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!
Monday, July 1, 2013
Volume 2, No. 2 May-June 2013 contains the following:
Antonio Ojeda Avilés, The Primacy of Company level Agreements in Spain. An Unusual Approach for Continental Europe
Mirella Baglioni, The European Social Model: Revitalizing the Debate about its Prospects
James L. Tierney and Christina Cregan, A Blueprint for Union Revival? Strategy and Structure in a Successful Organising
Ismail Idowu Salih, Domestic Work in the UK: A Raw Deal for Migrants
Katherine Bischoping and Elizabeth Quinlan, Health and Safety Issues in Precarious Cultural Work
Emmanuel Unimke Ingwu and Joseph Idagu Ogah, The Impact of Wage Reform Policies on Industrial Relations in Nigeria’s State Universities: A Case for Multi-Employer Bargaining
Éric L'Italien,Workplace Dress Code and Fundamental Rights
Donella Caspersz, Ethnic Diversity in European Labor Markets: Challenges and Solutions ,by Martin Kahanec and Klaus F. Zimmermann. A Review
John Martin, Labour Markets at a Crossroads: Causes of Change, Challenges and Need to Reform, by Henrik Lindberg and Nils Karlson. A Review
Lance Compa (Cornell ILR) has brought ot our attention a new paper from the International Trade Union Confederation (ITUC) and the global unions UNI and IndustriALL countering employers' claims that a 2010 decision by the ILO Committee on Freedom of Association endorsed American management-style anti-union campaigns around the world. It is entitled: Freedom of Speech and Freedom of Association: Finding a Balance (June 2013).
The case involved a Delta Airlines campaign against flight attendants' organizing. Lance worked on this along with Jeff Vogt of ITUC and Christy Hoffman of UNI, advised by Fred Feinstein of U. Maryland and Keith Ewing of Kings College London.
The International Organization of Employers, the Littler Mendelson law firm, and T-Mobile have been promoting the idea that the CFA's comments on employers' freedom of expression make NLRA Section 8(c) as interpreted by American courts the new international standard for employers' anti-union campaigns. The ITUC paper argues that the CFA decision did no such thing. On the contrary, the CFA reinforced the long-established standard of non-interference in workers' organizing efforts: that freedom of expression cannot be abused in ways that interfere with freedom of association.
This issue will continue to be sharply debated both in the ILO context and in union organizing campaign efforts that invoke international standards on freedom of association. All comments and thoughts are welcome.
Tuesday, June 25, 2013
Call for Papers for the Twelfth International Conference in Commemoration of Marco Biagi and Young Scholars' Workshop
Here is the Call for Papers for the Twelfth International Conference in Commemoration of Marco Biagi, which will be held in Modena, Italy at the Marco Biagi Foundation of the University of Modena and Reggio Emilia, on Tuesday, March 18 – Wednesday, March 19, 2014. The theme of the conference is “Employment and Social Rights: An Evolving Scenario.” More information about the conference is contained within the call.
Additionally, Susan tells us about a Call for Papers for the Third Young Scholars' Workshop in Labour Relations, which will be held at the Marco Biagi Foundation on Monday, March 17, 2014, the day before the conference begins. This programming is designed for PhD candidates and post-doctoral researchers. Those selected will present a paper for discussion at the workshop. Those not selected may nonetheless be invited for a poster session, which will be held during the conference.
Questions should be directed to Susan's good friend and colleague Professor Iacopo Senatori: email@example.com. Iacopo is handling the organizational aspects of the conference and the Young Scholars’ Workshop.
Wednesday, June 12, 2013
Lots of news and cases these days around the world about the plight of unpaid interns. Our friends at ADAPT send us word that they will be holding a forum on the issues surrounding this important labor and employment law topic. The name of the forum is: Internships and Traineeships: Occupational Transition or Exploitation? Here is a description:
We are pleased to inform you that the Association for International and Comparative Labour Studies (ADAPT) has launched a new discussion forum on the contentious issues of internships and traineeships. In our opinion, debating this matter from an international and comparative perspective is the best way to reflect upon the central questions related to labour market regulation: What is the meaning and value of labour and which is its proper legal definition? In reference to internships and training, are we talking about work or a simple learning experience? Which is the legal definition and, consequently, the most effective way to regulate internship? According to the different definitions and purposes, shoul d internships be paid or unpaid? How to evaluate and certificate the competence gained after a period of an internship? Who monitors and controls the regularity and the quality of internships? Should internships be limited to school alternation or school-to-work transition only? Is it possible to utilize people’s work without a formal contract?
We do not have pre-determined answers to all these questions, yet we strongly believe that today’s improper use of internships will have serious consequences not only on young people but also on the future of our economies and on the development of a sound society. This is why we want to open this forum and ask your contribution and suggestions, in order to provide the right answers to such a complex issue. We are aware that an international and multi-disciplinary approach could help us to devise a theoretical framework and some practical solutions in order to avoid that such an important lever in terms of school-to-work transition degenerates into forms of exploitation of young people.
This is an open access 2.0 forum. A simple registration is required.
The solutions provided in this forum will be discussed during the upcoming international conference, Internship and Traineeship for Students and Young People, Training, School-to-Work Transition or Exploitation?, organised by our International PhD School on Human Capital Formation and Labour Relations on October 25-26, 2013 in Bergamo.
You are welcome to join us in this forum and attend the conference, also by submitting a contribution in response to our call for papers.
For further information, make contact with our staff at firstname.lastname@example.org
Thursday, May 30, 2013
Ariana R. Levinson (University of Louisville - Louis D. Brandeis School of Law) has recently posted on SSRN her forthcoming article in the Spanish Labour Law and Employment Relations Journal (SLLERJ), Vol. 2, NO. 1 (2013): Social Media, Privacy, and the Employment Relationship: The American Experience.
Here is the abstract:
This article posits that privacy issues arising in the United States from the use of social media and the employment relationship are similar to those that have arisen around the world. It suggests, however, that the patchwork of governing legal claims arising under different laws in different jurisdictions may be unique. After a brief introduction, the second section describes the recent passage of legislation in several states that may protect the privacy of job applicants’ passwords to social media sites. The third section describes the various claims employees may bring under the federal Electronic Communications Privacy Act, in tort for invasion of privacy, pursuant to the Fourth Amendment, or to enforce just cause provisions in collective bargaining agreements. The fourth section describes protection from overbroad discovery of social media when employers and former employees are involved in litigation. The article concludes by assessing the likelihood of further legal reform.
This is a very timely article given all the recent developments surrounding privacy law and social media in the last months and years. Indeed, just yesterday, Wisconsin introduced its own social media privacy legislation. As someone who is working on an empirical project on workplace privacy expectation in light of technological advances, I am very much looking forward to reading Ariana's insights on this topic.
Wednesday, May 29, 2013
Our friends at ADAPT, Chris Leggett and Michele Tiraboschi, bring word of the latest version of the ADAPT International Bulletin, including two comments.
The first note, which is from Gabriele Gamberini (PhD Candidate in Human Capital Formation and Labour relations and Visiting Researcher at Middlesex University, London) gives insights on whistleblowing in countries without whistleblower laws. Using a Game theory and taking the Italian case into a point, the article demonstrates the importance of creating internal channels for whistleblowing in countries with no whistleblower laws.
The second note that comes from Paul Jonker-Hoffrén (Post-doctoral Researcher, Turku Center for Labour Studies, Turku University) deals with the origin of the Youth Guarantee and explains briefly the goals, actors, and the pros and cons of the Finnish Youth Guarantee system.
This issue also includes the January edition of the E-Journal of International and Comparative Labour Studies.
For further information, you can contact the ADAPT staff at email@example.comPS
Thursday, May 23, 2013
I'm writing to you to share the call for papers for a International Comparative Sciences Symposium in Sofia which is to be held in October this year. There are two sessions there which might be of interest to our colleagues:
- comparative law session;
- comparative labour studies session.
If you consider this event to be of possible interest to your colleagues working in the field of labour law (and possibly to your non-legal and/or non-labour-law colleagues as well), please feel free to share it with them. Please find below the third call for abstracts for this Symposium as forwarded to me by my Slovenian colleague and the link to the Symposium website.
The Symposium is a new initiative of the Bulgarian Comparative Education Society and our colleagues from the Society kindly asked me and other comparativists to share the information on this Symposium as widely as possible. We all know how difficult it may be sometimes to convene an international event for the first time at a national level. Therefore I believe it'd be a good idea to support this undertaking at least by spreading the information about it.
Here is the call for paper and conference website and registration information:
This is our Third Call for abstracts, full papers and roundtables to be submitted to the International Symposium on Comparative Sciences that will be organized by the Bulgarian Comparative Education Society and held in Sofia, Bulgaria, 8 - 11 October 2013. Please be informed that the abstract submission deadline is extended by 31 May.
This will be a forum where different comparative sciences can meet and discuss problems of common interest. Scholars from the following sciences are invited: Comparative Education, Comparative Psychology, Comparative Sociology, Comparative Religion, Comparative Linguistics, Comparative Literature, Comparative Civilization Studies, Comparative Mythology, Comparative Anthropology, Comparative Law, Comparative History, Comparative Labour Studies.
Hope you will find this Symposium productive and interesting. For more information please visit the Symposium website.
Thursday, May 16, 2013
ADAPT International Conference: Internship and Traineeship for Students and Young people. Training, School-to-work Transition or Exploitation?
We are pleased to announce that ADAPT and the International Doctoral School in Human Capital and Labour Relations are organizing the international conference: Internship and Traineeship for Students and Young people. Training, School-to-work Transition or Exploitation?, which is going to take place on 25-26 October 2013 at the University of Bergamo (Italy).
The conference is part of the ADAPT international events on Productivity, Investment in Human Capital and the Challenge of Youth Employment, which resulted in three volumes making up the ADAPT Labour Studies Book-Series edited by Cambridge Scholars Publishing and it aims at contributing to the current debate on youth unemployment and school-to-work transition.
Almost five years after the onset of the crisis, youth unemployment witnessed a further worsening. Besides persistent unemployment, the quality of youth employment is also challenged by the increase in non-standard, temporary, part-time and informal work. Tools to fill the youth productivity gap and ease school-to-work transition do exist, but sometimes they are misleadingly used and implemented. This is the case of traineeships, also known as internships or stages, which are conceived and implemented differently cross-nationally.
ADAPT and the International Doctoral School in Human Capital and Labour Relations invite professors, researchers, doctoral students, experts, practitioners and all those interested in the conference topics to submit papers. Deadline for abstract submission is 1st July 2013. We particularly encourage graduate students to submit papers.
Tuesday, May 7, 2013
David Doorey is a labour law professor at York University in Toronto who many of you know. His popular blog on labour and employment law, Law of Work Blog, has had a professional makeover.
You should check it out as a great source of issues and events in Canadian law and policy. Last year it received the honour of Best Law Blog in Canada.
Defintely worth a look.
Thursday, April 18, 2013
Friend of the blog and comparative and international LEL expert, Susan Bisom-Rapp (Thomas Jefferson) has kindly provided the following guest post. It is an excellent analysis of this week's Supreme Court decision in Kiobel v. Royal Dutch Peltroleum. In it, she explains the labor and employment law ramifications of this important decision:
The Irony of the Supreme Court’s Decision in Kiobel v. Royal Dutch Petroleum
Susan Bisom-Rapp (Thomas Jefferson School of Law)
Although not a case involving workers’ rights, the April 17th decision in Kiobel v. Royal Dutch Petroleum was long-awaited by those interested in whether transnational corporations (TNCs) can be sued in U.S. courts under the Alien Tort Statute (ATS) for human rights violations perpetrated against foreign workers laboring abroad. Rather than answer the question initially directed to the Court – Does the ATS confer jurisdiction over corporations? – the Supreme Court addressed a different question: Whether and under what circumstances may U.S. courts recognize an ATS cause of action for violations occurring within another sovereign territory? In a fractured and somewhat muddy decision, the Court limited ATS cases, at least where the defendants are foreign corporations, the wrongdoing occurs outside the U.S., and the claims do not touch or concern the territory of the United States. Even so, the Court left open enough questions that on the day the decision issued, workers’ rights advocates confidently opined that there is still a subset of viable ATS cases that may be brought against TNCs.
Kiobel was brought by Nigerian nationals against Dutch, British, and Nigerian corporations, which the plaintiffs argued aided and abetted the Nigerian government in committing human rights abuses as the latter sought to suppress environmental protests related to corporate oil exploration. All nine justices agreed that the case should be dismissed but the four justices of the Court’s liberal wing (Justices Breyer, Ginsburg, Sotomayor, and Kagan) disagreed with the reasoning of the majority (Justices Roberts, Scalia, Kennedy, Thomas, and Alito). A liberal wing concurrence was consequently written. Complicating matters, Justices Kennedy and Alito each filed a separate concurrence, and Justice Thomas joined Justice Alito’s concurrence.
No matter how you slice it, the Supreme Court’s decision in Kiobel is a win for TNCs. The Kiobel case will not proceed, and the Court announced new limitations on ATS claims. Ironically, however, and despite the limitations imposed by the Kiobel majority, it is the majority opinion, written by Chief Justice Roberts, which leaves the courthouse door open a bit and will likely be used by workers’ rights advocates in subsequent litigation. Before explaining why, some background on ATS claims on behalf of workers is necessary.
The ATS, legislation enacted in 1789 and signed into law by George Washington, confers federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” It was not until 1996, however, that suit was brought against a corporate defendant. That case involved the oil company Unocal, which was sued for allegedly aiding and abetting abuses by the Myanmar military, including the use of forced labor, committed in connection with the construction of a natural gas pipeline. Although that case settled, subsequent ATS cases brought on behalf of workers include suits against: Bridgestone-Firestone on behalf of children and adults who work on Firestone’s rubber plantation in Liberia; Chiquita by the families of pro-union workers murdered by Colombian paramilitaries; Coca-Cola for the murder and torture of Colombian union leaders; Nestle, Archer Daniels Midland, and Cargill relating to the trafficking of Malian children into Cote d’Ivoire for work on cocoa plantations; and mining company Drummond, regarding its subsidiary’s alleged involvement with the torture and murder of Colombian trade union leaders.
In 2007, that last case, Romero v. Drummond Co., Inc., became the first ATS case against a corporation to reach trial. Although the jury ruled against the plaintiffs, many TNCs and their advocates viewed the case as making real what had until then been a theoretical threat of corporate ATS liability. The status of corporate ATS liability, however, is contested. There is a split in the circuits that the Supreme Court had a chance to resolve in Kiobel. Rather than do that directly, the Court addressed a different issue – the extra-territorial reach of the ATS in suits brought against any person, natural or juridical.
For the Kiobel majority, this is a simple case resolved by the presumption against extraterritorial application of a statute. That well-known presumption provides that where Congress has not plainly expressed its intent that legislation apply beyond U.S. borders, the statute does not apply extraterritorially. Since the spare text of the ATS does not address the reach of the grant of federal jurisdiction for tort claims brought by aliens, the presumption, by barring claims such as those in Kiobel, precludes U.S. courts from creating conflicts with other nations and interfering with foreign policy. That the tort claims mentioned in the ATS are those “committed in violation of the law of nations” does not, argued the majority, imply reach beyond our borders since violations of international law norms can occur on U.S. soil. Indeed, two embarrassing incidents involving foreign ambassadors to the U.S. occurred just prior to passage of the ATS. At the time, U.S. officials were concerned there might not be a sufficient forum for hearing those claims.
As for what it would take to displace the presumption, Chief Justice Roberts notes that all ATS claims must “touch and concern” U.S. territory with “sufficient force.” Somewhat tantalizing, he opines that “[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” Picking up on all that the majority opinion leaves unanswered, Justice Kennedy’s one paragraph concurrence notes that “the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the [ATS].”
Rather than embrace the presumption against extraterritorial application, the liberal wing’s concurrence is driven by the principles of foreign relations law from which it draws international jurisdictional norms to determine when it is appropriate to apply U.S. law outside of U.S. territory. To that end, Justice Breyer, who wrote the concurrence, relies on the Restatement (Third) of Foreign Relations Law. The liberal concurrence argues that the statute provides federal district courts with jurisdiction not only when the torts occur in the U.S. but also when “the defendant is an American national” or “the defendant’s conduct substantially and adversely affects an important American national interest.”
While providing some useful language for workers’ rights advocates, there are two reasons I believe the liberal concurrence may be less helpful to them than the majority opinion coupled with Justice Kennedy’s concurrence. First, there may be a tendency among American judges to shy away from foreign relations law and the Restatement Third when they might easily make use of a presumption rooted in domestic law, and, I might add, that presumption is embedded in a majority opinion. Strategically, it may make sense for workers’ rights advocates to craft arguments using language that is familiar to American judges.
Second, Justice Breyer's example of “an important American national interest” does not track the fact patterns of the ATS corporate cases very well. His example is ensuring our country does not become a safe harbor for modern day pirates – those who commit heinous violations of international norms elsewhere and then seek safety on our shores. In the corporate ATS cases, the actual commission of human rights violations is rarely performed by the TNC in question. Gross human rights abuses in those cases usually have a direct connection to a foreign government. The corporate liability, if it were to lie, is vicarious. In short, the ill-fit of Justice Breyer’s example may limit the utility of the liberal concurrence leading to the irony that the more conservative majority opinion may ultimately be of greater use to workers’ rights advocates. The Kiobel decision was a disappointment for workers’ rights advocates but it was not as bad a decision as it could have been. The battle over corporate ATS liability continues, at least for now.
Monday, April 8, 2013
Brown on Comparative Alternative Dispute Resolution for Individual Labor Disputes in Japan, China and the United States: Lessons from Asia?
Ron Brown (Hawaii) has recently published in the St. John's Law Review (86 St. John's L. Rev. 843) his new article: Comparative Alternative Dispute Resolution for Individual Labor Disputes in Japan, China and the United States: Lessons from Asia?
Here is the abstract:
Resolving individual labor rights disputes in East Asia and the United States in recent years has taken on new significance and prominence for both domestic and multinational corporations. New legal approaches have been put into place in Japan, China, and the United States that deal with individual rights under either individual and/or collective contract or statutory labor disputes. The United States Supreme Court has approved the use of private arbitration under individual and collective contracts to resolve both contractual and statutory labor disputes. How these approaches compare may provide thought of reform for the U.S., no matter how unlikely.
This area of the law is, needless to say, developing at lightening speed. Having myself learned about how arbitration works in Japan during my travels there, I know that Ron's piece will shed much needed light on how other parts of the world rely on ADR to resolve their legal disputes.
Friday, April 5, 2013
Matthew Finkin et al. have just published Multinational Human Resource Management And The Law: Common Workplace Problems in Different Legal Environments (Edward Elgar 2013). Here's the publisher's description:
Multinational firms have to navigate employment laws in an array of countries, while individual nations have to deal with multinational firms. The educational challenge for managers, lawyers, and policy makers is taken up in this textbook by legal experts from Australia, Brazil, Germany, Japan and the United States, with each expert addressing the twenty commonly confronted human resource problems in detail. The book includes primary sources, comments, and discussion questions, providing both legal insight and an appreciation for the role of cultural assumptions in law.