Category Archives: Employment and Labour Law
Barnett and Sichelman, ‘The Case for Noncompetes’
ABSTRACT Scholars and other commentators widely assert that enforcement of contractual and other limitations on labor mobility deters innovation. Based on this view, federal and state legislators have taken, and continue to consider, actions to limit the enforcement of covenants not-to-compete in employment agreements. These actions would discard the centuries-old reasonableness standard that governs the […]
Rebecca Zietlow, ‘The New Peonage: Liberty and Precarity for Workers in the Gig Economy’
ABSTRACT According to a 2016 Time Magazine article, over 14 million people currently work in the ‘gig’, ‘on demand’, or ‘sharing’ economy. In the past 10 years, 94% of net new jobs have appeared outside of traditional employment. The gig economy presents a paradox for workers in the United States. On its face, the ‘gig’ […]
‘SCC: Uber Arbitration Unconscionable. Uber Is a Company Known for Pushing Limits, Did They Push Too Far This Time?’
“There is a class-action lawsuit by Uber drivers in Ontario against Uber alleging, among other things, violations of employment standards legislation. The main issue is whether Uber drivers are independent contractors as the Uber agreement says, or whether they are actually employees. But before those issues could be heard, the courts had to decide whether […]
‘Furlough and Common Law Rights and Remedies’
“Many scholars contributing to the UK Labour Law Blog over the past two months have examined a range of issues relating to the Coronavirus Job Retention Scheme (‘CJRS’) embodied in the Treasury Direction to HMRC (‘Treasury Direction’) (the updated version published on 22 May 2020 is available here, which amends the original version published on […]
‘Knowledge test for duty of confidence – what is a sufficient state of mind to make an employer liable for breach of confidence when it receives a client list from a recruited employee?’
“In my blog piece on 28 February 2020, I looked at the state of mind required to make an employer liable in tort for inducing a breach of contract when it employs a person subject to post-termination restrictions. I reported by reference to the recent case of Allen v Dodd that in order to be […]
Blair Druhan Bullock, ‘Uncovering Harassment Retaliation’
ABSTRACT As the #MeToo movement has exposed, workplace harassment is prevalent, underreporting likely contributes to its prevalence, and fears of retaliation underlie underreporting. Thus, the cycle of harassment continues. Yet we still know very little about the prevalence of retaliation or how employers respond to harassment. This Article highlights retaliation following workplace harassment as a […]
Cathy Sherry, ‘Does Discrimination Law Apply To Residential Strata Schemes?’
ABSTRACT Although strata title legislation is over 50 years old, a number of important questions about its intersection with other areas of law remain unanswered. One such question is whether discrimination law applies to residential strata schemes. Discrimination law was enacted to ensure all citizens’ equal civic participation, and although it regulates both private citizens […]
Griffin Toronjo Pivateau, ‘An Argument for Restricting the Blue Pencil Doctrine’
ABSTRACT When faced with an unreasonable noncompetition agreement, a court faces a choice. In some states, a court may simply refuse to enforce such an agreement. In other states, however, a court may use a legal doctrine called the blue pencil doctrine. Under the blue pencil doctrine, courts are permitted to cross out overbroad provisions […]
Eric Posner, ‘The Economic Basis of the Independent Contractor / Employee Distinction’
ABSTRACT In recent years, a controversy has erupted over the distinction between employees and independent contractors. Commentators have argued that in the modern ‘gig economy’, many people traditionally classified as independent contractors are as vulnerable as employees and should be granted the legal protections that employees alone normally enjoy. However, the distinction between the two […]
Guy Davidov, ‘Non-waivability in Labour Law’
ABSTRACT Non-waivability is considered a basic principle of labour law. In most cases, it is needed to protect employees against coerced waivers. But what if an employee genuinely wants to waive some labour right, for example in return for a higher salary? This article explains why non-waivability is generally justified even against the wishes of […]