Not a lawyer though, so happy to hear the flaws in this.
I write a contract with you: you will deliver me a "widget" in 6 months, at which point I deliver you $300,000. This contract is negotiated in good faith - we both at the time believe it is a good deal (this is important, as lack of good faith is a different issue). It turns out that after 6 months I don't need the widget like I thought I did, and fortunately for me there is a clause that I now discover is illegal. Now you have a widget neither of us want, and are don't have money to show for your last 6 months making it.
There is no law preventing parties from negotiating in good faith either. If circumstances change, people usually adapt.
There are so many good reasons to not outlaw severability, whereas outlawing it is a poor solution to one specific problem.
Sounds like a feature, not a bug. Contracts have to be simple. If you can't do the transaction with a simple contract, you have to find a different method to carry out what ever is desired to be done.
Let businesses with hundreds of staff attorneys do whatever they want to each other. But keep them from beating up a guy who just wants to collect a paycheck or buy a simple service.
That totally hits the issue on the head. They're not negotiated contracts. They're one sided hammers.
Perhaps the solution is to give workers the right to have employment-related contracts reviewed and negotiated by an attorney of their choosing at the employer’s expense.
With actual costs attached, employers would suddenly have an incentive to keep their contracts as short and simple as possible, reserving the more onerous clauses for only the most senior positions.
Contracts for most positions would need to be kept short, reasonable, and comprehensible such that candidates don’t feel the need to exercise their right to attorney review.
This is one of the key reasons that unions are helpful to workers: each one of them doesn't have to go through this on their own. One expert does it for all of them.
A straightforward way to address this could be through standardized contracts/clauses for mass markets. In the world of software understanding is not free, and the world of ambiguous natural language legalese is clearly even worse! In a market big enough to have many parallel participants, each clause of an agreement should be selected from a standardized bag such that online reading can readily explain your rights and responsibilities.
For the most part, this is already somewhat done through state "employment law", "landlord-tenant law", and the like. But then we get the OP situation, as well as contracts that actually attempt to countermand the law - I recently had the pleasure of reading a lease that was essentially an anti-tenant screed.
From the other direction, it also would be nice to voluntarily be able to give up a currently "standardized right" - say I don't need hot water in my apartment for savings of $100/mo. Assuming it was truly consensual and not just setting up a race to the bottom - percentages quotas or the like could address this.
I can just imagine it now: Oh, we want to hire you but it looks like the next available turn for contract reviews is 1 month from now. Sorry, looks like you'll have to sit around without making any money in the meantime.
A judge's time is generally quite expensive, and handling the massive load of contracts would likely require appointing a lot more judges.
What if both parties are fine with a contract? Why should they be forced to get the government involved? And if both parties decide to re-negotiate a contract, do we need to go through the whole government approval process again?
I agree that there are issues with some employment contracts, but you are making some incredibly broad generalizations focused on a few bad actors without taking into consideration the broader consequences.
This would encourage shorter and simpler contracts, making things easier for both the parties and any involved judge.
> What if both parties are fine with a contract? Why should they be forced to get the government involved? And if both parties decide to re-negotiate a contract, do we need to go through the whole government approval process again?
Because, as the GP mentioned, it is not an agreement between equals.
It's a bit like marriage you have to pay a bit for it but having someone support you and fight with you is worth the commitment. Unite!
I have successfully asked for some clauses to be removed from the contract.
A better world is one where this doesn't...yanno...happen at all, yeah?
He' what's wrong with America, BTW.
Anecdotally, I know someone who had a non-compete clause in their hiring contract to work as the desk attendant at a hotel, in California none the less. This is basically a minimum wage job in a state where non-competes are illegal statewide.
Sure, my friend could have asked for it to be removed, but that would mean delaying the hiring process and extra work for the hiring manager who now has to go through the legal team to make any changes to the contract. When there are 20 other equally qualified candidates, why would the hotel waste their time? It makes more sense for the hotel to just find someone else who is willing to sign the illegal contract.
Non-competes in that situation are empty threats to keep workers who don't know any better from quitting.
It's kind of fucked up though that putting something obviously unenforceable in a hiring contract isn't being punished. Either the worker ignores it, knowing there's nothing the company can do, or they take it seriously and are afraid to quit to go to a competitor. It's pretty much no lose for the company though.
They should be banned to protect workers from the off chance that somebody decides to follow through.
Explicit, not implicit.
As it stands, the employee, barring fairly singular instances (and, I note, I am one and I have hired them, I understand where the line goes), has no power.
They have a Hobson's choice not merely with one employer but with all of them.
You describe a senior and socially competent tech worker's delight. Some of us have empathy for those who are not. "Oh, but more people with no market power can 'negotiate'" is not a net benefit for people even if it was a beneficial situation for me.
"In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."
If you don’t want this to happen in your own life, then don’t sign such contracts. Leave other people to their own business. You are not their parent.
A large chunk of the workforce does not. They depend on the paycheck, need to feed people that depend on them and in their case, the employer holds all the cards. They more or less must sign. Even if they have another option lined up, for them it’s probably the choice between bad or worse terms.
It's just basic supply and demand. A job that anyone can do is going to have a larger labor supply than a job that few people can do. Employer demand is also a factor. Right now truck drivers are getting very lucrative offers because demand is so high, despite the relatively low skill level. Also risk factors, especially risk of death, can drive compensation sharply higher. For example working on live natural gas pipelines or deep sea welding isn't particularly high skill, but the compensation is huge because it has a tendency to lead to death.
If those people don't want their kids in this situation maybe they should try being not poor. You feel me?
Hold a gun to someone's head and act like they have a free choice when they decide to do what you demand of them.
And I care far, far, far more about the employees, than I do the employers.
Software is a rare exception, not the rule. Even then, people like me who have enough savings to live for over a year without a paid job (looking after a parent with Alzheimer’s in my case) are a tiny minority.
In addition, the majority of employers have (either by coincidence or agreement) landed on a similar set of crappy and unreasonable contracts. For the vast number of employees out there, it's either submit to the contract or remain unemployed.
Lets not pretend like every deal not made at gunpoint was some how made by parties of equal power.
Although I must admit, it's not correct to compare human life with a corporate entity's existence.
"Contracts only happen by mutual consent."
That's not true in the least. When your alternative is to starve, one cannot really call that "mutual consent".
Wouldn’t it be fairer if the party with all the power, and who dictates the content of the contract, must convince a judge that it’s enforceable before a defendant has to lift a finger or shell out money?
Currently contracts seem to be nothing more than one-sided weapons that powerful companies use to get vulnerable people to do things that they otherwise wouldn’t and can’t afford to fight. Let’s not pretend that more than a small fraction of employees out there actually get to meaningfully alter the contracts under which they work.