Carl v. Children's Hospital

*166 FERREN, Associate Judge,

with whom MACK, Senior Judge, joins, concurring:

I join the per curiam opinion. I join Judge TerRY’s Part IA. (except for the last clause rejecting Ms. Carl’s “other arguments”). I also join Judge Terry’s Part II (except for footnote 9 rejecting “Ms. Carl’s other two arguments”). In addition, I join Judge Schwelb’s and Judge Mack’s opinions (including Judge Mack’s dissent at division in Carl v. Children’s Hospital, 657 A.2d 286 (D.C.1995)), which elaborate very ably why the public policy exception to the at-will employment doctrine applies more broadly than Judge TERRY would have it in Part IB. of his opinion.

I write separately to address the dissenting opinion of Judge Steadman calling upon critics of the at-will doctrine to address their concerns not to this court but exclusively to the legislature, “the body that is ... manifestly better positioned to make such determinations.” Post at 196. I believe that Judge Steadman ignores the traditional, continuing responsibility of the courts to keep shaping the common law in response to evolving cultural norms, as applied to changing social and economic circumstances.

I.

A.

Judge Steadman would require that “public policy exceptions to the at-will employment doctrine be fashioned exclusively by the legislature” because, first, “the legislature is the proper organ of government to make and define the scope of public policy.” Post at 197. He is half right—and thus half wrong. The courts as well as the legislature unquestionably—and legitimately—make public policy every day; “it is indisputable that our legal system assigns to courts a creative role in improving law.” 1 Indeed, “[a] tradition of law improvement by creative judicial action has been part of the common law system from a point as near its beginnings as a custom can be said to have become tradition.” 2

This court sitting en banc has noted that, at the time of Blackstone, “adjudication consisted of a search for the right or true rules of law [i]n accordance with the thesis that they always had been the law.” 3 Because judges accordingly “found” the law, they could not be said to have “made” law. Later, the positivist school represented by John Austin “conceived of judges not as mere discoverers but as active creators of the law.” 4 In overruling precedent, therefore, judges in Austin’s eyes did not merely discover error, as Blackstone would have it; they participated, rather, in “the dynamic process of redefinition and reformation that advanced the evolution of the law.” 5 This latter view is the more realistic one. Common law judges from time to time do “make” law, however incrementally; indeed, they always have done so.

In this jurisdiction, for example, the United States Court of Appeals for the District of Columbia abolished common law charitable immunity, allowing a nurse acting in the course of duty, to recover damages from her nonprofit hospital employer for injuries caused when another hospital employee violently—and thus negligently—pushed a *167 swinging door into her. 6 Later, that court declared a furniture store installment sale contract unenforceable because its terms were “unconscionable”—a clear declaration and application of public policy, by judges, to protect consumers against a retailer’s overreaching. 7 In doing so, the federal court was exercising its discretionary appellate authority at the time to overrule this court, which had held that the consumer should look not to the courts but to Congress for relief. 8 A few years later, in an expansive act of statutory interpretation, the same federal court ruled that a landlord could not lawfully retaliate by evicting, on the usual thirty days’ notice, a month-to-month tenant who had reported housing code violations on the premises, despite the absence of any provision in the housing law that could be read as expressly prohibiting retaliatory eviction. 9 Again, the court overruled this court, which had seen no such provision and said: “If, as some believe, the law relating to landlords and tenants is outdated, it should be brought up to date by legislation and not by court edict.” 10

This court had not always declined to advance the law where the public lacked adequate protection. In 1962, for example, in a products liability suit for breach of implied warranty, we eliminated the common law privity requirement which had prevented users of defective products from suing the manufacturers. 11 Noting that “[mjethods of commerce have drastically changed in the twentieth century,” we invoked public policy to change the applicable rule of law:

The policy of protecting the public from injury ... outweighs allegiance to a rule of law which, if observed, might produce great injustice. It is a new obligation attendant upon a new era.... Irrespective of the early rulings in this jurisdiction ... we are convinced that the buying public in the District of Columbia is better protected by eliminating the requirement for contractual privity. . . . [12]

In 1978, this court again changed the law by extending the basis for manufacturer’s liability from breach of implied warranty to strict liability in tort, and from the sale of goods to the sale of newly constructed cooperative homes. 13 Twelve years later, in 1990, this court further expanded the law, changing the rule governing recovery of damages for negligent infliction of emotional distress. Previously, recovery had been limited to eases where the emotional injury flowed from direct physical injury; we rewrote the law, modestly, to allow recovery without physical injury if the plaintiff, in witnessing physical danger to a member of her immediate family, was in a zone of physical danger herself and, as a result, feared for her own safety. 14 Over fifty years earlier in 1989, the federal court of appeals had called the rule we eventually discarded in 1990—barring recovery for “ ‘mental pain or suffering caused by shock from the accident, not traceable to the physical injuries’ ”—a rule of law “counter to the whole current of modern authority.” 15 At that time, in recognizing a new tort of intentional infliction of emotional distress resulting in physical harm, the court elaborated on its role as law-maker:

[I]f we are in one of the “open spaces” in the law of this jurisdiction we must fill it as well as we can, with a view to the social *168 interests which seem to be involved and with such aid as we can get from authorities elsewhere and from “logic, and history, and custom, and utility, and the accepted standards of right conduct.” We cannot evade this duty; for unless we establish a right in the plaintiff we establish a privilege or immunity in the defendant. The fact that the question is novel in this jurisdiction does not mean that the plaintiff cannot recover. [16]

Judge Steadman’s deference to the legislature as the exclusive source for law reform through the application of public policy, therefore, is entirely -out of step with the traditional law-making role the courts of this jurisdiction have long carried out as custodians of an ever-evolving common law. Without doubt, there are two agencies for change in the law that seek to identify and apply sound public policy: the legislature and the courts.

B.

Plainly, employment law falls within the law-making function of the courts, as well as the legislature. Whatever one thinks of the at-will employment doctrine, the praise or blame belongs, historically, to the state courts, which invented it. At English common law, employment for an indefinite duration was presumed to be for a year. 17 In the United States, however, the courts sooner or later adopted the at-will employment doctrine, as articulated in an oft-cited 1877 legal treatise by Horace G. Wood. 18

There has been a lively debate whether Wood actually created the at-will rule himself or based it on discernible precedent. 19 There also has been controversy over whether the rule had its origins in economic pressures 20 or, more parochially, in the courts’ desires to free their dockets of employment eases believed unsuitable for juries to decide. 21 Apparently no one, however, disputes the origins of the at-will doctrine: the courts, not the legislatures.

The mid-nineteenth century codification movement led by David Dudley Field in New York reflected proposed codifications of judge-made employment law, not a fresh legislative initiative focused on developing the best rules; 22 and, to the extent state legislatures adopted the at-will employment rule later in the nineteenth century, they borrowed the approaches adopted earlier by the states’ highest courts. 23 This is not to say the legislatures had no proper role in the field, then or now. It is to say that the courts were the first public institutions to get involved in identifying and applying the fundamental norms governing employer-employee relationships.

*169 Obviously, the legislature got busy in the employment field as issues of child labor, industrial safety, minimum wages, and trade unions emerged, although for awhile the Supreme Court used substantive due process to limit what the legislature could do. 24 As the twentieth century unfolded, however, various legislative protections for employees began to survive. In the very term when the Supreme Court protected an employer who had discharged an employee for union activity, 25 the Court was persuaded by attorney Louis D. Brandéis to uphold the constitutionality of an Oregon law limiting women’s factory work to ten hours a day. 26

This is not to say, however, that the courts began to lose their own traditional common law role as the legislature started to protect employees. To the contrary, this court held not long ago in Adams v. George W. Cochran & Co., 597 A.2d 28, 30-34 (D.C.1991)—on the basis of a common law “public policy exception”—that an at-will employee has a claim in tort for wrongful discharge if fired because of her refusal to violate a statute or municipal regulation. The en banc court holds today, moreover, that we retain a role in fashioning exceptions to the at-will rule when circumstances dictate change. Judge Steadman, however, takes an exceptionally extreme position, basically saying: the legislators over the years have shown enough involvement with employer-employee rights for us to get out of the business and let them take charge of the at-will issue entirely. (Under the logic of his analysis, therefore, we should overrule Adams today to permit the Council to decide what happens when an employer fires an employee for a refusal to break the law at the employer’s request.)

My purpose here is to show that the dissenting attitude reflects, really, an abdication of the role of common law judges, at least in the employment field. As elaborated below, this court, no less than the Council of the District of Columbia, has a legitimate responsibility for deciding what public policy exceptions to the at-will doctrine should be acknowledged and applied. The Council can override our decisions if it finds them undesirable, but, until the Council does so, our decisions based on public policy are as legitimate in changing the law applicable to at-will employment as any rule of law the Council itself may choose to adopt.

II.

A question immediately suggests itself: are there no limits on the court’s law-making authority in the employment field? Appellee Children’s Hospital says there are limits and offers mostly a practical, not a normative, response. It argues that the legislature should assume full responsibility for enacting all wrongful discharge law because litigation to establish new legal theories in this field is counter-productive. The hospital says that litigation is too costly; employee wages are therefore suppressed by the employer’s need to allocate resources for defense of novel wrongful discharge claims; most suits are brought by ex-employees who belonged to the managerial and professional ranks, not by lower-level workers, so the public overall will not benefit from expanded theories of recovery; litigation requires years before resolution; lawyer enrichment is a principal benefit; wrongful discharge claims where the courts step in breed doctrinal confusion and unpredictability for employer and employee alike; for all these reasons alternative dispute resolution is to be preferred over litigation; and, in any event, legislation is superior to any wrongful discharge rules a court is likely to fashion—in particular, legislation along the lines of the Model Employment Termination Act (META) 27 drafted by the National Conference of Commissioners on Uniform State Laws.

Virtually all these reasons could be applied to any legal field where a claimant asserts common law rights through litigation; appel- *170 lee, fundamentally, is opposed to lawsuits. As to the preference for alternative dispute resolution, it is important to recognize that arbitration, as well as mediation, are as available for common law, as for statutory, claims; in this jurisdiction trial courts are authorized to push such alternatives before trying any civil lawsuit when circumstances suggest they might help. 28

If we recognize (as we must) that wrongful discharge claims are going to be made, the issue then posed is whether new wrongful discharge law should be made, as appropriate, by common law litigation or only by legislation. I say that both should be available, for two reasons.

First, comprehensive legislation is not necessarily going to provide more equitable results, or less litigation, than individual lawsuits. A Montana statute broadly permitting discharge of employees only for “good cause” is an example of legislation that apparently has resolved very little and, quite obviously, invites litigation. 29 Moreover, adoption of META—even if we assume it to be the most carefully crafted, equitable formulation available—is not going to be a panacea that eliminates, or even necessarily reduces, litigation. Statutes spawn lawsuits, just as the common law does, and the fundamentals of META have been seriously challenged. 30 In sum, no one has established to my satisfaction that we ought simply to abandon our common law responsibility to evaluate wrongful discharge claims on their merits, in favor of waiting for comprehensive legislative treatment that is likely to present its own controversies, its own vortex of litigation, and—of considerable significance—may never come to pass here.

Second, the Council over the years has chosen to treat employment discharge issues on an individual, not a comprehensive, basis much like the court itself deals with particular cases. This not only leaves room for both law-making institutions to act but also reflects a pattern where the Council can be said to have invited the local courts to continue taking their common law initiatives.

Specifically, the Council has enacted legislation to provide administrative and/or judicial remedies against an employer who: fires an employee for serving on jury duty, 31 discharges an employee who seeks worker’s compensation benefits for on-the-job injury, 32 lets an employee go for a wide range of discriminatory reasons, 33 discharges an employee for complaining about health and safety violations, 34 fires someone for filing charges against an employer who violates the employee’s right to family and medical leave, 35 retaliates against a “whistleblowing” D.C. government employee who discloses to a superior, or to a public body, a violation of law or misuse of government resources, 36 or discriminates against any employee for providing information in connection with an investigation of a potentially improper government contract. 37

When the Council recently looked at a wrongful discharge issue, it focused exclusively on a very narrow, precisely drawn concern: protection of employees who provide food, janitorial, and nonprofessional health care services. The Council enacted legislation that requires contractors who take over contracts for the provision of such services to hire their predecessors’ employees for a period of ninety days and, after evalua *171 tions, to offer continued employment if per-formanee has been satisfactory. 38 Remedies of back pay and costs, including attorney’s fees, are provided. 39 Of significance here, this legislation also provides:

This chapter shall not be construed to limit an employee’s right to bring a common law cause of action for wrongful termination. [40]

Even more recently, in the context of a government procurement statute affording whis-tleblowers the right to sue their employer if subjected to retaliatory discharge, the Council provided:

The provisions of this act are not exclusive, and the remedies shall be in addition to any other remedies provided for in any other law or available under common law. [41]

Legislation typically is the result of initiative and advocacy by groups interested in particular issues. The legislative list of wrongful discharge provisions in this jurisdiction obviously indicates evidence of employer retaliation against employees in a variety of situations that employee groups have brought, forcefully, to the Council’s attention. We cannot say from this diverse list, however, that the legislature is perfectly satisfied with the law as is. Legislative inaction in one or more particular areas does not necessarily signify a legislature’s endorsement of the status quo.

Furthermore, there is no indication that the Council has expressed, or implied, a desire to keep the wrongful discharge area to itself. To the contrary, as we have seen, when recently enacting displaced workers legislation the Council expressly preserved the “employee’s right to bring a common law cause of action for wrongful termination.” 42 The Council, of course, has shown that it knows how to cover a field; we would be entirely off base if we were not to conclude that the Council had preempted, for example, the legal fields represented by the exhaustive list of Human Rights Act prohibitions against discrimination in employment, 43 or the comprehensive Rental Housing Act rules governing evictions of tenants at will, 44 or the detailed Workers Compensation Act provisions addressing on-the-job injuries. 45 But wrongful discharge legislation, enacted in individual pieces over the years, leaves room for common law courts to complement the legislature by acting “in one of the ‘open spaces’ in the law of this jurisdiction” 46 to address on the merits, “yes” or “no,” the claims of litigants like Linda Carl, rather than simply punting the subject to the legislature—unless, of course, there are other persuasive reasons why, in this particular area of the law, the legislature is the only agency of government that should act. I turn, more specifically, to that final inquiry.

III.

Judge Steadman offers two reasons why he believes the legislature is better suited than the court to address the subject: “public policy exceptions fashioned by the legislature have the benefit of providing clear notice to employers and employees prior to accrual of a cause of action,” post at 197, and “the nature and extent of the remedy provided by legislatively enacted public policy exceptions can be tailored to fit the harm in accordance with existing statutes in a way we cannot,” post at 197.

Before specifically addressing these points, I would note that Judge Steadman’s views— broadly attacking the court’s invocation of public policy to change the common law— *172 cannot logically be limited to employment law; they represent a broadside against virtually any law-making we are called upon to do as a common law court. I read in Judge Steadman’s reasoning a repudiation of all evolutionary changes the courts of this jurisdiction have adopted in our local jurisprudence of the kinds illustrated earlier in Part I., whether in the areas of consumer credit protection, landlord and tenant relations, infliction of emotional distress, or manufacturer’s liability. My colleague’s principles, in short, comprise an attack on this court’s common law role, not merely on our possible expansion of an employment rule.

A.

As to my colleague’s concern about notice, it is true that a statute commonly is written to operate prospectively (although that is not always the case 47 ), whereas a judicial decision typically will apply a new rule in favor of the party who advocated it, even though the loser will be told after the fact that he or she committed a wrong. The common law, however, has always evolved in this way, but usually with plenty of warning from legal articles and treatises, from developments in other states, and even from prior judicial decisions that fire warning shots across the bow in the jurisdiction where a change eventually is made. I doubt that the parties who lost the decisions in the cases discussed earlier were greatly surprised; surely the lawyers had counseled their clients that change might be coming (so that settlement might prudently be pursued). Moreover, in many if not most of the cases, legal counsel is likely to have given their clients warnings before the conduct found actionable took place.

In any event, the courts, like the legislature, rule prospectively when circumstances warrant. 48 Courts can be as flexible as the legislature in announcing the impact of new judicial doctrine. Almost twenty years ago, for example, this court, sitting en banc, provided four criteria 49 to govern when a new rule of law announced by the court should apply retroactively, partially retroactively to give the prevailing party the benefit of the new rule but otherwise prospectively, or purely prospectively. Judge Steadman’s “notice” rationale, therefore, is weak indeed.

B.

The suggestion that the legislature can fine-tune remedies more effectively than the courts is also overstated. Of course legislatures can grant particular remedies and withhold others, including attorney’s fees as an incentive or disincentive. But so can the courts. Historically, courts of equity came into being precisely because the law courts, affording damage remedies, had too little flexibility in granting appropriate relief. The courts today, therefore, including the courts of this jurisdiction, have considerable flexibility in crafting remedies, and there is no reason to suppose—if we were to announce a new public policy exception to thwart a particular at-will discharge—that we could not adequately evaluate the circumstances for purposes of deciding whether an equitable remedy, such as reinstatement, should ac *173 company a legal remedy awarding back pay or other damages.

IV.

The development of the law has always been dynamic, with courts and legislatures alike initiating change as situations are presented. Sometimes the legislatures follow the courts, as they did, for example, when adopting the Uniform Commercial Code that incorporated the doctrine of unconseionability, 50 recognized first as a common law development; 51 or when enacting, in this jurisdiction, legislation reflecting earlier judicial action 52 to protect tenants against retaliatory eviction for reporting housing code violations. 53

On other occasions the courts follow the legislature, as this court did, for example, by interpreting the Council’s legislation governing summary possession actions as preempting the landlord’s common law right of self-help to evict a tenant. 54 Similarly, we held that when the Council enacted a statute requiring employers to provide reasonably safe working conditions for wage earners, the common law defense of contributory negligence could not be used to bar recovery for an injury caused by the employer’s failure to comply with the statute and related regulations. 55 The fact that the legislature has acted one or more times in a broad area of the law, therefore, does not mean that the courts are duty-bound to stay entirely away from it. To the contrary, the courts often have to change common law rules in that area to help make the new legislation work. As I see it, therefore, only when the legislature enacts a comprehensive, preemptive statutory scheme is the court precluded from introducing common law modifications of the rights the legislature created.

Furthermore, if the courts move too far into an area the legislature wants for itself, or even if the legislature merely dislikes what the courts do in a substantive area the legislature has never touched, the legislature can erase a judge-made law (a prerogative the court itself has over the legislature only in the event legislation is held unconstitutional). The Council has shown it can override, sometimes swiftly, any statutory interpretation not to its liking 56 and thus easily could abolish, if it wishes, any common law defense or remedy we might create in the employment area.

What we have, therefore, are two dynamic lawmakers—generators of public policy— that function sometimes in separate spheres (e.g., common law courts do not enact criminal laws) but typically act, as I have tried to *174 demonstrate, to improve the law in the same arenas; e.g. landlord and tenant, consumer protection, tort law, and employer-employee relations. It is important to keep in mind that the ideas underlying some of the very statutes that protect people against unconscionable and retaliatory behavior reflect doctrines created by the courts interpreting an evolving common law. In fact, to bring the analysis squarely to the case before us, the United States Court of Appeals for the District of Columbia Circuit, in using public policy to ban retaliatory evictions, relied by analogy on a California ease that was the first to apply the public policy exception to an employer’s retaliatory, and thus wrongful, discharge of an employee. 57

My concern here is not so much whether this court rejects a particular proffered basis for adopting a public policy exception to the at-will employment rule—though I certainly agree with my colleagues in the majority that Carl should be permitted to proceed with her claim. My principal concern, rather, is that some members of the court would reject such an exception automatically, out of a blind deference to a conclusively presumed legislative prerogative. To the contrary, however, the history of the common law in this country shows that courts and legislatures alike make law on the basis of public policy. The courts, of course, must be cautious and judicious in doing so out of profound regard for the fact that judge-made law should only bring change, usually incremental in nature, that corresponds to norms which the public-at-large has predominantly accepted—or very likely would find acceptable.

Reasonable persons will differ over how far the courts should go in any particular situation, but one should not lose sight of the legislature’s prerogative to overrule court decisions when no constitutional issue is involved. The court’s common law duty to assure a just result in areas where the legislature has remained silent—and where injury demands a remedy—coupled with a legislative check on adjudication that goes too far, reflects a judicial law-making tradition I am not willing to repudiate in this case or any other.

For the foregoing reasons, and because I believe Judge Sohwelb, Judge Terry, and Judge MacK make the case for the public policy exception to apply here, I join the court in recognizing an additional exception to the at-will doctrine in this case. I strongly disagree with the rationale offered by the dissent to justify rejection of the majority’s approach.

. Robert E. Keeton, Venturing To Do Justice 11 (1969).

. Id. at 13.

. Mendes v. Johnson, 389 A.2d 781, 787 (D.C. 1978) (en banc).

. Id.

. Id.

. See President and Directors of Georgetown College v. Hughes, 76 U.S.App. D.C. 123, 130 F.2d 810 (1942) (enbanc).

. See Williams v. Walker-Thomas Furniture Co., 121 U.S.App. D.C. 315, 319, 350 F.2d 445, 449 (1965).

. See Williams v. Walker-Thomas Furniture Co., 198 A.2d 914 , 916 (D.C.1964).

. Edwards v. Habib, 130 U.S.App. D.C. 126, 397 F.2d 687 (1968).

. Edwards v. Habib, 227 A.2d 388, 392 (D.C. 1967) (footnote omitted).

. See Picker X-Ray Corp. v. General Motors Corp., 185 A.2d 919 (D.C.Mun.1962).

12. Id. at 923 .

. See Berman v. Watergate West, Inc., 391 A.2d 1351 (D.C.1978).

. See Williams v. Baker, 572 A.2d 1062, 1064 (D.C.1990) (en banc).

. Clark v. Associated Retail Credit Men, 70 App. D.C. 183 , 185 n. 6, 105 F.2d 62 , 64 n. 6 (1939).

16. Id. at 185 , 105 F.2d at 64 (quoting Benjamin N. Cardozo, The Nature of the Judicial Process 112, 113) (emphasis added) (footnote and additional internal quotation marks omitted).

. According to Blackstone:

If the hiring be general, without any particular time limited, the law construes it to be a hiring for a year; upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all revolutions of the respective seasons, as well when there is work to be done as when there is not.

William Blackstone, Commentaries on the Laws of England 425 (21st ed. 1847).

. According to Wood:

With us the rule is inflexible, that a general or indefinite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof.... It is an indefinite hiring and is determinable at the will of either party, and in this respect there is no distinction between domestic and other servants.

Horace G. Wood, A Treatise on the Law of Master and Servant § 134, at 272 (2d Ed. 1877).

. Compare J. Peter Shapiro & James F. Tune, Note, Implied Contract Rights to Job Security, 26 Stan.L.Rev. 335, 341 & n. 53-54 (1974) (arguing that none of the cases cited by Wood supported his rule) with Andrew P. Morriss, Exploding Myths: An Empirical and Economic Reassessment of the Rise of Employment At-Will, 59 Mo. L.Rev. 679, 756-60 (1994) (arguing that Wood was merely restating well-accepted legal principles) and Deborah A. Ballam, Exploding the Original Myth Regarding Employment-at-Will: The True Origins of the Doctrine, 17 Berkeley J. Emp. & Lab. L. 91 , 130 (1996) (same).

. See Ballam, supra note 19, at 125-28.

. See Morriss, supra note 19, at 683.

. See id. at 705-06.

. See id.

. See, e.g., Adair v. United States, 208 U.S. 161 , 28 S.Ct. 277 , 52 L.Ed. 436 (1908) (holding unconstitutional federal statute making it a crime for employer to discharge employee for union membership).

. See id.

. See Muller v. Oregon, 208 U.S. 412 , 28 S.Ct. 324 , 52 L.Ed. 551 (1908).

. Model Employment Termination Act, 7A U.L.A. 80-99 (Supp.1997).

. See Super. Ct. Civ. Arb. Prog. R. I (providing that all civil cases, with certain enumerated exceptions, may be assigned to non-binding arbitration by judges at any time and without consent of parties); District of Columbia Courts Annual Report (1995), at 54—56 (discussing Alternative Dispute Resolution ("ADR”) Program in which Mul-ti-Door Dispute Resolution Division facilitates mediation and conciliation, as well as arbitration).

. See J. Wilson Parker, At-Will Employment and the Common Law: A Modest Proposal to De-Marginalize Employment Law, 81 Iowa L. Rev. 347 , 371-76 (1995).

.See id. at 376-79.

. See D.C.Code § 1 l-1913(c) (1995 Repl.).

. See D.C.Code § 36-342 (1997 Repl.).

. See D.C.Code §§ 1-2525, -2556 (1992 Repl.).

. See D.C.Code § 36-1217 (1997 Repl.).

. See D.C.Code §§ 36-1307, -1310 (1997 Repl.).

. See D.C.Code § 1-616.3 (1992 Repl.).

. See D.C.Code § 1-1188.10 (Supp.1997).

. District of Columbia Displaced Workers Protection Act of 1994 (DWPA), D.C.Code §§ 36-1501 to -1503 (1997 Repl.); see Washington Service Contractors Coalition v. District of Columbia, 311 U.S.App.D.C. 407 , 54 F.3d 811 (1995) (sustaining DWPA against challenge contending National Labor Relations Act preempts it).

. See D.C.Code § 36-1503(a), (b).

40. Id. § 36-1503(c).

41. Id.§ 1-1188.12 (Supp.1997).

. Id.

. See D.C.Code §§ 1-2525,-2556.

. See D.C.Code § 45-2551 (1996 Repl.).

. See D.C.Code §§ 36-301 to -345.

. Clark v. Associated Retail Credit Men, supra note 15, 70 App. D.C. at 185 , 105 F.2d at 64 .

. See Edwards v. Lateef, 558 A.2d 1144 (D.C. 1989) (upholding retroactive application of Uniform Reciprocal Enforcement of Support Act to recover arrearages in child support that accrued before date URESA was amended to include ar-rearages within definition of duty to support; "statutes that create additional remedies, relate to the modes of procedure or confirm or clarify existing rights do not contravene the general proscription against the retrospective operation of legislation”) (citations and footnotes omitted); cf Duvall v. United States, 676 A.2d 448, 450-51 (D.C.1996) (upholding retroactive application of statute permitting deliberations in criminal case to proceed with only eleven jurors; “retroactive application of procedural statutes is proscribed” only if it "impairs the defendant's 'substantial rights’ ”) (citations omitted).

. See Mendes, supra note 3 , 389 A.2d at 788-89 .

. The four criteria are:

(1) the extent of the reliance of the parties on the old rule (including the degree of justifiable reliance and the hardship which might result to the litigants as a result of retrospective application); (2) avoidance of altering vested contract or property rights; (3) the desire to reward plaintiffs who seek to initiate just changes in the law; and (4) the fear of burdening the administration of justice by disturbing decisions reached under the overruled precedent.

Id.

. See D.C.Code § 28:2-302 (1996 Repl.).

. See U.C.C. § 2-302 cmt. 1, 1A U.L.A. 16 (1989).

. See Edwards v. Habib, supra note 9.

. See D.C.Code § 45-2552 (1996 Repl.).

. See Mendes, supra note 3 , 389 A.2d at 787 .

. See Martin v. George Hyman Construction Co., 395 A.2d 63, 71 (D.C.1978).

. In Act 8-51, "Good Time Credits Temporary Amendment Act of 1989,” 36 D.C.Reg. 4740 (1989) (temporary emergency act); Act 8-71 "Good Time Credits Amendment Act of 1989," 36 D.C.Reg. 5761 (1989) (enrolled original) (amending D.C.Code § 24-434 (1996 Repl.)), the Council of the District of Columbia effectively overruled the federal District Court’s ruling in Cunningham v. Williams, 711 F.Supp. 644 (D.D.C.1989), rev'd sub nom. Poole v. Kelly, 293 U.S.App. D.C. 329, 954 F.2d 760 (1992), where the District judge had held that the Good Time Credits Act applied to persons convicted of first degree murder. See Winters v. Ridley, 596 A.2d 569, 571 ("The Council's reaction” rejecting Cunningham "was swift and emphatic.”).

In Law 10-232, § 2, "Jury Trial Act of 1994,” 42 D.C.Reg. 18 (1995), codified at D.C.Code § 16-705(c) (1997 Repl.)(last sentence), the Council authorized eleven-juror verdicts in criminal cases, in the court’s discretion, when "the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict.” This legislation effectively overruled this court's decision in Flemming v. United States, 546 A.2d 1001 (D.C.1988), where we rejected, as inconsistent with the governing statute, a Superior Court rule authorizing such eleven-juror verdicts.

In Law 4-202, § 3, "District of Columbia Sentencing Improvements Act of 1982,” 30 D.C.Reg. 173, 176 (1983), codified at D.C.Code § 16-710(a) (1997 Repl.), the Council authorized "split sentences" whereby the defendant’s sentence on one count is divided between a period in prison and a period on probation—a practice this court had declared illegal in Davis v. United States, 397 A.2d 951 (D.C.1979).

. See Edwards v. Habib, supra note 9, 130 U.S.App. D.C. at 138 n. 38, 397 F.2d at 699 n. 38.