Nonwaivability of Labour Rights, Individual Waivers and the Emancipatory Function of Labour Law

Abstract

This paper intervenes in ongoing discussions on emerging legislation and jurisprudence across jurisdictions offering employees the possibility to renounce established labour rights through individual labour rights waivers. Building on discussions about consent and coercion in the employment relationship, the paper argues that individual labour rights waivers in most cases undermine labour law’s overall emancipatory potential, as they reverse the decommodifying effects of nonwaivable labour rights by re-appropriating the capitalist market logic that those very rights seek to offset. The paper’s intervention is twofold. It first develops the argument about the emancipatory function of labour law, and uses it to examine the negative effects of individual waivers on labour law’s capacity to emancipate working people and society at large. Second, the paper introduces a jurisdiction that until now has not been considered in the discussions on individual waivers, namely Germany. Although discussions on individual waivers in the scholarly discourse in Germany are marginal, the paper examines what current exceptions to nonwaivability might qualify as waivers, and argues that the reasons why individual labour rights waivers are less present lie in the strong collective dimension of the ideational framework that underpins German labour law.