'Lawful Activity' Laws

Abstract

U.S. law proceeds from the assumption that, absent restriction by positive law, an employee has ceded to an employer the right to regulate the employee's engagement in lawful off-duty activities, on pain of discharge. Four states have legislated in general derogation of that rule. This paper explores the economic and ideological assumptions of the rule and examines how the laws directed against it have fared juridically. It compares the approach taken in Europe using three countries - France, Germany, and the United Kingdom - for illustrative purposes. It argues that the United States could and should recast the conception of the employee embodied in the U.S. rule toward the one adopted in Europe and legislated here in a very few states.