Showing papers on "Labour law published in 2012"

The crisis and national labour law reforms: a mapping exercise

Abstract: This paper1 maps the labour law reforms in various European countries either triggered by the crisis or introduced using the crisis – falsely – as an excuse. Such reforms generally render existing ...

Constructing Uncertainty: Unions and Migrant Labour in Construction in Spain and the UK

Abstract: The article provides a conceptualization of the link between recent migration flows and labour market uncertainty through the analysis of a critical example, the construction sector (characterized by economic volatility, worker mobility, employment insecurity, safety risk) in the UK and Spain (countries with large immigration, flexible labour markets and volatile construction sectors). Transnational labour mobility can be seen as a structural response to recent European dilemmas over how to combine flexibility and security, through the creation of a hyper-flexible buffer of migrant workers who, being disposable in case of downturn, can carry most of the uncertainty burden without causing political problems. This raises two issues: the social sustainability of such segmentation, in particular with regard to occupational health and safety; and the role organized labour can have, in particular in organizing such workers. The issues are analysed through labour market statistics and interviews with unionists, ...

Opening Pandora's Box: The Sovereign Debt Crisis and Labour Market Regulation in Greece

Abstract: As a result of the loan agreements that the Greek government has concluded in the past two years with the International Monetary Fund, the European Central Bank and the European Commission, a policy of internal devaluation has been adopted in an effort to avoid a default of the economy and to allow Greece to remain within the Eurozone. The structural reforms undertaken in line with the loan agreements have been based on the premise that labour market regulation in Greece constituted a significant barrier to growth. To that end, essential features of the Greek labour law system have been amended, with significant implications for the role of the state and for the industrial relations actors. The reforms are not distributionally neutral, but aim to liberalise further and to deregulate key parts of the labour market and industrial relations system, and reduce the size and influence of the welfare state. There is growing evidence that the reforms have led to the deterioration of working and living conditions, while failing to deliver growth.

Young people and the post-recession labour market in the context of Europe 2020:

Abstract: This article examines how the recent global recession, together with the general flexibilization of labour markets, is affecting young people. We examine different forms of social exclusion, including unemployment, temporary employment contracts and periods of inactivity, as well as the subjective insecurity arising from such labour market exclusion. We also examine what Member States have done to address this issue, especially as part of their response to the crisis. At both EU (through the Europe 2020 strategy) and national levels specific policy measures exist that target young people in the labour market, but these are mostly supply-driven. Thus, they do not take into account the true problems young people are facing, including problems finding first-time employment and bad-quality jobs with little prospect of moving up the employment ladder. In conclusion, a new generation with higher exposure to systematic labour market risks than previous generations is being left to fend for itself with little appropriate state support.

"active judiciary": judicial dismantling of workers' collective action in china

Abstract: The market-driven economic transformation in China has made the rule of law increasingly important in labor relations. In the past three decades, the state has actively legislated on labor issues, passing three major laws: the Labor Law in 1994, the Trade Union Law in 2002 and the Labor Contract Law in 2008. These have laid down the legal foundation for labor relations, not only by defining workers’ rights, but also by stipulating procedures for labor disputes. Procedural systematization and the promulgation of labor laws have raised workers’ awareness of their legal rights, resulting in an exponential growth in labor disputes. This has brought courts to the forefront of labor dispute resolution. Scholars have focused on the role of the judicial process in settling labor disputes. They have examined how legal procedures have opened up new opportunities for workers to air their grievances and press for redress, and how legal and institutional changes have shaped legal mobilization. Laws have been viewed as “weapons” allowing discontented workers—mainly as individual litigators—to seek justice, or giving trade unions a role in legal aid, while the courts process workers’ individual claims. Nevertheless, the courts do not encounter only individual labor disputes. The past two decades have witnessed a growing number of collective labor

Transparent-making Documents and the Crisis of Implementation: A Rural Employment Law and Development Bureaucracy in India

Abstract: This article examines an attempt by the Indian state to render its developmental operations “transparent.” It does so by tracking the implementation of India's ambitious social security legislation, the National Rural Employment Guarantee Act 2005 (NREGA). NREGA is premised on the introduction of a vigorous transparency into a notoriously flawed state delivery system. On the basis of long-term immersion in the everyday world of government offices in northern India, I argue that transparent governance is, quite literally, made by documents. An ethnographic focus on “transparent-making documents” leads me to argue that they had the ironic and entirely unintended effect of making this particular developmental law extremely difficult to implement. I demonstrate my thesis on the crisis of implementation by attending initially to the overwhelming volume and forms of labor expected from lower-level development bureaucrats to produce the transparent-making documents. Subsequently, I turn to the kinds of work these papery artifacts were doing to argue that they were posing a hindrance to the regular working of the Indian state.

EU employment law

Abstract: PART ONE: INTRODUCTION 1 The Evolution of EU 'Social' Policy 2 Law-making in the Field of Social Policy 3 The Employment Title and the Lisbon Strategy PART TWO: MIGRANT WORKERS 4 Free Movement of (Economically Active) Persons and the Limitations on Free Movement PART THREE: EQUALITY LAW 5 Equality Law: An Introduction 6 Equal Pay 7 Equal Treatment 8 Family Friendly Policies 9 Equal Treatment in Respect of Social Security and Pensions PART FOUR: HEALTH AND SAFETY AND WORKING CONDITIONS 10 Health and Safety 11 Working Conditions PART FIVE: EMPLOYEE RIGHTS ON RESTRUCTURING ENTERPRISES 12 Transfers of Undertakings 13 Collective Redundancies and Employees' Rights on the Employer's Insolvency PART SIX: COLLECTIVE LABOUR LAW 14 Worker Involvement in Decision-Making 15 Freedom of Association, Collective Bargaining, and Collective Action

Are Labour Rights Human Rights

Abstract: Are labour rights human rights? This question has attracted much interest in recent years among lawyers, academic scholars, trade unionists and other activists, and has given rise to heated debates. In human rights law and labour law scholarship, some endorse the character of labour rights as human rights without hesitation, while others view it with scepticism and suspicion. This article finds that there are in fact three different approaches in the literature that examines labour rights as human rights, which are not always distinguished with sufficient clarity. First, there is a positivistic approach, according to which a group of rights are human rights insofar as certain treaties recognise them as such. The question whether labour rights are human rights is uncomplicated on this approach, which is often found in international law scholarship. A response to it comes through a survey of human rights law. If labour rights are incorporated in human rights documents, they are human rights. If they do not figure therein, they are not human rights. A second way in which the question of this article is approached is an instrumental one that looks at the consequences of using strategies, such as litigation or civil society action, which promote labour rights as human rights. This is the most common way in which labour law scholars analyse the problem in question. If strategies are, as a matter of social fact, successful, the question is answered in the affirmative; if not, scepticism is expressed. The third approach to the question whether labour rights are human rights is a normative one. It examines what a human right is, and assesses, given this definition, whether certain labour rights are human rights. This path is the one that has been least taken in the literature, but is an important one and has implications for the previous two approaches. This article maps out the three approaches above, addresses the main arguments advanced in scholarship and explores their implications.

Rule of Law with Chinese Characteristics: The Role of Campaigns in Lawmaking

Abstract: China increasingly relies on its legal system to regulate a broad spectrum of social and economic activity. There is, however, widespread failure to observe the law, which periodically leads to social crises and popular unrest. The Chinese state is not, of course, alone in experiencing this, but it responds to enforcement failures in distinctive ways. This article examines one such response. In this article, we explore the role played by the enforcement campaign in the development of the Chinese legal system. We focus on one campaign in particular: the campaign that was waged between 2004 and 2007 to redress the chronic failure to pay wages. Chinese enforcement campaigns are not simply directed at securing greater compliance with existing law. They are integrally linked to cycles of law reform in the PRC. Whilst their main impact is on enforcement, they also have an important role in influencing the drafting of legislation and the interpretation of law. This article documents the impact of this campaign on the production of law: in speeding up the iterative process of lawmaking, interpretation, and implementation, with production of important reforms to existing labour law in 2007 and 2008. It is the strong "planned" nature of the campaign and its emphasis on state leadership of lawmaking and enforcement that continues to shape the development of China's particular version of the "rule of law." © 2012 The Authors. Law & Policy © 2012 The University of Denver/Colorado Seminary.

What Drives the Demand for Temporary Agency Workers

Abstract: As part of the general trend towards increased employment flexibility temporary agency employment has grown steadily in most European countries. The paper examines, first, whether the deregulation of temporary agency employment is responsible for the growth of the flexible staffing industry. Second, we investigate the cyclical behavior of temporary agency employment. Using monthly data for Germany, we show that the liberalization of the law regulating the sector is not the main reason for the surge of this employment form. Our analysis reveals, moreover, that temporary agency employment exhibits strong cyclical behavior and correlates with main economic indicators in real time.

Beyond Employment: The Legal Regulation of Work Relationships

Abstract: Australian labour law, at least from the mid-twentieth century, was dominated by the employment paradigm: the assumption that labour law’s scope was the regulation of employment relationships –full-time and part-time, and continuing, fixed term or casual – with a single (usually corporate) entity employer. But no sooner had the employment paradigm established and consolidated its shape, it began to fall apart. Since the 1980s there has been a significant growth of patterns of work that fall outside this paradigm, driven by organisational restructuring and management techniques such as labour hire, sub-contracting and franchising. Beyond Employment analyses the way in which Australian labour law is being reframed in this shift away from the pre-eminence of the employment paradigm. Its principal concern is with the legal construction and regulation of various forms of contracting, including labour hire arrangements, complex contractual chains and modern forms like franchising, and of casual employment. It outlines the current array of work relationships in Australia, and describes and analyses the way in which those outside continuous and fixed term employment are regulated. The book seeks to answer the central question: How does law (legal rules and principles) construct these work relationships, and how does it regulate these relationships? The book identifies the way in which current law draws the lines between the various work relationships through the use of contract and property ownership, and describes, analyses and synthesises the legal rules that govern these different forms of work relationships. The legal rules that govern work relationships are explored through the traditional lens of labour law’s protective function, principally in four themes: control of property, and the distribution of risks and rewards; maintenance of income security; access to collective voice mechanisms, focusing on collective bargaining; and health, safety and welfare. The book critically evaluates the gaps in the coverage and content of these rules and principles, and the implications of these gaps for workers. It also reflects upon the power relationships that underpin the work arrangements that are the focus of the book and that are enhanced through the laws of contract and property. Finally, it frames an agenda to address the gaps and identified weaknesses insofar as they affect the economic wellbeing, democratic voice, and health and safety of workers.

Childhood and child labour in the British industrial revolution 1

Abstract: Quantitative and qualitative analysis of a large number of autobiographies by working men who lived through the industrial revolution has demonstrated that there was an upsurge in child labour in the late eighteenth and early nineteenth centuries with children’s work entrenched in traditional sectors as well as spreading in newly mechanized factories and workshops. I have interpreted this rise in terms of the appearance of a new equilibrium in the early industrial economy with more and younger children at work. The new equilibrium, in turn, was related to a number of co-incidental developments including: an increase in the relative productivity of children as a result of mechanization, new divisions of labour, and changes in the organization of work; the dynamics of competitive dependence linking labour market and families; high dependency ratios within families; stumbling male wages and pockets of poverty; family instability; and breadwinner frailty. The establishment of these links forges a new synchronization between revised views of the industrial revolution and a revisionist history of child labour. M y recent monograph, Childhood and child labour in the British industrial revolution, looked at the role of child labour not as reconstructed from the standard sources with their middle-class standpoint, reformist purpose, and social control agenda, but as history from below. My interest was in how the child workers of the industrial revolution themselves understood their suffering and made sense of their labour. I considered whether children’s work was only a means to survive, and if so how it related to the household economy and the challenging labour market of the era, or whether it also delivered training, or a step on a career ladder, or even an escape into new adventure. This article provides an overview of the larger work but concentrates on the causes and chronology of child labour, and in particular how it fits into broader narratives of British industrialization. To this end I integrate some elements of my history from below with a novel theoretical framework and evidence from other sources. I argue that child labour, in terms of child participation rates and younger working, increased during the classic era of industrialization, and that this influenced the pace and nature of economic change. To make this argument from the bottom up, I use working people’s own accounts of their lives, weaving together the measurable dimensions of child labour with annotations about what work involved, how it felt, and why it needed to be

Challenging the legal boundaries of work regulation

Abstract: 1. Blurring Legal Boundaries: Regulating for Decent Work Judy Fudge PART I: INFORMALITY AT WORK 2. Flexibility and Informalisation of Employment Relationships Kamala Sankaran 3. Transform or Perish: Changing Conceptions of Work in Recycling Poornima Chikarmane and Lakshmi Narayanan 4. Informal Sectors and New Industries: The Complexities of Regulating Occupational Health and Safety in Developing Countries Richard Johnstone PART II: BETWEEN THE BORDERS OF EMPLOYMENT AND COMMERCIAL LAW 5. Legal Responsibility for Labour Conditions Down the Production Chain Alan Hyde 6. A Blurred Boundary between Entrepreneurship and Servitude: Regulating Business Format Franchising in Australia Joellen Riley 7. Developing Legislative Protection for Owner Drivers in Australia: The Long Road to Regulatory Best Practice Brendan Johnson 8. Organising Independent Contractors: The Impact of Competition Law Shae McCrystal 9. Regulation of Dependent Self-employed Workers in Spain: A Regulatory Framework for Informal Work? Juan-Pablo Landa Zapirain 10. Freelancers: An Intermediate Group in Labour Law? Guy Davidov PART III: PAID CARE WORKERS-THE SIGNIFICANCE OF INSTITUTIONS FOR DECENT WORK 11. The Wages of Care-workers: From Structure to Agency Guy Mundlak 12. Sector-based Collective Bargaining Regimes and Gender Segregation: A Case Study of Self-employed Home Childcare Workers in Quebec Stephanie Bernstein 13. From 'Domestic Servant' to 'Domestic Worker' Einat Albin 14. Employment Agencies and Domestic Work in Ghana Dzodzi Tsikata PART IV: REGULATING FOR DECENT WORK 15. Corporate Codes of Conduct in the Garment Sector in Bangalore Roopa Madhav 16. How Britain's Low-paid Non-unionised Employees Deal with Workplace Problems Anna Pollert 17. Learning from Case Law Accounts of Marginalised Working Lizzie Barmes

Corporate Governance in Crisis? The Politics of EU Corporate Governance Regulation

Abstract: This article emphasises the essentially political nature of corporate governance regulation and argues that the transformation of corporate governance regulation is part of a broader political project of economic restructuring and market-making in the EU. The first part of the analysis focuses on the transformation of company law and corporate governance in the last decade. Here, the article illustrates how company law has become increasingly focused on the rights of shareholders, while worker rights have been relegated to the area of social policies and labour law. The study also traces the shift from a legislative programme centred on company law harmonisation towards a regulatory approach based on minimum requirements and mutual recognition, increasingly geared at adjusting the governance of corporations to the demands of liberalised capital markets. The second section then reflects on the current developments in corporate governance regulation in the context of financial and economic crisis.

Empowering Women: Legal Rights and Economic Opportunities in Africa

Abstract: This book looks at the effect of legal and economic rights on women's economic opportunities. It focuses on entrepreneurship because women in Africa are active entrepreneurs, and the links between property rights and the ability to enter contracts in one's own name affect entrepreneurial activities. The laws that are the focus of this book are not business laws and regulations, which are generally gender blind and presuppose that individuals can own property or enter into contracts. Instead, the book examines family, inheritance, and land laws, which oft en restrict these rights in ways that hurt women. This book surveys constitutions and statutes in all 47 countries in Sub-Saharan Africa to document where gender gaps in these laws impinge on women's legal capacity, property rights, or both. The book also looks at some labor law issues, such as restrictions on the types of industries or hours of work in which women may engage and provisions for equal pay for work of equal value. These laws affect women as employees and influence the attractiveness of wage employment versus entrepreneurship. They were also selected because they affect the choice of enterprise women may run. The equal pay for work of equal value provisions are also of interest as an indicator of the recognition of women's broader economic rights. This book provides a series of indicators that show whether a country does or does not provide particular legal provisions. Several points are worth emphasizing in interpreting these indicators. First, the indicators are binary; there is no attempt to differentiate between small and large gender gaps. Second, the indicators are not used to generate an index or otherwise aggregate the indicators; no weights are given to differentiate the relative importance of different sets of laws. Third, the indicators reflect whether certain legal provisions are recognized in a country or not; because the link between the indicator and gender gaps is not always straightforward, care must be taken in making value judgments. Although some indicators reveal that women are treated equally or identify gender differences in treatment, others do not. Although recognition of these sources of law can have implications for women's rights, it does not necessarily imply that women's rights are stronger or weaker. Conversely, the inclusion of some protections for women's rights may reflect not the strong standing of women but rather the fact that gender equality is not seen as axiomatic and needs to be explicitly stated. Second and third chapters focus on formal rights and how they have been upheld in court decisions. Fourth chapter examines the gap between laws on the books and practice on the ground. Fifth chapter looks at how both the substance of law and women's access to justice issues can be improved to expand women's ability to pursue economic opportunities.

Unions, dynamism, and economic performance

Abstract: This paper explores the relationship between economic performance and US unionism, focusing first on what we do and do not know based on empirical research handicapped by limited data on establishment and firm level collective bargaining coverage. Evidence on the relationship of unions with wages, productivity, profitability, investment, debt, employment growth, and business failures are all relevant in assessing the future of unions and public policy with respect to unions. A reasonably coherent story emerges from the empirical literature, albeit one that rests heavily on evidence that is dated and (arguably) unable to identify truly causal effects. The paperﾒs principal thesis is that union decline has been tied fundamentally to competitive forces and economic dynamism. Implications of these findings for labor law policy and the future of worker voice institutions is discussed briefly in a final section.

Regional Trade Agreements and domestic labour market regulation

Abstract: This chapter discusses the relationship between labour market regulation and regional trade agreements from both a legal and an economic angle. We examine empirically whether regional trade liberalisation is associated with deterioration (“race to the bottom”) of domestic labour standards beyond those reflected in the 1998 ILO Declaration on the Fundamental Principles and Rights at Work. Using a panel of 90 developed and developing countries, covering the years from 1980 to 2005, we find that after the entry into force of a regional trade agreement (RTA), labour standards applying to employment protection and unemployment benefits are significantly weakened. We show that such a lowering of protection levels tends to occur in high income countries and that this effect mainly stems from RTAs among such countries rather than with low or middle income countries. Concern about competitive pressure to weaken domestic labour regulation is reflected in a variety of undertakings in RTAs not to administer labour laws with a view to improving one’s competitive position in trade or foreign direct investment (FDI). The above-mentioned empirical findings indicate that such provisions could potentially become relevant, and that this is more likely to be the case for high income members of RTAs. Our analysis, from a legal point of view, of relevant institutional and procedural mechanisms indicates however that enforceability of the relevant provisions is weak for most of the existing legal texts.

Employment Protection and Collective Bargaining: Beyond the deregulation agenda

Abstract: Employment protection can be achieved either through legislation or collective bargaining. Moreover, these combined with effective labour policies ensure labour market security – a more comprehensive understanding of protection that goes beyond one job or employer. Labour market security provides protection combined with unemployment insurance, minimum wage, training and other labour policies that facilitate transition from unemployment and employment while providing protection to those who are already in employment. Because of the recent trend towards deregulation and decentralization, this paper only examines employment protection legislation and industrial relations, the other aspects of security are left out of the paper.

The Crisis and National Labour Law Reforms: A Mapping Exercise

Abstract: This Working Paper maps the labour law reforms in various European countries either triggered by the crisis or introduced using the crisis – falsely – as an excuse. Such reforms generally render existing labour law provisions more flexible and loosen minimum standards, shifting the emphasis to soft law (deregulation). In some countries it consists only of piecemeal although significant deregulatory measures, while in others it involves far-reaching overhauls of the whole labour code. Furthermore, in several countries fundamental changes are being made to industrial relations structures and processes which might jeopardise social dialogue and collective bargaining there. The authors critically address this large-scale deregulation of labour law currently taking place, in particular the lack of democratic foundations underlying the reforms and their negative impact on fundamental social rights and workers’ protection. The working paper is also complemented with an annex providing an analysis of the reforms on a country by country basis. These country studies will be regularly updated and are available and downloadable in English only.

Economic analysis of labor markets and labor law: An institutional/industrial relations perspective

Abstract: In the twentieth century two intellectual traditions were the most influential in the American field of labor economics. The first was the tradition of institutional economics (IE) and its close offshoot industrial relations (IR), the second was the tradition of neoclassical economics (NE). This cleavage is refracted into the modern field of labor law where on one side is an IEIR-oriented traditional approach to labor law (e.g., Deakin and Wilkinson 2005; Estlund 2006; Arthurs 2007) and, on the other, a largely NE-inspired law and economics (LE Posner 2007; Medema 2010).

Informal employment in urban China : measurement and implications

Abstract: Because of China's socialist legacy, until recently little attention has been paid to the rise of informal employment. Under planning urban workers enjoyed guaranteed employment, housing, pensions, and health care. The prevalence of informal employment has important implications for public policies, because informality is often associated with poverty and social vulnerability, and it affects tax collection, the enforcement of labor regulations, and the provision of adequate social protection to workers and their families. Informality thus can be characterized by dualism, including both those who engage in informal work of their own volition and those who do so involuntarily because they are systematically excluded from formal employment opportunities. The goal of this paper is to provide for the first time an accurate measurement of informal employment in China by analyzing data from recent household surveys collected in six large Chinese cities in 2010. The surveys were designed by the authors with questions included to enable measurement of informality using accepted international standards set by the International Labour Organization (ILO) as well as by considering factors relevant in the Chinese context. The authors provide a number of insights into the extent and nature of informal employment and labor market development in China. The large payroll charges for social insurance programs create a disincentive for both employers and employees to participate.

Employment protection and industrial relations: Recent trends and labour market impact

Abstract: The chapter documents recent reforms in employment regulations, employment protection and collective bargaining and assesses the employment effects - both in terms of job quantity and quality - of these measures.

Employment law initiatives, work, care and diversity.

Abstract: .........................................................................................i Declaration .....................................................................................iii Acknowledgements ............................................................................v Chapter 1: Introduction and Overview ....................................................1 1.

Multinational corporations, global civil society and Chinese labour: Workers’ solidarity in China in the era of globalization:

Abstract: The evolution of international production chains has facilitated the flow of industrial capital from developed countries into China. Multinational corporations in China apparently make huge profits through exploiting cheap labour, but they also exert pressure on their contractors to improve workers’ rights. International non-governmental organizations enter into the relationship with their moral force and global networks. The authority of the All-China Federation of Trade Unions was challenged, and new channels were offered in fighting for workers’ rights. But within the existing Chinese political system and labour-market system, their roles all remain limited; the protection and promotion of workers’ rights in China still demand a reform of the prevalent systems.

Collective Regulation of Wages and Conditions in Aged Care: Beyond Labour Law

Abstract: This article considers the collective regulation of wages and conditions in the highly feminized residential aged care workforce. It argues that the traditional regulation of wages and conditions t...

The right and labor in America : politics, ideology, and imagination

Abstract: Introduction. Entangled Histories: American Conservatism and the U.S. Labor Movement in the Twentieth and Twenty-First Centuries -Nelson Lichtenstein and Elizabeth Tandy Shermer I. THE CONSERVATIVE SEARCH FOR SOCIAL HARMONY Chapter 1. Unions, Modernity, and the Decline of American Economic Nationalism -Andrew Wender Cohen Chapter 2. The American Legion and Striking Workers During the Interwar Period -Christopher Nehls Chapter 3. Democracy or Seduction? The Demonization of Scientific Management and the Deification of Human Relations -Chris Nyland and Kyle Bruce II. REGION, RACE, AND RESISTANCE TO ORGANIZED LABOR Chapter 4. Capital Flight, "States' Rights," and the Anti-Labor Offensive After World War II -Tami J. Friedman Chapter 5. Orval Faubus and the Rise of Anti-Labor Populism in Northwestern Arkansas -Michael Pierce Chapter 6. "Is Freedom of the Individual Un-American?" Right-to-Work Campaigns and Anti-Union Conservatism, 1943-1958 -Elizabeth Tandy Shermer III. APPROPRIATING THE LANGUAGE OF CIVIL RIGHTS Chapter 7. Singing "The Right-to-Work Blues": The Politics of Race in the Campaign for "Voluntary Unionism" in Postwar California -Reuel Sc hiller Chapter 8. Whose Rights? Litigating the Right to Work, 1940-1980 -Sophia Z. Lee Chapter 9. "Such Power Spells Tyranny": Business Opposition to Administrative Governance and the Transformation of Fair Employment Policy in Illinois, 1945-1964 -Alexander Gourse IV. THE SPECTER OF UNION POWER AND CORRUPTION Chapter 10. Pattern for Partnership: Putting Labor Racketeering on the Nation's Agenda in the Late 1950s -David Witwer Chapter 11. "Compulsory Unionism": Sylvester Petro and the Career of an Anti-Union Idea, 1957-1987 -Joseph McCartin and Jean-Christian Vinel Chapter 12. Wal-Mart, John Tate, and Their Anti-Union America -Nelson Lichtenstein Chapter 13. "All Deals Are Off": The Dunlop Commission and Employer Opposition to Labor Law Reform -John Logan Chapter 14. Is Democracy in the Cards? A Democratic Defense of the Employee Free Choice Act -Susan Orr Notes List of Contributors Index

Who is an Employer in the Triangular Employment Relationship? Sorting Through the Definitional Confusion

Abstract: Employers in the United States are increasingly utilizing staffing firms, employee leasing firms, temporary employment agencies and other third parties to help manage contingent labor in their organizations. The use of such triangular relationships creates complexities in the rights and responsibilities of each party, partially due to the variation in how U.S. employment law defines employers and employees across statutes. We analyze the various definitions of employee and employer across key U.S. employment statutes (e.g., Civil Rights Act of 1964, ADA, FMLA, FLSA), tests used by the courts in their decision making, and IRS regulations and evaluate the impact of these definitions on the use of contingent employees in triangular relationships. We review existing case law relevant to discrimination and non-discrimination statutes and identify key areas of risk and responsibility for both the individuals employed as contingent workers and firms that use contingent labor. Finally, we offer recommendations for strategically managing contingent labor in the current legal context.