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- Title
OFFERS YOU CAN'T REFUSE: POST-HIRE NONCOMPETE AGREEMENT INSERTIONS AND PROCEDURAL UNCONSCIONABILITY DOCTRINE.
- Authors
ENGER, N. BROCK
- Abstract
America's 21st Century offers, among other things, troublesome conditions for employees. Globalization and its accompanying race to the bottom; right-to-work laws and the de-unionization of workplaces; technological innovations that replace human capital overnight-these have all resulted in a highly competitive environment that is fraught with uncertainty, powerlessness, pressure, and ambiguity. Among these compounding factors weighing on the American worker is the noncompete agreement, especially the one that employees have no real choice but to endorse. Justice Brandeis famously quipped that "sunlight is said to be the best of disinfectants; electric light the most efficient policeman. " Accordingly, first and foremost, this Article sheds light on a common practice among American employers involving an offer to an existing employee for an employment contract modification under conditions that the employee has no real choice but to accept. Second, in line with suggestions provided by leading contracts scholar Melvin Aron Eisenberg, this Article offers a legally viable solution to the identified problem using the unconscionability paradigm-specifically designed to be implemented in Wisconsin. It develops these suggestions into a model based on observations from Chief Justice Shirley Abrahamson in the landmark case, Runzheimer International, Ltd. v. Friedlen. While based on this Wisconsin case, this model can be implemented beyond Wisconsin's borders. It is the author's hope that as a result of publication, greater visibility of the problem will result in progress toward greater reform.
- Subjects
UNITED States; COVENANTS not to compete; LABOR contracts; LABOR laws; UNCONSCIONABLE contracts; ABRAHAMSON, Shirley, 1933-2020; RUNZHEIMER International Ltd.
- Publication
Wisconsin Law Review, 2020, Vol 2020, Issue 4, p769
- ISSN
0043-650X
- Publication type
Article