Socio-Economic Review Advance Access originally published online on October 26, 2005
Socio-Economic Review 2006 4(1):121-138; doi:10.1093/SER/mwj035
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Thinking and Doing—the regulation of workers' human capital in the United States
Professor of Law, UCLA School of Law, University of California, USA
Correspondence: stone{at}law.ucla.edu
Today workers change jobs more frequently than in the past and worker knowledge about production has become a valuable commodity. As a result, the issue of who owns workers' knowledge has become highly contentious. In the United States, there has been an explosion of litigation and disputes over trade secrets and post-employment covenants. This article examines current legal trends concerning the issue of who owns the workers' human capital from the perspective of broader changes in the nature of the employment relationship. It describes the new employment relationship as one in which employers implicitly promise to provide employees with training, human capital development, networking opportunities, employability, and other means to succeed in a boundaryless labour market. The author argues that current trends by which courts liberally enforce post-termination restraints and grant employers broad trade secret protection are out of step with the terms of the new employment relationship.
Key Words: human capital • new employment relationship • restrictive covenants • trade secrets • post-employment restraints • JEL classification: J24, J41