Monday, March 24, 2014
I just posted on SSRN an article I've co-authored with a slew of other folks. My purpose in blogging it, however, is not so much the content of the article, but the process of creating it. The article grew out of a panel presentation I gave last May at a LawAsia Employment conference. At that conference, I and attendees from several other countries learned from each other that although labor outsourcing is prevalent in all of our countries, the approach to legally regulating it varies considerably. We decided that we'd each write a summary of our country's laws; I then collected the summaries, organized them into an article, added a section comparing and contrasting the different approaches, and found a journal to publish it.
What I've particularly enjoyed about this project is the opportunity it's given me to work with labor/employment practitioners throughout the world. I'm looking forward to collaborating with them on future projects, and next time I'm in Istanbul or Jakarta or Melbourne or Beijing, I'll have a new friend there happy to show and introduce me around.
Anyway, the article is A Comparative Analysis of Labor Outsourcing (forthcoming Arizona J. Int'l & Comparative L. (2014 )). Here's the abstract:
This article compares the laws and the practice of labor outsourcing in five countries: Australia, China, Indonesia, Turkey, and the United States. The article finds both significant similarities and differences among the countries. For example, labor outsourcing is globally prolific and seems to be increasing. However, the general legal approach to regulating it varies considerably, with some countries adopting a regulatory model, others a hybrid regulatory-contractual model, and others not regulating it at all. Similarly, the scope of legal regulations varies considerably by country: some focus on protecting existing employees, other focus on curbing exploitation of workers performing outsourced work; some countries regulate the types of work that can be outsourced or subcontracted and others regulate the firms that can provide labor outsourcing services. Thus, a thorough understanding of labor outsourcing can be achieved only from considering the different perspectives and legal regimes in which it operates.
I spent my spring break in Modena, Italy, where every March since 2003, the Marco Biagi Foundation (MBF) at the University of Modena and Reggio Emilia has hosted an international conference devoted to international and comparative employment and labor relations. I’ve attended the event annually since 2007, making this my eighthconsecutive year as a conference participant. The conference was held on March 18th and 19th, with a pre-conference Young Scholars’ Workshop taking place on March 17th.
This year’s conference, “Labour and Social Rights: An Evolving Scenario,” centered on the challenges involved in providing employment-related social protection programs at a time when more and more people work outside of traditional employment relationships. (Social protection, loosely defined, consists of the programs that form the social safety net, including, among other things, unemployment insurance, job retraining efforts, workers’ compensation, disability insurance, and publically provided pensions.) Particular attention was given to the economic forces changing standard employment relationships, the values and interests that should be protected as new types of work emerge, and the theories and strategies that should anchor new forms of protection for working people. Participants addressed these issues from a number of disciplines including law, industrial relations, economics, and human resource management.
As an American, I was struck by the extent to which neoliberalism and austerity continue to drive public policy in many countries, especially in the EU. To the chagrin of many scholars at the conference, the quest for workplace “flexibility” has not abated despite the continuing labor market crisis, which manifests itself in elevated unemployment in many nations. Similarly notable was the concern voiced by commentators about the rise in precarious work and the weakening power of trade unions. These problems are not new but they have been greatly exacerbated by the economic conditions beginning in 2008. Clearly, we in the US are not alone.
On the upside, it is apparent that scholars are eager to theorize beyond the traditional, paradigmatic employment relationship with the goal of extending vital social security protections to greater numbers of people. Rather than clear solutions, it seems we are in a period of complex problem-solving. This requires patience and fortitude, as new models are posed and their utility evaluated. Ultimately, however, this period of theorizing will come to nothing without political movements demanding change from elected representatives. In the meanwhile, however, it’s possible to expand one’s thinking about the existing challenges through interaction with labor and employment scholars from other countries.
I was particularly pleased to see prominent US scholars in the program this year. Trina Jones (Duke) gave an insightful paper on the contemporary challenges facing U.S. civil rights law. Mike Zimmer (Loyola U., Chicago) and Michael Fischl (Connecticut) addressed different aspects of the challenges facing unions with the former suggesting ways in which transnational unionism might be enabled and the latter gleaning lessons from the way low wage union organizing campaigns have strategically deployed traditional labor law and non-labor law claims.
As for me, I served as chair for a panel titled “Social Dialogue and Labour Standards,” which covered six papers written by professors from six countries: Germany; Russia; South Africa; Ireland; Italy; and Brazil. The discussion on this panel was very diverse since the papers were on six very different subjects. Even so, common themes were evident. The papers dealt with the way our understanding of what counts as ‘work’ is evolving and changing over time, as is our willingness to think about the rights and protections all people who work should be entitled to.Another theme that emerged from the panel was the variety of mechanisms that can be used to provide voice to the concerns of the most vulnerable workers.
In addition to chairing the panel, I helped organize and was a commentator at the MBF’s annual Young Scholars’ Workshop. This was my third year of involvement with this portion of the annual conference events. This year we heard and commented on papers from Ph.D. students from the U.K., the U.S., Italy, Hungary, and Spain. There were eight papers presented in all. Creating ties with the new generation of comparative scholars is one of the most exciting parts of the conference. The quality of the scholarly work they are doing is impressive.
Over time, the MBF has become my academic home-away-from-home. I have been privileged to serve on the Foundation’s International Council since 2009, and two weeks ago was appointed to the MBF’s Scientific Committee, the academic advisory board that advises the Foundation on all of its scholarly projects. The Scientific Committee met in Modena during the conference to discuss and approve the theme for the Thirteenth International Conference in Commemoration of Marco Biagi. The theme, tentatively stated, is: Employment Relations and Transformation of the Enterprise in the Global Economy. Stay tuned for the call for papers. I hope many of you will consider submitting a proposal.
Sounds like it was great, Susan. Thanks!
Thursday, February 27, 2014
This Article takes a different approach. It explains a regime’s preferred method of regulating contracts, especially in the employment and consumer contexts, by reference to macro features of its political economy. Both the normative question of whether a mandatory or default approach is superior, and the positive question of which approach is probable, turn on characteristics of the population set that will be subject to the rule, characteristics of market structure in that jurisdiction, and various political institutions. Unlike others commenting on the mandatory-default divide, this Article emphasizes the importance of political and economic features of the transactional environment, not the microeconomics of the transactions themselves. The four environmental factors I study here are heterogeneity, mobility, sectoral composition and institutional capacity. After exploring their effects on domestic regulatory strategy, I discuss the limitations they pose for transnational regulation. Although “private regulation” might appear a third regulatory mode suitable in the transnational context, I argue that private agreements that constrain other private agreements are not properly regarded as an alternative to either ex ante mandatory rules or ex post interpretive defaults imposed by the state.
Looks worth a read!
Tuesday, February 25, 2014
I am excited to announce the kick-off of a new speaker series in labor and employment law, sponsored by the Labor and Employment Law Program at Marquette University Law School.
We are really starting the program off with a bang.
On March 27th, in conjunction with the Third Annual ERISA National Conference at Marquette, Assistant Secretary of Labor and head of the Employee Benefit Security Administration (EBSA) Phyllis Borzi will be speaking about the Affordable Care Act. You can register here.
Finally, on April 8th, Professor Takashi Araki, former Dean and Professor of Law at the University of Tokyo Law School and Visiting Professor this semester at Harvard Law School, will be coming to speak about contemporary topics in Japanese employment law. You can register here.
All events are scheduled at noon and include lunch.
Thursday, February 6, 2014
Thanks to Pietro Manzella of ADAPT for bringing to my attention the publication of the latest issue of the E-Journal of International and Comparative Labour Studies (Vol 3, Issue 1, January 2014). You can find the full contents here.
Wednesday, January 29, 2014
Thanks to our friends at ADAPT, Chris Leggett and Michele Tiraboschi, for bringing to our attention the Twitter-based version of the ADAPT International Bulletin, which collects the main documentation on labour issues published during the last two weeks. Here is what Chris and Michele write:
The bulletin includes two comments: “The Emotional Timeline of Unemployment: Anticipation, Reaction, and Adaptation”, by Christian von Scheve, Frederike Esche and Jürgen Schupp (German Institute for Economic Research - DIW, Berlin) and The Horizon 2020 Strategy for SMEs”, by Meysam Salimi (International Doctoral School in Human Capital Formation and Labour Relations, University of Bergamo).
This issue also conveys some of the latest ADAPT publications, among which is the last ADAPT University Press, ADAPT- Labour Studies e-Book Series n. 19, "Violencia, riesgos psicosociales y salud en el trabajo. Estudios desde el derecho internacional y comparado" edited by Lourdes Mella Méndez (Professor of labour law at the University of Santiago de Compostela).
For further information, you can make contact with the ADAPT staff at email@example.com.
Monday, December 16, 2013
Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex U. Business School, UK) have just posted on SSRN a working draft of their new paper, It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women—The U.S. and the U.K. as Examples. Susan presented this at the 8th Annual Colloquium on Recent Labor and Employment Law Scholarship held by our friends at UNLV. From the abstract:
This paper considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 or older is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable. One study, analyzing gender and age group, found that women in the U.K. were at a greater risk of poverty throughout their working lives. That study revealed a significant statistical difference in poverty risk between men and women under the age of 50, which decreased for the 50-64 age group, and then increased dramatically for those 65 and older, resulting in a poverty gap that was more than twice the average for the whole population in the UK.
To capture this phenomenon, this paper develops a model of "Lifetime Disadvantage," which considers the major factors producing unequal outcomes for working women at the end of their careers. One set of factors falls under the heading "Gender-Based Factors." This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled "Incremental Disadvantage Factors." While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy in ameliorating or exacerbating women’s disadvantages is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps.
An effective and comprehensive regulatory framework could help compensate for these gender-based disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, we demonstrate that regulatory schemes created by "disjointed incrementalism" (policies that tinker along the margins without considering women’s full life course) are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination.
Really interesting work.
Friday, December 13, 2013
1. New Book Volume: Labour Law and Industrial Relations in Recessionary Times. The Italian Labour Relations in a Global Economy, edited by Michele Tiraboschi, Cambridge Scholars Publishing - ADAPT Labour Studies Book Series.
This volume includes a number of papers written in English and published in the last fifteen years in which the Italian labour market underwent many changes. The intent here is to provide the international readership with a frame of reference - in both conceptual and legal terms - that helps to appreciate current Italian Labour Law.
2. Internships: In 2014, ADAPT will commence another selection procedure involving international students and recent graduates in law, economics, sociology and languages to undertake internships or research periods lasting 3 to 6 months in Bergamo (Italy).
Selected candidates will be involved in numerous ADAPT international projects and they will be offered a reimbursement of expenses - the amount of which will vary depending on their age and previous experience - as well as accommodation in our guest apartment in the upper town of Bergamo.
Those interested in undertaking an internship or research period at ADAPT may send their CV/resume and cover letter to: firstname.lastname@example.org.
3. New Bulletin: new Twitter-based version of the ADAPT International Bulletin, which collects the main documentation on labour issues published in the last two weeks.
The bulletin includes three commentary notes: "The New Deal for Apprenticeship in England and USA" by Alfonso Balsamo, "The Internationalisation of Education: Causes and Effects" by Alessandra Sartore and "Understanding regulations for small and medium-size enterprises (SMEs)" by Meysam Salimi, all from the International doctoral school in Human Capital Formation and Labour Relations promoted by ADAPT and CQIA (University of Bergamo).
Friday, November 8, 2013
Our own Paul Secunda has a new paper available for download on SSRN: An Analysis of the Treatment of Employee Pension and Wage Claims in Insolvency and Under Guarantee Schemes in OECD Countries: Comparative Law Lessons for Detroit and the United States. Here is the abstract:
To put the plight of the Detroit city employees into an international and comparative context when it comes to considering how their pension and wage claims should be treated in bankruptcy, it is instructive to consider how similar employee pension and wage claims would be treated in corporate insolvencies in other countries. It is necessary to focus on corporate insolvencies in other countries as the relevant comparison because most other countries do not have government systems in which municipalities have the same financial independence to borrow money and take on debt as municipalities do in the United States as part of the municipal bond market. Additionally, exploring the corporate bankruptcy systems in other countries provides a beneficial way to consider how to approach municipal bankruptcy situations in the United States, especially since corporate and municipal bankruptcies in the United States have a number of features in common when it comes to employee creditor claims.
This article therefore undertakes a comparative analysis of the treatment of pension and wage claims in insolvency proceedings and under guarantee schemes in the thirty-four member countries of the Organization of Economic Cooperation and Development (OECD) to understand whether the United States’ approach to employee claims in bankruptcy (in both the corporate and municipal context) is consistent with international norms. After completing the comparative analysis (which is comprehensively set out in the Country-by-Country Appendix at the end of this paper), this article then highlights common approaches to these issues, as well as important distinctions, setting up a number of tables to summarize the results.
All in all, most OECD countries have adopted hybrid systems which combine both some form of priority for both pension and wage claims, as well as some form of guarantee fund to complement the insolvency system. It is especially important to have these guarantee funds in place because insolvency processes can last for years, while the guarantee schemes are more likely to pay employees their claims within weeks or months. Unfortunately, the United States provides only limited priorities in most bankruptcy proceedings (and no such wage or pension priorities in Chapter 9 municipal proceedings), a guarantee system under the Pension Benefit Guaranty Corporation (PBGC) that is limited to pension plans, and then only to private-sector defined benefit pension plans. Neither private-sector defined contribution plans nor public sector pension plans come under a guarantee scheme in the United States.
One possible approach to employee claims in both municipal and corporate bankruptcies would be to pass pension and bankruptcy reform laws similar to what Canada enacted in 2008 as part of its Wage Earner Protection Program Act (WEPPA). Unlike the American system, WEPPA provides limited absolute priorities for pension contributions and a broad array of wage claims in insolvency, as well as a robust wage guarantee scheme. As to the policy reasons supporting this approach, it appears that greater emphasis is placed on the need to protect the weakness of employees creditors in the insolvency process as opposed to focusing on the need to ensure the existence of cheap, accessible credit for companies and governments.
This article concludes that given the relative vulnerability of employees and the sophistication of most lenders, the United States should balance these interests to provide increased protection for employment claims during municipal and corporate insolvency proceedings through giving heightened priority treatment to employees pension and wage claims in bankruptcy in tandem with a federally-operated guarantee scheme for both pension and wages claims.
An important and timely topic, especially as the public pension crisis looms large in this country.
Thursday, November 7, 2013
Michele Tiraboschi, ADAPT Scientific Coordinator at the University of Bergamo in Italy, writes to inform us that the call for applications for the International Doctoral School in Human Capital Formation and Labour Relations promoted by ADAPT and the University of Bergamo has been published.
40 positions are available, 22 of them will be funded through a scholarship and 4 through advanced-level apprenticeship contracts. The deadline to send applications is 18 November 2013 at 12.00 a.m.
This year, they are providing the opportunity to enter an Industrial PhD in Labour Productivity and Workplace Change, in order to strengthen the cooperation between employers and professionals within the productive system. In addition, by way of special agreements, a number of positions will be available to workers employed in highly qualified jobs at their own companies, provided that they pass the selection procedures and are admitted to the PhD Programme.
Employers who are interested in supporting the School or hosting interns, as well as prospective candidates, can send an email to email@example.com for further enquiries.PS
Wednesday, November 6, 2013
Malcolm Sargeant and Michele Tiraboschi of ADAPT in Italy have sent the latest issue of the E-Journal of International and Comparative Labour Studies, which is concerned with whistleblowing.
Malcolm and Michele would like to thank David Lewis and Wim Vandekerckhove who guest edited this edition, and the other authors for their excellent contribution.PS
Congratulations to Neville Harris (Univ. of Manchester School of Law (UK)) on the publication of his new book: Law in a Complex State: Complexity in the Law and Structure of Welfare.
From the publisher:
Approximately half of the total UK population are in receipt of one or more welfare benefits, giving rise to the largest single area of government expenditure. The law and structures of social security are highly complex, made more so by constant adjustments as government pursues its often conflicting economic, political and social policy objectives. This complexity is highly problematic. It contributes to errors in decision-making and to increased administrative costs and is seen as disempowering for citizens, thereby weakening enjoyment of a key social right.
Current and previous administrations have committed to simplifying the benefits system. It is a specific objective of the Welfare Reform Act 2012, which provides for the introduction of Universal Credit in place of diverse benefits. However, it is unclear whether the reformed system will be either less complex legally or more accessible for citizens.
This book seeks to explain how and why complexity in the modern welfare system has grown; to identify the different ways in which legal and associated administrative arrangements are classifiable as 'complex'; to discuss the effects of complexity on the system's administration and its wider implications for rights and the citizen-state relationship; and to consider the role that law can play in the simplification of schemes of welfare. While primarily focused on the UK welfare system it also provides analysis of relevant policies and experience in various other states.
This book represents the culmination of Neville's project on 'complexity' in welfare systems throughout Europe. Although the book focuses on the United Kingdom and some other non-US countries, the lessons to be learned are valuable ones as we consider going forward how to improve the complex social insurance system that we have here in the United States.
Tuesday, October 29, 2013
- Mark Anner, Jennifer Bair, & Jeremy Blasi, Toward Joing Liability in Global Supply Chains: Addressing the Root Causes of Labor Violations in International Subcontracting Networks, p. 1.
- Richard Croucher, Kyoung Eun Joung, & Lilian Miles, Evaluating South Korean Legal Channeels for Individual Employment Disputes Through Budd and Colvin's Framework, p. 45.
- Martin Dumas, Three Misunderstandings about Consumocratic Labor Law, p. 67.
- Loic Lerouge & L. Camille Hebert, The Law of Workplace Harassment of the United States, France, and the European Union: Comparative Analysis After the Adoption of France's New Sexual Harassment Law, p. 93.
- Virginia Doellgast, Disintegrating Democracy at Work: Labor Unions and the Future of Good Jobs in the Service Economy, reviewed by Sabine Blaschke, p. 123.
- Richard M. Locke, The Promise and Limits of Private Power: Promoting Labor Standards in the Global Economy, reviewed by Lance Compa, p. 129.
- Susan L. Kang, Human Rights and Labor Solidarity: Trade Unions in the Global Economy, reviewed by Jeffrey Hilgert, p. 135.
- Melanie Simms, Jane Holgate, & Edmund Heery, Union Voices: Tactics and Tensions in UK Organizing, reviewed by Peter Ikeler, p. 141.
- Rina Agarwala, Informal Labor, Formal Politics, and Dignified Discontent in India, reviewed by Jenny Jungehulsing, p. 145.
- Kathleen C. Schwartzman, The Chicken Trail: Following Workers, Migrants, and Corporations Across the Americas, reviewed by Bryant Simon, p. 151.
- Katherine V.W. Stone & Harry Arthurs (eds.), Rethinking Workplace Regulation: Beyond the Standard Contract of Employment, reviewed by Leah F. Vosko, p. 153.
Thursday, October 10, 2013
From our friends at ADAPT in Bergamo, Italy:
Internship and Traineeship for Students and Young People: Training, School-to-Work Transition or Exploitation? (Bergamo, 25-26 October 2013)
Dear Colleagues and Readers,
Is it fair to work for free in order to learn a trade after years in education and many sacrifices? What is the role of the internship in the programmes of our schools and universities? Which are the rules that apply following the guidelines laid down in the Monti-Fornero Labour Market Reform? Is there clear and uniform legislation regulating the internship in Italy, at least for companies operating overseas? Is there a mapping system on regional regulations? How is the abuse of the internship dealt with in the other countries, particularly considering its relevance in terms of school-to-work transition?
These and other aspects concerning the proper – and often problematic – recourse to internships will be discussed at the 4th International Conference on Young People and Employment, which will take place in Bergamo on 25 and 26 October 2013. You are all welcome to join us.
The conference will have a very practical approach, especially in the Italian language session of the 25th, where a preliminary assessment of the guidelines contained in the Monti-Fornero Reform will be provided, along with some instances of good practices carried out at a company level (e.g. IKEA, BOSCH, ENEL and SCF) and the position taken by the trade unions.
The afternoon session of the 25th and the morning session of the 26th will be devoted to a more international and comparative approach, which will consider the legal, economic, sociological and industrial relations dimension.
A digital book available for free will be presented during the conference containing a detailed overview of regional regulations on internships, along with a position paper drafted by the students of the International Doctoral School promoted by ADAPT and CQIA. The latter will be submitted to the EU officials who will also attend the event, in order to be considered for the setting-up of a Quality and Regulatory Framework for Traineeships.
The questions at hand on the proper implementation of internships and traineeships are complex and go well beyond hard and fast principles and straight answers. At the end of the conference, we will thus attempt to cope with such complexity by holding a debate among our Doctoral students on competing arguments (e.g. Is it fair to pay an intern? Would that be a mistake in the long-term?), with our international guests who will act as “arbitrators”.
Attendance is free. Please fill in the online form here: http://www.bollettinoadapt.it/site/survey.jsp?node=1358&instance=1&channel=25&idSurvey=35&voteable=true
Given the relevance of the topics discussed, I hope to have your full participation and to share your point of view at the different sessions of the conference.
Thursday, September 26, 2013
David Doorey (York Univ. (Canada)) and Wilma Leibman (former NLRB Chair, visiting at Cornell LER) completed a short survey of their Canadian and American undergrad business students taking employment law this term. The survey asked for their views on such things as minimum wages, unions, and income inequality. David concedes the results are unscientific, but interesting nonetheless.
What I find most interesting about the results personally is that although both Canadian and American students support minimum wage increases, the Canadian students were much more in support of unions and collective bargaining rights than their American counterparts.
Check out the entire survey for all the results.
Monday, September 23, 2013
Friend of the blog, Michael Lynk (Western Ontario) sends news about the 8th Koskie Minsky University Lecture on Labour Law (Ocotber 25th) and the 8th Heenan Blaikie University Labour Law Conference on Saturday (October 26th), both of which will be held at Western Law School in London, Ontario on October 25-26, 2013. The theme of this year's conference is Rights at Work. Here is the link to the conference website.
And here is the conference blurb:
“We hired workers, and human beings came instead.” — Max Frisch
Rights at work are among our most important and our most unacknowledged liberties in Canadian society. Important because work shapes our identity and occupies much of our waking hours. Unacknowledged because our workplace rights are seldom part of a larger public policy conversation. Yet advances in the workplace on such grounds as freedom of association, disability, gender, religion, race, sexual orientation, family status, contractual and statutory issues and international law have contributed greatly to the larger rights culture that Canada has embraced since we adopted the Charter of Rights and Freedoms in 1982.
The Lecture and Conference will explore the meaning and the sources of our rights at work, examine how these rights have grown and matured over the past 30 years, and assess how they interact with our rights in the broader society. Some of Canada’s most eminent judges, legal scholars and lawyers will share their insights and research. The discussions and debates from this event will contribute to the ongoing work of employers, unions, scholars, lawyers and industrial relations practitioners to define the ever-evolving nature of our rights and liberties at work. This event will be one of the most important dates on the national labour law and industrial relations calendar.
The 8th Koskie Minsky University Lecture on Labour Law will be delivered on the Friday evening (October 25th), to be given by Mr. Justice Thomas Cromwell of the Supreme Court of Canada. Before being appointed to the bench, Mr. Justice Cromwell was an academic and a labour arbitrator, making him one of three justices on the current SCC who have a labour law background.
The 8th Heenan Blaikie University Labour Law Conference on Saturday (October 26th) will host four panels of scholars and practitioners who will explore a range of issues relating to Rights at Work, including sources of rights, constitutional sources and human rights sources. Among the scholars who will be speaking are: Judy Fudge (University of Victoria), Keith Ewing (Ling’s College, London, UK), Nathalie des Rosiers (Dean, University of Ottawa) and Brian Etherington (University of Windsor).
The conference organizer would welcome labour law scholars from the US to attend. Registration forms can be found on the website.
So if you happen to be in Canada or have an interest in Canadian labor and employment law, this is a definite can't miss experience.
Monday, September 9, 2013
Thanks to Ron Turner (Houston) for bringing to my attention this article from The New York Times last week: VW and Auto Workers Explore Union at Tennessee Plan.
Apparently, Volkswagen is in the process of negotiating with the United Automobile Workers (UAW) at VW's Chattanooga, Tennessee plant on how to unionize the plant and create a German-style works council there.
A tidbit from the article:
The company would be the first German automaker to have such a council at a United States plant. A works council is a group of employees, including both white- and blue-collar workers, that meets with management on issues like working conditions and productivity.
But to avoid violating American labor laws, the plant would first have to be formally unionized, the company said . . . .
None of the foreign carmakers with auto plants in the South are currently unionized.
The part of the labor law that would be violated would be Section 8(a)(2) of the NLRA which does not tolerate employer domination or assistance of labor organizations. This provision makes employer-employee cooperation difficult in the union setting sometimes. This is not an issue in Germany and other countries where employer-employee cooperation inside and outside the union environment is much more common.
Needless to say, it will be interesting to see if this arrangement actually comes to fruition and whether it might provide a model for other manufacturing plans, auto and otherwise, for running a productive workplace with sizable employee input. Also good to see an open-minded employer not mindlessly fighting unionization at all cost and instead recognizing "them as a useful source of ideas from the shop floor and a vehicle to build consensus and employee morale."
Wednesday, August 28, 2013
Friend of the blog, Michael Connolly (University of Surrey (UK)), having reading Charlie's post from this past Monday on Battaglia v. UPS on "victimless harassment," brings to our attention a similar case from England.
Here's Michael's summary of that case:
Reading the note on Battaglia v. UPS reminded me of a case held here in England some years’ ago. The issue in English v Sanderson  EWCA 1421 was whether someone could be liable for harassment ‘on the grounds of’ sexual orientation, under the UK’s Regulations outlawing harassment and discrimination on grounds of sexual orientation, when the treatment was unrelated to any particular person’s sexual orientation.
In this case, Mr. English was harassed by colleagues using sexual innuendo suggesting he was homosexual. This conduct was rooted, apparently, in two things: he lived in Brighton (a well known centre of the gay scene) and had attended boarding school. What made this case unusual is that Mr. English was heterosexual, and his tormentors neither assumed nor perceived Mr. English to be gay. Mr. English was aware throughout that his tormentors never mistook him for being homosexual. The Court of Appeal, by a 2-1 majority, found that the mockery amounted to unlawful harassment on the grounds of sexual orientation.
Quite clearly, the phrase ‘on the ground of sexual orientation’ lends itself to cover the scenario where the harassment was unrelated to any person’s sexual orientation. As Sedley LJ observed, the distance between perceived harassment (unlawful) and harassing a man as if he were gay when he is not ‘is barely perceptible’ (). However, policy considerations were prevalent in the speeches. The underlying policy consideration here is to protect homosexual (or bisexual) workers from being ‘outed’ by a systematic campaign of abuse. In such a pernicious scenario, the worker would have to suffer the abuse in silence unless or until he ‘came out’. As such, this decision helps preserve the dignity of workers that discrimination law is supposed to enshrine.
Very interesting indeed, Michael, in light of Battaglia case (and because this case concerns a Mr. English from England!). Thanks for brining a comparative gloss to this timely topic!
Monday, August 19, 2013
Matthew Dimick (Buffalo) has posted on SSRN his new piece entited: Productive Unionism.
Here is the abstract:
Do labor unions have a future? This Article considers the role and importance of labor union structures, in particular to the degree of centralization in collective bargaining, to the future of labor unions. Centralization refers primarily to the level at which collective bargaining takes place: whether at the plant, firm, industry, or national level. The Article examines the historical origins of different structures of bargaining in the United States and Europe, the important implications that centralization has for economic productivity, and the ways that various labor law rules reinforce or reflect different bargaining structures. Most critically, the Article contends that greater centralization of collective bargaining entails a broader, more "universal" representation of worker interests, has a stronger impact on unions' ability to lower income inequality, and, through its positive effects on economic productivity, reduces employer opposition to unionization in the long run. Although centralized bargaining is a medium- to long-term goal, the Article proposes ways that unions can change their own organizational structures, bargaining objectives, and organizing tactics to position themselves for future changes in bargaining structure and to avoid the pitfalls of the decentralized bargaining structures of the past.
Matt wanted to make sure that I mentioned that this a working paper version and that all comments are very much welcome.
Friday, July 12, 2013
At my request, Roy Adams (Ariel F. Sallows Chair of Human Rights (Emeritus), U. of Saskatchewan; Professor of Industrial Relations (Emeritus), McMaster University) has provided an update on the legal status of the right to strike in Canada. This has been a hot area in Canadian labor law and a recent decision by the Saskatchewan Appellate Court has only added flames to that fire. You can read Roy's entire commentary here.
Here is a taste of the piece:
After many years in power Saskatchewan’s moderately leftist New Democratic Party was defeated by the conservative “Saskatchewan Party” in 2007. The new government immediately introduced labor law changes one of which put considerable constraints on the right of public sector workers to strike.
Organized labor immediately went to court, claiming that the legislation offended the Freedom of Association clause in Canada’s Charter of Rights and Freedoms. At the first level (Court of the Queen’s Bench) the judge (Ball) agreed and ordered the government to revise the law (see Saskatchewan v. Saskatchewan Federation of Labour 2012 SKOB 62). Instead, the government appealed and, very recently, Ball’s ruling was reversed (see Saskatchewan v. Saskatchewan Federation of Labour 2013 SKCA 43).
Whereas most Canadian governments, even those controlled by conservative parties, are more cautious than governments in the USA about attacking organized labor, the urge to weaken unions and especially public sector unions – is on the rise. (Private sector unions are already weaker than they have been in decades). But in the Canadian environment there is a counter force to be contended with – international labor law which has grown in importance over the past half-dozen years primarily as a result of the Supreme Court finding it to be a persuasive source in interpreting the Charter’s Freedom of Association Clause (see Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27; aka BC Health Services).
Read the whole piece when you get the chance. It does a great job explicating the current status of the right to strike in Canada. I remarked to Roy that although Canadian labor proponents may feel that things have been rough for them in recent years, their American colleagues would feel lucky to even have freedom of association in the labor context or the freedom to strike given any form of constitutional consideration. Ditto any legal recognition by US Courts of (gasp!) international labor standards!