Sullivan on Not Waiving the Unwaivable

Charlie Sullivan (Seton Hall) shares with us his thoughts on Edwards v. Arthur Andersen:

The California Supreme Court’s recent decision in Edwards v. Arthur Andersen, 189 P.3d 285 (Cal. 2008), is best known for rejecting the Ninth Circuit’s interpretation of California law as permitting “narrow restraints” in the employment context, a development widely noted in the blogosphere and which has already resulted in an SSRN paper posted by Lemley & Pooley. While its reaffirmance of California’s ban on noncompetition clauses in the employment context is probably the most significant aspect of the opinion, employment law profs shouldn’t ignore another aspect of the decision – its affirmation that employers may not take an adverse employment action against an employee for his refusal to waive a nonwaivable right. Edwards has already influenced the in-process Restatement of Employment Law to re-insert a provision to this effect in its treatment of the public policy tort.

For more, see Waiving Unwaivable Rights.

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