# Senator Kerry: Watchdog for America



## JRR (Feb 11, 2006)

Don't want just anyone to be the Ambassador to Belgium...


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## ksinc (May 30, 2005)

What a poodle! LMAO


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## BertieW (Jan 17, 2006)

If I'd been in Kerry's spot, I'd have asked the same question. 

And had he not, detractors would have called him gutless for avoiding the point when he had the chance to raise it. 

That said, hardly the most riveting news of the day.


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## pt4u67 (Apr 27, 2006)

BertieW said:


> If I'd been in Kerry's spot, I'd have asked the same question.
> 
> And had he not, detractors would have called him gutless for avoiding the point when he had the chance to raise it.


I would have to disagree with that. By bringing it up he sounds like a whiny baby who can't get over the fact that he lost an election. If a pol is not ready for prime time and can't take the heat of a national campaign then he shouldn't get into the game.

The question also has ZERO relevance to the nominee's ability to be an advocate for U.S. interests in Belgium.


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## Lushington (Jul 12, 2006)

What drivel.


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## agnash (Jul 24, 2006)

I agree with both of them, two wrongs do not make a right, and all 527 organizations should be banned. My perfect campaign finance law would forbid out of state contributions to in-state races, and all donations would have to come from registered voters. Maybe there would be fewer of those disgusting political comercials interrupting my viewing pleasure.


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## Lushington (Jul 12, 2006)

agnash said:


> I agree with both of them, two wrongs do not make a right, and all 527 organizations should be banned. My perfect campaign finance law would forbid out of state contributions to in-state races, and all donations would have to come from registered voters. Maybe there would be fewer of those disgusting political comercials interrupting my viewing pleasure.


Don't count on it.


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## Relayer (Nov 9, 2005)

So, Kerry seizes his opportunity to turn the hearing into a farce.
Not surprising in the least.


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## pt4u67 (Apr 27, 2006)

agnash said:


> I agree with both of them, two wrongs do not make a right, and all 527 organizations should be banned.


In theory I agree with you, and on both sides! The thing with the swift boat vets however goes back a long way. This was an ancient grudge between Kerry and members of this group and had come up in the past but had never gained national prominence until '04.

I also think it was a valid point. Kerry was the one who "reported for duty" and was trying to use his Viet Nam experience as a free ride and he was called to task. He could have gone to some length to try to dispel the story but he ignored it and battened down the hatches instead. It was political incompotence and not necessarily the swift boaters who killed him in the end.


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## Laxplayer (Apr 26, 2006)

Some more info on Fox: He runs the Clayton, MO based holding company Harbour Group. His business philosophy, according to the _St. Louis Business Journal_, is simple: "invest heavily in new technology, equipment, and management knowhow, then consolidate similar operations to cut costs and boost efficiency." Harbour then cashes in by taking a company public or selling it. I wonder how many jobs are lost when cutting costs and boosting efficiency?


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## pt4u67 (Apr 27, 2006)

Laxplayer said:


> I wonder how many jobs are lost when cutting costs and boosting efficiency?


So companies should be run inefficiently just to employ more people?


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## ksinc (May 30, 2005)

BertieW said:


> If I'd been in Kerry's spot, I'd have asked the same question.


Then you would have looked like this too:


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## ksinc (May 30, 2005)

Laxplayer said:


> Some more info on Fox: He runs the Clayton, MO based holding company Harbour Group. His business philosophy, according to the _St. Louis Business Journal_, is simple: "invest heavily in new technology, equipment, and management knowhow, then consolidate similar operations to cut costs and boost efficiency." Harbour then cashes in by taking a company public or selling it. I wonder how many jobs are lost when cutting costs and boosting efficiency?


Flexibility is most readily achieved by fostering an environment of maximum competition. A key element in creating this environment is flexible labor markets. Many working people equate labor market flexibility with job insecurity.

Despite that perception, flexible labor policies appear to promote job creation. An increased capacity of management to discharge workers without excessive cost, for example, apparently increases companies' willingness to hire without fear of unremediable mistakes. The net effect, to the surprise of most, has been what appears to be a decline in the structural unemployment rate in the United States.

Protectionism in all its guises, both domestic and international, does not contribute to the welfare of American workers. At best, it is a short-term fix at a cost of lower standards of living for the nation as a whole. We need increased education and training for those displaced by creative destruction, not a stifling of competition.

Moving forward, I trust that we have learned durable lessons about the benefits of fostering and preserving a flexible economy. That flexibility has been the product of the economic dynamism of our workers and firms that was unleashed, in part, by the efforts of policymakers to remove rigidities and promote competition.

Although the business cycle has not disappeared, flexibility has made the economy more resilient to shocks and more stable overall during the past couple of decades. To be sure, that stability has created some new challenges for policymakers. But more fundamentally, an environment of greater economic stability has been key to the impressive growth in the standards of living and economic welfare so evident in the United States.

Remarks by Chairman Alan Greenspan
Economic flexibility 
To the National Association for Business Economics Annual Meeting, Chicago, Illinois (via satellite)
September 27, 2005

In other words, "Scoreboard!"

Friday, February 2, 2007. Nonfarm payroll employment rose by 111,000 in January, and the unemployment
rate was essentially unchanged at 4.6 percent, the Bureau of Labor Statistics
of the U.S. Department of Labor reported today.

https://www.bls.gov/news.release/empsit.nr0.htm


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## Laxplayer (Apr 26, 2006)

pt4u67 said:


> So companies should be run inefficiently just to employ more people?


No, but I do have a problem with people like Fox who buy into companies, carve them up and dump them just to make a buck for themselves.


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## ksinc (May 30, 2005)

Laxplayer said:


> No, but I do have a problem with people like Fox who buy into companies, carve them up and dump them just to make a buck for themselves.


So, if there is a pocket of weakness/uncompetitiveness in our economy, the greater good isn't served by letting someone cut it out?

Do you feel the same way about cancer?

If that company was a viable candidate to be bought and operated at a long term profit with the previous management strategy a guy like Warren Buffet would have bought it long before a guy like Fox would have gotten the chance.


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## Laxplayer (Apr 26, 2006)

ksinc said:


> So, if there is a pocket of weakness/uncompetitiveness in our economy, the greater good isn't served by letting someone cut it out?
> 
> Do you feel the same way about cancer?
> 
> If that company was *a viable candidate to be bought and operated at a long term profit with the previous management strategy a guy like Warren Buffet would have bought it long before a guy like Fox would have gotten the chance.*


Who said anything about operating for long term profit? I said he buys companies and sells them for his _own_ profit.

If profit is the only concern, let's close down all of our U.S.-based companies and ship them overseas. While we're at it, let's have the foreign workers work three times as hard, so not only will we have to pay them less, but we won't have to hire as many. The greater good will be served since the executives will make more money, and that's really all that matters right?


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## Relayer (Nov 9, 2005)

Or, we could just have the government create a few more departments with tens of thousands of employees. For employment's sake, of course. For the people.

The US government are masters of mass employment and fabulous inefficiencies. It could solve a lot of our current problems/issues.


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## Laxplayer (Apr 26, 2006)

Wicked people. How dare they think they should be able to work and support their families!


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## Wayfarer (Mar 19, 2006)

Laxplayer said:


> Wicked people. How dare they think they should be able to work and support their families!


They are not wicked in their desire to work but they *are* sadly mistaken to think a job is "theirs".

If we are going to take to task executives for streamlining operations, should we not take to task every family of four (and often much more) that makes less than 50k a year yet has more than one TV (or a flat screen), cable, a newer car or two, recreational vehicles, and credit card debt? If we are going to hold executives to account for some nebulous "social responsibility" to provide jobs, should we not hold the job holders to task for not running their personal lives in a responsible fashion, hence mitigating any hardship brought on by a job loss?


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## Lushington (Jul 12, 2006)

Wayfarer said:


> They are not wicked in their desire to work but they *are* sadly mistaken to think a job is "theirs".


Why shouldn't employees have a property interest in their jobs?



> If we are going to take to task executives for streamlining operations, should we not take to task every family of four (and often much more) that makes less than 50k a year yet has more than one TV (or a flat screen), cable, a newer car or two, recreational vehicles, and credit card debt? If we are going to hold executives to account for some nebulous "social responsibility" to provide jobs, should we not hold the job holders to task for not running their personal lives in a responsible fashion, hence mitigating any hardship brought on by a job loss?


No, not under the current economic regime. Enormous consumer demand, not industrial production, is the engine that currently drives the American economy. Any significant reduction in consumer spending will result in a deep recession. Over-extended consumers can make a very strong argument that they are simply doing their duty as citizens by incurring substantial household debt - for which they've been rewarded with harsh and punitive amendments to the Bankruptcy Code.


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## Phinn (Apr 18, 2006)

> Why shouldn't employees have a property interest in their jobs?


Because a "job" is a voluntary contractual relationship with another person, and for the State to give one person a "property interest" in another person is, well, wrong.


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## Wayfarer (Mar 19, 2006)

Lushington said:


> Why shouldn't employees have a property interest in their job?


So you mean to say, I should feel my current position is mine and no matter how poorly I do or my organization does, I should expect this position to continue indefinetly?



Lushington said:


> No, not under the current economic regime. Enormous consumer demand, not industrial production, is the engine that currently drives the American economy. Any significant reduction in consumer spending will result in a deep recession. Over-extended consumers can make a very strong argument that they are simply doing their duty as citizens by incurring substantial household debt.


A house of cards is still a house of cards, no matter how you slice it. One could at least allocate any future increases in disposable income to savings thus not slowing the consumption while (albiet slowly) bringing one's financial house into order. Also, consumption =! over extending one's self _per se_. I am sure many of us here consume more than the average household yet also save a tidy sum of money.


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## Kav (Jun 19, 2005)

Personally I wouldn't stop and share my jumper cables with either man if they were broke down on the roadside. Ambassadorships are political perks and paybacks. Excuse me, but what exactly DOES one do in Belgium, aside from explaining why lace from Red China is in a retail chainstore that just cut benefits AGAIN for the employees and demand they learn spanish? We have a diplomatic service of career men and women who understand why belgian shepherds are not popular in the Congo and how to behave at national events without being briefed on WW1 and 2 battlefield commemorations.


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## Lushington (Jul 12, 2006)

Wayfarer said:


> So you mean to say, I should feel my current position is mine and no matter how poorly I do or my organization does, I should expect this position to continue indefinetly?


I neither said nor implied anything of the kind. I asked why employees should not have property interests in their jobs. Some do, of course; however, the presumption throughout the United States is that the typical employee has no property interest in his employment. Why should this be? Turn your questions around: Should an employee expect summary dismissal no matter loyal he or she is or how competent, and no matter how well his employer does or how incompetent his superiors might be? Propery interests are not necessarily perpetual, and they may be modified and even extinguished, depending upon the nature of the right and the manner in which it created. As it stands, "flexibility" in the labor market is the supreme virtue. I question the wisdom of this state of affairs, although I recognize arguments that can be made in its favor.



> A house of cards is still a house of cards, no matter how you slice it. One could at least allocate any future increases in disposable income to savings thus not slowing the consumption while (albiet slowly) bringing one's financial house into order. Also, consumption =! over extending one's self _per se_. I am sure many of us here consume more than the average household yet also save a tidy sum of money.


Perhaps; but as I said: any significant decrease in consumer demand will result in a deep recession. The US now has a negative savings rate. Any effort to correct this state of affairs will to result in a decline in consumption and a serious economic slowdown. I suspect that it will happen this year.


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## Wayfarer (Mar 19, 2006)

Lushington said:


> I neither said nor implied anything of the kind. I asked why employees should not have property interests in their jobs. Some do, of course; however, the presumption throughout the United States is that the typical employee has no property interest in his employment. Why should this be? Turn your questions around: Should an employee expect summary dismissal no matter loyal he or she is or how competent, and no matter how well his employer does or how incompetent his superiors might be? Propery interests are not necessarily perpetual, and they may be modified and even extinguished, depending upon the nature of the right and the manner in which it created. As it stands, "flexibility" in the labor market is the supreme virtue. I question the wisdom of this state of affairs, although I recognize arguments that can be made in its favor.


I think Phinn gave the proper answer. It is certainly not the case in today's society, but I never confuse the legal with the moral.


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## ksinc (May 30, 2005)

Laxplayer said:


> Who said anything about operating for long term profit? I said he buys companies and sells them for his _own_ profit.
> 
> If profit is the only concern, let's close down all of our U.S.-based companies and ship them overseas. While we're at it, let's have the foreign workers work three times as hard, so not only will we have to pay them less, but we won't have to hire as many. The greater good will be served since the executives will make more money, and that's really all that matters right?


First, you complain about short-term profit and now you don't like long-term profits. Perhaps no business should ever profit?

Why would anyone close down ALL U.S.-based businesses? Lots and lots of them make more profit here than they possibly could overseas. Let businesses be. They naturally gravitate to the most profitable locales.

In point of fact, Harbour Group probably created a net gain of the jobs they "saved" from being exported. If the company needed that much re-org it was probably on its last legs. Then everyone would have lost their jobs.

Perhaps an Econ 101 course would help you to understand?


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## Lushington (Jul 12, 2006)

Phinn said:


> Because a "job" is a voluntary contractual relationship with another person, and for the State to give one person a "property interest" in another person is, well, wrong.


In most states of the Union it is the State that deprives the employee of a property interest by creating a statutory presumption of at will employment.


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## pt4u67 (Apr 27, 2006)

Lushington said:


> In most states of the Union it is the State that deprives the employee of a property interest by creating a statutory presumption of at will employment.


Do you propose a system like France then?


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## Wayfarer (Mar 19, 2006)

Lushington said:


> In most states of the Union, it is the State that deprives the employee of a property interest by creating a statutory presumption of at will employment.


Take it from someone with a large number of FTEs, simply because employment is at will does not mean one can randomly terminate people. At the very, very least, if you one does not thoroughly employ progressive discipline, which could take months, and then document absolutely everything, your organization will end up paying unemployment. This could be argued to be a limited time property interest, no? You and Phinn are the lawyers, you can tell me. One thing I can tell you from years of managing and terminating people, at will is anything but creation of the arbitrary termination of employees.

Also, if at will is your basis, does not the existence of so-called "protected classes" create a whole list of categories of employees that are anything but at will?


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## Phinn (Apr 18, 2006)

> In most states of the Union it is the State that deprives the employee of a property interest by creating a statutory presumption of at will employment.


The at-will presumption does nothing of the kind. It's not a property interest at all. It is just a presumption. It means that a court will not pretend that the parties implicitly agreed to some arbitrary duration of their employment contract _*if they failed to specify one*_. If they specify one, their agreement controls, obviously.

This is no different than the various presumptions that are implied in partnership agreements -- if a partnership agreement is silent on some issue, the presumption supplies the missing term. The parties are still free to make whatever agreement they want.


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## Lushington (Jul 12, 2006)

Wayfarer said:


> Take it from someone with a large number of FTEs, simply because employment is at will does not mean one can randomly terminate people. At the very, very least, if you one does not thoroughly employ progressive discipline, which could take months, and then document absolutely everything, your organization will end up paying unemployment. This could be argued to be a limited time property interest, no? You and Phinn are the lawyers, you can tell me. One thing I can tell you from years of managing and terminating people, at will is anything but creation of the arbitrary termination of employees.
> 
> Also, if at will is your basis, does not the existence of so-called "protected classes" create a whole list of categories of employees that are anything but at will?


There are any number of exceptions to the at-will presumption that are intended to mitigate the harshness of the doctrine. This strongly suggests that there is something wrong with the doctrine. A statutory or judicial recognition of an employee property right in the emplolyment relationship might alleviate the need for the exceptions.


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## Phinn (Apr 18, 2006)

> There are any number of exceptions to the at-will presumption that are intended to mitigate the harshness of the doctrine. This strongly suggests that there is something wrong with the doctrine. A statutory or judicial recognition of an employee property right in the emplolyment relationship might alleviate the need for the exceptions.


The exceptions to the at-will doctrine are intended to empower the political class at the expense of crucial portions of our human rights to liberty and property. This strongly suggests that these exceptions should be abolished. Doing so might allow us to claim that we are taking a small step toward becoming a free society.


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## Lushington (Jul 12, 2006)

Phinn said:


> The at-will presumption does nothing of the kind. It's not a property interest at all. It is just a presumption. It means that a court will not pretend that the parties implicitly agreed to some arbitrary duration of their employment contract _*if they failed to specify one*_. If they specify one, their agreement controls, obviously.
> .


The at-will presumption certainly does act as a statutory deprivation of a property interest, which is intended to favor the employer. Third parties cannot avail themselves of the at-will presumption if they seek to limit their liability for impairing the employment relationship; in such cases, the employee's right to continued employment is presumed, absent some additional factor to the contrary. This presumption is extinguished when the dispute arises between the employer and employee.


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## Lushington (Jul 12, 2006)

Phinn said:


> The exceptions to the at-will doctrine are intended to empower the political class at the expense of crucial portions of our human rights to liberty and property. This strongly suggests that these exceptions should be abolished. Doing so might allow us to claim that we are taking a small step toward becoming a free society.


Empower is one side of the equation; limiting the power of the employing class is the other side. Power is the issue.


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## Wayfarer (Mar 19, 2006)

Lushington said:


> Empower is one side of the equation; limiting the power of the employing class is the other side. Power is the issue.


Yes, because them employing class people are right bastards. I can never understand the dichotomy between loving employment and employees, yet hating employers. If it was so easy to create jobs, those that can and do would not be so heavily rewarded by our economic system.

Lushington, I know you are a powerhouse at arguing and a trained attorney, but I think sometimes you are simply to "power to the people".


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## Phinn (Apr 18, 2006)

> Third parties cannot avail themselves of the at-will presumption if they seek to limit their liability for impairing the employment relationship


This is unclear.



> Empower is one side of the equation; limiting the power of the employing class is the other side. Power is the issue.


Yes, it is. Let's examine what is being gained and what is being lost.

The employer loses part of his ability to make a voluntary agreement with someone on mutually beneficial terms.

The government increases its ability to tell people what they can and can't do in their formerly private financial relationships, and increases its ability to used armed men to enforce these declarations.

Freedom loses. Violence wins.


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## Rocker (Oct 29, 2004)

Lushington said:


> Third parties cannot avail themselves of the at-will presumption if they seek to limit their liability for impairing the employment relationship; in such cases, the employee's right to continued employment is presumed, absent some additional factor to the contrary.


When would a third party ever be liable for "impairing [an] employment relationship"? I don't handle employment law but, the only occasion that I can think of in which this might occur would be if the employee was party to a non-compete/non-solicit covenant and his employment by a third party (new employer) violates that covenant? That really doesn't have much to do with his "at-will" status, though.

Can you give me an example of where a third party is/could be liable for impairing an employment relationship? Are you talking tortfeasors harming an employee?


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## Lushington (Jul 12, 2006)

Wayfarer said:


> Yes, because them employing class people are right bastards. I can never understand the dichotomy between loving employment and employees, yet hating employers. If it was so easy to create jobs, those that can and do would not be so heavily rewarded by our economic system.
> 
> Lushington, I know you are a powerhouse at arguing and a trained attorney, but I think sometimes you are simply to "power to the people".


Perhaps, but you're jumping to conclusions. I not waving the red flag here, nor calling for a massacre of management or the _rentier_ classes. I neither worship the workers nor the employers. My sympathies lie with the workers, but I don't idealize them. I merely think some systemic modifications could be made to current economic arrangements in this country that, in the long run, would prove beneficial workers without impairing too greatly the rights and privileges of the _rentiers_ and their minions.

But at the moment I really must run and redistribute some wealth . . .


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## Lushington (Jul 12, 2006)

Rocker said:


> When would a third party ever be liable for "impairing [an] employment relationship"? I don't handle employment law but, the only occasion that I can think of in which this might occur would be if the employee was party to a non-compete/non-solicit covenant and his employment by a third party (new employer) violates that covenant? That really doesn't have much to do with his "at-will" status, though.
> 
> Can you give me an example of where a third party is/could be liable for impairing an employment relationship? Are you talking tortfeasors harming an employee?


Such cases usually arise in tort: personal injury, fraudulent inducement, interference with contract. The California Supreme Court even held a couple of years ago that an employer could recover damages for the loss of an at-will employee, if the predicate conditions are met.


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## Wayfarer (Mar 19, 2006)

Lushington said:


> Such cases usually arise in tort: personal injury, fraudulent inducement, interference with contract. The California Supreme Court even held a couple of years ago that an employer could recover damages for the loss of an at-will employee, if the predicate conditions were met.


There are situations like that in health care. An healthcare organization usually has to sign a contract with a medical staffing agency that they will pay a rather hefty fee if they hire one of the contract employees, be it a shift long assignment or a year long assignment.


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## Laxplayer (Apr 26, 2006)

ksinc said:


> *First, you complain about short-term profit and now you don't like long-term profits. Perhaps no business should ever profit?*
> 
> Why would anyone close down ALL U.S.-based businesses? Lots and lots of them make more profit here than they possibly could overseas. Let businesses be. They naturally gravitate to the most profitable locales.
> 
> ...


I don't need to re-take Econ 101. I have both a CFP and a CMA, smart guy.


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## ksinc (May 30, 2005)

Laxplayer said:


> I don't need to re-take Econ 101. I have both a CFP and a CMA, smart guy.


So then what is your excuse, did you hit your head? I knew lacrosse was dangerous, but damn! 

I don't have a huge amount of respect for the CFPs, but the CMAs that I know are solid, analytical types with an advanced understanding of economics and business. Two I know very, very well and both have their Ph.D. in Finance.


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## Rocker (Oct 29, 2004)

Lushington said:


> The at-will presumption certainly does act as a statutory deprivation of a property interest, which is intended to favor the employer. Third parties cannot avail themselves of the at-will presumption if they seek to limit their liability for impairing the employment relationship; in such cases, the employee's right to continued employment is presumed, absent some additional factor to the contrary. This presumption is extinguished when the dispute arises between the employer and employee.





Lushington said:


> Such cases usually arise in tort: personal injury, fraudulent inducement, interference with contract. The California Supreme Court even held a couple of years ago that an employer could recover damages for the loss of an at-will employee, if the predicate conditions are met.


Well if it's tort, the presumption isn't that the at-will employee had a right to that particular job (i.e. that the employee had a property right in the job), just that the employee, had he not been injured, would have continued to worked at a comparable occupation and at a comparable pay until retirement, right? I mean there is a presumption of continued employment, but not necessarily at that particular job, and so whether he is at-will is irrelevant to the measurement of damages in the even of injury. So, it would make sense that a third party tortfeasor couldn't claim there were no damages for lost income because the employee was at will. The damages aren't based on the employee's loss of that particular job, but on his loss or diminishment of the ability to work generally at a job of that kind for the rest of the employee's working career.

Interference with contract presumes that there is a contract. Most at will employees here in Georgia who sign contracts only do so with respect to trade secrets, confidential information, non-solicitation, and non-compete. It doesn't make sense that just because the employee was at will a third party would have a defense against breach of covenants which survive the termination of the employment relationship and which were a condition to employment in the first place. To the extent, the employment contract is for a term of specified years, I would assume that it is unlikely that such employment is at-will and likely has severance requirements.

I Have no idea what kinds of fraudulent inducement claims might arise - just not familiar with employment cases, but it doesn't seem that you raise an analogous point in your first quote. Tortfeasor liability for damages isn't based on the employee's property right in a job; the presumption isn't that the employee had a right to that job and was deprived of it by a tort; it's that the employee would have continued to work at that job or a similar one until he reached retirement and that he was deprived of the ability to work. At-will is a U.S. common law concept isn't it? I'm not sure how the at-will presumption "act as a statutory deprivation of a property" - maybe you're referring to a California statute of some kind?

I'd be interested to see a case in which a 3rd party was found liable for interfering with an employment relationship that didn't involve either 1) an actual written contract for a specified term of years (not at-will) - i.e., that a prospective employer was inducing a not at-will employee to breach his employment agreement and come work for the prospective employer; or 2) some claim regarding a covenant, like soliciting employees, customers, use of employee confidential information, or non-competes which clearly was contemplated to survive the termination of employment.

I'm not really very surprised at what California courts might do - maybe there's some slippery tricks in those "predicate conditions" that you mentioned but, I'm not sure your painting an accurate picture of what the presumptions exist in the employment context and how they are designed to benefit the employer.


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## Rocker (Oct 29, 2004)

Wayfarer said:


> There are situations like that in health care. An healthcare organization usually has to sign a contract with a medical staffing agency that they will pay a rather hefty fee if they hire one of the contract employees, be it a shift long assignment or a year long assignment.


Well, yes, but that's a totally different issue than whether the at-will presumption benefits the employer at the expense of employees and/or can/cannot be used by a third party as a defense against liability.

In your case, it doesn't matter what the employment relationship/contract is between the medical staffing agency and the actual contract employee. Your organization has agreed not to solicit the contract employees for direct employment. If you did so, and the contract employees were at-will, the strongest claim wouldn't be that you interfered with a contractual relationship between the medical staffing agency and the contract employee, it would simply be that you breached your agreement with the medical staffing agency to not solicit. So, to use Lushington's hypothesis, even if you could, as a third party have a complete legal defense by claiming that the contract employee was at-will and therefore free to leave his/her employment at any time and thus, no harm was done by you hiring him/her - that has nothing to do with your completely separate contractual agreement that you wouldn't solicit such people for employment in the first place.


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## Wayfarer (Mar 19, 2006)

Rocker said:


> Well, yes, but that's a totally different issue than whether the at-will presumption benefits the employer at the expense of employees and/or can/cannot be used by a third party as a defense against liability.
> 
> In your case, it doesn't matter what the employment relationship/contract is between the medical staffing agency and the actual contract employee. Your organization has agreed not to solicit the contract employees for direct employment. If you did so, and the contract employees were at-will, the strongest claim wouldn't be that you interfered with a contractual relationship between the medical staffing agency and the contract employee, it would simply be that you breached your agreement with the medical staffing agency to not solicit. So, to use Lushington's hypothesis, even if you could, as a third party have a complete legal defense by claiming that the contract employee was at-will and therefore free to leave his/her employment at any time and thus, no harm was done by you hiring him/her - that has nothing to do with your completely separate contractual agreement that you wouldn't solicit such people for employment in the first place.


What if the contract specifically stated my organization will not solicit but an employee of the staffing agency approached my organization? I understand it would come down to the contractual language, but if it specifically only stated, "...not solicit..."?


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## jackmccullough (May 10, 2006)

*So getting back to the original point*

What's your point here? Is giving $50,000.00 to a group to broadcast lies about a presidential candidate not relevant to whether you should be confirmed to represent the United States in capitals around the world?


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## Lushington (Jul 12, 2006)

Rocker said:


> Snip


The error you are making in your contract analysis is assuming that an at-will employment relationship is not a contractual relationship. It is, albeit one that is terminable at the will of either party. Thus, in any dispute between the parties regarding the termination of the at-will relationship the defendant may assert the at-will nature of the contract as a defense to breach, or as a bar to damages. A third party cannot. Here is how California's Courts view the matter:



> Cases establishing a cause of action for interference with at-will and voidable contracts make it clear that it is the contractual relationship, not any term of the contract, which is protected against outside interference. We have affirmed that interference with an at-will contract is actionable interference with the contractual relationship, on the theory that a contract " 'at the will of the parties, respectively does not make it one at the will of others' " [Citation omitted] _n the context of voidable contracts: "The actionable wrong lies in the inducement to break the contract or to sever the relationship, not in the kind of contract or relationship so disrupted, whether it is written or oral, enforceable or not enforceable." . . . Reviewing courts have reiterated in case after case that the contractual relationship is at the will of the parties, not at the will of outsiders. . . . [Citations omitted.] . . . Further, the expectation that the parties will honor the terms of the contract is protected against officious intermeddlers. Since people " 'usually honor their promises no matter what flaws a lawyer can find, the offender should not be heard to say that the contract ... meddled with could not have been enforced....' " (Pacific Gas & Electric v. Bear Stearns Co. (1990) 50 Cal.3d 1118, 1126 - 1128.)_


_

In California the at-will presumption is codified in Labor Code Section 2922:



An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.

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This statute,




establishes the presumption that an employer may terminate its employees at will, for any or no reason. A fortiori, the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment. (Guz v. Bechtel Nat'l, Inc. (2001) 24 Cal.3d 317, 358.)​

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However, the statute does not extend the same right to strangers to the employment bargain:




It is well settled that at-will contractual relations can be the subject of claims for intentional interference with contract, based on the principle that a third party's 'interference with an at-will contract is actionable interference with the contractual relationship because the contractual relationship is at the will of the parties, not at the will of outsiders. [Citations omitted.] [In Reeves v. Hanlon (2004) 33 Cal.App.4th 1140] the California Supreme Court made it clear that that tort can be based on interference with an at-will employment relationship. (Id. p. 1148, 17 Cal.Rptr.3d 289 citing Kozlowsky v. Westminster Nat. Bank (1970) 6 Cal.App.3d 593, 598 ["the fact that the Bank was privileged to discharge plaintiff at any time does not necessarily privilege a third party unjustifiably to induce the termination"].) (Toscano v. Greene Music, Inc. (2004) 124 Cal.App.4th 685, 693, 694.)​

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In practice, this works as follows: should an employer fraudulently induce an at-will employee to resign his position, no fraud action against the employer will lie because the at-will nature of the employment bars the employee's claim for damages. (Hunter v. Up - Right, Inc. (1992) 6 Cal.4th 1174.) However, if a third party fraudulently induces an at-will employee to leave his job, a fraud action will lie and the at-will nature of the former employment will not bar the employee's claim for reliance damages. (Agosta v. Astor (2003) 120 Cal.App.4th 196; Helmer v. Bingham Toyota Isuzu (2005) 129 Cal.App.4th 1121.) In similar cases an employee may recover from the defendant on a estoppel theory (Toscano, supra; Sheppard v. Morgan Keegan & Co. (1990) 218 Cal.App.3d 61), and a contract theory (see, e.g. Filcek v. Norris-Schmid, Inc. ( 1986) 156 Mich.App. 80.)

The following presumptions, among others, play a role in these cases: in actions against the employer, the at-will presumption extinguishes the employee's reasonable expectation of continued employment; however, in actions against the third parties, the at-will presumption does not extinguish the employee's expectation of continued employment; thus, reliance damages measured by the loss of the former position are recoverable. In the latter case, does the employee's expectancy of continued employment constitute a property interest? Under prevailing law probably not, as a unilateral expectation of continued employment is insufficient in itself to create a property interest in the position. However, I would argue that this is an effect of uniform application of the at-will presumption in private employment. If this were abolished, and a statutory or judicial "for cause" requirement established in its place, this would likely result in a recognized property interest in private employment as is currently recognized in public employment. A fine rationale for this change is found in Singer, The Reliance Interest in Property 40 Stanford Law Review 611, 688 - 689 (1986):




Forbidding the employer to fire an employee at will without a good reason-or at least not for a bad reason-substantially interferes with the property rights of the employer. Initially, the employer is under no legal obligation to hire anyone in particular or to hire anyone at all. The employee is under no general legal obligation to work. However, as Robert Hale notes, both the employer and the employee need what the other has a legal right to withhold. The employee may own no property and cannot make a living without agreeing to work for someone who does. The employer cannot put her property to use without convincing others to join with her in a group project to produce a product or service. The employer thus would not give the employee permission to have access to the employer's property unless the employee agreed to the employer's terms. Forcing the employer to include a just cause requirement as compulsory term in the at will employment contract forces the employer to grant access to her property on terms with which she would rather not agree. It therefore transfers from the employer to the employee part of the owner's right to exclude.

Granting employees at will a minimal amount of job security could be interpreted as granting those employees a property interest in their jobs. This property interest is a Hohfeldian immunity from loss of the right to work and to receive agreed upon wages. If this interest is enforceable by injunction, the employee thus has both a right of access to the employer's business property and a right to tax a portion of the earnings of the business as compensation for the employee's contribution to the productive enterprise. If the interest is protected only by damages, the employer's right to control her property is limited by the duty to pay damages in lieu of complying with the good faith or public policy requirement.

Although the employer and the employee enter into a relationship of mutual dependence, they are not equally powerful. The employee is often more vulnerable than the employer because the legal rules generally protect the employer's power to govern access to the property. The just cause termination doctrine protects the more vulnerable party to the relationship by transferring from the employer to the employee a limited part of the employer's property rights. It makes little difference whether one views this transfer as happening at the moment the employer tries to end the relationship (the attempted firing) or at the beginning of the relationship (when the employee is hired). In either case, the doctrine determines the distribution of power between the parties over access to the property. The transfer of this limited set of property interests from the employer to the employee protects the reliance interests of the more vulnerable party. Those interests include the employee's interest in relying on access to work to be able to make a living. The employee also wants not to have to acquire new skills, move, or undergo the substantial psychological and monetary costs of a job search. The personal costs of unemployment have been well documented. The employee may have developed relationships with others at the workplace that would be disrupted by unjustified termination. As with just cause eviction statutes, the interest that is protected is not only need for work in the abstract, but for continued access to this particular job.

The employer's interests, on the other hand, are related to the ability to freely govern the workplace and to make money. These sovereighty and investment interests are intended to be protected to a large extent by the just cause termination doctrine, which does not radically alter labor relations law. The doctrine is potentially radical in that what constitutes a just cause to terminate could be interpreted so narrowly that employees could use the doctrine to fundamentally alter the distribution of power between employers and employees. As it is, the doctrine protects in a limited way the employee's interest in relying on continued access to a particular job. By coercively altering the distribution of property rights, the just cause termination doctrine protects the interests of the more vulnerable person in relying on the continuation of important relationships.

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So I would stand by my earlier assertion that the at -will presumption deprives an employee of property interest in employment; although it would be more precise to say the property impaired is a potential interest that would likely come into existence with the extinguishment of the at-will presumption._


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## ksinc (May 30, 2005)

jackmccullough said:


> What's your point here? Is giving $50,000.00 to a group to broadcast lies about a presidential candidate not relevant to whether you should be confirmed to represent the United States in capitals around the world?


Lies? Do you really want to start an audit of Lies Kerry Told vs. Lies Told about Kerry?

If Kerry can still be in the U.S. Senate then that dude can say whatever he wants about him and be an ambassador IMHO.

If you want to disqualify them both, then I await Sen. Kerry's resignation with delight.

Sen. Kerry was, is, and will remain a disgrace.


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## JRR (Feb 11, 2006)

jackmccullough said:


> What's your point here? Is giving $50,000.00 to a group to broadcast lies about a presidential candidate not relevant to whether you should be confirmed to represent the United States in capitals around the world?


Jack,

I am remembring what I thought in Spring of 2004, when the Iowa caucus went for Kerry. The decision was spun that the people went for a guy who was a far more practical choice than Dean or others. A guy who because of his military background could beat Bush.

I remember thinking, "Well, that is pretty wrong..." Anyone who had paid attension to Kerry's service as a Senator over the last 20 some years should realize that he was just as bad a choice as Dean would have been. A primary reason for this is that at his core, Kerry is a petty douche with an ego complex. The story regarding this spat over the proposed Belgian ambassador just proves my point. Kerry is tone deaf.

Cheers


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## Karl89 (Feb 20, 2005)

Gents,

There are numerous reasons to dislike Kerry but his wife is certainly no political asset. Who can forget when they visited at Wendy's for a campaign stop and Theresa had to ask what chili was? But perhaps we shouldn't be too hard on her, its not as if Fredy Giradet ever served her a bowl of Texas Red.

Karl


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## Rocker (Oct 29, 2004)

Lushington said:


> The error you are making in your contract analysis is assuming that an at-will employment relationship is not a contractual relationship. It is, albeit one that is terminable at the will of either party. Thus, in any dispute between the parties regarding the termination of the at-will relationship the defendant may assert the at-will nature of the contract as a defense to breach, or as a bar to damages. A third party cannot. Here is how California's Courts view the matter:


 No, I understand that at-will employment can constitute a contractual relationship.


Lushington said:


> Cases establishing a cause of action for interference with at-will and voidable contracts make it clear that it is the contractual relationship, not any term of the contract, which is protected against outside interference. We have affirmed that interference with an at-will contract is actionable interference with the contractual relationship, on the theory that a contract " 'at the will of the parties, respectively does not make it one at the will of others' " [Citation omitted] _n the context of voidable contracts: "The actionable wrong lies in the inducement to break the contract or to sever the relationship, not in the kind of contract or relationship so disrupted, whether it is written or oral, enforceable or not enforceable." . . . Reviewing courts have reiterated in case after case that the contractual relationship is at the will of the parties, not at the will of outsiders. . . . [Citations omitted.] . . . Further, the expectation that the parties will honor the terms of the contract is protected against officious intermeddlers. Since people " 'usually honor their promises no matter what flaws a lawyer can find, the offender should not be heard to say that the contract ... meddled with could not have been enforced....' " (Pacific Gas & Electric v. Bear Stearns Co. (1990) 50 Cal.3d 1118, 1126 - 1128.) _


_
But neither this case nor any of the cases cited therein deal with employment contracts; they're all commercial/supply contracts and the interests and issues are very different.



Lushington said:



However, the statute does not extend the same right to strangers to the employment bargain: 
It is well settled that at-will contractual relations can be the subject of claims for intentional interference with contract, based on the principle that a third party's 'interference with an at-will contract is actionable interference with the contractual relationship because the contractual relationship is at the will of the parties, not at the will of outsiders. [Citations omitted.] [In Reeves v. Hanlon (2004) 33 Cal.App.4th 1140] the California Supreme Court made it clear that that tort can be based on interference with an at-will employment relationship. (Id. p. 1148, 17 Cal.Rptr.3d 289 citing Kozlowsky v. Westminster Nat. Bank (1970) 6 Cal.App.3d 593, 598 ["the fact that the Bank was privileged to discharge plaintiff at any time does not necessarily privilege a third party unjustifiably to induce the termination"].) (Toscano v. Greene Music, Inc. (2004) 124 Cal.App.4th 685, 693, 694.)

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Reeves v. Hanlon concluded that an injured former employer could recover for intentional interference with an at-will employment relation when the employee's new employer engaged in "independently wrongful acts" when inducing the new employee to quit. Those independent wrongful acts include things such as sabotage - deleting files, misappropriating confidential information or trade secrets; or encouraging departing employees to solicit customers. This is exactly what I suspected and stated earlier.


Rocker said:



I'd be interested to see a case in which a 3rd party was found liable for interfering with an employment relationship that didn't involve either 1) an actual written contract for a specified term of years (not at-will) - i.e., that a prospective employer was inducing a not at-will employee to breach his employment agreement and come work for the prospective employer; or 2) some claim regarding a covenant, like soliciting employees, customers, use of employee confidential information, or non-competes which clearly was contemplated to survive the termination of employment.

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 See https://askandyaboutclothes.com/community/showpost.php?p=508526&postcount=43 The point is - apparently even in California - for a third party to be liable for interfering with an at-will employment agreement - there must be other bad acts by the third party for it to be actionable; merely soliciting an employee is not sufficient.



Lushington said:



In practice, this works as follows: should an employer fraudulently induce an at-will employee to resign his position, no fraud action against the employer will lie because the at-will nature of the employment bars the employee's claim for damages. (Hunter v. Up - Right, Inc. (1992) 6 Cal.4th 1174.) However, if a third party fraudulently induces an at-will employee to leave his job, a fraud action will lie and the at-will nature of the former employment will not bar the employee's claim for reliance damages. (Agosta v. Astor (2003) 120 Cal.App.4th 196; Helmer v. Bingham Toyota Isuzu (2005) 129 Cal.App.4th 1121.) In similar cases an employee may recover from the defendant on a estoppel theory (Toscano, supra; Sheppard v. Morgan Keegan & Co. (1990) 218 Cal.App.3d 61), and a contract theory (see, e.g. Filcek v. Norris-Schmid, Inc. ( 1986) 156 Mich.App. 80.)

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Yes, but the cause of action does not arise from the nature of his employment relationship, but from the fact that the employee gave something up with a reliance interest on something promised and he wasn't given what was promised. In other words that at-will nature of employment is irrelevant. The employee may sue the fraudulent job offeror not because he gave up a property right in his former employment but, because he gave up a benefit/right/good based on the fraudulent promises of the third party. This kind of claim is independent of the employment relationship - it just so happens, though, that this particular claim does involve an employment relationship - but it could have been about any case where there was a promise and detrimental reliance. This is an equitable claim, as you know, and it predates the California statute regarding at-will employment and, indeed, predates the existence of the State of California. It's proper that the at-will nature of his employment should not be considered as defense to the fraudulent prospective employer, as regardless of the former employment terms, the fact remains - the employee surrendered his ability to earn an income from the former employer based on the promise that the fraudulent employer would pay him an income in return. Further, this kind of claim does not benefit the former employer - it benefits the employee who was wronged so, it's difficult to see how this supports your argument that


Lushington said:



The at-will presumption . . . is intended to favor the employer.

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You also stated that


Lushington said:



. . . does the employee's expectancy of continued employment constitute a property interest? Under prevailing law probably not, as a unilateral expectation of continued employment is insufficient in itself to create a property interest in the position.

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And I think that's right. But you said in an earlier post that


Lushington said:



The at-will presumption certainly does act as a statutory deprivation of a property interest, which is intended to favor the employer.

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 See https://askandyaboutclothes.com/community/showpost.php?p=508453&postcount=33. In other words, you asserted that there was a property interest right from the start and it doesn't appear that the California courts have gone this far. You did go on to modify your position in the last post and stated


Lushington said:



So I would stand by my earlier assertion that the at -will presumption deprives an employee of property interest in employment; although it would be more precise to say the property impaired is a potential interest that would likely come into existence with the extinguishment of the at-will presumption.

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 But it appears that only the last portion is accurate.

So, I think your argument was interesting. I hadn't really thought about it until you brought it up, but I don't think the at-will relationship really allows defenses to employers which are not enjoyed by third parties in limiting their liability for impairing employment, absent some other bad acts by the prospective employer. I also, just basically, disagreed with your assertion that at-will employment deprives an employee of a property interest - a point you seem to concede above - at least as the law exists now. Like I said, I don't do employment law - but I wonder how different California law is from other states. It's an interesting issue. Thanks._


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## Lushington (Jul 12, 2006)

Rocker said:


> But neither this case nor any of the cases cited therein deal with employment contracts; they're all commercial/supply contracts and the interests and issues are very different.


Not really. Although _Bear Stearns_ may not be an employment case, the analytic principles remain the same so long as the contract is at-will or voidable by the parties. The _Reeves _Court relied upon _Bear Stearns_, and similar cases, in reaching its decision in an at-will employment case. The subject matter of the contract is not as important as the nature of the contract.


> Reeves v. Hanlon concluded that an injured former employer could recover for intentional interference with an at-will employment relation when the employee's new employer engaged in "independently wrongful acts" when inducing the new employee to quit. Those independent wrongful acts include things such as sabotage - deleting files, misappropriating confidential information or trade secrets; or encouraging departing employees to solicit customers. This is exactly what I suspected and stated earlier. See https://askandyaboutclothes.com/community/showpost.php?p=508526&postcount=43 The point is - apparently even in California - for a third party to be liable for interfering with an at-will employment agreement - there must be other bad acts by the third party for it to be actionable; merely soliciting an employee is not sufficient.


There must, of course, be wrongful conduct the issue to come into play. The issue is one of damages. The significance of _Reeves_ was that, in addition to damages recoverable for the underlying wrongful acts, the California Supreme Court held that an employer could also recover damages associated with the loss of an at-will employee. Previous case law had denied recovery in similar situations because the at-will presumption eliminated the employer's damages. The _Reeves _court recognized that the _employer's _expectation of continued employment by the _employee_ created independent value for the employer, a value that could be impaired by the actions of a third party. This is a significant step towards a recognition of a bilateral expectation of continued employment, even in an at-will employment context.



> Yes, but the cause of action does not arise from the nature of his employment relationship, but from the fact that the employee gave something up with a reliance interest on something promised and he wasn't given what was promised. In other words that at-will nature of employment is irrelevant. The employee may sue the fraudulent job offeror not because he gave up a property right in his former employment but, because he gave up a benefit/right/good based on the fraudulent promises of the third party. This kind of claim is independent of the employment relationship - it just so happens, though, that this particular claim does involve an employment relationship - but it could have been about any case where there was a promise and detrimental reliance. This is an equitable claim, as you know, and it predates the California statute regarding at-will employment and, indeed, predates the existence of the State of California. It's proper that the at-will nature of his employment should not be considered as defense to the fraudulent prospective employer, as regardless of the former employment terms, the fact remains - the employee surrendered his ability to earn an income from the former employer based on the promise that the fraudulent employer would pay him an income in return. Further, this kind of claim does not benefit the former employer - it benefits the employee who was wronged so, it's difficult to see how this supports your argument that . . .


Again, it is an issue of damages. The nature of the employment does not create liability, in and of itself, but it affects the availability of damages, depending upon the status of the defendant. Should an employer defraud an employee into resigning, the elements of fraud may still be present, but there are no damages because the at-will presumption creates no expectation of continued employment; thus the employee has given up nothing by resigning his at-will position, and the employer has merely used fraud to accomplish what it could accomplish directly. If a third party induces the employee to leave the same at-will position the at-will presumption does not extinguish the employee's expectation of continued employment; thus the employee may recover out of pocket, or reliance, damages (and these include damages unique to the at-will position relinquished.) Even if viewed as a matter of equity - _especially_ if viewed as a matter of equity - an employer should be liable to an at-will employee in the same manner as a third party in cases of fraud. However, because of the at-will presumption employers are not. Thus, the availability of damages is dependent on the nature of the employment relationship



> In other words, you asserted that there was a property interest right from the start and it doesn't appear that the California courts have gone this far.


I did; but I did not say that California courts had recognized a property right in private at-will employment. However, a combination of the principles in _Reeves v. Hanlon_ with those of, say, _Helmer_ may accomplish this. As noted, a unilateral expectation of continued employment is insufficient to create a property interest in employment; however, remove the at-will presumption and a bilateral expectation of continued employment - absent "cause for dismissal" - would exist, thereby creating a property interest in private employment, as it does in public employment or in contract employment for a specified term. It is in this manner that the at-will presumption, in California, as in every other state, deprives the employee of a property interest. The at-will presumption arose in the late 19th Century as part of the "instrumentalist" view of labor jurisprudence, which emphasized labor market flexibility above other considerations. Prior to that, different, some would say more primitive or archaic, views of the "master and servant" relationship were legally recognized. For instance, during that period an employer could recover for the loss of his "servant" in the absence of independent wrongdoing by defendant. The status of employment itself was recognized as having value. The at-will presumption eliminates this - at least as it applies to disputes between employer and employee.

I believe the strongest attack on my position is that the at-will presumption benefits employer and employees equally, that labor market flexibility is so advantageous to all concerned that its drawbacks are insignificant from a policy perspective. I would dispute this argument, but I would accept its validity. I would also recognize that a reduction of labor market flexibility would entail a reduction in employee freedom of movement, but I would find this acceptable in most cases.



> You did go on to modify your position in the last post and stated But it appears that only the last portion is accurate.


Again, I didn't say that California courts have held that there is a property interest in private at-will employment. I said that the at-will presumption deprives the employee of a property interest, one which would likely be legally recognized if the at-will presumption did not exist. I stand by that contention for the reasons stated in these lengthy posts


> Like I said, I don't do employment law - but I wonder how different California law is from other states..


California law is somewhat more developed than the law of other states in this matter, if only because cases like Toscano and Helmer have gone to trial. There are similar decisions from other states implying that a similar measure of damages is available to aggrieved employees; but the majority of those cases involve appeals following summary adjudication in some fashion, MSJ, motion to dismiss, nonsuit, etc., so the proper measure of damages, and the elements constituting such damages, is not discussed.


> It's an interesting issue. Thanks.


And I thank you. I found something in _Reeves_ when rereading it that I had overlooked in the past, and it might prove useful in the future.


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