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  Labor Mobility
 
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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Engle, Karen, "Special Feature: Working Borders: Linking Debates About Insourcing and Outsourcing of Capital and Labor", Texas International Law Journal no40 (Summer 2005) p. 691-798

Abstract:
This article summarizes a conference on "Working Borders: Linking Debates About Insourcing and Outsourcing of Capital and Labor" held at the Univ. of Texas Law School in February, 2005. The conference focused on two phenomonon: "Insourcing," i.e., US employers' "importing" immigrant labor, particularly Mexicans, to perform low-wage service work; and "Outsourcing," i.e. the movement of high-tech service work abroad. The speakers conceptualized insourcing and outsourcing as complementary and inevitable dynamics of economic globalization. They also linked US debates on immigration reform to jobs lost to outsourcing. They discussed regulatory responses to global flows of goods, capital and labor, and they examined the prevailing citizenship model that links rights to nation of birth. In the concluding roundtable, participants discussed the prospects for promoting and regulating of labor rights in a way that would make insourcing and outsourcing less exploitative of both immigrant and outsourced workers.

Subjects: Labor Mobility, Labor Rights in General (Misc.), Outsourcing, Undocumented Workers
Newsletter: Vol 5, Issue 4
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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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Ganesh, Aravind R., "Appointing Foxes to Guard Henhouses: The European Posted Workers' Directive", Columbia Journal of European Law v. 15 (2009) p. 123-142

Abstract:
This article discusses the implications of recent decisions by the European Court of Justice affecting the representational rights for the one million "posted" workers working temporarily under contract in another EU member state than the one in which they live. Cases such as Laval and Viking illuminate the tensions between the EC Directive for posted workers, which establishes minimum standards, and collective bargaining agreements, which seek to raise standards. The author argues that the governance structure established by the Directive is inadequate to give "voice" to posted workers because the member states, unions, and businesses that are empowered to engage in a "social dialogue" about working conditions for posted workers have interests in conflict with those of the workers themselves. For instance, while both member states and unions are concerned about the downward pressure on wages due to the importation of cheaper labor, traditional unions have little institutional interest in organizing transient workers while member states fear posted workers will drain their social welfare coffers, giving them little incentive to broaden domestic protections for protected workers. Likening the member states and unions to "foxes," Ganesh further maintains that the European Commission's efforts to remedy the disempowerment of posted workers by encouraging greater cooperation and transparency among the partners of the "social dialogue" will prove hollow unless it includes the right of posted workers to be heard.

Subjects: Contingent Work, European Union, Immigration, Labor Mobility
Newsletter: Vol 8, Issue 2
 
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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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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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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Gordon, Jennifer, "Transnational Labor Citizenship", Southern California Law Review v. 80 (March 2007) p. 503-599

Abstract:
This article develops the idea of "transnational labor citizenship" (TNC), a new approach to structuring cross-border labor migration. In an increasingly global market for labor, the author contends that closed borders are untenable. Instead, she proposes that permission to enter the US in search of work be linked to membership in new cross-border worker organizations, rather than to the current requirement of a job offer from an employer. Unlike guest worker programs, which ultimately degrade labor institutions and conditions, the TNC approach would facilitate the enforcement of baseline labor rights and allow migrants to carry benefits, services and rights with them as they move. The author contends that linking migration to membership in a transnational worker organization would facilitate the free movement of people while preventing the erosion of working conditions in the countries that receive them. For TNC to work, unions must accommodate an ongoing influx of new migrants and the US government must treat workers' associations as allies in immigration enforcement.

Subjects: Immigration, Labor Mobility, Labor Rights in General (Misc.), Undocumented Workers
Newsletter: Vol 6, Issue 9
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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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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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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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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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Judge, John, "International Employment Discrimination and Racketeering in the Global Economy", Texas Bar Journal v. 72 no3 (2009) p. 192-199

Abstract:
This article examines the legal implications of a particular business model favored by international carriers: affiliating with a foreign corporation (usually Mexican), who then hires truckers to do work for the carrier within the United States. In most cases, the net pay to the imported drivers is just above half of what the carrier would be paying U.S. drivers, making it a quite lucrative tool for carriers. However, the author notes several problems with such a model. First, it may involve violations of federal and Texas employment discrimination laws by paying lower wages based on national origin. Second, it may violate U.S. immigration laws by breaking the provisions of B-1 Visitor for Business visas. Third, the activity may constitute racketeering, providing for criminal penalties and civil damage awards. Finally, carriers who engage in such a model may be violating the tax law for failure to pay state and federal payroll taxes. Thus while it is tempting for a carrier corporation, such a business model should be rejected in order to avoid a plethora of potential liabilities.

Subjects: Case Studies: Industry-Specific, Immigration, Labor Mobility, NAFTA/GATT, Outsourcing, Undocumented Workers, Workplace Discrimination
Newsletter: Vol 9, Issue 8
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Krebber, Sebastian, "European Union Development: Status and Potential of the Regulation of Labor and Employment Law at the European Level", Comparative Labor Law & Policy Journal v. 30 no4 (Summer 2009) p. 875-903

Abstract:
According to Kreber, European regulation of employment and labor law is at a standstill. In the new century, regulation has gone from agreements enforced by directives, i.e., hard law, to soft law agreements in accordance with law in participating Member States. This regulatory dead end is, in large part, because employee protection has been extensively developed over the last two centuries by Member States. Hence, there is little room for EU-wide regulation because Member States, especially old ones, have already extensively regulated their own employees. Further, while one can identify various “pillars” of worker protection within EU-wide legislation and jurisprudence, these are often at odds with the EU’s “pillars” of market liberalization. These conflicts create an incoherency of any EU-wide vision for labor and employment regulation. Within this incoherency, however, there may be room for European regulation in enforcing its internal market concept and handling cross-border labor issues.

Subjects: Comparative Labor Law, Employment Law, European Union, Labor Mobility
Newsletter: Vol 9, Issue 10
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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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Layne, Joseph D., "Fighting a Losing Battle: IRCA'S Negative Impact on Law Abiding Employers ", Loyola of Los Angeles Law Review v. 44 (Summer 2011) p. 1431-1475

Abstract:
The author argues that the passage of the 1986 Immigration Reform and Control Act (“IRCA”) has created incentives for employers to hire and exploit undocumented workers. The IRCA made it illegal to hire undocumented workers to work in the US without documentation, and shifted the responsibility for compliance to the employer. Employers face sanctions for knowingly hiring undocumented workers, but these sanctions are too weak to deter unscrupulous practices, particularly in the wake of the Supreme Court’s decision in Hoffman Plastics v. NLRB, in which the Court held that undocumented workers cannot receive backpay when t heir employer violates the National Labor Relations Act (“NLRA”). The author shows that an employer who violates the IRCA by hiring undocumented workers, and violates the NLRA by interfering with their right to unionize will save thousands of dollars per employee over an employer who hires citizen workers and remains neutral to collective bargaining efforts. The author recommends that Congress repeal the IRCA and reinstate the full range of NLRA remedies for undocumented workers.

Subjects: Collective Bargaining, Immigration, Labor Mobility, United States
Newsletter: Vol 12, Issue 8
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López-Pabón, María, "Immigration Law Spanish-Style: A Study of Spain's Normalizacion of Undocumented Workers", Georgetown Immigration Law Journal v. 21 (Summer 2007) p. 571-593

Abstract:
Lopez discusses Spain's recent efforts to regularize the status of undocumented workers by granting amnesty to those who met certain employment and residence requirements. Spain, like the U.S., has become a destination for immigrants despite border policing--particularly from Eastern Europe, South America, and Africa--due to unprecedented job growth. After providing a background on Spain's immigration laws and trends, including previous attempts to regularize the undocumented, Lopez discusses the poor working and living conditions and racial antagonism suffered by a Moroccan community in one Spanish city to demonstrate the perilous circumstances faced by the undocumented. The author then discusses the main features of the 2005 amnesty, which required employers to petition on behalf of workers; over 700,000 were given work and residence permits for up to three years. Lopez then addresses the criticisms of EU member countries that Spain was "fueling"more immigration by opening the proverbial "door" and undermining the EU's larger immigration scheme. Lopez dismisses the critiques as "more political than legal"through her analysis of applicable EU laws and treaties concluding that EU members states retain the ability to determine their own immigration matters. Regardless of the legality of Spain's program, Lopez takes Spain to task for instituting an inflexible short-term solution that 1) did not make legal immigration more accessible, 2) failed to capture all undocumented workers, 3) emphasized workers' outsider status and 4) tied workers' status to employers thereby rendering workers vulnerable to exploitation.

Subjects: Contingent Work, European Union, Immigration, Labor Mobility, Undocumented Workers
Newsletter: Vol 8, Issue 2
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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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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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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
Full-text links: || WWW || 
 
Paoletti, Sarah, "Transnational Responses to Transnational Exploitation: A proposal for Bi-National Migrants Rights Clinics", University of Pennsylvania Journal of International Law v. 30 no4 (Summer 2009) p. 1171-1185

Abstract:
This article summarizes recent developments in international law that affect migrants' rights. These developments include the International Convention on the Rights of Migrant Workers and Members of the Families, and an Inter-American Court on Human Rights Advisory Opinion on the rights of undocumented migrants. The author notes that U.S. law schools' clinical programs tend to be rooted in either domestic or international law, but rarely employ the full range of legal tools available to practitioners. The author proposes that U.S. law schools create bi-national migrants rights clinics in partnership with foreign law schools, to both enhance legal education and improve outcomes in clinical efforts to represent migrant workers.

Subjects: Immigration, Labor Mobility, Undocumented Workers
Newsletter: Vol 8, Issue 12
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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
 
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
 
Rudrappa, Sharmila , "Cyber-Coolies and Techno-Braceros: Race and Commodification of Indian Information Technology Guest Workers in the United States ", University of San Francisco Law Review v. 44 (Fall 2009) p. 353-372

Abstract:
The author argues that U.S. guest worker programs, known also as H-2 and H1-B temporary work visa programs, commodify and often exploit the labor of primarily non-white foreign workers. The author recounts the history of non-citizen workers in the U.S. and finds a contradiction: though the majority of labor law and policy clearly proscribes the commodification of labor, foreign workers’ labor has been, and continues to be, treated as a commodity that can be imported or exported at will. The author identifies several respects in which treating foreign workers’ labor in this way benefits capital to the detriment of both native and foreign workers. First, guest workers are generally not part of established bargaining units, and weaken unions and depress wages. Second, since H-2 and H-1B workers’ immigration status is tied to their employment, they are less likely to organize, strike, or demand better working conditions. Third, countries receiving foreign workers do not need to provide the costs associated with producing and maintaining a permanent labor force, such the cost of training workers and the cost of unemployment benefits. The author argues that the result of U.S. immigration policies is to create a racialized, non-white underclass whose laboring bodies are disposable and whose humanity is denied.

Subjects: Flexibilization, Immigration, Labor Mobility
Newsletter: Vol 12, Issue 8
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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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Visser, Jelle, "More Holes in the Bucket: Twenty Years of European Integration and Organized Labor", Comparative Labor Law & Policy Journal v. 26 (Summer 2005) p. 477-521

Abstract:
This article seeks to answer the question of whether the role of intermediaries such as labor unions will be diminished or eliminated as the European Union continues to adapt to a globalized economy. The first section examines how changes in the labor market (e.g., decentralization of the workplace, heterogeneity of society), and diversification of employment statuses (e.g., temporary, short-term) have led to a new focus on choice by the individual worker and the firm, as opposed to equality in forming labor regulation. The second section explores the current status of labor unions by looking at their density (proportion of members), presence (proportion of workplaces where unions present), coverage (proportion of workplaces whose terms of employment influenced by collective bargaining agreements), and representation (recognition and presence). The author finds that although there has been a general decrease in density and presence, coverage and representation have remained stable. He argues that this shows that there is government as well as public support of unionism. The third section looks at how international competition has led Europe to customize labor regulations by allowing Member States, firms, and individuals to opt-out of common minimum standards. The author queries why international coordination between labor unions is not an adequate method of countering this trend. He concludes that the opt-out option is based on a new partnership approach that leaves labor unions out of the equation, to the detriment of all parties involved. The last section analyzes the limits of the current practice of 'voluntary' agreements and guidelines based on public recommendations and a consensus on 'best practice,' and questions whether these non-binding methods have any effect at all. The article concludes that labor union in the EU have been weakened as labor regulation has become less collective as well as less ambitious.

Subjects: Collective Bargaining, Contingent Work, European Union, Extraterritorial Application of Law, Labor Mobility, Labor Rights in General (Misc.)
Newsletter: Vol 5, Issue 5
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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
 
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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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
 
Zimmer, Michael J., "Unions and the Great Recession: Is Transnationalism the Answer?", Employee Rights and Employment Policy Journal v. 15 (2011) p. 123-158

Abstract:
This paper discusses how unions in different countries can create a more equal economic order in the wake of the Great Recession. In the first half, the author describes the public policy basis for unionism: that labor is not a commodity and that economic equality can be achieved through collective bargaining. The author then describes neoliberalism, and argues that neoliberalism is fundamentally at odds with unionism because it treats labor as a commodity and sees labor relations as a zero-sum game between capital and labor. To win in a labor dispute, the prevailing party must be able to leverage their economic position against their opponent’s. To illustrate this point, the author describes two strikes, one at a Motts Applesauce plant in New York State, and the other at four Honda plants in China. In China, the tight labor market and high demand for cars gave striking workers an economic advantage, while in New York, a low regional demand for labor and the manufacturer’s product enabled the employer to withstand the strike and ultimately prevail. From these case studies, the author determines that if unions are to maintain relevancy in the wake of the Great Recession, they must do so by influencing entire industries so that their leverage is not dependant on fluctuations in regional labor markets. Unions can do this by opposing globalization entirely or working to correct the aspects of globalization that are unfair. The author argues that unions also should organize entire employment sectors transnationally, and points to the success of the International Transport Workers' Federation and the United Auto Workers as examples of unions that are beginning to reach across national boundaries.

Subjects: China, Collective Bargaining, Labor Mobility, Outsourcing
Newsletter: Vol 12, Issue 5
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