(Pix © Larry Catá Backer 2016)
The evolution of the legal rules constraining the terms through which labor may be purchased in the West had seen a long evolution--from villeinage and indenture (slavery for some) to service in the form of the sale of labor to a master who is empowered by law to manage and control the person whose services have been purchased. That employment relation, that relationship between master and servant is hierarchical and personal in a way that the relationship between investor and enterprise is not--capital is invested but not purchased and performs no service beyond offering the value obtained and a forbearance of repayment for a time certain. Echoes of the the more comprehensive notions of service, and of the role of the servant, remain visible today in the scope of discretionary authority the law permits to a "master" to regulate the non working lives of employees to the extent it might interfere with its business and operations--as those are conceived by the employer. For at will employees, of course, the legal master-servant relation is to permit the master (though technically both have the power) to terminate employment for any reason--and in the master's case, to condition employment on a host of criteria, subject only to the constraints of other law, contract, or at the extreme, constitutional limitations.
The master-servant relationship exits within the university as well. For faculty, however, the operation of the master-servant relation has been constrained both by contract and by the scope of the interpretation of the twin principles of academic freedom and shared governance. These have sometimes proven to be strong protection in the absence of statute or policy. Other times, their protection has been somewhat less powerful. Beyond the legal constraints lie a powerful policy conversation that has been shaping the societal consensus relating to the propriety of the exaction of conditions for work that touch on the non working life of the employee. These have tended to push toward a growing societal disapproval of the assertion of employer power reaching into the private lives of employees. At the same time, universities across the United States have sought to expand the boundaries of the definition--and thus the protection--of their interests in the intellectual prowess represented by the individuals whose services they have purchased for the provision of customary teaching, research and service duties. Where once universities were principally concerned about the protection of its interests in the face of patents and related innovation and the opening of businesses by mostly scientists and engineers seeking to exploit ideas nurtured through the university, and to constrain the scope of professional practice by its lawyers, architects, musicians, etc., now the university seeks to control well beyond these simple and direct activities. It is at the intersection of these two opposing societal movements that university policy relating to the control of faculty outside business activity meet.
Many of these issues have been dealt with relatively uniformly by contemporary large research universities across the United States. This post considers one hypothetical example of this effort in that light and the Commentary of Professor Hypothetical in light of that effort. It is a hypothetical example only; but it presents issues that touch on such efforts across the nation. As a generic model it will be presented as the efforts of Public University (PU), a land grant University in the State of Republic, in the development of a Labor Policy (LRX) that seeks to manage employee business activities in the context of a new model.