Vandenberghe, Ann-Sophie --- "Employment Contracts" [2009] ELECD 404; in Dau-Schmidt, G. Kenneth; Harris, D. Seth; Lobel, Orly (eds), "Labor and Employment Law and Economics" (Edward Elgar Publishing, 2009)

Book Title: Labor and Employment Law and Economics

Editor(s): Dau-Schmidt, G. Kenneth; Harris, D. Seth; Lobel, Orly

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847207296

Section: Chapter 2

Section Title: Employment Contracts

Author(s): Vandenberghe, Ann-Sophie

Number of pages: 35

Extract:

2 Employment contracts
Ann-Sophie Vandenberghe* 1




1 Introduction
Individual employment contracts are contracts, and the primary focus of
employment law concerns the contractual relationship of employment.
Like other contracts, the employment contract is a consensual relation-
ship between two parties involving an exchange ­ in this instance, work
in return for pay. The standard rules for the formation of legally binding
contracts apply to employment contracts. Breach of the contract gives the
injured party a right to claim a legal remedy. The standard rules of general
contract law intend to solve problems that are universal to all contracts.
The law and economic literature on general contract law explains how
standard contract rules provide optimal incentives for performing, breach-
ing and relying and correct for pre-contractual information failures.
Why then do we need specialized rules for employment contracts? We
need to focus on those features of the employment contract that render
the general law of contract unsuitable for handling all disputes that may
arise in connection with employment contracts (Collins 2003, p. 6). The
traditional legal justification for and explanation of employment law is
to protect the employee as the weaker party to the employment relation.
Because employees are in an inferior bargaining position compared to the
employer, the justification runs, they need protection through employment
rules in their favor as an inequality-compensating mechanism. While this
may be true for particular workers at particular moments in time, there
is no reason to accept as a paradigm of employment law ...