Showing papers in "Comparative Labor Law and Policy Journal in 2010"

(Reseña) Re-Forming Capitalism: Institutional Change in the German Political Economy.

Abstract: Introduction: Institutional Change, Capitalist Development PART I: GRADUAL CHANGE: FIVE SECTORAL TRAJECTORIES 1. Five Sectors 2. Industry-wide Collective Bargaining: Shrinking Core, Expanding Fringes 3. Intermediary Organization: Declining Membership, Rising Tensions 4. Social Policy: The Rise and Fall of Welfare Corporatism 5. Public Finance: The Fiscal Crisis of the Postwar State 6. Corporate Governance: The Decline of Germany Inc. PART II: SYSTEMIC CHANGE: PATTERNS AND CAUSES 7. Systemic Change: Five Parallel Trajectories 8. From System to Process 9. Endogenous Change: Time, Age, and the Self-Undermining of Institutions 10. Time's Up: Positive Externalities Turning Negative PART III: DISORGANIZATION: BRINGING CAPITALISM BACK IN 11. Disorganization as Liberalization 12. Convergence, Non-convergence, Divergence 13. 'Economizing' and the Evolution of Political-Economic Institutions 14. Internationalization 15. German Unification 16. History 17. Bringing Capitalism Back In

Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment.

Abstract: This article details the early history of efforts to make American employment law more responsive to workplace bullying, covering a period roughly from 2000 to the present day, with much of the commentary grounded in the author's personal involvement in these initiatives. It starts by examining research, education, and advocacy efforts concerning workplace bullying and its legal implications. It then explains the major provisions of the latest version of the Healthy Workplace Bill, model anti-bullying legislation drafted by this author that has been the basis of bills introduced in over a dozen states' legislatures since 2003. The article closes with an assessment of the future of legal and policy initiatives to protect workers against severe workplace bullying in the United States.

Explaining Cross-National Variations in Entrepreneurship: The Role of Social Protection and Political Culture

Abstract: Among academics and policy-makers, there is increasing recognition of the importance of a successful entrepreneurial sector to the promotion of wealth creation and economic prosperity.1 However, there remains considerable debate over the question of what kind of economic environment provides the best conditions for entrepreneurial activity. In the literature on entrepreneurship, a long line of work dating back to the seminal contribution of Knight (1921) emphasises the role of entrepreneurs as risk takers, who seek out new opportunities and develop new products and processes in an environment of uncertainty. Under this view, the agents in an economy who are drawn into entrepreneurship are those with the least aversion to risk (see Kihlstrom and Laffont 1979, for example). However, formal theoretical models generate ambiguous predictions concerning the effects of an increase in risk on the rate of entrepreneurship in an economy. A priori, therefore it is unclear whether mechanisms designed to reduce the degree of risk faced by individuals in an economy will tend to promote or discourage the level of entrepreneurship.

The Australian Legal framework for workplace bullying

Abstract: The health and safety of employees is of paramount importance in a workplace. Bullying in the workplace can create an unsafe, hostile, and threatening working environment that can have a profound effect on the health and safety of employees. Although there is no single definition of workplace bullying, most definitions, whether academic or statutory or arising from developments in case law, state that workplace bullying is “persistent” and “repeated” behavior and that there is generally an imbalance of power between the target of bullying and the bully. Namie and Namie, for instance, describe bullying at work as the “repeated, health-harming mistreatment of a person by one or more workers that takes the form of verbal abuse; conduct or behaviors that are threatening, intimidating, or humiliating; sabotage that prevents work form being done; or some combination of the three.” Well documented examples of workplace bullying include: abusive and offensive language; intimidation; unreasonable excessive criticism; threatening to withhold promotion or some other benefit; imposing undue pressure and unreasonable workloads; undermining a person’s work performance; withholding information; initiation and pranks; physical abuse and threats; spreading malicious rumors and gossip about a person; and ostracizing a person. Cyber bullying—via email, text messaging, and the Internet—is also a more recent phenomenon in

The Swedish Ordinance Against Victimization at Work: A Critical Assessment.

Abstract: The study of workplace bullying was pioneered in Sweden by the late educational psychologist Heinz Leymann in the 1980s. For that reason, it is no surprise that as early as 1993 Sweden became the first country in the world to respond to the problem by means of statutory regulation. In the years following its enactment, the regulation has acted as an inspiration and a point of reference for advocacy groups across the world seeking similar regulation as well as a benchmark for statutory initiatives in other countries. For a considerable time Sweden was considered a positive exception or an anomaly. In many ways Vega and Comer captured the mood of international commentators by describing the regulation in the following upbeat terms: “This ordinance has language to prevent workplace bullying, protect employees that try to address bullying, compensate targets/victims, and penalize bullies and employers who permit transgressions.” However, while there is little doubt that the Swedish regulation against victimization has made an important contribution, not least in

Education, labor rights, and incentives: contract teacher cases in the indian courts

Abstract: Since the liberalization of India's economy beginning in the early 1990's, the government has increasingly employed contract workers to perform various state functions, including in the education sector. Yet, little research has been done to examine how courts have reacted to this shift in government labor policy. This paper looks at all reported cases involving contract teachers in the Indian Supreme Court and four High Courts over the last thirty years. It finds that although almost never explicitly overturning precedent, the judiciary in India has increasingly become less sympathetic to contract teachers demands, particularly at the Supreme Court level. The paper then argues that the Court could use its power of judicial review to engage the government in a dialogue, not unlike some of its earlier decisions in the 1980s and early 1990s. The Court can help guide the government to create a labor policy that not only achieve better results for students, but better working conditions for teachers. Such a dialogic approach could potentially be adopted to help reframe the government’s contract labor policy more generally.

(Reseña) Forced Labor: Coercion and Exploitation in the Private Economy.

Abstract: Two centuries after the abolition of the transatlantic slave trade, at least 12.3 million people continue to be subjected to modern forms of forced labour characterized by coercion and exploitation. The original field research presented in this volume shows that the victims include not only indigenous workers in Andean countries or people of slave-descent in Niger, but also migrant workers trafficked into Europe and the U.S and vulnerable members of the labour force in Brazil or Pakistan. The book highlights some of the measures that can be taken to combat these unacceptable practices. The authors argue in favour of a labour market approach, which includes the regulation and monitoring of labour intermediaries, the strengthening of labour inspection systems, as well as a stronger involvement of trade unions and employment tribunals.

The Need to go Beyond the Contract : “Economic” and “Bureaucratic” Dependence in Personal Work Relations

Abstract: Traditionally, labor law scholars have always perceived the need to go beyond the contract, meant as the formal arrangement, and the classical contract law, insofar as they are in themselves unable to combine antithetical terms such as employment contract versus economic dependence and bureaucratic organization, employment contract versus employment relationship. After an overview of the above mentioned debate, taking a comparative perspective, the article first concentrates on the evolution of the indicia used to define the line between employees and independent contractors. Secondly, it considers the development of new techniques of legal classification of personal work relations in Europe. With regard to the latter, the focus is on Article L. 7322-2 Code Trav. (Fr), the Law 20/2007 (Sp.), regulating the Trabajo autonomo economicamente dependiente (economically dependent worker) and the Italian legal regulation of parasubordinazione and, more recently, of the project-based work (Article 61, D.lgs. 276/2003). The conclusion is that, for the purpose of determining the scope of personal employment law, European legal systems have in recent decades demonstrated a converging tendency to reduce the attention paid to the formal contractual arrangements and have instead focused on main factors of the relationship denoting a condition of “economic” and “bureaucratic” dependence. In particular, comparison indicates that the most common factors regarded as denoting a condition of “economic” and “bureaucratic” dependence are: (1) the inability of the worker to spread the risks among different clients; (2) the continuity of the relationship; (3) the fact that the worker’s performance of services is strictly linked to the business organization of the client; (4) the fact that the worker, in performing his or her services, relies to a large extent on the know-how, the technical assistance and/or the material infrastructure of the client; and (5) the fact that there is an obligation of predominantly personal service. The final section suggests that, for the purpose of both competitiveness and social protection goals, the aforementioned judicial approach and form of legislation are better able either to understand or to regulate the modern forms of long-term cooperation between workers and business organizations based on quasi-hierarchy.

'Mobbing': The German law of bullying

Abstract: Mobbing, as the German expression for workplace bullying, can be described as “systematic hostilities, harassment or discrimination, either among co-workers or by a supervisor”. Leading to severe physical, psychological and economical problems, “mobbing” is a severe threat that exists in workplaces all over Germany. The article describes the German legal situation concerning mobbing behavior. After defining the term “mobbing” it demonstrates which preconditions must be fulfilled in order to establish a claim for “mobbing”. Moreover, it describes the legal consequences of mobbing as far as the substantive law is concerned and outlines typical procedural problems arising from the enforcement of mobbing claims. Summing up, the author is of the opinion that the German law sufficiently deals with problems coming along with “mobbing”.

Regulating the use of genetic information: perspectives from the U.S. experience

Abstract: This essay comments on an empirical study documenting the policies, practices, and attitudes of Australian employers regarding the use of genetic information from the U.S. perspective. The U.S. Congress recently enacted the Genetic Information Nondiscrimination Act of 2008 (GINA), which, among other things, prohibits employment discrimination on the basis of genetic information and restricts employers’ access to their employees’ genetic information. Just as the Australian study found no evidence of systematic use of genetic testing or screening by employers, GINA was passed in the absence of any evidence of widespread employment discrimination on the basis of genetic characteristics. Although it is too early to evaluate the effectiveness of GINA’s employment provisions in preventing genetic discrimination, an examination of the history and language of the statute offers some insights concerning the possibilities and challenges involved in regulating the use of genetic information in the workplace. This examination suggests that relying solely on an anti-discrimination framework is likely to be inadequate; the key to preventing misuse of genetic information by employers will be creating robust privacy protections. Fully restricting the flow of genetic information, however, poses a number of challenges for regulators.

Putting the Record Straight About International Labor Standard Setting.

Abstract: In Imagining Post “Geneva Consensus” Labor Law for Post “Washington Consensus” Development, Brian Langille renders a useful service by reviewing contemporary thinking in the field of development and prodding reflection on its possible implications for national and international labor law. I would certainly agree with his remarks that there is no trade-off between the political economy of decency and efficiency, that the ILO Constitution is an instrument that opens the door to many possibilities, and that labor law is not (inherently) limited to employees. However, his analysis of the genesis of international labor standards and their use widely misses the mark. In essence, to make his point he sets up and knocks down a strawman. He paints a broadbrush picture that does not accurately represent important features of the system, including an appreciation of the different roles played by the ILO’s governing structures and the ILO secretariat. In the process, he remains closed to seeing the relevance that ILO standards can have to development. A more nuanced analysis of the content of such standards in light of labor market trends and the need for a balanced globalization would be a more productive path to follow. His plea for principles over rules ignores the fact that we already have a number of principles, and that on their own, they are clearly insufficient.

Culture, Political Institutions and the Regulation of Entry

Abstract: This paper examines the relationship between cultural values, political institutions and government regulation of new firm entry. A series of hypotheses are developed and tested using data coupled from a variety of sources in comparative political economy and cross-cultural psychology for 53 countries. If society’s general attitudes toward uncertainty and power inequality are embedded in its laws and institutions, then such values should mediate the intensity with which economic incentives affect regulatory procedures and outcomes. Empirical results suggest that entry regulation levels are correlated with the way people in different countries deal with uncertainty and accept inequality of power. Moreover, these intrinsic cultural values act as mediators for the correlations between regulatory intensity and economic, political and institutional variables.

Imagining Post "Geneva Consensus" Labor Law for Post "Washington Consensus" Development.

Abstract: This paper argues that there exists a “Geneva Consensus” about the necessary content, and processes, of the international labour law of the ILO. The parallel to the Washington Consensus is intentional. Development theory has abandoned the Washington Consensus for reasons which have important, but as yet unexplored, implications for international labour law. Development theorists have come to see that the deepest problem lies not in the word “Washington” but in the very idea of a “Consensus”. The paper also argues that labour faces an “identify crisis” about its true scope and purpose which makes the need for a re-evaluation of the idea of a Geneva “Consensus” all the more pressing. The paper sketches a philosophical account of the demise of the very idea of a consensus, whether about development in general or labour law in particular. Some of the general methodological and substantive implications for the ILO of the abandonment of the idea of a “Consensus” are discussed.

Objectionable work in Israel

Abstract: It is perhaps no coincidence that the Israeli Law Review, the oldest Israeli law journal published in English, chose to dedicate two special issues to matters that fall on opposite ends of the socio-legal realm. The first special issue of the Israeli Law Review, in 1989, focused on torture—a practice that cannot be implemented without a high degree of deference and conformity. The other special issue, published in 2002, was dedicated to the matter of conscientious objection (CO) in the context of military service in the Israeli Defense Forces. Between the two lie the day-to-day [author, insert “lives” here?] of Israeli society, normality within a reality of extremes, an intense mixture of conformity and radicalism, secularism and fundamentalism. This context is important to the matter at hand. Legal reasoning—”ordinary reasoning applied to law”—in one sphere is intimately related to legal reasoning in another sphere. Insofar as the case at hand is concerned, decades of social and legal preoccupation with matters of CO that relate to military engagement in general and to specific military decrees in particular have formed a body of jurisprudence with respect to the limits of tolerance to