Nonwaiver

Abstract

Abstract Chapter 4 describes the principle of nonwaiver in Latin America focusing on Argentina, Brazil, Chile, and Uruguay. It posits that employers and workers cannot waive labor rights, given by law, through contract. It shows how the principle is expressly stated in some positive law, in court opinions, and in legal scholarship. It also details how the principle is typically applied in controversies over contract terms and claim settlements. The chapter also shows that the principle surfaces in Latin American cases related to contract modification and novation, even when such contracts contain terms that meet or exceed minimum labor standards. Second, the chapter finds a nonwaiver principle in the United States, mostly in its protection of free labor under the Thirteenth Amendment and in the positive labor law and jurisprudence. However, the chapter also focuses on the particular problem of so-called “procedural” waivers sanctioned by the U.S. Supreme Court’s coerced readings of the Federal Arbitration Act (FAA). The U.S. Supreme Court permits employers to require employees to sign agreements to arbitrate legal claims, even if those legal claims are class or collective in scope. Evidence clearly shows that such “procedural waivers” undermine substantial labor rights. Because the U.S. Supreme Court has already ruled on the issue, we argue that such waivers need to either be legally banned or regulated by Congress, under its Thirteenth Amendment authority, so as to not undo workers’ rights in the United States and force workers to agree to terms they likely oppose. In fact, we argue that regulated arbitration might actually help to create legitimate labor courts in the United States, which that country still lacks.