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  Employment Law
 
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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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 rights¯ -- 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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Bartkiw, Timothy J., "Baby Steps? Toward the Regulation of Temporary Help Agency Employment in Canada", Comparative Labor Law & Policy Journal v. 31 no1 (October 2009) p. 163-206

Abstract:
This article identifies five harms to labor standards resulting from temporary employment agencies and assesses Canadian efforts to address these harms. These harms are: (1) increased precariousness in compensation and job security for all workers resulting from the downward pressure created by a temporary workforce; (2) agency contracts that erect barriers for temporary workers obtaining full-time employment with an agency’s client; (3) under-enforcement of labor standards due to the lack of clarity regarding who is the true employer in a triangular work relationship, as well as statutory loopholes for agencies; (4) structural disincentives to training and safety inherent in a transitory workforce; and (5) temporary workers’ practical lack of access to unionization. The article then summarizes four “baby steps” that Canada has made toward regulation of the temporary work relationship that have resulted in the passing of legislation in one province. The author concludes that these steps are inadequate because they focus primarily on individual employment rights, without addressing the structural threat to labor standards posed by temporary workers’ lack of access to unionization.

Subjects: Contingent Work, Employment Law
Newsletter: Vol 10, Issue 3
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Bisom-Rapp, Susan & Frazer, Andrew & Sargeant, Malcom, "Decent Work, Older Workers and Vulnerability in the Economic Recession: A Comparative Study of Australia, the United Kingdom, and the United States", Employee Rights and Employment Policy Journal v. 15 (2011) p. 43-121

Abstract:
This article compares the situation of older workers in three liberal market economy nations: Australia, the UK, and the USA. The authors focus on three priorities drawn from the ILO’s decent work agenda that are especially important to older workers: employment promotion, social protection, and fundamental rights. In Australia, the global recession was mild, and laws prohibiting forced retirement, as well as effective enforcement of anti-discrimination laws further reduced the effects on older workers. In addition, laws that require decent living standards in retirement reduce the likelihood of older workers enduring exploitive working conditions. In contrast, the authors find that the UK struggles to enforce anti-discrimination measures and protections for the elderly and retired persons. In the UK, older workers increasingly work part time in undesirable positions, which signals that employment promotion, anti-discrimination measures, and social safety nets fall short for older workers. The authors find that the US was most affected by the recession, and older workers in the US have disproportionately been forced back into precarious work arrangements in order to support themselves. In addition, anti-discrimination measures fall far short, and a weak social safety net pushes older workers into potentially exploitive labor arrangements. Overall, the authors find that the effects of the recession on older workers were reduced in nations with regulation that directly addresses the needs of older workers.

Subjects: Comparative Labor Law, Employment Law, Workplace Discrimination
Newsletter: Vol 13, Issue 1
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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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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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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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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, Franēois, "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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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
 
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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Hobson, Barbara & Fahlen, Susanne, "Competing Scenarios for European Fathers: Applying Sen's Capabilities and Agency Framework to Work-Family Balance", Annals of The American Academy of Political and Social Science (July 2009) p. 214-233

Abstract:
This article analyses the impact of labor policies that promote child-rearing and job security on European fathers’ ability to pursue work-life balance. It analyzes responses by parents of young children in 10 countries to the 2004 European Social Survey. First, the article observes that the work-life ideal espoused by fathers is not reflected in the reality of their work hours. For example, although the vast majority of parents of both sexes believe that one’s main priority should be family, many fathers report that they work more hours than they would prefer. On the surface, fathers’ desire to work fewer hours appears directly correlated to their individual sense of job security. In fact, however, the data shows that fathers’ desire to work fewer hours is even more strongly correlated with two other factors -- a lack of labor policies that promote child-rearing and job security, and cultural norms that emphasize men as breadwinners instead of caretakers. Given this empirical data, the article concludes that fathers’ ability to pursue work-life balance is limited less by individual factors than by the laws and norms that shape their employment relationship.

Subjects: Employment Law, European Union
Newsletter: Vol 10, Issue 3
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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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Kim, Lillian, "Comment: Mandatory Retirement in the Private Sector: The Reach (or Inapplicability) of the Age Discrimination in Employment Act Domestically and Abroad ", University of Pennsylvania Journal of Business Law v. 12 (Summer 2010) p. 1209-1228

Abstract:
This student note argues mandatory retirement is a clear violation of the Age Discrimination in Employment Act (ADEA) that should not be tolerated by companies who reap the benefits of employing U.S. citizens abroad. Under the current statutory language, employers have been able to exploit ambiguity regarding the interpretation of section 623(h)(2) of the ADEA. Some courts have interpreted section 623(h)(2) of the ADEA as holding that foreign employers are not liable under the ADEA. Other courts have interpreted section 623(h)(2) of the ADEA to mean that foreign employers operating within the U.S. may be held liable under the ADEA. The author argues that Congress should amend section 623(h)(2) by clearly stating the Age Discrimination in Employment Act (ADEA) applies to U.S. and foreign entities employing American citizens. This would permit the U.S. Equal Employment Opportunity Commission and U.S. citizens to hold foreign employers liable for forcing them to participate in mandatory retirement programs. Moreover, the author advocates the creation of a global standard of workplace conduct that prohibits mandatory retirement. However, the author acknowledges that the voluntary nature of global standards may undermine their effectiveness.

Subjects: Employment Law, Pensions, Workplace Discrimination
Newsletter: Vol 12, Issue 4
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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.”¯ 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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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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Labadie-Jackson, Glenda, "Reflections on Domestic Work and the Feminization of Migration", Campbell Law Review v. 31 no1 (Fall 2008) p. 67-90

Abstract:
This article begins by describing the modern trend whereby women in countries that lack policies to help facilitate a work-life balance pass household responsibilities onto domestic workers. Domestic workers, in turn, pass their own domestic and reproductive labor onto close female relatives. The author notes that due to a seemingly universal view of domestic labor as feminine, men are largely missing from this “global care chain.” The article then summarizes how modern globalization has fueled a recent surge in immigration, particularly female labor migrants. In analyzing conditions of domestic work, the article depicts some common traits: low pay, low hours, physical and psychological abuse, isolation, and job insecurity. Reasons for such poor labor conditions, according to the author, include: perceptions of domestic work as a “private matter,” casual employment conditions, and failure to regulate domestic labor on a domestic and international level. The article concludes by stressing the need to implement current international worker protections, as well as develop domestic protections that would cover domestic workers.

Subjects: Case Studies: Industry-Specific, Employment Law, Immigration, Women’s Rights
Newsletter: Vol 10, Issue 1
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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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Lecomte, Franck, "Embedding Employment Rights in Europe", Columbia Journal of European Law v. 17 no1 (Spring 2011) p. 1-22

Abstract:
This article argues that the European Court of Justice (ECJ) is procedurally and substantively embedding employment rights in the European Union’s (EU) legal edifice. Until now, decision makers have tended to interpret the EU treaties as forming an “economic” European constitution privileging employer rights. But recently, in the case of 3F v. Commission, the ECJ ruled that a labor union had standing to contest a Danish law exempting third-country seamen employed by ship-owners registered in Denmark from income taxes. The author argues that this ruling expanded the rights of workers’ representatives to participate in deciding national employment policy. In addition, the ECJ has interpreted a treaty article stipulating the EU’s social goals of promoting employment and improved living and working conditions—Article 151 of the Treaty on the Function of the EU—as a substantive rule rather than programmatic statement. The author also argues that the new Article 9, which requires decision makers to consider certain social goals—including employment and education—in implementing EU policies, should enable decision makers to integrate fundamental social rights with the goals of economic efficiency and competitiveness in the EU’s legal edifice.

Subjects: Employment Law, European Union, Labor Rights as Human Rights
Newsletter: Vol 11, Issue 4
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Linden, Thomas, "Employment Protection for Employees Working Abroad", Industrial Law Journal v. 35 no186 (June 2006) p. 186-195

Abstract:
This article discusses legislative and judicial attempts to clarify the rights of British employees who work outside the territorial boundaries of Great Britain. The author focuses primarily on the development of Britain's "unjust dismissal" law and considers whether an employees who is recruited in Great Britain for an overseas job is employed "in Great Britain" for the purposes of protection against unjust dismissal under Britain's 1996 Employment Rights Act. The author discusses a Court of Appeals case in which the Court articulated a threefold categorization for labor rights for overseas workers. First, there are what the court called "standard case" employees, who should be protected by the Act based on the fact of their employment was within Great Britain at the time of their dismissal without regard to previous employment overseas. Next, there are "peripatetic" employees, such as airline pilots, who, while working primarily abroad, do so for an employer who is "based in" Great Britain. Finally, there are "expatriate" employees, such as an employee who is recruited in Great Britain for work abroad. The Court suggested that the first two categories of employees were protected, but that the expatriate employees would generally not be protected against unjust dismissal. The article also considered whether the application of Britain's workplace anti-discrimination protections similarly applied to employees working abroad. Because of recent amendments to the anti-discrimination legislation, the author suggests that the same categorization may not be controlling. The article concludes with brief notes on the limits on the jurisdiction of British tribunals to enforce employment law rights and the implications of the doctrine of forum non conveniens for enforcement of British employment law rights for workers outside the UK.

Subjects: Conflict of Laws, Employment Law, Extraterritorial Application of Law
Newsletter: Vol 5, 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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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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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, "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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Note, "Remedying the Injustices of Human Trafficking Through Tort Law", Harvard Law Review v. 119 (June 2006) p. 2574

Abstract:
The author of this unsigned note outlines victims’ possible remedies for human trafficking. The author notes that 13th Amendment jurisprudence has narrowed the definition of slavery; victims must have suffered physical or legal force to state a 13th Amendment claim. This excludes most victims of contemporary human trafficking, who are often kept in bondage through psychological coercion. The author similarly criticizes the Trafficking Victims’ Protection Act, which provides redress for victims of ‘severe’ forms of trafficking only, which similarly excludes many victims who were intimidated into remaining in bondage. The author proposes that victims seek redress through state tort law, and outlines how a trafficking victim might state a claim for false imprisonment, intentional infliction of emotional distress, and fraud.

Subjects: Employment Law, Forced Labor, Labor Rights as Human Rights
Newsletter: Vol 13, Issue 4
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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
 
Ratti, Luca, "Agency Work and the Idea of Dual Employership: A Comparative Perspective", Comparative Labor Law & Policy Journal v. 30 no4 (Summer 2009) p. 835-874

Abstract:
From the principle that every labor law system can gain practical insight by learning about others, this article focuses on how agency work operates in Italy and the United Kingdom. First, the article takes note of the rise of employment agencies, which treat workers as commodities and make it more difficult for the law to apply employment protections to a user firms’ conduct. While Italy has traditionally prohibited the use of labor intermediaries, a 1997 European Court of Justice (ECJ) decision required the country to allow such for agency work arrangements. In contrast, in Britain, firms’ choices about how to employ their workforce, including the use of agency work, has gone relatively unregulated. In recent years, both countries have added a complex system of licensing and regulations for the use of labor market intermediaries, while still attempting to adhere to their respective employment regulation traditions. Italy has created a systematic discipline for agency work that includes requirements that all employment contracts be written and that agency employers are held accountable for the health and safety of workers. Britain has largely deferred to the contracting and contracted firms but has extended coverage to them under its National Minimum Wage Act, and its Health and Safety at Work Act. Further, while the European Parliament approved a directive in 2008 which introduced the principle of equal treatment between agency workers and workers directly employed by the user firm, divergence between British and Italian system of agency work regulation continues.

Subjects: Comparative Labor Law, Contingent Work, Employment Law
Newsletter: Vol 10, 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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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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Santos, Alvaro, "Labor Flexibility, Legal Reform, and Economic Development,", Virginia Journal of International Law v. 50 no1 (October 2009) p. 43-106

Abstract:
This article critiques the methodology and normative assumptions of the influential World Bank project, “Doing Business,” which assesses countries’ progress in creating legal regimes that offer employers flexibility to define the scope and limits of the employment relationship. Doing Business (DB) promotes five reforms: (1) reduction of employment regulation; (2) introduction of flexible part-time and fixed-term contracts; (3) elimination of minimum wages; (4) elimination of overtime pay; and (5) reduction of limitations on firing, such as severance pay, notice, and dismissal only for cause. The DB Report argues that deregulation spurs economic growth, as evidenced by the fact that countries with legal regimes that adopt these reforms are richer, whereas those that lack these reforms are poorer. The article contends that this conclusion is weak at best because it is based only on correlation, rather than causation. In addition, the author argues that the DB methodology is flawed because it assesses countries’ flexibility based on the laws on their books, but fails to consider whether these laws are actually enforced. Furthermore, the DB Report errs by treating countries’ economies as monolithic, whereas empirical evidence shows that some of the most productive sectors of a nation’s economy are also the ones where worker-friendly laws or norms are enforced. Finally, the article criticizes Doing Business for couching its reforms in the language of economic growth, whereas its data reveal instead that the benefits of such reforms are exclusively enjoyed by employers, while the negative externalities of such deregulation are shifted to workers.

Subjects: Employment Law, Flexibilization, World Bank
Newsletter: Vol 10, Issue 3
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Waddington, Lisa, "When is it Reasonable for Europeans to be Confused: Understanding When a Disability Accommodation is 'Reasonable' from a Comparative Perspective", Comparative Labor Law & Policy Journal v. 29 no3 p. 317-333

Abstract:
This article surveys how different member states of the European Union responded to the challenge of the Employment Equality Directive of 2000. Article 5 of this legislation mandated "reasonable accommodation" of disabled individuals in national legal systems across the EU. The author discusses the many different interpretations of the term "reasonable" and compares the different steps several nations have taken to codify the mandate into law. The article concludes with suggestions for how courts across the EU can clarify the meaning of the term "reasonable accommodation" and implement the directive.

Subjects: Comparative Labor Law, Employment Law, European Union, Workplace Discrimination
Newsletter: Vol 7, Issue 10
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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
 
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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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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