Workplace Prof Blog

Doorey on The [Canadian] Charter and the Law of Work: A Beginner's Guide

David Doorey (York Univ. (Canada)) has just posted on SSRN an updated version of his paper entitled: The Charter and the Law of Work: A Beginner's Guide.

Here's the abstract:

This essay explains how the Supreme Court of Canada has interpreted and applied the Canadian Charter of Rights and Freedoms to the law of work. It is intended as an introduction to this complex legal field for an audience unfamiliar with the Charter. Beginning with an overview of the Charter review process, the paper then examines the Court’s application to work law of Section 2(d) freedom of association, Section 2(b) freedom of expression, and Section 15 equality rights. The paper is an updated version describing the law as of summer 2012.

The paper provides a great introductory overview of the development and current state of Canadian Charter law relating to work and employment, including freedom of association, freedom of expression, and right to equality.  David wrote it for an audience of new law students or non-law students being introduced to the Charter in the law of work, but it might also be a useful tool for scholars from the U.S. and abroad who are interested in a quick snapshot look at recent developments under the Canadian Charter. 

As an honorary Canuck (based on my many visits and trips to Canada), I wholly endorse the idea of American labor and employment lawyers becoming more familiar with the ideas that animate Canadian workplace law!

PS

UK Employment Claims at UCHR

PJH Law reports that next week, the European Convention on Human Rights will hear four high profile Article 9 claims against the UK relating to the freedom of thought, conscience and religion:

The claims were all dismissed by the UK courts amidst much controversy.  As a quick reminder, they are (1) Lillian Ladele who lost her job as a registrar after her employer required her to register civil partnerships (she refused due to her Christian beliefs); (2) Nadia Eweida who was suspended by British Airways for wearing of a crucifix; (3) Shirley Chaplin who lost her job as a nurse after refusing to remove her crucifix when v necked tunics were introduced for staff and (4) Gary McFarlane who was dismissed as a relationship counsellor because his employer believed he would not provide counselling to same sex couples.

rb

ILO's Maritime Labor Convention Approved

From the ILO's press release:

The ILO has received the 30th ratification of the Maritime Labour Convention, fulfilling the last condition for the first global standard that spans continents and oceans to go into effect in a year’s time.
...
The MLC was adopted unanimously in 2006 but there were two requirements still to be met before it could come into force. The ratification by Russia and the Philippines fulfills the requirement that at least 30 ILO member countries ratify the Convention. The other requirement - that ratifying countries represent 33 percent of the world’s gross shipping tonnage - was met in 2009.

The 30 countries represent nearly 60 percent of the shipping tonnage. This means that seafarers working on more than 50 per cent of the world’s international shipping will be covered by the new Convention.

Under the MLC, every seafarer has the right to:

• A safe and secure workplace that complies with safety standards.
• Fair terms of employment.
• Decent working and living conditions on board ship.
• Health protection, medical care, welfare measures and other forms of social protection.

Unsurprisingly, the U.S. has not ratified the MLC.

rb

Doorey on A Model of Responsive Workplace Law

David Doorey (York Univ. (Canada)) has posted on SSRN his forthcoming piece in the Osgoode Hall Law Journal called "A Model of Responsive Workplace Law".  As David points out, this is the final (much revised) published version of a draft paper Mike Zimmer (Loyola-Chicago) reviewed previously on Jotwell.

Here is the abstract:

The North American workplace law model is broken, characterized by declining collective bargaining density, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether 'decentred' regulatory theory offers useful insights into the challenge of improving compliance with employment standards laws. It argues that the dominant political perspective today is no longer Pluralist or Neoclassical, but 'Managerialist.' Politicians with a Managerialist orientation reject the Pluralist idea that collective bargaining is always preferred, and the Neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers who mistreat their employees. The fact that Managerialists and Pluralists agree on this latter point creates a space for potential movement on workplace law reform. A law that encourages high road employment practices, while fast-tracking access to collective bargaining for low road employers could both encourage greater compliance with employment regulation, while also facilitate collective bargaining at high risk workplaces. This paper examines lessons from decentred regulatory scholarship for the design of a legal model designed to achieve these results. In particular, it develops and assesses a 'dual regulatory stream' model that restricts existing rights of employers to resist their employees' efforts to unionize once they have been found in violation of targeted employment regulation.

Although I count myself as one of the skeptics of the decentered/new governance approach to labor relations, I am a huge fan of David's work and encourage others to read in this piece his innovative ideas for getting Northern American labor law back on the right track.

PS

Call for Papers and Young Scholars Workshop for Eleventh International Conference in Commemoration of Marco Biagi

Professor Susan Bisom-Rapp (Thomas Jefferson) sends along two announcements from her colleagues at the Marco Biagi Foundation (University of Modena and Reggio Emelia).

The first is the call for papers for Eleventh International Conference in Commemoration of Marco Biagi, which will be held March 18-19, 2013. This year's theme is "The Transnational Dimension of Labour Relations: A New Order in the Making?"

The second is the call for papers for the Marco Biagi Foundation's Young Scholars Workshop, which will be held during the afternoon of March 19, 2013. Susan notes that the 2012 workshop, featuring 10 papers presented by doctoral and post-doctoral students from multiple countries, was an exciting and successful event. Questions about either event may be directed to Professor Iacopo Senatori at: iacopo.senatori@unimore.it

PS

Jeff Hirsch (North Carolina) has just posted on SSRN A Comparative Perspective on Unjust Dismissal Laws.  This is a chapter in Sam Estreicher's Global Labor and Employment Law: Reports from Law Offices Worldwide (2012).  Here's the abstract:

This book chapter is based on a larger project with Samuel Estreicher in which we examine in detail the unjust dismissals regimes of numerous countries. The study of these laws goes beyond the text of the relevant statues and cases, as it uses input from foreign employment law practioners and available data — particularly claimants’ success rates and average remedies — in an attempt to observe how the laws actually operate in practice.

The conclusion drawn from this study challenges the common “American exceptionalism” premise that argues that adopting a just cause rule would place the U.S. in the same company as the rest of the world. It is true that most countries provide employees with more protection against unjust dismissals than the U.S. But even on paper, the protections in many of the surveyed countries are often weaker than the typical American view of just cause protection assumes. Moreover, the actual practice in these countries frequently reveals even less protection, particularly when remedies are taken into account. These considerations make American dismissal law, although certainly weaker, appear less than exceptional.

In addition, the variances in unjust dismissal regimes suggest that many economic studies of employment protection fail to account for the full range of differences that exist among countries. For instance, a study on the effect of employment regulation on a country’s or firms’ economic performance should not rely solely on the laws as they are written because similar looking laws may have substantially different effects due to their available remedies or other operational disparities. Thus, studies should do more to account for these differences or, where appropriate data are unavailable, at least acknowledge that limitation.

rb

2012 Marco Biagi Award

Steve Willborn (Nebraska) writes to announce:

The winners of the 2012 Marco Biagi Award are Ledesma Iturbide and Diego Marcelo for their paper, Una propuesta para la reformulación de la conceptualización tradicional de la relación de trabajo a partir del relevamiento de su especificidad jurídica. This paper is a sophisticated and insightful discussion of legal conceptions of the employment relationship.  It explores emerging problems with current conceptions as employment relationships become more complex in the global environment and suggests a new approach to the issue.

Another paper was selected by the judges for special commendation: Towards an Effective Definition of Forced Labor by Apoorva Sharma. This paper describes new and emerging forms of forced labor; analyzes their treatment under international and domestic (India) definitions of forced labor; and proposes a new definition. 

The International Association of Labor Law Journals sponsors the Marco Biagi Award in honor of one of the founders of the Association: Marco Biagi, a distinguished labor lawyer and a victim of terrorism because of his commitment to social justice. A list of the member journals of the International Association can be found at http://www.labourlawjournals.com.

This year’s winners were chosen by an academic jury composed of Sandrine Laviolette (France), Jesús Cruz Villalón (Spain), and Steven L. Willborn (United States). The winners were chosen from fifteen papers submitted for the competition.

rb

Protests in Spain

I'm teaching International and Comparative Employment Law this summer in Madrid. It's a great time to be here in part because of events surrounding the Eurozone crisis and the economic debates about how to pull out of it. In connection with the European summit talks in Brussels that just ended, there were a couple of protests in Madrid today. One protesting the changes to labor rights that will make it easier to terminate employees and the other protesting austerity measures cutting education. It's hard to see from my bad pictures, but the protests were really large, and well organized, and there was significant enthusiasm from the crowds, too. These workers take labor rights very seriously.

MM

Recently Published Scholarship: Comparative Labor Law & Policy J.

Comparative Labor Law & Policy Journal

Vol. 33, #3 (2012)

• Alan Bogg and Tonia Novitz, Investigating "Voice" at Work, p. 323.
• Eric Tucker, Labor's Many Constitutions (and Capital's Too), p. 355.
• Alan Bogg and Keith Ewing,  A (Muted) Voice at Work? Collective Bargaining in the Supreme Court of Canada, p. 379.
• Stuart White, Liberal Neutrality and Trade Unions, p. 417
• Simon Deakin and Artistea Koukiadaki, Capability Theory, Employee Voice, and Corporate Restructuring: Evidence from U.K. Case Studies, p. 427
• Wanjiru Njoya, Job Security in a Flexible Labor Market: Challenges and Possibilities for Worker Voice, p.459
• Charlotte Villiers, Why Employee Protection Legislation Is Still Necessary, p.481.

rb

New Book on Canadian Constitutional Labor Law

Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case, edited by Fay Faraday, Judy Fudge and Eric Tucker (Irwin Law 2012).  Here's a description:

On 29 April 2011, the Supreme Court of Canada released its much-anticipated decision in Attorney General of Ontario v Fraser, which dealt with the scope of constitutional protection of collective bargaining. This collection of original essays untangles the two stories that are intertwined in the Fraserdecision—the story of the farm workers and their union’s attempt to obtain rights at work available to other working people in Ontario, and the tale of judicial discord over the meaning of freedom of association in the context of work. The contributors include trade unionists, lawyers, and academics (several of whom were involved in Fraser as witnesses, parties, lawyers, and interveners). The collection provides the social context out of which the decision emerged, including a photo essay on migrant workers, while at the same time illuminating Fraser’s broader jurisprudential and institutional implications.

rb

Brown on East Asian LEL

Congratulations to Ron Brown (Hawai'i) on the publication of his book East Asian Labor and Employment Law: International and Comparative Context (Cambridge 2012).  I've ordered my copy and am looking forward to reading it.  Here's the publisher's description:

This book deals with international labor and employment law in the East Asia Region (EA), particularly dealing with China, South Korea, and Japan. It explores and explains the effects of globalization and discusses the role of international lawyers, business personnel, and human resource directors who are knowledgeable, culturally sensitive, and understand the issues that can arise when dealing in EA trade and investment. The text and readings (from area experts) are organized and written to provide the reader with, first, a broad understanding and insight into the global dimensions of the fast-emerging area of labor and employment issues (e.g., global legal standards and their interplay with domestic and foreign laws); and second, to show how these laws and approaches play out in specific EA countries (comparing global approaches with the specific laws of each country on four common agenda items: regulatory administration, workers' rights, trade unions, and dispute resolution). The book should be of interest not only to lawyers, students, human resource personnel, and government officials, but also to business investors, managers, and members of the public interested in the growing phenomenon of changing labor laws and societies in China, South Korea, and Japan.

rb

Brown's East Asian Labor and Employment Law: International and Comparative Context

Congratulations to Ron Brown (Hawaii) who has a new book coming out this month that deals with international labor law practice and the comparative aspects of labor and employment laws in Japan, China, and South Korea. The book is entitled: East Asian Labor and Employment Law: International and Comparative Context. While a general read, Ron tells us that he used it this semester in his Asian Labor Law class.

Here is a description from the publisher:

This book deals with international labor and employment law in the East Asia Region (EA), particularly dealing with China, South Korea, and Japan. It explores and explains the effects of globalization and discusses the role of international lawyers, business personnel, and human resource directors who are knowledgeable, culturally sensitive, and understand the issues that can arise when dealing in EA trade and investment. The text and readings (from area experts) are organized and written to provide the reader with, first, a broad understanding and insight into the global dimensions of the fast-emerging area of labor and employment issues (e.g., global legal standards and their interplay with domestic and foreign laws); and second, to show how these laws and approaches play out in specific EA countries (comparing global approaches with the specific laws of each country on four common agenda items: regulatory administra­tion, workers’ rights, trade unions, and dispute resolution).

The book should be of interest not only to lawyers, students, human resource personnel, and government officials, but also to busi­ness investors, managers, and members of the public interested in the growing phenomenon of changing labor laws and societies in China, South Korea, and Japan.

I have read an initial draft of this book and believe it is an original contribution to this important area of study.  Pick up a copy.  Here is a link to the brochure on the book, with ordering instructions.

PS

Recently Published Scholarship: Comparative Labor Law & Policy J.

Comparative Labor Law & Policy Journal
Volume 33, Number 2, Winter 2012

• Michele Colucci & Arnout Geeraert, The "Social Dialogue" in European Professional Football, pg. 203.
• Luisa Corazza, In Search of Industrial Self-Regulation or Efficient Settlement of Employment Disputes? The Case of Italian Arbitration Reform, pg. 235.
• Breen Creighton & Pam Nuttall, Good Faith Bargaining Down Under, pg. 257.
• Richard Croucher, Mark Kelly, & Lilian Miles, A Rawlsian Basis for Core Labor Rights, pg. 297.
• Reviewed by Richard L. Kaplan, edited by Dana M. Muir & John A. Turner, Imagining the Ideal Pension System: International Perspectives, pg. 321.

rb

Bisom-Rapp and Zimmer on Northern American Border Wars

Susan Bisom-Rapp of Thomas Jefferson School of Law and Mike Zimmer of Loyola University Chicago School of Law have just posted on SSRN a paper, North American Border Wars: The Role of Canadian And American Scholarship in U.S. Labor Law Reform Debates. 

Abstract: The economies of Canada and the United States and the organization of their societies are deeply interrelated but significant differences exist. This paper will briefly trace the interaction between the two countries in the development of labor relations laws with a particular emphasis on the impact of scholarly work on U.S. labor law reform debates in the last two decades. Instructive for that purpose is the work of Professor Paul Weiler, a prominent figure in labor law policy discussions in both countries. A significant architect of labor law in Canada, Professor Weiler came to Harvard Law School in 1978 and brought his experience and insights with him, rapidly becoming one of the foremost labor law scholars in the United States. His influence in the 1990s, and hence the influence of Canadian ideas, on the ultimately unsuccessful labor law reform proposals of President Clinton’s Dunlop Commission is widely recognized.

Professor Weiler’s proposals are once again the basis for scholarly and policy debate. This time, however, Canadian ideas and experience have prompted a scholarly border skirmish. Recently, when new legislation – the Employee Free Choice Act – was proposed to Congress to implement a number of reforms of the National Labor Relations Act based on the Canadian experience, several U.S. academics argued that the actual Canadian experience where these reforms were in place resulted in higher unemployment and slower economic growth. Canadian labor scholars, fearing the corrosive effects of such critiques on their own labor relations regime, responded with rejoinders challenging the work of the American scholars. Clearly, and notwithstanding American provincialism, Canadian-influenced labor law scholarship has played a central role in U.S. policy debates, creating a favorable intellectual environment for labor law convergence. Yet the opponents of U.S. labor law reform also deploy scholarship aimed at the Canadian experience in order reinforce the divergent paths of the two systems, as do Canadian scholars acting defensively to forestall greater convergence of the Canadian regime to the U.S. model.

They will deliver on March 19, 2012, at the Tenth Annual Marco Biagi Conference in Modena, Italy. The conference is in memory of Professor Biagi who was assassinated ten years ago by the Red Brigades for having proposed changes to Italian labor law.

PS

Lynk on CBC's Lang O'Leary Report Discussing Canadian Labor Landscape

My good friend, Michael Lynx (Western Ontario Law) was recently featured on the The Lang O'Leary Report, which is the CBC's main business TV show. He appears with Amanda Lang, a journalist, and Kevin O'Leary, the conservative TV host.

Michael was interviewed last night on the Report about the decision yesterday by the federal Minister of Labour Lisa Raitt to refer the pending strikes and lockout by the pilots and the machinists at Air Canada to the Canada Industrial Relations Board. You can catch the show here.

For those who don't have time to watch the whole thing, Michael's interview is at the 19:30 mark.

In any event, this is helpful viewing for anyone trying to understand the current labor situation in Canada.

PS

Second Edition of The Global Workplace with Teacher's Manual

On behalf of her co-authors, Susan Bisom-Rapp (Thomas Jefferson School of Law) announces the publication on March 14th of the Second Edition of The Global Workplace – International and Comparative Employment Law: Cases and Materials. 

The authorial team is the same as the First Edition: Roger Blanpain, Susan Bisom-Rapp, Bill Corbett, Hilary Josephs, and Mike Zimmer.  The second edition will appear in the U.S. as an Aspen publication and in Europe, it will appear under the Kluwer Law International imprint. 

Susan tells us that one of big challenges of producing the Second Edition was grappling with the global economic crisis, which is therefore featured prominently in this edition.  Of course, there have also been many legal changes since the first edition was published in 2007.  The authors have also completed the Teacher’s Manual, which runs about 250 pages.

You can find the Aspen press release here.

I used the First edition on numerous occasions for both teaching and research purposes and have always found it a great help in assisting my understanding of how the labor and employment law regimes of other countries operate.  I look forward to seeing the new edition.

PS

Recently Published Scholarship: Am. J. Comp. L.

.

.

The American Journal of Comparative Law
vol. 60 #1 (2012)

.

.

• Gráinne de Búrca, The Trajectories of European and American Antidiscrimination Law - Introduction to the Special Issue on Antidiscrimination Law in Europe and North America, p. 1.
• Gerard Quinn and Eilionóir Flynn, Transatlantic Borrowings: The Past and Future of EU Non-Discrimination Law and Poligy on the Ground of Disability, pg. 23.
• Bruno de Witte, New Institutions for Promoting Equality in Europe: Legal Transfers, National Bricolage adn European Governance, pg. 49.
• Julie C. Suk, From Antidiscrimination to Equality: STereotypes and the Life Cycle in the United States and Europe, pg. 75.
• Ruth Rubio-Marín, A New European Parity-Democracy Sex Equality Model and why it won't Fly in the United States, pg. 99.
• Mark Bell, Gender Identity and Sexual Orientation: Alternative Pathways in EU Equality Law, pg. 127.
• Samantha Besson, Evolutions in Non-Discrimination Law within the ECHR and the ESC Systems: It Takes Two to Tango in the Council of Europe, pg. 147.
• Luc B. Tremblay, Promoting Equality and Combating Discrimination Through Affirmative Action: The Same Challenge? Questioning the Canadian Substantive Equality Paradigm, pg. 181.
• Elizabeth F. Emens, Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act, pg. 205.
• Renáta Uitz, Lessons from Sexual Orientation Discrimination in Central Europe, pg. 235.
• Sandra Fredman, Breaking the Mold: Equality as a Proactive Duty, pg. 265.

rb

Italian Labor Law Prof Receives Death Threats

Dennis Nolan passes along this article from Bloomberg describing how a labor law professor in Italy, who has advocated for reform of Italy's stringent labor laws, is receiving death threats:

In just about any other country in the world, Pietro Ichino’s biggest career liability would be finding himself alone in a corner at cocktail parties. Ichino is a professor of labor law. In Italy, that means his life is under threat. For the past 10 years, the academic and parliamentarian has lived under armed escort, traveling exclusively by armored car, and almost never without the company of two plainclothes policemen. The protection is provided by the Italian government, which has reason to believe that people want to murder Ichino for his views.

rb

CEPR Report on Low Wage Work

The Center for Economic and Policy Research, a progressive economic thinktank, has issued a report on low wage work in rich countries. Low Wage Lessons compares the percentage of the workforce in low wage work, the strength of collective bargaining, and the level of social safety net, among other things, in developed countries. From the press release:

The experience of the United States stands primarily as a model for how not to succeed in reducing low-wage work. The United States has the lowest unionization rate among rich countries, a weak minimum wage, a stingy benefits system, and the highest rate of low-wage work among rich economies. About one-fourth of U.S. workers are in low-wage jobs, according to the standard international definition of low-wage work of earning less than two-thirds of the national median wage. (The median wage is the wage received by the worker exactly in the middle of the wage distribution.)

In the United States, the minimum wage and the Earned Income Tax Credit (EITC) are the two most important policies in place to fight low pay. But, the report argues that they have largely been ineffective.

"The minimum wage and the EITC could be excellent tools to fight low-wage work," [John] Schmitt[, the author of the report,] said, "but, they have been set far too low to make a difference."

The report also emphasizes that low pay is only the most obvious problem facing low-wage workers in the United States. Low-wage workers are also far less likely to have health insurance, paid sick days, paid family leave and other benefits that are common in higher-wage jobs.

And from the web summary of the report, 

Over the last two decades, high – and, in some countries, rising – rates of low-wage work have emerged as a major political concern. According to the Organization for Economic Cooperation and Development (OECD), in 2009, about one-fourth of U.S. workers were in low-wage jobs, defined as earning less than two-thirds of the national median hourly wage (see first figure below). About one-fifth of workers in the United Kingdom, Canada, Ireland, and Germany were receiving low wages by the same definition. In all but a handful of the rich OECD countries, more than 10 percent of the workforce was in a low-wage job.

If low-wage jobs act as a stepping stone to higher-paying work, then even a relatively high share of low-wage work may not be a serious social problem. If, however, as appears to be the case in much of the wealthy world, low-wage work is a persistent and recurring state for many workers, then low-wages may contribute to broader income and wealth inequality and constitute a threat to social cohesion. This report draws five lessons on low-wage work from the recent experiences of the United States and other rich economies in the OECD.

Lots of interesting data and analysis.

MM

Western Ontario Labour Law Conference: Faultlines and Borderlines in Labo(u)r Law

The University of Western Ontarion Law Faculty is hosting a wonderful set of labour law conferences on March 2 and 3, 2012. The theme of the 2012 lecture/conference will be Faultlines and Borderlines in Labo(u)r Law: The Future of the Wagner Act in Canada and the United States. This is a joint project of the UWO Faculty of Law, Koskie Minsky, Heenan Blaikie, and the Canada-US Institute at Western.

On Friday, 2 March 2012, Ms. Wilma Liebman, the former Chair of the National Labor Relations Board, will be delivering the seventh Koskie Minsky University Lecture in Labour Law. She was appointed Chair of the NLRB by President Obama as one of his first acts after assuming office in January 2009. The title of her Lecture will be: Labor Law, Economic Justice and Political Rhetoric: Reflections on the Wagner Act.

The following day, Heenan Blaikie LLP and the Faculty of Law at the University of Western Ontario will be hosting the full-day conference. There will be four panels, on the themes of human rights in the workplace, the role of trade and investment in shaping labour law, the crisis in public sector collective bargaining, and the future of the Wagner Act, with distinguished speakers from both sides of the 49th parallel on each panel. With unionization at 29% in Canada, and 12% in the United States, this conference will assess the viability of the Wagner Act and its ability to continue to promote industrial fairness.

The conference will conclude with a Saturday evening dinner, with the Honourable Lisa Raitt, Federal Minister of Labour as the guest speaker.

I am honored that I will be speaking at the conference as well.

The conference web page can be found here and that web page contains a link to the whole conference brochure.

PS