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  Case Studies: Country-Specific
 
Afzal, Asna, "Pakistan, the WTO, and Labor Reform", Boston College International and Comparative Law Review v. 29 no107 (Winter 2006) p. 107-122

Abstract:
Although the WTO has no formal requirements for its members to adhere to labor standards, this article argues that Pakistan and other lesser-developed countries (LDCs) confront considerable pressure to abide by core labor standards in connection with their trade liberalization policies. It argues that developed nation trading partners, above all the United States, the European Union and Canada, seek assurances, upon threat of economic sanctions, that LDCs' export products are made in accordance with accepted labor standards both as a way to protect their own industries and to avoid scandals associated with child labor and sweatshop conditions. Because these demands from the countries of the global North do not acknowledge the economic realities of lesser developed nations, Pakistan's adherence to labor standards in such areas as health and safety, child labor and gender discrimination, are typically "superficial" and unenforced. The article proposes reforms in three areas if Pakistan is to benefit from economic growth and implement meaningful labor standards: (1) civil service reform to promote efficiency and accountability in monitoring labor standards; (2) full employment and anti-poverty measures that would sufficiently raise living standards so that parents would voluntarily remove children from the labor market; and, (3) increased representation for Pakistan and other LDCs in the WTO decision-making process.

Subjects: Case Studies: Country-Specific, Child Labor, Health and Safety, Labor Rights in General (Misc.), Workplace Discrimination, World Trade Organization (WTO)
Newsletter: Vol 5, Issue 11
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Alewell, Dorothea & Pull, Kerstin, "An International Comparison and Assessment of Maternity Leave Legislation", Comparative Labor Law & Policy Journal v. 22 no2/3 (Spring 2001) p. 297-326

Abstract:
The article makes an international comparison of maternity leave legislation in six industrializing countries -- the United States, Japan, Germany, the Netherlands, Denmark and the United Kingdom -- in order to assess the costs that such legislation imposes on employers. The authors find that the unpredictability of the duration of maternity leaves imposes significant costs on employers, costs that vary according to employer size and skill requirements. Using empirical data, they show that there is a broad variation in the duration of maternity leaves and that leaves of medium-duration impose the greatest cost on employers. They find that the cost to employers of unpredictable duration leaves has an adverse consequence for the labor market outcomes for young women. The article concludes that predictability of maternity leave duration is an important factor that needs to be addressed in maternity leave legislation in order to avoid adverse labor market outcomes.

Subjects: Case Studies: Country-Specific, Japan, Women’s Rights
Newsletter: Vol 2, Issue 4
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Anderson, Helen, "Phoenix Activity and the Recovery of Unpaid Employee Entitlements – 10 Years On", Australian Journal of Labour Law v. 2011 (August 2011) p. 141-162

Abstract:
This article discusses the effectiveness of several Australian programs designed to protect unpaid employee entitlements in the event of corporate insolvency; notably, the Corporations Law Amendment Act 2000 and the General Employee Entitlements and Redundancy Scheme (GEERS). The programs were designed to curb “phoenix activity” – where assets are removed from a failing company to avoid losing them to creditors in liquidation and the company subsequently emerges debt-free without having paid due employee entitlements. The article discusses how the non-payment of employee entitlements has been dealt with over the past decade and purports that the legislation has failed to adequately protect unpaid employee entitlements. For example, the Corporations Law Amendment’s requirement that a company’s executive possess the subjective intent to deprive employee benefits has predictably resulted in no prosecutions under the law. After discussing the limitations of several existing schemes, the article suggests new measures to improve the likelihood of recovery of unpaid employee entitlements.

Subjects: Australia, Case Studies: Country-Specific, Employment Law, Pensions
Newsletter: Vol 11, Issue 9
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Antwi, E. Abena, "Women in the World of Work: After Eighty-Six Years, Has the International Labour Organization Done Enough to Promote Equality?", North Carolina Journal of International Law and Commercial Regulation no31 (Spring 2006) p. 793-821

Abstract:
This article begins with a survey of the history, goals and procedures of the International Labour Organization (ILO) with respect to women's equality in the workplace and then provides three brief case studies of working conditions for women employed in the maquilas and domestic service in Mexico, El Salvador and Guatemala. Although the ILO has various reporting and complaint procedures for enforcement of its various conventions calling for gender equality in the workplace, all of them are voluntary. Despite laws banning workplace discrimination in each of the three countries examined, the author claims there is widespread abuse and discrimination, including employer-mandated pregnancy screening, sexual harassment, hiring discrimination, substandard pay and denial by employers of legally mandated healthcare to female workers. The author concludes that the ILO has largely failed to protect women against workplace discrimination in these countries and that unless it can devise more effective enforcement mechanisms, "its reputation will continue to decline in the world community."

Subjects: Case Studies: Country-Specific, International Labour Organization (ILO), Women’s Rights, Workplace Discrimination
Newsletter: Vol 5, Issue 11
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Appleton, Simon & Knight, John & Song, Lina & Xia, Qingjie, "Contrasting Paradigms: Segmentation & Competitiveness in the Formation of the Chinese Labour Market", Journal of Chinese Economic and Business Studies v. 2 no3 (September 2004) p. 185-285

Abstract:
This article argues that the current labor market in urban China is a paradigm of a “three tier” labor market (as opposed to a competitive labor market) by comparing wage functions across categories (“tiers”) of labor. The first tier consists of “non-retrenched urban workers,” workers that are employed and not laid off since 1992. The second tier consists of “re-employed urban workers,” workers who were laid off, but were employed when the survey was conducted (year 2000). The third tier consists of “rural-urban migrants,” workers who migrated from rural areas. The first section gives a historical background on the labor market reforms that China had implemented in the 1990s in an effort to create a more competitive labor market. The two most dramatic changes were the end of the lifetime employment system and the increased government permission of rural-urban migration. The second section describes the data (number of households, description of workers) and methods used (wage functions, panel data) to compare the three tiers of the labor market. It also explains econometric issues that may arise, such as sample selectivity bias. The third section analyzes the test results of the wage functions. The authors state that the findings suggest workers in urban China are rewarded differently according to what category they fit in, with the first tier having the highest wage premiums and the migrants having the lowest in absolute terms. The fourth section investigates whether certain characteristics (such as education, age, occupation, etc.) could explain these wage differences by standardizing them in the wage functions. The authors find that the results imply that non-retrenched urban workers (first tier) have a distinct wage advantage over the other two tiers. Though the article concludes that Chinese urban workers are currently in a segmented labor market, it expresses hope of emerging signs of competitiveness.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Immigration
Newsletter: Vol 4, Issue 2
 
Araki, Takashi, "Corporate Governance Reforms, Labor Law Developments, and the Future of Japan’s Practice-Dependent Stakeholder Model", Japan Labor Review v. 2 no1 (Winter 2005) p. 26-57

Abstract:
This article examines recent reforms in Japanese corporate governance that move Japan from an employee-centered to a shareholder-centered model of corporate governance. The author begins with a description of Japan’s traditional corporate governance model , and then describes the legislative reforms that change the governance structure and alter labor-management relations. According to the author, the principle difference between the old and new models is that the traditional model is based on internal promotion, while the new model is comprised of outside managers and directors. The former leads to amiable relations between labor and management because most managers had been members of the union during their span of employment at the company, while the latter leads to a more adversarial approach. The next section looks at how the increased mobility of the workforce and use of atypical employment has led to decreased employment security. He reviews some labor law developments that attempt to balance the goals of promoting corporate reorganization (e.g. by relaxing the standard for job dismissal for employers) with protecting employee s' interests (e.g. by imposing automatic succession of employment relations of corporations that split). The author then discusses some ways in which Japan’s current worker representation system may need improvements. Japan’s industrial relations are comprised of three factors: (1) enterprise unionism , (2) free-flowing labor-management communication, and (3) internal management promotion. All three factors are compromised with corporate reorganization and a diverse workforce. The author concludes that despite these recent reforms aimed at changing Japan’s corporate governance structure to a shareholder-centered model, Japan’s strong and deep-rooted stance on protecting employee interest will result in resistance to any drastic changes to the traditional employee-centered model.

Subjects: Case Studies: Country-Specific, Corporate Governance, Japan
Newsletter: Vol 4, Issue 6
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Araki, Takashi, "Changing Employment Practices, Corporate Governance, and the Role of Labor Law in Japan", Comparative Labor Law & Policy Journal v. 28 (2007) p. 251-275

Abstract:
Despite widespread media and scholarly reports of the demise of Japan's system of highly developed internal labor markets and lifetime employment, in this article the author argues that the job protections characteristic of Japanese labor relations have remained largely undiluted, but that the share of the "non-regular," (part-time, fixed-term, contingent, or "flexible") work force has grown dramatically in recent years, so that a growing percentage of the overall workforce has no job security. The author argues that it is precisely because Japanese unions and the courts have successfully defended the job security of the "regular" workforce, that employers have increasingly resorted to using non-regular employees and to what the author calls "qualitative flexibility," meaning implementation of lower labor standards as cost-saving measures when "quantitative flexibility (meaning the outright elimination of redundant positions) is not possible. Despite a series of recent reforms in several areas of Japanese labor law, the author argues that these have generally steered a "pragmatic" middle ground between "security" and "flexibility." By contrast, potentially more far reaching changes have occurred in Japanese corporate law, which since 2002, allows companies to replace their internally promoted directors (often former leaders of the enterprise unions at their respective firms) who are sympathetic to employee job protections, with externally selected directors, who seek to maximize stock value and who regard the shareholders, rather than employees, as the primary constituency to whom they must answer. The author notes that, while Japanese corporations since World War II have largely behaved like their European counterparts, by ensuring worker participation in the direction of the enterprise, Japanese law is modeled on, and more closely resembles, U.S. corporate governance structures. While the vast majority of Japanese corporations have yet to adopt the U.S.-style corporate governance structures, the author notes that, at least from the standpoint of existing Japanese law, that option is much more open than is a wholesale dismantlement of the job protections characteristic of Japanese labor law. The article concludes with a review of recent additions and modifications to Japanese labor law and with the author's recommendations for continuing a path of "pragmatic" and "non-ideological" reforms, which the author characterizes as steering a middle ground between the "rigid" security of many European systems and the hyper-flexibility characteristic of the United States.

Subjects: Case Studies: Country-Specific, Contingent Work, Corporate Governance, Flexibilization, Japan
Newsletter: Vol 6, Issue 6
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Arthurs, Harry, "The Hollowing Out of Corporate Canada: Implications for Transnational Labor Law, Policy and Practice", Buffalo Law Review v. 57 no3 (May 2009) p. 781-802

Abstract:
This article discusses the shrinking significance of the Canadian business community in an increasingly integrated North American economy. The author suggests that Canadian subsidiaries’ loss of autonomy to U.S.-based transnational corporations (TNCs) may be the most consequential result of the “hollowing out” of corporate Canada. He argues that TNCs have been centralizing control in their U.S. headquarters by moving business operations such as finance and advertising to the U.S. and curtailing the authority of Canadian boards and executives. The author presents three hypotheses regarding the consequences of this change in location and identity of corporate decision makers: a reduction in the influence of Canadian directors and officers in job-creation and retention decisions; a reduction in the demand for and availability of Canadian labor law expertise; and a convergence of Canadian human resources policies with those of the U.S. due to TNCs’ installation of transient executives with little local experience and under pressure from head offices to reduce labor costs. The author proffers three potential countertendencies: a growing hesitation of domestic corporate elites towards hollowing out, the failures of U.S. neoliberal practices, and cross-border worker solidarity.

Subjects: Case Studies: Country-Specific
Newsletter: Vol 10, Issue 9
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Badigannavar,Vidu & Kelly, John, "Do Labour Laws Protect Labour in India? Union Experiences of Workplace Employment Regulations in Maharashtra, India", Industrial Law Journal v. 41 (December 2012) p. 439-470

Abstract:
The authors describe a heated debate in India over labor market regulation. Recent trends in labor market regulation tend toward liberalization; neoliberals, who favor deregulation, claim that pro-worker and pro-union laws confer a disproportionate amount of power on trade unions and worker groups. In many Indian states, policy makers have responded by chipping away at labor protections, particularly laws that make it difficult for employers to downsize or reshape their workforces. The neoliberals claim that over-empowered worker groups and unions have created unnecessary conflicts, hindered workforce flexibility, and caused low productivity. Business lobbies claim that regulation hinders economic development and thereby hurts workers. The authors examine survey data from Maharashtra, a state with pro-worker labor laws, to examine whether these claims are true. The survey data comes from union representatives in both the public and private sector. The authors find that employers in Maharashtra frequently act in contravention of labor law, despite the unions’ supposedly disproportionate power. Further, they find that unions in Maharashtra are not likely to strike or cause a labor conflict, while employers increasingly cause labor stoppages by locking employees out or refusing to negotiate. In addition, judicial interpretation of labor law has favored employers. The authors find that, contrary to the predictions of neoliberals, even in states that have pro-labor regimes union power is limited and decreasing while employers have become more powerful and militant.

Subjects: Case Studies: Country-Specific, Collective Bargaining, India
Newsletter: Vol 12, Issue 8
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Baker, Roozbeh (Rudy) B., "Balancing Competing Priorities: Affirmative Action in the United States and Canada,", Transnational Law & Contemporary Problems v. 18 no3 (Fall 2009) p. 527-543

Abstract:
Baker examines the inherent tension between equality rightsť -- the notion that government should not discriminate by treating some citizens differently than others -- and affirmative action. While a highly formalistic interpretation of equality rights reins in US constitutional jurisprudence, favoring equal treatment over equal outcomes, Canadian courts have instead focused on substantive equality. In Part II, the author details the American approach, arguing that strict scrutiny review is, in essence, a balancing of government interests in remedial programs against the interest of the individuals against whom the law discriminate with the interests of the individuals usually overriding that of the government. The Canadian paradigm is covered in Part III, where Baker discusses a seminal 1993 case where the court balanced the relative disadvantage of the target class served by the law against that of citizens who suffered reverse discrimination and found in favor the program's corrective results. In Part IV, Baker compares the two approaches, arguing that the U.S. uses strict scrutiny review as a shield protecting equal protection guarantees against the unequal effect of race-based…programs, while in Canada, the test is a sword, whereby the nation's courts “save” laws, rather than invalidate them. In response to the incompatibility of affirmative action and equal treatment norms, both countries have struck “polar opposite” priorities, leading, in Baker’s view, to not one but two imperfect systems.

Subjects: Case Studies: Country-Specific, Employment Law, Workplace Discrimination
Newsletter: Vol 9, Issue 1
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Balzano, John, "Criminal Liability for Labor Safety Violations in the People's Republic of China", Washington University Global Studies Law Review v. 3 (2004) p. 503-526

Abstract:
This Note proposes that criminal liability attach to egegious labor safety violations in China. Currently Chinese law provides that when an industrial accident results in death, injury, or extreme consequences and is the result of safety violations that have already been noted by the authorities, then the employees who are responsible -- not the enterprise -- are liable under civil law. The author argues that criminal liability rather than civil liability would bring about more effective enforcement of the industrial safety laws. He notes that such a reform would necessitate a more defined mens rea requirement analogous to that required for negligent homicide or reckless endangerment. He also argues that criminal liabilty for managers and/or the employing entity itself would be a more effective method of enforcing safety regulations.

Subjects: Case Studies: Country-Specific, Health and Safety
Newsletter: Vol 4, Issue 8
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Bercusson, Brian, "The European Social Model Comes to Britain", Industrial Law Journal v. 31 no3 (September 2002) p. 209-244

Abstract:
The author examines the relationship between British labor law and the European Commission’s directives mandating ‘information and consultation. First, the author outlines in detail the meaning of the EC framework directive for informing and consulting employees (Directive 2002/14/EC) and its implications for British labor law, which until now has not mandated workplace representatives. Second, the author describes several respects in which the Blair government has weakened the EC legislation, including diluting the language mandating sanctions for noncompliance. Lastly, the author speculates about whether the British will adopt a posture of ‘exceptionalism’ in its implementation of the directive, such as by exploiting a loophole for member states that do not have a statutory system of workplace representation or information and consultation. The author concludes that ultimately the UK cannot escape the European social model of mandatory employee representation.

Subjects: Case Studies: Country-Specific, European Union
Newsletter: Vol 2, Issue 2
 
Bernier, Barbara, "Symposium: Global Human Rights: Panel Remarks: Sugar Cane Slavery: Bateyes in the Dominican Republic", New England Journal of International and Comparative Law v. 9 no17 (2003) p. 17-45

Abstract:
This article discusses the enslavement of Haitians on sugar cane plantations in the Dominican Republic and proposes that international human rights laws regarding the use of forced labor be used to prevent such abuses. Part I introduces the existence of the problem. Part II details the process of sugar cane slavery and describes how Haitians end up working on the plantations and the illegal conditions they face while there. Part III situates this modern day atrocity in its historical context, recounting a brief history of Haiti and the Dominican Republic to provide an understanding of present events. Part V details the legal status of Haitians in the Dominican Republic, while Part VI discusses the international covenants and conventions that could be invoked to protect the Haitians and asserts that there is a role for the U.S. in this process. Part VII concludes by summarizing various steps that must be taken to resolve the problem of Haitian enslavement in the Dominican Republic.

Subjects: Case Studies: Country-Specific, Forced Labor
Newsletter: Vol 3, Issue 2
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Bluff, Elizabeth & Johnstone, Richard & McNamara, Maria & Quinlan, Michael, "Enforcing Upstream: Australian Health and Safety Inspectors and Upstream Duty Holders", Australian Journal of Labour Law v. 25 no1 (March 2012) p. 23-42

Abstract:
This article reports on an empirical study about the enforcement of Australia’s occupational health and safety (OHS) legislation against suppliers and designers of products used in workplaces. In the last 30 years, Australia has broadened its OHS legislation to cover suppliers and designers of substances and systems that affect the safety of workers. These suppliers and designers, referred to as ‘upstream duty holders,’ are subject to inspections and penalties for the workplace risks their products create. The authors examined compliance reports, workplace documents, and OHS statistics collected from 2003-2007 in four Australian states: Victoria, Queensland, Tasmania, and Western Australia. They also observed and interviewed OHS inspectors. The researchers found that the inspectors noted upstream duty violations less frequently than other types of violations. When they did find violations for upstream duty holders, they focused on supplier violations rather than design-related violations. Moreover, prosecution of design-related risks generally only occurred after major workplace accidents that resulted in injury or death. However, the authors note that even if OHS inspectors begin to systematically pursue upstream violations related to design, the international nature of many supply chains pose likely jurisdictional problems for their prosecution.

Subjects: Australia, Case Studies: Country-Specific, Health and Safety
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Boonstra, Klara, "Government Responsibility and Bargaining Scope Within Article 4 of ILO Convention 98", International Journal of Comparative Labour Law and Industrial Relations v. 20 no2 (Summer 2004) p. 445-464

Abstract:
This article examines two recent decisions made by the Committee on Freedom of Association (CFA) of the International Labour Organization (ILO) concerning the ability of governments to legislate about subjects that are covered by collective labor agreements. The decisions concerned legislation covering part-time work in Denmark and the retirement age in Sweden. In both cases, the legislation at issue shifted a specific employment condition from the collective bargaining arena to the enterprise level where an individual and his employer could negotiate a term that deviated from the collective agreement. The CFA concluded that the statues failed to comply with ILO standards on the right to collectively bargain, and recommended that the parties involved work together to come up with a mutually acceptable solution. The author uses these cases as a springboard to discuss and propose that a closer examination is needed in determining: (1) the proper division of roles between government and social partners in the area of employment conditions, (2) the subjects that fall within the bargaining scope, and (3) where the convergence lies in respect to the interests of the government and social partners.

Subjects: Case Studies: Country-Specific, Contingent Work, International Labour Organization (ILO)
Newsletter: Vol 3, Issue 11
 
Bridgeford, Tawny Aine, "Imputing Human Rights Obligations on Multinational Corporations: The Ninth Circuit Strikes Again in Judicial Activism", American University International Law Review v. 18 no4 (2003) p. 1009-1057

Abstract:
This Note examines the Ninth Circuit's extension of Alien Tort Claims Act (ATCA) liability to a multinational corporation, Unocal, charged with third-party liability for torts committed by a foreign government in the foreign land. Unocal was charged with complicity in human rights violations including forced labor, rape, and murder committed by the Myanmar military regime while the regime provided security for a Unocal construction project. Part I explains the background and procedural history of the case and discusses how the ATCA applies international law to multinational corporations. Part II argues that the court improperly expanded the definition of slavery to include plaintiffs' claims of forced labor and thus improperly subjected Unocal to individual liability for human rights violation committed solely by the Myanmar military regime. Part II also discusses the Foreign Sovereign Immunities Act and the legal impediments to holding foreign governments and their military regimes liable for the human rights abuses they perpetrate. Part III calls upon the United States Supreme Court to provide a bright line rule on ATCA liability of multinational corporations operating abroad to prevent future lower court decisions that transgress the bounds of both domestic and international law. The author concludes by recommending that the international community adopt the United Nations' Human Rights Principles and Responsibilities of Transnational Corporations and Other Business Enterprises.

Subjects: Alien Torts Claims Act, Case Studies: Company-Specific, Case Studies: Country-Specific
Newsletter: Vol 2, Issue 12
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Brown, Michelle & Minson, Rowan & O'Connell, Ann & Ramsay, Ian, "Employee Participation in Employee Share Ownership Plans: The Law, Company Objectives and Employee Motives", Australian Journal of Labour Law v. 25 no1 (May 2012) p. 1-51

Abstract:
This article discusses the history of Employee Share Ownership Plans (ESOPs) in Australia and compares the public policy rationale behind allowing these programs with the employee motives for participating in the share ownership plans. The article finds that there is a mismatch between the employee motivations and the government’s policy rationales and discusses the implications of this mismatch. The current Federal Government supports ESOPs on the grounds that are seen to have the capacity to align employer and employee interests, thereby promoting workplace productivity. The Federal Government also cites greater involvement by employees in the business as rationale behind supporting ESOPs. In contrast, this article shows that employees most commonly view ESOPs as a way to share in company profits, a savings plan, or an element of a reward package. It also finds that involvement in company decision-making is less important to ESOP-participating employees than the financial value of ESOP participation. The results of this study can assist companies in designing ESOPs that appeal to employees. The results also suggest that the government pay close attention to the financial implications for employees of policy initiatives intended to increase the level of employee participation in ESOPs.

Subjects: Australia, Case Studies: Country-Specific
Newsletter: Vol 11, Issue 9
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Budd, John W. & Mumford, Karen, "Trade Unions and Family-Friendly Policies in Britain", Industrial and Labor Relations Review v. 57 (January 2004) p. 204-221

Abstract:
Relying on the British Workplace Employee Relations Survey of 1998, this article analyzes the relationship between labor unions and six employer-provided family-friendly policies--parental leave, paid family leave, child care subsidies, flexible working hours, working at home options, and job sharing plans. The study finds that unions increase the availabilty of parental leave, special paid leave and job-sharing options, though not work-at-home arrangements nor flexible working hours. The authors conclude that unions, with their higher bargaining leverage, are better positioned both to negotiate for superior family-leave benefits for their workers, and inform their members of options that may already exist but are under-utilized.

Subjects: Case Studies: Country-Specific, Women’s Rights, Working Hours
Newsletter: Vol 4, Issue 8
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Budd, John W., "Fairness at Work, and Maybe Efficiency but not Voice: An Evaluation of the Arthurs’ Commission Report", Comparative Labor Law & Policy Journal v. 29 no4 (2008) p. 477-489

Abstract:
This article seeks to discern the analytical framework of the Arthurs’ Report, which studies and critiques employment law covering Canadian Federal employees. After explaining several possible frameworks – egoist, unitarist, pluralist and critical – the author concludes that Arthurs falls into the pluralist school of thought. Pluralist policies embrace significant government regulation to equalize bargaining power between employees and employers. The author argues that the Arthurs’ report would be stronger if it explicitly recognized its analytical approach so that policy makers might move beyond specific proposals and more easily debate the underlying assumptions. The author then suggests that the Arthurs’ Report would benefit from emphasizing not only efficiency and equity in the workplace, but also employee voice. This article concludes by applauding the overall effort of the Arthurs’ Report, despite current obstacles to its implementation.

Subjects: Case Studies: Country-Specific, Collective Bargaining, Labor Rights in General (Misc.)
Newsletter: Vol 8, Issue 7
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Cameron, Craig, "Oxymoronic or Employer Logic? Preferred Hours Under the Fair Work Act", Australian Journal of International Law v. 25 no1 (March 2012) p. 43-64

Abstract:
In Australia, preferred hours clauses allow workers to elect to work, different or additional hours at their standard rate of pay. These clauses are controversial; many unions and politicians believe that the clauses undermine the Fair Work Act by relieving employers of the obligation to pay overtime. Employers counter that the Fair Work act acknowledges the need for flexibility so that business can run efficiently and individual workers can be accommodated. The author examines case law relating to preferred hours clauses and finds that employers often pressure workers into agreeing to them in order to save on labor costs. The author argues that this exploitation that is, on balance, more detrimental to the labor force as a whole than beneficial to the workers who request preferred hours arrangements. To preserve flexibility for workers who desire it, the author recommends that employers should be required to either show they have a genuine need for a preferred hours agreement, or that the employee engaged in the agreement genuinely needs or benefits from the arrangement.

Subjects: Australia, Case Studies: Country-Specific, Comparative Labor Law, Working Hours
 
Canova, Timothy A., "Closing the Border and Opening the Door: Mobility, Adjustment, and the Sequencing of Reform", Georgetown Journal of Law and Policy v. 5 (2007) p. 341-420

Abstract:
This article explores the limitations of both the current U.S. policy towards, and the current discourse surrounding, illegal immigration across the Mexican/U.S. border. The article also identifies the economic preconditions and policy choices that could change the pattern of illegal immigration. Part One describes three border paradigms: open, closed, and porous borders. The section posits that the U.S.-Mexico border is open for movement of goods and capital and porous for the movement of people. Part Two discusses the deficiencies of the open and porous border models. It argues that neither model adequately addresses national security concerns and that both undermine the ability of the nation-state to effectively respond to citizens' needs. Part Three examines historical examples of effective regional development models, including the Marshall plan and the European Union's regional assistance program. Part Four extrapolates from these examples to develop a "mobilization model" that would promote regional development in North America, address Mexico's social and physical infrastructure needs, and simultaneously stimulate the U.S. and Canadian economies. Part Five considers a range of institutional reforms that would be necessary to allow the mobilization model to work, such as public finance reform and the creation government institutions to control price and currency stabilization. By reinvigorating the nation-state and spurring economic development on both sides of the border, the article concludes, this mobilization model offers the only path to a viable border paradigm for future generations: an open border.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 7, Issue 5
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Chi, Xinying, "Challenging Managed Temporary Labor Migration As A Model For Rights And Development For Labor-Sending Countries", New York University Journal of International Law and Politics v. 40 (Winter 2008) p. 497-540

Abstract:
This article begins with the fact that half of the world's immigrant population is made up of temporary migrant workers. The author analyzes the approach of NGO's and sending countries to managing this temporary migration. Using the Philippines as an example, the article argues shows that the existing institutional infrastructure of sending countries operates and argues that it is insufficient to achieve the goals of promoting economic development and protecting the rights are migrants. The author also argues that the current migration paradigm does not lead to economic development but rather that economic reliance on migration functions to undermine the rights of migrants. The author concludes that in order to achieve the two goals of sending country economic development and protection of migrant workers' rights it is necessary to re-conceptualize the paradigm of migrant labor - and that to doing to do so successfully requires acknowledging that the current treatment of migrants is the result of value-laden political choices.

Subjects: Case Studies: Country-Specific, Immigration, Undocumented Workers
Newsletter: Vol 7, Issue 6
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Chuang, Janie A., "Marketization and Families: Achieving Accountability for Migrant Domestic Worker Abuse", North Carolina Law Review v. 88 no5 (June 2010) p. 1627-1656

Abstract:
This article discusses the plight of migrant domestic workers through a two-part analysis. In Part I, Chuang examines the global push-pull that has created a booming market for domestic workers. In underdeveloped countries, women are pushed to the North with the goal of making a decent wage and sending remittances back home. In receiving countries, a modern “care deficit” transfers unwanted household labor from middle and upper class women to migrant domestic workers. While domestics are “needed” by their First World recipients in an economic sense; cultural, gender, ethnic, and immigration-based oppression lead to deplorable work conditions. Further, while there are few international or national legal protections for domestic workers, Chuang argues that there may be hope through human trafficking legislation. In Part II, Chuang presents a case study of the trafficking of migrant domestic workers in the United States by foreign diplomats. While such cases are probably a small portion of domestic worker abuse, a combination of worker vulnerability and diplomatic immunity have prompted domestic worker organizing and legislative action. The article concludes with an examination and critique of current efforts by Congress and the State Department to protect trafficking victims.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Immigration, Women’s Rights
Newsletter: Vol 10, Issue 1
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Clay, Lisa, "The Effectiveness of the Worker Rights Provisions of the Generalized System of Preferences: the Bangladesh Case Study", Transnational Law & Contemporary Problems v. 11 no1 (Spring 2001) p. 175-201

Abstract:
This Note discusses the operation of the worker rights provisions of the US Generalized Systems of Preferences (GSP). The author questions the efficacy of the United States GSP program in helping the cause of workers rights in the developing part of the world. Using the restrictive labor policies in the Export Processing Zones (EPZs) in Bangladesh as an example, the Note demonstrates the conflicting interests of US investors, workers' associations in the EPZs, and the AFL-CIO. The Note concludes that given the multiplicity of interests, the U.S. GSP has not been successful in promoting workers rights in Bangladesh. It argues instead that worker rights provision should be included in other international trade policies, that the ILO should be given stronger enforcement powers, and the GSP program itself should adopt a clear definition of “internationally recognized worker rights.”

Subjects: Case Studies: Country-Specific, Export Processing Zones, International Labour Organization (ILO)
Newsletter: Vol 1, Issue 3
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Cleveland, Sarah & Smith, Rebecca & Lyon, Beth, "Inter-American Court of Human Rights Amicus Curiae Brief: The United States Violates International Law When Labor Law Remedies Are Restricted Based on Workers' Migrant Status", Seattle Journal for Social Justice v. 1 (Spring 2003) p. 795-882

Abstract:
This article is a reproduction of an amicus curiae brief filed by several groups in the United States in response to the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB (“Hoffman”), where the court held that the Immigration Reform & Control Act of 1986 (IRCA) precluded the NLRB from ordering an employer to pay an employee a back pay award for violating the NLRA. The occasion for the brief was Mexico’s request for an advisory opinion with the Inter-American Court of Human Rights in Coast Rica regarding the rights of migrant workers. The Introduction describes the plight of immigrant workers in the U.S., nothing that they are among the most poorly paid and treated in the work force. Part I argues that U.S. laws deny basic employment protections to foreign workers on the basis of alienage or immigration status, and discusses the type of work undocumented workers perform. It further addresses the lack of an effective deterrent to employer threats, the Hoffman decision and its negative impacts on workers’ rights, and other U.S. laws that exempt certain immigrants from workplace protections. Part II discusses U.S. employment laws concerning migrant workers that violate fundamental norms of non-discrimination and freedom of association. The Conclusion underscores the need for the Inter-American Court to lend clarity to the provisions of the Inter-American system and to establish fundamental protections for all workers in the region.

Subjects: Case Studies: Country-Specific, Undocumented Workers
Newsletter: Vol 3, Issue 9
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Collins, Erika C. & Mokros, Bradley R. & Simmons, John, "Labor and Employment Developments from Around the World", International Lawyer v. 37 no2 (Summer 2003) p. 329-357

Abstract:
This article reviews international legal developments in the field of business regulation, summarizing labor and employment regulations enacted in various countries in 2002. Eighteen different countries, ranging from Australia to the Netherlands to the United Kingdom, are discussed in alphabetical order. Topics span a broad spectrum from paid parental leave to reform of copyright law to protection for part-time employees.

Subjects: Case Studies: Country-Specific, Labor Rights in General (Misc.)
Newsletter: Vol 3, Issue 7
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Compa, Lance & Vogt, Jeffery S., "Labor Rights in the Generalized System of Preferences: A 20-Year Review", Comparative Labor Law & Policy Journal v. 22 no2/3 (2001) p. 199-238

Abstract:
This article reviews twenty years' experience with the Generalized System of Preferences (GSP) labor rights clause, which was the first significant treaty linking of workers' rights and trade under U.S. law. Parts II and III recount the legislative process resulting in passage of the GSP and as well as workers' rights provisions in other bilateral, regional, and multilateral trade arrangements. In Part IV, the authors present case studies of the use of GSP labor provisions in six countries: Chile, Guatemala, Malaysia, Indonesia, Pakistan and Belarus. Part V argues that the willingness of the United States to act unilaterally through the use the GSP has driven a process of bilateral, regional and multilateral action to promote workers' rights in trade that goes far beyond the GSP program. The authors conclude that, on balance, the GSP workers rights clause has been an important instrument in international labor affairs that has yielded concrete, positive results for workers in many instances.

Subjects: Case Studies: Country-Specific, Generalized System of Preferences (GSP)
Newsletter: Vol 2, Issue 3
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Cooney, Sean, "A Broader Role for the Commonwealth in Eradicating Foreign Sweatshops?", Melbourne University Law Review v. 28 (August 2004) p. 290-342

Abstract:
This article examines the link between Australian firms and foreign sweatshop labor and suggests potential legislative strategies that could be taken to combat these substandard working conditions. The author describes how Australian firms are most commonly linked to sweatshop labor through supply chains that operate in the labor markets of developing countries where competition to secure production contracts drives factories to impose long hours, low wages, and dangerous working conditions. The article reviews several forms of regulation that are currently used in Australia to combat sweatshop labor: obligations imposed by common law and statute, self-regulatory initiatives in the private sector, and voluntary multi-stakeholder initiatives involving non-governmental organizations ('NGOs') and international agencies. The author argues that none of these regulatory approaches has more than a marginal effect in encouraging Australian firms to eradicate sweatshop labor conditions in their supply chains. The author proposes that to combat sweatshop labor, firms producing overseas should be divided into two groups. The first group, Australian firms with "egregious" labor conditions in their supply chains, should be subject to sanctions for not taking appropriate measures to eradicate sweatshop conditions in their overseas suppliers. The second group, firms with "poor conditions," should be required to report their efforts to eliminate these conditions in their supply chains. If firms in the second group either do not report or report fraudulently, they should be sanctioned. The article also suggest that a new government agency be formed to work collaboratively with firms, NGOs, and trade unions to develop common strategies, principles, and metrics for establishing uniform reporting and evaluation methods. The article concludes by stressing that these legislative measures would need to be worked out in detail and put into practice in an experimental and revisable way.

Subjects: Australia, Case Studies: Country-Specific, Corporate Accountability, Labor Rights in General (Misc.)
Newsletter: Vol 7, Issue 2
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Cooney, Sean, "Making Chinese Labor Law Work: the Prospects for Regulatory Innovation in the People's Republic of China", Fordham International Law Journal v. 30 (2007) p. 1050-1110

Abstract:
This Article examines the capacity of Chinese labor laws and various state and private institutions to ensure minimum labor standards, particularly in the area of wage and hour regulation. According to official Chinese statistics, some US $12 billion in workers' wages goes unpaid each year. The article finds that the Chinese regulatory framework is impeded by a failure to clarify key norms, a bureaucratic "command and control" approach to inspection and dispute resolution, and a narrow and ineffective range of tools for inducing compliance. However, the article also cites some encouraging evidence of regulatory experimentation, such as a draft Labor Contract Law and regional wage regulations in Guangdong Province, that may lead to a much more effective legal response. Relying on recent scholarly literature promoting "responsive," "reflexive," or "decentered" forms of regulation as superior alternatives to traditional "command and control" style rule-making, the article makes a number of recommendation, such as (1) clarification of key norms; (2) more effective sanctions, particularly for repeat offenders; (3) improving dispute resolution by, inter alia, expanding the remedies available to include interim injunctive relief; (4) trade union reform to permit limited right to strike over health and safety hazards.

Subjects: Case Studies: Country-Specific, China
Newsletter: Vol 6, Issue 10
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Cooney, Sean & Biddulph, Sarah & Kungang, Li & Zhu,Ying, "China’s New Labour Contract Law: Responding to the Growing Complexity of Labour Relations in the PRC", University of New South Wales Law Journal v. 30 no3 (2007) p. 786-801

Abstract:
This article provides a discussion and evaluation of China’s New Labour Contract Law. First, the article explains how the previous Labour Law of 1994 was inadequate in the increasingly complex and privatized nature of the Chinese labor market and how the new law was intended to provide a comprehensive framework for the formation, performance, modification and termination of labor contracts. Secondly, the article discusses the lobbying efforts of labor and business to shape the outcome of the new law. The article then evaluates the effectiveness of the law, including some of its more controversial provisions. For example, by limiting employers’ ability to change work rules governed by employment contracts, the law may have the unintended effect that employers will limit the scope of such agreements to escape regulation. Similarly, the compromise between labor and business lobbying groups over the responsibility of employers towards terminated workers has resulted in a two-tier system in which “regular” employees enjoy significant protections while “casual” employees have few protections. One of the most important aspects of the law, according to the author, is that labor contract agencies must now also provide contracts to their employees – of a minimum two years. The new law’s treatment of post-employment non-compete clauses is also controversial. Though the law restricts this pervasive practice to some extent, the law’s provisions on this subject rely largely on voluntary compliance by employers. This article concludes that while this new law is often an uncomfortable compromise between the demands of competing interests, overall it is an improvement in efforts to clarify the employment relationship and establish minimum labor protections for China’s large privat-sector workforce.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Employment Law, Health and Safety, Working Hours
Newsletter: Vol 7, Issue 3
 
Daubler, Wolfgang & Wang, Qian, "The New Chinese Employment Law", Comparative Labor Law & Policy Journal v. 30 no2 (Winter 2009) p. 395-408

Abstract:
The authors review provisions of China's Employment Contract Act and anticipate its consequences on employment structure, employee protections, labor unrest, and the role of unions in China. They note that the Act limits employer use of short-term contracts and temporary agencies, but not part-time employment. The law also expands dismissal protections and forbids employers from requiring deposits or withholding passports. Employers must hold collective “negotiations on equal footing” with employees or their representatives, including unions, to establish the terms of work. Further, the law permits collective agreements that set pay scales for an industrial sector or geographic area. The Act includes penalties for employer violations. While predicting that the law will reduce unrest, the authors also anticipate that parties are likely to use the law informally to reach settlements. They note the relative unpopularity of legal action in China, and unions’ hesitance to push confrontation with employers and Party officials. The authors also suggest that the law’s indeterminacy in important areas, such as what happens if negotiations break down or the grounds for mass lay-offs, encourages compromise.

Subjects: Case Studies: Country-Specific, China, Employment Law
Newsletter: Vol 11, Issue 2
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Davidov, Guy, "Unbound: Some Comments on Israel's Judicially-Developed Labor Law", Comparative Labor Law & Policy Journal v. 30 no2 (2009) p. 283-311

Abstract:
The author argues that in recent decades Israel’s National Labor Court has substantially limited managerial prerogative employer rights to make unilateral business changes that impact employees, including decisions that lead to employee dismissals. The Court has required employers to internalize the costs of many unilateral decisions, for instance, by paying damages to an employee after altering his regular work hours. Further, the Court has subjected many matters of managerial prerogative, such as outsourcing, to collective bargaining. It has also protected political strikes and imposed on employers a duty to bargain with, and provide information to, employee representatives. In the law governing dismissal, the Court has introduced new substantive and procedural limits to employers’ at-will authority, including a pre-dismissal hearing requirement and a prohibition against retaliatory dismissals when employees sue employers. Finally, the Court has strengthened wrongful dismissal remedies. Judges increasingly order reinstatement and impose large damages. The author suggests that judges’ conceptions of good policy have driven these developments. He notes they are inconsistent with the legal origins hypothesis that courts of common law provenance will develop the law towards greater “freedom of contract.”ť

Subjects: Case Studies: Country-Specific, Comparative Labor Law
Newsletter: Vol 11, Issue 12
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Diamond, Stephen F. , "Bridging the Divide: An Alternative Approach to International Labor Rights After the Battle of Seattle", Pepperdine Law Review v. 29 (2001) p. 115-146

Abstract:
In Bridging the Divide: An Alternative Approach to International Labor Rights After the Battle of Seattle, Professor Diamond presents a description and analysis of the conflicts at the WTO meetings in Seattle in 2000 and the subsequent debates over normalizing trade relations with China. The piece details the strategies by and conflicts between the major actors -- the AFL-CIO, the Clinton administration, and several leading labor rights NGOs. The piece argues that international labor rights activists should focus on the issue of economic development, and put issues such as living wage guarantees and reasonable hours and working conditions on the table at the WTO. He says that such an approach can both improve the economic well being of workers in the developing countries and sustain the economic welfare of those in the developed world.

Subjects: Case Studies: Country-Specific, Child Labor, China, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 4, Issue 2
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Diamond, Stephen F. , "The Race to the Bottom Returns: China's Challenge to the International Labor Movement", University of California Davis Journal of International Law and Policy v. 10 no39 (2003) p. 39-74

Abstract:
In The Race to the Bottom Returns, Professor Diamond explores the impact of China's integration into the world economy on labor relations in China and in the developed world. He begins by engaging with a long-simmering debate about whether there is a "race to the bottom" in labor standards--a flight of capital to the lowest labor cost countries. He rejects the simplistic accounts of the "race to the bottom" and says the real issue is "the ability of sophisticated multinational corporate capital to combine high-productivity technology with labor that is paid substantially less than that found in the developed world." Professor Diamond goes on to explore the ramifications of this new form of capital-labor combination. He shows how this new form of capitalism is a vast departure from the industrial relations era in which productivity and wages were linked by a variety of democratic political and economic institutions. The new era, he argues, rests upon authoritarian regimes such as the one that exists in China today. The article describes the authoritarian nature of the Chinese production system and its state-sponsored trade unions. He demonstrates that the economic success of China in recent decades depended upon state-sponsored repression of genuine trade unionism. He ends by criticizing those in the global labor movement who seek constructive engagement with existing Chinese institutions, arguing that it is more important to bring about democratic reform.

Subjects: Case Studies: Country-Specific, China, Labor Rights in General (Misc.)
Newsletter: Vol 3, Issue 12
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Diamond, Stephen F. , "The PetroChina Syndrome: Regulating Capital Martkets in the Anti-Globalization Era", Iowa Journal of Corporate Law v. 29 no41 (2003) p. 39-102

Abstract:
This piece begins by recounting the attempt by investment banks and the Chinese government to list an initial public offering of the giant Chinese oil company, PetroChina on the U.S. stock exchange, and the campaign by labor union activists and NGOs to block the listing on the basis of the company's use of forced labor in its operations in the Sudan and China's human rights violations. The campaign culminated in the controversial "Unger letter" that requires foreign companies seeking to list on U.S. exchanges to disclosure to potential investors their activities in countries that are involved in human rights violations. Professor Diamond describes the dramatic campaign that led to the "bombshell" letter and then asks the important question: does the injection of human and labor rights considerations into capital markets impedes the functioning of those markets? In answering that question, the author presents the objections that were raised to the Unger letter and demonstrates how the different types of objections fall into the different post-Cold War political camps of neo-liberalism, neo-mercantilism, national interest grouping, and new internationalism. The author then looks at the issue of injecting human rights concerns into capital markets from a different perspective. He says that we are witnessing the demise of the Keynsian industrial relations system in which wage increases and productivity increases go hand-in-hand; a system that has brought rising standards of living to the industrial working class and labor peace and stability to employers. Diamond claims that this industrial relations system and the macro-economic structures that supported it collapsed in the 1970s, so that subsequent reforms in currency regulations and capital markets permitted new levels of capital mobility that have undermined labor unions and working class living standards in the developed world. The demise of the industrial relations model also created a crisis in legitimacy. Without the wage-productivity bargain and a strong labor movement, many citizens in both the advanced and developing world no longer see the international global economic system as one that embodies what Clark Kerr calls "a sense of fair play." The growing sense of unfairness and the lack of consensus have fueled the anti-globalization movement all around the world.

Subjects: Case Studies: Company-Specific, Case Studies: Country-Specific, China, Forced Labor
Newsletter: Vol 4, Issue 1
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Douglas, William A. & Ferguson, John-Paul & Klett, Erin, "An Effective Confluence of Forces in Support of Workers' Rights: ILO Standards, US Trade Laws, Unions and NGOs", Human Rights Quarterly no26 (2004) p. 273-299

Abstract:
This article addresses the common view that the International Labor Organization (ILO), despite its valuable contributions of labor setting standards, monitoring compliance and providing technical assistance, has no enforcement mechanism. The authors take issue with this view, arging instead that the ILO, when combined with the reconnaissance of local trade unions and NGOs and the leverage of US trade legislation, can make incremental progress in reducing labor violations. The article examines six countries in which this confluence has proven effective: Bangladesh, the Domincan Republic, El Savador, Guatemala, Korea, and Swaziland. Although the labor situations were different in each country -- for example, rampant child labor violations in Bangladesh, the use of military force in the Domincan Republic to compel Haitians to work on sugar plantations, etc. -- improvements occurred in each case when local NGOs and unions publicized the abuses and then persuaded the U.S. Trade Representative to threaten to withhold tariff preferences. The ILO was then summoned to assist in compliance and to monitor and report on conditions. Though the process has not worked seamlessly, the three-pronged strategy has proven to be effective in improving working standards in the six countries discussed.

Subjects: Case Studies: Country-Specific, Child Labor, International Labour Organization (ILO)
Newsletter: Vol 4, Issue 2
 
Durkalski, John A., "Fixing Economic Flexibilization: A Role for Flexible Work Laws in the Workplace Policy Agenda", Berkeley Journal of Employment and Labor Law v. 30 no381 (2009) p. 381-403

Abstract:
This article contrasts the United Kingdom and United States' statutes that seek to mitigate the challenge of juggling family care-giving with inflexible work hours. The United Kingdom's Act gives a parent the right to request different work hours to care for any young or disabled child and provides a cause of action if an employer offers an insufficient reason for denying the change in hours. In contrast, the United States' Family and Medical Leave Act (FMLA) merely permits a worker to take unpaid leave to care for sick family members. In addition, the United States permits federal agencies to allow employees to change their hours, but does not compel the agency to adopt flexible schedules upon request. The article concludes that the United Kingdom's Employment Act of 2002 offers workers more flexibility than the United States' current regime. In addition to suggesting that the United States pass legislation like that in the United Kingdom, it proposes that the United States raise the age of a qualifying child to more than six years old; require that an employer's reason for denying a change in hours be objectively reasonable; and provide low-income workers with better access to the adjudicative bodies that review an employer's decision.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, Flexibilization, Workplace Discrimination
Newsletter: Vol 9, Issue 11
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Dyer, Jennifer A., "The Failure of France's First Employment Contract: Failing to Protect Jobs and Workers", Transnational Law & Contemporary Problems v. 17 (Spring 2008) p. 503-527

Abstract:
In 2006, France's attempted to address high unemployment among young people with the Contrat Premičre Embauche (CPE). The country's long-term employment contracts, mandated by law, make terminations and lay-offs difficult and render employers wary to employ inexperienced young workers for a lifetime. In response, the CPE lengthened the probationary period for workers under age 26 and sharply reduced severance pay. The CPE was met with widespread protests by a citizenry hostile to flexible labor and free market policies and the legislature ultimately abandoned it. While acknowledging reform is needed to quell unemployment, Dyer argues the CPE did not adequately protect young workers, especially in regard to workplace sexual harassment. Though harassment is criminalized in France and employers have certain legal obligations to prevent and respond to it, the permissive culture makes it difficult for victims who are more likely to be young to successfully bring claims. For instance, under the CPE, an employer could freely dismiss a young employee who complained of harassment, circumventing the obligations and leaving the worker with no legal recourse. Dyer recommends any future labor reform protect young workers while being consistent both with French cultural values and criminal laws.

Subjects: Case Studies: Country-Specific, Employment Law, Flexibilization, Workplace Harassment
Newsletter: Vol 8, Issue 9
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Eklund, Ronnie, "A Swedish Perspective on Laval", Comparative Labor Law & Policy Journal v. 29 no4 (2008) p. 551-571

Abstract:
This article begins by contextualizing and summarizing the 2007 European Court of Justice decision in Laval, in which the Court curbed the reach of Swedish labor law with respect to companies from other European Union nations that operate in Sweden. The court upheld minimum national standards, but enjoined trade union actions designed to bring a foreign company in line with higher prevailing national standards. The author critiques the Court’s decision by highlighting case law, international agreements and European Community law that seek to create fair competition between companies from different nations and protect the right to strike, and would therefore lead to a contrary decision. The author concludes that the decision may lead to further erosion of workers’ rights in the European Union, since the court, for the first time, accepted the company’s rationale that the economic costs of collective bargaining would have been prohibitive.

Subjects: Case Studies: Country-Specific, Collective Bargaining, European Union, Right to Strike
Newsletter: Vol 8, Issue 11
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Faber, Emily Miyamoto, "Pregnancy Discrimination in Latin America: the Exclusion of the "Employment Discrimination" from the Definition of "Labor Laws" in the Central American Free Trade Agreement", Columbia Journal of Gender and Law v. 16 (2007) p. 297-336

Abstract:
This article criticizes the recently concluded Dominican and Central American Free Trade Agreement (CAFTA) for failing to include prohibitions against workplace discrimination, and in particular discrimination on the basis of pregnancy. The author describes numerous reports documenting widespread gender discrimination in Central America and the Dominican Republic, including mandatory pregnancy tests as a condition of employment. She notes that this omission can not have been an accident, as non-discrimination provisions are part of the International Labor Organization's "core" labor rights and are routinely included in other free trade agreements. Moreover, during the negotiations for CAFTA, officials in the Bush Administration and in the governments of Central America and the Dominican Republic periodically acknowledged the problem of lax enforcement of existing laws against pregnancy discrimination but nevertheless chose to exclude such provisions from the Agreement. After considering several reasons for this exclusion, the author suggests the most likely explanation is that it was part of a conscious "win-win-lose" strategy designed to benefit businesses facing competition from Chinese manufacturers and the government signatories of the Agreement, but not workers in the maquiladoras, the vast majority of whom are women. The article concludes by suggesting several possibilities for reforming CAFTA to increase enforcement of other existing laws banning workplace discrimination. The author also suggests that CAFTA and future free trade agreements provide incentives or rewards to corporations that adopt voluntary self-regulating guidelines and promise to guarantee workers' rights in line with the ILO Core Labor Standards.

Subjects: Case Studies: Country-Specific, Free Trade Agreements, Health and Safety, Trade Agreements, Women’s Rights, Workplace Discrimination, Workplace Harassment
Newsletter: Vol 6, Issue 4
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Felter, Megan, "Note: Short-Time Compensation: Is Germany’s Success with Kurzarbeit an Answer to U.S. Unemployment? ", Boston College International and Comparative Law Review v. 35 (Spring 2012) p. 481-510

Abstract:
The author argues the United States (U.S.) can learn from Germany’s success in using its work-sharing program to limit unemployment during recessions. During the 2008-2009 economic recession, German unemployment rate stayed constant, although rate in the United States increased doubled between 2008 and 2009. The author argues that Germany’s use of its Kurzarbeit work-sharing program helped prevent the loss of jobs during the economic recession. Under the program, employees whose hours are reduced due to temporary decreases in demand can receive government funds to supplement their diminished incomes. Although twenty-three states in the U.S. offer similar work-sharing programs, known in the United States as Short-Time Compensation (STC), these programs remain vastly underutilized for several reasons. First, legal ambiguity has stood in the way of the programs’ implementation. STC programs initially were created under the Tax Equity and Fiscal Responsibility Act (TEFRA), a program that expired in 1985. In 1992, Congress enacted the Unemployment Compensation Amendments of 1992 (UCA) in which it called upon the Department of Labor to create model legislation for STC programs. However, the Department of Labor has not done so, in part because UCA definitions of what constitutes an STC are inconsistent with TEFRA. In addition, most employers are unaware of the existence of STC programs. Currently only two percent of all unemployment claims involve STC claims. The author argues that that U.S. should pass legislation that reconciles the inconsistent legal definition of an STC programs, and should government actively promote STC programs to employers. Moreover, the author advocates that employers be required to continue health insurance and pension contributes while workers participate in STC programs. The author concludes that STC programs, under the right circumstances, can help combat unemployment in the U.S.

Subjects: Case Studies: Country-Specific, European Union, Flexibilization, Unemployment Insurance
Newsletter: Vol 12, Issue 4
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Filho, Roberto Fragale, "Comparative Labor and Employment Law and Policy in the Next Quarter Century: Celebrating Twenty-Five Years and Speculating Over the Future From a Brazilian Perspective", Comparative Labor Law & Policy Journal v. 25 (Fall 2003) p. 21-31

Abstract:
This article speculates about the future of labor law from the Brazilian perspective. In Part I, the author describes four different conflict theories that attempt to explain the social dynamics that underlie labor law: "capital vs. labor," "qualified labor vs. non-qualified labor," "social inclusion vs. social exclusion," and "labor vs. post-labor." The author shows how each conflict theory predicts a different future for labor law. For example, the author argues that if the field of labor law is characterized as a conflict between capital and labor, the law will not undergo major changes. However, if the field is characterized as a conflict between labor and "post-labor," labor law will have to address problems caused by short-term jobs, work force mobility, the need for continuous education, and the increasing importance of "free time." The author concludes Part I by arguing that Brazil provides a real-world laboratory for investigating the different conflict theories. In Part II, the author discusses how labor law has affected the Brazilian court system. He notes that the courts have been overwhelmed with approximately two million labor cases a year for the past ten years. The author investigates two different approaches to solve the problem of judicial crowding: making changes in the judicial system, and using alternative dispute resolution and class action suits to reduce of the number of cases heard by courts. In Part III, the author draws on the Brazilian experience to suggest an agenda for comparative labor law scholarship, arguing that labor law studies must integrate with other disciplines.

Subjects: Case Studies: Country-Specific, Contingent Work, Labor Rights in General (Misc.)
Newsletter: Vol 4, Issue 4
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Filosa, Gregory, "International Pension Reform: Lessons for the United States", Temple International and Comparative Law Journal v. 19 (2005) p. 133-184

Abstract:
The problems of the US Social Security system -- a pay-as-you-go system sustainable only through 2042 -- are common throughout the world. The author uses international reforms to illuminate US options. Part II outlines the history and problems of the US social security system. Part III explains the World Bank's role in promoting worldwide reform since 1980, and its three-part model that includes (1) a pay-as-you-go defined benefit program; (2) a privatized defined contribution program; and (3) a voluntary savings pillar. Detailed case studies of Chile, Britain, Poland, Kazakhstan and Australia show variations of this model. Parts IV and V discuss US reform proposals and advocate a mandatory, fully-funded, defined contribution pillar in addition to extant minimum-protection and voluntary savings pillars. Chile is the key exemplar. Part VI, an author's note, uncritically describes Bush-Cheney reform proposals.

Subjects: Australia, Case Studies: Country-Specific, Pensions
Newsletter: Vol 5, Issue 8
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Finkin, Matthew W., "Privatization of Wrongful Dismissal Protection in Comparative Perspective", Industrial Law Journal v. 37 (2008) p. 149-168

Abstract:
In Circuit City Stores, the Supreme Court ruled that it employers may impose mandatory pre-dispute arbitration of statutory employment claims. This article compares the privatization of employment law claims in the U.S. to the British, French, and German systems and shows that in each of those systems, such privatization would not be viable. The article explores the reasons for the U.S. exceptionalism in this arena including the American courts' desire to clear clogged dockets, the lassitude of the American legislature on the topic, and the rationale offered by public choice theory. In contrast, the article explains, the substitution of employer designed private remedies would be unthinkable in the British, French, and German systems. While each of these three systems is distinct in many aspects, they share three important features: (1) public tribunals are seen as inviolable fixtures of the legal culture, (2) legislation would be required to dismantle extant legal barriers to privatization of employment claims, and (3) despite awareness of the U.S. trend toward privatization, there has been no serious legislative interest in following that direction.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Privatization
Newsletter: Vol 7, Issue 7
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Finley, Maxmillian, "The Bitter with the Sweet: The Impact of the World Trade Organization's Settlement of the Banana Trade Dispute of the Human Rights of Ecuadorian Banana Workers", New York Law School Law Review no48 (2004) p. 815-860

Abstract:
In this article, the author examines how the World Trade Organization's Settlement of the banana trade war affected Ecuadorian banana workers. The author argues that the resolution will not benefit the workers because the Ecuadorian government and multi-national corporations profit from denying workers their basic human rights to organize and form unions. Finley notes that although the Ecuadorian Constitution and Labor Code give employees the right to organize, the laws do not require workers to be reinstated who have been fired for organizing activities. Additionally, the growing use of permanent, temporary, and subcontracted labor means that many banana workers are not recognized as "employees" under the law and hence receive no protection. Finley contends that multinational corporations contribute to the problem by using guaranteed supply contracts with banana producers in lieu of directly owning plantations. As a result, multinational corporations avoid liability for labor violations by shifting the responsibility to the local producers with whom they contract. The author observes that the Ecuadorian workers might be able to bring lawsuits against the U.S. multinational corporations in U.S. courts under the Alien Tort Claims Act. However, because most Ecuadorian workers do not have the time and resources to pursue litigation, Finley contends that the U.S. legislature should suspend aid and benefits to Ecuador to send a strong message of disapproval. Finally, Finley proposes actions that Ecuador and multinational corporations can take to provide the Ecuadorian workforce with the right to organize.

Subjects: Alien Torts Claims Act, Case Studies: Country-Specific, Case Studies: Industry-Specific, Contingent Work, World Trade Organization (WTO)
Newsletter: Vol 4, Issue 9
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Floyd, Louise Willans, "When Old Meets New: Some Perspectives on Recent Chinese Legal Developments and their Relevance to the United States (The Importance of Labor Law)", Southern Methodist University Law Review v. 64 (Fall 2011) p. 1209-1241

Abstract:
This article describes recent developments in Chinese labor law and discusses how the United States could influence China in order to improve the situation of Chinese workers. The author argues that it is in the interests of the US to improve labor standards in China for two reasons: because of the moral imperative in human rights, and to prevent further offshoring of U.S. manufacturing jobs. The author outlines the recent Labor Contract Law, which sets minimum standards for Chinese laborers and employers but provides little protection of collective bargaining activities. The author also cites factors that hinder enforcement such as the state control of unions and the pervasive, quasi-legal subjugation of rural workers. The author recommends that the US implement a multifaceted approach in order to encourage China to strengthen its labor laws. Such an approach should include supporting the ILO, encouraging corporate social responsibility, utilizing sympathetic trading partners such as Japan and Korea, using social media tools, and appealing to China’s own interest in maintaining a socially cohesive state.

Subjects: Case Studies: Country-Specific, Globalization, Labor Rights as Human Rights
Newsletter: Vol 12, Issue 9
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Freedland, Mark , "Developing the European Comparative Law of Personal Work Contracts", Comparative Labor Law & Policy Journal v. 28 (2007) p. 487-497

Abstract:
This article summarizes ongoing research into the comparative law of employment contracts in North America, Great Britain and continental Europe. The author argues that the continental European labor law is generally less inclined than its English counterpart to make categorical exclusions of temporary and contingent workers from "employee" status based on assumptions about long-term labor contracts as a societal norm. He also argues that continental European legal systems have generally had a more flexible notion of "employer," which, in turn, may be more useful for recognizing a continuous employment contract between a worker and successive proprietors or in situations involving employment contracts with joint or multiple employers. Further, the author argues that because different countries have different doctrines regarding the ability of individual employees to contract out of statutory labor standards, the resulting divergence of regulations has made it increasingly important for labor law scholars to examine labor law in a comparative perspective.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Conflict of Laws, Contingent Work, Employment Law, European Union, Flexibilization, Working Hours
Newsletter: Vol 6, Issue 12
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Fudge, Judy & MacPhail, Fiona, "The Temporary Foreign Worker Program in Canada: Low-Skilled Workers as an Extreme Form of Flexible Labor", Comparative Labor Law & Policy Journal v. 31 no1 (Fall 2009) p. 1-45

Abstract:
This article describe Canada’s Temporary Foreign Worker Program (TFWP) and shows how it is as an employer-driven program that creates risks for foreign workers and Canadian labor standards. The program consists of a high-skill stream and a low-skill stream. Guest-workers in the high skill stream are normally granted visas for their immediate family members, and gain the chance to immigrate permanently. Guest-workers in the low-skill stream cannot readily change employers, are usually unable to bring family members during stays of up to two years in Canada, and are not normally eligible to immigrate at the conclusion of their contract. The authors note an increasing reliance on the TFWP to meet Canada’s labor needs, as the number of temporary foreign workers in the country has surpassed the number of permanent immigrants in the economic class. The authors conclude that despite some government efforts to improve working conditions, the TFWP puts guest-workers at risk for workplace rights violations.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 9, Issue 7
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Fudge, Judy, "Self-Employed Worker: A Canadian Perspective on the Scope of Employment Standards, Labor Rights, and Social Protection: The Good, the Bad, and the Ugly", Comparative Labor Law & Policy Journal v. 31 no2 (Winter 2010) p. 253-265

Abstract:
This article compares the legal frameworks for regulating self-employment in Spain and Canada. In Spain, the recently adopted Self-Employed Workers Statute attempts to guarantee four sets of rights for all self-employed workers: 1) basic rights, such as nondiscrimination and payment guarantees; 2) occupational health and safety rights; 3) collective bargaining rights, and; 4) social security rights. The author argue that Canada’s Federal Labor Law lags behind Spain in several respects. Importantly, only dependent contractors have collective bargaining rights in Canada. Both countries lack minimum wage and maximum hours of work laws for self-employed workers, and neither country has found a satisfactory way of distinguishing between dependent and independent contractors. The author concludes that while Spain has made progress, both Spain and Canada should do more to move beyond a classic conception of labor rights that focuses on a contract in a singular workplace.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Contingent Work
Newsletter: Vol 9, Issue 7
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Garcia, Ruben J., "Crossing the Line? Examining Current U.S. Immigration & Border Policy: Labor as Property: Guestworkers, International Trade, and the Democracy Deficit", The Journal of Gender, Race & Justice v. 10 (2006) p. 27-82

Abstract:
This article explores recent immigration reform proposals in the United States that rely on the creation of “guestworker programs” that seek to bring unskilled workers to the United States on a temporary basis. The author evalutes these programs from the point of view of the commodification of labor, globalization, and the democracy deficit. The article argues that “in order for workers to have bargaining power in the global market for labor, they must be given a voice in the negotiations over trade agreements through representatives of their own choosing. Guestworker status is “fundamentally incompatible with the ability to exercise meaningful bargaining power over their labor conditions.” The author notes that immigration restrictions, including guestworker programs that limit the free movement of migrant workers from one employer to another, operate to increase the insecurity of foreign workers, so that, contrary to neoliberal ideology, the increased demand for immigrant labor does not translate into increased bargaining power in the workplace. In addition, the author argues, contrary to Supreme Court precedent, that threat of deportation is inconsistent with the Thirteenth Amendment’s ban on involuntary servitude.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 6, Issue 10
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Garcia, Ruben J., "Labor's Fragile Freedom of Association Post-9/11", University of Pennsylvania Journal of Labor and Employment Law v. 8 (Winter 2006) p. 283-366

Abstract:
In the name of national security, federal legislation, Executive Orders and administrative agency decisions have greatly limited the rights of U.S. workers to organize and bargain collectively since September 11, 2001. Some workers, such as airport security employees, have completely lost the right to bargain collectively as a result of heightened security concerns. The author of this article argues that because domestic law has proven inadequate, labor should look increasingly to international law, which recognizes the rights of workers to organize and bargain collectively as fundamental human rights. He points out that international law principles are increasingly accepted in U.S. courts in a variety of contexts, including the Alien Tort Claims Act, the Universal Declaration of Human Rights and constitutional cases that rely on a consensus of nations. Although these instruments may not be self-executing or include private rights of action, he argues that domestic courts can nonetheless look to these principles in deciding whether national security requires the exclusion of certain workers from collective bargaining. The author further notes that international labor law principles are already part of the fabric of U.S. law through ratified treaties and incorporation of the "Law of Nations" into federal statutes such as the Alien Tort Claims Act, so that courts and administrative agencies charged with enforcing domestic labor law should look to international principles for guidance when domestic labor law and national security concerns collide.

Subjects: Alien Torts Claims Act, Case Studies: Country-Specific, Freedom of Association, Labor Rights as Human Rights, Right to Strike
Newsletter: Vol 6, Issue 12
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Gardiner, Mary, "His Master's Voice - Work Choices as a Return to Master and Servant Concepts", Sydney Law Review v. 31 no1 (March 2009) p. 53-81

Abstract:
According to the author, the supplanted Australian Workplace Amendment Act of 2005 (“Work Choices”) was contradictory for both heralding the freedom of employers and employees to contract without state intervention and placing extensive prescriptions on the content of agreements that employers could enter. The author argues that we can resolve the apparent inconsistency by understanding the state’s regulation of employers as an attempt to amplify employers’ coercive power over labor by limiting the ability of unions to reach agreements favorable to employees. The author suggests that a feudal notion of status, a belief that the master-cum-employer had a natural right to dominate the work relationship, motivated both 19th century master and servant laws and Work Choices, and that both sought to curb a source of employee power on the basis of this antiquated belief. While master and servant laws targeted the employee’s rights to enter and exit the employment contract, a source of power under conditions of labor shortage, Work Choices targeted collective bargaining as the primary contemporary source of employee power. The author suggests that Work Choices’ restrictions on the content of employment agreements reflected the state’s understanding that it must “re-educate” employers in the use of their coercive power, following the 1980s and 90s unraveling of Australia’s 20th century employment relations system of centralized conciliation and arbitration. Work Choices enhanced employer coercion by restricting employee collective action, promoting individualized employment agreements, eliminating the test case function, and prohibiting employers from agreeing to any terms regarding collective bargaining. The author critiques the state’s competitive strategy entailed in labor coercion under Work Choices as incompatible with the development of the cooperative work relations necessary for Australia to compete on the basis of innovation and quality rather than cheap labor in the global economy.

Subjects: Australia, Case Studies: Country-Specific, Employment Law
Newsletter: Vol 10, Issue 8
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Gaudu, François, "Labor Law and Religion", Comparative Labor Law & Policy Journal v. 30 no3 (Spring 2009) p. 507-527

Abstract:
This article discusses the tension between employment law and religion in France. Courts have addressed issues such as whether clergy should be considered “employees” under French labor law, and whether religious schools can fire employees for behavior which the religion considers immoral, but is not illegal. On these issues, religious institutions have retained some special standing. But other areas of labor and employment law have become more secular over time. For example, women in France are no longer barred from working night shifts, as they had been under a law supported by the Church. The author concludes that while labor and employment law are becoming more secular, religion continues to exercise influence in the way that labor and employment law function in France.

Subjects: Case Studies: Country-Specific, Employment Law
Newsletter: Vol 9, Issue 6
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Gavito, Victoria, "The Pursuit of Justice is Without Borders: Binational Strategies for Defending Migrants' Rights", Human Rights Brief v. 14 no3 (2007) p. 5-7

Abstract:
The author begins by describing three obstacles that affect the ability of guestworkers to obtain workplace justice in the U.S. The first barrier is fear, particularly the fear of being fired and blacklisted and hence being left with no prospect of other employment in the U.S. The second barrier is legal; guestworkers are excluded from some worker protective legislation. Third, guestworkers are ineligible for representation by legal services attorneys in some cases. To attempt to overcome these barriers to workplace justice, the author proposes transnational legal collaborations, and offers the Centro de los Derechos del Migrante (Center for Migrants' Rights) as an example. This organization is based in Mexico, and has employed strategies such as training guestworkers on their rights before they depart for the U.S., and contributing Mexican jurisprudence to a case involving guestworkers in U.S. courts.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 12
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Geare, Alan, "Legal Rights of Employees in the Event of Dismissal: The New Zealand Situation", International Journal of Comparative Labour Law and Industrial Relations v. 23 (2007) p. 267-283

Abstract:
This article explores the evolution and current state of New Zealand workers' rights in the event of termination. As in U.S. at-will regime, workers in New Zealand have traditionally had little no ability to challenge wrongful terminations. In 1973, a law was enacted protecting union members from "unjustified dismissal." In 1991, this protection was extended to all workers. During this same period, a more generous damages regime developed under the common law. However, in 2000, a new law restricted recovery to the previous statutory regime. The article concludes by explaining the operation of remedies currently available to New Zealand workers who bring wrongful terminations claims and arguing that while they are more robust than under the original at-will regime, they are nonetheless quite restrictive at the margins.

Subjects: Case Studies: Country-Specific, Employment Law, Flexibilization
Newsletter: Vol 7, Issue 12
 
Gjerdingen, Erick, "Suffocation Inside a Cold Storage Truck and Other Problems with Trafficking as “Exploitation” and Smuggling as “Choice” Along the Thai-Burmese Border", Arizona Journal of International and Comparative Law v. 26 no3 (Fall 2009) p. 699-737

Abstract:
In April of 2008, Thai police encountered a refrigerated truck that had been carrying 121 Burmese migrant workers bound for Thailand’s Phuket province. Fifty-four passengers had died, while many of the rest were jailed for immigration violations. Departing from the national debate that ensued in Thailand after this tragedy, this article offers a critique of recently-developed international law on human trafficking and smuggling. UN protocols dealing with trafficking and smuggling have placed a priority on protecting trafficking victims, but not those who are smuggled. In Thailand, the author argues, this view is particularly troublesome because Burmese immigrants are fleeing political and economic crises en masse. Hence the smuggling/trafficking dichotomy is inapplicable because even seemingly voluntary migration into Thailand is being compelled by oppressive elements in the Burmese homeland. Furthermore, he argues, even where immigrants are not tied to a particular Thai employer en route, the extremely brutal nature of Burmese immigrant jobs shows that the population is largely being exploited, and thus should be considered to have been trafficked rather than smuggled. To remedy this failure of the law, the author suggests that the UN strengthen its Smuggling Protocol to better protect victims; meanwhile, it says, the Thai government should better tailor its smuggling/trafficking protections to the situation of the migrant Burmese.

Subjects: Case Studies: Country-Specific, Forced Labor, Immigration, Undocumented Workers, United Nations (UN)
Newsletter: Vol 10, Issue 5
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Glass-Hess, Laura, "Ready or Not, Here Comes DR-CAFTA: Comparing the Right of Association in Mexico, Guatemala, and El Salvador", Georgia Journal of International and Comparative Law v. 35 (Winter 2007) p. 333-368

Abstract:
This Note assesses the feasibility of Dominican Republic-Central America Free Trade Agreement's (DR-CAFTA) mirroring of NAFTA's labor regulations as they were embodied in the "enforce-your-own-laws" provisions of the NAALC side-agreement. The author compares the existing right of association laws and enforcement practices of Guatemala and El Salvador with those of Mexico., She concludes that the current statutory structures and rule-of-law situations in Central America are even weaker than those in Mexico. She argues that reliance on soft labor enforcement provisions and strong economic pressures have not improved Mexico's labor rights situation, and hence will harm El Salvador and Guatemala's weaker labor climates. Because of this difference, DR-CAFTA needs a more "hands-on" agreement. She concludes by stating that "without strong enforcement of labor provisions, the DR-CAFTA will only hasten the 'race to the bottom' in Latin America, with disastrous results for Central American workers."

Subjects: CAFTA, Case Studies: Country-Specific, Free Trade Agreements, NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 7
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Godard, John, "Institutional Environments, Work and Human Resources Practices, and Unions: Canada versus England", Industrial and Labor Relations Review v. 62 (January 2009) p. 173-199

Abstract:
In this article, Godard uses statistical models to show that different workplace and human resources (HR) practices may have different repercussions for unions in two countries. Using the results of telephone surveys of hundreds of workers in Canada and England, Godard assesses the impact of a spectrum of workplace practices—from the traditional to “new” and “alternative” ones such as single-status policies or team-based work systems—on four factors: the expectation of reprisal for union organizing, the propensity to vote in favor of a union should a representational election be held, the existing presence of a union, and finally, the willingness to stand behind a union where one is recognized. His analysis yielded results that diverged both on the basis of workplace practice and national “institutional environment.” With regard to the latter, Godard argues that country-specific labor law and policy, and whether labor management relations tend to be adversarial or collaborative, matters. For example, while responses regarding pro-union propensity were strongly negative in a Canadian workplace with traditional HR practices, responses in similar workplaces in England were essentially tied between pro- and anti-union. Godard attributes the disparate results to the fact that unions in Canada have influenced the development of bureaucratic HR practices that tend to "substitute" for union representation, whereas in England unions have not had that effect. In sum, Godard advocates labor scholars more explicitly consider the role of institutional environments in organizing outcomes.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Employee Participation and Works Councils
Newsletter: Vol 8, Issue 6
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Goldin, Adrian, "Fairness at Work (The Authurs Report): An Argentinean Perspective", Comparative Labor Law & Policy Journal v. 29 no4 (2008) p. 533-546

Abstract:
This article begins by summarizing the Arthurs report on Federal Canadian employment law reform, and comparing it to Argentinean Mario Deveali's effort to define "Labor Law science" over fifty years ago. The author finds that the Arthurs Report is oriented toward values such as decency, the market economy, and flexicurity -- i.e., the reconciliation of worker security and flexibility in employment. He shows that Deveali's approach is more technical in nature but similar in goals to Arthurs. The author proposes that each country's application of flexicurity should be unique. In Argentina, the public's distaste of neoliberal policies in the 1990s necessitates a clear break from those policies before the principle of flexicurity could be legitimized. The author concludes by highlighting the potential for comparative research on employment and labor standards in Canada and Argentina. Both countries are federalist, but whereas Canadian provinces are empowered to create employment and labor laws, the Federal Government is charged with doing so in Argentina.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Contingent Work, Flexibilization, Labor Mobility
Newsletter: Vol 8, Issue 8
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Goolsby, John H., "Is the Garment Industry Trying to Pull the Wool Over Your Eyes? The Need for Open Communication to Promote Labor Rights in China", Law & Inequality: Journal of Theory and Practice v. 19 no2 (Summer 2001) p. 193-227

Abstract:
This Note addresses the interplay between labor conditions in China, principles of national sovereignty, free-market labor theory, and global human rights. Section II offers a description of five possible approaches for addressing labor violations in China – relying on China's own municipal laws; advancing labor rights through Permanent Normal Trade Relations (PNTR) [formerly Most Favored Nation status]; applying business codes of conduct; implementing intergovernmental organizations' mechanisms for promoting compliance with treaties; and promoting greater awareness among Chinese workers of their own legal rights through communications media such as the Internet. Section III assesses the effectiveness of the various strategies by first looking at their limitations, and then discussing how those limitations might be overcome. The author argues that the unifying theme behind all the strategies for improving workers' rights in China must be a drive for more open communication; specifically, Chinese laborers must have greater access to information about their rights under international standards and the laws of their own country, they must be able to voice grievances effectively, and outsiders must have access to information concerning working conditions in Chinese factories. The Article concludes that a reduction in constraints on communication is necessary to advance each of these goals, and that the Internet holds unique promise for doing so. Thus for China to be open for business without trammeling workers' rights, it must also become open to the free flow of ideas.

Subjects: Case Studies: Country-Specific, China, Labor Rights in General (Misc.)
Newsletter: Vol 1, Issue 1
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Gospel, Howard & Lockwood, Graeme & Willlman, Paul, "A British Dilemma: Disclosure of Information for Collective Bargaining and Joint Consultation", Comparative Labor Law & Policy Journal v. 22 (2001) p. 327-349

Abstract:
This article argues that the British state faces a dilemma as it begins to implement European consultation and disclosure rules that require employers to share certain kinds of information and discuss certain decisions with employees. Previously, the British rules on disclosure set a high hurdle for unions to overcome when seeking information. The article describes how the British government has modified existing disclosure rules to conform to EU directives in the areas of health and safety, collective redundancy, transfer of undertakings, and European works councils. Yet the new disclosure requirements raise several difficult issues, including whether the information disclosure requirements apply to collective bargaining, consultation or both; whether consultation and collective bargaining will reinforce or undermine each other; the extent to which the UK must change its labor laws to comply with the EU directive; and whether the practical implementation would be ineffective, as in France, or effective, as in Germany. The author contends that British have not implemented the new disclosure rules very well -- implementing them in an ad hoc fashion, setting inadequate sanctions for firms that break the rules, and allowing firms to use "consultation" to bypass the authority of union officials.

Subjects: Case Studies: Country-Specific, European Union, Labor Rights in General (Misc.)
Newsletter: Vol 2, Issue 6
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Gould, William B. IV, "Fundamental Rights at Work and the Law of Nations: An American Lawyer's Perspective", Hofstra Labor and Employment Law Journal v. 23 (Fall 2005) p. 1-44

Abstract:
This essay discusses US labor law and its compatibility with the conventions of the ILO, asking in what ways domestic law should be shaped in order to comport with international law in labor-management relations. Gould, former NLRB chair, narrates a detailed history of labor rights in the US from 1935, noting the recent Supreme Court practice of referencing foreign and international law, and a legislative backlash from Congress. A cardinal Supreme Court decision is Sosa v Alvarez-Machain, which authorized federal courts to examine instruments under the 1789 Alien Tort Claims Act when considering the lawfulness of extraterritorial conduct. Gould concludes with a detailed explanation of the legal progeny of the Sosa decision (Drummond, Del Monte and Unocal), analyzing the implications of each decision. He predicts that in future decisions with international implications the Supreme Court will be cautious, "but Sosa has opened up a new frontier for rights and dignity of labor abroad," and perhaps in the US as well.

Subjects: Alien Torts Claims Act, Case Studies: Country-Specific, Extraterritorial Application of Law, International Labour Organization (ILO)
Newsletter: Vol 5, Issue 12
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Gould, William B. IV, "Globalization in Collective Bargaining, Baseball, and Matsuzaka: Labor and Antitrust Law on the Diamond", Comparative Labor Law & Policy Journal v. 28 (2007) p. 283-315

Abstract:
This article discusses the increasing globalization of professional baseball by focusing on the 1999 U.S.-Japan Protocol and some of its likely implications for the development of international labor law. Negotiated between Major League Baseball (MLB) in the United States and its counterpart, Nippon Professional Baseball (NPB) in Japan, the Protocol significantly inhibits the transfer of players from one league to the other by prohibiting teams in one country from making direct contact with a player in the other country for the purpose of negotiating an employment agreement. Instead, during specific time periods, a team may contact the Commissioner of the foreign league, who will then seek approval by the club which employs that player. To obtain approval even to initiate negotiations, the club seeking to acquire the foreign player must make payments to employing club – at times rivaling the amount that is ultimately paid to the player himself – in return for exclusive rights to negotiate with the player. The fees paid to a foreign club dramatically diminishes salary prospects for Japanese players, since it adds considerable "overhead" to the cost of acquiring a foreign player. It also diminishes the overall pool of funds that, in theory, could be devoted to the wages of players in the U.S through collective bargaining. The article points out that, because the Protocol was negotiated without the involvement of the Major League Baseball Players Association, the collective bargaining agent for players in the United States, it is unlikely that it falls under an exemption to the Sherman Antitrust Act for labor unions. Moreover, because it affects the salaries of Major League Baseball players, it is likely that it constitutes either an unlawful refusal to bargain, in violation of the National Labor Relations Act, or a grievance under the MLB/MLBPA collective bargaining agreement. Although prior to signing with a club in the U.S., Japanese players are neither employed by a domestic employer nor working in the United States, decisional law allows the National Labor Relations Board to assert extraterritorial jurisdiction where the labor dispute would have a significant effect on commerce within the United States.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Collective Bargaining, Japan, Labor Mobility
Newsletter: Vol 7, Issue 1
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Green, Lora A., "The Global Fight for the Elimination of Child Labor in Pakistan", Wisconsin International Law Journal v. 20 no1 (Winter 2001) p. 177-197

Abstract:
This note examines the exploitation of children in the workplace, specifically addressing the practice in Pakistan. The author argues that Pakistan has blatantly disregarded international norms and treaties drafted to curb the abuse of children. As a result, child labor negatively effects not only on the children themselves, but also the economy and culture of Pakistan as a whole. Finally, this note describes various efforts by the international community to regulate child labor, and suggests what can be done in the future to abolish this practice all together.

Subjects: Case Studies: Country-Specific, Child Labor
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Gross, Jared S., "Recognition of Labor Unions in a Comparative Context: Has the United Kingdom Entered a New Era?", Chicago Kent Law Review v. 78 no1 (2003) p. 357-380

Abstract:
This note compares the United Kingdom’s experience with collective rights in the workplace with that of the United States, focusing on the technical aspects of union recognition. In particular, it compares the U.K’s relatively recent Employment Relations Act (“ERA”) to the U.S.’s long-standing National Labor Relations Act. Part I briefly describes the importance of recognition for unions, noting that for a long time, British unions fared well without a statutory recognition scheme, and relied on voluntary recognition. Part II describes the events that led to the British union movement’s campaign for statutory recognition. Part III provides an introduction to the NLRA and then explains the procedures that an American union must go through before it is recognized. Part IV explains the procedures that a British union must go through before it is recognized, comparing and contrasting the American NLRA and the British ERA. The author concludes that while the ERA is marginally better than the previous voluntary recognition scheme, it does not change the industrial status quo in any radical way, and thus the long term effect of the ERA on British labor relations is still unclear.

Subjects: Case Studies: Country-Specific
Newsletter: Vol 3, Issue 4
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Gyo, Christoph, "Migrant Workers in Germany", Comparative Labor Law & Policy Journal v. 31 no1 (Fall 2009) p. 47-66

Abstract:
The article reviews the legal status of migrant workers in Germany under international, European, and national law. The author discusses the requirements for entry to work and work, residency, and settlement permits. Permit requirements generally depend on the worker’s nationality. The more favorable regulations apply to nationals of the original fifteen European Union states, although bilateral agreements and international law provide preferential treatment to nationals of other countries, including Turkey. Requirements also vary by workers’ skill level and occupation. The author discusses the legal status and working conditions of asylum seekers, illegal workers, and posted workers as well. The latter are migrant employees of foreign companies operating in Germany and work largely in construction and elderly care. Employers often evade legal standards for posted workers and applicable collective agreements by designating them as “self-employed.” While illegal workers have the same formal workplace rights as non-migrants, risk of extradition and contracting chains that veil responsible principals tend to make enforcement difficult.

Subjects: Case Studies: Country-Specific, Immigration
Newsletter: Vol 11, Issue 9
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Halegua, Aaron, "Getting Paid: Processing the Labor Disputes of China's Migrant Workers", Berkeley Journal of International Law v. 26 (2008) p. 254-336

Abstract:
There are more than 150 million inter-China migrant laborers. This population makes up a subclass of socially disenfranchised workers who cannot successfully manipulate the formal legal systems to redress complaints against their employers. The inaccessibility of redress is especially urgent because many unscrupulous employers routinely fail to pay their migrant workers: some reports estimate that as high as 70% of the inter-China migrant workforce has experienced this problem. This article explains the structure of the formal legal processes available to these workers, and explores why that system is not an effective means of resolving these wage claims. Informal mediation, the article argues, is a much more viable solution. The article goes on to explore and identify the key ingredients to the most effective informal mediation process for resolution of pay claims. These key ingredients are an informal structure easily accessible by the workers, run by informal mediators who have the backing of the state.

Subjects: Case Studies: Country-Specific, China, Employment Law, Labor Mobility, Undocumented Workers
Newsletter: Vol 8, Issue 1
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Hambrick, David, "Reconsidering Extraterritoriality: U.S. Labor Law, Transnational Organizing, and the Globalization of the Airline Industry", Columbia Journal of Transnational Law v. 47 (2009) p. 576-608

Abstract:
Focusing on the airline industry, this Note explains that the courts’ current approaches to regulating transnational secondary labor organizing are underdeveloped and inconsistent. Unions in the airline industry engage in transnational organizing in order to counteract the power of international air carriers to lower wages and diminish work rules by selectively utilizing different national flight crews. The author argues that courts should adopt a balancing approach that accounts for both U.S. and foreign interests in determining the legality of transnational secondary activity. Part I introduces the Railway Labor Act (RLA), the statute regulating collective bargaining in the airline industry. This section presents two issues that will likely be addressed by the Supreme Court or Congress in the near future: 1) whether secondary activity in the airline industry can be enjoined, and 2) whether foreign secondary activity can be regulated under U.S. labor law. Part II explores the scope of the RLA and discusses the current conflict between circuits regarding the application of the RLA to transnational secondary activity both within the United States and abroad. The author explains that the courts’ current views regarding the proper reach of the RLA is troubled by a vague definition of “extraterritorial,” and uncertainty over whether the statute applies in situations in which there is some activity in the U.S. and some abroad. Part III explains the U.S. and foreign interests at stake and argues that these interests require a balancing approach to determine when the RLA reaches transnational secondary activity. In the Conclusion, Hambrick acknowledges the limits of such a balancing approach, but argues that it is ultimately the best way to determine whether the RLA should apply to situations involving transnational secondary activity.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Extraterritorial Application of Law, Secondary Strikes and Boycotts
Newsletter: Vol 9, Issue 12
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Harper, Paul, "New Governance and the Role of Public and Private Monitoring of Labor Conditions: Sweatshops and China Social Compliance for Textile and Apparel Industry/CSC9000T", Rutgers Law Record v. 38 no1 (2011) p. 49-73

Abstract:
In this article, the author analyzes the monitoring and enforcement of labor standards in China, as well as the actions of government and outside actors to strengthen the implementation of those standards. Part I analyzes implementation problems through the case of occupational safety and health (OSH) laws. While China has good OSH laws on paper, they are poorly applied because enforcing authorities accord economic prosperity priority over worker safety. In Part II, the author looks at external pressure being exerted upon China to improve enforcement of labor standards. A substantial share of the pressure comes from corporate trade groups and state actors, both of which are treated with suspicion by Chinese authorities who fear that monitoring efforts are fronts for foreign economic weapons. Finally, Part III looks at a new integrative linkageť labor standards model for the Chinese textile and apparel industry, posited and enforced by industry, rather than the state. Entitled CSC9000T, the model is promising because it is collaborative rather than adversarial in nature. The author warns that its effectiveness will be determined by how well it implements monitoring mechanisms independent of the Chinese state.

Subjects: Case Studies: Country-Specific, China, Corporate Accountability, Corporate Codes of Conduct
Newsletter: Vol 11, Issue 6
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Heinecken, Lindy & Nell, Michelle, "Military Unions and the Right to Collective Bargaining: Insights from the South African Experience", International Journal of Comparative Labour Law and Industrial Relations v. 23 no3 (2007) p. 463-483

Abstract:
In many nations, particularly in Europe, civilian and military employment practices continue to converge. In these countries, whether soldiers should be granted labor rights is highly controversial. The author first examines the results of a sociological study on the military to determine why military leadership so vehemently opposes unionization. The author concludes that such opposition stems from two concerns. The first concern stems from ingrained attitudes of military leadership, who prefer to manage employee relationships from a classically unitarist perspective and who believe that unions pose a threat to the systems of order that allow the military to function cohesively. The second, and arguably more dangerous concern is that the military union’s and the military leadership’s goals may align in an agenda that is disfavored by the body politic. In such a case, the military union’s independent political power may doubly empower the military, overpowering citizens’ opposition. In a case study focusing on South Africa, a nation where military leadership has been obligated to bargain with a military union since 2007, the author finds that neither concern has arisen. Internal cohesion and morale have not been threatened, and in fact may have been improved, since the imposition of collective bargaining. Additionally, the military union and the military leadership have not aligned on any politically disfavored agendas, though the author notes that such a circumstance could very well arise. However, given the benefits of unionization to military employees in South Africa, the author concludes that the risks may be worth undertaking.

Subjects: Case Studies: Country-Specific, Collective Bargaining
Newsletter: Vol 11, Issue 11
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Hill, Jennifer, "Binational Guestworker Unions: Moving Guest Workers into the House of Labor", Fordham Urban Law Journal v. 35 (2008) p. 307-348

Abstract:
This article explores the role of guestworkers within the ranks of organized labor in the U.S. and Canada. Part One describes the nature and extent of guestworker programs, conditions faced by guestworkers, and recent organizing efforts within that workforce. Part Two discusses the difficulties organizing guestworkers, arguing that to be successful, it would be necessary to organize both within the US or Canada and within Mexico because such a large portion of guestworkers are Mexican nationals and because much of the employment relationship plays out in the country of origin.The author recounts the Florida-based Farm Labor Organizing Committees' recent organizing efforts in Mexico, as well as elements of the UFW and UFCW organizing strategies that would be enhanced by Mexican based organizing efforts. Part Three discusses the obstacles to gaining union recognition within Mexico, including official reluctance to recognize independent unions and Mexico's ban on foreign nationals as union officials. The author suggests that these obstacles may not be insurmountable because ambiguities in Mexican law are often interpreted in favor of workers' rights. The article concludes that unions with recognition and organizational capacity on both sides of the border (US and Mexico, or Canada and Mexico) would create a meaningful path to bring guestworkers into the house of organized labor.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility, Undocumented Workers
Newsletter: Vol 7, Issue 4
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Hing, Bill Ong, "Immigration Policy: Thinking Outside the (Big) Box", Connecticut Law Review v. 39 (2007) p. 1401-1447

Abstract:
This article explores how complex market forces guarantee the flow of undocumented labor into the U.S., rendering current approaches to immigration enforcement unworkable. It begins with a description of Wal-Mart's cost-cutting corporate culture that pressures managers to engage in practices that run afoul of immigration law. Then it explores the forces that make these seemingly undesirable employment opportunities an irresistible draw for undocumented workers from Mexico, forces such as U.S employers' direct and indirect recruitment efforts through the Bracero program and NAFTA's acceleration of "illegal" immigration by facilitating the flow of capital, goods, and services without facilitating an increased flow of labor. The author argues that an improved Mexican economy will not stop the flow of undocumented workers into the U.S. in the short term. The article concludes that we must move beyond conceptualizing the flow of undocumented workers as an enforcement problem to creating a system that matches the labor demands of American employers with available workers. It also insists that the such system must guarantee that immigrant workers have enforceable rights.

Subjects: Case Studies: Country-Specific, Immigration, NAFTA/GATT
Newsletter: Vol 7, Issue 2
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Howes, Victoria & Wank, Rolf, "New Grounds for Anti-discrimination: the Roles of Equality Commissions in Law Enforcement in the UK and Germany", International Journal of Comparative Labour Law and Industrial Relations v. 21 no4 (2005) p. 571-590

Abstract:
This article explores existing anti-discrimination regulations and their enforcement mechanisms in the UK and Germany. The first section looks at the development of anti-discrimination law in the UK and Germany, describing how the UK has been more advanced in this area than the other EU member States. The next section discusses the implementation of the new EU anti-discrimination directives in the UK and Germany, focusing on the role of equality commissions which enforce anti-discrimination laws through public fact-finding investigations. The author concludes with the suggestion that the UK and Germany should take additional enforcement steps, including developing training programs for employers, establishing a national helpline for potential claimants, and embarking on a public relations campaign.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, European Union, Women’s Rights
Newsletter: Vol 5, Issue 1
 
Howse, Robert, "Back to Court After Shrimp/Turtle? Almost but not Quite Yet: India’s Short Lived Challenge to Labor and Environmental Exceptions in the European Union’s Generalized System of Preferences", American University International Law Review v. 18 no1333 (2003) p. 1333-1381

Abstract:
In this article, the author discusses the WTO’s Appellate Body ruling in United States – Import Prohibition of Certain Shrimp & Shrimp Products (“Shrimp/Turtle”), in which the WTO panel overruled a previous holding that Article XX prevents exporting countries from restricting imports on policy grounds. The discussion of Shrimp/Turtle occurs in the context of analyzing a claim brought by India against labor and environmental exceptions in the European Union’s Generalized System of Preferences. India’s claim specifically addressed limitations on market access that the EU imposed on the basis of labor, environmental, and drug enforcement concerns. The author contends that the new ruling created a new baseline for the labor and environment debate at the WTO. The author suggests that the general jurisprudential approach that the Body adopted in this case would likely impact future litigation concerning labor and environmental conditionality in GSP schemes. The conclusion presents various possible outcomes of a challenge to such preferences.

Subjects: Case Studies: Country-Specific, European Union, Generalized System of Preferences (GSP), India, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 3, Issue 1
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Itami, Hiroyuki, "Revision of the Commercial Code and Reform of the Japanese Corporate Governance", Japan Labor Review v. 2 no1 (Winter 2005) p. 4-25

Abstract:
This article starts with a description of Japan's Commercial Code, which was revised in 2002 as a response to the dismal situation of the Japanese stock market in the 1990s. The Commercial Code governs the structure of Japanese corporations. The revisions permitted Japanese firms to choose from various types of corporate governance. This article focuses on one type, the "committee system" (made up of 3 committees: nomination, compensation, and audit) which consists mainly of outside directors. These committees are in charge of nominating candidates for the Board of Directors and top management, drawing up proposals for their compensation, and auditing them. This committee system is contrasted with the traditional form in which a Board of Directors and auditors consist primarily of inside directors. In the next section, the author argues that the principle focus of any reform of Japan's corporate governance should be to establish a mechanism for monitoring top management. The author argues that the threat of takeover of Japanese firms by their foreign counterparts may be a more effective device than the committee system to check top management. The committee system suffers from a general suspicion of outside directors and the risk of committee power abuse, while the threat of a hostile takeover would result in direct counter measures, facilitating the self-discipline of top management. The author concludes with a proposal for a mechanism to check managerial misconduct that involves what he calls a "referential confidence vote system." He proposes that representative employees of the firm vote on the nominated candidates for top management. The results of the vote would indicate how much confidence the employees had in these candidates, and it would be used to inform decisions by shareholders and the committees in choosing top management.

Subjects: Case Studies: Country-Specific, Corporate Accountability, Corporate Governance, Japan
Newsletter: Vol 4, Issue 4
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Jackson, Sheila Lee, "Why Immigration Reform Requires A Comprehensive Approach That Includes Both Legalization Programs and Provisions to Secure the Border", Harvard Journal on Legislation v. 43 no267 (Summer 2006) p. 267-286

Abstract:
In this article, Democratic Representative Sheila Jackson Lee of Texas argues that past efforts by the Bush Administration to "manage" the population of undocumented workers already in the United States, and to prevent a new population of undocumented migrants from replacing them, have been "ineffective," "wasteful" and "intrusive." Representative Jackson Lee further contends that the Bush Administration's recent legislative proposal to establish a guest worker program only temporarily addresses the issue of the current undocumented population. She criticizes the proposal on the grounds that it is unrealistic to expect that workers brought to the United States on a temporary basis will voluntarily leave at the end of their authorized employment period. In its place, Representative Jackson Lee describes two immigration reform bills she has introduced in the House of Representatives: the Save America Comprehensive Immigration Act (SACIA), and the Rapid Response Border Protection Act (RRBPA). The first would provide permanent legal status to undocumented immigrants who have lived in the United States for more than five years. The second statute would add 15,000 new Border Patrol agents over a five-year period, thereby increasing the number of agents from 11,000 to 26,000. To staunch the tide of illegal border crossing, RRBPA would equip immigration enforcement officials with more helicoptors, power boats, land-based vehicles, portable computers, reliable radio communications systems, hand-held GPS devices, body armor and night-vision equipment. Estimating that more than ten million undocumented persons presently reside in the United States, Jackson Lee writes that the "sheer ineffectiveness of our present militarized tactics to prevent undocumented immigration is startling."

Subjects: Case Studies: Country-Specific, Immigration
Newsletter: Vol 5, Issue 9
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Jacoby, Sanford M. & Finkin, Matthew W., "Labor Mobility in a Federal System: The United States in Comparative Perspective", International Journal of Comparative Labour Law and Industrial Relations v. 20 no3 (2004) p. 313-337

Abstract:
This article compares trends in and patterns of labor mobility within the United States and the European Union. The authors begin with the common assumption that labor mobility is relatively low within the European Union and high in the United States. The authors claim that the legal system of public and private law within the Unites States facilitates labor mobility, whereas legal regulations in the European Union restrict mobility. The authors argue that mobility in the United States, while still greater than the European Union, has declined in response to long-term changes in concentration of populated areas, demographic characteristics, and social institutions. They examine the causes and determinants of mobility, asserting that in addition to legal differences, demographic characteristics, such as age, marital status, gender, and educational attainment often influence mobility. In conclusion, the authors caution against the assumption that the labor mobility gap between the European Union and the United States is as vast as common surmised. Rather, they claim, the mobility gap is ever changing in accordance with the influence of demographic characteristics and regulations governing labor markets. The authors also opine that while overall labor mobility in both regions are declining, there are advantages to residential stability, and that more mobility is not necessarily the most desired outcome.

Subjects: Case Studies: Country-Specific, European Union, Immigration, Labor Mobility
Newsletter: Vol 6, Issue 1
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Jacoby, Sanford M., "Finance and Labor: Perspectives on Risk, Inequality, and Democracy", Comparative Labor Law & Policy Journal v. 30 (Fall 2008) p. 17-65

Abstract:
Jacoby’s article discusses the politics of finance and the response of unions in the United States, the United Kingdom, the “Eurozone,” and Japan since 1980. He demonstrates correlations between growth and wealth inequality, wage volatility, and job loss globally. Jacoby argues the origins of the finance hegemony are found in 1960s and ‘70s free-market ideology that emerged in response the capital controls of the Bretton Woods-era and snowballed under Reagan and Clinton. Finance’s acolytes have most successfully implemented their agenda in the U.S. and U.K., where unions have less influence and shareholders have made maximizing shareholder value the “corporation’s sole objective function.” Jacoby then focuses on the history of the “double movement” in the U.S., from the Gilded Age to present efforts by unions to leverage pension fund assets through corporate governance strategies furthering labor’s goals. Jacoby debunks arguments that financial markets are divorced from politics or that free markets democratize access to wealth. He argues instead that “producerist” economies where owners, executives, and workers cooperate have grown as fast since 1980 while safeguarding non-elites from market risk through social insurance.

Subjects: Case Studies: Country-Specific, Corporate Governance, International Monetary Fund, World Bank
Newsletter: Vol 8, Issue 7
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Jain, Sumeet, "Tightening India's Golden Straitjacket: How Pulling the Straps of India's Job Reservations Scheme Reflects Prudent Economic Policy", Washington University Global Studies Law Review v. 8 no3 (2009) p. 567-793

Abstract:
In response to rampant discrimination and a shrinking public sector, activists and politicians are advocating that India's job reservations regime, by which a percentage of public jobs at the state and national level are set aside for historically disadvantaged populations, be expanded into the private sector. The author opposes such an expansion, speculating that increased regulation would deter foreign direct investment and thereby harm the Indian economy. The author also contends that the scheme is harmful or at best, ineffective for those it was designed to help, lower-caste individuals who are disproportionately concentrated in the lowest-rungs of government employment. Jain argues that India should restrict the scope of affirmative action to situations where it would ultimately contribute to a more business-friendly environment. He calls this tightening India's golden straightjacket. ť He further urges India to adopt an incentive system, like that used in South Africa, to encourage private employers to hire workers from disadvantaged classes.

Subjects: Affirmative Action, Case Studies: Country-Specific, India
Newsletter: Vol 9, Issue 1
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Josephs, Hilary K., "Measuring Progress Under China’s Labor Laws: Goals, Processes, Outcomes", Comparative Labor Law & Policy Journal v. 30 no2 (2009) p. 373-394

Abstract:
It wasn’t until 1994 that China finally enacted a series of labor laws that essentially formed a labor code. In 2008, Congress’ Employment Contract Law (ECL) became effective. Some accomplishments of the ECL include the codification of the right to recover unpaid wages as a civil action for debt, a requirement that full-time employment contracts be signed or else a presumption of indefinite employment may be created, a limit on the maximum length of a probationary employment period, and increased protections for employees with temporary employment. The ECL, however, does not increase protections in other substantive areas of labor law. For example it places no real limitation on the ability of the government to shrink employment in the state sector, and does not alter the inequality between urban and rural populations. Furthermore, even though China, as a member of the International Labour Organization (ILO), is bound to provide its workers with freedom of association and the right to collective bargaining, the ECL does nothing to advance these rights. Chinese workers will be no more likely to successfully form independent unions than they were prior to the ECL’s enactment. Overall, the ECL does make some changes to increase labor protections, but it does not represent a radical substantive change from the structure created by the 1994 labor laws.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Employment Law, International Labour Organization (ILO)
Newsletter: Vol 9, Issue 2
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Kagan, Joshua, "Workers' Rights in the Mexican Maquiladora Sector: Collective Bargaining, Women's Rights, and General Human Rights: Law, Norms, and Practice", Journal of Transnational Law and Policy v. 15 (Fall 2005) p. 153-180

Abstract:
This note chronicles the emergence of the Mexican maquiladora sector, summarizes the history of Mexican labor law from 1942, and analyzes the connection between the sector's success and the enforcement of labor laws pertaining to it. Kagan details the maquiladoras' human rights concerns in the areas of working conditions, health and safety, wages, women's rights, child labor and unionization. Neither Mexico's strong labor protections nor the labor side-agreement to NAFTA are enforced, because the government prioritizes job creation rather than affirming human rights, and because dominant unions have conspired with government to keep wages low. But the author points to emerging global norms of labor rights and suggests that transnational regulation could prevent a race to the bottom in labor standards without compromising foreign investment and economic development.

Subjects: Case Studies: Country-Specific, Child Labor, Collective Bargaining, Health and Safety, NAFTA/GATT, Women’s Rights
Newsletter: Vol 5, Issue 12
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Kambayashi, Ryo, "Law and Economics of Labor in Japan: Review of Kaiko Hosei wo Kangaeru: Hogaku to Keizaigaku no Shiten (Examining Dismissal Law: From the Perspective of Legal and Economic Studies)", Japan Labor Review v. 1 no4 (Fall 2004) p. 70-97

Abstract:
Professor Kambayashi describes and reviews the book: 'Examining Dismissal Law: From the Perspective of Legal and Economic Studies' in this article. The book provides a legal and economic analysis of one of the most important issues in Japanese labor policy: dismissal regulation. The first section of the book introduces the reader to Japanese dismissal law and uses an international comparative approach in conceptualizing it. The second section discusses the judicial principle of "the abuse exercise of dismissal right" (analogous to the U.S. at-will doctrine) . Prof. Kambayshi notes that this is one of very few studies that analyzes the theoretical foundations of dismissal law, and thus should only be the beginning of a much needed development in this area. The third section of the book is comprised of three studies that examine the principle of "the abuse exercise of dismissal right." Prof. Kambayashi suggests that these studies do not succeed in meeting their goal of explaining actual dismissal behavior. The last section focuses on the policy debate surrounding Japanese dismissal law, including its conflict with other policy goals, as well as an overall view of the general issues that surround codifying dismissal rules, which is based on case law. Prof. Kambayashi concludes with a discussion of why dismissal law is receiving increasing attention in Japan, and in particula, the Labour Standards Law in Japan , which deals with issue of dismissal.

Subjects: Case Studies: Country-Specific, Japan
Newsletter: Vol 4, Issue 12
 
Keithley, Todd, "Does the National Labor Relations Act Extend to Americans Who Are Temporarily Abroad?", Columbia Law Review v. 105 no2135 (November 2005) p. 1-35

Abstract:
This article addresses the issue of whether the protections of the National Labor Relations Act ("NLRA") apply to Americans who are temporarily abroad. The first section discusses the two circuit courts that have ruled on this question of extraterritoriality. In 1992, the Eleventh Circuit, in Dowd concluded that Congress intended the NLRA to apply to the exterritorial conduct and thus ruled that U.S. unions had engaged in an unlawful secondary boycott by acting in concert with some Japanese unions in Japan. However, in 2004, the Third Circuit, in Asplundh, adopting a strict territoriality view and ruled that the Act did not protect American tree trimmers who were fired for concerted activity while on temporary assignment in Canada. The next section addresses the two doctrines that are critical to the question of temporary work abroad: (1) the presumption against extraterritoriality and (2) the presumption of comity, i.e. that when Congress legislates, its intention is to respect the customary conventions of international law. The author argues that the problems of mixed-territory conduct and workplaces support a 2-step analysis. In step one, the court would ask whether the conduct caused intentional and harmful effects in the U.S. If so, it is not "extraterritorial," and then the court would move on to the second step, which asks whether the bringing the conduct under the Act would offend notions of comity. In the last section, the author reexamines Asplundh under this 2-step analysis, concluding that the American company should have been held accountable for its actions in Canada.

Subjects: Case Studies: Country-Specific, Extraterritorial Application of Law
Newsletter: Vol 5, Issue 5
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Kelley, Thomas, "Unintended Consequences of Legal Westernization in Niger: Harming Contemporary Slaves by Reconceptualizing Property", American Journal of Comparative Law v. 56 (2008) p. 999-1034

Abstract:
This article describes how, in response to pressure from donor countries and international development experts, the Republic of Niger has adopted an aggressive program of legal "westernization" aimed at codifying and clarifying private property rights and how, in turn, these reforms have dramatically altered customary land tenure practices and undermined the ability of hereditary slaves to gain access to agricultural land. As it developed over the course of European colonization and formal decolonization in the 19th and 20th Centuries, slavery in Niger involved a complex set of mutual obligations between slaves and slaveholders, including providing slaves with limited access to agricultural land thereby allowing them to provide for their own livelihoods, so long as they paid annual tribute to their masters. Even as the government of Niger has adopted constitutional reforms formally abolishing slavery, the slaveholding practices have largely continued in Niger because of the inability of the central government to rule without the tacit support of noble landholding families in the countryside. With the introduction of western legal concepts, including private ownership in land, the government of Niger has sided with traditional nobles, including slaveholders, in determining that they, rather than the slaves occupying farm land, are the rightful "owners." The author argues that western legal reforms, including concepts of private property, should not be forced on developing countries without regard to actual local customs and practices on the target countries without producing unintended and often counterproductive results.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Forced Labor
Newsletter: Vol 7, Issue 10
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Keresztesi, Nicholas, "Mexican Labour Laws and Practices Come to Canada: A Comment on the First Case Brought to Canada under the North American Agreement on Labour Cooperation", Canadian Labour and Employment Law Journal v. 8 no3 (2001) p. 411-437

Subjects: Case Studies: Country-Specific, NAFTA/GATT
 
Killion, M. Ulric, "Post-WTO China: Quest for Human Right Safeguards in Sexual Harassment Against Working Women", Tulane Journal of International and Comparative Law v. 12 (Spring 2004) p. 201-235

Abstract:
In this article, the author discusses possible reasons why China has failed to provide safeguards against sexual harassment for women workers. The article starts with China’s first sexual harassment case, which was initiated and then lost by Ms.Tong in 2001, to illustrate the country’s "boys will be boys" mentality. The author then examines China’s human rights record before it became a member of the World Trade Organization (WTO). He shows that gender-based discrimination was rampant in China and that there were no laws that directly deal with sexual harassment. In the next section, the author suggests that WTO accession has not been a watershed event for women’s rights in China because the country has resisted linking international labor standards with its goal of becoming a successful member of the global economy and it has been reluctant to use corporate governance as a mechanism for social responsibility. The author then argues that Chinese culture, which is based on values in tradition, Confucianism, and nation-state sovereignty, results in a prioritization of socio - economic rights over civil and political rights, contributing to the denial of women’s rights. Next, the author shows that China’s Constitution and judiciary system fail to give victims of sexual harassment any cognizant legal rights. The author concludes that China must enact sexual harassment legislation if women workers are to have meaningful access to justice.

Subjects: Case Studies: Country-Specific, China, Women’s Rights, World Trade Organization (WTO)
Newsletter: Vol 3, Issue 11
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Kochan, Thomas A., "Updating American Labor Law: Taking Advantage of a Window of Opportunity", Comparative Labor Law & Policy Journal v. 28 (2007) p. 101-122

Abstract:
This article is one of many in recent years offering suggestions for reform of U.S. labor law. Much of the article is concerned with reviewing past attempts – both successful and otherwise – at implementing such reforms, including the author's participation as a member of the Clinton-appointed Dunlop Commission of the early 1990s whose recommendations were never adopted. Based on past experiences, the author first offers five conditions for any successful effort to effectuate fundamental changes in U.S. labor law: (1) a significant event or crisis which attracts the attention of the wider public; (2) swift action by the reformers so as not to lose the opportunity; (3) an uncompromising approach; (4) a clear agenda for reform (again, so that time is not wasted studying the issue or giving opponents time to organize opposition); and, (5) a powerful and articulate champion for reform capable of transcending the complex and partisan legislative process and framing the issues as one affecting a broad segment of the public or the country's economic well-being. The author suggests that the United States might be approaching such a "crisis" moment when it will be possible to reform what he considers an "ossified" labor law system. The author advocates that collective bargaining be supplemented with works councils or some similar guaranteed form of workplace representation based on the experience of several European countries. He also advocates a new approach for the enforcement of labor standards that would permit flexible enforcement if the parties have an agreed upon code of conduct that meets or exceeds the minimum legal standards. He also suggests a corresponding reform of the courts to add a special labor division, along the lines of current bankruptcy courts, to ensure greater familiarity and competence among judges called upon to hear compliance and enforcement disputes.

Subjects: Case Studies: Country-Specific, Corporate Codes of Conduct, Labor Rights in General (Misc.)
Newsletter: Vol 6, Issue 8
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Kolben, Kevin, "Trade, Monitoring, and the ILO: Working to Improve Conditions in Cambodia’s Garment Factories", Yale Human Rights & Development Law Journal v. 7 (2004) p. 79-107

Abstract:
This article provides an analysis of the labor standards provision in the U.S.-Cambodia Bilateral Textile Trade Agreement that was signed on Jan. 20, 1999 (Agreement). The provision creates quota incentives for the Cambodian garment industry to bring it into substantial compliance with international labor standards and Cambodian labor law. The article starts with a description of the poor working conditions in Cambodia’s garment factories during the time the Agreement was signed. Though there were Cambodian labor laws in place, they were seldom enforced due to corruption of labor inspectors and politically-controlled unions. The next section gives a brief overview of the regulations of textile imports in international trade, highlighting the fact that the labor standards provision in the Agreement was the first of its kind and a creative approach to linking trade privileges with labor rights. The next section evaluates the International Labor Organization’s (ILO) initial proposal, the U.S counter-proposal, and the final joint proposal of the program required by the Agreement to improve working conditions of the Cambodian textile and apparel sector. The ILO’s proposal aimed to improve industrial relations by strengthening the Cambodian labor inspection system so that they may effectively monitor and enforce Cambodia’s labor laws. The U.S. counter-proposal’s goal was to implement a system of monitoring that would enable it to determine if the Cambodian garment industry was in substantial compliance with international labor standards and local labor laws. The U.S. proposed that the ILO undertake independent monitoring, visiting individual factories to make assessments and reports. The final proposal included aspects of both. The author critiques all three proposals and proposes a set of criteria that may be used as a guide for similar programs in the future.

Subjects: Case Studies: Country-Specific, International Labour Organization (ILO), Trade Conditionality
Newsletter: Vol 4, Issue 5
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Kolben, Kevin, "The New Politics of Linkage: India’s Opposition to the Workers’ Rights Clause", Indiana Journal of Global Legal Studies v. 13 (2006) p. 225-258

Abstract:
Based on interviews with Indian government officials, employers, labor activists, journalists, and others, this article documents and categorizes some of the more salient arguments made by lesser developed countries (LDCs) against proposals by Western scholars and labor activists to link international trade and improved labor standards through the inclusion of a workers' rights provision (or "social clause") within the WTO framework. The author delineates three basic categories of arguments – economic, political and structural – typically made as part of the LDCs’ case against linkage. Economic arguments against linkage generally involve concerns that calls from the West to improve labor standards ultimately stem from protectionist motives and that linking trade and labor standards will have the effect of protecting the domestic markets of the Western countries from cheap goods, thereby reducing trade and employment in the LDCs. Political arguments against linkage are often directed at protecting sovereignty and opposing globalization, which is understood as serving the interests of world financial institutions. Thus, some Indian labor activists and unionists who oppose the WTO, the World Bank and the IMF, will not support a social clause in the WTO, for fear that doing so would legitimize, but not fundamentally alter, the oppressive nature of structural adjustment programs, neoliberalism and other aspects of these institutions. Structural arguments focus on deficiencies of the WTO for enforcing labor standards. For example, some interviewees pointed out that the ILO, as the organization most knowledgeable about labor rights issues, should be strengthened rather than relying on the WTO, which has relatively little familiarity with issues of labor standards. Similarly, because the WTO is a treaty between governments, only governments but not unions or NGOs would have standing to raise complaints for violations of a proposed social clause. Another concern expressed is that trade sanctions are too blunt an instrument because they punish an entire national economy and cannot be calibrated to reach only those employers who violate labor standards while rewarding those employers that honor them. The author concludes by suggesting that scholars and activists who support linking labor rights and trade pay closer attention to the concerns voiced by the various sectors of Indian society and government and that, for the near future, regional trade pacts and bi-lateral agreements are the more likely fora in which to achieve linkage labor standards and trade issues.

Subjects: Case Studies: Country-Specific, India, International Labour Organization (ILO), Trade Agreements, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 6, Issue 2
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Kolben, Kevin, "Integrative Linkage: Combining Public and Private Regulatory Approaches in the Design of Trade and Labor Regimes", Harvard International Law Journal v. 48 no203 (2007) p. 203-256

Abstract:
The article discusses the protection of workers’ rights through a process that integrates public and private regulatory approaches to enforcement, an approach the author terms “Integrative Linkage.”ť Part I synthesizes the policy rationales underlying the linking of trade agreements and labor standards in order to illustrate how Integrative Linkage can serve these principles. Part II looks at the current approaches to enforcement practiced by the World Trade Organization, unilateral legislation, and bilateral trade arguments. The author contends that these approaches are ineffective in improving working conditions and enforcement of worker protection provisions. Part III criticizes systems of private regulation for under-enforcement and for setting narrow goals that do not serve the public policy rationales. Nonetheless, the author maintains that private regulation can be a vital supplement to public regulatory approaches if implemented in a way that helps facilitate the development of civil society, increases transparency of employer practices, and can potentially change norms on the ground level. The article uses Cambodia as an example of a country that has positively utilized many features of the Integrative Linkage process, making Cambodia a desirable destination for clothing companies. The author concludes by presenting his own proposal for a model of Integrative Linkage that he maintains would be practically successfully while meeting the broader public policy objectives.

Subjects: Case Studies: Country-Specific, Trade Agreements, World Trade Organization (WTO)
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Kong, Gina, "Are Women-Only Trade Unions Necessary in South Korea? A Study of Women Workers’ Struggles in Korea’s Labor Market", Northwestern Journal of International Law & Business v. 29 (2009) p. 217-243

Abstract:
Despite South Korea’s transformation into a democracy, women workers still face rampant workplace discrimination. As a result, a majority of South Korean women work irregularly and earn significantly less than their male counterparts. Male-dominated trade unions have continually neglected women’s concerns and have also refrained from organizing smaller, less-skilled workplaces where women are more likely to be employed. Kong argues that women-only trade unions—which first emerged in the seventies, were subsequently quashed by the military dictatorship, and then reemerged in the wake of Korea’s financial crisis in 1997—remain necessary to better women’s wages and working conditions. Women’s unions are also necessary protect the job security of female workers in a society where women are strongly encouraged to exit the workforce upon marriage. Since 1999, women’s unions have succeeded in legalizing the unionization of the unemployed, organizing contingent workers, and passing several laws that improve working conditions for women. Yet many regressive laws and cultural prejudice still remain. Kong urges the women’s unions to continue tackling laws that stereotype women and also to support social policies, like childcare and early education, that benefit women workers.

Subjects: Case Studies: Country-Specific, Collective Bargaining, Women’s Rights
Newsletter: Vol 9, Issue 2
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Koukiadaki, Aristea & Kretsos, Lefteris , "Opening Pandora’s Box: The Sovereign Debt Crisis and Labour Market Regulation in Greece", Industrial Law Journal v. 41 (September 2012) p. 276-304

Abstract:
In the years following the financial crisis in Greece and the destabilization of the Euro, Greece was forced to take loans from International Monetary Fund, the European Central Bank and the European Commission in order to remain in the Eurozone. To avoid a default of its economy, Greece was also forced to internally devalue its own currency. The loan agreements also required certain structural reforms, which were based on the premise that labor market regulation in Greece was responsible for the near-default and was a barrier to economic growth. Because of those reforms, the authors argue, essential and necessary features of the Greek labor law system have been eliminated or changed. These reforms, aimed at deregulating the labor market, have also reduced the need for and influence of traditional actors in the labor market, such as government commissions, labor unions, and proponents of social welfare. The authors argue that these reforms have failed to deliver the promised economic growth, and are leading to the deterioration of working and living conditions.

Subjects: Case Studies: Country-Specific, European Union, International Monetary Fund
Newsletter: Vol 13, Issue 1
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Koukiadis, Loannis D., "General Characteristics of the Greek Labor Law", Comparative Labor Law & Policy Journal v. 30 no2 (Winter 2009) p. 145-158

Abstract:
This article summarizes the current state of labor law in Greece, splitting its analysis between "individual labor relations” and “collective labor law.”ť Like most West European countries, Greek law contains protections against discrimination and for extra pay for overtime work. However, Greece departs from most Western European countries by allowing employers to terminate employees without justification or reason. At the same time, unlike most European nations, the Greek Minister of Employment can prevent mass dismissals by decree. Under Greece’s collective labor law, workers are entitled to collective negotiation. If that fails, they are entitled to mediation, and if that fails, to arbitration. For the last fifteen years, mediation and arbitration has been conducted by a non-governmental organization called the Organization of Mediation and Arbitration (OMED), which the author calls successful in deterring major conflicts and important in fighting poverty wages in Greece.

Subjects: Case Studies: Country-Specific, Collective Bargaining, Employment Law
Newsletter: Vol 9, Issue 12
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Kovács, Erika, "The Right to Strike in the European Social Charter", Comparative Labor Law & Policy Journal v. 26 (2005) p. 445-476

Abstract:
This article reviews the major case law of the European Committee of Social Rights (Committee) concerning the right to strike set forth in the European Social Charters of 1961 and 1996 (Charter). While the European Union does not purport to change the regulations of the right to strike of the respective member states, the Committee has declared the laws of some member states as either consistent with or contrary to the Charter's guarantee of the right to strike. The Committee has disagreed with various attempts to limit the right to strike, such Germany's laws permitting strikes only when aimed at concluding a collective bargaining agreement, the UK's prohibition on secondary action, and Malta's prohibition on recognitional striking. The Committee has also ruled on some procedural aspects of the right to strike, permitting laws requiring a cooling-off period, rejecting laws requiring mediation or arbitration prior to calling a strike, and refusing to permit ballot requirements that set fifty percent or more as a threshold for calling a strike. The Committee has reversed course several times on whether member states may restrict the right to call a strike to trade unions or whether unorganized workers may call a strike. The author notes that these repeated reversals stem in part from differing philosophical views about whether the right to strike is a collective right whose aim is to equalize the power of employees with that of their employers, or whether it is an individual right akin to a civil liberty. The reversals also stem from differences between member states about the nature of the individual employment contract. In countries such as Germany, France or Sweden, the individual employment contract is "suspended" during a strike with respect to the employee's obligation to work and the employer's obligation to pay wages, but remains in effect for all other purposes. The practical effect of this view is to protect striking workers from dismissal or other forms of reprisal. By contrast, in the United Kingdom, the employment contract is considered repudiated by striking workers, so that the employer owes no right to continued employment or right to reinstatement along seniority lines.

Subjects: Case Studies: Country-Specific, European Union, Secondary Strikes and Boycotts
Newsletter: Vol 6, Issue 3
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Kuwahara, Yasuo, "Migrant Workers in the Post-War History of Japan", Japan Labor Review v. 2 no4 (Fall 2005) p. 25-47

Abstract:
This article explores the rekindled interest in the issue of foreign workers in Japan today. The first section describes the prevalence of foreign workers throughout all of Japan's labor force, and showing how while foreign workers are ubiquitious, they are not wholly accepted by Japanese society or Japan's government. The second section explains the historical roots of the category, 'foreign workers of Japanese descent. These are Japanese people who emigrated out of Japan as early as 1908 to look for work, who's descendants are now coming back to Japan to earn a living -- a pattern that has been termed "U-turning." The third section discusses the causes and factors of Japan's increasing dependence on foreign workers, including labor shortages in Japan and Japanese workers shunning of types of jobs that are considered "dirty" or "dangerous (i.e. non white-collar jobs). The next section explores several issues that have arisen with the influx of foreign workers, including the problem of foreigners overstaying their visas to illegally work in Japan, the abuse of training programs by employers, and the tension between workers of Japanese descent, who are allowed to work in Japan legally, and illegal foreign workers who are not. The article concludes that Japan's government needs to set up a single administrative body that can discuss and implement practical solutions to accommodate the steady and continual increase of foreign workers and encourage true acceptance of foreign workers in Japan.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration, Japan, Labor Mobility, Undocumented Workers
Newsletter: Vol 5, Issue 2
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Lan, Na, "Is There New Hope in Labor Rights Protection for Chinese Migrant Workers?", Asian-Pacific Law and Policy Journal v. 10 no2 p. 482-518

Abstract:
This article examines the status of labor rights for Chinese migrant workers: rural Chinese residents who travel to China's major cities to work for wages that they send back to their families. It begins by noting that while the Chinese government has changed its official position from restricting worker migration to facilitating it, the jobs that migrants find in cities are still underpaid, overly long, unsafe, insecure, and fraught with anti-migrant discrimination. The article then points out that many Chinese workers' rights laws, including the recently enacted Labor Contract and Employment Promotion laws, are technically applicable to migrant workers. Finally, the article turns to the question of how these legal protections can be applied to migrant workers. Many migrant workers do not know about workplace protections or how to bring claims in court. As a solution, the author suggests stronger public interest legal services and enhanced trade union roles in the workplace. Finally, the author suggests that the Chinese government continue to push against anti-migrant discrimination, as well as reform social security so it is tied to individuals, rather than households because the latter tends to exclude migrant workers.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, China, Employment Law, Immigration
Newsletter: Vol 10, Issue 5
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Lerouge, Loďc, "Moral Harassment in the Workplace: French Law and European Perspectives", Comparative Labor Law & Policy Journal v. 32 (2010) p. 109-152

Abstract:
In the last decade, some European nations and the European Union have passed legislation to combat "moral harassment,"ť that is, bullying by one employee that damages the physical or mental health of another employee. This article compares judicial interpretations of such legislation in France, Belgium, and the European Union. The author concludes that, in all these jurisdictions, legislation against moral harassment has expanded legally-cognizable claims of employer harassment to include damage to workers' mental, not just physical, well-being. For example, France's highest court has imposed a relatively low burden for workers to establish a prima facie case and interpreted the moral harassment statute's vague penal provisions to impose criminal as well as civil sanctions on employers who act with intent to cause harm. In contrast, in Belgium, far fewer cases have been brought under its moral harassment statute and far fewer have resulted in victories for employees. Although France and Belgium's courts interpret their own nation's statutes by relying on European Parliament directives, the European Court of Justice has adopted a less protective stance than either of these nations and has questioned whether an employer has an obligation to operate a workplace free of moral harassment

Subjects: Anti-Discrimination, Case Studies: Country-Specific, European Union, Workplace Discrimination, Workplace Harassment
Newsletter: Vol 9, Issue 11
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Lo Faro, Antonio, "Fairness at Work? The Italian White Paper on Labor Market Reform", Industrial Law Journal v. 31 no2 (June 2002) p. 190-198

Abstract:
The author describes some labor reform proposals of the conservative Berlusconi government, outlined in its “Proposals for an Active Society and for Quality in Work,” released in October 2001. The Berlusconi proposals seek to delegate an increasing amount of labor regulation to the local levels; make it easier for employers to evade collective bargaining by transferring employees to new firms; exempt several groups of workers from protections against unfair dismissals; eliminate limitations on individually contracted ‘elasticity clauses’ that conflict with collective agreements; and revoke the right of individual workers to back out of such ‘elasticity clauses.’ The author argues that, although the proposals purport to build upon European Union concepts of ‘social dialog’ and ‘soft law,’ they will actually work in the opposite direction. He points out that they were developed without input from unions and with the intent of marginalizing them.

Subjects: Case Studies: Country-Specific, European Union
Newsletter: Vol 2, Issue 2
 
Lu, Haina, "New Developments in China's Labor Dispute Resolution System: Better Protection for Workers' Rights?", Comparative Labor Law & Policy Journal v. 29 no3 (Spring 2008) p. 247-268

Abstract:
This article describes in detail China's second interpretation of its 1995 Labor Dispute Resolution (LDR) system, and then evaluates the implications of the second interpretation for workers' rights. The LDR, especially in the context of the increasingly market-oriented economy, initially complicated the resolution of labor disputes and still leaves all parties-workers, employers, labor law enforcement personnel and lawyers-unsatisfied. Although the LDR has been structurally weak and poorly implemented, the second interpretation does extend its jurisdiction and provide better protection for some fundamental rights for workers. The greatest concern is that rural migrant workers are mostly still not covered by the LDR system or lack the resources to act on aspects that apply to them. The author argues that presently the Chinese system needs not only technical improvements but respect for rule of law and a commitment to fundamental rights. Furthermore, since China has ratified the International Covenant on Economic, Social and Cultural Rights and 25 ILO conventions, it is obligated to protect and promote workers' rights contained in these international treaties and to remedy violations.

Subjects: Case Studies: Country-Specific, China, Contingent Work, International Labour Organization (ILO)
Newsletter: Vol 7, Issue 9
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Lu, Jiefeng , "Employment Discrimination In China: The Current Situation and Principle Challenges", Hamline Law Review v. 32 (2009) p. 133

Abstract:
This article examines the current status and recent trends of employment discrimination laws in China. The author argues social unrest following the Zhou Yichao event and Zhan Xianzhu’s lawsuit in Wuhu, Anhui Province prompted changes in China’s employment discrimination laws. In order to assess these changes, the author describes a number of different types of employment discrimination in China including gender, age, disability, height, migrant peasant status, attractiveness, and religion. The author then provides a brief analysis of employment discrimination statutes as well as the relief available under the Chinese Constitution. The author argues that despite the existence of Constitutional and statutory protections, employment discrimination remains common in China for a number of reasons. First, the the absence of a specific anti-discrimination employment law makes it impossible for employees to file lawsuits against discriminating employers. Second, there is uncertainty regarding the applicability of constitutional rights in litigation and their enforceability against private entities. Additionally, there is a lack of meaningful remedies for plaintiff. The author concludes that employment discrimination permeates workplaces in China, but Chinese society and employers have demonstrated a willingness to eliminate employment discrimination.

Subjects: Case Studies: Country-Specific, China, Employment Law
Newsletter: Vol 13, Issue 2
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Lu, Jiefeng, "Curb Your Enthusiasm: A Note on Employment Discrimination Lawsuits in China", Richmond Journal of Global Law and Business v. 10 no2 (Spring 2011) p. 211-226

Abstract:
This article is part of a forthcoming series that examines employment discrimination law in China. Despite increased attention to this issue, including a few recent high profile employment discrimination cases and several new laws prohibiting discrimination in the workplace, Lu argues that employment discrimination litigation remains politically sensitive and unpopular. The author introduces results from a survey of Chinese judges that demonstrate that employment discrimination cases comprise an extremely small percentage of the courts’ docket. She argues offers evidence of cultural and political issues that keep employment discrimination from entering the courts. This evidence includes the general unpopularity of litigation as a dispute resolution mechanism among Chinese, as well as the fact that the inconsistencies in Chinese labor law make it difficult to file an employment discrimination lawsuit. For example, despite the rampant discrimination that occurs during the hiring process, many workers are precluded from bringing a claim unless already in a contractual relationship with their employer. In conclusion, Lu argues that successfully deterring employment discrimination will require (1) remedying the inconsistent provisions in Chinese labor law and (2) encouraging citizens to utilize the court system to challenge discriminatory employment practices.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, China, Employment Law, Workplace Discrimination
Newsletter: Vol 11, Issue 5
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Lyutov, Nikita & Petrylaite, Daiva , "Trade Unions’ Law Evolution in Post-Soviet Countries: The Experiences of Lithuania and Russia", Comparative Labor Law & Policy Journal v. 30 no4 (Summer 2009) p. 779-799

Abstract:
This article compares the development of trade union legislation in Lithuania and Russia following the dissolution of the Soviet Union. It shows that despite two decades of separate development, the most notable features of Russian and Lithuanian trade union legislation have been developing along a very similar direction. For example, under the Soviet system, employees received lower wages, did not enjoy the right to strike, or many other trade union rights traditional for Western workers. On the other hand, Soviet workers didn’t face traditional Western workers’ problems, such as job insecurity because the Soviet Constitution guaranteed the right to work for everyone. As Lithuania and Russia transitioned to market economies following Soviet dissolution, job security was reduced significantly in the interest of economic competitiveness. The authors also discuss a significant practical difference between unions in the two countries due to their relation to former USSR property. All trade unions in the USSR were united within a monopoly association called the VCSPS which held a significant amount of property interests. Lithuania chose to terminate relations with the VCSPS after gaining independence and instead created an atmosphere of competition among Lithuanian trade unions. The result was that the trade unions have constantly fought for ownership of the former Soviet trade unions’ property. The fierce competition, combined with a lack of financial resources, resulted in low levels of union membership and limited bargaining coverage. In contrast, Russia chose to transfer the VCSPS into a new organization called the FNPR which unites 95% of total union members in Russia. As a result, the FNPR inherited not only the members of the VCSPS but also its property, the most valuable of which being real estate worth billions of U.S. dollars. The authors maintain that while the Russian course of action has resulted in rather powerful trade unions, the unions lack meaningful independence from the FNPR and are distrusted by their members.

Subjects: Case Studies: Country-Specific, Collective Bargaining
Newsletter: Vol 11, Issue 2
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Ma, Jenny, "Of “Females and Minors”: A Gendered Analysis of the Republic of Korea’s Labor Standards Act and Reforming Labor Market Dualism", Columbia Journal of Transnational Law v. 49 (2011) p. 717-754

Abstract:
The author of this note argues that the South Korean Labor Standards Act (LSA) must be amended to cure systemic gender inequality in the labor market. The author traces the history of the LSA, which was developed based on US labor law and promulgated during the post-war US occupation. During this period, Korea’s economy was in turmoil and many of the LSA’s minimum standards were so high that employers and union leaders refused to comply with the law. Subsequently, the Korean economy flourished and the LSA’s standard minimums were widely adopted just as women began to enter the workforce. However, the author argues that female Korean workers have been put at a disadvantage, not only by Korea’s traditional gender hierarchy, but also by the language of the LSA itself. Provisions that require just cause for termination protect male workers who entered the workforce when permanent positions were more plentiful. Female workers have struggled to obtain such positions, and are likely to work instead in temporary or part time jobs. Further, the overly protective language of the LSA, which requires that pregnant women and new mothers consult a labor representative before working overtime, give the impression that female workers are less capable, physically and intellectually, than their male coworkers. To remedy this inequality, the author suggests Korea adopt gender-neutral legislation and that female workers become more active in labor unions.

Subjects: Case Studies: Country-Specific, Employment Law, Women’s Rights
Newsletter: Vol 13, Issue 1
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Mantei, Charles T., "It Takes a Village to Raise a Child: The Role of The Organization of American States in Eliminating the Worst Forms of Child Labor in Brazil", University of Miami Inter-American Law Review v. 32 no3 (Fall 2001) p. 469-522

Abstract:
This note examines Brazil's attempts to adopt a comprehensive model for eliminating child labor with the assistance of the United Nation's Children Fund and the International Labor Organization (ILO). Part II defines child labor and analyzes the inherent social and developmental effects on Brazilian children and society at large. Part III offers a historical survey of the socio-economic and political roots of child labor. Part IV evaluates the modern Brazilian model, its application to national laws and social programs, as well as its interplay with national and international human rights initiatives. Part V and VI propose a regional plan for the elimination of child labor in Brazil with a focus on the integration of the ILO's International Programme for the Elimination of Child Labor (IPEC) initiatives within the Organization of American States. Finally, the author calls for a flexible, persistent, and cooperative policy approach to transform the underlying social psychology that perpetuate child labor in Brazil, and elsewhere in Latin America.

Subjects: Case Studies: Country-Specific, Child Labor, International Labour Organization (ILO), Organisation for Economic Cooperation and Development (OECD)
Newsletter: Vol 2, Issue 1
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Martinez, Jenny S., "Antislavery Courts and the Dawn of International Human Rights Law", Yale Law Journal v. 117 no4 (January 2008) p. 550-561

Abstract:
The author begins by examining the process by which the slave trade was abolished in the 19th century. She describes the treaties between Britain and several other countries that led to the establishment of international courts which successfully abolished the slave trade. The author contends that while most legal scholars today believe that international courts and international human rights law began post-WWII with the Nuremberg trials of Nazi war criminals, these antislavery courts were in fact the first international human rights courts. The author explains that modern international courts are currently ineffective at combating human rights violations by non-state actors such as transnational corporations because non-state actors have generally been considered outside the reach of international human rights laws. However, she contends that the abolishment of the slave trade demonstrates the ability of international courts to combat illegal actions by non-state transnational actors. The author proposes that an international court could therefore be used to effectively address modern instances of slave labor and human trafficking. She points out, however, that Britain was successful in abolishing the slave trade in part because it was willing to use its economic and military power to support the treaties it made with other countries. But the author also notes that the simple existence of international treaties and courts aimed at abolishing the slave trade influenced public opinion to oppose the slave trade. Taking similar measures today could likewise increase public opposition to human rights violations.

Subjects: Case Studies: Country-Specific, Extraterritorial Application of Law, Forced Labor, Slavery
Newsletter: Vol 8, Issue 9
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Massie, Laura, "Workers of the World, Unite?: Politics of Guestworker Protection and U.S. Worker Protection in the Current Guestworker Debate", Georgetown Journal on Poverty Law and Policy v. 15 no2 (Summer 2008) p. 315-333

Abstract:
This article begins by tracing the history of guestworker programs in the U.S., from the Bracero program during the 1940s to 1960s, to current H-2 programs. These programs have consistently left guestworkers vulnerable to abuse, due to lack of visa portability, unscrupulous recruiters and insufficient access to the courts, among other factors. Guestworkers' rights advocates disapprove of the treatment of guestworkers, while proponents of restricting immigration object to downward pressure on U.S. working conditions caused by the presence of guestworkers. The author considers the possibility of these groups working in coalition either to strengthen guestworker protections or to curtail the programs. She concludes that cooperation is unlikely because philosophical differences between guestworker advocates and restrictionists overshadow convergence on particular policy goals.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 12
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McCallum, Ron, "Conflicts of Laws and Labour Law in the New Economy", Australian Journal of Labour Law v. 16 no1 (May 2003) p. 50-68

Abstract:
This article contends that Australia has become integrated into the new economy; that is, a global economy marked by a growth in the number of corporations doing business and employing workers across State and national borders and by an increase in the geographic mobility of workers. Part II argues that the integration of Australia into the global economy makes it imperative for labor law academics and practitioners to familiarize themselves with the Australian conflicts of laws rules because they have an impact upon the labor law obligations of transnational enterprises. Part III explains how the pertinent conflicts rules interact with other statutory and judge-made laws, both within Australia and beyond. Part IV explores the manner in which the most important of the conflicts rules operate when acts or transactions concerning employment matters bring into play the laws of two or more nations. Throughout the article, the author examines the operation of Australian conflicts of laws rules in employment situations through a survey of recent case law.

Subjects: Australia, Case Studies: Country-Specific, Conflict of Laws
Newsletter: Vol 3, Issue 3
 
McCallum, Ron, "Plunder Down Under: Transplanting the Anglo-American Labour Law Model to Australia" [GALS Working Paper Series #2-05 -- this paper was delivered as the 19th Annual Benjamin Aaron Lecture, Los Angeles, 11 October 2005]

Abstract:
This paper compares and contrasts the federal approaches to labour law in the three Common Law federations of the United States, Canada and Australia. In the United States, curial interpretations of the Constitution have lead to the Congress having national labour law powers. On the other hand, the legislative divide between the Canadian Government and the Provinces, has meant that it is the Provinces who have control over the vast bulk of labour law in the private sector. Throughout the twentieth century, the jurisdiction over labour law in Australia has been divided between the Australian and State Governments. Presently, the Australian Government is attempting to deregulate Australian federal labour law and to limit Australia’s traditional processes of conciliation and arbitration. Furthermore, the Australian Government is seeking to utilize its constitutional powers to create one deregulated national labour law system for Australia. If successful, this will mean that the five remaining separate State labour law systems will be diminished. If the Australian Government is successful in using its legislative power over corporations to create a national labour law regime, State controls will be minimized. Much will depend on the way the Australian High Court interprets the corporation’s power within the framework of the Australian Constitution.

[Working Paper]
Subjects: Australia, Case Studies: Country-Specific
Newsletter: Vol 5, Issue 3
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McCallum, Ron, "American and Australian Labor Law and Differing Approaches to Employee Choice", ABA Journal of Labor & Employment Law v. 26 no2 (Winter 2011) p. 181-200

Abstract:
This article compares U.S. and Australian collective labor law through the lens of employee choice in order to identify the philosophical and legal differences between the two systems. The author argues that in Australia for most of the twentieth century the individual choices of employees have been subordinated to the collective social needs of the employees in the relevant industry. This is evidenced by Australian’s establishment of a system of compulsory conciliation and arbitration to settle labor disputes. After the extensive labor law deregulation of the last two decades, however, the choices of individual employees have been elevated above that of trade unions. By embedding collective bargaining rights in the individual worker, the role of trade unions has changed from that of acting as disputants in their own right to acting merely as bargaining agents for their members. The author argues that in the United States, by contrast, the preference for individual employee choice enshrined in the New Deal legislation of the 1930s has remained static. Trade unions in the U.S. are obliged to obtain majority support from the relevant employees. The author concludes that while the current Fair Work Act 2009 has enshrined collective bargaining as the centerpiece of labor relations public policy in Australia, the debate over the shape and scope of Labor laws has not yet concluded.

Subjects: Australia, Case Studies: Country-Specific, Comparative Labor Law
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McDonald, Adrian, "Through the Looking Glass: Runaway Productions and Hollywood Economics", University of Pennsylvania Journal of Labor and Employment Law v. 9 (2007) p. 879-984

Abstract:
This article discusses the problem of "runaway production," i.e., the production of films that were conceptually developed in the United States, but filmed elsewhere. It attributes the phenomenon to the transformation in the movie industry that has occurred over the last 50 years whereby the movie studios have become subordinate parts of multinational media conglomerates such as News Corp., Viacom, America Online-Time Warner, and Disney. The author argues that labor costs are generally not a consideration in the movement of filming from the U.S. to Canada, because Canadian labor costs are comparable to those in the U.S. Rather, he identifies other incentives such as tax breaks granted by the Canadian government as the lure for film makers. By contrast, labor costs apparently are a factor in the movement of film production within the United States, typically from the major media markets in California or New York to "right to work" states, where non-union pay and benefits are as much as 83% less than in unionized settings. The article discusses the different solutions to runaway production proposed by industry and labor groups. The Directors Guild of American and major industry groups advocate greater federal, state and local subsidies to the motion picture industry to counter the effect of Canadian tax breaks. Alternatively, the Film and Television Action Committee (FTAC), a single-issue group composed of the major Hollywood unions, city governments and businesses that depend on film production, argues that Canada's tax breaks violate U.S. trade agreements. FTAC has threatened to file a petition with the U.S. Trade Representative and the WTO.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Trade Agreements, World Trade Organization (WTO)
Newsletter: Vol 6, Issue 11
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Mizushima, Ikuko, "Recent Trends in Labour Market Regulations", Japan Labor Review v. 1 no4 (Fall 2004) p. 6-26

Abstract:
This article provides an overview and critique of the recent revisions in Japan’s Employment Security Law (ESL) and its Law for Securing the Proper Operation of Worker Dispatching Undertakings and Improved Working Conditions for Dispatched Workers (Worker Dispatching Law). The article begins with a summary of recent amendments to the Employment Security Law in which, to respond to the changing labor market, the government relaxed the regulations placed upon employment placement agencies. The amendments reduced restrictions on the issuance of licenses for employment placement agencies to operate and expanded the entities that could run free employment placement services such as schools. The author recognizes that deregulation could take away laws that were passed for the purpose of protecting job-seekers, but she argues that the regulations still in place are sufficient to protect the public. The next section discusses the amendments to the Worker Dispatching Law. A worker dispatching agency is the equivalent to a temp agency in the United States. The amendments include regulations for “Temp to Perm Service,” notification requirements of working conditions, and an abolition of the ban on worker dispatching in manufacturing jobs. The last section examines three legal issues that the revisions of the Worker Dispatching Law raise. First, the author asks if the “Temp to Perm Service” will become the new method of matching workers with jobs. Before this amendment, dispatching workers for the purpose of introducing a permanent job was prohibited. Though the author recognizes its advantages, she cautions that it leaves workers with less protection. Next, the author argues that the revisions strengthen the worker dispatching agency and its company-client’s accountability to the worker. The last issue is whether the expansion of worker dispatching will generate more employment opportunities or lead to unstable employment. The author concludes there will be both.

Subjects: Case Studies: Country-Specific, Contingent Work, Japan
Newsletter: Vol 4, Issue 6
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Mohammed, Furqan, "Protecting Pakistani Laborers Post-Eighteenth Amendment: Recognizing Rights After the Devolution of Power", Loyola University Chicago International Law Review v. 9 (Spring 2012) p. 265-296

Abstract:
Pakistan has, until recently, been considered a country with relatively progressive labor laws. These labor laws are a result of populist, anti-imperialist uprisings against British employers. Since the middle of the last century, Pakistan’s relatively progressive labor laws were alternately expanded and curtailed by prime ministers eager to respond to either the voting populace or powerful business lobbies. In 2008 Pakistan passed constitutional amendment that shifted many legislative subjects from joint federal and provincial authority to the exclusive authority of the provinces. This amendment could threaten labor protections. The author argues that the Constitution should be interpreted to give federal courts the jurisdiction to enforce labor rights that are granted by the Constitution. He acknowledges that such an interpretation would contrast with previous presidents’ passage of anti-labor laws that contravened the Constitution, but notes that such laws were simply changed by the next president rather than challenged in the Constitutional court. The author urges Pakistani courts to change course, and begin interpreting the Constitution in a more stringent manner and taking up more challenges to labor laws. In addition, the author argues that the new amendment still allows the federal government to implement and uphold rights guaranteed by the ILO Conventions the country has ratified because the state itself, not the individual provinces, is a member of the ILO.

Subjects: Case Studies: Country-Specific, Labor Rights in General (Misc.)
Newsletter: Vol 12, Issue 7
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Moldof, Stephen B., "Union Responses to the Challenges of an Increasingly Globalized Economy", Richmond Journal of Global Law and Business v. 5 (2005) p. 119-146

Abstract:
This article surveys the responses of some unions in the United States to the challenges of an increasingly globalized employment environment and the varying degrees of success these responses have met. In several instances, U.S.-based unions have tried to form alliances and networks with unions in other countries, often mirroring the structure of their transnational corporate employers. Some U.S.-based unions have also worked with shareholders, human rights and faith-based groups to challenge the human rights and health and safety practices of transnational employers, such as Exxon-Mobil, Bridgestone, Goodyear, Novartis and Rio Tinto. In the airline, maritime, shipping and other industries where workers are especially exposed to global competition, some U.S.-based unions have sought to counter threats of outsourcing by lending support to unions in other countries engaged in strikes or other labor-management disputes and by lobbying governments and legislative bodies to modify bi-lateral and regional trade agreements to include labor, environmental and health and safety standards. In a dispute involving flights between the United States and the Netherlands, mutual solidarity actions by U.S. and Dutch pilots' unions successfully rebuffed employer demands for concessions and began the process of negotiating a multi-party transnational collective bargaining agreement. The author notes that although U.S. law does not prohibit multi-employer/multi-union agreements between parties located both within and outside the United States, some U.S. courts have refused to enforce collective bargaining agreements when the work site was outside the territorial U.S. The author criticizes this "situs" approach as outdated and unhelpful in an increasingly globalized computer-driven environment, in which it is often difficult to identify a single, fixed workplace location. He also notes that inclusion of "choice of law" provisions in international collective bargaining agreements would not solve this problem because private parties are not free to dictate subject matter jurisdiction in U.S. courts. Instead, enforceability of future transnational collective agreements may require international treaties between the respective governments.

Subjects: Case Studies: Country-Specific, Collective Bargaining, Corporate Accountability, Extraterritorial Application of Law, Outsourcing
Newsletter: Vol 6, Issue 4
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Monte, Marc J., "Corporate Factory/Supplier Monitoring Programs and the Failure of International Law in Regulating Indian Factory Conditions", Brooklyn Journal of International Law v. 26 no3 (2001) p. 1125-1146

Abstract:
This note examines the failure of international law in regulating Indian factory conditions, and looks instead to the successful use of market-driven independent monitoring systems to ensure compliance with ILO core labor standards. While India retains surprisingly progressive labor laws, lax enforcement allows companies to habitually violate workers’ basic rights. Attempts to address violations through enforcement of UN and ILO conventions have been trumped by national sovereignty interests. A more effective model can found in the recent settlement of a class action suit stemming from allegations of corporate complicity in labor abuses in the Northern Marianas. The settlement designated an independent factory auditing firm to conduct unannounced visits to ensure compliance with labor codes. This system is now being applied to monitor Indian factories whereby each licensed company must agree to inspections. The continued success of such programs rests on the creation of competing auditing firms to ensure truly independent inspections.

Subjects: Case Studies: Country-Specific, India
Newsletter: Vol 1, Issue 2
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Mordecai, Adam, "Anti-Offshoring Legislation: The New Wave of Protectionism: The Backlash Against Foreign Outsourcing of American Service Jobs", Richmond Journal of Global Law and Business v. 5 (Winter 2005) p. 85-105

Abstract:
This Article takes the position that legislative efforts to limit offshoring (i.e., outsourcing) will have an adverse effect upon both the U.S. and global economy. The author explores the history of the offshoring debate, analyzes protectionist legislation that has been proposed in 35 states and both houses of Congress, examines the positions of both opponents and proponents to anti-offshoring legislation, and addresses the implications of those measures on the U.S. economy and global market. The author notes that most of the anti-globalization arguments emphasize short-term losses to the American workforce for what will eventually benefit all. For example, he explains that although American medical technicians may lose their jobs to Indian technicians who read MRIs for much less, lower prices for this life-saving technology are “virtually assured and many more sick people will benefit as a result.” Anti-globalization legislation, such as laws requiring employees in call centers located overseas to disclose their location, or laws restricting government assistance to U.S. based companies that shift American jobs abroad, prevent U.S. businesses from using their funds for research activities that would benefit their shareholders at home and the global economy generally.

Subjects: Case Studies: Country-Specific, Labor Mobility, Outsourcing
Newsletter: Vol 4, Issue 10
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Mumford, Todd, "Voluntary International Standards: Incorporating 'Fair Trade' within Multilateral Trade Agreements", Southwestern Journal of Law and Trade in the Americas v. 14 (2007) p. 171-192

Abstract:
This article proposes the incorporation into existing multilateral trade agreements, such as the North American Free Trade Agreement (NAFTA), a uniform and voluntary set of international labor standards, which could be certified by third party nongovernmental organizations (NGOs). The model for this proposal derives from the U.S. Department of Agriculture's adoption of a standardized definition for "organic" food products, which, under the Organic Foods Production Act of 1990, provides a uniform set of standards, which can nonetheless be monitored the certification processes of multiple third party NGOs. The underlying concern of the author is to ensure uniformity in the meaning of "fair trade," so as to prevent a proliferation of competing definitions which may be used by big businesses to evade compliance and ultimately undermine consumer confidence in the integrity of the "fair trade" label. The author points out that such uniform standards are not prohibited under the terms of NAFTA or other multilateral free trade agreements, so long as they do not function as a "technical barrier to trade."

Subjects: Case Studies: Country-Specific, Labor Rights in General (Misc.), NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 7, Issue 7
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Mundlak, Guy, "The Law of Equal Opportunities In Employment: Between Equality And Polarization", Comparative Labor Law & Policy Journal v. 30 (Winter 2009) p. 213-245

Abstract:
The author argues that Israeli Law on employment discrimination is well developed and protects a significant number of groups. However, the effectiveness and enforcement of Israeli discrimination laws varies depending on whether the group has achieved a necessary level of social recognition. In particular, the author cites homosexuals and the elderly as an example of groups that achieved social recognition. The author also contends that certain groups that do not experience discrimination in non-employment contexts, such as workers recruited for military reserve duty, can achieve recognition under Israel’s Equal-Opportunities project. Moreover, the author suggests the unequal treatment of Arab workers and workers on military reserve duty under the statute reflect the uneven application of Israeli employment discrimination laws by courts. The author concludes that Israeli courts’ unequal application of employment discrimination law is the result of their desire to avoid upsetting the social context.

Subjects: Case Studies: Country-Specific, Employment Law
Newsletter: Vol 12, Issue 3
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Mundlak, Guy, "The Israeli System of Labor Law: Sources and Form", Comparative Labor Law & Policy Journal v. 30 no2 (Winter 2009) p. 159-182

Abstract:
In this summary of Israeli labor law, the author divides his analysis into four historical eras, in each of which the country borrowed from the norms and laws of another regions’ systems. First, the pre-statehood era saw the formation of the General Histadrut (Israel’s dominant trade union), and with it, a series of labor gentleman’s agreements that, while not binding, served as a foundation for Israel’s developing law. Also during this time, the British Mandate established a system of collective bargaining and social provisions which led to an enduring Israeli corporatist labor pact system. Next, in the early statehood period, Israel first saw a rising number of statutory protections to supplement the collective bargaining based rights. In contrast to the British influence of the pre-statehood period, this era was fundamentally Continental, most resembling the labor law systems of Nordic countries. Third, in the period of 1969-1987, Israel saw the establishment of the Labor Court, which enforced pre-existing collectively-bargained norms as well as filled gaps in the statutory labor laws. Finally, since 1987, when Israeli industrial relations changed dramatically, labor law has shifted towards the North American model of juridifying the collective bargaining process and increasing the role of individual-rights based employment claims. In the opinion of the author, while Israel’s patchwork labor law system is reflective of an unstable industrial relations system, its flexibility may be the best system for preventing stagnation and ossification of labor rights.

Subjects: Case Studies: Country-Specific, Collective Bargaining, Employment Law
Newsletter: Vol 10, Issue 5
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Mundlak, Guy, "Human Rights and Labor Rights: Why Don’t the Two Tracks Meet?", Comparative Labor Law & Policy Journal v. 34 (Fall 2012) p. 217-243

Abstract:
The author examines the goals of Israeli human rights organizations and labor unions, asserting that the two movements operate on parallel tracks that should, but do not always, converge. He illustrates this by describing a recent controversy over employees' privacy rights in emails. When an employer attempted to introduce the plaintiff employee’s emails into evidence during a discrimination trial, both human rights organizations and labor unions sided with the employee. However, the union sought to use the case as an opportunity to collectively negotiate standards for employee email privacy. In contrast, the human rights groups took an uncompromising position and sought resolution only through courts and regulators. The author traces this difference to the different structures and functions of each movement. While unions seek to preserve relationships with both members and employers and regulate behavior through negotiation, human rights organizations are not member-based at all and mobilize through the courts in response to isolated events. Thus, while unions often compromise in order to maintain employer and employee self-regulation, human rights organizations tend to be adversarial and uncompromising. The author posits that the two movements may have traditionally operated on separate tracks because they each emphasize different rights: unions have focused on freedom of association while human rights organizations have focused on individual or small group instances of discrimination. The author argues that unifying the two tracks would likely require trade-offs for both. Yet, the author argues, collaboration is essential as each group can learn from the other’s complimentary strengths.

Subjects: Case Studies: Country-Specific, Employee Privacy, Freedom of Association, Labor Rights as Human Rights
Newsletter: Vol 12, Issue 5
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Neal, Alan C., "Lessons from the Nordic Countries -'Basic Building Blocks' for an Enlarged Common European Labour Market", International Journal of Comparative Labour Law and Industrial Relations v. 20 no3 (2004) p. 339-367

Abstract:
This article details the ways in which the Nordic countries have established a common labor market. The author describes the historical pattern of migration between the Nordic Countries (Denmark, the Faroe Islands, Greenland, Finland, Aland, Iceland, Norway, and Sweden) and the legal structure of the common market agreement. He also assess effectiveness of the common labour market. The author asserts that the Nordic countries' successful approaches to migration were the result of co-operation, deliberate measures to strengthen social and cultural ties across state boundaries, and the development of a complementary legal approaches to migration. The author provides a historical account of the creation of the legal framework of the Nordic countries' common labour market, providing in-depth understanding of the Danish- Swedish Convention of 1946, the 1954 Common Nordic Labour Market Agreement, and the Convention of 1984. In conclusion, the author asserts that the Nordic approach to common labour markets, despite providing limited labour mobility, provides a fundamental and ideal model of a legal and structural framework for establishing common labour markets.

Subjects: Case Studies: Country-Specific, Immigration, Labor Mobility
Newsletter: Vol 6, Issue 1
 
Ogawa, Makoto, "Current Issues Concerning Foreign Workers in Japan", Japan Labor Review v. 2 no4 (Fall 2005) p. 6-24

Abstract:
This article gives an overview of the issues concerning foreign workers in Japan, including detailed survey data of the actual workers, policies in dealing with their influx, and general public opinion toward them. The first section describes why current conditions in Japan's labor market -- specifically falling fertility rates, an increasing proportion of elderly people, and a high unemployment rate -- have put the issue of foreign workers in the spotlight. The second section discusses how the basic policy in Japan is to promote acceptance of foreign workers, favoring skilled (i.e., professional or technical) as opposed to unskilled workers. The third section explores the circumstances that affect foreign workers in Japan, including programs to facilitate foreign workers entrance into Japan's labor market, public opinion on foreign workers ( i.e., negative), specific fields in which foreign workers find employment (i.e, entertainment and manufacturing), and residency requirements. The fourth section examines policies that affect foreign workers, the 'double-payment' problem in which foreign workers must make pension contributions in both Japan and one's own country, and issues concerning the education foreign workers' children. The next section reviews proposals to deal with foreign workers in Japan, including advocating town hall meetings be held to collect suggestions, and the adoption of a comprehensive policy that embraces and takes full advantage of the potential of foreign workers. The final section states that Japan is negotiating with countries in Asia to establish economic partnership agreements to establish conditions for bringing in foreign workers from their respective countries. The article concludes that this issue of accepting foreign labor must be looked at in a comprehensive manner, but also cautions prudence, as issues such as this one require public consensus.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration, Japan, Labor Mobility, Undocumented Workers
Newsletter: Vol 5, Issue 2
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Ogletree, Charles J. & de Silva-de Alwis, Rangita, "When Gender Differences Become a Trap: The Impact of China's Labor Law on Women, A Study in International Labor Standards and Their Effect on Working Women", Yale Journal of Law and Feminism v. 14 no69 (2002) p. 69-96

Abstract:
The article examines the protectionist provisions of the Chinese labor laws, and compares these provisions to historic gender-based employment discrimination in the United States. Since 1978, China has steadily moved away from an employment system known as the “iron rice bowl” system in which the State guaranteed lifetime employment for every worker at the salary determined by the State. Instead, in the past two decades, a legal system protecting women’s rights and interests has evolved which guarantees special, gender-specific rights to Chinese women under the Women’s Rights and Interests Law. The article argues that by accommodating the reproductive roles of the women, the current law stereotypes Chinese women and reinforces traditional roles. Moreover, the added responsibility of employers to provide special treatment to women acts as a disincentive to hire women. The article concludes by suggesting that the Chinese state should foster the greater social good in a way that does not disadvantage women.

Subjects: Case Studies: Country-Specific, China, Women’s Rights
Newsletter: Vol 2, Issue 1
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Ohmi, Naoto, "Problems of Foreign Worker Policy in Japan - From the Labor Union Viewpoint", Japan Labor Review v. 2 no4 (Fall 2005) p. 107-124

Abstract:
The author, a trade union officer, expresses his views on the issue of foreign workers in Japan. The first section reviews the various issues that arise with the increased number of non-Japanese workers in Japan, including the rise of indirect employment (i.e., dispatch or contract workers), the rise of foreign residents working illegally, and the abuse of foreign trainee programs by employers. The next section discusses Japan's increased focus on free trade agreements ("FTA") and economic partnership agreements ("EPA") with other countries. The author focuses on occupations in the medical and nursing field where there is a shortage in Japan and conflicting views by the Japanese government in allowing foreign workers to fill that gap. The author then examines Rengo's (Japan's nationwide organization of labor unions) views on foreign workers, which advocates the respect of human rights of all foreign workers residing in Japan, but cautions against the acceptance of unskilled foreign workers. The fourth section examines the economic partnership agreements that Japan has with Thailand and the Philippines, both which require the foreign workers from their respective countries to obtain Japanese certification before they are allowed to work in the nursing field in Japan. The article concludes with a discussion of the current labor policy on foreign workers. He argues that the existing policy of only addressing 'entry' issues (i.e., entry requirements, residential statuses) is not sufficient to respond to the issue of foreign workers in Japan, and stresses the importance of adopting a 'post-acceptance' policy to deal with the long-term social and economic effects.

Subjects: Case Studies: Country-Specific, Contingent Work, Free Trade Agreements, Immigration, Japan
Newsletter: Vol 5, Issue 5
 
Osano, Hiroshi & Kobayashi, Mami , "Reforming Corporate Governance and Employment Relations", Japan Labor Review v. 2 no1 (Winter 2005) p. 58-80

Abstract:
This article describes how recent corporate governance reforms in Japan affect the company-employee relationship. The article begins with a description of the major external changes that Japanese firms are currently dealing with, including the reform of the Japanese financial system, the transformation of production technology, major demographic and quality change in workers, intense international competition, and corporate misconduct. The authors discuss how changes in external conditions directly affect the labor system. For example, as global competition intensifies and changes in worker demographics lead to a shortage of young workers, the existing division of labor will no longer be effective, and will have to be restructured. The article concludes by proposing four issues principles that should be addressed when adjusting company policies to make them compatible with the corporate governance reforms: (1) devising new incentives for employees, (2) ensuring that the designed incentives are in line with protected employee assets, (3) increasing the mobility of labor and developing an internal promotion system that fosters skill development, and (4) maintaining a company climate that encourages employees to blow the whistle on corporate misconduct at an early stage.

Subjects: Case Studies: Country-Specific, Corporate Governance, Japan
Newsletter: Vol 4, Issue 7
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Pagnattaro, Marisa Anne, "Is Labor Really "Cheap" In China? Compliance with Labor and Employment Laws", San Diego International Law Journal v. 10 no2 (Spring 2009) p. 357-379

Abstract:
The author begins by surveying a range of new employment and labor laws in China that are having the effect of raising working conditions, increasing the transfer of knowledge from multinational companies to Chinese managers and workers, and increasing costs to employers in China. Importantly, the Labor Contract Law (LCL), which took effect in 2008, extends rights to employees across China who were hired in 2008 or later. The LCL requires written contracts with employees, a shortened maximum non-compete clause of two years, paid vacation leave, shorter probationary periods, increased restrictions on employer termination of employees, severance pay, and restrictions on mass layoffs. The author argues that the LCL has also emboldened the All-China Federation of Trade Unions to more actively represent the interests of employees, and organize workers at previously unorganized companies, such as Wal-Mart. The author proceeds to highlight the role of new employment discrimination and sexual harassment laws, which have especially benefitted female workers. The author then emphasizes regional governments’ increasing willingness to implement minimum wage laws that exceed the nation-wide minimum wage. Finally, the author discusses new workplace safety, worker privacy, and expedited employment and labor dispute arbitration that all favor workers. The author concludes that as workers’ rights improve in China, costs to employers will increase, and some foreign companies may rethink their choice to install or continue operations in China.

Subjects: Case Studies: Country-Specific, China, Comparative Labor Law
Newsletter: Vol 10, Issue 2
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Papadimitriou, Kostas D., "The Managerial Prerogative and the Right and Duty to Collective Bargaining in Greece", Comparative Labor Law & Policy Journal v. 30 no2 (Winter 2009) p. 273-281

Abstract:
The article summarizes Greek managerial prerogative and collective bargaining law. Managerial prerogative is the employer’s privilege to determine unilaterally any employment terms unspecified in the labor contract and not covered by other law. The author notes that legislation, internal labor codes, collective agreements, company practice, and joint employer/workers council decisions limit managerial prerogative. Employers may not unilaterally alter employment terms if the change causes “material damage” or “ethical injury” to the employee, for instance, by assigning the employee inferior duties. An employee subject to an illegal alteration can demand that the employer restore former working conditions, receive compensation for a constructive contract termination, or accept the change. The Act 1876/90 requires that employers collectively bargain with workers in good faith and disclose information that would facilitate negotiation. It does not require that parties reach an agreement, and it provides no explicit employer sanctions for violations. The Act 1767/1988 requires that employers determine certain conditions—including health and safety rules—jointly with workers councils and requires that employers provide financial and other information to the councils.

Subjects: Case Studies: Country-Specific, Collective Bargaining
Newsletter: Vol 11, Issue 2
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Pope, James, "The Next Wave of Organizing and the Shift to a New Paradigm of Labor Law", New York Law School Law Review v. 50 (2006) p. 515-528

Abstract:
Will the new business-organizational form of flexible production produce paradigm shifts in worker organization and labor law, the same way that craft and industrial production did in the past? While some hope that any new paradigm will entail no unions at all, the author advocates for one featuring strong, independent worker organizations and asks how this could be possible. Part IV details this proposal as a shift from business unionism to social movement unionism, with a legal grounding in the right of freedom of association. This may seem unrealistic, but in the past labor growth has happened in unpredictable surges, with these advances following bleak political periods.

Subjects: Case Studies: Country-Specific, Freedom of Association, Labor Rights as Human Rights
Newsletter: Vol 6, Issue 10
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Prelipceanu, Raluca, "The New Migration Patterns of Educated Romanians to the EU: What Challenges for the Individuals and for the Nation-State", Romanian Journal of European Affairs v. 8 no4 (2008) p. 75-87

Abstract:
Recent years have seen a spike in migration of highly educated Eastern European professionals to European Union member countries. That migration has been driven by the draw of more financially remunerative work and has been facilitated by the immigration policies of European Union member countries which tend to favor highly skilled workers. This article explores the effects of that migration though a case study of highly skilled Romanian immigrants living in France. These immigrants face challenges with social and professional integration in France, but are able to maintain close ties to Romanian because of the rise of cheap travel and communication. The maintenance of these close ties in turn facilitates a convergence between the two cultures. This article concludes that the challenge now facing the Romanian government with respect to this migration is how to encourage the positive effects of this convergence throughout the Romanian economy.

Subjects: Case Studies: Country-Specific, Contingent Work, European Union, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 3
 
Quill, Eoin, "Employers' Liability for Bullying and Harassment", International Journal of Comparative Labour Law and Industrial Relations v. 21 no4 (2005) p. 645-666

Abstract:
This article explores the use of tort law to establish employer liability for bullying and harassment of employees in the workplace. The author examines cases in Ireland, the UK, the US, and Canada that have applied tort principles to hold employers liable for psychic harm caused by workplace harassment. The first section explains why tort law could be more useful than statutes in this area. The next section examines case law concerning the duty of care with respect to negligently inflicted psychiatric harm and the intentional infliction of emotional distress. The last section deals with vicarious liability, analyzing why its application to workplace bullying and harassment cases have proved difficult and unpredictable. The author concludes by suggesting that tort law can and should be used as a beneficial supplement to protectionist legislation.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, Workplace Harassment
Newsletter: Vol 5, Issue 1
 
Rajadhyaksha, Meghna, "Mergers and Amalgamations in India: Protecting Labour in Times of Change", International Journal of Comparative Labour Law and Industrial Relations v. 23 no3 (Fall 2007) p. 375-399

Abstract:
The author argues that India's company law and labor law do not adequately protect workers during a merger or amalgamation. First, while companies are required to consult with, and obtain approval from members and creditors prior to a merger, they are not required to consult or obtain permission from their workers. Workers' interests are merely merged with the general category of "public interest" which the court must consider in its approval or disapproval of a merger scheme. Second, the only protection afforded to workers who are discharged as a result of a merger is compensation. The author argues that legislation should be enacted to prohibit the dismissal of employees during a merger. Furthermore, legislation should be enacted to provide additional protections, including: 1) requiring the transferee employer to pay the workers' wages if the transfer or employer cannot; 2) protecting a union during and after a merger; 3) continuing existing collective bargaining agreements until another can be negotiated; 4) prohibiting a company from changing the terms of employment negotiated for the workers for a period of five years after a merger; and finally 5) requiring companies to protect the employees' accrued seniority, prior pay scales, and previous service conditions.

Subjects: Case Studies: Country-Specific, Employment Law, Flexibilization, India
Newsletter: Vol 8, Issue 8
 
Recent Cases, "Civil Procedure Choice of Law Ninth Circuit Uses International Law to Decide Applicable Substantive Law Under Alien Tort Claims Act", Harvard Law Review v. 116 no5 (March 2003) p. 1525-1532

Abstract:
This Comment examines the Ninth Circuit's extension of Alien Tort Claims Act (ATCA) liability to a multinational corporation in the Unocal case. Unocal was charged with complicity in human rights violations including forced labor, rape, and murder committed by the Myanmar military regime while the regime provided security for a Unocal construction project. After summarizing the procedural and factual posture of the case, this Comment analyses and critiques the majority and concurring opinions. The Comment argues that the court's decision to apply norms of international law in this context both threatens the ability of federal district courts to administer Alien Tort Claims Act litigation and distorts the role of those courts by forcing federal judges to act as surrogate tribunals for international claims. The Comment concludes by suggesting that the Ninth Circuit should have applied federal common law rather than international criminal law to this decision, thereby preventing federal courts from having to make complicated and cumbersome determinations of international law when faced with ATCA litigation.

Subjects: Alien Torts Claims Act, Case Studies: Company-Specific, Case Studies: Country-Specific
Newsletter: Vol 2, Issue 12
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Reichman, Daniel, "Justice at a Price: Regulation and Alienation in the Global Economy", Political and Legal Anthropology Review v. 31 (2008) p. 102-117

Abstract:
This article compares and contrasts three aspects of the international coffee trade violence by landless Honduran families against the foreign and absentee owner of a coffee farm, fair trade consumerism in the global North, and the now defunct system of wage and price controls of the International Coffee Agreement (ICA) that have collapsed under increasingly globalized market condition since1989 to suggest that structural changes in the relationship between states brought on by globalization have led citizens to attempt to impose collective principles on economic behavior through new, albeit partial and alienated, forms of regulation outside the boundaries of the nation-state. The author sees the popular violence in Honduras and the increasing preoccupation with"fair trade" coffee in the North as symptoms of the demise of the ICA; in the absence of regulation by laws, treaties and states, people resort to localized and highly individualized behaviors to comprehend their role as moral actors within the impersonal global market. Despite their emphasis on moral affirmation and personal responsibility, the author sees these forms of political subjectivity as inadequate to the task of regulating the global economy in the interest of social solidarity.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Corporate Accountability, NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 7, Issue 11
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Revillard, Anne, "Work/family Policy in France: from State Familialism to State Feminism?", International Journal of Law, Policy and Family v. 20 (2006) p. 133-148

Abstract:
This article examines the historical development of "work/family" policies in France in the 19th and 20th centuries, with particular emphasis on the notion of "familialism," i.e., polices that recognize and promote the family as an institution whose interests eclipse those of its individual members. The author explains the so-called "French paradox," which refers to the apparent disjuncture between official state policy in France since the time of the Code Napoleon to "familialism" and the historically high workforce participation rate of French women as the result of unintended consequences of attempts to promote "famlialism." For example, as part of a pattern of demographic policies aimed at increasing the birth rate, over the course of the 19th and 20th centuries, France adopted a variety of guaranteed maternity leave policies with the right to return to work upon completion of the leave. The author argues that, while the objective of these policies was pro-natalist, the effect was to encourage greater workforce participation by women by assisting them in combining child care responsibilities with paid work, albeit typically on unequal terms of employment with men. The author notes that much of the apparent discrepancy in the "French paradox" is reducible to class distinctions: "family policy" for the middle and upper classes, became "labor policy" for the women of the working class in light of the reality that their incomes were necessary for household survival. Since the 1960s, however, state institutions have to a great extent undermined the traditional policy of familialism with "state feminist" policies, including the creation of governmental bodies specifically aimed at promoting women's rights. The result of this shift has been an explicit promotion of gender equality in the workplace, but has, by contrast, had little effect on gender roles within the family. The new "state feminism," she argues, has a distinctly different impact according to social class. Ironically, current French family policy assists middle class women combine child care responsibilities with professional work, while the French state encourages working-class women to stay at home with their children or work part-time.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, Women’s Rights, Workplace Discrimination
Newsletter: Vol 6, Issue 9
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Riggin, Jessica, "The Potential Impact of CEDAW Ratification on U.S. Employment Discrimination Law: Lessons From Canada", Columbia Human Rights Law Review v. 42 (Winter 2011) p. 541-611

Abstract:
The author uses Canada as a case study to analyze how ratification of the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”) would affect employment in the United States. Four of CEDAW’s provisions directly address employment law: the first is focused on equal employment opportunity, the second on equal pay, the third on non-discrimination and accommodation on the basis of pregnancy , and the last on sexual harassment. The author chooses Canada as a case study because it has employment civil right laws and an economy that parallels those of the United States. On the positive side, the author finds that CEDAW’s treatment of pregnancy benefits and equal pay as human rights, as well as the CEDAW committee’s requests for empirical analyses of Canada’s progress, have pushed Canadian legislators to enforce applicable civil rights laws and encouraged employers to self-police. However, she also finds that the lack of a private right of action on equal employment opportunity and substandard enforcement of existing laws has hampered equal employment and anti-harassment measures. The author concludes that if the U.S. were to sign CEDAW, the effect would likely be similar, as the effectiveness of the treaty largely depends on each state’s willingness to implement CEDAW’s goals.

Subjects: Case Studies: Country-Specific, Employment Law, Women’s Rights
Newsletter: Vol 12, Issue 8
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Riley, Joellen & Sheldon, Peter, "Symposium on Remaking Industrial Relations in Australia", Economic and Labour Relations Review v. 18 no2 (2008) p. 1-6

Abstract:
In this Symposium, leading experts in Australian labor law present their proposals for labor law reform. Under the Liberal-Nationalist Coalition Government of John Howard, from 1995 - 2007, Australia's century-old labor law regulatory system was dismantled and an extreme deregulatory and antiunion regulatory system was put in place. In November, 2007, the Labour party defeated the Howard government, largely as a result of dissatisfaction with its labor legislation. Riley and Sheldon asked four prominent labor law academics -- Keith Hancock, John Niland, Ron McCallum, and Margeret Gardner -- each of whom had authored a major assessment of labor law reforms in the past, to evaluate the Howard era reforms and advise the new Prime Minister, Kevin Rudd, about what kinds of labor law reforms he should enact. Riley & Sheldon also asked a number of other labor law experts to discuss specific issues of labor law reform, including labor standards (Jill Murray), independent contractors (Andrew Stewart), trade unions (Shae McCrystal), women and work (Marian Baird), unfair dismissal (Murray Wilcox), and others.

Subjects: Australia, Case Studies: Country-Specific, Flexibilization, Labor Mobility
Newsletter: Vol 7, Issue 11
 
Roberts, Crystal, "Far From A Harmonious Society: Employment Discrimination In China", Santa Clara Law Review v. 52 (2012) p. 1531

Abstract:
This Comment analyzes China’s anti-discrimination laws and proposes several solutions. Part I provides background information about employment discrimination practices in China and their historical basis. According to the author, women, migrant workers, and workers perceived to have disabilities are the most likely people to be victims of employment discrimination. Part II examines China’s efforts to combat employment discrimination laws and the obstacles that limit their effectiveness. In this part, the author argues the protections available to women under China’s Constitution, China’s Labor Law, the Law on the Protection and Interests of Women, the 2004 Law on Prevention and Treatment of Contagious Disease, and the Employment Promotion Law, remain limited due to lack of enforcement and the absence of independent trade unions. For instance, while the Labor Law gives workers rights against discrimination based on gender, nationality, race and religion, it does not provide a mechanism for calculating compensation for victims. Part III of this Comment details obstacles to Equal Employment Opportunities in China including a lack of access to enforcement mechanisms, the absence of clear standards of proof, China’s lax enforcement of its employment discrimination laws, and the lack of education and awareness in China concerning discrimination. In Part IV, the author proposes two measures for increasing the effectiveness of China’s employment discrimination laws: (1) enacting a law that exclusively addresses employment discrimination; and (2) allow the formation of independent trade unions.

Subjects: Case Studies: Country-Specific, China, Employment Law
Newsletter: Vol 13, Issue 2
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Robin, Gabriela, "Hoffman Plastic Compounds Inc. v. National Labor Relations Board: A Step Backwards For All Workers In The United States", New England Journal of International and Comparative Law v. 9 (2003) p. 679-693

Abstract:
This article examines the 5 Hoffman Plastic Compounds, Inc. v. NLRB (Hoffman) case in which the Supreme Court held 5-4 that the Immigration Reform & Control Act of 1986 (IRCA) precluded the NLRB from ordering an employer to pay an employee a back pay award for violating the NLRA. Part II examines the facts of the case as well as the majority and dissenting opinions. Part III discusses the purpose of the NLRA and the IRCA, and Part IV argues that the two acts were not intended to conflict with each other. Part V argues that the Hoffman decision gives employers an incentive to hire undocumented workers while depriving undocumented workers of any remedies for violations of their labor law rights. Finally, Part VI concludes that the Court should have upheld the NLRB ruling that undocumented workers are entitled to back pay, and provides and alternative explanation for the Court's decision.

Subjects: Case Studies: Country-Specific, Undocumented Workers
Newsletter: Vol 3, Issue 6
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Rojas, Hugo, "Labor Law and Genetic Discrimination in Chile", Florida Journal of International Law v. 16 (2004) p. 561-581

Abstract:
Professor Rojas discusses (1) the effects that the Human Genome Project could have on a worker's privacy and discrimination in the workplace, and (2) how the legal system in Chile should react to these potential dangers. The author argues that unless greater legal protections are provided, employers could request employees and future applicants to undergo genetic testing, under the guise of seeking higher productivity. Rojas notes that currently, employers request medical records and testing when the employee will be subject to significant risks, such as working in mines at high altitudes. Rojas is concerned that if no further legislation is enacted in Chile, employees will be pressured to waive their genetic privacy to get a job, and that employers will then use the genetic information to discriminate against current and potential employees. The author contends that, although the Chilean Constitution and the Labor Code generally the dignity and privacy of every individual and forbid employment discrimination, the laws are not sufficient to protect workers from pressures that employers place on them to report genetic information as a condition of employment. Rojas also criticizes legislation that is currently proposed in the Chilean Congress concerning genetic research on the grounds that it does not adequately address labor issues. The author urges the legislature instead to approve explicit regulations punishing genetic discrimination and to set limits on the employer's right to genetic information.

Subjects: Case Studies: Country-Specific, China, Employee Privacy, Workplace Discrimination
Newsletter: Vol 4, Issue 9
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Roth, Paul, "Migrant Labor in New Zealand", Comparative Labor Law & Policy Journal v. 31 no1 (Fall 2009) p. 67-89

Abstract:
This article provides an overview of migrant labor in New Zealand. Following a description of the geographic, social, economic, and political factors that contribute to New Zealand’s migrant labor law and policy, the article explains that the country’s current policy regarding unskilled or low-skilled labor represents a delicate balance among several factors, some of which are in competition or conflict. Some factors include the country’s attempt to regularize seasonal employment, regional foreign aid commitments, the rise of domestic unemployment, and concerns about worker exploitation. The article then delves into a discussion of New Zealand’s current international human rights obligations relevant to the protection of migrant workers, as well as the country’s domestic compliance with these obligations. Roth notes that while migrant workers are entitled to the protection of all human rights-related legislation, they are not entitled to protection from discrimination under the country’s current immigration law. Finally, the article concludes with a detailed overview of the various government programs that currently apply to migrant labor in New Zealand.

Subjects: Case Studies: Country-Specific, Immigration
Newsletter: Vol 10, Issue 4
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Royle, Tony, "Worker Representation Under Threat? The McDonald’s Corporation and the Effectiveness of Statutory Work Councils in Seven European Countries", Comparative Labor Law & Policy Journal v. 22 no3 (2001) p. 395-431

Abstract:
The article examines the effect of nationally regulated employee representation institutions on employment relations and employee outcomes at the McDonald s Corporation in seven European countries -- Germany, Austria, Denmark, France, The Netherlands, Spain and Italy. The case studies of McDonald's in each country are developed as follows. First, the author provides a general overview of the legal framework for the employee representation system in the country, emphasizing legal regulations as well as key institutions such as unions, works councils, and collective agreements. Second, the article describes the quantity and quality of the employee representation within and across McDonald's restaurants in the country. Finally, the author relates the unique national labor characteristics to McDonald's employment strategies. The author finds that in the majority of the countries, the McDonald's employees and unions are unable to utilize representation institutions afforded by law or by national collective agreements. The author describes various measures employed by the McDonald's Corporation to evade the nationally imposed employee representation obligations. The author contends that in an era of increased decentralization of the collective bargaining and legislative deregulation, entities of employee representation, such as works councils, serve an important function for ensuring that collective employee needs are voiced and met. The author concludes that existing labor legislation in all of the countries surveyed is deemed inadequate for achieving this purpose.

Subjects: Case Studies: Country-Specific, European Union
Newsletter: Vol 2, Issue 3
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Royle, Tony, "The Union Recognition Dispute at McDonald's Moscow Food-Processing Factory", Industrial Relations Journal v. 36 no4 (July 2005) p. 318-332

Abstract:
This article examines a union recognition dispute that took place between 1998 and 2002 at "McComplex," a McDonald's food-processing factory in Moscow. The author begins by explaining that while McDonald's is generally anti-union, its workers in different countries have had varying success in their efforts to organize, depending on factors such as whether there is pro-union labour law. He then presents a brief analysis of the industrial relations and economy system in Russia, focusing on the 2001 Labour Code which gave employers significantly more discretion than before. The author then describes the history of the McComplex dispute. The first Russian McDonald's restaurant opened in 1990. Initially, the McComplex employees were happy --they had relatively good wages and were paid on time. Their situation changed in the mid and late 1990s when McComplex was privatized and Russia was hit with a financial crisis. Despite spiraling inflation, McDonald's refused to increase wages. In that period, health and safety complaints increased. The McComplex employees organized a union in 1998, but management harassed the workers involved. One ex-McComplex worker brought a lawsuit, alleging that he was fired due to his union activity. He won, and the suit led to the establishment of a parliamentary commission to explore whether McDonald's violated labour laws by refusing to negotiate with the union. In the meantime, McDonald's engaged in surface bargaining with the union, while at the same time conducting an orchestrated union busting campaign that picked off every union member one by one until there were none left. The article concludes by saying that this McComplex example illustrates how low-skilled sectors of transition economies have little hope of asserting their employment rights unless labour laws are strong and stringent, and unless there is a political will to enforce sanction for non-compliance.

Subjects: Case Studies: Company-Specific, Case Studies: Country-Specific
Newsletter: Vol 5, Issue 1
 
Ruiz Cameron, Christopher David, "Law and the Border: Borderline Decisions: Hoffman Plastic Compounds, the New Bracero Program, and the Supreme Court’s Role in Making Federal Labor Policy", UCLA Law Review v. 51 no1 (October 2003) p. 1-34

Abstract:
In this article, the author discusses Hoffman Plastic Compounds, Inv. V. NLRB, in which the United States Supreme Court held that an undocumented alien who is illegally fired for exercising her right to join a labor union is not entitled to collect backpay for her employer’s misconduct. The author analyzes the effect that Hoffman will have on undocumented workers in the U.S. Part I explores the rationale underlying the Hoffman decision, noting that the Supreme Court did not display its usual deference to the NLRB’s expertise in interpreting and applying the NLRA. Part II explores three earlier decisions that the Court relied upon, and argues that those decisions did not compel the result reached by the Hoffman majority. Part III criticizes the Supreme Court for usurping Congress’s role in setting federal labor policy.

Subjects: Case Studies: Country-Specific, Labor Rights in General (Misc.), Undocumented Workers
Newsletter: Vol 3, Issue 5
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Russell-Brown, Sherrie, "Labor Rights as Human Rights: The Situation of Women Workers in Jamaica's Export Free Zones", Berkeley Journal of Employment and Labor Law v. 24 no1 (2003) p. 179-201

Abstract:
Russell-Brown presents a case study of Jamaicas export free zones (EFZs) that underscores the gap between the implementation and enforcement of labor regulations and the myriad of legal institutions that purport to protect labor rights. In 1997, there were 13,900 workers in these zones, of whom 95 percent were women. Unlike manufacturing in other parts of Jamaica, the export free zones are entirely non-union. Russell-Brown argues that one explanation for the lack of unions in the EFZs stems from the mismatch between a female workforce and male-dominated unions. Russell-Brown also points out that Jamaican trade unions have long been political allies of the elite so that the lack of organizing and labor regulation in the EFZs may be a result of that collusion. Russell-Brown argues that the suspensionof worker rights in the EFZs violates Jamaican laws, international agreements, and U.S. trade regulations. Despite all of these legal regulations, no enforcement mechanisms have yet been mobilized to remedy the situation.

Subjects: Case Studies: Country-Specific, Export Processing Zones, Women’s Rights
Newsletter: Vol 2, Issue 11
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Secunda, Paul M., "'The Longest Journey, With A First Step': Bringing Coherence to Sovereignty and Jurisdictional Issues in Global Employee Benefits Law", Duke Journal of Comparative and International Law v. 19 (2008) p. 107-140

Abstract:
The ERISA law has serious limitations in coverage for Americans working abroad and for foreign employees working in the U.S. This article explores these problems, and identifies statutory and judicial changes that could bridge these gaps. On the legislative front, the author suggests two changes. First, Congress should expand ERISA to apply to Americans working in foreign countries where there is no conflict with the laws of that country. This expansion would be of a very limited nature, and would not apply to non-American employees of American companies operating abroad. Second, Congress should reform immigration law to include a provision that provides that lawful immigrant workers enjoy the same protections under ERISA as their U.S. national counterparts. In the judicial sphere, courts should look to the policies underlying ERISA, along with the dissent in Hoffman Plastics, to support a finding that undocumented workers are eligible for relief under ERISA.

Subjects: Case Studies: Country-Specific, Extraterritorial Application of Law, Immigration, Pensions
Newsletter: Vol 7, Issue 12
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Seifert, Achim, "Religious Expression in the Workplace: The Case of the Federal Republic of Germany", Comparative Labor Law & Policy Journal v. 30 no3 (Spring 2009) p. 529-568

Abstract:
Since the 1960's, Germany has shifted from a relatively religiously homogenous society to one of religious diversity. This article argues that German law, particularly German labor law, has not developed a unified system of coping with the country's shifting religious faith. First, the author summarizes the German constitutional provisions that create a limping separation of State and Churches.ť German law outlaws religious discrimination and prohibits the creation of a State Church, yet provides various benefits to officially state-recognized religious societies (none of which are Muslim) and designates Sunday as the weekly day of rest. Next, he describes the current tools that German labor law possesses to address issues of religious expression between individuals, as well as within labor and faith organizations. Then, the author illustrates the interplay of these areas of the law, as well of the growing relevance of anti-discrimination law due to recent EU directives binding on German labor law. In closing, the author argues that religious expression continues to conflict with other societal interests, such as an employer's freedom in hiring and retaining loyal workers, and it remains to be seen how Germany will handle these conflicts with its patchwork system of religious protections.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, Workplace Discrimination
Newsletter: Vol 10, Issue 7
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Shimada, Yoichi, "Working Hour Schemes for White-Collar Employees in Japan", Japan Labor Review v. 1 no4 (Fall 2004) p. 48-67

Abstract:
This article argues that the current regulations in place concerning “working hours” (hours that an employee is paid wages for) is not appropriate for Japan’s white-collar workers. White-collar workers , unlike most other employees in Japan, have varying levels of discretion over how they do their work as well as the amount of work they perform. The article starts with a description of the general working conditions of white-collar workers, which often includes excessively long working hours, unpaid overtime, and no paid holidays. Section 2 discusses how previous regulations on working hours were applied to white-collar workers and the two current working-hour schemes that were set up in recognition of the unique nature of white-collar workers. The “flex-time” scheme doesn’t fix rigid starting and ending times for the working day, but does mandate a certain number of hours be worked within a certain period (e.g. one month). The “discretionary work” scheme lets the individual worker calculate his/her own working hours, but is riddled with cumbersome legal procedures. Section 3 explores in depth how the discretionary nature of white-collar workers warrants a working hour scheme that’s different from other employees, and suggests that the “flex-time” and “discretionary work” schemes can be improved by incorporating evaluation systems and health requirements. Section 4 raises issues that should be discussed in considering new working hour regulations for future white-collar workers, including how to determine an appropriate workload, and an annual paid holiday scheme.

Subjects: Case Studies: Country-Specific, Contingent Work, Japan, Working Hours
Newsletter: Vol 4, Issue 5
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Shipper, Apichai W., "Contesting Foreigners' Rights in Contemporary Japan", North Carolina Journal of International Law and Commercial Regulation v. 36 no3 (Spring 2011) p. 506-566

Abstract:
In Japan, population decline has led to a rise in incoming foreign workers. This article analyzes the dynamic interplay of national Japanese policy, which provides for tiered citizenship and political rights based on race, culture, and possession of special skills, against local policy, which is characterized by increasing government-NGO partnerships helping to advance immigrant workers’ rights on and off the job. The tension is evident in Japanese Government raids on workplaces for undocumented workers. Furthermore undocumented workers are excluded from the National Health Insurance (NHI) and are subject to oppressive workplace conditions. In response, local governments have begun providing direct workplace services and set up foreign advisory councils. Meanwhile, Japanese NGOs are pushing for increased enforcement of human trafficking laws, equitable reform of immigration laws, and curbing abuses in immigrant worker training programs. The author points out that these NGOs are collaborating with local governments in order to ease the burden of providing direct services to immigrants, as well as to provide the undocumented with a voice in local government.

Subjects: Case Studies: Country-Specific, Immigration, Japan, Workplace Discrimination
Newsletter: Vol 11, Issue 3
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Sidhu, Rupneet, "Child Laborers: The World's Potential Future Labor Resource Exploited and Depleted", Hasting Women's Law Journal v. 15 no1 (Winter 2004) p. 111-135

Abstract:
This Note examines international and national efforts to eliminate the exploitative child labor. Section I discusses the background and content of the international child labor instruments, in particular the United Nations' rights mechanisms. Section II looks to the national laws of India and the United States, and considered their interplay with international treaties and norms. Section III offers a blueprint for the two countries to more effectively eliminate child labor. Finally, Section IV traces the role non-governmental organizations (NGOs) play in eliminating exploitative and hazardous child labor conditions. The conclusion re-emphasizes the overall need for action.

Subjects: Case Studies: Country-Specific, Child Labor, India, United Nations (UN)
Newsletter: Vol 3, Issue 9
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Smith, Aine, "Child Labor: The Pakistani Effort to End a Scourge upon Humanity - Is it Enough?", San Diego International Law Journal v. 6 no2 (2005) p. 461-494

Abstract:
This article discusses why Pakistan's efforts to eradicate child labor are insufficient, and argues that the only way to abolish the practice is for the international community to give child labor the same status as torture and slavery. The author begins with a history of bonded child labor in Pakistan, in which parents are forced by poverty to sell their children to local factories. Then the author discusses international laws regarding children and child labor, including treaties to which Pakistan is a signatory. Although the Pakistani government has taken some steps to eradicate child labor, such as establishing a child welfare agency and a National Committee on the Rights of the Child, the author cites a Pakistani newspaper that stated that eight million children are unofficially working within Pakistan's borders. The author then offers her "ideal solution," which is to treat child labor, like torture and slavery, as a "jus cogens" under international law -- an activity so universally condemned by the international community that it can never be permitted. The author concludes with a condemnation of Pakistan for disregarding their own child labor laws and the international conventions that they have signed, and with a plea to the international community to make child labor a jus cogens.

Subjects: Case Studies: Country-Specific, Child Labor
Newsletter: Vol 4, Issue 11
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Smith, Karen M., "Solving Worker Abuse Problems in the Northern Mariana Islands", Boston College International and Comparative Law Review v. 24 no2 (Spring 2001) p. 381-407

Abstract:
The garment industry has long been criticized for treating workers poorly. Despite the attention that this problem has received in recent years, abuse continues to occur, extending even to the US territory of the Northern Mariana Islands. This Note argues that better control over immigration to the Northern Marianas may significantly reduce labor abuse. Part I presents a brief account of the history of the Northern Mariana Islands, its political relationship with the United States, and a synopsis of its present- day problems. Part II describes proposed federal legislation that attempts to remedy labor and immigration issues, and explains why such legislation has consistently failed. Part III concludes that existing national US labor law, combined with local Mariana Island legislation, would supply adequate protection for garment workers if immigration to the islands were be more effectively controlled. To achieve this control, the author advocates that the federal Immigration and Nationality Act (INA) be extended to the Mariana Islands.

Subjects: Case Studies: Country-Specific
Newsletter: Vol 2, Issue 1
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Sur, Melda, "The Fundaments and Limits of Managerial Prerogative in Turkish Labor Law", Comparative Labor Law & Policy Journal v. 30 no2 (Winter 2009) p. 313-333

Abstract:
This article describes recent changes in managerial prerogatives under Turkish labor law. In 2003, Turkey enacted a Labour Code that increased protections for workers in certain precarious employment arrangements, improved workplace health and safety standards, and required notification of union representatives before collective dismissals can take place. The 2003 Code also required employers to obtain consent of employees for substantial modifications of working conditions, and strengthened the protection of employees during the transfer of an enterprise. Despite increasing worker protections, however, the 2003 Labour Code also increased managerial prerogative in the area of working hours. Previously, the law required that working hours be distributed equally throughout the day and week, and that overtime be paid for work in excess of the daily maximum. After 2003, employers can now, with the consent of their employees, vary the daily hours. Further, overtime pay will only be awarded for hours in excess of a 45 hour week averaged over 2 months. In recent years, the decreasing density of unions has also strengthened managerial prerogative.

Subjects: Case Studies: Country-Specific, Contingent Work, Health and Safety, Overtime Rules
Newsletter: Vol 9, Issue 3
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Süral, Nurhan, "Islamic Outfits in the Workplace in Turkey, a Muslim Majority Country", Comparative Labor Law & Policy Journal v. 30 no3 (Spring 2009) p. 569-596

Abstract:
The author identifies debates over headscarf bans as an important site of tension between secularists and Muslims in Turkey. While most Turks say that they accept secularism, not everyone defines secularism the same way. Some would seek to ban women from wearing headscarves in public to advance secularism, while others feel that optional headscarves are consistent with secularism. Turkish law on this matter is unsettled and highly contentious. A constitutional amendment provides university students with the right to wear headscarves, but it does not apply to public employees. In the private sector, employers have implemented dress codes that range from banning headscarves to mandating them. The author argues that dress codes by private sector employers will continue to be the subject of litigation because competing and contradictory jurisprudence appears to both ban religious discrimination and permit employers to establish dress codes.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, Women’s Rights
Newsletter: Vol 9, Issue 6
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Süral, Nurhan, "Anti-Discrimination Rules and Policies in Turkey", Comparative Labor Law & Policy Journal v. 30 (Winter 2009) p. 245-272

Abstract:
Süral’s article provides an overview of Turkey’s Labor Act of 2003, which prohibits discrimination on race, sex, language, religion and sect, political opinion or belief, disability, union membership, and notably, the “fixed-term or part-time nature” of one’s work. The Act provides criminal penalties and monetary damages for employers who violate its provisions. According to Süral, the Act “constituted a drive toward flexibility” on the part of Turkey along with an attempt to increase the labor market participation rate of women. The article covers the Act’s sex discrimination and gender-based provisions, policies related to pregnancy, leave-taking, and worksite care-taking, in depth. The author argues greater protection on the basis of sex makes women workers more costly than men, leaving employers reluctant to hire them and pushing women into the informal sector. Süral also discusses age discrimination extensively, even though the Act does not expressly prohibit it, as part of a critique of both the country’s generous pension system and the politicization of social welfare reform. The author concludes Turkey’s protections are “excessive” and burden both workers and employers. With regard to the former, the Act may actually limit opportunities for protected groups, such as women; with regard to the latter, Süral contends protectionism discourages investment in workers, impinges upon productivity, and minimizes Turkey’s competitiveness in the global economy.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, Flexibilization, Women’s Rights
Newsletter: Vol 8, Issue 5
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Suzuki, Fujikazu, "Corporate Governance Reform and Industrial Democracy in Japan", Japan Labor Review v. 2 no1 (Winter 2005) p. 81-104

Abstract:
The article begins with a description of conventional features of traditional Japanese companies, including their community-like ethos, their treatment of employees more like members than hired labor, and the friendly relations between management and unions. The author describes how the dismal economy of the 1990s triggered major corporate reorganization (i.e. closures, divisions, downsizing) and changes to the workplace (i.e. decreased wages, promotions and employee morale; increase of unemployment and grueling-type work). He then discusses how labor unions responded to this crisis. Over 90 per cent of the labor unions were presented with harsh corporate restructuring plans by management and the majority of then responded with their own restructuring plans. The last section points out that Japan is currently making fundamental changes to its corporate governance structure. The author argues that this creates an opportunity for labor unions to become a major force in corporate governance reforms. The article concludes with three issues the author believes the unions should focus on if they are to succeed: (1) safeguarding mechanisms to protect employees against management abuse, (2) equal treatment for non-regular employees, and (3) reinforcing the current perception by workers that unions are a necessity to advance employee rights.

Subjects: Case Studies: Country-Specific, Corporate Governance, Japan
Newsletter: Vol 4, Issue 7
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ter Haar, Beryl & Keune, Maarten, "One Step Forward or More Window Dressing? A Legal Analysis of Recent CSR Initiatives in the Garment Industry in Bangladesh", International Journal of Comparative Labour Law and Industrial Relations v. 30 no1 (2014) p. 5

Abstract:
This article analyzes the impact of two workplace initiatives in the garment industry in Bangladesh that arose in response to a number of major accidents, including the collapse of the Rana Plaza, the deadliest garment-factory accident ever known. The initiatives, referred to as the Accord on Fire and Building Safety, and the Bangladesh Worker Safety initiative, were the result of pressure from multinational corporations with the involvement of European and North-American brands. Both initiatives, that address fire and building safety, have received mixed reviews. Because both initiatives took the form of transnational private regulation, the authors raise questions about their legal status, legitimacy, implementation, and compliance mechanisms. Moreover, the authors are critical of the initiatives on the grounds that they are limited in scope because they only address fire and building safety, while allowing other major problems like low wages, inadequate working conditions, minimal employment, and a limited voice for workers to persist.

Subjects: Case Studies: Country-Specific, Corporate Accountability, Health and Safety
Newsletter: Vol 13, Issue 5
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Tiraboschi, Michele, "The Reform of the Italian Labor Market over the Past Ten Years: A Process of Liberalization?", Comparative Labor Law & Policy Journal v. 29 no4 (Summer 2008) p. 427-453

Abstract:
Tiraboschi seeks to counter the contention of critics, including Italian trade unionists, that the legislative reforms of the past decade were informed by a philosophy of liberalization. He argues that a neoliberal ideology-one based on self-regulation of the market that seeks to "destructure" labor law-formed neither the intentions nor effects of the reform process. Instead, Tiraboschi asserts, Italy's recent reforms are a continuation of past processes responding to an economy characterized by the expansion of an underground, informal economy, innovation due to globalization and internationalization of markets, and the presence of large numbers of women and young people in the in the workforce who require more workplace flexibility. Tiraboschi analyzes reform provisions regarding Italy's constitutional right to work, the regulation of outsourcing, and fixed-term contracts to show that the reforms are consistent with existing case law, consonant with collective bargaining practices and protective labor law, and finally, correspond with the current realities of the Italian labor market, particularly employers' use of informal labor. In sum, Tiraboschi notes that while it may be too early to conclusively judge outcomes, little evidence has emerged to justify critics' prediction the reforms would lead to destructuring of labor law.

Subjects: Case Studies: Country-Specific, Flexibilization, Outsourcing, Workplace Discrimination
Newsletter: Vol 7, Issue 11
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Travers, David, "You Have to Fight for your Right to Work: The U.S.-Chile Free Trade Agreement and Global Labor Standards", Suffolk Transnational Law Review no29 (Summer 2006) p. 337-361

Abstract:
This article discusses the domestic pressures within the United States and Chile that resulted in the labor standards and enforcement procedures of the U.S.-Chile Free Trade Agreement of 2003. On the one hand, the author argues that the Agreement needed to have some labor standards enforcement provisions in order to appease critics in organized labor and the U.S. Congress. At the same time, however, the democratically elected post-Pinochet government in Chile did not want to be seen as surrendering sovereignty to the United States under the rubric of "international labor standards." The resulting compromise requires Chile to provide access to dispute resolution mechanisms for labor standards violations only if Chile has failed to "effectively enforce its [own] labor laws." This approach is in stark contrast to that of the Free Trade Agreement of 2001 between the United States and Jordan, which provides access to dispute resolution mechanisms in the event of violations of internationally recognized labor standards, such as those embodied in the Conventions of the International Labor Organization (ILO). According to the author, the increased global competition among workers resulting from the relatively loose labor standards of the U.S.-Chile FTA will force the North American workforce prioritize education and skills training, thereby "replac[ing] the idea of entitlement with competition, making hard-work and dedication to self-improvement through education life-long necessities." The author concludes that the Chile Agreement's approach to labor standards should serve as a model for other U.S. trading partners in future free trade agreements.

Subjects: Case Studies: Country-Specific, Free Trade Agreements, International Labour Organization (ILO), Trade Conditionality
Newsletter: Vol 5, Issue 10
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Tripathi, Ragini, "The H-2B Visa: Is This How We Treat a Guest?", Scholar: St. Mary's Law Review on Minority v. 11 (Spring 2009) p. 519-558

Abstract:
Focusing on the March 9, 2008 incident when Signal International held a group of Indian guest workers hostage off the coast of Mississippi, this article discusses the limitations of the H2-B temporary guest worker program. Part I sets forth the inquiry of why H2-B visa holders are subject to inadequate legal remedies and labor abuse. Beginning with the Bracero Program following World War Two, Part II traces the history of the guest worker program in the United States. Part III describes the guest worker’s plight as “contract slavery,” a form of modern slavery. This section explains how employers avoid traditional contract enforcement through use of international subcontractors. Tripathi points to recent case law illustrating how the Fair Labor Standards Act can be extended to better protect H-2B guest workers in these nontraditional contractual arrangements. The subsequent sections examine various outlets for guest workers to learn of their rights and obtain legal assistance, and consider two ways to reform immigration laws to prevent labor violations. The article concludes by calling for more stringent laws and effective enforcement mechanisms to protect guest workers in all industries.

Subjects: Case Studies: Country-Specific, Flexibilization, Immigration, Labor Mobility
Newsletter: Vol 9, Issue 10
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Tsikata, Dzodzi , "Toward a Decent Work Regime for Informal Employment in Ghana: Some Preliminary Considerations", Comparative Labor Law & Policy Journal v. 32 (Winter 2011) p. 311

Abstract:
The author outlines the labor regime in Ghana, focusing on the informal labor markets where the majority of Ghanan laborers work. Neoliberal policies, such as the Draft National Employment Policy, the Labour Act, and the Social Security Act, protect entrepreneurship at the expense of workers by making labor crimes difficult to prosecute and limiting the ability of unions to organize. Though the Social Security Act allows informal workers to voluntarily contribute to the scheme so that they may later receive payments, the wage of Ghanans in informal work arrangements is so low that the program is seldom utilized. The author describes in detail the informal labor markets that exist in the fishing, mining, and domestic service industries, and argues that Ghanan policy makers must break from their neoliberal approach and legitimize such work by broadening the legal definition of employment and enforcing a universal minimum wage.

Subjects: Case Studies: Country-Specific, Contingent Work, Flexibilization
Newsletter: Vol 13, Issue 3
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Tsuchida, Michio, "Career Formation and Balanced Treatment of Part-time Workers: An Examination Focusing on Legal Policy", Japan Labor Review v. 1 no4 (Fall 2004) p. 27-47

Abstract:
This article explores the legal policies affecting part-time workers, and what the Japanese government must do to tackle the problem of the disparate treatment between part-time workers and regular employees. The article starts with an overview of the concept of career formation and its relationship to part-time workers. The author argues that the continuously increasing number of part-time workers necessitates that career formation policies be strengthened to acknowledge that part-timers are an indispensable human resource for companies. The next section describes the different categories of part-time workers, such as “fulltime part-time ” -- i.e. workers who are treated as part-time, but work as many hours as regular employees and “core part-time” -- part-time workers engaged in duties that are nearly identical to regular employees. The fourth and fifth sections examine legal regulations affecting part-time workers. The author discusses the vast, unequal treatment in relation to wages, working conditions, and dismissals that part-time workers receive compared to regular employees . The article concludes with an analysis of the revisions the Japanese government made in 2003 to their legal regulations affecting part-time workers. The author agrees with the “idea of balance” that the revisions are based on, which is the principle that measures encouraging part-time workers to become regular employees must be balanced with measures making part-time work a desirable employment opportunity. However, the author points out that there is still much room for improvement, such as creating an “in-between” employee category to create a transition from part-time worker to regular employee, and changing the social insurance system so that it treats all working styles fairly.

Subjects: Case Studies: Country-Specific, Contingent Work, Japan
Newsletter: Vol 4, Issue 5
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Tsuneki, Atsushi & Matsunaka, Manabu, "Labor Relations and Labor Law in Japan", Pacific Rim Law & Policy Journal v. 20 (June 2011) p. 529-561

Abstract:
This article examines the development of the Japanese employment custom and regulatory system in order to argue that the current regulatory approach is incompatible with the current needs of the Japanese economy. The authors begin by identifying five distinctive traits of the Japanese employment system: 1) the prevalence of long-term employment relationships; 2) a high degree of cooperative relations and a lack of strictly-defined job definitions; 3) wages based upon seniority and merit rather than job type; 4) enterprise-based labor unions; and 5) prevalence of atypical part-time work arrangements. The authors argue that it was custom, not the regulatory scheme that fostered the formation of long-term employment relations. Japanese employment customs developed out of a desire by employers to incentivize workers to invest human capital. The authors argue that the incompatibility of the Japanese regulatory framework and Japanese employment custom and employers’ needs created labor market inefficiencies in two ways. First, the Japanese regulatory framework creates inefficiency by subsidizing depressed industries. Secondly, Japanese employment customs create inefficiency by promoting long-term employment relationships despite the preference of employers for less permanent employment relationships. These labor market inefficiencies slowed the growth of Japan’s economy and contributed to higher rates of unemployment. The authors conclude that Japan should correct these market inefficiencies by reducing protections for employees and unproductive sectors of the economy in order to facilitate the development of productive industries.

Subjects: Case Studies: Country-Specific, Flexibilization, Japan
Newsletter: Vol 12, Issue 3
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Turner, John, "Individual Pension Accounts: The Innovative Swedish Reform", Ohio State Law Journal v. 65 (2004) p. 27-44

Abstract:
This article explores the mandatory individual account pension system in Sweden, proposing that it may be a possible model for Social Security reform in the United States. The article starts with an overview of Sweden’s retirement income system within which the individual account system operates. The retirement income system consists of a hybrid plan called a national defined contribution plan. It is financed both on a pay-as-you-go basis and takes the form of mandatory individual accounts. Workers are given a broad range of mutual funds – over 625 by 2002 – to place their retirement accounts. Because of the broad range of funds, there is no problem of monopoly, and because of the lack of political limitations on the choices offered, there is no concern of government manipulation. The article then examines the different issues that workers face when choosing mutual funds, including fees, rates of return, investment choice decision, information dissemination, and annuities. The author concludes with a list of eleven policy lessons the United States could take away from the Swedish experience, making sure to note certain qualifications because of the differences between the countries (e.g. their size and poverty rates; the U.S. is larger in both regards).

Subjects: Case Studies: Country-Specific, Pensions
Newsletter: Vol 4, Issue 1
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Vachhani, Radha Tilva, "Côte d'Ivoire and India: Stricter Enforcement and Unanimous Compliance Required to End Child Labor", New England Journal of International and Comparative Law v. 15 (2009) p. 125-150

Abstract:
This article focuses on child labor in India's beedi cigarette industry and Côte d'Ivoire's cocoa industry. In Côte d'Ivoire, the author reports that child labor is widespread in the cocoa industry despite the country's strict labor laws. The author argues that the government industry tasked with enforcement has hindered national efforts to enforce these laws. Child labor is also prevalent in the making of beedi cigarettes in India, with many children being bonded into labor to pay family debts. India has laws forbidding most forms of child labor, but due to loopholes and lack of enforcement, child labor is still prominent. In response to these evils, all three branches of the U.S. government are working to eliminate consumer demand for products made with child labor. However, the enforcement mechanisms are weak, so the practice goes on. To remedy this, the author advocates stronger enforcement mechanisms in the relevant international instruments.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Child Labor, Forced Labor, India
Newsletter: Vol 11, Issue 5
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van Eck, Stefan, "Revisiting Agency Work in Namibia and South Africa: Any Lessons from the Decent Work Agenda and the Flexicurity Approach? ", International Journal of Comparative Labour Law and Industrial Relations v. 30 no1 (2014) p. 49

Abstract:
This article examines policy reforms in Namibia and South Africa that seek to provide greater regulation and protection for agency workers. The article also analyzes the reforms in light of the decent work agenda by the International Labour Organization (ILO) and the European Union (EU) flexicurity policy, both of which have been major influences in the implementation of policies giving recognition to agency work. It considers whether and to what extent traditional labor law is relevant to Namibia and South Africa in light of these developments.

Subjects: Case Studies: Country-Specific, Flexibilization
Newsletter: Vol 14, Issue 6
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Vigneau, Christophe, "Comparative Labor and Employment Law and Policy in the Next Quarter Century: Labor Law Between Changes and Continuity", Comparative Labor Law & Policy Journal v. 25 (Fall 2003) p. 129-141

Abstract:
This article predicts the future of labor law by analyzing the field’s “glorified past” and “troubled present.” In Part I, the author outlines the history of labor law in France. The author emphasizes that the field emerged through statutory law, to protect the worker in the employment relationship and to improve working conditions. In Part II, the author describes how the perception and the content of labor law have changed in present times. Specifically, the author argues that labor law reforms are no longer driven by the desire to improve the employee’s work life, but by the employer’s demand for flexible labor. Additionally, the author notes that the prominence of collective agreements as the source of French labor law promotes deregulation. In Part III, the author identifies particular challenges that labor law will face in the following decades: monitoring, organizing and moderating the effects of globalization; balancing the employer’s need for a flexible work force with the employee’s need for security; and guaranteeing and enforcing minimum labor standards, fundamental labor rights, and social rights for every individual.

Subjects: Case Studies: Country-Specific, European Union, Labor Rights in General (Misc.)
Newsletter: Vol 4, Issue 4
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Wang, Jovita T. , "Article 14 of China's New Labor Contract Law: Using Open-Term Contracts to Appropriately Balance Worker Protection and Employer Flexibility", Pacific Rim Law & Policy Journal v. 18 (April 2009) p. 433-462

Abstract:
This Comment begins by noting that China’s rapid growth and transition to a market economy has resulted in growing inequality and widespread labor abuse. In response to domestic and international pressure to address these issues, China enacted the 1994 Labor Law. As a result of continued labor abuses, the Chinese government enacted the Labor Contract Law (“LCL”) in 2008. This new law clarifies the requirements for a contractual employment relationship, stipulates penalties for violations for the law, and protects workers through encouragement of open-term contracts. Foreign companies and investors have expressed concern that Article 14 of the LCL, which limits employers’ ability to use fixed-term employment contracts and encourages open-term contracts, will be unfairly enforced against foreign employers and will increase costs by limiting the business sector’s ability to expand and contract. While these concerns are valid in light of the effect of similar labor laws in South Korea, the author explains that the Chinese law provides a clearer, more flexible set of standards than the South Korean laws. Further, enforcement of the new law has not not unfairly targeted foreign employers; it has been primarily enforced against domestic employers. The author concludes that the law and its clarifying regulations filled much-needed gaps left by the 1994 labor law and, if enforced appropriately, will aid China’s development.

Subjects: Case Studies: Country-Specific, China, Employment Law, Flexibilization, Labor Mobility
Newsletter: Vol 9, Issue 8
 
Weiss, Manfred, "Convergence and/or Divergence In Labor Law Systems?: A European Perspective", Comparative Labor Law & Policy Journal v. 28 (2007) p. 469-486

Abstract:
This article engages an ongoing debate among labor law scholars over whether the spread of globalization and neo-liberal ideology necessarily lead to a "convergence" or homogenization of labor standards whether that convergence is accomplished by a "race to the bottom," i.e., a general decrease in workers' rights. The author argues that European Community labor legislation has in fact contributed to a "convergence" among member States, but that it has often done so by setting minimum standards whose overall effect is to increase workers' rights with respect to workplace discrimination, health and safety standards, wage and hour laws and alternative forms of employment. The article also points out how EC legislation has promoted worker "voice" by requiring employers to provide information and consult with designated workers' representatives. On balance, the author sees these developments as contributing at least as much to the creation and expansion of workers' rights as to a downward spiraling "convergence" of labor standards.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Conflict of Laws, European Union
Newsletter: Vol 6, Issue 12
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Weissbrodt, David, "Remedies for Undocumented Noncitizens in the Workplace: Using International Law to Narrow the Holding of Hoffman Plastic Compounds, Inc. v. NLRB", Minnesota Law Review v. 92 (May 2008) p. 1424-1465

Abstract:
In Hoffman v. NLRB, the Supreme Court held that an undocumented worker was ineligible for backpay due to his citizenship status, despite the fact that his dismissal for union activity was a violation under the National Labor Relations Act. Weissbrodt contends Hoffman is contrary to universal norms such as the principle of nondiscrimination against noncitizens, declared jus cogens (a "norm accepted and recognized by the international community...from which no derogation is permitted") by the Inter-American Court of Human Rights. He also notes that Hoffman conflicts with the terms of international treaties to which the U.S. is a signatory. Even though U.S. courts have been reluctant to apply jus cogens or to interpret treaties as judicially enforceable, Weissbrodt maintains that courts hearing cases post-Hoffman should consider international norms and treaty obligations "interpretative tools," just as the Supreme Court did in Lawrence v. Texas. He urges U.S. courts to adhere to international legal norms and treaty obligations by limiting the applicability of Hoffman to backpay remedies under the NLRA, rather than extending the holding to other statutory claims of unauthorized workers.

Subjects: Case Studies: Country-Specific, Immigration, Undocumented Workers
Newsletter: Vol 8, Issue 4
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Wells, Don, "Best Practice in the Regulation of International Labor Standards: Lessons of the U.S.-Cambodia Textile Agreement", Comparative Labor Law & Policy Journal no27 (2006) p. 357-371

Abstract:
This article is a post-mortem assessment of the U.S.-Cambodia Textile Agreement (UCTA), which went into effect in 1999 and expired in 2005. The UCTA was unique among U.S. trade agreements in several respects. By linking increased market access to systematically and publicly monitored increased compliance with labor standards, it was the only bilateral U.S. trade agreement to use market incentives instead of punishments to motivate government and employer compliance with labor standards. Also, UCTA used the ILO, rather than private firms or NGOs, to monitor compliance with labor standards, thereby making claims of improved working conditions under the UCTA more credible than similar claims under other trade agreements. The author notes that between 1999 and 2004, Cambodia went from one of the worst violators of core ILO labor standards to ranking ahead of all its regional competitors in compliance. Based on these reports of increased compliance, the United States increased Cambodia’s garment export quota in each year of the agreement, so that Cambodia’s apparel exports increased four-fold over the life of the UCTA with about two-thirds of these exports going to the U.S. market. Because the value of these quota increases far outstripped the costs of increased compliance, employers in the Cambodian garment industry – most of which is foreign owned – could afford to pay higher wages to garment workers. Although the author notes that there were some problems of implementation and enforcement, particularly in protecting freedom of association and reducing anti-union discrimination, he concludes that the UCTA has benefited Cambodian garment workers, and that, with appropriate modification, the UCTA serves as a potential model to be replicated and extended to other countries and other industries.

Subjects: Case Studies: Country-Specific, International Labour Organization (ILO), Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 2
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White, Linda, "The United States in Comparative Perspective: Maternity and Parental Leave and Child Care Benefits Trends in Liberal Welfare States", Yale Journal of Law and Feminism v. 185 no1 (2009) p. 185-232

Abstract:
This article examines the policies of maternal and parental leave and early childhood education and care (ECEC) in liberal welfare states. The author begins by describing some parenting and childhood policy norms in liberal welfare states, as well as contrasting these with social democratic regimes and conservative welfare regimes. In liberal welfare states, policies are made under the presumption that the market will take care of the majority of social needs, and the state should only step in as a gap-filler. The author then compares maternal and parental leave and ECEC policies in five liberal welfare states: Australia, New Zealand, the United Kingdom, Canada and the United States. Each state's ability to both encourage maternal workforce participation and reconcile work/family life is then compared, based on various factors. Finally, the author notes that the differences between the five countries' maternal and parental leave and ECEC programs are not as stark as many believed, and in particular, the countries have shared a recent positive shift in valuing and reinvesting in these programs. However, due to the resistance on the part of business and industry, and perhaps due to a societal resistance to providing state support for childrearing among the poor, the U.S. remains an outlier in its lack of federally mandated paid parental leave.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, Employment Law, Health and Safety, Women’s Rights
Newsletter: Vol 9, Issue 8
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Wijekoon, Lavanga V., "Litigating Labor Rights Across A Demilitarized Zone: The South Korean Constitutional Court As A Forum To Address Labor Violations In North Korea's Kaesong Special Economic Zone", Pacific Rim Law & Policy Journal v. 17 (2008) p. 265-306

Abstract:
South Korean corporations access cheap labor by operating in North Korea's Kaesong Specal Economic Zone. Although South Korea praises this Zone as an example of inter-Korean cooperation, corporatations operating in the Zone commonly violate North Korean workers' rights. This article argues that North Korean workers should be able to use the South Korean Constitutional Court to vindicate claims arising from labor violations that occur in the Zone. Using this venue would subject corporations operating in the Zone to stricter regulations and sanctions. However, North Korean workers face signigicant barriers to vindicating their claims in this venue. The North Korean Government forbids them from leaving North Korea. The South Korean Constitutional Court will not hear claims filed on behalf of third parties and has no clear jurisdiction over claims brought by North Korean workers in North Korea. And, even if North Korean workers could access South Korean Consitutional Court, the Court bars use of fictitious names, leaving workers open to retaliation. In order to make the Court a viable venue, the article argues, the South Korean legislature and Court should adopt new rules allowing absent foreign petitions to file claims in the South Korean Constitutional Court.

Subjects: Case Studies: Country-Specific, Export Processing Zones, Extraterritorial Application of Law
Newsletter: Vol 8, Issue 1
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Xu, Feng, "Labor Law Developments in China: The Emergence of Temporary Staffing Agencies in China", Comparative Labor Law & Policy Journal v. 30 no2 (2009) p. 431-461

Abstract:
Xu’s article discusses the rise of the temporary staffing, or “labor dispatch,” industry in recent decades in China. Xu argues that these agencies are part and parcel of the government’s efforts to create a flexible labor market, to dismantle the “iron rice bowl” of lifelong employment in cities and to address the ensuing unemployment of urban dwellers and rural migrants, while also stimulating foreign direct investment. The labor dispatch agencies are owned and operated by a combination of local companies, transnational staffing companies, and state-owned enterprises. The 2007 Labor Contract Law regulated labor dispatch companies for the first time, thereby legitimating the industry and cementing the “triangular employment relationship” between the agencies, firms, and workers. This relationship has given firms the ability to evade the formation of contracts with workers, thereby increasing job insecurity, undermining wages and conditions, and generating more informal employment.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Corporate Accountability, Labor Mobility
Newsletter: Vol 9, Issue 4
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Yamashita, Mitsuru , "Japanese Labor-management Relations in an Era of Diversification of Employment Types: Diversifying Workers and the Role of Labor Unions", Japan Labor Review v. 2 no1 (Winter 2005) p. 105-117

Abstract:
This article examines several studies about Japanese labor unions in an effort to better understand how the increase of non-regular work and workers in Japan is connected to the declining rate of unionization. The author starts with a review of two trends: (1) the widening wage gap between regular and non-regular employees in all categories of work, and (2) the declining proportion of workers joining labor unions (from 55.8% in 1929 to below 20% in 2003). The next section explores different factors that may explain why the rate of progress in unionizing non-regular employees is so slow compared to their growth in the workplace. These factors include the labor unions’ resistance in adapting to a changing workplace as well as a new trend among employers of avoiding unionization. The author then focuses on the unique challenge that organizing part-time workers brings. He suggests that the efforts of labor unions to secure benefits for part time workers that are similar to the ones regular workers receive are leading companies to increase their use of outsourcing and external contractors. The article concludes with proposals for future studies to clarify the dynamics of the labor-management relationship in Japan’s current era of employment diversification.

Subjects: Case Studies: Country-Specific, Contingent Work, Japan
Newsletter: Vol 4, Issue 6
 
Yasseri, Sanam, "Out of the Shadows: A Call to End the Exploitation of Non-Agricultural Migrant Workers by Reforming the U.S. H-2B Guest Worker Program", Southwestern Journal of Law and Trade in the Americas v. 15 no1 (2009) p. 361-382

Abstract:
The article begins by summarizing past and present guest worker programs, beginning with the Bracero Program, which facilitated employment of Mexican workers in U.S. farms during the middle of the twentieth century. The author then discusses current guest worker visas, including the H1-B for skilled workers, the H-2A for agricultural workers, and the H-2B for low-skilled, non-agricultural workers. The article critiques the H-2B program, which applies to landscapers, forestry workers, housekeepers, construction workers and others, on the ground that it fosters high levels of worker debt to unscrupulous recruitment agencies, makes it impossible for workers to change employers, and has inadequate government oversight. The author then proposes a long-term solution based on a Canadian program, in which increased involvement by both the sending and receiving country would replace exploitative recruiters with more accountable government agencies. In the short term, however, the author sees unionization of guest workers as the most likely way to enforce those workers’ rights.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration
Newsletter: Vol 9, Issue 9
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Young, Isaac, "Shut Up and Sing: The Rights of Japanese Teachers in an Era of Conservative Education Reform", Cornell International Law Journal v. 41 no1 (Winter 2009) p. 158-192

Abstract:
This article discusses the prospects of Japanese teachers who wish to abstain from singing Kimigayo, the Japanese national anthem, at public school ceremonies. As a result of conservative-led efforts since WWII, the Japanese Ministry of Education (MOE) was successful in passing guidelines requiring that schools hang the Hinomaru, the Japanese national flag, and that students and teachers sing the Kimigayo. However, some teachers have objected to these practices, primarily because they associate the flag and anthem with Japanese aggression in WWII and see the MOE policies as advancing a conservative, perhaps arrogant, Japan-centered worldview. The author analyzes the plight of 228 teachers disciplined for failing to sing the Kimigayo whose case is likely to end up before the Japanese Supreme Court. Even though the teachers prevailed in a Tokyo District Court, Young gives several reasons for thinking the Supreme Court will rule against them. Because the Court has been extremely reluctant to find that government actions violate the Constitution. Further, the Court has been especially deferent to government action towards public servants such as these teachers. Finally, even if the Court rules for the teachers in this instance, recent conservative reforms to the Fundamental Law of Education (FLE) indicate that the teachers’ right to abstain from singing would be short-lived. As a result of this likely ruling, Young argues, teachers’ speech will be chilled and Japanese society will be less open and democratic.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Employment Law, Japan
Newsletter: Vol 9, Issue 10
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Zaletel, Petra, "Competing for the Highly Skilled Migrants: Implications for the EU Common Approach on Temporary Economic Migration", European Law Journal v. 12 no5 (September 2006) p. 613-635

Abstract:
This article compares efforts of the European Union and the United States to attract highly skilled workers in the "knowledge economy." The author seeks to contribute to policy design in the EU, where there is a growing need for the highly skilled but so far only Germany and the UK have programs to attract them. The article discusses economic accounts of the importance of highly skilled labor and surveys of global migration of the highly skilled. The author argues that the EU needs a common policy to make the entire region attractive to highly skilled workers in order to increase its competitiveness in the global economy. She concludes that the best legislative strategies involve programs that facilitate a speedy transition to permanent residence, family unification and provide general flexibility.

Subjects: Case Studies: Country-Specific, Contingent Work, Immigration, Labor Mobility, Undocumented Workers
Newsletter: Vol 6, Issue 9
 
Zhao, Yun, "China’s New Labor Dispute Resolution Law: A Catalyst for the Establishment of Harmonious Labor Relationship?", Comparative Labor Law & Policy Journal v. 30 no2 (Winter 2009) p. 409-430

Abstract:
It wasn’t until 1994 that China effectively adopted a labor code. In 2007, China added a series of laws aimed at improving and increasing the protection of workers’ rights. The new labor laws address problems that emerged from the 1994 laws. Whereas parties to a labor dispute were previously required to go through arbitration before reaching litigation, the parties can now choose to go straight to litigation. The laws also attempt to remedy the fact that the worker is the weaker party in most disputes. For example, in certain types of disputes, only the employee has the right to appeal an arbitration award. Also, labor arbitration is provided free of charge. Arbitration tribunals may shift the burden of proof from the worker to the employer in certain situations. Also, they have the option of awarding a worker an interim award before the final award is rendered. The limitation period for making an arbitration request is increased dramatically. The new laws also attempt to make the dispute resolution system more efficient by shortening the time by which the tribunal must render an award. The laws also provide for an increase in the number of mediation commissions. The author suggests that certain steps need to be taken in order to allow the new laws to be effectively used. Detailed procedural rules for labor arbitration should be created. Also, the quality and number of arbitrators should in increased. Finally, the legislature should modify existing law to provide that courts shall only review the procedural aspects of arbitration decisions, and not the substantive aspects as well.

Subjects: Arbitration, Case Studies: Country-Specific, China
Newsletter: Vol 9, Issue 3
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