Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid form of Employment Law
By , February 8, 2012
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The employment relationship is governed largely by contract, but with a heavy overlay of rights: minimum terms and individual rights that are established by external law and typically non-waivable. But some terms of employment are governed neither by ordinary contract nor by ordinary rights, nor even by ordinary waivable rights. Consider the two most controversial instruments in employment law today: non-compete covenants (NCCs) and mandatory arbitration agreements (MAAs). Both take the form of written contracts that waive important employee rights (the right to compete post-employment, the right to litigate future claims); both are subject to substantive criteria of validity that are set by external law. Both bodies of law may be usefully described as recognizing conditionally waivable rights._
