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35 Wash. U. J. L. & Pol'y 163 (2011)
Arm's-Length Intimacy: Employment as Relationship

handle is hein.journals/wajlp35 and id is 165 raw text is: Arm's-Length Intimacy: Employment as Relationship
Marion Crain*
Two important assumptions shape the law of work: that workers
and employers possess interests that are diametrically opposed, and
that each makes no investment in the other beyond the immediate
exchange of dollars for labor. Neither assumption is justified.
Without work to be done, jobs won't exist; accordingly, workers are
keenly interested in supporting the firms for which they labor.
Workers pour sweat, blood, and even dollars into the firms that
employ them      when firms need it most.2 Nor are most employers
* Wiley B. Rutledge Professor of Law and Director, Center for the Interdisciplinary
Study of Work & Social Capital, Washington University in St. Louis. I am grateful to Dean
Kent Syverud, Washington University School of Law, and the Israel Treiman fellowship for
funding, and thank Deirdre Aaron, Nick Billman, and Andrew Donelan for excellent research
assistance. Participants in the For Love or Money? workshop sponsored by Washington
University's Center for the Interdisciplinary Study of Work & Social Capital in March 2010
offered valuable insights. I am particularly indebted to Scott Baker and Noah Zatz for
discussions and comments on earlier drafts.
1. Even the most militant labor unions have internalized this message, agreeing to wage
concessions during recessionary periods to help struggling firms. See, e.g., United Automobile
Workers, N.Y. TIMES, Jan. 13, 2011, http://topics.nytimes.com/top/reference/timestopics/
organizations/u/united automobile workers/index.html (reporting that the United Auto
Workers' Union made wage and benefit concessions worth $7,000 to $30,000 a year per
member during the 2008-09 recession in an effort to save jobs and assist GM and Chrysler).
Union organizers, too, have incorporated the understanding that workers and firms' fortunes
and well-being are linked. Consider, for example, the Harvard Union of Clerical and Technical
Workers' campaign slogan: It's not anti-Harvard to be pro-union. See Marion Crain,
Feminism, Labor, and Power, 65 S. CAL. L. REV. 1819, 1874 (1992) (describing non-
adversarial approach to organizing adopted by the Harvard union).
2. See Marion Crain, Managing Identity: Buying Into the Brand at Work, 95 IOWA L.
REV. 1179, 1186, 1233-37 (2010) (describing propensity of workers to invest their retirement
savings in company stock and firms' marketing efforts to encourage identification with the
corporate brand that might encourage such behavior). Despite increased public awareness about
the risks of insufficient diversification of employee retirement portfolios in the wake of the
Enron and WorldCom debacles, many workers continue to invest the bulk of their retirement
portfolios in company stock. In January 2009, the Wall Street Journal reported that workers
were responding to the recession by investing more, not less, in the companies that employed
them. See Eleanor Laise, Despite Risks, Workers Guzzle Company Stock, WALL ST. J., Mar. 5,
2009, at Dl.


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