, as it would expose employers to liability in far more cases than they are now, and this means bigger pockets in more cases. But courts aren’t that dumb, and the likely outcome is that unless the employee is actively engaged in the work of the employer, simply passively carrying an implant does not make one’s activities employment-related any more than carrying a key to the office on one’s key chain.

But that probably means that employers won’t be able to use implants to control the activities of their employees when they’re off the clock. Employers would probably like to be able to do this more than they can now, but they rightly don’t try to most of the time, because the ability to control implies the duty to exercise reasonable care, and employers don’t really want to be liable for the actions of their employees any more than they already are. All that by way of saying that employers that require implants will probably not be able to use the presence of those implants to exert all that much more control over their employees, by contract or otherwise, than they do already with things like cell phones and pagers.

B. Implants Required After Employment

Then there’s a slightly different situation. What if an employer decides that a current employee has to get implanted? This is a bit different, because rather than defining the terms of a relationship before it starts, now we’re changing horses in midstream, as it were.

Whether or not an employer can do this is going to depend very heavily on whether or not the employee has a contract. If they do, the employer isn’t likely to be able to add this as an additional term until it’s time to renew that contract. Terms cannot be added to contracts without the consent of both parties, and additional terms require additional consideration, e.g. additional wages or other benefits. But if there isn’t a contract, the employer might well be able to say that anyone who wants a job tomorrow had better sign up for the procedure. This is, of course, assuming that legislatures don’t enact laws restricting employers’ ability to do just that, and this actually seems like a sensational enough issue to provoke something like that.

C. Implants Implied Before But Installed After Employment

Now we get to the actual situation in the stories mentioned in the intro: an employment contract that does not require implants before employment begins, but permits the employer to add them in at a later date. This gets a little tricky, especially when, as in all of the stories in this list, the employee does not give consent at the time of the surgery. Now we run into a little issue called “specific performance.”  There are generally two possible remedies for a breach of contract: money, and specific performance. Money is just that: money. The injured side calculates the damages they have suffered, and the other side pays, under the terms of the contract. But the court can also order specific performance, i.e. requiring the breaching side to do what the contract said they were supposed to do. For example, if the contract was for the sale of a unique item such as a painting, then the painting would need to be delivered.

The thing is, specific performance is disfavored as a remedy in US jurisdictions. The judiciary has pretty much taken as gospel the idea that it’s more efficient to just pay the money and be done with it than to force two parties who probably don’t like each other all that much to finish whatever transaction they had in mind. So it’s only in rare situations, particularly in real estate contracts or contracts for the sale of one-of-a-kind items, that specific performance will be awarded.

But more to the point, specific performance is unconstitutional in employment contracts. The Thirteenth Amendment abolished “involuntary servitude,” and the Supreme Court interpreted that to include forcing people to perform under the terms of an employment contract in Clyatt v. United States, 197 U.S. 207 (1905). So if an employment contract had, as one of its terms, that the employer might require that the employee receive implants at some point down the road, they cannot actually make the employee do it. They can fire an employee that refuses, and they’d be entitled to whatever other remedies are included in the contract, but the courts would not require that the employee submit to implantation.

So the situations where the employee is injured (or killed) and then implanted while unconscious are tricky. First of all, there’s the unrelated issue of whether or not an employer can act to give consent to medical treatment when an employee is unconscious. Forms for this kind of thing already exist, and while it would certainly be highly unusual for an employer to be given this authority, there’s no law that says it couldn’t happen. But consent to life saving surgery is one thing, and consent to life altering surgery is something else entirely. Medical providers might well balk at going ahead with something like bionic enhancement without the express permission of the patient. So the employee would probably need to sign a contract to the effect that he gives the employer permission to authorize the implantation of specific bionic augments before surgery could proceed.

D. Termination of the Employment Relationship

What if an employee who has been implanted decides to quit? Does the employer get the implants back? If this can be done without endangering the life of the employee or seriously injuring them, it’s entirely possible, especially if there was an agreement stipulating that the implants were company property. A court will not force an employee to continue working for an employer if they do not want to, but a court will probably also permit the employer to recover its property in the employee, provided said property can be retrieved without seriously harming the employee, as that would also look a lot like “indentured servitude” as well. “You can quit, but you can’t walk afterwards” isn’t really something a court is going to go for. Of course, given that surgery is pretty expensive, the implants would probably need to be both reusable and fairly expensive for the employer to want to bother. That or highly classified, highly dangerous, or some other factor which would motivate an employer to recover them regardless of cost. But the fact remains that if a particular implant is so integrated into an employee’s body that removing it would kill them or permanently disable them, the employee can probably just quit, and the employer would need to rely on whatever penalties are in the contract, remembering that if the penalties are too severe, a court might decide that they amount to indentured servitude and invalidate them.

III. Conclusion

In short, it’s possible that an employer could make implants a condition of employment, but they’d have to be careful about how that was structured and would really need to ensure that they get the right permissions before hand. But the employee would always have the option to quit, because as a result of the Supreme Court’s Thirteenth Amendment jurisprudence, the courts will not force anyone to work for anyone else.

That’s only focusing on the employment and contract implications of cybernetics. The devices themselves are also a fertile ground of inquiry, but we’ll take a look at that another time.