I am pretty sure that it has become unduly hard for workers to embrace collective bargaining if they choose, in part because the penalties for employers who fire and intimidate pro-union employees and stall unionization elections are too weak to deter such misconduct.

But I am very sure that the radical changes that the proposed law would make in long-established labor laws are overkill. The most publicized "card-check" provision would essentially end use of the secret-ballot elections that have been required (at the option of employers) for more than 60 years to determine whether a majority of employees want to unionize their workplaces. Even more alarming to some employers is another provision that would empower government arbitrators to dictate contractual terms when unions and management cannot agree.

These measures are not necessary to remedy the employer abuses of which unions complain. They would probably be bad for employees and employers alike, and they might kill countless jobs at a time when unemployment is already soaring.

The card-check provision would require an employer to immediately recognize as its employees’ collective bargaining agent any union that could persuade a majority of the workers to sign union authorization cards. Secret-ballot elections would be held only if requested by unions, which would have little incentive to do so.

The problem is that an employee cannot make anything close to an entirely free choice when asked to sign a union card, perhaps in an unsolicited visit to his or her home by two or more union activists or other co-workers who will be most unhappy if he or she refuses. Not to mention the documented cases of union activists putting workers in fear of physical harm, falsely promising that they would be free to stop paying dues if they come to regret joining the union, and the like.

There is a reason, in the political realm, that secret ballots are used in genuinely democratic elections all over the world. For the same reason, "the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose."

These are not the words of some business lobbyist. They come from a letter sent eight years ago to officials in Mexico by Rep. George Miller, D-Calif., and 15 other House members, including Democrats Barney Frank of Massachusetts, Dennis Kucinich of Ohio, and Zoe Lofgren of California. These members have since embraced the free-choice act’s attack on the secret-ballot requirement. (Miller’s spokesman has dismissed this letter — unpersuasively, in my view — as irrelevant because it concerned a contest between an independent union in Mexico and what was seen as a sham "official" union.)

The government’s role is to guarantee the right to strike so that unions can use raw economic power to force concessions.

Even absent intimidation, an employee is not making a fully informed choice when he or she signs a card after hearing only the union’s account of the supposed benefits of unionizing. Employees may not have heard the employer’s case that unionizing would make them worse off — by, for example, requiring them to pay dues for many years to come, or imposing inefficient work rules, or making their workplace uncompetitive.

The bill’s supporters argue that in practice the secret-ballot requirement denies employees a genuinely free choice because many employers fire or otherwise intimidate pro-union workers; use procedural challenges and other tactics to stall elections; and deluge workers with anti-union propaganda.

They cite a new study by the liberal Center for Economic and Policy Research concluding that since 1950 — and especially since 2000 — "the likelihood that a pro-union worker would be fired in a union-election campaign has jumped sharply — to about one in every 52 pro-union workers," and to perhaps 20 percent of the most active union organizers. According to the study, this finding helps explain the steady slide in the percentage of unionized U.S. workers from 32.5 percent in 1952 to 12.4 percent in 2008 — and to less than 8 percent in the private sector.

Employer groups attribute the decline in union membership to factors including the sad state of unionized industries, such as autos and steel; the ability of many successful companies to persuade employees that they are better off without unions; and the adoption in recent decades of employment laws that provide some of the same protections as unions — without charging dues.

Even assuming a need for legislation to deter anti-union coercion and stalling by employers, the logical remedy is not to subject employees to pro-union coercion instead, as the card-check provision would do. The solution is to increase the penalties for employer coercion and other egregious misconduct very substantially — although not as dramatically as another of the bill’s provision would do — and to give the National Labor Relations Board the means to ensure fair and expeditious elections while eliminating its own flagrant delays in deciding disputes.

Congress should also consider empowering the NLRB to certify unions that have shown enough majority support to suggest that they would win a fair secret-ballot election absent clearly established employer intimidation.

In the words of Sen. Arlen Specter, R-Pa. — one of the moderates at whom employers and unions are directing at least $200 million worth of persuasion — Congress needs to adopt stronger remedies against cheating by passing legislation "that focuses on securing employees’ freedom of choice in the workplace, rather than on serving the interests of unions or employers."

The complaints about employer propaganda during election campaigns are simply not persuasive. Anti-union propaganda is no less legitimate than pro-union propaganda. One person’s propaganda is another’s free speech. And the labor laws already address the risk of propaganda being tinged with intimidation by placing strict — perhaps unduly strict — limits on employer communications with employees.

Union organizers can approach employees in their homes, in bars, or anywhere else, without the employer’s knowledge, with visions of better wages, benefits, and working conditions. Employers, on the other hand, can approach employees only in the workplace, and cannot predict ("threaten") that they will close up shop if the union wins — no matter how accurate the prediction might be.

Even when an employer is heavy-handed in pressing its case, employees are free to vote against it without fear of being found out. But the card-check bill would make it impossible for an employee to oppose the union without the union finding out.

The measure’s second radical provision would allow arbitrators to dictate wages, hours, conditions of employment, and other terms if an employer and a union cannot agree on a contract. Specifically, if no agreement is reached within 130 days of a union’s request for bargaining and then for mediation, arbitrators could impose contractual terms for a two-year period.

This would be a revolutionary change. While the National Labor Relations Act has required employers for more than 60 years to bargain in good faith, it has never authorized officials to impose contract terms or order employers to make concessions — and for good reason.

The bill’s supporters say that mandatory arbitration is necessary because more than a third of newly certified unions never succeed in getting the employers to agree to contracts. They complain that many employers go through the motions of bargaining with no intention of reaching agreement.

The government’s role is to guarantee the right to strike so that unions can use raw economic power to force concessions.

This may well be true. But it is not new. The premise of U.S. labor law has long been that the government should not take sides in labor disputes or impose terms on recalcitrant employers, but rather should guarantee the right to strike so that unions can use whatever raw economic power they possess to force concessions.

It may be regrettable that unions often lack the power to win generous contracts. But this proposed cure would be worse than the disease. It would assign arbitrators to make business decisions for which they are little better qualified than lawyers are to perform surgery. One consequence would be to give employers and unions alike incentives to spurn compromise and take extreme positions in the expectation that arbitrators will split the difference.

More broadly, while employees’ rights to unionize are an essential source of leverage to extract a fair share of the fruits of their labor from profit-maximizing employers, it does not follow that the more unions, the better. Even the best unions often introduce inefficiencies such as the thousands of pages of work rules imposed by the United Auto Workers during its heyday.

The most enlightened employers are those that fend off unionization by giving their employees everything that they could get through a union without raising labor costs so high as to lose the competitive edge and profitability on which their employees’ long-run job security depends.

And the worst economic crisis since the 1930s would be an odd time to shift the balance of power so far in favor of unions as to risk sending such employers the way of General Motors.

This article appeared in the Saturday, March 21, 2009 edition of National Journal.

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Things are not going so well for those of us who fear that the Lilly Ledbetter Fair Pay Act, which President Obama co-sponsored as a senator and signed on Thursday, and other job discrimination bills in the congressional pipeline may be bad for most workers and may benefit mainly lawyers.

Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim.

These measures seem likely to make it harder than ever for employers to defend themselves against bogus (as well as valid) discrimination claims, effectively adding to the cost of each new hire.

This would be justified if job discrimination were indeed pervasive. But the evidence suggests otherwise. Study after study has, for example, cast grave doubt on what appears to be the myth that sex discrimination in the workplace remains rampant more than 40 years after Congress adopted one law broadly banning job discrimination and another requiring equal pay for women and men doing equal work.

Congressional Democrats, liberal groups, and the media have thoroughly distorted the facts underlying the Ledbetter law to advance their agenda of opening the door wide to all manner of job-discrimination lawsuits.

The new law will virtually wipe out the 300-day time limit (180 days in Alabama and some other states) during which employees can file claims of discrimination under Title VII of the 1964 Civil Rights Act. Disgruntled employees will now be free to wait many years before hauling employers into court for supposedly discriminatory raises, promotions, or any other actions affecting pay.

The longer the wait, the more difficult it will be for the employer to contest an employee’s one-sided and perhaps false account of the case, because key witnesses may have retired or died and records such as performance evaluations may have been discarded.

Indeed, some of the Ledbetter law’s vague language could be construed as opening the doors for people to sue a company even years after retiring, on the theory that each new pension check is too small because of some claim of discrimination by some long-since-departed (or dead) supervisor.

This law represents an overreaction to a May 2007 Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Co., that provoked an explosion of ill-informed media outrage and propelled the losing party, retired Goodyear employee Lilly Ledbetter of Alabama, to a speaking role at last year’s Democratic National Convention.

The 5-4 decision reasonably (if debatably) held that the 180-day time limit for Ledbetter to file her Title VII claim had started running with the most recent act of intentional discrimination that affected her pay in the ensuing years. Ledbetter had argued — and the new law now provides — that the 180-day clock should restart with each new paycheck.

For this, the conservative majority was widely reviled as having denied any remedy to Ledbetter, because employees often don’t know what their co-workers are paid and thus might not learn that they are victims until more than 180 (or 300) days after the supposed discrimination occurred.

But some critical facts — ignored by the media and Congress — belie their portrayal of the case, as detailed in my June 9, 2007, column.

First, Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim for back pay, compensatory, and punitive damages. Second, by that time a key supervisor — whom she belatedly accused of holding down her pay raises after she rejected his sexual advances — had died. Third, Ledbetter chose not to pursue a claim under the Equal Pay Act of 1963, which has a much longer time limit (three years) than Title VII but does not (yet) provide for big-bucks damage awards.

Fourth, her years of poor performance evaluations, plus repeated layoffs that affected her eligibility for raises, convinced a federal magistrate judge (although not the jury) that her relatively low pay did not prove sex discrimination. Maybe Ledbetter was a victim of discrimination, as the jury found. Maybe not. The evidence is too stale to allow for a confident conclusion — which is one reason the justices ruled against her.

That said, it would have been reasonable for Congress to amend Title VII by specifying (as some lower courts have held) that the clock does not start running until the employee is or should be aware that she is earning less than co-workers.

Instead, Congress chose to shift the balance dramatically against employers by effectively eliminating time limits for filing all manner of discrimination claims that have some impact on pay.

Another bill that may reach President Obama is the House-passed Paycheck Fairness Act. Its confusingly worded amendments to the Equal Pay Act of 1963 seem designed — or at least likely — to force pay raises for women who have never been victims of anything that most people would call discrimination.

The bill would, for example, expose an employer to liability for paying a woman less than a man in a similar job unless the employer can convince a jury that the differential is "job related" and "consistent with business necessity" — and also that no "alternative employment practice exists that would serve the same business purpose."

What’s that parade of nebulosities supposed to mean? I think it would invite judges and juries to go beyond providing remedies for real discrimination and to play Robin Hood by second-guessing justifiable pay disparities. It would force some employers who are entirely innocent of sex discrimination to settle unwarranted lawsuits.

An employer that has long paid higher salaries to employees with more experience or better scores on written tests of their job-related skills might be hit for a big damage award for failing instead to provide special training for inexperienced women or to use a different test.

A very big damage award, perhaps: The Paycheck Fairness Act would allow unlimited awards of both compensatory and (in cases of "reckless indifference") punitive damages. Other proposals likely to emerge during this Congress would eliminate the current caps on damages in Title VII lawsuits as well.

Worse, the Paycheck Fairness Act would allow lawyers to include masses of women who have little or no interest in suing in class-action lawsuits, excepting only those who go to the trouble of "opting out." This is a formula for lawyer-generated lawsuits to extort millions of dollars from companies without proving that they ever intentionally discriminated against anyone.

One of the myths underlying this bill is that, as then-Sen. Hillary Rodham Clinton of New York said on January 8: "It is disgraceful that… women in this country still earn only 78 cents on the dollar" earned by men.

No, it’s not disgraceful. Nor is it true that "in many instances, the pay disparities can only be due to continued intentional discrimination or the lingering effects of past discrimination," as stated in the findings attached to the Paycheck Fairness Act.

Labor Department data and academic studies show that much of the male-female pay differential is explained by such factors as disproportionate child-rearing and caregiving responsibilities.These cut into women’s working hours and motivate many to sacrifice higher pay for shorter hours and the flexibility to take career breaks.

The data also demonstrate that women who work 40 hours a week make 88 percent as much as men who work 40 hours. Economics professor June O’Neill of Baruch College reported in a 2003 article that the female-to-male wage ratio rises to 95 percent when other data — on child-related factors, demographics, academic majors, work experience, and occupational characteristics — are also taken into account. The "gender gap can be explained to a large extent by nondiscriminatory factors," O’Neill concluded.

"Men and women generally have equal pay for equal work now — if they have the same jobs, responsibilities, and skills," wrote Diana Furchtgott-Roth of the conservative free-market Hudson Institute. She added, in a January 21 commentary published by Reuters, that the 5.9 percent unemployment rate for adult women is lower than the 7.2 percent for adult men.

This is not to suggest that sex discrimination is no longer a serious problem. I worry that my two daughters may run into the barriers that still lurk in some unknown percentage of workplaces. But I worry more that they and their peers will have a harder and harder time finding jobs in the first place if the government burdens employers with lawsuits that make it more and more expensive to bring in new hires.

CORRECTION: The original version of this column misspelled Diana Furchtgott-Roth’s name.

This article appeared in the Saturday, January 31, 2009 edition of National Journal.

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Stuart, first, just explain what exactly did the court do today?

STUART TAYLOR, National Journal: Strictly speaking, all they did was nine simple words; the petition for a writ of certiorari is denied. What that means is we’re not going to hear this case. They issued it without comment and without dissent. They didn’t say why they weren’t going to hear it. Typically, they do that hundreds–thousands of times each year, and it’s usually not–it’s never a precedent, a national precedent when they do it, and it’s usually not much of a news event. This time, I think, because of the vast importance of this case it is a substantial news event.

MARGARET WARNER: All right. Explain what you mean when you say it isn’t a precedent?

STUART TAYLOR: That means that in lower courts that lower courts around the country are not bound by what the court did today. The U.S. Court of Appeals from the 9th Circuit upheld the constitutionality of Proposition 209, and in the western states that are within its jurisdiction that is now law. But let’s say if Florida–which has thought about adopting a similar measure–does so–and there’s a challenge there, the federal courts in that part of the country will not be banned by what the Supreme Court did today. They will at least theoretically have the option of saying, well, we think it’s unconstitutional. In that sense the argument is not resolved for all time.

MARGARET WARNER: And what is the significance of the court not making any comment whatsoever? They could have made some written comment.

STUART TAYLOR: They rarely make any comment when they refuse to hear a case, and so that would be exceptional. I think what it shows in a practical sense, if we can get away from the technicalities of the law for the moment, is that there were not a majority of the current court that was troubled by what California had done in a legal sense? It seems that a majority of this court was not ready to say that’s unconstitutional and was prepared to defer to the voters of California when they said for the first time–the voters of any state have ever said–no more state affirmative action racial or gender preferences, which is what Proposition 209 said.

MARGARET WARNER: And what did this court of appeals say in upholding that? What was the basis on which the court of appeals in April said this is constitutional?

STUART TAYLOR: In essence, the court of appeals said, here we have a law that says it’s illegal for the state to discriminate against or grant preferential treatment to people in state programs on the basis of race or gender. And it is challenged under the 14th Amendment, Equal Protection clause, which basically says you’re not supposed to discriminate on the grounds of race or gender, among other things, with some exceptions. The court made it clear they thought the argument was a little bit absurd for why a law that says you can never discriminate on grounds of race–in California–would violate a state constitutional provision–a federal constitutional provision that’s been construed to mean you can almost never discriminate on grounds of race and gender. And they used strong language to demonstrate that they thought that the argument–and these are their words–teeters on the brink of incoherence. So the 9th Circuit basically said, of course, it’s constitutional. Why would anybody think it wasn’t?

MARGARET WARNER: So now what is–back to the practical effect–what’s the practical effect of this, first of all, in California?

STUART TAYLOR: The practical effect–nothing dramatic will happen tomorrow because the law had–the Proposition 209 had already been allowed to go into effect this summer when a stay was allowed to expire. And there are lots of technical battles to be fought as to whether the city of San Francisco, for example, which hates this proposition, its government, and wants to continue granting preferences to minority contractors, will have to stop doing so. There will be lots of foot-dragging. There will be lots of arguments, some rather technical, some rather substantial, about how far this reaches and what its actual impact is. In the long run it means that racial preferences of the kind that have been testified in the name of affirmative action for many years and gender preferences are illegal in California.

MARGARET WARNER: And does it also mean they’re illegal in the other states covered by this ninth circuit?

STUART TAYLOR: No, it does not. And I should amend what I just said a moment ago. I spoke a little too broadly. Racial preferences by the state are now illegal in California.

MARGARET WARNER: And when you say by the state, do you also include county and city governments, or just state?

STUART TAYLOR: Yes. County and city governments but a private employer, for example, is just as free tomorrow as they were yesterday, or before 209, to hire on a preferential basis if they want to, if they think, gee, we ought to have more people of color here, and we think that we’ve had a past discrimination, we ought to remedy it. They can do that. The state and the local governments no longer can do that. It only affects California unless or until other states’ electorates adopt similar measures.

MARGARET WARNER: All right. Now, does this preclude a legal challenge by say an individual who has a very specific case? You know, we’ve got to work for the fire department or didn’t get a job with the fire department and wants to sue the state on this basis. I mean, does it preclude all of that, or could an individual still bring an action?

STUART TAYLOR: It does not. It certainly has nothing to do with whether an individual can sue or say I’ve been the victim of discrimination and, therefore, I want a job. They can still do that. What it does do is it says that unless federal law says you’re entitled to a racial preference as a remedy, then that’s not a remedy available to the state courts. In theory, if a federal court says we think the only way to remedy some pervasive pattern of discrimination at the XYZ Police Department, for example, is to have a racial quota for hiring, which the court did once in its history in a case in Alabama, that would override the state law.

MARGARET WARNER: You mean they could do that, or they could not do that?

STUART TAYLOR: Federal law overrides state law and, therefore, if a federal court finds that federal law requires a racial preference, than that would override 209; however, the Supreme Court is not likely to find that that happens very often.

MARGARET WARNER: All right. Stuart, thanks very much.

STUART TAYLOR: Thank you.

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Then the 18-year-old got into the red 1982 Nissan Sentra that his McDon¨ald’s earnings had paid for and headed for his home town of Estacada, 19 miles away.

A few miles down Highway 224, Frederic Faverty was en route to a job trimming the shoes on a horse when he no¨ticed the red car coming toward him, taking a curve wide. It drifted over the double line-and came straight at him. Faverty swung right, too late.

The head-on crash demolished Theurer’s light compact and flipped Faverty’s tan 1979 Chevrolet Suburban truck onto its side. The 40-year-old Faverty was badly hurt, with extensive leg, hip, and ankle injuries.

Matt Theurer died on impact. The in¨vestigating officer reported that Theurer had apparently fallen asleep at the wheel.

Almost three years later, on March 29 of this year, a Multnomah County circuit court jury concluded that the accident was the fault of McDonald’s. Finding after a five-day trial that the company had negligently worked Theurer such long hours that he was a hazard on the road, the jury awarded Faverty $400,000 in damages, by a 9-to-3 vote.

Less than a week later Theurer’s mother filed a $10 million wrongful death suit against McDonald’s, seeking punitive damages for wanton disregard of the safety of her son and society at large. Her case has not yet gone to trial.

All this quickly raised alarms among employer groups: Yet another crazy jury verdict, less spectacular than some, per¨haps, but menacing to employers everywhere. "It’s like putting someone’s boss in the position of being their parents and de¨ciding when they should go home to bed," Mona Zeiberg, senior labor counsel for the U.S. Chamber of Commerce, told The Wall Street Journal The next thing, added John Sullivan, president of the Association for California Tort Reform, will be a law suit blaming an employer for "an em¨ployee who leaves work mad and then causes an accident."

Michael Lowery, a corporate attorney for McDonald’s-which is appealing the verdict-said in a letter in response to questions about the case that "the potential consequence… is that an employer would be required to check the physical condition of every employee before the employee leaves work and make a deter¨mination as to whether the employee may pose a danger to himself or others… [This] establishes an insuperable burden upon all employers."

That’s a bit overheated. But the Faverty verdict, if upheld on appeal, will represent a new high-water mark in employer liability for havoc wrought by off-duty employees. A review of the case, including interviews with 11 of the jurors, shows how tort liability tends to expand-in tiny increments, each understandable in context-toward any deep pocket with an indirect connection to someone else’s injury.

The most obvious risk here is to fast-food chains like McDonald’s, as well as small Mom-and-Pop establishments, that employ lots of teenagers, often at night. The broad theory of negligence in the Faverty case could also, however, reach thousands of other employers-hospitals, law firms, re¨tailers, factories, newspapers, construction companies, and more-whose employees sometimes drive home after working themselves to the point of exhaustion.

Whether Faverty V. McDonald’s repre¨sents the march of progress or liability run amok is debatable. But it cannot be dis¨missed as an example of jurors gone mad-or of a lawyer blowing his case, for that matter. Rather, the case represents law gone squishy in a quest to provide a remedy for every wrong. It extends a decades-old trend in which liability-limiting black letter rules are disappearing into the widening maw of common law negligence theory.

The result is that judges are asking juries to make ever more subjective judgments of law about individual suffering and corporate responsibility, with no mandate to consider the social costs of imposing liability.

Faverty filed his lawsuit in January 1990, 21 months after the accident. He was represented by Robert Neuberger, a 38-year-old associate with Portland’s Pozzi Wilson Atchison O’Leary & Conboy.

While Neuberger declines to discuss his consultations with his client, it’s clear enough from the record why any good plaintiffs lawyer would have seen McDonald’s as a logical target.

Theurer had only $25,000 in automobile liability coverage, the minimum required by state law. And Faverty had no medical or disability insurance. While he collected the $25,000, it did not come close to covering his more than $50,000 in past and projected medical expenses, let alone lost income, permanent impairment, and pain and suffering. Neuberger says he did not consider suing Theurer’s family; it would have made little sense, since Theurer’s fa¨ther was dead, and his mother, Helen Jean Krushwitz, had little money and would have had an obvious claim on the jury’s sympathy.

That left McDonald’s. And the restaurant where Theurer had worked, in a southeastern suburb of Portland, was owned and operated by McDonald’s Corporation, not just a local franchisee. Pockets don’t come much deeper.

Neuberger made no claim that Theurer was acting "within the scope of his employment at the time of the ac¨cident, or that McDonald’s was liable for Theurer’s negligence under the usual principle of vicarious liability for the on-the-job torts of employees. The lawyer dropped his initial claims that McDonald’s had violated Oregon labor laws and had been negligent in failing to stop Theurer from driving away that morning.

The latter claim, Neuberger feared, might prompt a ruling by Judge Harl Haas, the trial judge, or an appellate court that McDonald’s had no right, and thus no duty, to tell Theurer what he could do on his own time.

Neuberger decided instead to let the idea that McDonald’s should have dissuaded Theurer from driving emerge during the trial without nam¨ing it as a cause of action. "I could get to the same place without having to take a risk,” he explains.

So, as Neuberger conceived and presented it, Faverty’s was a classi¨cally simple negligence claim, just like those finding taverns and social hosts liable for serving liquor to drunks who then get into accidents.

As he sums up his argument: "McDonald’s failed to exercise reasonable care by scheduling this young Mr. Theurer to work more hours than was reasonable under the circumstances. What in the world are they doing scheduling a high school kid on a school night to work this kind of shift?" It was just another case of failing to take due care to prevent a foreseeable danger.

"I don’t give myself a lot of credit," the lawyer adds. "I just kind of did what was obvious." Obvious, but nonetheless bold: As McDonald’s has stressed in seeking dismissal of the case, and will stress on appeal, no case in Oregon or in the United States, at least none that Neuberger was able to find, had held an employer liable for an employee’s off-duty accident on facts like these.

A suit like Faverty’s would have been dismissed out of hand 25 years ago by virtually any court in the United States. Under common law tort and agency doctrine, employers were liable only for the on-the-job torts of employees. They were not re¨sponsible for employees’ actions go¨ing to and coming from work, because they had no right-and thus no duty-to control them. Nor did they have any general duty to make sure employees got adequate rest, beyond complying with labor laws. Period. Any unreasonableness on the part of McDonald’s in scheduling Theurer’s work would have been irrelevant.

Even now the Faverty verdict is highly unusual. The closest parallels Neuberger could find to the Faverty case involved employer conduct worse than anything McDonald’s had done. A few decisions involved em¨ployers who provided liquor to em-ployees at company parties. The only case involving fatigue from overwork was a 1983 decision by the West Virgina Supreme Court of Appeals that an employer could be held liable for a tired worker’s accident driving home, but only in the most extraordinary circumstances. In that case, the employer had forced a 19-year-old employee to clear track for 27 hours straight after a train derailment, even though the employee repeatedly complained of fatigue and said he wanted to go home. Then the em¨ployer had taken him to his car to start a 50-mile drive home.

While Neuberger lacked a prece¨dent directly on point, he did have some solid building blocks, supplied by the tort liability explosion that be¨gan in the early 1960s. The Oregon Supreme Court in particular has re¨pudiated old rules of proximate cause and other limitations on negligence liability to remote parties. In 1987, for example, Chief Justice Hans Linde (now retired), ruling that a school could be liable to a 15-year-old student who was abducted just outside the school entrance and raped, held broadly that no matter how remote the relationship be¨tween plaintiff and defendant, or how indirect the chain of causation, juries should generally have wide leeway in deciding whether a defendant "unrea¨sonably created a foreseeable risk" to the public at large.

In three motions before and after the trial seeking to dismiss the case, McDonald’s, represented by Donald McClain of Portland’s two-lawyer McClain & Rayburn, contended that because of the special nature of the employer-employee relationship, the company could not be held liable even if it had been negligent in scheduling Theurer’s work. (Neither McClain nor an official McDonald’s spokesperson would consent to be interviewed about any aspect of the case while the appeal is pending; at press time no briefs had been filed.)

McClain’s motions, resting on recitation of old case law with little policy analysis, were summarily rejected (without written opinions) first by Judge Gerald Pullen and later by Judge Haas, who once did plaintiffs personal injury work himself.

McDonald’s never made a settle¨ment offer, according to Neuberger. Did this suggest they were over¨confident? "I have no idea what their thinking was," Neuberger responds.

A GRUELING SCHEDULE

The five-day trial began Monday, March 25. Most jurors say the case was well-lawyered on both sides, with the 38-year-old Neuberger smoothly shaping the facts to appeal to the jurors’ sympathies, and the 55-year-old McClain appropriately businesslike and matter-of-fact. (While some ju¨rors lavish praise on Neuberger, two who ended up voting against McDon¨ald’s say they nonetheless preferred McClain’s soft-spoken courtroom style. One of the two, Pat Weiler, criticizes Neuberger for "working on the sympathy angle.")

Neuberger says his strategy was as simple as his theory of liability: "The old truism is, don’t talk about policy, talk about facts," he says. "This case more than any other I’ve had shows that old truism still holds." The most salient facts, which Neuberger re¨duced to a chart and drummed into the jurors’ consciousness, were the hours kept by Matt Theurer in his last days, from Sunday, April 3, to Tuesday, April 5, 1988:

Sunday: Working at McDonald’s, 6 to 11:30 p.m.; home after midnight.

Monday-Tuesday: Up at 6:30 A.M.; spent morning with younger brother and friend; school; working at McDonald’s, 3:30 to 7:30 P.M., returning at midnight to work until 8:21 A.M. on Tuesday.

Tuesday was another school day, but Theurer never got there. By about 8:40 A.M., he was dead.

This schedule, Neuberger stresses, should have "raised red flags" among the managers. It left Theurer with no sleep in the last 26 hours of his life, and only seven hours of sleep in his last 48 hours, as he shuttled from work to home to school to work.

There was testimony from Bernhard Thoensen, the investigating of¨ficer, that Theurer had apparently fallen asleep at the wheel, minutes af¨ter telling the manager, Brian Parish, he was tired. Two expert witnesses, a physician and an occupational safety expert, reinforced Thoensen’s common-sense deduction.

Theurer’s brother, his former girlfriend and her mother, and a school counselor all testified that they had all been concerned, for months before the accident, about his chronic fatigue from juggling work at McDonald’s with school.

One message this sent to the jury was that Parish and other managers at McDonald’s should have noticed this too, especially given the evidence indicating that they were aware Theurer drove 19 miles to and from his home town of Estacada. The same witnesses also gave the jurors a feel for Matt Theurer the person, a small-town, middle-class youth who planned to join the military.

"He sounded like really a nice, outgoing, friendly boy who had a great future ahead of him," recalls juror Claudia Dockter, "and it was just tragic what happened." Faverty and his wife, who had to quit her job to care for him full time for four months after he came home in a wheelchair, tugged at the jurors’ sympathies just by being there.

"He just looked like an honest, hardworking guy," recalls juror Tom Berguin. "His work record was great. …You had his neighbors there tell¨ing what a great guy he was… His wife was there, [they were] just like a normal couple. He presented himself fine. He had a good sense of humor… I really wanted to help this guy. He had a lot of pain.”

Faverty told of spending 17 days in the hospital and more than four months at home before he could walk or do any work. The accident had left him with severe leg, hip, and ankle injuries. He was disabled from doing any work requiring strong legs, including the new business as a farrier (a shoer of horses) that he had started a few months before. (Faverty now works as an order-writer for wholesalers of hardware and other merchandise.)

The most damaging witness against Mc…

High school senior Matthew Theurer punched out at & 8:21 A.M. on Tuesday, April 5, 1988, after spending thenight cleaning deep-fat fryers at a McDonald’s in Portland, Ore- gon. He had volunteered for the A all-nighter between two school days. But now he was tired, Theurer told the manager, who granted him relief from his shift later that day.

Then the 18-year-old got into the red 1982 Nissan Sentra that his McDon¨ald’s earnings had paid for and headed for his home town of Estacada, 19 miles away.

A few miles down Highway 224, Frederic Faverty was en route to a job trimming the shoes on a horse when he no¨ticed the red car coming toward him, taking a curve wide. It drifted over the double line-and came straight at him. Faverty swung right, too late.

The head-on crash demolished Theurer’s light compact and flipped Faverty’s tan 1979 Chevrolet Suburban truck onto its side. The 40-year-old Faverty was badly hurt, with extensive leg, hip, and ankle injuries.

Matt Theurer died on impact. The in¨vestigating officer reported that Theurer had apparently fallen asleep at the wheel.

Almost three years later, on March 29 of this year, a Multnomah County circuit court jury concluded that the accident was the fault of McDonald’s. Finding after a five-day trial that the company had negligently worked Theurer such long hours that he was a hazard on the road, the jury awarded Faverty $400,000 in damages, by a 9-to-3 vote.

Less than a week later Theurer’s mother filed a $10 million wrongful death suit against McDonald’s, seeking punitive damages for wanton disregard of the safety of her son and society at large. Her case has not yet gone to trial.

All this quickly raised alarms among employer groups: Yet another crazy jury verdict, less spectacular than some, per¨haps, but menacing to employers everywhere. "It’s like putting someone’s boss in the position of being their parents and de¨ciding when they should go home to bed," Mona Zeiberg, senior labor counsel for the U.S. Chamber of Commerce, told The Wall Street Journal The next thing, added John Sullivan, president of the Association for California Tort Reform, will be a law suit blaming an employer for "an em¨ployee who leaves work mad and then causes an accident."

Michael Lowery, a corporate attorney for McDonald’s-which is appealing the verdict-said in a letter in response to questions about the case that "the potential consequence… is that an employer would be required to check the physical condition of every employee before the employee leaves work and make a deter¨mination as to whether the employee may pose a danger to himself or others… [This] establishes an insuperable burden upon all employers."

That’s a bit overheated. But the Faverty verdict, if upheld on appeal, will represent a new high-water mark in employer liability for havoc wrought by off-duty employees. A review of the case, including interviews with 11 of the jurors, shows how tort liability tends to expand-in tiny increments, each understandable in context-toward any deep pocket with an indirect connection to someone else’s injury.

The most obvious risk here is to fast-food chains like McDonald’s, as well as small Mom-and-Pop establishments, that employ lots of teenagers, often at night. The broad theory of negligence in the Faverty case could also, however, reach thousands of other employers-hospitals, law firms, re¨tailers, factories, newspapers, construction companies, and more-whose employees sometimes drive home after working themselves to the point of exhaustion.

Whether Faverty V. McDonald’s repre¨sents the march of progress or liability run amok is debatable. But it cannot be dis¨missed as an example of jurors gone mad-or of a lawyer blowing his case, for that matter. Rather, the case represents law gone squishy in a quest to provide a remedy for every wrong. It extends a decades-old trend in which liability-limiting black letter rules are disappearing into the widening maw of common law negligence theory.

The result is that judges are asking juries to make ever more subjective judgments of law about individual suffering and corporate responsibility, with no mandate to consider the social costs of imposing liability.

Faverty filed his lawsuit in January 1990, 21 months after the accident. He was represented by Robert Neuberger, a 38-year-old associate with Portland’s Pozzi Wilson Atchison O’Leary & Conboy.

While Neuberger declines to discuss his consultations with his client, it’s clear enough from the record why any good plaintiffs lawyer would have seen McDonald’s as a logical target.

Theurer had only $25,000 in automobile liability coverage, the minimum required by state law. And Faverty had no medical or disability insurance. While he collected the $25,000, it did not come close to covering his more than $50,000 in past and projected medical expenses, let alone lost income, permanent impairment, and pain and suffering. Neuberger says he did not consider suing Theurer’s family; it would have made little sense, since Theurer’s fa¨ther was dead, and his mother, Helen Jean Krushwitz, had little money and would have had an obvious claim on the jury’s sympathy.

That left McDonald’s. And the restaurant where Theurer had worked, in a southeastern suburb of Portland, was owned and operated by McDonald’s Corporation, not just a local franchisee. Pockets don’t come much deeper.

Neuberger made no claim that Theurer was acting "within the scope of his employment at the time of the ac¨cident, or that McDonald’s was liable for Theurer’s negligence under the usual principle of vicarious liability for the on-the-job torts of employees. The lawyer dropped his initial claims that McDonald’s had violated Oregon labor laws and had been negligent in failing to stop Theurer from driving away that morning.

The latter claim, Neuberger feared, might prompt a ruling by Judge Harl Haas, the trial judge, or an appellate court that McDonald’s had no right, and thus no duty, to tell Theurer what he could do on his own time.

Neuberger decided instead to let the idea that McDonald’s should have dissuaded Theurer from driving emerge during the trial without nam¨ing it as a cause of action. "I could get to the same place without having to take a risk,” he explains.

So, as Neuberger conceived and presented it, Faverty’s was a classi¨cally simple negligence claim, just like those finding taverns and social hosts liable for serving liquor to drunks who then get into accidents.

As he sums up his argument: "McDonald’s failed to exercise reasonable care by scheduling this young Mr. Theurer to work more hours than was reasonable under the circumstances. What in the world are they doing scheduling a high school kid on a school night to work this kind of shift?" It was just another case of failing to take due care to prevent a foreseeable danger.

"I don’t give myself a lot of credit," the lawyer adds. "I just kind of did what was obvious." Obvious, but nonetheless bold: As McDonald’s has stressed in seeking dismissal of the case, and will stress on appeal, no case in Oregon or in the United States, at least none that Neuberger was able to find, had held an employer liable for an employee’s off-duty accident on facts like these.

A suit like Faverty’s would have been dismissed out of hand 25 years ago by virtually any court in the United States. Under common law tort and agency doctrine, employers were liable only for the on-the-job torts of employees. They were not re¨sponsible for employees’ actions go¨ing to and coming from work, because they had no right-and thus no duty-to control them. Nor did they have any general duty to make sure employees got adequate rest, beyond complying with labor laws. Period. Any unreasonableness on the part of McDonald’s in scheduling Theurer’s work would have been irrelevant.

Even now the Faverty verdict is highly unusual. The closest parallels Neuberger could find to the Faverty case involved employer conduct worse than anything McDonald’s had done. A few decisions involved em¨ployers who provided liquor to em-ployees at company parties. The only case involving fatigue from overwork was a 1983 decision by the West Virgina Supreme Court of Appeals that an employer could be held liable for a tired worker’s accident driving home, but only in the most extraordinary circumstances. In that case, the employer had forced a 19-year-old employee to clear track for 27 hours straight after a train derailment, even though the employee repeatedly complained of fatigue and said he wanted to go home. Then the em¨ployer had taken him to his car to start a 50-mile drive home.

While Neuberger lacked a prece¨dent directly on point, he did have some solid building blocks, supplied by the tort liability explosion that be¨gan in the early 1960s. The Oregon Supreme Court in particular has re¨pudiated old rules of proximate cause and other limitations on negligence liability to remote parties. In 1987, for example, Chief Justice Hans Linde (now retired), ruling that a school could be liable to a 15-year-old student who was abducted just outside the school entrance and raped, held broadly that no matter how remote the relationship be¨tween plaintiff and defendant, or how indirect the chain of causation, juries should generally have wide leeway in deciding whether a defendant "unrea¨sonably created a foreseeable risk" to the public at large.

In three motions before and after the trial seeking to dismiss the case, McDonald’s, represented by Donald McClain of Portland’s two-lawyer McClain & Rayburn, contended that because of the special nature of the employer-employee relationship, the company could not be held liable even if it had been negligent in scheduling Theurer’s work. (Neither McClain nor an official McDonald’s spokesperson would consent to be interviewed about any aspect of the case while the appeal is pending; at press time no briefs had been filed.)

McClain’s motions, resting on recitation of old case law with little policy analysis, were summarily rejected (without written opinions) first by Judge Gerald Pullen and later by Judge Haas, who once did plaintiffs personal injury work himself.

McDonald’s never made a settle¨ment offer, according to Neuberger. Did this suggest they were over¨confident? "I have no idea what their thinking was," Neuberger responds.

A GRUELING SCHEDULE

The five-day trial began Monday, March 25. Most jurors say the case was well-lawyered on both sides, with the 38-year-old Neuberger smoothly shaping the facts to appeal to the jurors’ sympathies, and the 55-year-old McClain appropriately businesslike and matter-of-fact. (While some ju¨rors lavish praise on Neuberger, two who ended up voting against McDon¨ald’s say they nonetheless preferred McClain’s soft-spoken courtroom style. One of the two, Pat Weiler, criticizes Neuberger for "working on the sympathy angle.")

Neuberger says his strategy was as simple as his theory of liability: "The old truism is, don’t talk about policy, talk about facts," he says. "This case more than any other I’ve had shows that old truism still holds." The most salient facts, which Neuberger re¨duced to a chart and drummed into the jurors’ consciousness, were the hours kept by Matt Theurer in his last days, from Sunday, April 3, to Tuesday, April 5, 1988:

Sunday: Working at McDonald’s, 6 to 11:30 p.m.; home after midnight.

Monday-Tuesday: Up at 6:30 A.M.; spent morning with younger brother and friend; school; working at McDonald’s, 3:30 to 7:30 P.M., returning at midnight to work until 8:21 A.M. on Tuesday.

Tuesday was another school day, but Theurer never got there. By about 8:40 A.M., he was dead.

This schedule, Neuberger stresses, should have "raised red flags" among the managers. It left Theurer with no sleep in the last 26 hours of his life, and only seven hours of sleep in his last 48 hours, as he shuttled from work to home to school to work.

There was testimony from Bernhard Thoensen, the investigating of¨ficer, that Theurer had apparently fallen asleep at the wheel, minutes af¨ter telling the manager, Brian Parish, he was tired. Two expert witnesses, a physician and an occupational safety expert, reinforced Thoensen’s common-sense deduction.

Theurer’s brother, his former girlfriend and her mother, and a school counselor all testified that they had all been concerned, for months before the accident, about his chronic fatigue from juggling work at McDonald’s with school.

One message this sent to the jury was that Parish and other managers at McDonald’s should have noticed this too, especially given the evidence indicating that they were aware Theurer drove 19 miles to and from his home town of Estacada. The same witnesses also gave the jurors a feel for Matt Theurer the person, a small-town, middle-class youth who planned to join the military.

"He sounded like really a nice, outgoing, friendly boy who had a great future ahead of him," recalls juror Claudia Dockter, "and it was just tragic what happened." Faverty and his wife, who had to quit her job to care for him full time for four months after he came home in a wheelchair, tugged at the jurors’ sympathies just by being there.

"He just looked like an honest, hardworking guy," recalls juror Tom Berguin. "His work record was great. …You had his neighbors there tell¨ing what a great guy he was… His wife was there, [they were] just like a normal couple. He presented himself fine. He had a good sense of humor… I really wanted to help this guy. He had a lot of pain.”

Faverty told of spending 17 days in the hospital and more than four months at home before he could walk or do any work. The accident had left him with severe leg, hip, and ankle injuries. He was disabled from doing any work requiring strong legs, including the new business as a farrier (a shoer of horses) that he had started a few months before. (Faverty now works as an order-writer for wholesalers of hardware and other merchandise.)

The most damaging witness against McDonald’s may have been Dennis Dowrey, who had worked with Theur¨er on his last shift and recalled him looking "very, very tired" by about 5 A.M. that Tuesday. Taking the stand in a Navy uniform, Dowrey testified that he, Theurer, and other students were often so "exhausted" from working a grueling schedule of late shifts at McDonald’s that they would fall asleep in class.

Dowrey added that he had repeat¨edly nodded off at the wheel on the same road on which Theurer had died, on one occasion running his car into a ravine. He said that the supervisers at McDonald’s were well aware of all this, and knew that most of the stu-dents drove their own cars to work.

While there was no evidence that Theurer or Dowrey had been pressured to volunteer for the special all-night cleaning shift, Dowrey testified that "it’s hard to get more hours" unless you take whatever shifts are offered; he said Theurer had wanted to work as many hours as he could to pay for his car. Theurer was paid his usual wages -estimated by Neuberger at less than $5 an hour-for the all-night shift.

McClain sought to discredit Dowrey as a liar with a "gigantic chip on his shoulders against McDonald’s." But the damage was done. Dowrey had painted a picture of a company indifferent to the strains on its teenage workers. He had also, in Neuberger’s view, bolstered the suspicion that "there have got to be a lot of other incidents like this one, with as many restaurants -as McDonald’s has; we were just never able to find them.”

Neuberger also made McDonald’s look bad through the testimony of its own manager, Parish, who had to admit that it was not a great idea to schedule a high school student to work all night between two school days, and that there was no reason the special cleaning de¨tail could not have been done over a weekend.

Parish acknowledged (in deposition testimony that Neuberger used at the trial) that the company’s "Crew Members’ Handbook" for the Northwest region barred scheduling "split shifts," meaning more than one shift a day, and that it was not Parish’s normal practice to schedule students to work all night on school nights. Why not? asked Neuber¨ger. "Well, so people can get their rest," Parish responded.

Parish was technically correct in insisting that Theurer had not actually worked a split shift because he began work at midnight. But that sounded lame; several jurors say they con¨cluded that the restaurant had negli¨gently violated the spirit if not the let-ter of its own policies.

SCATTERSHOT DEFENSE

The defense case was somewhat scattershot-perhaps unavoidably, given the hand McClain had been dealt.

McClain first tried to cast doubt on the theory that Theurer had fallen asleep at the wheel. His expert witness, R. Curtis Graeber, a psychologist and accident investigator, said Theurer’s route just before the accident was so full of turns, traffic lights, and other stimuli as to make the falling-asleep theory improbable. McClain used Graeber and other witnesses to sug¨gest that maybe the accident happened because Theurer had the sun in his eyes, or maybe he was trying to pass and just didn’t see Faverty’s tan truck, or maybe one of his tires blew out.

None of these theories was very convincing, however. And when Neuberger elicited that Graeber was charging McDonald’s $2,500 a day, it raised some jurors’ eyebrows. "It was like he was being paid to play a role rather than to give an honest answer,” says juror Jacqueline Mouser.

Still less convincing was McClain’s effort to show that Faverty had been speeding, and thus contributorily negligent. Not one juror bought it.

The heart of the defense, though, was that even if Theurer did fall asleep at the wheel, McDonald’s was not his parent and was not responsible: Here was a legal adult who had a right to decide for himself when he was fit to work; who had volunteered for the allnight shift, with no pressure to do so; who had assured his managers he would take a nap first; and who had not appeared unusually tired to them.

Gary Quinsland, an assistant manager,, said Theurer had been the first to volunteer when he asked a group of employees three or four days before the special all-night cleaning detail whether anyone wanted to work the extra time. And Parish, the manager, recalled Theurer saying he would take a nap at a co-workers place nearby during his four-and-a-half hours of free time between shifts. Instead of napping, as it turned out, Theurer went out on a date that evening before coming in at midnight for the cleaning detail.

The closing arguments focused on the value judgments at the core of the case. "This kid should have been home and in bed by eleven o’clock," Neuberger contended. "And that is where McDonald’s blew it, because they should have known and they’re the ones that kept him up… They pushed Matt Theurer over the edge. . . . . . . . They didn’t have to make this kid work on an all-night shift on a school night. Common sense should have told them that. Common decency should have told them that."

Summing up, he went for the hearts of the jury: "You write the epitaph that goes on Matt Theurer’s tomb¨stone. You decide."

McClain countered: "We had a right to assume that Matt would take a nap. Assuming that, are we wrong in having him or allowing him to volunteer for a late shift?… In an employee-employ¨er relationship, eighteen means adult. …An employer cannot take over the private life of an employee… We have sixty, seventy employees; we can’t know exactly what all of them are up to… The great issue in this case is, is McDonald’s responsible for Matt Theurer’s life?"

The defense lawyer suggested that Theurer himself, his mother and his school were all more responsible than McDonald’s for his fatigue. "The real question," he added, "is, are we responsible because we’re working people late shifts and they’re in high school? That’s the real issue and it’s kind of a social issue, not really a le¨gal issue in this case."

In instructing the jury, however, Judge Haas gave no support to the no¨tion that the jury’s job was to resolve any broad "social issue." He also denied a defense request that he instruct the jury to compare the responsibility of McDonald’s with that of the dead youth, his mother, and his school, because they were not parties to the case.

Judge Haas’s instructions on the elements of negligence liability were simple, unvarnished, and apparently well-grounded in Oregon law, which gives jurors broad latitude in negligence cases, even when the defendant’s alleged fault is relatively minor. But eight jurors say they were highly significant-perhaps decisive-in funneling those who began on the fence toward a verdict for the plain¨tiff.

The jurors, who were given an audiotape of the instructions, replayed the crucial passage in the jury room: "First, was the defendant, McDon¨ald’s, negligent in working Matt Theurer more hours than was reason¨able under the circumstances existing when the defendant knew or in the exercise of reasonable care should have known that Matt Theurer would operate a motor vehicle and be a haz¨ard to himself and others? And fur¨ther, do you also find that that conduct was a substantially contributing factor in producing plaintiffs injuries?"

He went on to say, "You need not find that the conduct of the defendant was the only cause of the damage in this case." The judge gave a standard defi¨nition of negligence as violating the duty of "ordinary prudence" to avoid "reasonably foreseeable" harms.

Judge Haas gave the jurors a ver¨dict form with four questions: Was McDonald’s negligent and was its negligence a cause of damage to Faverty? Was Faverty negligent? If so, what was the percentage of negligence as between McDonald’s and Faverty? And what" are Faverty’s damages? Given the unanimous view on the jury that Faverty had not been negligent, everything rode on the first question.

Here was a clearly marked route that seemed to cut right through the general concerns stressed by McClain about whether it is fair to single out an employer for blame when an em¨ployee doesn’t get enough rest.

It also left those jurors who were inclined to assign some responsibility to Theurer’s family (and several say they were so inclined) with no legal basis for doing so, or for reducing any damage award against McDonald’s on the basis that it was not solely responsible.

PHILOSOPHY IN THE JURY ROOM

The eight women and four men of the jury deliberated from 12:25 to 3:10 p.m., taking lunch in the jury room. While it was a generally congenial group, there were strong disagreements, leading to sharp and emotional exchanges. These disputes, interviews with 11 of the jurors indicate, were rooted less in differing views of the evidence (although there were some) than in differing philosophies about in¨dividual and corporate responsibility for the cruel workings of fate.

The juror with the most prior jury experience, 51-year-old John Lorett, was named foreman. Then the group took an informal vote to see where everyone stood. It showed an even split, with six for upholding Faverty’s claim and six leaning against, or at least unpersuaded.

In discussions, deep divisions emerged between three or four jurors who were amazed that anyone would think the accident was the employer’s responsibility, and an equal number at the other extreme who were sure that the company had been negligent. Irma Wilson, for one, was full of anger at McDonald’s for scheduling a high school kid to work all night between school days. "I just don’t think McDonald’s should be able to get away with that kind of crap," she says. "They’re just absolutely using these high school kids for all they can get out of them."

That left the conflicted moderates, who felt that McDonald’s had overworked Theurer but were queasy about blaming his employer alone for his fatigue rather than assigning some responsibility to Theurer himself, or his mother, or his school.

The strongest advocates for the defense-none of whom thought McDonald’s entirely blameless-were Thomas Berguin, Diana Debray, Pat Weiler, and Edra Nohr. "I kind of agreed with the McDonald’s view that the employer shouldn’t get involved in the personal lives of its employees," recalls Berguin, a 30-year-old war¨ranty manager at Landa Corporation in Portland. Berguin says he felt that McDonald’s "could have used a little better judgment" than to let Theurer work that all-night shift. But was it the employer’s business to make sure he looked after himself, or carried out his plan to take a nap earlier that evening? "I asked myself, where is this kid’s mother?… Why is it up to McDonald’s?"

While he wanted to help Faverty, the case offended the libertarian in Berguin, the same side of him that bridles at Oregon’s mandatory seatbelt law even though he believes in wear¨ing seatbelts. "I’ve done that kind of thing at work, come in at eight in the morning and stay until eight-thirty in the evening, and I don’t expect my employer to be checking on me," he says. "And now am I going to have my employer telling me I can’t work overtime? Where is it going to stop? …Is it their job to know wnat I do in my off hours?"

Debray, 28 years old, who does the books for her father’s automotive radiator repair company, says she saw the case from the perspective of "a family that owns its own business." She says she urged the other jurors that "you need to draw a line" to pro¨tect employers from runaway liability. "I didn’t think McDonald’s used good judgment in doing their scheduling," adds Dtbray, "[but] I don’t think that makes them responsible for every¨thing that happens."

Weiler, a 52-year-old electronics technician at a Veterans Administration hospital, says he thought "the whole thing was bordering on the ri¨diculous." There’s nothing unusual about an employee working long hours and driving home "barely on the edge of consciousness," he says. "I know I’ve done it. I’m sure you have too."

Scoffing at the notion of some ju¨rors that McDonald’s was "something akin to a slave labor camp," Weiler stresses that Theurer was a legal adult who made his own choices: He vol¨unteered to work long hours because he wanted the extra money, and he decided to go "out with his girlfriend boogying" after telling management he would nap between shifts.

MOTHERS GET ON MCDONALD’S CASE

"My way of thinking," says Edra Nohr, a 44-year-old self-described laborer who declines to identify her employer, "is that if [employers] are going to be punished for that, they’re going to dictate what all us employees can do on our off time… It’s just going to put Big Brother more in our pocket." As a mother of two grown sons, says Nohr, she knows that "a young man that age is going to run himself down," one way or another. That’s not his employer’s fault, she says; that’s just life.

Other mothers on the jury didn’t see it that way. Jacqueline Mouser, Irma Wilson, and Claudia Dockter, who were among the most pro-Faverty jurors from the outset, agreed with Nohr that teenagers will run them¨selves down. But they contended that this places a special responsibility on employers-especially those like McDonald’s that hire lots of teenagers-not to work them too hard.

All three of these women were unimpressed by the company’s argument that it was entitled to treat any¨one past his eighteenth birthday as an adult, and to assume that Theurer would take a nap just because he said he would. And all three faulted Par¨ish, the restaurant manager, for letting Theurer drive away that morning. Neuberger’s strategy had worked: He had planted this theory of negligence in the jurors’ minds without risking a legal ruling on whether McDonald’s had any duty to stop Theurer from driving.

"Somebody should have asked, ‘Are you too tired to drive your car?’" fumes Wilson, a 64-year-old assembler at an automobile parts factory. Wilson says she hopes the verdict will teach McDonald’s and other employers to "stop working people this kind of hours."

"They kept saying that [because] he was eighteen, he was an adult, but that just wasn’t true," adds Dockter, a 40-year-old executive secretary at Blue Cross and Blue Shield of Oregon. "He did volunteer to work that shift, from what we understood. But they knew he was a high school student, they knew he was going right from there to school-I just don’t think that absolves them."

Other jurors wavered. Because most agreed that the cause of the ac¨cident was Theurer’s falling asleep at the wheel, the jury proceeded to the central question of whether McDonald’s had been negligent; in causing Theurer’s fatigue by overworking him. More jurors moved to the Faver¨ty camp-especially after the deliber¨ations came to focus on the judge’s instructions and verdict form, and somebody thought of replaying the tape.

Juror Teri Killaby, a 27-year-old registered nurse, says that at first, "I was divided in my own mind," and that she can’t recall for sure how she voted in the jury’s initial tally. "A lot of us didn’t like the idea that an em¨ployer could be liable for getting his employees to and from work," she recalls.

But that idea began to seem unavoidable. "The way the judge gave us the questions, it was like we didn’t really have a choice," says Killaby. "We all reviewed that over and over, and we even had to listen to the tape again, and I think that’s what changed a lot of people’s minds.”

More people became convinced that, as Killaby puts it, "McDonald’s [was] responsible in some way for breaking their own scheduling poli¨cies, so we all felt that yes, McDon¨ald’s shouldn’t have done that, and they were negligent in that respect. And [that] yes, they had some part in causing the deceased to fall asleep at the wheel."

Because the company employed so many high school students, Killaby and others argued, it needed to "hold some responsibility in their scheduling practices… and not schedule them on a school night all night and expect them to function."

Killaby pressed these points during the deliberations, becoming a leader (by several accounts) in urging fellow jurors to hold McDonald’s liable.

Asked what would have happened if the judge had simply instructed the jurors to do what they thought right, Killaby says with a laugh, "We’d probably still be in there, because there were some pretty headstrong people." Then she adds that it could "have gone the other way," and ended in a verdict for McDonald’s.

Other jurors also indicated they began with the conviction that employers simply weren’t responsible for making sure their employees got enough rest, but saw the issues differently when the judge focused them on the reasonableness of McDonald’s conduct under the circumstances.

"I thought at first that there was just no way McDonald’s could be lia¨ble," says John Lorett, the foreman. But the evidence convinced him that "there was no doubt that McDonald’s was working him more hours than they should have, especially on a school night." That fit right into the judge’s definition of negligence, Lor¨ett says.

The judge’s instructions helped break the logjam, say several jurors, including Alvin Loshbaugh, a 66-year-old retired glazier, Dockter, Mouser, Debray, Berguin, and Pat Weiler, who says, "It really seemed to me like he had put us in a funnel, so that we were extremely limited in what we could do." No one admitted to switching sides as a direct result of hearing the tape; Killaby and Berguin, however, both recall that Weiler and Lorett seemed to have done so.

Pat Weiler denies this, and insists that he held out for McDonald’s to the end. Yet according to the official record, Weiler definitely voted against McDonald’s when the jury was polled in court for the verdict. Only three jurors dissented in that vote, accord¨ing to the court reporter’s notes: Tom Berguin, Diana Debray, and Edra Nohr.

Although Berguin voted no, he admits now that the deliberations had moderated his views: "When we first heard what the case was about," he recalls, "I said to myself, ‘Man, people will sue over anything.’ " But by the end, he says, "I could see how people could think the other way."

The judge’s instructions had a lot to do with this change, Berguin says. "The way it was worded, it was really hard to say no… Were they [McDonald’s] at fault at all, any little bit?… Yeah, they should have known this kid’s schedule, they should have told him, ‘No thanks, Matt, don’t work.’

"I started seeing how these guys could say yes to [finding McDonald’s liable]," Berguin concludes, "but I still didn’t think it was right."

In the jury room, Berguin tried driving his concerns home with hypotheticals: Suppose we all stay here and deliberate until 10 P.M., and then one of us has an accident driving home, he asked pro-plaintiff jurors. Would that be the Multnomah County circuit court’s fault?

"That didn’t sway anyone," he recalls. "I got this impression that they were just stuck on this antiemployer thing, big employer versus the individual… The whole feeling I came away with is that the plaintiff, if he seems like a good guy, an average Joe …he’s got a good chance because those jurors are just like him, kind of pulling for him. They sympathize more with the plaintiff.”

Verna Misenhimer, a 49-year-old teacher’s aide, says she initially sided with McDonald’s, in part because she would have told her own son not to work all night on a school night and "I wanted to know more about the parental involvement here.

"My first feeling," says Misenhimer, "was, ‘Well, here’s an 18-year-old boy, why should McDonald’s be responsible for him?’… But by the end I thought, ‘Well, why not?’…It was important that he was a student. Perhaps because I am a mother, I thought that if he was my son I would appreciate it if they’d said he shouldn’t work this shift. Somebody’s got to take responsibility.

"You’d have to be a robot not to feel some emotion about the situa¨tion," Misenhimer adds. The more she thought about it, she says, the more it seemed to her that it had been "almost like letting a drunk go out on the road," and that "these companies should not let a person out to drive an automobile home with that lack of sleep."

After all, who else was there to blame for this, tragedy? Theurer’s mother was not a party to the case. Faverty was innocent of any contributory negligence. "Bad luck" was not listed as an option on the verdict form or in the judge’s instructions. In the face of Faverty’s suffering, the argu¨ments and hypotheticals raised by the defense and repeated by some jurors in the jury room seemed like harsh abstractions.

Irma Wilson, the 64-year-old fac¨tory worker, says she became espe¨cially incensed at the "cold-blooded" attitude of Diana Debray, who sat next to her. "Of course, she worked for a company over some other women," says Wilson. "I’ve never met such a hard person,"

Their exchanges became nasty. "I wanted to gag her," recalls Debray with a laugh. "She would interrupt you every time you started to say something, and I wanted to bonk her head. She was one of the little people who works for a big company who [thinks] that big companies are responsible for you totally, and big companies have a lot of money, so why shouldn’t you take some?"

"I WOULD HAVE GIVEN HIM A MILLION DOLLARS"

Once nine jurors (the minimum required by Oregon law) had agreed to find McDonald’s negligent, things moved swiftly.

Nobody thought Faverty had been at fault. That left the issue of dam¨ages. The $400,000 award (later re¨duced to $375,000 in light of Faver¨ty’s receipt of $25,000 from Theurer’s insurer) included $170,000 in eco¨nomic damages for Faverty’s medical expenses and lost earnings, and $230,000 for noneconomic damages, mainly pain and suffering.

While Faverty had documented some $53,000 in past and future med¨ical expenses, the rest of his damages were not quantifiable with precision. The $400,000 figure was a quick, rough compromise between jurors who wanted much more-"I would have given him a million dollars," says Irma Wilson-and those who doubted he should get anything at all.

According to Berguin, who participated in the discussion of damages al¨though he opposed liability, the total was increased by $100,000 or so after someone speculated that Faverty would probably have to pay his lawyer a contingent fee of at least 30 percent. (Neuberger declines to discuss his fee; he says Faverty will not comment while the appeal is pending.)

STAGE TWO: THE MOTHER SUES

McDonald’s moved in May for judgment notwithstanding the verdict or a new trial, raising arguments much like those in its earlier motions, with no more success. At press time the company was appealing to the Oregon Court of Appeals, the state’s intermediate appellate court.

Meanwhile, McDonald’s also faces the $10 million wrongful death suit by Theurer’s mother, Helen Jean Krushwitz, which has not yet gone to trial.

McDonald’s has moved to dismiss the Krushwitz suit as barred by the state workers’ compensation law. The company is being represented by Ronald Stephensen of Portland’s Bullivant, Houser, Bailey, Pendergrass & Hoffman. I. Franklin Hunsaker of the same firm is handling the Faverty ap¨peal for McDonald’s.

If the case does go to trial, McDonald’s should have a much better shot at winning than it did against Faverty. Theurer obviously had the primary responsibility for making sure he could drive safely, and was obviously negligent himself if he fell asleep at the wheel. This would bar any recov¨ery by Mrs. Krushwitz under Oregon law unless the jury can somehow find that McDonald’s was even more neg¨ligent than the dead youth. In addition, Theurer’s mother arguably had at least as much responsibility as his employer for letting her son tire himself out.

Whether such considerations would overcome a jury’s natural sympathy for a bereaved mother is uncertain. But some jurors who voted for Faver¨ty criticized the mother’s lawsuit, about which they had read in the local newspaper.

"We thought there were several people involved who were at fault, and the family was one of them," says Killaby. "But according to the judge, we just had to decide whether McDonald’s had any part of the responsibili¨ty." The mother should lose her case, Killaby concludes.

"It bothered me when I read in the paper the dollar amount the mother was going after," says Verna Misen¨himer. "It won’t ever bring back her son… and I did not feel that was fair to McDonald’s.”

LOCO PARENTIS GONE LOCO

While Mrs. Krushwitz’s suit against McDonald’s seems especially weak, Faverty’s was and is more compelling. Given the jury’s marching orders, the verdict for Faverty makes reasonably good sense.

But should cases like this one be sent to juries in the first place? I think not, unless the evidence shows the employer recklessly required the employee to work a grueling schedule, or was guilty of other misconduct more egregious than mere negligence.

For the Faverty case as precedent has the potential for imposing on all employers a vague, open-ended legal duty-over and above the mandates of state and federal labor laws-not to let their employees work too hard, espe¨cially when they are as young as Theurer was. Although common sense may tell us that an 18-year-old is not fully an adult, the law should draw lines that people can depend on, not leave employers guessing. And employers should be able to assume that someone old enough to vote, fight in a war, and have the legal rights of an adult is old enough to look after himself.

Foisting an in loco parentis burden on employers would mean having to keep track of employees’ work habits, off-the-job activities, means of commuting, and personal susceptibility to fatigue. It would also mean having to make sure they don’t burn the midnight oil too often at the office, and telling those who are eager for extra money that they can’t work any more overtime because they might get tired.

That is simply unreasonable; the traditional importance in our society of individual independence, privacy, and autonomy argues against any such legal duty. "To impose that kind of responsibility on an employer is to intervene into a whole lot of decisionmaking that we allow people to do," says Professor Aaron Twerski of Brooklyn Law School, who adds that the Faverty case "exceeds anything I’ve ever heard of."

If the impact of this case could be limited to compensating Fred Faverty and putting national restaurant chains on notice that it’s legally risky to have teenage students work all-night shifts between school days, it would be a welcome development.

But that’s not the way litigation usually works. The broader message of the Faverty precedent is that any company whose employee hurts someone else, or himself, while off duty could be vulnerable to a negligence suit if the injuries can be traced in some way to fatigue from working long hours, or from combining work with night school, or from working two jobs, or other work-related causes. Every law firm where people put in 16-hour days or all-night draft¨ing sessions should take notice.

Other hypotheticals suggest themselves. What about an employee who shows up at work drunk, is told to leave, and has an accident driving away? What about an employee who boasts to his supervisor that he is go¨ing to go home and beat up his wife, and then does?

Perhaps the common sense of juries will prevent plaintiffs lawyers from carrying this sort of liability to extremes. Perhaps not.

But because jurors are neither instructed nor qualified to weigh their natural sympathies for injured plain¨tiffs against the social costs of impos¨ing liability, an open-ended negligence instruction tends to load the dice against the corporate defendant.

That’s why the very threat of being hit with claims like Faverty’s, and put through the costs and uncertainties of a jury trial, places excessive burdens on employers, on society, and on our fundamental notions of individual autonomy.

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