Showing papers on "Labour law published in 2001"
Book•
05 Jul 2001
TL;DR: The Supiot Report as mentioned in this paper provides a broad and far-reaching look at the changing nature of work initiated by the European Council of Human Rights (ECHR) in the 1990s.
Abstract: "This book is the English edition of what has become widely known as 'The Supiot Report' - a bold and far-reaching look at the changing nature of work initiated by the EC. It takes as its starting point the profound changes that have taken place in the underlying employment relationship and associated human resource practices over the past twenty years. These developments are placed in their economic, social, institutional, and legal contexts. Competitive pressures on firms, the search for greater efficiency and effectiveness in the delivery of public services, the changing role of women in society, and the desire for greater choice on the part of individuals are all important motives for change. The legal framework and the structures and organizations which represent the interests of workers and employers must respond to these changes. Drawing on illustrations from a number of European countries, the book suggests that the legal framework should encourage greater collaboration in the workplace, particularly over issues such as training. But it should also place work within its social context and facilitate genuine choices by individuals."
233 citations
Book•
01 Jan 2001
TL;DR: In this article, the authors discuss the electoral success of Thatcherism, the long road back of old Labour and the SDP, and the changing social basis of party support, and were traditional Labour voters disillusioned with New Labour.
Abstract: 1. Introduction 2. Social change and the future of the left 3. The Electoral Success of Thatcherism 4. Margaret Thatcher's nationalism 5. Old Labour and the SDP 6. Labour's long road back 7. The changing social basis of party support 8. Were traditional Labour voters disillusioned with New Labour 9. Conclusion
102 citations
TL;DR: In this article, the authors propose an employment law reform that combines a dual focus: first, the reaffirmation of measures that weaken workers' collective power through the exclusion of autonomous trade unionism, and second, initiatives to regulate the labour market, strengthen workers' rights within the employment relationship, and include enterprise-confined, cooperative unions as subordinate partners.
Abstract: The Labour government’s goal of social partnership embodies a particular view of the appropriate role of labour within the employment relationship, which requires the marginalization of trade unionism as an autonomous force. Its programme of employment law reform combines a dual focus: first, the reaffirmation of measures that weaken workers’ collective power through the exclusion of autonomous trade unionism, and second, initiatives to regulate the labour market, strengthen workers’ rights within the employment relationship, and include enterprise-confined, cooperative unions as subordinate ‘partners’. However, the second policy dimension has been diluted because of the commitment to free-market values.
99 citations
TL;DR: The authors examines segmentation in the Canadian labour market by focusing on the standard employment relationship and illustrates how standard employment was crafted upon a speii gender division of paid and unpaid labour, the male breadwinner norm and was only available to a narrow segment of workers.
Abstract: Using gender as its analytic lens, this article examines segmentation in the Canadian labour market by focusing on the standard employment relationship. It illustrates how standard employment was crafted upon a speii gender division of paid and unpaid labour, the male breadwinner norm, and was only available to a narrow segment of workers. To this end, it traces how from the lOSOs the standard employment relationship ws supelemanted by a growth in jobs associated with, and filed pnrimaly by, women workers and it shows how women's increasing labour market participation in the late 196Os and early 1970s shaped demands for equality in employment policies. Since the 1 9SOs, a deterioration in the standard employment relationship has undermined both demands for and the basis of gender equality strategies and the article concludes by raising the question of the normative basis for regulating employment in order to Move towards strategies for reregulation.
90 citations
Posted Content•
TL;DR: The U.S. system of labor and employment law that originated in the New Deal period is built upon the assumption of long-term attachment between employer and employee as discussed by the authors, and the collective bargaining laws as well as the social welfare measures that provide old age assistance, unemployment insurance, health insurance, and disability insurance are employer-centered.
Abstract: In this article, Professor Stone describes the profound changes that are occurring in the employment relationship in the United States. Firms are dismantling their internal labor markets and abandoning their implicit promises of orderly promotion and long-term job security. No longer is employment centered on a single, primary employer. Instead, employees operate in a boundaryless workplace in which they expect to move frequently between firms, and between divisions within firms, throughout their working lives. At the same time, employers and employees have a new understanding of their mutual obligations, a new psychological contract, in which expectations of job security and promotional opportunities have been replaced by expectations of employability, training, human capital development, and networking opportunities. The changes in the nature of the employment relationship have many implications for labor and employment regulation. The U.S. system of labor and employment law that originated in the New Deal period is built upon the assumption of long-term attachment between employer and employee. The collective bargaining laws as well as the social welfare measures that provide old age assistance, unemployment insurance, health insurance, and disability insurance are employer-centered and depend upon an on-going employment relationship. These legal structures are not well-suited to the boundaryless workplace. Professor Stone discusses the implications of the new workplace for three issues that are problematic in the new workplace: ownership of human capital, employment discrimination, and employee representation. In each area, she makes suggestions to address problems of insecurity, unfairness and injustice that frequently arise. These proposals are part of an effort to begin to imagine, and create, a new labor and employment law, one that can foster equity and justice in the new workplace.
76 citations
Journal Article•
68 citations
TL;DR: In this article, the dominant theme of labour law policy has become the enhancement of the competitiveness of business, which, at its core, requires the facilitation and stabilisation of flexible employment relations.
Abstract: It is suggested that the dominant theme of labour law policy has become the enhancement of the competitiveness of business, which, at its core, requires the facilitation and stabilisation of flexible employment relations. Neither deregulation nor mandatory labour standards adequately achieve this goal. It requires instead different techniques of regulation of the employment relation, including a revision of the implied terms of contracts of employment, the creation of new legal institutions of workplace governance, and the enhancement of the ability of employers to make credible commitments in return for functional flexibility on the part of employees.
65 citations
Book•
[...]
01 Mar 2001
TL;DR: In this paper, the authors present a framework of principles and fundamental rights for European collective labour law and a framework for European individual employment law, as well as the institutional architecture of the European social model.
Abstract: Section I: Labour Law and Europe Part I European Labour Law: 1 European labour law and the social dimension of the European Union 2 EU labour law and the UK 3 The conceptualization of European labour law Part II History and Strategies of European Labour Law: 4 Shifting strategies 1951-1986: ECSC, EEC, harmonisation, financial instruments, qualified majority voting 5 The strategy of European social dialogue 6 The European Employment Strategy, the open method of coordination and the 'Lisbon Strategy' 7 The strategy of fundamental rights: the EU Charter of Nice 2000 and a 'constitutional' strategy Section II: The Structure of European Labour Law Part III Labour Law and the European Social Model: 8 The institutional architecture of the European social model 9 A framework of principles and fundamental rights for European collective labour law 10 A framework of principles and fundamental rights for European individual employment law 11 The European Court of Justice, the EU Charter of Fundamental Rights and the European social model Part IV Enforcement of European Labour Law: 12 General principles of enforcement of European labour law 13 Administrative enforcement of European labour law 14 Implementation and enforcement of European labour law and employment policy through the social partners at national and EU levels 15 Individual judicial enforcement of European labour law 16 Euro-litigation: collective judicial enforcement of European labour law Part V The European Social Dialogue: 17 The European social dialogue: from dynamism to benign neglect 1993-2008 18 External and internal scrutiny of the democratic legitimacy of the European social dialogue 19 Threats and challenges to and the future of the European social dialogue Section III: The Futures of European Labour Law Part VI Agendas and Visions of European Labour Law: 20 The futures of European labour law: (1) The Commission's agenda - 'modernisation' 21 The futures of European labour law: (2) The European Court's agenda and ordre communautaire social 22 The futures of European labour law: (3) The agenda of the Member States and of the European Parliament - the Lisbon Treaty and after
59 citations
TL;DR: In this paper, the positive role of the state in promoting women's employment since the founding of Communist China in 1949 is reviewed, and the authors identify patterns of gender inequality which exist throughout the process of employment such as recruitment and retirement.
Abstract: Reviews the positive role of the state in promoting women’s employment since the founding of Communist China in 1949. Identifies patterns of gender inequality which exist throughout the process of employment such as recruitment and retirement. Against this backcloth, analyses major reasons for the occurrence of this gender discrimination, which range from inadequate social security for childbearing and ineffective legislative monitoring mechanisms to gender bias in the employment legislation itself. Concludes that recent radical economic and social reforms in China have disrupted the context within which a level of equal opportunity has been achieved in the past few decades and demands a new legal framework under which greater equality between men and women in employment can be achieved.
58 citations
Journal Article•
TL;DR: In this article, the positive role of the state in promoting women's employment since the founding of Communist China in 1949 is reviewed and patterns of gender inequality which exist throughout the process of employment such as recruitment and retirement are identified.
Abstract: Reviews the positive role of the state in promoting women's employment since the founding of Communist China in 1949 Identifies patterns of gender inequality which exist throughout the process of employment such as recruitment and retirement Against this backcloth, analyses major reasons for the occurrence of this gender discrimination, which range from inadequate social security for childbearing and ineffective legislative monitoring mechanisms to gender bias in the employment legislation itself Concludes that recent radical economic and social reforms in China have disrupted the context within which a level of equal opportunity has been achieved in the past few decades and demands a new legal framework under which greater equality between men and women in employment can be achieved
56 citations
Book•
01 Jan 2001
TL;DR: The legal culture of global business transactions, Volkmar Gressner et al. as mentioned in this paper, the role of legal rules -state law and unified law: global law in our high speed economy, William E. Scheuerman traditional private and commercial law rules under the pressure of global transactions, Dieter Martiny.
Abstract: Introduction - the legal culture of global business transactions, Volkmar Gressner et al. Part 1 The new global environment of business transactions: sovereignty and law in a denationalized world, Michael Zurn the institutional structuring of business transactions, Richard Whitley. Part 2 The role of legal rules -state law and unified law: global law in our high speed economy, William E. Scheuerman traditional private and commercial law rules under the pressure of global transactions - the role for an international order, Dieter Martiny. Part 3 The role of autonomous rules - the new "lex mercatoria" and self-regulation: "lex mercatoria" (new law merchant) - globalization and international self-regulation, Filip De Ly "lex mercatoria" - critical comments on a tricky topic, Felix Dasser global markets, new games, new rules - the challenge of international private governance, Franco Furger. Part 4 The role of the legal profession - mega-lawyers and in-house counsel: capital markets - those who can and cannot do the purest global law markets, John Flood the role of global law firms in constructing or obstructing a transitional regime of labour law, Harry Arthurs oil lawyers and the globalization of the Venezuelan oil industry, Rogelio Perez Perdomo. Part 5 The role of business networks - relationism and "guanxi": social logic as business logic - "guanxi", trustworthiness and the emebeddedness of Chinese business practices, Wai-Keung Chung and Gary G. Hamilton coasean foundations of a unified theory of Western and Chinese contractual practices and economic organizations, Janet Tai Landa understanding Chinese legal business norms - a comment on Janet Tai Landa's chapter, John K.M. Ohnesorge a brief note on "guanxi", Tai-lok Lui comment on Ohnesorge and Lui, Janet Tai Landa settling business disputes with China, Jerome A. Cohen.
TL;DR: In this article, the authors examine the relationship between private sector union density and the wage premium, identifying where we have been and where we may go, and conclude that unions (and society) are caught in a paradox.
Abstract: This paper examines the relationship between private sector union density and the wage premium, identifying where we have been and where we may go. The starting point is that labor unions are in decline and now represent a small proportion of the private sector workforce. This trend poses a dilemma for society, workers, and public policy. Although the effects of unions in the workplace vary enormously, the evidence suggests that on balance unions are detrimental to company performance and economic efficiency. But union representation and collective bargaining provide workers with varying degrees of workplace democracy, collective voice, monitoring of working conditions, protection from discrimination, and enforcement of contractual provisions. For the 90% of private sector workers not unionized, effective worker voice and participation may be provided at less than optimal levels, with substantial reliance instead on governmental regulation, workplace mandates, and a litigious enforcement process. There are a variety of reasons why unions are in decline. In this paper, we focus on the link between what is surely one of unions' principal functions, raising wages and other forms of compensation, and the consequent decline in their membership and coverage. We conclude that unions (and society) are caught in a paradox. As long as the U.S. remains a competitive open economy with a decentralized, partially organized collective bargaining system, the attempt by unions to acquire and maintain high wages ensures that the union sector will remain small. Similar to Freeman and Medoff, we argue that the "monopoly" face of unions is putting organized labor out of business, resulting in too little "collective voice." From society's point of view, the monopoly face should be blunted and the voice face emphasized. Tweaking the current system of labor law is unlikely to accomplish to a satisfactory degree the "less monopoly/more voice" outcome. Rather, we discuss the desirability of a more fundamental shift involving "conditional deregulation" and/or a change in the default workplace governance structure. The goal of such fundamental reform is to enhance collective voice in the largely nonunion private sector, while at the same time constraining those forms of worker rent seeking deleterious to economy-wide economic performance.
TL;DR: In this article, the authors examine the relationship between private sector union density and the wage premium, identifying where we have been and where we may go, and conclude that unions (and society) are caught in a paradox.
Abstract: This paper examines the relationship between private sector union density and the wage premium, identifying where we have been and where we may go. The starting point is that labor unions are in decline and now represent a small proportion of the private sector workforce. This trend poses a dilemma for society, workers, and public policy. Although the effects of unions in the workplace vary enormously, the evidence suggests that on balance unions are detrimental to company performance and economic efficiency. But union representation and collective bargaining provide workers with varying degrees of workplace democracy, collective voice, monitoring of working conditions, protection from discrimination, and enforcement of contractual provisions. For the 90% of private sector workers not unionized, effective worker voice and participation may be provided at less than optimal levels, with substantial reliance instead on governmental regulation, workplace mandates, and a litigious enforcement process. There are a variety of reasons why unions are in decline. In this paper, we focus on the link between what is surely one of unions' principal functions, raising wages and other forms of compensation, and the consequent decline in their membership and coverage. We conclude that unions (and society) are caught in a paradox. As long as the U.S. remains a competitive open economy with a decentralized, partially organized collective bargaining system, the attempt by unions to acquire and maintain high wages ensures that the union sector will remain small. Similar to Freeman and Medoff, we argue that the "monopoly" face of unions is putting organized labor out of business, resulting in too little "collective voice." From society's point of view, the monopoly face should be blunted and the voice face emphasized. Tweaking the current system of labor law is unlikely to accomplish to a satisfactory degree the "less monopoly/more voice" outcome. Rather, we discuss the desirability of a more fundamental shift involving "conditional deregulation" and/or a change in the default workplace governance structure. The goal of such fundamental reform is to enhance collective voice in the largely nonunion private sector, while at the same time constraining those forms of worker rent seeking deleterious to economy-wide economic performance.
TL;DR: In this article, the authors highlight sociology's role in shaping employment law and show how apparently technical legal arguments about allocating burdens of proof affect labor market resource allocation among the classes, races, and genders.
Abstract: Bringing sociological theory and research to bear on the quota debates dogging discussion of federal civil rights legislation in the early 1990s, this article highlights sociology's role in shaping employment law and shows how apparently technical legal arguments about allocating burdens of proof affect labor market resource allocation among the classes, races, and genders. Contrasting institutional-sociological with liberal-legal concepts of discrimination, the article shows why disparate impact theory has been the most sociological approach to Title VII enforcement. It also shows how disparate impact-a theory and method for establishing legally cognizable employment discrimination injurious to women and minorities-is, and is not, related to affirmative action-a policy encompassing a broad range of procedures intended to provide positive consideration to members of groups discriminated against in the past. Finally, a competing incentive framework is used to show that, although disparate impact creates some incentives for employers to adopt quota hiring, such incentives are counter-balanced by major incentives working against race- and gender-based quotas. Major counterincentives stem from disparate impact itself, from other aspects of equal employment law, and from organizational goals shaping business response to the legal environment
TL;DR: This paper used a union bargaining framework to discuss the relationship between labour taxation and employment and showed that distortionary effects of labour taxes in more corporatist economies should be smaller than in economies with more decentralised wage bargaining.
Abstract: This paper uses a union bargaining framework, where the wage rate is negotiated between the representatives of employees and employers and firms unilaterally determine employment, to discuss the relationship between labour taxation and employment. In imperfectly competitive labour markets higher labour taxes - income and payroll taxes - will increase labour costs and have negative effects on employment. Tax progression tends to moderate wages and boost employment. Moreover, if labour tax bases are unequal due to tax exemptions, the structure of labour taxation matters so that the tax wedge may not be a sufficient statistic to describe the channel of influence of labour taxation. Finally, distortionary effects of labour taxes in more corporatist economies should be smaller than in economies with more decentralised wage bargaining. Empirical evidence - though not always very strong - supports these notions.
Book•
01 Nov 2001
TL;DR: Fudge and Tucker as discussed by the authors examine the legal regulation of workers' collective action from 1900 to 1948, and analyze the strikes, violent confrontations, lockouts, union organizing drives, legislative initiatives, and major judicial decisions that transformed the labour relations regime of liberal voluntarism, which prevailed in the later part of the nineteenth century, into industrial voluntariism, whose centrepiece was Mackenzie King's Industrial Disputes Investigation Act of 1907.
Abstract: In this groundbreaking study of the relations between workers and the state, Judy Fudge and Eric Tucker examine the legal regulation of workers' collective action from 1900 to 1948. They analyze the strikes, violent confrontations, lockouts, union organizing drives, legislative initiatives, and major judicial decisions that transformed the labour relations regime of liberal voluntarism, which prevailed in the later part of the nineteenth century, into industrial voluntarism, whose centrepiece was Mackenzie King's Industrial Disputes Investigation Act of 1907. This period was marked by coercion and compromise, as workers organized and fought to extend their rights against the profit oriented owners of capital, while the state struggled to define a labour regime that contained industrial conflict. The authors then trace the conflicts that eventually produced the industrial pluralism that Canadians have known in more recent years. By 1948 a detailed set of legal rules and procedures had evolved and achieved a hegemonic status that no prior legal regime had even approached. This regime has become so central to our everyday thinking about labour relations that one might be forgiven for thinking that everything that came earlier was, truly, before the law. But, as Labour Before the Law demonstrates, workers who acted collectively prior to 1948 often found themselves before the law, whether appearing before a magistrate charged with causing a disturbance, facing a superior court judge to oppose an injunction, or in front of a board appointed pursuant to a statutory scheme that was investigating a labour dispute and making recommendations for its resolution. The book is simultaneously a history of law, aspects of the state, trade unions and labouring people, and their interaction within the broad and shifting terrain of political economy. The authors are attentive to regional differences and sectoral divergences, and they attempt to address the fragmentation of class experience.
Book•
01 Jan 2001
TL;DR: The Making of New Labour S.Ludlam as discussed by the authors, New Labour and the Electorate C.Clift and P.Smith - Conclusion: the Complexity of New New Labour M.J.Buller - Interpreting New Labour: Constraints, Dilemmas and Political Agency M.Kenny and M.Smith
Abstract: Introduction: The Making of New Labour S.Ludlam - New Labour and the Electorate C.Pattie - New Labour's Third Way and European Social Democracy B.Clift - New Labour and the Party: Members and Organisation P.Seyd and P.Whiteley - New Labour's Parliamentarians P.Cowley, C.Mellors and D.Darcy - New Labour and the Unions: the End of the Contentious Alliance? S.Ludlam - The Hand of History: New Labour, News Management and Governance B.Franklin - New Labour, the Constitution, and Reforming the State D.Richards and M.J. Smith - New Labour's Economics A.Gamble and G.Kelly - New Labour and Education, Education and Education C.McCaig - New Labour and Welfare C.Annesley - New Labour's Foreign and Defence Policy: External Support Structures and Domestic Politics J.Buller - Interpreting New Labour: Constraints, Dilemmas and Political Agency M.Kenny and M.J. Smith - Conclusion: the Complexity of New Labour M.J. Smith
TL;DR: Workers' use of the strike in workplace disputes has declined over the past decades, but their legal mobilization, that is, the filing of unfair labor practice charges against employers, has rise as mentioned in this paper.
Abstract: Whereas workers' use of the strike in workplace disputes has declined over the past decades, their legal mobilization—that is, the filing of unfair labor practice charges against employers—has rise
TL;DR: In this paper, the authors examine policy options for reregulating the Canadian labour market and identify the core challenge as developing a new norm of employment (based on a new gender contract) and new forms of labour regulation that reduce, rather than heighten, polarization and contribute to, instead of undermining, social solidarity and productivity.
Abstract: Taking the breakdown of the standard employment relationship (SER), which has been the lynchpin of labour market regulation in Canada since the Second World War, and the feminization of employment as its starting points, this article examines policy options for reregulating the Canadian labour market. It is divided into three parts. The first identifies the core challenge as developing a new norm of employment (based on a new gender contract) and new forms of labour regulation that reduce, rather than heighten, polarization and contribute to, instead of undermining, social solidarity and productivity. The second part proposes principles for reregulating the employment relationship that are attentive to this objective and addresses three key policy issues: the legal norm of employment, the basis for distributing entitlements and collective representation. The third part emphasizes the significance of the gender contract for understanding the role and limitations of labour law, legislation and policy and ar...
01 Nov 2001
TL;DR: In this paper, the authors analyse trends in the labour market in Estonia during the 1990s and assesses labour legislation concerning work relations and unemployment and investigate collective bargaining at the national, regional branch and enterprise levels.
Abstract: Analyses trends in the labour market in Estonia during the 1990s and assesses labour legislation concerning work relations and unemployment. Investigates collective bargaining at the national, regional branch and enterprise levels and examines active and passive labour market policy measures.
05 Dec 2001
TL;DR: In this paper, the authors examined changes in labour market policy and labour legislation in Poland during the 1990s aimed at giving enterprises more flexibility while ensuring the necessary employment protection for workers.
Abstract: Examines changes in labour market policy and labour legislation in Poland during the 1990s aimed at giving enterprises more flexibility while ensuring the necessary employment protection for workers. Analyses trends in the labour market and assesses developments in labour legislation and industrial relations institutions. Explores policy measures aimed at employment and income protection and employment promotion.
Book•
18 Jan 2001
TL;DR: Bernstein this paper argues that American labor and occupational laws, enacted by state and federal governments after the Civil War and into the twentieth century, benefited dominant groups in society to the detriment of those who lacked political power.
Abstract: In Only One Place of Redress David E. Bernstein offers a bold reinterpretation of American legal history: he argues that American labor and occupational laws, enacted by state and federal governments after the Civil War and into the twentieth century, benefited dominant groups in society to the detriment of those who lacked political power. Both intentionally and incidentally, claims Bernstein, these laws restricted in particular the job mobility and economic opportunity of blacks.
A pioneer in applying the insights of public choice theory to legal history, Bernstein contends that the much-maligned jurisprudence of the Lochner era—with its emphasis on freedom of contract and private market ordering—actually discouraged discrimination and assisted groups with little political clout. To support this thesis he examines the motivation behind and practical impact of laws restricting interstate labor recruitment, occupational licensing laws, railroad labor laws, minimum wage statutes, the Davis-Bacon Act, and New Deal collective bargaining. He concludes that the ultimate failure of Lochnerism—and the triumph of the regulatory state—not only strengthened racially exclusive labor unions but contributed to a massive loss of employment opportunities for African Americans, the effects of which continue to this day.
Scholars and students interested in race relations, labor law, and legal
or constitutional history will be fascinated by Bernstein’s daring—and controversial—argument.
TL;DR: The theoretical context of child labour research: the "new sociology of childhood" and child labour - childhood, children's rights and children's voice, Michael Lavalette theorising children at work - family, state and relations of production in historical context,.
Abstract: Part 1 The theoretical context of child labour research: the "new sociology of childhood" and child labour - childhood, children's rights and "children's voice", Michael Lavalette theorising children at work - family, state and relations of production in historical context, Michael Lavalette. Part 2 Child labour in British history: child labour and British industrialization, Sara Horrell, Jane Humphries the historic viability of child labour and the Mines Act of 1842, Peter Kirby the changing form of child labour circa 1880-1918 -the growth of "out of school work", Michael lavalette the problem that doesn't exist? child labour in Britain, 1918-1970, Stephen Cunningham. Part 3 Contemporary issues: child work in the UK, 1970-1998, Madeleine Leonard a peculiarly British phenomenon? the extent of child labour in the USA, Jim McKechnie honoured in the breach -child employment law in Britain, David Cornwell et al unenforced or unenforceable? a view from the professions, Ben Whitney.
Journal Article•
Posted Content•
TL;DR: A discussion paper on the future of trade unions in modern Britain this article was presented under the ''Future of Trade Unions in Modern Britain'' Programme supported by the Leverhulme Trust.
Abstract: The debate on this Discussion Paper took place at the London School of Economics on July 8 2000. It was made possible by a grant from DGV of the European Commission. It took place as a special mini-conference during the annual meeting of the Society for the Advancement of Socio-Economics, SASE, hosted by LSE. Translation services were provided by Multilingual Services, and the transcripts have been edited by Hugh Stephenson. All of the participants spoke in a personal capacity and what they said is not necessarily the policy of the organisations from which they come. This Discussion Paper is produced under the ''Future of Trade Unions in Modern Britain'' Programme supported by the Leverhulme Trust. The Centre for Economic Performance acknowledges with thanks, the generosity of the Trust. SPEAKERS: Peter Auer Dominique de Calan David Coats Simon Deakin Richard B. Freeman Reiner Hoffmann Renate Hornung-Draus Jane Lewis David Marsden Pamela Meadows Hedva Sarfati Alain Supiot
Posted Content•
TL;DR: The authors examines the labor law, constitutional, and ethical implications of unions' new union strategy and examines the relevant law on conflicts of interest and shows that union's new effort to bring employment law litigation is consistent with the highest standards of professional ethics.
Abstract: A major challenge facing labor activists and scholars today, given the small percentage of the private sector workers who are union members, is to find a new role for unions in attaining decent working conditions for the vast majority of the American workforce that is not unionized. Many unions have launched major efforts to enforce employment law in nonunion workplaces where statutory violations are rampant. The lower the wages, the more likely that fundamental employment laws, including safety, wage and hour laws, will be violated. Low-wage employees are apt to lack the knowledge and the resources to enforce their rights, and there are too few government inspectors to ensure compliance in workplaces all over the country. The article examines the labor law, constitutional, and ethical implications of this important new union strategy. The National Labor Relations Act (NLRA) has been interpreted to prohibit employers and unions from conferring benefits on employees during the critical period prior to a union certification election. The provision of legal representation (except assistance in filing unfair labor practice charges with the National Labor Relations Board (NLRB)) has been deemed to be an unlawful pre-election benefit. Although the NLRB has insisted that the provision of such services is not an unlawful benefit nor grounds to set aside an election, the D.C. and Sixth Circuit courts of appeals disagreed and set aside elections. Because employers may seek review of any union election in the D.C. Circuit, no union can confidently provide pre-election legal representation. The article also shows that to prohibit unions from providing legal assistance to non-member employees in employment law matters while allowing them to do so for unfair labor practice charges is an unconstitutional content-based restriction on First Amendment activity. In addition, forcing employees to choose between exercising their right to union representation for collective bargaining and their right to union lawyers' representation for employment litigation impermissibly requires employees to sacrifice important First Amendment rights as a condition of obtaining an NLRB-sponsored election. Finally, the article also critiques recent cases holding that union lawyers cannot ethically represent non-union members. The article explores the relevant law on conflicts of interest and shows that unions' new effort to bring employment law litigation is consistent with the highest standards of professional ethics.