Managing identity: Buying into the brand at work

Iowa Law Review

Volumn 95, Issue 4, 2010, Pages 1179-1258

  Crain, Marion ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77955460013     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (230)

1. TOM BEAUDOIN, CONSUMING FAITH: INTEGRATING WHO WE ARE WITH WHAT WE BUY 76 (2003) (noting that for many firms die identity and strength of the brand are more important to maintaining market share thanthe quality of the product itself).Historically, branding simply signified ownership of property, as in the branding oflivestock. In themodern era however, branding is designed to differentiate a product, service, or individual from others in the mind of die target market and, indoing so, enhance profits. Modern branding practices have evolved in diree waves.The first wave, most prevalent during die 1990s, focused primarily on marketing andadvertising the firm's product. The second wave, beginning in the late 1990s andstill continuing, emphasized creating and sustaining the brand across the firminternally as well as externally. Brand values and missions thus permeate all aspectsof the firm's policies, including human resources. The diird wave featuredindividual branding, first by celebrities, and laterby all who sought to market themselves in the labor force. Majken Schultz, Yun Mi Antorini & Fabian F. Csaba, Corporate Branding-An Evolving Concept, in CORPORATE BRANDING: PURPOSE/PEOPLE/PROCESS 9,10-11(Majken Schultz et al. eds., 2005). This Article focuses primarily on developments in the second wave of branding.
2. BEAUDOIN, supra note 1, at 70
3. NAOMI KLEIN No LOGO: TAKING AIM AT THE BRAND BULLIES 195-97 (2000) arguingthat as a firm's brand value increases, its manufacturing process becomes increasingly devalued, and pointing out how this replicates the division of labor between mind and body thathas characterized management efforts to control labor). Beaudoin argues that the ultimate goal of some firms is "weightlessness"-to freethemselves altogedier from the corporeal world of labor. BEAUDOIN, supra note1, at 69. The corporate brand is also a powerful vehicle for shaping and controlling consumption, increasing the market forthe product or service. Professor George Ritzer argues persuasively that modern capitalism is founded primarily on control and exploitation of consumption rather tiian on control and exploitation of the labor process. GEORGE RITZER, THE MCDONALDIZATION THESIS: EXPLORATIONS AND EXTENSIONS 68-70 (1998).
4. Kevin Helliker, This Is Your Brain on a Strong Brand: MRIs Show Even Insurers Can Excite, WALL ST. J., Nov. 28, 2006, at Bl (reporting on a study establishing that the brain reacts powerfully to strong brands, even those associated with"dull" topics such as insurance)
5. Carolyn Yoon et al., A Functional Magnetic Resonance Imaging Study of Neural Dissociations Between Brand and Person Judgments, 33 J. CONSUMER RES. 31 (2006) (using neuroimaging to studyresponses to brands).
6. The branding literature is voluminous. On the significance and value added by brands to businesses, their products, and services.
7. DAVID A. AAKER, MANAGING BRAND EQUITY: CAPITALIZING ON THE VALUE OF A BRAND NAME (1991) (describing how brands produce value for businesses)
8. The branding literature is voluminous. On the significance and value added by brands to businesses, their products, and services.
9. DAVID A. AAKER, MANAGING BRAND EQUITY: CAPITALIZING ON THE VALUE OF A BRAND NAME (1991) (describing how brands produce value for businesses)
10. DOUGLAS ATKIN, THE CULTING OF BRANDS: WHEN CUSTOMERS BECOME TRUE BELIEVERS (2004) (comparing brands to cults in terms of their effect upon consumers)
11. JANELLE BARLOW & PAUL STEWART, BRANDED CUSTOMER SERVICE: THE NEW COMPETITIVE EDGE (2004) (describing service branding)
12. LESLIE DE CHERNATONY & MALCOLM MCDONALD, CREATING POWERFUL BRANDS IN CONSUMER, SERVICE AND INDUSTRIAL MARKETS (2d ed. 1998) (describing the dialogue between consumers and marketers and how consumers adjust brand messages to reinforce prior expectations)
13. KEVIN FORD, BRANDS LAID BARE: USING MARKET RESEARCH FOR EVIDENCE-BASED BRAND MANAGEMENT (2005) (discussing role played by brands in converting market transactions into relationships with customers that in turn generate additional value for the firm)
14. DOUGLAS B. HOLT, How BRANDS BECOME ICONS: THE PRINCIPLES OF CULTURAL BRANDING (2004) (explaining how brands that provide compelling,consensus expressions ofsocietal values become iconic)
15. NICHOLAS IND, LIVING THE BRAND: HOW TO TRANSFORM EVERY MEMBER OF YOUR ORGANISATION INTO A BRAND (2001) [hereinafter IND, LIVING THE BRAND] (discussing the functions of brands and their role in motivating employees); NICHOLAS IND, THE CORPORATE BRAND (1997) [hereinafter IND, THE CORPORATE BRAND] (explaining why branding has assumed so much significance in modern society, and noting the centrality of employees to the brand experience in service sector businesses)
16. KEVIN LANE KELLER, STRATEGIC BRAND MANAGEMENT: BUILDING, MEASURING, AND MANAGING BRAND EQUITY (1998) (describing why brands matter and how they assist businesses with increasing profit margins)
17. KLAUS SCHMIDT & CHRIS LUDLOW, INCLUSIVE BRANDING: THE WHY AND HOW OF A HOLISTIC APPROACH TO BRANDS (2002) (explaining emotional appeal and power of brands).
18. Although my focus here is on psychological branding, appearance regulation is an important aspect of branded service in many businesses. Thus far, legal scholars' analyses of internal branding have focused on its aesthetic aspects.
19. See, e.g., Katharine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality, 92 MICH. L. REV. 2541,2545 (1994) (proposing that appearance codes be evaluated by whether they furthergender-based disadvantage in the workplace rather than by whether they conform tocommunity norms)
20. Catherine L. Fisk, Privacy, Power, and Humiliation at Work: Re-Examining Appearance Regulation as an Invasion of Privacy, 66 LA. L. REV. 1111, 1112-13 (2006) (reframing appearance regulation in the workplace as an invasion of privacy that damages autonomy even where it does not violate anti-discrimination law)
21. Karl E. Klare, Power/Dressing: Regulation of Employee Appearance, 26 NEW ENG. L. REV. 1395, 1445-48 (1992) (arguing for a right of autonomous appearance andfor a requirement that employers purchasethe power to control appearance, subjectto anti-discrimination guidelines). In 2007, Duke University School of Law hosteda symposium inspired by the case of Darlene Jespersen, a bartender at Harrah's Casino
22. Jespersen was fired for refusing to comply with Harrah's appearance and grooming code, which required her to wear makeup. Devon Carbado, Catherine Fisk & Mitu Gulati, Foreword: Making Makeup Matter, 14 DUKE J. GENDER L. & POLV 1, 1 (2007) (explaining the premise of the symposium). Articles and essays authored for the symposium, entitled "Makeup, Identity Performance and Discrimination," were published in volume 14 of die Duke Journal on Gender Law and Policy. Id. at 1
23. see also Dianne Avery & Marion Crain, Branded: Corporate Image, Sexual Stereotyping and the New Face of Capitalism, 14 DUKE J. GENDER L. & POL'Y 13, 16 (2007) (addressing sexual stereotypes' impact on branding).
24. Front-line workers in service firms must "transform espoused brand messagesinto brand reality for customers and other stakeholders." Khanyapuss Punjaisri & Alan Wilson, The Role of Internal Branding in the Delivery of Employee Brand Promise, 15 J. BRAND MGMT. 57, 60 (2007)
25. see also Libby Sartain, Branding from the Inside Out at Yahoo!: HR's Role as Brand Builder, 44 HUM. RESOURCE MGMT. 89,89 (2005) (describing branding as "selling a promise").
26. See, e.g., Colin Mitchell, Selling the Brand Inside, HARV. Bus. REV., Jan. 2002, at 99, 99-100 (explaining that internal marketing to employees is as important as external advertising).
27. Of course, managing workers' emotions is not a new concept. ArlieHochschild's padi-breaking work in die late 1970s and early 1980s revealed how some servicebusinesses harnessed workers' "emotionallabor" in die workplace-"the management of feelings to create a publicly observable facial and bodily display" intended toproduce a particular state ofmind in others- and converted it into a saleable commodity. ARLIE RUSSELL HocHSCHILD, THE MANAGED HEART: COMMERCIALIZATION OF HUMAN FEELING 7 & n.* (1983)
28. see also Cameron Lynne Macdonald & Carmen Sirianni, The Service Society andthe Changing Experience of Work, in WORKING IN THE SERVICE 1,3 (Cameron Lynne Macdonald & Carmen Sirianni eds., 1996) (explaining dial lower-level service workers-the "emotional proletariat"-were most likely to be regulated in this fashion because higher-status professionalworkers were typically guided by professional norms)
29. Anat Rafaeli & Robert I. Sutton, Expression of Emotion as Partof the Work Role, in PSYCHOLOGICAL DIMENSIONS OF ORGANIZATIONAL BEHAVIOR 106,111-13 (Barry M Staw ed., 3d ed. 2004) (analyzing the centrality of emotion work in service sectoroccupations).Many service businesses require that employees portray particular emotional stateswhile performingtheir work roles. For example, grocery stores require check-out clerks to greet customers cheerfully and smile while they are serving them; funeral directors must express sadness; and billcollectors and bouncers must convey hostility. Id. at 106. Some employers use training programs to socialize employees to display suchemotions, monitordiem to ascertain that they comply, and reward or discipline them accordingly. Id. at 110. Identity-based brand-management programs-the subject of this Article-are different; they seekto transform workers' identities rather than simply to regulate their behavior or emotions relative to job performance.
30. Firms are advised to "bring die brand alive" for workers through a professional campaign that runs parallel to consumer marketing and advertising campaigns,except that the target is the worker rather than the consumer. Mitchell, supra note 7, at 101-02, 105.
31. See infra Part HI.B (discussing the benefits of branding).
32. See Sartain, supra note 6, at 89-90 (discussing branding); infra notes 128-30 and accompanying text (discussing how branding can both engage and constrain workers).
33. False or deceptive advertising may subject an advertiser or advertising agency to oversight by the Federal Trade Commission or theFood and Drug Administration, among other state and federal agencies. JeffreyS. Edelstein, Self-Regulation of Advertising An Alternative to Litigation and Government Action, 43 IDEA 509, 510 (2003). Additionally, healthregulation in the interests of the public good mayimpose affirmative obligations on firms to disclose information. Forexample, New York City recendy enacted a health-code provision requiring restaurants widi fifteen or more branches nationally to post calorie counts on menus; similar legislation has been introduced in sixteen other states. Wendy N. Davis, Biting Back at Obesity, A.BA. J., Aug. 2009, at 17-18, available athttp://www.abajournal.com/magazine/article/biting-back-at-obesity/.
34. The Securities and Exchange Commission regulates annual and periodic reporting by publicly held companies; it also reviews the materialsused to solicit shareholder's votes and the disclosures required for anyone seeking to acquire more than 5% of a company's securities. U.S. Sec. & Exch. Comm., The Laws That Govern the Securities Industry, http://www.sec.gov/ about/laws.shtml (last visited Apr. 15,2010).
35. See Kent Greenfield, The Unjustified Absence of Federal Fraud Protection in the Labor Market, 107 YALE LJ. 715, 719, 735-36 (1997)(higlighting the law's failure to protect workers against fraudulent statements designed to induce investment of labor and contrasting it with the protection afforded to investors and shareholders under federal securities law).
36. Pitcher v. United Oil & Gas Syndicate, Inc., 139 So. 760, 761 (La. 1932)
37. Savage v. Spur Distrib. Co., 228 S.W.2d 122, 124 (Tenn. Ct App. 1949)
38. see also JAMES B. ATLESON, VALUES AND ASSUMPTIONS IN AMERICAN LABOR LAW 15 (1983) (observing that law assumes that workers possess"no stake, interest, or investment in the 'common enterprise' other than the right to receive wages for the sale of labor power").
39. Vicki Schultz, Essay, Life's Work, 100 COLUM. L. REV. 1881, 1890-91 (2000)
40. see also HARRY BRAVERMAN, LABOUR AND MONOPOLY CAPITAL: THE DEGRADATION OF WORK IN THE TWENTIETH CENTURY 45-58 (1974) (explaining that wedefine our humanity at work)
41. PAUL DU GAY, CONSUMPTION AND IDENTITY AT WORK 9 (1996) (observing that work is a stable source of identity and meaning in people's lives)
42. Kennedi L. Karst, The Coming Crisis of Work in Constitutional Perspective, 82 CORNELL L. REV. 523, 530-33 (1997) (discussing the significance of work in the formation of personal identity and full citizenship).
43. See James J. Choi, David Laibson & Brigitte C. Madrian, Are Empowerment and Education Enough' Underdwersification in 401(h) Plans,2 BROOKINGS PAPERS ON ECON. ACTIVITY 151, 153 (2005) (arguing that media coverage of the losses suffered by employees at Enron, WorldCom, and GlobalCrossing as a result of under-diversification of retirement portfolios had only a minimal impact on investment patterns by employees in other companies). The authors found a 2% decline in employee investment in company stock following the media blitz, and conclude diat legislative reforms aimed at educating employees about investment in company stock will not be sufficient to address the problem. Id.
44. Eleanor Laise, Despite Risks, Workers Guzzle Company Stock, WALL ST. J., Mar. 5, 2009, at Dl ("[M]any workers at troubled companies are still gorging on their employers' shares.")
45. see infra notes 300-03 and accompanying text (noting a sizable minority of workers widi poorly diversified portfolios).
46. Employment Retirement Income Security Act of 1974,29 U.S.C. §§ 1001-1461 (2006).
47. PETER CAPPELU, THE NEW DEAL AT WORK: MANAGING THE MARKET-DRIVEN WORKFORCE vii, 28, 244 (1999). Peter Drucker made similar observations. PETER F. DRUCKER, MANAGING IN A TIME OF GREAT CHANGE 165-70 (1995).
48. U.S. firms historically relied upon a metaphor of "the companyas family" as a means of promoting worker loyalty to the firm and encouraging long hours. The provision of benefits and internal community-building strategies designed to strengthen ties between workers furthered the family metaphor. Sandy MacDonald & Sonia Liff, Working for the Family, 17 HUM. RESOURCE MGMT. J. 118, 126-27 (2007)
49. see also Rachel Amow-Richman, Accommodation Subverted: The Futureof Work/Family Initiatives in a "Me, Inc." World, 12 TEX. J. WOMEN & L.345, 374-78 (2003) (describing the social contract of employment that fed the cultural expectation that employers functioned as insurers against employees' lifecycle needs)
50. N.R. Kleinfield, The Company as Family, No More, N.Y. TIMES, Mar.4, 1996, at Al (describing Chase Manhattan Bank, prior to the 1980s, asa "paternalistic organization" that had "guaranteed ajob anda raise anda pension"). In an influentialbook, Arlie Hochschild argued that companies had become so successful in this endeavor that for many women, theworkplace began to feel like home and home began tofeel like work. ARUE RUSSELL HOCHSCHILD, THE TIME BIND; WHEN WORKBECOMES HOME ANDHOME BECOMES WORK 35-45 (1997) (reporting that manyworkers prefer to spend timeatwork, where their efforts are socially valued and supported).
51. Internal labor markets were characterized by jobs arrayed in hierarchical ladders; employees were hired in on the bottom rungs andclimbed the ladder over their careers. Firms structured benefits andcompensation to incentivize attachment to the firm and reward longevity and seniority. The firm assumed responsibility for employee training and development, since each rung of the ladder theoreticallyprovided the training necessary for the employee to advance to the nextrung. Katherine V.W. Stone, Dismissal Law in the United States: The Past and Present of At-Will Employment 5 (UCLA Law & Econ. Research Paper Series, Paper No. 09-03, 2009), available at http://ssrn.com/abstract=1342667.
52. See generally PETER B. DOERINGER & MICHAEL J. PlORE, INTERNAL LABOR MARKETS AND MANPOWER ANALYSIS (1971) (offering a comprehensive analysis of the internal labor market).
53. CAPPELLI, supra note 20, at viii, 1.
54. Id. at 7 (observing that as a result, "junior people with 'hot' skills end up making much more than their senior colleagues").
55. See, e.g., THOMAS GAD & ANETTE ROSENCREUTZ, MANAGING BRAND ME:HOW To BUILD YOUR PERSONAL BRAND 124-27 (2002) (outlining a strategyfor the differentiation and communication of individual workers' personal brands to employers and potential employers)
56. TOM PETERS, REINVENTING WORK: THE BRAND YOU 24-25,50 (1999) (encouraging employees to develop an individual "brand you" to market to employers)
57. see also CLIFF HAKIM, WE ARE ALL SELF-EMPLOYED 4-5 (1994) (encouraging workers to adopt a "self-employed" attitude while working for others). Personal branding encourages workers to commodify themselves and to attach themselves to the market rather than to an individual firm
58. See CAPPELLI, supra note 20, at 32. Cappelli notes: The suggestions that employees think of their career as going beyond their current employer, diat they benchmark their skills against the changingrequirements of their field, that their current position may be at risk ⋯all send the message that the most important connection they have is not to dieir current employer but to die market. Id. Personal branding is particularly attractive in a slack labor market because it emphasizesagency and offers the allure of controlling one's destiny in an increasingly unstable labor market. Daniel J. Lair, Katie Sullivan & George Cheney, Marketization and the Recasting of the Professional Self: The Rhetoric and Ethics of Personal Branding, 18 MGMT. COMM.Q, 307..314, 319-22 (2005).
59. CAPPELU, supra note 20, at 22-25.
60. A statement from a CEO to his employees typical of the era was: "You have to accept responsibility for your own personal excellence ⋯ and understand diat die customer is die most important factor in our business life. We cannot guarantee you job security any more dian wecan guarantee our success in die marketplace. Job security is earned by market success." Id. at 25 (quoting Patricia A. Milligan, Regaining Commitment, in THE NEW DEAL IN EMPLOYMENT RELATIONSHIPS: A COUNCIL REPORT 8,11 (Conference Board, Report No. 1162-96-CR, 1996)).
61. In the old-or "lifetime"-model of employment, the employer promised job security and opportunities for internal promotion in exchange for loyalty and good performance. Id. at 21. Employees' interests were thus organically aligned with the firm's interests. Cappelli is careful to note however, diat this old deal was an artifact of white-collar employment. Id. Blue-collar workers relied instead on unions and collectivebargaining to obtain job security and pay linked to seniority. Id. at 21-22. Nor did unionized workers' interests everbecome so aligned with the firm's; the union functioned to highlightthe conflict between the interests of workers as a class and those of the firm. Interestingly, some unions were at the forefront of the effort to realign employees'job-security expectations once it becameclear that market volatility had rendered the old deal obsolete. At AT&T, for example, Cappelli reports that the effort to draft a new deal in the wake' of deregulation and the Bell system breakup was initiated by unions. Id. at 26. Concerned about reemployability of their members after corporate restructuring and layoffs, the union sought and obtained funding for programs designed to anticipate work trends and to provide appropriate retraining for employees. Id. at 26-27.
62. Id. at 29-30. Cappelli references a written contract promulgated by Apple in the 1980s that applied to each of its full-time employees. Id. at 25-26. Far more explicit in its rejection of long-term job security and more clear-eyed in its description of the new deal,the contract provided: Here's the deal Apple will give you; here's what we want from you. We're going to give you a really neat trip while you're here. We're going to teach you stuff you couldn't learn anywhere else. In return ⋯ we expect you to work like hell, [and] buy the vision as long as you're here ⋯. We're not interested in employing you for a lifetime, but that's not the way we are thinking about this. It's a good opportunity for both of us that is probably finite. Id. at 26
63. see also Barbara Ettorre, The Contingency Workforce Moves Mainstream, 83 MGMT. REV. 10, 13 (1994) (discussing employers' mixed messages of full participation without long-term stability).
64. CAPPELLI, supra note 20, at 2-3
65. see also Marion Crain, "Where Have All the Cowboys Gone?" Marriage and Breadwinning in Postindustrial Society, 60 OHIO ST.L.J. 1877,1909-10 (1999) (arguing that the values and structure of paid work, including its insecurity, bleed into family relationships, and suggesting connections between employment insecurity and maritainstability).
66. Katherine V.W. Stone, Employee Representation in the Boundaryless Workplace, 77 CHI.-KENT L. REV. 773, 779-80 (2002) [hereinafter Stone, Employee Representation]
67. Kadierine V.W. Stone, The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law, 48 UCLA L, REV. 519, 540 (2001).
68. Stone, Employee Representation, supra note 31, at 783-84
69. see also KATHER1NE V.W. STONE, FROM WIDGETS TO DIGITS: EMPLOYMENT REGULATION FOR THE CHANGING WORKPLACE 107,128, 131, 286-88 (2004) (arguingthat the new challenge for workplace regulation is to establish support structures that enable workers to weadier career transitions, particularly ongoing training opportunities, portable benefits, and protections for skill development and worker ownership of human capital).
70. See, e.g., Sanford M. Jacoby, Melting into Air? Downsizing, Job Stability, and the Future of Work, 76 CHI.-KENT L. REV. 1195, 1204, 1219-20 (2000) (examining data on median job tenure and finding only a modest decline in job stability, and arguing that reports of the demise of internal job ladders are exaggerated)
71. see also RICHARD B. FREEMAN & JOEL ROGERS, WHAT WORKERS WANT 10-11 (1999) (contesting the claim of lowered job tenure and noting intra-group differences along age and job category that affect tenure data). Evidence on changes in job tenure over time is conflicting. A recent analysis of employee job tenure by the Employee Benefits Research Institute concludes there is litde basis for the perception dial past generations of workers held career jobs. Craig Copeland, Employee Tenure, EMP. BENEFIT RES. INST. NOTES, Apr. 2007, at 1,1, available at http://www.ebri.org/pdf/notespdf/EBRI-Notes-04-20071.pdf. Moreover, median employee tenure for adults aged 25 or older barely changed between 1983 and 2006, dropping slighdy from 5 years to 4.9 years. Id. at 2. A small but significant decrease in men's median job tenure is apparent (down from 5.9 to 5 years), but women's tenure increased from 4.2 to 4.8, offsetting the drop in male tenure. Id. at 1-2. Median tenure for all workers was 4.1 in January 2008-again, virtually unchanged from 4.0 years in January 2006. News Release, Bureau of Labor Statistics, Employee Tenure in 2008, at 1 (Sept. 26, 2008), available at http://www.bls.gov/news.release/pdf/tenure.pdf.Part of the difficulty in interpreting the data is that job tenure data does not necessarily correlate widi job security. An increase in job tenure could be associated widi a slack labor market andan increased termination rate for lower-tenured workers, leaving longer-tenured workers employed but less secure. Alternatively, a decrease inmedian tenure could occur in a tight labor market when more jobs are open to new labor market entrants, job opportunities are plentiful and experienced workers feel comfortable shifting to other employment. Id. at8. Demographic shifts in the labor market also affect job tenure rates,as younger workers tend to have shorter job tenure than older workers. Id. at 1.
72. In March 2000, The New York Times Magazine devoted an issue tothe topic of "The Liberated, Exploited, Pampered, Frazzled, Uneasy New American Worker." N.Y. TIMES, Mar. 5, 2000, § 6 (Magazine).In an introductory essay, Michael Lewis noted the disappearance of the typical corporate employee who possessed strong corporate attachment, and described the modern worker as a "free agent," willing to sell him or herself to the highest bidder. Michael Lewis, The Artist in the Gray Flannel Pajamas, N.Y. TIMES, Mar. 5, 2000, § 6 (Magazine), available at http://www.nytimes.com/2000/03/05/magazine/ the-artist-in-the-gray-flannel-pajamas.hunl? pagewanted=all. Sociologist Richard Sennett wrote that the motto for the new age of work should be "No long term." RICHARD SENNETT, THE CORROSION OF CHARACTER: THE PERSONAL CONSEQUENCES OF WORK IN THE NEW CAPITALISM 22 (1998)
73. seealso Phred Dvorak & Scott Thurm, Slump Prods Firms to Seek New Compact with Workers, WALL ST. J., Oct. 19, 2009, at Al (describing the shift by employers in the wake of the recent recession toward the use of contract employees and frequent layoffs, because "'the new normal is constant change'" (quoting Edward Lawler III, a professor at the University of Southern California Marshall School of Business)).
74. See Jacob S. Hacker, The Risky Outlook for Middle-Class America, in ENDING POVERTY IN AMERICA: HOW To RESTORE THE AMERICAN DREAM 66, 68 (John Edwards, Marion Crain & Ame Kalleberg eds., 2007) (explaining THat the shift of risk to American workers is the "defining feature of the contemporary economy").
75. See generally JACOB S. HACKER, THE GREAT RISK SHIFT: THE ASSAULT ON AMERICAN JOBS, FAMIUES, HEALTH CARE AND RETIREMENT AND How YOUCAN FIGHT BACK (2006) (describing trends in public policy that combine to shift risk and responsibility away from governments and employers and onto workers). The recent recession has accelerated trends away from long-term commitments by employers to workers and in favor of shifting risks of all kinds to workers.
76. See Dvorak & Thurm, supra note 34 (discussing the permanent shift of responsibility for health care and retirement to workers occasioned by the recession)
77. Dana M. Muir, The U.S. Culture of Employee Ownership and 401(k) Plans, 14 ELDER L.J. 1, 5 (2006).
78. See generally COREY M. ROSEN, KATHERINE J. KLEIN & KAREN M. YOUNG, EMPLOYEE OWNERSHIP IN AMERICA: THE EQUITY SOLUTION (1986) (surveying and describing forms of employee ownership)
79. Of course, stock options also comprise a significant portion of executive compensation, a context in which they are intended to serve as pay for performance.
80. See Lucian Bebchuk & Yaniv Grinstein, The Growth of Executive Pay, 21 OXFORD REV. ECON. POLV 283, 290 tbl.4 (2005) (reporting a dramatic rise in the portion of executive compensation attributable tostock options); Brian J. Hall & Jeffrey B. Liebman, Are CEOs Really Paid Like Bureaucrats?, 113 QJ. ECON. 653, 655 (1998) (explaining that stock-option-based compensation represents pay for performance).
81. See Muir, supra note 36, at 7-8 (describing the growdi of the employee-ownership model and stock-option culture in Silicon Valley).
82. Joyce E. Cutler, Google Offers Stock Exchange for Employees' 'Underwater' Options, Daily Lab. Rep. (BNA) No. 14, at A-7 (Jan. 26, 2009).
83. Wage and price controls instituted during World War II that precluded firms from paying higher wages have been credited with providing the impetus for employer-based health insurance and pension benefits.
84. See David A. Hyman & Mark Hall, Two Cheers for Employment-Based Health Insurance, 2 YALE J. HEALTH POL'Y L. & ETHICS 23, 25-26 (2002) (describing the evolution of employer-provided fringe benefits).Because they were not counted as wages for purposes of the statutorywage and price controls, employers were able to substitute health insurance and pension benefits to attract scarce workers in the tight World War II labor market. Id. at 25. Favorable tax treatment and aggressive bargaining by labor unions completed the picture, and health insurance and pension benefits became part of the standard packageof fringe benefits. Id.
85. MARION G. CRAIN, PAUUNE T. KIM & MICHAEL SELMI, WORK LAW: CASES AND MATERIALS 838 (2005).
86. This terminology was established by the Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, 88 Stat. 829 (codified at 29 U.S.C. §§ 1001-1461 (2006)). Defined-benefit plansentitle worker-participants to predetermined benefit levels upon retirement according to a formula based on salary, years of service, and age. Payout amounts are "backloaded"- calculated on the basis of final years of service and salary at the end of employment-so that long-term employees receive greater benefits, incentivizing employees to stay until they reach their highest earning rate and to retire close in time to that point. Id.
87. PETER J. WlEDENBECK, ERISA IN THE COURTS 10-11 (2008). Additionally, defined-benefit plans that are severely underfunded or that become bankrupt are insured by the Pension Benefit Guaranty Corporation, which is modeled on the Federal Deposit Insurance Corporation. See 29 U.S.C. § 1302 (2006) (establishing the Pension Benefit Guaranty Corporation within the Department of Labor); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 636-37 (1990) (describing the Pension Benefit Guaranty Corporation's purpose and structure). Still, defined-benefit plans are not absolute guarantees against all risk-they can be amended, converted to cash-balance plans, or terminated upon employer bankruptcy. See David Madland, The Politics of Pension Cuts, in EMPLOYEE PENSIONS: POLICIES, PROBLEMS, & POSSIBILITIES 187, 190-91 (Teresa Ghilarducci & Christian E. Weller eds., 2007) (discussing ways in which benefits may be cut)
88. Maria O'Brien Hylton, Together We Can: Imagining the Future ofEmployee Pensions, 12 EMP. RTS. & EMP. POL'Y J. 383, 387 (2008) (describing noteworthy instances where employee benefit plans terminatedfollowing the employer's bankruptcy).
89. CRAIN, KIM & SELMI, supra note 41, at 838.
90. CAPPELLI, supra note 20, at 151-52. Under ERISA, defined-benefit plans must vest gradually over a three-to-seven-year period, or all at once within five years of employment (known as "cliff vesting"). I.R.C. § 411(a)(2)(A) (West 2010).
91. As recently as 1979, 83% of all workers covered by a pension plan participated in a defined-benefit plan. CAPPELLI, supra note 20,at 151-52. Since then, the trend has shifted dramatically away from defined-benefit plans and toward defined-contribution plans. By 1988, 66% of such workers were covered by defined-benefit plans. Id. By 2006, only 30.9% participated in defined benefits plans. Michael W. Wyand, Workers Rely on Defined Contribution Plans, While Employers Seek To Reduce Plan Costs, 26 Daily Lab. Rep. (BNA) A-6 (Feb. 11, 2009). A simultaneous increase in participation in defined-contribution plans occurred, rising to 67% in 2006, more than double the level in 1988. Id. The majority of workers still covered by a defined-benefit plan are either unionized or belong to a state retirement system. CRAIN, KIM & SELMI, supra note 41, at 838.
92. LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 255 (2008).
93. But see Joel J. Meyer, As Recession Drains 401 (k) Balances, Employers Pull Back on Contributions, 84 Daily Lab. Rep. (BNA) C-l (May 5, 2009) (listing and discussing the growing number of large firms reducing or terminating company matches, but noting that the majority of employers still have not done so)
94. Phred Dvorak & Scott Thurm, Slump Prods Firms to Seek New Compact with Workers, WALL ST. J., Oct. 19, 2009, at Al (reporting that Ford Motor Company has frequently suspended its employer-matching program, contributing the match in only 2.5 of the last 8 years)
95. Jilian Mincer, Many U.S. Employers Cut 401{k) Matches, WALL ST. J., Mar. 26, 2009, at D2 (reporting that firms in most economically distressed industries including retail, newspaper, auto, and gaming dropped or decreased their employer match).
96. Most 401 (k) plans provide for immediate full vesting in orderto satisfy special nondiscrimination rules applicable to 401(k) plans. See I.R.C. § 401(k)(2)(C), (k)(3)(D)(ii), (k)(12)(E)(i), (m)(4)(C)(ii) (West 2010). Two-year "cliff vesting is possible for matching contributions pursuant to I.R.C. § 401 (k) (13)(D) (iii) (I).
97. ERISA does not require that the employer afford the employee-participant control over investment decisions in 401 (k) accounts, but § 404(c) provides a "safe harbor" for employers or plan administrators who would otherwise incur fiduciary obligations. To take advantage of § 404(c)'s safe harbor, the employer must be able to demonstrate diat the employee-participant has control over the account, the plan offers a diverse array of investment alternatives (atleast diree), and that the participant has received adequate information about the investment options. 29 C.F.R. § 2550.404c-l (2009).
98. Some workers laid off in the current recession have been unable to withdraw their 401 (k) funds at the time of departure due to withdrawal freezes resulting from the economic downturn-at the time when they most need access to their funds.
99. See Eleanor Laise, 401(k)s Hit by Withdrawal Freezes, WALL ST. J., May 5, 2009, at CI (discussing recent plan freezes).
100. CAPPELU, supra note 20, at 151-52. Cappelli argues that the collapse of the career model of employment and shift toward a more mobile workforce with a transient attachment to any single employer created pressure favoring more portable accounts managed by individual workers, which mobile employees favored. Id. at 152. Others suggest that employers moved away from defined-benefit plans during periods of stock-market decline because of the substantial liabilities they posed and the administrative costs associated with them.
101. See, e.g., Susan J. Stabile, The Behavior of Defined Contribution Plan Participants, 77 N.Y.U. L. REV. 71, 76-77 (2002) (discussing the advantages of defined-contribution plans for employers).
102. Stabile, supra note 52, at 77.
103. Id.
104. Katherine V.W. Stone, A Fatal Mismatch: Employer-Centric Benefits in a Boundaryless World, 11 LEWIS & CLARKL. REV. 451, 475 (2007).
105. supra notes 20-32 and accompanying text (discussing the new deal at work)
106. supra notes 33-34 and accompanying text (discussing increased job mobility)
107. supra note 35 and accompanying text (discussing the shift of risk to workers).
108. CAPPELU, supra note 20, at 6.
109. John R. Deckop et al., Getting More Than You Pay for: Organizational Citizenship Behavior and Pay-for-Performance Plans, 42 ACAD. MGMT.J. 420,420 (1999).
110. See DENNIS W. ORGAN, ORGANIZATIONAL CITIZENSHIP BEHAVIOR: THE GOOD SOLDIER SYNDROME 4-5 (1988). Organizational citizenship behavior refers to "discretionary behavior that goes beyond the requirements of specific role definitions and that is not rewarded through the formal reward structure of the firm." STONE, supra note 32, at 95.
111. WALKER INFO., LOYALTY REPORT: LOYALTY IN THE WORKPLACE 6 (2007). The Walker Loyalty Report survey consists of online responses from 2950 full- and part-time workers eighteen years or older and employed by firms with at least fifty employees. Employees are classified as "truly loyal," "accessible," "trapped," and "high risk." Id. at 8.
112. Id. at 6
113. Frederick F. Reichheld, Lead for Loyalty, HARV. BUS. REV.,July-Aug. 2001, at 76 (noting correlation between customer loyalty, employee loyalty, and profitability).
114. WALKER INFO., supra note 60, at 5. Employee loyalty is lowest for workers widi less than one year of job tenure (26% categorized as "high risk"), and highest for diose employed between six and nine years (45% "truly loyal"), diminishing to 36% for diose ten to nineteen years on the job and to 30% for those widi twenty years or more of job tenure. Id. at 6.
115. See CAPPELLI, supra note 20, at 191 (explaining that firms either foster group relationships to maintain a low turnover rate, or develop highly regulated positions that accommodate a high turnover rate)
116. BARBARA A. GUTEK, THE DYNAMICS OF SERVICE: REFLECTIONS ON THECHANGING NATURE OF CUSTOMER/PROVIDER INTERACTIONS 267-68 (1995) (discussing the growdi of encounter systems in provider-customer interactions). Cynthia Estlund describes this strategic choice as one between a "low-cost, low-wage strategy" and a "high commitment-and-cooperation strategy,"and suggests that law might steer employers toward the strategy withthe most positive spillover effects for society. CYNTHIA ESTLUND, WORKING TOGETHER: How WORKPLACE BONDS STRENGTHEN A DIVERSE DEMOCRACY 168 (2003).
117. Because the quality or nature of the interaction between customer and worker is often the essence of the service that an encounter-style business is selling, control and consistency are critical. Accordingly, work is organized in ways that make supervision easier and render workers more fungible. ROBIN LEIDNER, FAST FOOD, FAST TALK: SERVICE WORK AND THE ROUTINIZATION OF EVERYDAY LIFE 26-27 (1993).
118. See generally BARLOW & STEWART, supra note 4 (describing service branding). Encounter-style businesses are interested primarily in high-volume interactions and prioritizing efficiency. They rely onstandardization of the service and are likely to script the interactions and to use extensive monitoring and surveillance of workers to enforce the script. Ultimately, aldiough transaction-encounter-styleservices require significant management and are burdened widi costs of high turnover due to the monotony and tedium of the jobs, the labor performed may also be more easily outsourced or transferred to machines (ATMs, airline kiosks) orto customer self-service (u-scan machines in retail settings, self-serve salad and drink bars). GUTEK, supra note 63, at 34,46,52,57,219. Encounter-style service has the greatest potential for shaving labor costs and freeing the employer from dependence upon labor; workers in this model are largely fungible. McDonald's is a leader in the systematic standardization and routinization of labor processes in the service industry. Its employment practices have successfully separated workers from the services that they provide and substituted the corporate brand in the customer's mind so that the customer bonds to the brand rather than to an individual worker or even a particular franchise: it is the Golden Arches that draw customers, not the interactions with counter-service workers.
119. See GEORGE RITZER, THE MCDONALDIZATION OF SOCIETY 81-S2 (1996)(arguing that the principles of routinization and standardization developed by McDonald's arebeing transferred to other sectors of the market). Nevertheless, customer loyaltyis a valuable asset in an ever-more competitive business environment. Thus, even firms committedto encounter-style service seek to import the best aspects of the relationship model by developing a branded form of personal service,which workersare then trained to convey to customers. GUTEK, supra note 63, at 68. For example, the employer may school workers to identify with customers and to behave as if they were in pseudo-relationships with the customers (e.g., for wait staff, "Hi, I'm Tom," or, "Is this your first visit to our restaurant?"). Id. at 70-71. Emotional labor-or at least, the appearance of emotion-is a significant part of diis model. Id. at 80; see also Robin Leidner, Emotional Labor in Service Work, ANNALS AM. ACAD. POL. & SOC. Sa., Jan. 1999, at 81, 82 (discussing Kentucky Fried Chicken's "now hiring smiling faces" ad).
120. DENISE M. ROUSSEAU, PSYCHOLOGICAL CONTRACTS IN ORGANIZATIONS: UNDERSTANDING WRITTEN AND UNWRITTEN AGREEMENTS 194-95 (1995). Rousseau suggests that the firm's choice of employment relations drives its customer-relations model, but the causation may well work the other way. Id.
121. Frederick Winslow Taylor is credited with developing principles of scientific management designed to control labor. Through the use of time and motion studies designed to maximize output, Taylor sought to separate the execution of work from its conception by reducing the performance of work to a series of "scientific" rules, scripted movements, and even mathematical formulae. FREDERICK WINSLOW TAYLOR, THE PRINCIPLES OF SCIENTIFIC MANAGEMENT 31-32 (1911)
122. see also BRAVERMAN, supra note 16, at 85-121 (discussing the use of scientific management to control workers)
123. DAVID MONTGOMERY, THE FALL OF THE HOUSE OF LABOR 9-57, 214-256 (1987)(discussing the roots and evolution of the scientific-management movement)
124. DAVID MONTGOMERY, WORKERS' CONTROL IN AMERICA 9-10 (1979) (discussing the evolution of methods for control of production during the nineteenth century). For a more modern analysis,
125. see Marion Crain, Building Solidarity Through Expansion of NLRA Coverage: A Blueprint for Worker Empowerment, 74 MINN. L. REV. 953, 985-86 (1990). Parallelstrategies were developed to control professional and skilled workforces in the post-industrial era, but they act less directly upon workers' bodies.
126. See Marion Crain, The Transformation of the Professional Workforce, 79 CHI.-KENT L. REV. 543, 557-58 (2004) (describing manipulation of the social organization of work through a pattern of specialization designed to maximize productivity and centralize control in management).
127. See HOCHSCHILD, supra note 8, at 6 (discussing the significance of emotional labor at work and the forms that it may assume).
128. See infra Part III.C.2 (discussing the centrality of emotion-work at Disney).
129. See infra Part III.C.3 (discussing the obligations of salespeople at Combined Insurance).
130. GUTEK, supra note 63, at 15-20, 190.
131. Id. at 204-06. The Jespersen case involved such a branding strategy by Harrah's. Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1077-78 (9th Cir. 2004)
132. Avery & Crain, supra note 5, at 13, 58 ("Harrah's &mellip; argued that the company's dress and grooming program 'was a comprehensive initiative to improve the overall service performance of the Beverage Department, which included the creation of a national brand standard. If one employee failed to comply, the brand standard failed.'" (quoting Answering Brief of Appellee at 34, Jespersen, 392 F.3d 1076 (No. 03-15045), 2003 WL 22716702)).
133. GUTEK, supra note 63, at 189-95
134. see also George A. Akerlof & Rachel E. Kranton, Identity and the Economics of Organizations, J. ECON. PERSP., Winter 2005, at 9, 15, 19-22 (explaining why this strategy makes good business sense for firms committed to relationship-style service).
135. CAPPELLI, supra note 20, at 216-18.
136. See Mitchell, supra note 7, at 103 (describing the goals of an internal branding campaign and arguing that the design and execution of an internal campaign should be managed by the marketing department). Some firms are more aggressive still, merging human-resources and marketing departments and reassigning internal-branding and personnel-management functions to marketing. Punjaisri & Wilson, supra note 6, at 60 ("HR should be led by marketing and incorporate the brand concept into all employee development programmes."). Business consultant Julie Anixter characterizes this strategy as a "diabolical" move. Julie Anixter, Transparency, or Not: Brand Inside, Brand Outside-, in BEYOND BRANDING: How THE NEW VALUES OF TRANSPARENCY AND INTEGRITY ARE CHANGING THE WORLD OF BRANDS 161, 180 (Nicholas Ind ed., 2003).
137. See Albert M. Muniz, Jr. & Thomas C. O'Guinn, Brand Community, 27 J. CONSUMER RES. 412, 412-13 (2001) (arguing that brand communities consisting of a structured set of social relationships built around a branded product or service are true communities, characterized by "shared consciousness, rituals and traditions, and a sense of moral responsibility").
138. See ROSABETH Moss KANTER, MEN AND WOMEN OF THE CORPORATION 245-64 (1977) (discussing structural determinants of behavior in organizations)
139. Schultz, supra note 16, at 1890-91 (noting the importance of work to behavior and identity).
140. See ROBERT E. LANE, THE MARKET EXPERIENCE 241-54 (1991) (describing several studies examining the impact of work experience on psychological development).
141. See George A. Akerlof & Rachel E. Kranton, Economics and Identity, 115 Q.J. ECON. 715, 727-32 (2000) (offering a model of economic analysis based on identity considerations)
142. Akerlof & Kranton, supra note 72, at 19-22 (providing examples of situations in which an employee's identity impacted economic productivity).
143. For those seeking further guidance, business consultants havededicated numerous books to explaining how to construct an identity-based brand-management program
144. See, e.g..CORPORATE BRANDING: PURPOSE/PEOPLE/PROCESS, supra note 1 (collecting expert advice on internalbranding mechanisms)
145. F. JOSEPH LEPLA & LYNN M. PARKER, INTEGRATED BRANDING: BECOMING BRAND-DRIVEN THROUGH COMPANY-WIDE ACTION 103-05, 178 (1999) (explaining the benefits ofintegrated branding, the role of brand seminars, and strategies for integrated branding); sources cited supra note 4 (listing sources explaining the significance and value added by branding)
146. see also LlBBY SARTAIN & MARK SCHUMANN, BRAND FROM THE INSIDE: EIGHT ESSENTIALS TO EMOTIONALLY CONNECT YOUR EMPLOYEES TO YOUR BUSINESS 127, 137(2006) (discussing internal branding principles developed at Soudiwest Airlines and applied at Yahoo!). A typical branding process follows the same path whether designed to apply to the firm's target consumer market or internally, to its employees. Mitchell, supra note 7, at 103-04.
147. See, e.g., Christoph Burmann & Sabrina Zeplin, Building Brand Commitment: A Behavioral Approach to Internal Brand Management, 12 J. BRAND MGMT. 279, 282-84 (2005) (outlining the seven dimensions of brand-citizenship behavior)
148. Sandra Jeanquart Miles & Glynn Mangold, A Conceptualization of theEmployee Branding Process, 3 J. RELATIONSHIP MKTG. 65, 68 (2004) (defining "employee branding" as the process by which employees adopt abrand image and subsequendy project diat image to customers); Mitchell, supranote 7, at 105 (noring examples such as Apple, Disney, and virgin Airlines, where brand "zealotry" exists bodi "inside and outside the company").
149. Pierre Berthon, Michael Ewing & Li Lian Han, Captivating Company: Dimensions of Attractiveness in Employer Branding, 24 INT'L J. ADVERTISING 151, 153-54 (2005). Workplace cultural-profiling programs are used to enforce commitment to the firm's values and to reinforce cohesiveness by disciplining workers who direaten the firm's culture
150. Laura Morgan Roberts & Danyl D. Roberts, Testing the Limits of Antidiscrimination Law: The Business, Legal, and Ethical Ramifications of Cultural Profiling at Work, 14 DUKE J. GENDER L. & POL'Y 369, 373 (2007).
151. Miles & Mangold, supra note 80, at 71-74.
152. Id. at 77-78.
153. Id. at 74-77.
154. Id. at 78-79.
155. Jane E. Dutton, Janet M. Dukerich & Celia V. Harquail, Organizational Images and Member Identification, 39 ADMIN. SCI. Q, 239, 244-45 (1994).
156. Mats Alvesson & Hugh Willmott, Identity Regulation as Organizational Control: Producing the Appropriate Individual, 39 J. MGMT. STUD. 619, 622 (2002).
157. Mitchell, supra note 7, at 105. For example, internet and high-technology firms often seek workers who are receptive to their employers' "rebellious" organizational identities, so that the workers' occupational identities align with the firm's mission.
158. See ALAN HYDE, WORKING IN SILICON VALLEY: ECONOMIC AND LEGAL ANALYSIS OF A HIGH-VELOCITY LABOR MARKET 145 (2003) (discussing a job-placement website called dice.com that "'captures fairly well the type of high-rolling lifestyle that high-end contractors aspire to'" (citation omitted))
159. see also infra Part III.C.1 (discussing Southwest's efforts to hire only employees who are a perfect fit with its brand values); infra Part III.C.2(discussing Disney's elaborate interview and selection process).
160. Burmann & Zeplin supra note 80, at 285
161. Punjaisri & Wilson, supra note 6, at 68. At Whole Foods, for example, potential hires are integrated into a team for a four-week probationary period, after which coworkers vote on whether the new employee stays or departs; atwo-thirds vote is needed to join the team. Whole Foods also links compensation through its profit-sharing program to team performance rather than to individual performance, incentivizing team members to choose new hires carefully-they are hiring coworkers, not friends. Tamara J. Erickson & Lynda Gratton, What It Means to Work Here, FfARV. BUS. REV., Mar. 2007, at 104,107.
162. New hires at the Container Store, for example, participate in a five-day training experience and receive at least 235 hours of formal training in their first year of work, contrasted with the retail-industry average of seven hours of training. This intensive orientation and indoctrination results in a significantly lower turnover rate and fosters deep commitment by employees to the store's mission. Erickson & Gratton, supra note 89, at 108-09.
163. See IRVING L. JANIS, GROUPTHINK: PSYCHOLOGICAL STUDIES OF POLICY DECISIONS AND FlASCOES 35 (1982) (explaining impact on employee behavior of sharednorms and values, and emphasizing importance of "esprit de corps").
164. CAPPELLI, supra note 20, at 190-91
165. see Lawrence E. Mitchell, Trust and Team Production in Post-Capitalist Society, 24 J. CORP. L. 869, 905-06 (1999) (discussing studies showing that organizational commitment and a shared group identity enhance productivity).
166. CAPPELLI, supra note 20, at 191.
167. Id.
168. Id. at 218.
169. Id. at 218-19.
170. (noting how the "fundamental tension of modem life" is the conflict between desire to individuate andthe desire to be part of something larger than ourselves; marketing brand communities to consumers offers a path to resolving the tension)
171. Id. at 257 ("Few stronger emotions exist than the need to belong and make meaning. And brands are poised to exploit diat need." (quoting an ad-agency executive)).
172. Burmann & Zeplin, Supra Note 80, at 285.
173. Mitchell, supra note 7, at 101-02.
174. See, e.g., Burmann & Zeplin, supra note 80, at 284-86 (discussing importance of brand citizenship behavior)
175. see also Punjaisri & Wilson, supra note 6, at 61-66 (describing a survey of hotel employees in Thailand that demonstrated the importance of delivering on the brand promise to customers through employees' brand-supportingbehaviors).
176. Mitchell, supra note 7, at 104-05.
177. Miles & Mangold, supra note 80, at 80-81.
178. John Sullivan, Don't Be Fooled by Employment Branding: What It Is and What It Is Not! 2 (Jan. 28, 2007) (unpublished manuscript),available at http://www.drjohnsullivan.com/articles-mainmenu-27/articles/employment-branding- mainmenu-30/159-dont-be-fooled-by-employment-branding-what-it-is-and-what-it-is- not?format=pdf. An exampleof effective viral marketing is the development of a restaurant's reputation-it is not accomplished by advertising, it is accomplished byword of mouth, restaurant reviews, and "buzz."
179. LEPLA & PARKER, supra note 79, at 5 (listing among the benefits of integrated branding "high company financial valuations and less share price volatility").
180. Mitchell, supra note 7, at 103.
181. See IND, THE CORPORATE BRAND, supra note 4, at 13 (describing outdoor gear company Patagonia, its brand, and the relationship between its external marketing and employees' values).
182. See Fortune, 100 Best Companies to Work For, http://money.cnn.com/ magazines/fortune/bestcompanies/2010/index.html (last visited Apr. 14, 2010) (listing SAS, Edward Jones, and Google as three of Fortune magazine's 2010 100 best companies to work for).
183. SARTAIN & SCHUMANN, supra note 79, at 11-12, 53.
184. Id. at 23-24, 53.
185. Mat 19.
186. Id. at 203-04.
187. Id. at 39, 47.
188. Berthon, Ewing & Han, supra note 81, at 154
189. John Sullivan, Employment Branding: The Only Long-Term Recruiting Strategy 2 (Jan. 6, 2009) (unpublished manuscript), available at http://www.dijohnsullivan.com/articles-mainmenu-27/employment-branding-mainmenu- 30/183-employment-branding-the-only-long-term-recruiting-strategy?format=pdf.
190. Mitchell, supra note 7, at 99.
191. See George A. Akerlof, Labor Contracts as Partial Gift Exchange, 97 QJ. ECON. 543, 546-50 (1982) (hypothesizing that workers are willing to work harder out of sentiment for the welfare of their coworkers)
192. Michel Anteby, Identity Incentives as an Engaging Form of Control: Revisiting Leniencies in an Aeronautic Plant, 19 ORG. SCI. 202, 215 (2008) (noting that identity incentives may lessen the importance of other organizational incentives, such as financial compensation).
193. LEPLA & PARKER, supra note 79, at 5
194. Miles & Mangold, supra note 80, at 70
195. see Rob Duboff & Carta Heaton, Employee Loyalty: A Key Link to Valuable Growth, STRATEGY & LEADERSHIP, Jan.-Feb. 1999, at 8, 9 (reporting on a study demonstrating that firms that implemented initiatives designed to enhance employee loyalty had higher stock-price-to-book-value ratios than those that did not).
196. IND, THE CORPORATE BRAND, supra note 4, at 86-87
197. see also Punjaisri & Wilson, supra note 6, at 60 (explaining that internal branding is critical to bridge gaps across a heterogeneous workforce).
198. IND, THE CORPORATE BRAND, supra note 4, at 84-85
199. see also WALKER INFO., supra note 60, at 31 (observing that communityjoining is "a human phenomenon, [and] we are social beings⋯. If community gets lopped off over here, it will emerge somewhere else" (quoting Albert Muniz)).
200. IND, THE CORPORATE BRAND, supra note 4, at 83-85.
201. DU GAY, supra note 16, at 10.
202. Akerlof, supra note 115, at 549-50
203. Burmann & Zeplin, supra note 80, at 284
204. Rafael Gely, The Law and Economics of Identity, 14 DUKE J. GENDER L. & POL'Y 229, 236 (2007)
205. see Scott Baker, Should We Pay Federal Circuit Judges Morel, 88 B.U. L. REV. 63, 73 (2008) (arguing that judges' interest in status, prestige and the opportunity to influence policy compensates for the absence of higher pay scales).
206. Akerlof & Kranton, supra note 72, at 15
207. Gely, supra note 121, at 236.
208. Gely, supra note 121, at 240-41.
209. See Olivier Herrbach & Karim Mignonac, How Organisational Image Affects Employee Attitudes, HUM. RESOURCE MGMT. J., Nov. 2004, at76, 78 (finding that employees infer parts of their own individual identities from the firm's organizational identity and are most likely to identify with a firm diat enjoys a positive image because association with the firm bolsters employees' self-image; further, perceived external prestige of the firm correlates positively with employee job satisfaction).
210. Anteby, supra note 115, at 209, 211-12. Anteby studied occupational identities at a French aeronautics plant. He found that a policy of managerial tolerance for the use of company-owned tools and materials during working time to create artifacts such as kitchenware, toys, miniature engines, and otheritems for personal use (called "homers" in factory lingo) fostered occupational identities in the subset of workers who crafted them. Id. at 204. Because manufacturinghomers is a cooperative endeavor involving multiple participants, their production assists in creating a collective identity; at the same time, their creation reinforces and enhances the craft identitiesof those who make them, sometimes in ways that differ from the workers' assigned jobs. Id. at 205, 207-11. Since workers valued and desired the occupational identity that homer-making conferred, managerialtolerance for this otherwise unlawful practice became a form of compensation, and thus an implicit locus of discipline and control. Id. at 211-12. Anteby concluded that the firm was well aware of the significance of occupational identity organized around the creadon of homers and that it deliberately exploited lenience as a tool to control the workers and enhance production. Like branding, homer-creation served several positive functions for the firm: it enhanced worker morale, improved relations between craftsmen, facilitated cooperationin production, and kept craftsmen engaged during periods of reduced activity. Id. at 211-12.
211. Id. at 213.
212. Id. at 217. Anteby theorized that occupational-identity incentives might be especially appealing to workers whose formal labor does not affirm the occupational identity to which they aspire, suggesting that group identification might be most appealing to lower-level service workers whose jobs are inherently unrewarding and do not affirm the identities that they envision for themselves; the opportunity to enact a desired, affirming identity would likely be most valuable to them. Id. at 209.
213. Anixter, supra note 74, at 162. Anixter describes in considerable detail the philosophy of her collaborator Tom Peters and his trademarked process entided "Brand Inside/Brand Outside," defined as "the systemicdevelopment of the organization's brand promise broughtto life through the committed action of every employee for every customer experience." Id. at 164
214. see also tompeters!, http://www.tompeters.com/ (last visited Feb. 26, 2010) (featuring branding resources created by Tom Peters).
215. Sartain, supra note 6, at 91.
216. STANLEY DEETZ, TRANSFORMING COMMUNICATION, TRANSFORMING BUSINESS: BUILDING RESPONSIVE AND RESPONSIBLE WORKPLACES 87 (1995).
217. Alvesson & Willmott, supra note 87, at 622. Of course, employees are more than "passive consumers of managerially designed and designated identities," and certainly the firm is not necessarily the most powerfulinfluence inidentity formation for all. Id. at 621. Indeed, as some sociologists have noted, employees may be aware of the superficiality of their branded identities and may refuse to buy into the underlying organizational identity being imposed upon them, striving instead to preserve their authentic identities and multiple selves in the "unmanaged spaces" of their work.
218. See, e.g., Sharon C Bolton & Carol Boyd, Trolley Dolly or Skilled Emotion Manager? Moving On from Hochschild's Managed Heart, 17 WORK, EMP. & SOC'Y 289, 295, 301-03 (2003) (reporting the results of a study of emotion work performed by airline cabin crew employees and explaining that the employees were aware that they were offering "empty performance [s]" in work roles pursuant to their obligations to their employer, but did not necessarily internalize the norms established by the company). Nevertheless, most researchers agree that corporate "identity regulation" remains a powerful "modality of organizational control." Alvesson & Willmott, supra note 87, at 621.
219. The branding programs discussed in diis Part are well-known and intensively studied. By including them I do not mean to imply that the law should regulate these particular branding programs more intensively. Southwest and Disney, for example, are unionized. Thus, employees at these firms enjoy just-cause protection against discharge under their collective-bargaining contractsand a union represents their interests with regard to their pension plans.
220. Sandra Jeanquart Miles & W. Glynn Mangold, Positioning Southwest Airlines Through Employee Branding, 48 BUS. HORIZONS 535, 543 (2005). In 2003,Southwest received the Kozmetsky Award for Branding Excellence and the 2004 Performance Through People Award, among many other positive rankings. Id. at 536
221. see alsoJODY HOFFER GlTTELL, THE SOUTHWEST AIRLINES WAY: USING THE POWER OF RELATIONSHIPS To ACHIEVE HIGH PERFORMANCE 3 (2003) (describing the degree to which the business press has showcased and celebrated Southwest),
222. Miles & Mangold, supra note 133, at 543.
223. Id. By comparison, Southwest's closest competitor, Jet Blue, has a 10-12% turnover rate. Id.
224. Id. at 544.
225. Id.
226. see also GREG J. BAMBER ET AL., UP IN THE AIR: How AIRUNES CAN IMPROVEPERFORMANCE BY ENGAGING THEIR EMPLOYEES 87 (2009) (observing that Southwest'sbusinessstrategy was predicated on attaining rapid turnaround at gates through high employee productivity and coordination)
227. KEVIN FREIBERG & JACKIE FREIBERG, NUTS! SOUTHWEST AIRUNES' CRAZY RECIPE FOR BUSINESS AND PERSONAL SUCCESS 57-60 (1996) (noting that efficient turnaround times require high levels of cooperation between employees in many parts of theorganization)
228. THOMAS PETZINGER, JR., HARD LANDING: THE EPIC CONTEST FOR POWER AND PROFITS THAT PLUNGED THE AIRLINES INTO CHAOS 286-87 (1995) (noting relationship betweenmanagement techniques fostering workforcecoordination and Southwest's business model, which would not be sustainable absent short turnaround times at gates).
229. Miles & Mangold, supra note 133, at 541
230. see also GlTTELL, supra note 133, at 119-21. Southwest's fabled sense of humor and the fun-loving spirit that characterizes its workforce has sometimes gone over the line. In one reported case, Southwest supervisors celebrated a customer-service agent's successful completion of her probationary period by staging an elaborate prank in which she was arrested by two police officers, handcuffed, andescorted to a nearby elevator. Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1200-01 (10th Cir. 2006). The employee brought suit under 42 U.S.C. § 1983against the police officers and the city alleging violations of her Fourth and Fourteenth Amendment rights, as wellas tort claims for false arrest, intentional infliction of emotionaldistress, conspiracy, false imprisonment, assault and battery, and she also brought suit against the airline for defamation. Id. at 1202. Thedistrict court granted summaryjudgment for the defendants on all claims, but the appellate court allowed the action to proceed against the city while affirming the grant of summary judgment for theemployer on the state tort claims, finding that a workers' compensation claim was the employee's exclusive remedy. Id. at 1202,1214. The Tenth Circuit took judicial notice of the fact that Southwest's "lighthearted image" permeated not only its customer relations and marketing approaches, but also its corporate culture. Id. at 1200. The court described otherpranks played upon employees who had recently completed a probationary period, and observed that the record showed that horseplay (pranks) was a "regular incident of employment at Southwest," and thus "'something reasonably to be expected.'" Id. at 1212 (citing Leonbruno v. Champlain Silk Mills, 128 N.E. 711,711 (N.Y. 1920)).