Nonwaivability in Labour Law

Oxford Journal of Legal Studies, Forthcoming

31 Pages Posted: 16 Apr 2020

See all articles by Guy Davidov

Guy Davidov

Hebrew University of Jerusalem - Faculty of Law

Date Written: March 23, 2020

Abstract

Non-waivability is considered a basic principle of labor law. In most cases, it is needed to protect employees against coerced waivers. But what if an employee genuinely wants to waive some labor right, for example in return for a higher salary? This article explains why non-waivability is generally justified even against the wishes of employees, for reasons of paternalism, harm to others, and second-order justifications. At the same time, in some cases there is room for intermediate solutions, that can be used to better respect the autonomy of employees, and achieve additional benefits, without undermining the goals of labor laws. The article employs this analysis to examine two concrete questions, as examples: waiving of ‘employee’ status and the individual opt-out from maximum weekly hours. In the latter context, while I critique the current law, I argue that some form of conditional waiver could be acceptable.

Keywords: Labour Law, Employment Law, Non-waivability, Non Waiver, Paternalism, Autonomy

Suggested Citation

Davidov, Guy, Nonwaivability in Labour Law (March 23, 2020). Oxford Journal of Legal Studies, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3559244 or http://dx.doi.org/10.2139/ssrn.3559244

Guy Davidov (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mt. Scopus
Jerusalem, 91905
Israel

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