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  Flexibilization
 
Araki, Takashi, "Changing Employment Practices, Corporate Governance, and the Role of Labor Law in Japan", Comparative Labor Law & Policy Journal v. 28 (2007) p. 251-275

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

Subjects: Case Studies: Country-Specific, Contingent Work, Corporate Governance, Flexibilization, Japan
Newsletter: Vol 6, Issue 6
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Durkalski, John A., "Fixing Economic Flexibilization: A Role for Flexible Work Laws in the Workplace Policy Agenda", Berkeley Journal of Employment and Labor Law v. 30 no381 (2009) p. 381-403

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

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

Abstract:
In 2006, France's attempted to address high unemployment among young people with the Contrat Première 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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Felter, Megan, "Note: Short-Time Compensation: Is Germany’s Success with Kurzarbeit an Answer to U.S. Unemployment? ", Boston College International and Comparative Law Review v. 35 (Spring 2012) p. 481-510

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

Subjects: Case Studies: Country-Specific, European Union, Flexibilization, Unemployment Insurance
Newsletter: Vol 12, Issue 4
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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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Frost, Anne C. & Kwon, Hyunji & van Jaarsveld, Danielle, "The Effects of Institutional and Organizational Characteristics on Work Force Flexibility: Evidence from Call Centers in Three Liberal Market Economies", Industrial and Labor Relations Review v. 62 no4 (July 2009) p. 573-599

Abstract:
In this article, the authors report on a study of the effects of legal, organizational and institutional differences between the U.S., U.K., and Canada on numerical and functional labor flexibility. In contrast to previous studies that focused on the manufacturing industry, here the focus is on call centers, where high turnover and non-standard work arrangements abound.The authors found higher rates of dismissal in the U.S., a trend that was negatively correlated with the use of temporary and part-time employment. The authors hypothesize that weaker lay-off protections in the U.S. result in more dismissals, while in the U.K. and Canada, employers adapt to stiffer job protection laws by using more temporary and part-time work. The authors also hypothesize that a strong union presence leads to fewer dismissals, but more non-standard employment arrangements, while outsourcing centers will lead to more of both. Their study confirms that union presence decreases lay-offs and non-standard arrangements and that outsourced centers lead to at least more part-time workers.The authors also find that numerical and functional flexibility are negatively related in the U.S. and Canada, but not in the U.K.

Subjects: Case Studies: Industry-Specific, Comparative Labor Law, Flexibilization
Newsletter: Vol 11, Issue 7
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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
 
Glynn, Timothy P., "A Global Approach to the Study of Workplace Law: Looking Across (Real) National Borders to Move Beyond (Artificial) Substantive Ones", International Journal of Comparative Labour Law and Industrial Relations v. 25 no1 (2009) p. 3-14

Abstract:
The author argues that employment law in the United States is inherently trans-substantive, in that it requires students and practitioners to master contract, tort, and administrative law and the interplay between these legal disciplines. However, missing from most American discussions of employment law are legal concepts prevalent in other countries, particularly the view that worker protections are a part of human rights law. The author also shows that how nations such as the United Kingdom acknowledge the interplay between worker-firm relations and corporate law. The author argues that the ‘compartmentalization’ of employment and corporate law in the United States impedes public-private ordering and encourages an incomplete understanding of both legal regimes. He argues that the study of international and comparative employment law would provide future practitioners with the opportunity to bridge the unnecessary divides between employment law and other fields.

Subjects: Comparative Labor Law, Flexibilization
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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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Mitlacher, Lars W. & Burgess, John, "Temporary Agency Work in Germany and Australia: Contrasting Regulatory Regimes and Policy Changes", International Journal of Comparative Labour Law and Industrial Relations v. 23 no3 (2007) p. 401-431

Abstract:
This paper looks at two nations with very different regulatory schemes related to temporary agency employment: Germany and Australia. Both nations have experienced growth, in the last ten years, of both the number of agency workers and the number of temporary agencies. However, the percentage of Australia’s workforce that is employed by agencies is more than double that of Germany’s. The authors surmise that this difference may be due to a combination of factors. First, while Germany’s temporary workforce is generally low skilled and concentrated in the industrial sector, Australia’s agency workers have a wide range of skills and can be found in all sectors. Second, Germany’s agency employment industry is highly regulated, while Australia has very little regulation in this area. German law requires that companies seeking to hire agency workers obtain a license through the public employment agency. And third, the German temporary help industry is covered by collective agreements with equal pay and length-of-assignment provisions. In contrast, Australia has extremely limited minimum standards for temporary workers, and does not require companies to report on, let alone obtain permission for, the engagement of temporary workers. The authors weigh the costs and benefits of each system and ultimately determine that though temporary agency employment offers flexibility to businesses, that benefit is often outweighed by the cost to the workers, who are engaged in precarious and insecure employment arrangements. The authors recommend that Australia adopt some aspects of the German system, particularly the licensing requirement and collective agreements.

Subjects: Australia, Comparative Labor Law, Flexibilization
 
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
 
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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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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Stone, Katherine V.W., "Flexibilization, Globalization, and Privitization: Three Challenges to Labor Rights in Our Time", Osgoode Hall Law Journal v. 44 no77 (2006) p. 77-104

Abstract:
Three dynamics are coalescing to reshape labor relations in the 21st century in the United States: They are flexibilization, globalization and privatization. Flexibilization refers to the changing work practices by which firms no longer use internal labor markets or implicitly promise employees lifetime job security, but rather seek flexible employment relations that permit them to increase or diminish their workforce, and reassign and redeploy employees with ease. Globalization refers to the increase in cross-border transactions in the production and marketing of goods and services that facilitates firm relocation to low labor cost countries. And privatization refers to the rise of neo-liberal ideology, the attack on big government and the dismantling of the social safety net that have dominated public policy in the U.S. in recent years. All three of these dynamics have been detrimental to U.S. employment standards and union strength. This paper describes how each of these dynamics has undermined labor rights and then asks, what prospects are there, in light of this environment, for protecting employment rights, re-invigorating unions, and security a social safety net? It concludes that the response to the global threat to labor standards lies in a revival of collective action at the local level. It further concludes that the combined forces of flexibilization, globalization, and privitization make collective action at the local level not only necessary, but also possible.

Subjects: Contingent Work, Flexibilization, Labor Rights in General (Misc.), Privatization
Newsletter: Vol 5, Issue 11
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Süral, Nurhan, "Anti-Discrimination Rules and Policies in Turkey", Comparative Labor Law & Policy Journal v. 30 (Winter 2009) p. 245-272

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

Subjects: Anti-Discrimination, Case Studies: Country-Specific, Flexibilization, Women’s Rights
Newsletter: Vol 8, Issue 5
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Tiraboschi, Michele, "The Reform of the Italian Labor Market over the Past Ten Years: A Process of Liberalization?", Comparative Labor Law & Policy Journal v. 29 no4 (Summer 2008) p. 427-453

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

Subjects: Case Studies: Country-Specific, Flexibilization, Outsourcing, Workplace Discrimination
Newsletter: Vol 7, Issue 11
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Tripathi, Ragini, "The H-2B Visa: Is This How We Treat a Guest?", Scholar: St. Mary's Law Review on Minority v. 11 (Spring 2009) p. 519-558

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

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

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

Subjects: Case Studies: Country-Specific, Contingent Work, Flexibilization
Newsletter: Vol 13, Issue 3
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Tsuneki, Atsushi & Matsunaka, Manabu, "Labor Relations and Labor Law in Japan", Pacific Rim Law & Policy Journal v. 20 (June 2011) p. 529-561

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

Subjects: Case Studies: Country-Specific, Flexibilization, Japan
Newsletter: Vol 12, Issue 3
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van Eck, Stefan, "Revisiting Agency Work in Namibia and South Africa: Any Lessons from the Decent Work Agenda and the Flexicurity Approach? ", International Journal of Comparative Labour Law and Industrial Relations v. 30 no1 (2014) p. 49

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

Subjects: Case Studies: Country-Specific, Flexibilization
Newsletter: Vol 14, Issue 6
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Villiers, Charlotte , "Why Employee Protection Legislation is Still Necessary", Comparative Labor Law & Policy Journal v. 33 (Spring 2012) p. 481-492

Abstract:
This article discusses the need for new employment protection laws in response to the limited ability of employees to negotiate fairly with employers in the current economic and political climate. The author believes the current financial crisis undermines the protections afforded workers because of the intense competition for jobs. Workers today display a greater willingness to work disproportionate hours, avoid union organization and collective action, and accept reorganization efforts by employers. The lack of a desire for collective action has significantly weakened unions’ ability to obtain acceptable and protective bargaining agreements. This article concludes by arguing for new legislation that supports trade union representation and collective bargaining and notes that the Occupy Wall Street movement might serve as a societal countermovement to the erosion of worker protections.

Subjects: Collective Bargaining, Flexibilization, Social & Economic Rights, Working Hours
Newsletter: Vol 12, Issue 3
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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