Workplace Prof Blog

DC LERA: Gig Economy in Europe

Tequila Brooks tells us of the program Gig Economy in Europe: Examples from Sweden, Netherlands and Germany on Tuesday, April 26th, 2022, 12:00 pm – 1:30 pm ET. Topics to be discussed include working conditions in the gig economy in Europe; policy proposals put forward by the European Commission; protection of gig workers under Swedish, Dutch, and German labor law; and employee participation in algorithmic systems in the context of work.

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DC LERA Program: Labor Rights & Global Supply Chains, 12/15/21

Many thanks once again to Tequila Brooks for sending us this announcement from DC LERA:

The DC Chapter of LERA would like to invite you to attend (December 15, 2021 from 12:00 to 1:30 pm EST) a Virtual Event on Labor Rights and Global Supply Chains: Harnessing Technology to Eliminate Forced Labor. The event is co-hosted by the ILO Office for the US and Canada and will be moderated by Jeff Wheeler of the Global Trace Project.

• Speakers will include:Alex Nasri of the ILO
• Jen Cole of Fishwise
• Jason Judd of Cornell University ILR Conversations Project
• With comments by Janice Bellace of Wharton School of Management, University of Pennsylvania

Registration information can be found here: https://lerachapter.org/dclera/events/labor-rights-and-global-supply-chains/

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COVID-Related Labor Arbitration Awards

My summer research project has been compiling and analyzing COVID-related labor arbitration awards. The result is an article that will be published this fall in the Ohio State Journal on Dispute Resolution. The title is COVID-Related Labor Arbitration Awards in the United States and Canada: A Survey and Comparative Analysis; here's the abstract:

The COVID-19 pandemic of 2020-21 has changed working conditions for millions of Americans and Canadians quickly and dramatically. Employers responded by requiring employees to quarantine, implementing workplace COVID policies, disciplining employees who violated those policies, changing work schedules, cancelling leaves or vacations, and furloughing or laying off employees. Unions have challenged many of these actions, raising a variety of novel issues that are now being resolved through labor arbitration. This article surveys those labor arbitration awards and then comparatively analyzes the awards from Canada and the United States.

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DC LERA Webinar: Worker Cooperatives in Spain

Tequila Brooks writes to tell us about another great DC LERA webinar: Worker Cooperatives in Spain. It will be Wednesday, May 19, 2021, 11AM - 12 pm Eastern Time. The webinar will be in the form of a conversation between Oskar Goitia, Chairman of the Mondragon Corporation, and Lucia Ortiz Sanz of the Embassy of Spain to the United States, about worker cooperatives in Spain and around the world. It's free; register here.

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Business, Forced-Labor in China, and the ILO

Janice Bellace (U. Penn. - Wharton) and George Dragnich (DC LERA) published yesterday an op-ed in “The Hill” entitled A path for business out of the China forced labor dilemma.  Here's Janice's description of the op-ed:

It addresses the China Uyghurs forced-labor situation and the role the ILO could play. It is written to attract the attention of companies by pointing out why companies might want to explore this possibility and explaining one way employers could pursue this route could be in June at the International Labour Conference.

George and I wrote this to draw attention to the ILO and its role regarding the abolition of forced labour. As you know, in the U.S., the media nearly always totally ignore the ILO. Even though Kevin Cassidy in the Washington office of the ILO has done terrific work in trying to close this recognition gap, it is an uphill slog. For instance, truly annoying is when they are discussing ILO labor standards (as was done recently in an article about the Xinjiang situation) and they refer to "a UN agency" rather than "the ILO." Since the dilemma facing companies has received coverage recently, we thought this and the timeliness of the issue would be “the hook” for a piece (since newspapers and other media typically want to see what will attract readers to the item, what will hook them in).

George and I both believe that the ILO has an important role to play and in fact, the most useful role with regard to the abolition of forced labour in Xinjiang. We hope this op-ed piece makes a helpful contribution.

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[Un]Vaccinated Workers in the Labor Market

Chris Albertyn (Albertyn Arbitration, Toronto) has sent the position paper Vaccinated and Unvaccinated Workers in the Labor Market, drafted by labor law academics in Israel. Here's the introduction:

Covid-19 poses numerous challenges to the labour market. The most recent are dilemmas concerning the appropriate regulation of access to work for unvaccinated workers, and the possible infringement of labour rights that may ensue. Being the first country in which large scale vaccination took place, there is a heated debate within Israel on this topic. As part of the public discourse, 17 labour law experts from academic institutions around Israel have written the position paper presented below:

We, a group of leading labour law scholars from Israeli law faculties, have been closely monitoring the public and legal discourse around the access of unvaccinated workers into workplaces. We are concerned that at this time, when a large share of the adult population in Israel is being vaccinated, there are calls to terminate the employment of workers who are not. To this end, we wish to emphasize a few basic principles of labour law and human rights that lie at the heart of Israeli law and international labour law. These principles should guide regulation on this issue, whether it is negotiated by the parties to collective labour law, the legislature, or in the labour courts' judgements.

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Myanmar Labor Update

The situation in Myanmar continues to deteriorate, and labor leaders are major targets. Below is a summary by Jamie Davis, who served for the Solidarity Center in Myanmar for several years and currently is posted to Indonesia. The photo at left is of the plaza in front of a shopping mall in Yangon, about two blocks away from University of Yangon. When I visit there, I usually stay nearby.

Myanmar deserves to be kept in the spotlight to keep people caring about what is happening there. As far as I know, the current situation is that there are no labor relations at this point. The military has targeted labor unions given they have been on the front lines of protests against the coup. Last month, the military announced that 16 unions and labor organizations were listed as being illegal. CTUM and MICS refused to attend tripartite meetings called for by the military. Indeed, Maung Maung and many others are in hiding but several union leaders have been arrested, others have warrants for their arrest, and yet more leaders are rumored to be on a secret list of those targeted for arrest. All unions have called for a national, sustained strike starting a couple of weeks ago in an attempt to bring the entire economy to a halt. As you may know, the military poured troops into the industrial zones on 14 March to crush the unions there and roughly 50 people were killed that day and martial law was imposed in the industrial zones and continues today. Internet blockages designed to hide atrocities were put in place and killings in the industrial zones continue. Tens of thousands of workers have been trying to leave Yangon to return to their villages as food supplies in the zones dwindle and meager savings have dried up. Troops and police continue to search for union leaders and many have fled. I don't think any factories are in operation at this point. Workers attempting to collect their salaries a few days ago at a shoe production factory were denied a portion of their pay and the management called police, which resulted in the immediate execution of one of the labor leaders who continued to demand for their rightful pay and a subsequent massacre of 5 more people with more than 70 workers arrested and taken away.

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Liljeblad to Speak on Myanmar at UM

Jonathan Liljeblad (Australia National University) will be speaking at the University of Minnesota on "Teaching Human Rights in an Illiberal Context: Reflections of a Researcher in Myanmar". It's this Thursday, March 25, 3:45-5:30 Central. Jonathan has strong ties in Myanmar and will have lots of insight about the current status of the country.

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ILAW Publishes First Issue of Global Labour Rights Reporter

The International Lawyers Assisting Workers (ILAW) Network has just published the inaugural issue of a new law journal – the Global Labour Rights Reporter. The journal is a forum primarily for labour and employment law practitioners globally, including ILAW Network members, to grapple with the legal and practical issues that directly affect workers and their organizations today. It takes a comparative approach, reflecting the worldwide composition of ILAW’s membership. Each issue of the journal will be organized thematically and will highlight notable cases and judicial opinions, trends in the regulation of labour, and analytical pieces which help to envision how practitioners can expand the protection of law, enhance accountability and obtain full and effective remedies. The journal will be published bi-annually, summer and winter, with the possibility of additional articles or contributions being posted on the journal’s website between issues.

Current articles:

• WORKER-ENFORCEABLE SUPPLIER CODES OF CONDUCT AS A TOOL FOR ACCESS TO JUSTICE
  IN GLOBAL SUPPLY CHAINS, by BETTINA BRAUN, AVERY KELLY & CHARITY RYERSON
• ACCESS TO JUSTICE IN LABOUR RELATIONS IN GEORGIA, by RAISA LIPARTELIANI & TAMAR GABISONIA
• ACCESS TO LABOUR JUSTICE AND PROCEDURAL BARRIERS IN COMMENCEMENT OF PROCEEDINGS: A PARADIGM SHIFT IN ZIMBABWEAN COURT PRACTICE OR A JUDICIAL MIRAGE?, by MUNYARADZI GWISAI
• EFFECTIVE JUDICIAL PROTECTION AND THE RIGHTS OF WORKING PEOPLE UNDER COVID-19: A VIEW FROM COLLECTIVE LAW, by MIGUEL ANGEL GARRIDO PALACIOS
• THE RIGHT TO FAIR AND SATISFACTORY WORKING CONDITIONS: RISK PREVENTION AND ACCESS TO JUSTICE, by MARÍA PAULA LOZANO & MATÍAS CREMONTE
• AUSTRALIA’S UNIQUE AWARD SYSTEM HAS BEEN TESTED BY THE COVID-19 PANDEMIC: IT HAS BEEN SHOWN TO BE READILY ADAPTABLE TO PROTECT EMPLOYER INTERESTS BUT LESS EFFECTIVE AT PROACTIVELY PROTECTING EMPLOYEES, by TREVOR CLARKE
• COVID-19 & NEOLIBERALISM: IMPACTS ON LABOUR JUSTICE IN BRAZIL, by PEDRO DANIEL BLANCO ALVES & MAXIMILIANO NAGL GARCEZ
• THE COVID-19 PANDEMIC AND THE WHISTLE-BLOWER PROTECTION IN POLAND, by ŁUCJA KOBROŃ-GĄSIOROWSKA
• LABOUR INSPECTION: MORE THAN AN EXERCISE IN ETHICS, by SAMANTHA RAMSAY & BERYL TER HAAR

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Re-Thinking Service-Sector Work

DC LERA has another great international labor program. Christy Hoffman is the General Secretary of UNI Global Union, the global union federation for workers in services which represents 20 million members in 150 countries. She will be speaking January 19, 2021, 11:00 am - 12:00 pm. on the topic Remaking the World of Work for the Service Sector. Registration is free -- follow the instructions at this link. 

Thanks to Tequila Brooks for sending this along.

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Trade & Labor Policy in a Biden Administration

What has to change in U.S. trade policy to improve labor practices in global supply chains?

The Cornell ILR School’s New Conversations Project and Sandra Polaski, Senior Research Scholar at Boston University’s Global Development Policy Center, will hold a live discussion on Tuesday, 19 January 2021 from 9 – 10:15 EST on the topic of Sandra's recent paper, How Trade Policy Failed U.S. Workers--and How to Fix It. Register here.

A group of scholars and practitioners will debate the paper’s proposed changes and their possible impacts for workers. Participants include:

• Sandra Polaski, Senior Research Scholar in the Global Economic Governance Initiative at Boston University, and member of the Independent Mexico Labor Expert Board.
• Desiree LeClercq, Proskauer Employment and Labor Law Assistant Professor at Cornell University's School of Industrial and Labor Relations.
• Carlos Salas, Visiting Professor of Economics at Universidad Autónoma Metropolitana (UNAM), Azcapotzalco, Mexico City.
• Olabisi Akinkugbe, Assistant Professor at the Schulich School of Law, Dalhousie University, Canada.
• Dave Welsh, Country Director of the AFL-CIO Solidarity Center in Thailand.
• Jason Judd (Moderator), Executive Director of Cornell University's New Conversations Project in the School of Industrial and Labor Relations.

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Inaugural Issue: Contemporary Labour Law Review

Congratulations to Giorgi Amiranashvili and his team at the NNLE Center for Contemporary Labour Law on the publication of the first issue of Contemporary Labour Law Review. Here's an introduction:

We are pleased to present the fi rst issue of the scientific-practical journal Contemporary Labour Law Review, – published by the Center for Contemporary Labour Law. The journal has been launched on 29 November 2019. The launch event, hosted by Tbilisi State University, was attended by the representatives of government and non-governmental sectors working in the field of labour law, judges, legal practitioners, academics and students. The number of attendees at the event and subsequent feedback indicates how great the public interest in the journal has been, which, in turn, obliges us to satisfy the interest of readers and give them the opportunity to read useful information on current and problematic issues of contemporary labour law. We hope that together we will face this important challenge.

Articles include:

• Salome Uglava, Victimization as a Mechanism to Protect Employees from Discrimination

• Salome Beridze, The Practice of the Supreme Court of Georgia on Labour Disputes (Court’s Explanations About Some
  Norms)

• Lado Chanturia, Important Research in Civil Law - Review on the Book by Giorgi Amiranashvili

• Andrea Borroni, The Cambridge Handbook of U.S. Labor Law for the Twenty-First Century – A Review

• Giorgi Amiranashvili, Review on the Monograph by Dr. Zakaria Shvelidze - “The Scope of Civil Claims in Labour Discrimination Disputes”

Here's a PDF of the new issue.

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Webinar: International Trade and Labour Law: the USMCA

Thanks to Vincenzo Pietrogiovanni (Lund University - Aarhus University) for alerting us to the webinar "International Trade and Labour Law: the USMCA", organised by the Labour Law Community - LLC together with the International Society for Labour and Social Security Law - ISLSSL, which will be held on Zoom on Thursday 14 January 2021 h 6.00 pm CET. To participate, follow this link starting at the time of the webinar. Here's a description:

The USMCA, an agreement between the United States, Mexico and Canada that has replaced the NAFTA and the side agreement on labour (NAALC), represents an important advance on the path of the virtuous link between regulation of international trade and promotion of social rights. The new agreement, in fact, contains chapter no. 23 entirely dedicated to work: here the Parties go beyond the generic list of "principles" contained in the previous NAALC and expressly refer to the principles and conventions of the ILO, thus aiming for regulatory harmonisation between States through international labour law.

The opportunity to deepen the knowledge of this important Treaty with Janice Bellace and Lance Compa, distinguished scholars of labour law, appointed by the US government as members of the panel that has the task of sanctioning the non-compliant parties, is also a chance to reflect on the European economic and social model, as well as on the resumption of international trade relations in the Biden era, with the aim of relaunching the instrument of the social clause at a macro-regional but also at global multilateral level.

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New Book: Worldwide Labor-Related Responses to COVID

Legal Responses to COVID-19 Around the World surveys the labor-related responses of 50 countries to the COVID-19 pandemic. The book currently is available only on kindle, but will be available in hard copy within a week or so. Beyond the book's content, the table of contents provides a really nice list of labor scholars throughout the world.

Here's the complete cite: Legal Responses to Covid-19 Around the World, Cláudio Jannotti da Rocha, Flávia Fragale Martins Pepino, & Rafael Lara Martins, eds. (Lex-Magister [Brazil], 2020) . Disclosure: I contributed the U.S. chapter.

Here's the publisher's description:

This is a collection of papers from 50 countries (6 continents) about the effects of the Covid-19 pandemic on the economy, employment, contracts, business, people’s income, health, courts and dispute resolution systems. The book’s purpose is to allow current and future generations to find, in one place, information about the legal responses to Covid-19 around the world.

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OTR Looking for Trade Policy Research Coordinator

Thanks to Colin Fenwick (ILO) for sending this notice that the Office of the U.S. Trade Representative has an opening for a Trade Policy Research Coordinator. Among other things, the person in this position will coordinate research and analysis on a variety of trade and investment issues relating to the assigned area [including labor], including by reviewing press and other source materials, international trade and investment trends and data, and policy developments in the assigned area, including matters related to specific trade policies in the assigned area.

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Arnow-Richman on Remote Work & Temporary Termination

Rachel Arnow-Richman (Florida) has just posted on SSRN a pair of timely articles related to the pandemic: Temporary Termination: A Layoff Law Blueprint for the COVID Era (forthcoming ABA JLEL) , and Is There An Individual Right to Remote Work? A Private Law Analysis (forthcoming Wash. U. J. L. & Pub. Policy). Here are the abstracts:

Remote Work: One of the gnawing legal questions of the COVID-19 pandemic is the status of remote work. Since the expiration of the first round of government shut-down orders in the summer of 2020, companies have been calling workers back to the job, prompting serious concerns about the risk of workplace transmission. As a consequence, many workers have asked to continue the remote arrangements their employers adopted when forced to close under executive orders. Some employers are acceding to these requests; others are not. This brief essay, prepared for the ABA Journal on Labor & Employment Law, considers this problem from a private law perspective. It concludes that public law offers little protection to individual employees other than those with qualifying disabilities. Companies, however, may be in breach of contract if they terminate employees who have enforceable job security rights for refusing to return to in- person work. Rather than rely on guesswork, the prudent and compassionate choice for employers is to continue temporary remote arrangements to the extent feasible. 

Temporary Termination: This paper, prepared for a forthcoming Washington University of Saint Louis symposium on COVID-19, responds to the pandemic-induced unemployment crisis with a strategy for addressing temporary, economic-based terminations. Workplace regulation has long neglected workers separated for economic reasons, leaving the problem to the social welfare system, which is now overwhelmed by record numbers of unemployment applicants. In prior articles, I have drawn on comparative law models to argue for laws requiring employers to provide mandatory advance notice of termination or commensurate severance pay to laid off workers. Building on that work, and drawing specifically on Canadian law, this paper argues for recognizing “temporary separation” as a distinct legal status that confers individual rights to affected employees within the context of a comprehensive law of layoffs. Under this system, all employees terminated for economic reasons would be entitled to advance notice or its equivalent in severance pay. However, employers could suspend such obligations by classifying workers as temporarily separated. Affected individuals would retain their status as employees, obtain fast-track access to unemployment benefits, and enjoy a right to reinstatement when their jobs resume. Should the employer choose not to recall a temporarily separated worker, or if the lack of work becomes permanent, the employer would be required to fulfill its deferred severance obligation. 

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Webinar: UN Agencies During COVID-19 Recovery Efforts Related to Labor Policies

Thanks to Desiree LeClerq (Cornell I.L.R.) for sharing this invitation:

Is multilateralism fit for purpose? Join Geneva Macro Labs on Nov 18th @6pm CET (12pm ET) to discuss with  our experts Desiree LeClercq (Cornell University) and Prakash Loungani (IMF), moderated by Emmanuelle Ganne (WTO), about the extent to which multilateral institutions have delivered on their mandate and what needs to change to make them (even) more effective. In particular, the experts will discuss the lack of collaboration between UN agencies during COVID-19 recovery efforts as they relate to labor policies. The webinar is free; register here.

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Canadian Supreme Court Issues Critical Disparate Impact Decision

Christopher Albertyn (Albertyn Arbitration Inc.) is kind enough to write this guest post on the important new Canadian decision of Fraser v. Canada (Attorney General), 2020 SCC 28 (CanLII):

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The Supreme Court of Canada has ruled that the Royal Canadian Mounted Police (RCMP) pension plan discriminated against women. The pension plan therefore breached an Equality Right at section 15(1) of the Charter of Rights and Freedoms:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The claimants were full-time RCMP members who took advantage of a job-sharing arrangement offered by the RCMP. During the period they were job-sharing their employment was characterized as part-time. Part-time employees were not entitled to purchase full-time pension credits. So, when the claimants ended the period of their job-sharing and they sought to purchase their full-time pension credits, they were advised that, as part-time employees during their job sharing, they could not buy back their full-time pension credits. They claimed this determination discriminated against them in violation of section 15(1) of the Charter.

On October 16, 2020, the Supreme Court of Canada (the SCC) ruled that the Royal Canadian Mounted Police (RCMP) pension plan breaches section 15(1) on the ground of sex. This was because a provision of the plan perpetuated discrimination against women by precluding members who participate in job-sharing arrangements from purchasing full-time pension credit. The result was that their eventual pension entitlements were less than those, predominantly male employees, who were able to purchase full-time pension credits during periods of less than full-time work, including when they were on disciplinary suspension. Only those regular, full-time employees who were on the job-sharing program were not able to purchase the credits for their periods of less than full-time work.

The S.C.C. found that the RCMP pension plan has a disproportionate impact on women and so violated women’s rights to equality under the Charter.

The finding was not because “women continue to have disproportionate responsibility for childcare and less stable working hours than men, but because the pension plan ‘institutionalizes those traits as a basis on which to unequally distribute; pension benefits to job-sharing participants” [para.136].

Justice Abella, writing for the S.C.C., made clear that the Charter guarantees substantive equality, having regard to the actual impact on the affected employees. On its face the imposition of less favourable pension benefits for job-sharing members seemed to affect all RCMP members equally, but it had a disproportionate impact on the women officers, and so was found to be discriminatory.

The S.C.C. applied the two-step test to section 15(1) claims. The claimant had to demonstrate:

1. 1. that the impugned action, in its impact, created a distinction based on a prohibited ground, and
   2. that the action imposed had a disproportionately adverse effect on the members of the protected group, in this case, women.

On the first step, the S.C.C. found that statistical evidence showed a clear association between sex and fewer working hours. So, the RCMP’s use of a temporary reduction in working hours as a basis for imposing less favourable pension consequences had an adverse impact on women. The RCMP members who took part in the job-sharing program were predominantly women with young children. Most of these women gave childcare as their reason for doing so.

In holding that the second step was established, the S.C.C. found that the RCMP’s pension plan perpetuated a long-standing gender bias that favoured “male pattern employment” (permanent, full-time workers with long uninterrupted service records) over “female pattern employment” (temporary or part-time service). This resulted in a disproportionate economic disadvantage for women.

This case is important in reiterating and clarifying how discrimination cases are to be decided. It gives a clear statement that substantive equality is the standard on which the protection is to be decided. Also, the question is not whether a provision explicitly targets a protected group for differential treatment, but rather, does the provision do so indirectly through its impact? The S.C.C. suggested that two types of evidence are useful to provide that a law or action has a disproportionate impact on a protected group: evidence of the full context of the protected group (i.e. their physical, social, cultural or other barriers), and evidence about the results or effects of the law or action on them. To establish the link between the impugned provision and the alleged disadvantage, the claimants need only demonstrate consistent statistical disparities in how the provision affects them, without having to explain why that was the result. Such evidence “is itself a compelling sign that the law has not been structured in a way that takes into account the protected group’s circumstances”. Through such evidence, some seemingly neutral policy can be shown to have a disproportionate impact on the protected group.

The S.C.C. also had some helpful additional observations:

1. 1. The intention of the legislator is irrelevant. It is not necessary to prove an intention to discriminate.
   2. If the claimants demonstrate that a law has a disproportionate impact on members of a protected group, they need not independently prove that the protected characteristic “caused” the disproportionate impact, i.e. that the basis of the exclusion was the protected characteristic. The effect is all that matters.
   3. The claimants need also not show that the impugned provision affected all members of the protected group in the same way, or even at all. Practices that amount to partial discrimination are no less discriminatory than those in which all members of a protected group are affected.

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Chat with ILO Director General Guy Ryder

 Desiree LeClerq (Cornell ILR) sends an invitation to an online fireside chat with ILO Director General Guy Ryder this Thursday, 15 October, 08:30am Eastern Time. The discussion will address a range of issues, including rising unemployment, the impact of the crisis on migrant and informal workers, the impact of trade agreements on workers, and gaps in social protection. The final portion will be open to audience questions. Desiree will moderate. Registration is free and is available here.

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AFL-CIO & SEIU File ILO Complaint Against U.S. Government

Thanks to Lance Compa for circulating this: The AFL-CIO and SEIU have filed a complaint with the ILO Committee on Freedom of Association against the Trump administration for violations of ILO standards on Freedom of Association in connection with the Covid-19 crisis in the workplace. Here is a Washington Post article on the complaint; here is the complaint itself.

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