Thinking and Doing - the Regulation of Workers' Human Capital in the United States
17 Pages Posted: 4 May 2005
The ownership of human capital has become a hotly contested issue in the United States. Covenants not to compete are widely used in the American workplace and the source of an enormous volume of litigation. Trade secret disputes are also widespread. The issues raised by these cases are not new, but they are arising with increasing frequency and are posed in a new way. The new focus on workers' human capital is a result of the fact that, in the past two decades, the employment relationship has changed from one in which workers' knowledge about production was devalued to one in which it is highly prized. This change in the nature of the employment relationship has many far-reaching implications for many aspects of employment regulation, of which the ownership of human capital is high on the list. This article examines the current disputes and legal trends concerning the issue of who owns the workers' human capital from an historical perspective. It begins with a review of the regulation of employee human capital in earlier employment systems and a description of the new employment relationship. It then discusses the current controversies and changing legal framework governing the ownership of human capital to show that the law is out of step with the changes in the nature of work. Part III proposes an approach that is consistent with the implicit promises and understandings that underlie the new employment relationship.
Keywords: Workers' production knowledge, regulation of workers' human capital, employment relationships
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