Most employee rights in U.S. labor and employment law are nonwaivable. Waivable employee rights exist most prominently in the law regarding noncompetes and mandatory arbitration agreements. In recent years, there has been substantial backlash against perceived employer confiscation of workers’ rights in these two areas. On January 5, 2023, the Federal Trade Commission issued a proposed rule prohibiting employers from entering into noncompete agreements with workers. In 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Clearly, the federal government has become concerned with employers’ opportunistic confiscation of employees’ waivable rights and acted to make them nonwaivable in some contexts. This movement is consistent with the fact that almost all federal statutory rights of employees are nonwaivable. Against this backdrop, this article makes a contrarian argument for expansion of waivable statutory employee rights.
This article proposes an innovative reform in the labor and employment law of the United States: expanding the use of conditionally waivable statutory rights and protections. This is an underexplored and undertheorized issue in employment law. In the United States and other nations, the general rule is that statutory workers’ rights are nonwaivable. The principal reason for this approach is paternalism. Nonwaivability protects employees from confiscation of their statutory rights by employers. Some degree of paternalism is appropriate because employees generally have far less bargaining power and less knowledge and information than employers. A second paternalistic reason for nonwaivability is protecting employees from themselves—from their making bad exchanges with employers due to their cognitive biases. There are exceptions to the nonwaivability of statutory rights both in other nations and the United States. Most of the exceptions involve unions acting as “brokers” of rights because these collective bargaining representatives “even the field” with employers.
The labor and employment law of the Untied States is rife with problems and deficiencies. One of the most significant is the incoherence and the lack of coordination between the dichotomous realms of labor law and employment law. This article proposes addressing some of the systemic problems in U.S. labor and employment law by expanding the use of conditionally waivable statutory employment rights. Such rights would be waivable only if agreed to by a collective bargaining representative. One iteration would be to expand the body of statutory rights that only unions can waive. Because of the low union density in the U.S., however, that approach would not make waivable rights available to a significant segment of the U.S. workforce. The better proposal is to vest the authority to waive rights in a majority-status union if there is one representing employees, but to permit waiver by a nonmajority union or a worker representation committee in the absence of majority union representation.
This proposal could help unify the separate realms of labor law and employment law in the U.S. It also could shift the approach of the law from paternalism to empowering workers and providing them with voice and participation in workplace governance.
Waivability, Labor, Employment, Employee Rights
Date of Authorship for this Version
Corbett, William, "The Case in Favor of Waivable Employee Rights: A Contrarian View" (2023). Journal Articles. 480.