Nonwaivability in Labour Law
Oxford Journal of Legal Studies, Forthcoming
32 Pages Posted: 16 Apr 2020 Last revised: 24 Aug 2020
Date Written: March 23, 2020
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
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