This Sub-Clause entitles the Employer to make formal claims against the Contractor. The Contractor has broadly to fallow the same procedure adopted for claims by the Contractor against the Employer.FIDIC doctrine presents this Sub-Clause as being introduced with the intend to protect the Contractor against abusive actions of the Employer, building a mechanism that implies the decision of a third party (the Engineer), who is supposed to be much more impartial then the Employer, even if it is his representative in the Contract and, one of the most important arguments is that confirms that the Employer no longer has a general right of set-off.
{"title":"Employer's Claims under FIDIC Contracts","authors":"S. Eugen","doi":"10.2139/SSRN.2836765","DOIUrl":"https://doi.org/10.2139/SSRN.2836765","url":null,"abstract":"This Sub-Clause entitles the Employer to make formal claims against the Contractor. The Contractor has broadly to fallow the same procedure adopted for claims by the Contractor against the Employer.FIDIC doctrine presents this Sub-Clause as being introduced with the intend to protect the Contractor against abusive actions of the Employer, building a mechanism that implies the decision of a third party (the Engineer), who is supposed to be much more impartial then the Employer, even if it is his representative in the Contract and, one of the most important arguments is that confirms that the Employer no longer has a general right of set-off.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128173183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Arbitration law in the United States is far more controversial when applied to individuals than to businesses. While enforcement of arbitration agreements between businesses sometimes raises legal issues that divide courts, those issues tend to interest only scholars, lawyers, and other specialists in the field of arbitration. In contrast, enforcement of arbitration agreements between a business and an individual (such as a consumer or employee) raises legal issues that interest many members of Congress and various interest groups — all of whom have taken positions on significant proposals for law reform. The Consumer Financial Protection Bureau has extensively researched and reported on consumer arbitration agreements and is expected to issue a rule regulating, or even prohibiting, such agreements. This Article both explains how issues surrounding consumer and other adhesive arbitration agreements became divisive along predictable political lines and introduces a framework to understand and compare various positions on them. This new framework arrays on a continuum five positions on the level of consent the law should require before enforcing an arbitration agreement against an individual. Progressives generally would require higher levels of consent than arbitration law currently requires, while conservatives generally defend current arbitration law’s low standards of consent. This Article proposes an intermediate (or centrist) position. It joins progressives in rejecting conservative-supported anomalies that enforce adhesive arbitration agreements more broadly than other adhesion contracts on the three important topics: contract-law defenses, correcting legally-erroneous decisions, and class actions. Once these anomalies are fixed though, adhesive arbitration agreements should — contrary to progressives — be as generally enforceable as other adhesion contracts. In other words, this Article joins conservatives in defending general enforcement of adhesive arbitration agreements under contract law’s standards of consent. The Article briefly concludes with the language of a rule the CFPB could adopt to enact into law the reforms advocated in this Article.
{"title":"The Politics of Arbitration Law and Centrist Proposals for Reform","authors":"S. Ware","doi":"10.2139/SSRN.2646276","DOIUrl":"https://doi.org/10.2139/SSRN.2646276","url":null,"abstract":"Arbitration law in the United States is far more controversial when applied to individuals than to businesses. While enforcement of arbitration agreements between businesses sometimes raises legal issues that divide courts, those issues tend to interest only scholars, lawyers, and other specialists in the field of arbitration. In contrast, enforcement of arbitration agreements between a business and an individual (such as a consumer or employee) raises legal issues that interest many members of Congress and various interest groups — all of whom have taken positions on significant proposals for law reform. The Consumer Financial Protection Bureau has extensively researched and reported on consumer arbitration agreements and is expected to issue a rule regulating, or even prohibiting, such agreements. This Article both explains how issues surrounding consumer and other adhesive arbitration agreements became divisive along predictable political lines and introduces a framework to understand and compare various positions on them. This new framework arrays on a continuum five positions on the level of consent the law should require before enforcing an arbitration agreement against an individual. Progressives generally would require higher levels of consent than arbitration law currently requires, while conservatives generally defend current arbitration law’s low standards of consent. This Article proposes an intermediate (or centrist) position. It joins progressives in rejecting conservative-supported anomalies that enforce adhesive arbitration agreements more broadly than other adhesion contracts on the three important topics: contract-law defenses, correcting legally-erroneous decisions, and class actions. Once these anomalies are fixed though, adhesive arbitration agreements should — contrary to progressives — be as generally enforceable as other adhesion contracts. In other words, this Article joins conservatives in defending general enforcement of adhesive arbitration agreements under contract law’s standards of consent. The Article briefly concludes with the language of a rule the CFPB could adopt to enact into law the reforms advocated in this Article.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132555866","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
'Employment at Will' systems, in which employers have a right to dismiss employees for any reason or no reason at all, have been (rightly) criticized for allowing the arbitrary imposition of significant harms. 'Just Cause' arrangements, in which employers bear the burden of showing a justified reason for dismissals, in a process which often gives unions significant involvement, have been strongly resisted for causing inflexibility. Israeli labour law, which is relied upon here as an example, suffers from a combination of both extremes. UK law, which could be seen to offer a middle ground, is seen by labour law critics as offering too little protection for workers, and by the Government as offering too much. This article searches for other intermediate solutions. Four are discussed: the flexicurity system which is based on broader security provided by the State, rather than job security; a default (rather than mandatory) job security rule, powered by 'soft law' regulations; a prohibition on 'bad faith' dismissals, requiring the employee to prove a 'bad' cause; and finally, a system based on 'rich' procedural guarantees to ensure just cause. The article focuses on the last one, offering a case-study of a new model recently adopted in some collective agreements in Israel. In this model, a detailed process has to be followed to ensure that dismissals are not arbitrary, but at the end of the day the decision is left solely with the employer. We will discuss the experience with this model so far and whether it offers a balanced solution for employers, workers and society at large. Our discussion is based, among other things, on an empirical analysis of job security perceptions as learned from questionnaires we administered to several groups of Israeli employees.
{"title":"Intermediate Approaches to Unfair Dismissal Protection","authors":"G. Davidov, Edo Eshet","doi":"10.1093/INDLAW/DWV007","DOIUrl":"https://doi.org/10.1093/INDLAW/DWV007","url":null,"abstract":"'Employment at Will' systems, in which employers have a right to dismiss employees for any reason or no reason at all, have been (rightly) criticized for allowing the arbitrary imposition of significant harms. 'Just Cause' arrangements, in which employers bear the burden of showing a justified reason for dismissals, in a process which often gives unions significant involvement, have been strongly resisted for causing inflexibility. Israeli labour law, which is relied upon here as an example, suffers from a combination of both extremes. UK law, which could be seen to offer a middle ground, is seen by labour law critics as offering too little protection for workers, and by the Government as offering too much. This article searches for other intermediate solutions. Four are discussed: the flexicurity system which is based on broader security provided by the State, rather than job security; a default (rather than mandatory) job security rule, powered by 'soft law' regulations; a prohibition on 'bad faith' dismissals, requiring the employee to prove a 'bad' cause; and finally, a system based on 'rich' procedural guarantees to ensure just cause. The article focuses on the last one, offering a case-study of a new model recently adopted in some collective agreements in Israel. In this model, a detailed process has to be followed to ensure that dismissals are not arbitrary, but at the end of the day the decision is left solely with the employer. We will discuss the experience with this model so far and whether it offers a balanced solution for employers, workers and society at large. Our discussion is based, among other things, on an empirical analysis of job security perceptions as learned from questionnaires we administered to several groups of Israeli employees.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133438991","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Wage and hour cases are common in New York, yet courts calculate damages inconsistently when plaintiffs pursue their unpaid wages under both federal and state law. Overlapping provisions of the Fair Labor Standards Act and the New York Labor Law both authorize private actions for the recovery of certain unpaid wages, and each also provides an additional 100 percent of the unpaid wages as liquidated damages unless the employer establishes a good-faith defense. Given these similarities, New York wage and hour cases regularly flirt with the double recovery doctrine, which prevents plaintiffs from receiving duplicative awards.Historically, courts in the Second Circuit have been split over whether awarding both sets of liquidated damages offends double recovery. An old New York statute authorized only 25 percent of the unpaid wages as liquidated damages and allowed them only if an employee could demonstrate that the employer’s violation was willful. Based upon the old law’s scienter requirement and upon its legislative history, courts considered the state provision punitive in purpose, as opposed to the federal provision, which is compensatory. Consequently, some courts reasoned that because each provision served a different purpose, the awards were not duplicative. Others disagreed.Although the New York Labor Law’s current liquidated damages provision bears little resemblance to its predecessor, some courts continue to apply analyses of the old statute to the new one. This Note analyzes the effects that amendments enacted in 2009 and 2010 should have upon the preexisting split and contends that neither the current statutory text nor its legislative history conclusively supports characterizing the state provision exclusively as either compensatory or punitive. Instead, the evidence suggests a dual purpose. Since the awards overlap, courts can only avoid double recovery by awarding one set of liquidated damages.
{"title":"Avoiding Double Recovery: Assessing Liquidated Damages in Private Wage and Hour Actions under the Fair Labor Standards Act and the New York Labor Law","authors":"Alexander J. Callen","doi":"10.2139/SSRN.2203756","DOIUrl":"https://doi.org/10.2139/SSRN.2203756","url":null,"abstract":"Wage and hour cases are common in New York, yet courts calculate damages inconsistently when plaintiffs pursue their unpaid wages under both federal and state law. Overlapping provisions of the Fair Labor Standards Act and the New York Labor Law both authorize private actions for the recovery of certain unpaid wages, and each also provides an additional 100 percent of the unpaid wages as liquidated damages unless the employer establishes a good-faith defense. Given these similarities, New York wage and hour cases regularly flirt with the double recovery doctrine, which prevents plaintiffs from receiving duplicative awards.Historically, courts in the Second Circuit have been split over whether awarding both sets of liquidated damages offends double recovery. An old New York statute authorized only 25 percent of the unpaid wages as liquidated damages and allowed them only if an employee could demonstrate that the employer’s violation was willful. Based upon the old law’s scienter requirement and upon its legislative history, courts considered the state provision punitive in purpose, as opposed to the federal provision, which is compensatory. Consequently, some courts reasoned that because each provision served a different purpose, the awards were not duplicative. Others disagreed.Although the New York Labor Law’s current liquidated damages provision bears little resemblance to its predecessor, some courts continue to apply analyses of the old statute to the new one. This Note analyzes the effects that amendments enacted in 2009 and 2010 should have upon the preexisting split and contends that neither the current statutory text nor its legislative history conclusively supports characterizing the state provision exclusively as either compensatory or punitive. Instead, the evidence suggests a dual purpose. Since the awards overlap, courts can only avoid double recovery by awarding one set of liquidated damages.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124862249","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
'Interference with individual liberty of action in trading, and all restraints of trade themselves, if there is nothing more, are contrary to public policy, and therefore void.' However, legitimate business interests can be protected. Legitimate business interests: customer/trade connections or goodwill (also connection with suppliers); trade secrets or confidential information; and other legitimate interests. In order to be a legitimate means of controlling employees post termination of contract an employer can only seek what a court would regard as 'adequate' protection. A general restraint of trade is not a legitimate protection.
{"title":"Garden Leave Clause: Restrictive Covenant in Employment Contracts (with Special Reference to its Applicability in India)","authors":"G. Sharma","doi":"10.2139/SSRN.2141186","DOIUrl":"https://doi.org/10.2139/SSRN.2141186","url":null,"abstract":"'Interference with individual liberty of action in trading, and all restraints of trade themselves, if there is nothing more, are contrary to public policy, and therefore void.' However, legitimate business interests can be protected. Legitimate business interests: customer/trade connections or goodwill (also connection with suppliers); trade secrets or confidential information; and other legitimate interests. In order to be a legitimate means of controlling employees post termination of contract an employer can only seek what a court would regard as 'adequate' protection. A general restraint of trade is not a legitimate protection.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124617545","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The labor market is precisely as the name indicates: a market. The currency of this market is talent. Competition principles apply in equal force to the labor market as to the product market, with the added effect that human capital is a living resource—its quality is endogenous to the competition for it. Competition among firms in the product markets spurs innovation, competitive pricing, and higher quality products and services. Competition among firms over talent ensures higher wages, better work conditions, and higher quality human capital. The strength of competition in the labor market depends on a range of factors, but a key measure of competition is the number of alternatives available for employees to consider. A powerful armor employed by companies to reduce alternative job opportunities is the restrictive covenant. The purpose of this article, written for a symposium on frontier in antitrust law, is threefold. First, it explains that beyond the traditional non-compete, firms use many restrictive covenants that prevent competition in the talent market. The article introduces this broader landscape of anti-competitive restrictions that are routinely placed on employees including horizontal collusion between employers agreeing to fix wages or refraining from poaching each other's employees and vertical arrangements between employers and employees, which include employees agreeing not to solicit customers or former co-workers post-employment, exit penalties, and overreaching NDAs and pre-innovation assignment clauses, which reach beyond IP and trade secrecy protections and into information that should remain in the competitive markets public domain, such as customer lists, compensation information, and general know-how. Second, while many of the harms potentially caused by non-competes are well-documented, the article introduces a neglected aspect of labor market concentration: the perpetuation of wage gaps and inequalities. The article argues that mobility restrictions have a disproportionate effect on certain protected identities—primarily women, minorities, and older workers. In particular, I provide an original analysis of the effects of restrictive covenants on the gender wage gap and present supporting empirical evidence. Third, the article considers a pervasive problem in the landscape of restrictive covenants: the prevalence of unenforceable contractual terms. I argue that the problem of unenforceable anti-competitive restrictions in employment contracts calls for a proactive approach, including notice requirements in employment contracts, regulatory action and penalties that target these contracts, including the attorney that drafted them, before litigation has been pursued, and a private right of action, including class actions by employees who have been harmed by unenforceable contracts.
{"title":"Gentlemen Prefer Bonds: How Employers Fix the Talent Market","authors":"Orly Lobel","doi":"10.2139/SSRN.3373184","DOIUrl":"https://doi.org/10.2139/SSRN.3373184","url":null,"abstract":"The labor market is precisely as the name indicates: a market. The currency of this market is talent. Competition principles apply in equal force to the labor market as to the product market, with the added effect that human capital is a living resource—its quality is endogenous to the competition for it. Competition among firms in the product markets spurs innovation, competitive pricing, and higher quality products and services. Competition among firms over talent ensures higher wages, better work conditions, and higher quality human capital. The strength of competition in the labor market depends on a range of factors, but a key measure of competition is the number of alternatives available for employees to consider. A powerful armor employed by companies to reduce alternative job opportunities is the restrictive covenant. The purpose of this article, written for a symposium on frontier in antitrust law, is threefold. First, it explains that beyond the traditional non-compete, firms use many restrictive covenants that prevent competition in the talent market. The article introduces this broader landscape of anti-competitive restrictions that are routinely placed on employees including horizontal collusion between employers agreeing to fix wages or refraining from poaching each other's employees and vertical arrangements between employers and employees, which include employees agreeing not to solicit customers or former co-workers post-employment, exit penalties, and overreaching NDAs and pre-innovation assignment clauses, which reach beyond IP and trade secrecy protections and into information that should remain in the competitive markets public domain, such as customer lists, compensation information, and general know-how. Second, while many of the harms potentially caused by non-competes are well-documented, the article introduces a neglected aspect of labor market concentration: the perpetuation of wage gaps and inequalities. The article argues that mobility restrictions have a disproportionate effect on certain protected identities—primarily women, minorities, and older workers. In particular, I provide an original analysis of the effects of restrictive covenants on the gender wage gap and present supporting empirical evidence. Third, the article considers a pervasive problem in the landscape of restrictive covenants: the prevalence of unenforceable contractual terms. I argue that the problem of unenforceable anti-competitive restrictions in employment contracts calls for a proactive approach, including notice requirements in employment contracts, regulatory action and penalties that target these contracts, including the attorney that drafted them, before litigation has been pursued, and a private right of action, including class actions by employees who have been harmed by unenforceable contracts.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123944534","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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