被用者の解雇と競業禁止条項の強制可能性 : アメリカにおける判例法理の展開を中心に

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A newly discharged employee, who may have been fired for any reason or for no reason at all, faces unemployment. This discharged employee is facing a great personal and professional crisis, but even this situation can be made worse. Indeed, it is common for an employer to exacerbate the employee's position by requiring him to agree to a new non-competition clause. However, the question remains as to whether it is reasonable to enforce a covenant not to compete when an employee is terminated. This paper studies the approaches courts have utilized in judging the enforceability of restrictive covenants in involuntary discharge cases in the United States. Jurisdictional approaches in discharge non-competition cases may generally be described as falling into one of three doctrinal categories: covenants are per se unenforceble when the employee has been discharged without cause; covenants are enforceble without regard for the cause of termination; or covenants are presumptively unenforceable but the employer may rebut the presumption. Under this unsettled doctrine, however, in examining covenants not to compete in the context of an involuntary termination, courts should employ a balancing of the equities approach to give consideration to the nature of the discharge in conjunction with all other relevant factors. As a result, it is unreasonable as a matter of law to permit the employer to terminate the employee and prevent him from working in his chosen profession. Post-involuntary termination covenants not to compete are inherently unconscionable because there is enormous inequality in the bargaining power of the parties, and because the ensuing contract terms are disproportionally favorable to the employer. Lastly, I conclude that an employee who is terminated without cause is not bound by a non-competition clause in Japan.
2009-11-15

被用者の解雇と競業禁止条項の強制可能性 : アメリカにおける判例法理の展開を中心に

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