Private Law Theory

ABSTRACT
The regulation of employee data presents a complex legal challenge at the intersection of privacy, property, and liability rules. Current frameworks primarily rely on liability rules, where employers are permitted to collect and use employee data as long as they provide compensation for any resulting harm. However, this approach fails to account for the power imbalances in employment relationships and the increasing economic value of worker data. This article explores how property and inalienability rules could provide stronger protections for employee data rights. Property rules would allow employees to maintain control over their data, requiring employers to negotiate for its use rather than unilaterally collecting and processing it. This shift would encourage fair bargaining, potentially through collective representation such as unions, ensuring that workers share in the value derived from their personal data. Meanwhile, inalienability rules could protect particularly sensitive categories of worker data – such as biometric information or private communications – by imposing strict limitations on their collection and use. The discussion builds on Calabresi and Melamed’s influential framework of liability, property, and inalienability rules, applying it to the evolving landscape of workplace data protection. While liability-based models dominate current regulation, this analysis suggests that integrating property and inalienability protections could help balance employer control with employee autonomy. By rethinking the rules governing employee data, this article advocates for a more equitable approach that aligns with modern privacy concerns and the growing commodification of personal information.

Bodie, Matthew T, Liability, Property, and Inalienability Rules in Employee Data Regulation (June 30, 2025), Comparative Labor Law & Policy Journal, forthcoming 2025.