Showing papers on "Labour law published in 2016"

Digitalisation of the Economy and its Impact on Labour Markets

Abstract: This working paper gives an overview of the new possibilities opened up by the 4th industrial revolution and tackles some specific questions in relation to its effects on the labour market, including on the status of employees, on working conditions and on training. It examines the role that trade unions can play in the digital economy and the main initiatives already proposed at European trade union level in this context.

Commoditized Workers. Case Study Research on Labour Law Issues Arising from a Set of 'On-Demand/Gig Economy' Platforms

Abstract: In the framework of the so-called “sharing economy”, the number of on-demand companies matching labour supply and demand is on the rise. These schemes may enlarge opportunities for people willing to find a job or to top up their salaries. Despite the upsides of creating new peer marketplaces, these platforms may also be used to circumvent employment regulation, by operating informally in traditionally regulated markets.Literature showed how, by 2009, over 2 million worker accounts had been generated within these frameworks. Productivity may be fostered but, at the same time, a new version of Taylorism is disseminated (i.e. the fragmentation of labour into hyper-temporary jobs – they call them microtasks – on a virtual assembly line), strengthened by globalisation and computerisation. All these intermediaries recruit freelance or casual workers (these continue to be independent contractors even though many indicators seem to reveal a disguised employment relationship).Uncertainty and insecurity are the price for extreme flexibility. A noteworthy volume of business risk is shifted to workers, and potential costs as benefits or unemployment insurance are avoided. Minimum wages are often far from being reached.This paper will present a case study analysis of several “on-demand work” platforms, starting from the Amazon Mechanical Turk, one of the first schemes founded in 2005, which is arguably “employing humans-as-a-service”. It splits a single service in several micro “Human Intelligence Tasks” (such as tagging photographs, writing short descriptions, transcribing podcasts, processing raw data); “Turkers/Providers” (workers) are selected by “Requesters” to rapidly accomplish assignments online, are then rated according to an internal system and are finally paid (also in gaming credits) only if delivery is accepted. After having signed up and worked within some platforms, I comment upon TaskRabbit (thousands people on the service who bid to do simple manual tasks), Handy and Wonolo (personal assistance at a local level), oDesk and Freelancer (online staffing), Uber and Lyft (peer-to-peer ridesharing), Airbnb (hosting service), InnoCentive (engineering solutions), Axiom (legal research or service), BitWine (consultancy).Finally I highlight downsides and upsides of work in these platforms by studying terms of service or participation agreements to which both parties have to agree. I look into several key features such as (i) means of exchange/commodities, (ii) systems of payment, (iii) demographics, (iv) legal issues concerning status and statutory protection of workers, indicators of subordination, treatment of sickness, benefits and overtime, potential dispute resolution, and deprived “moral valence of work” and I discuss potential strategies to address these issues.

Commission on Civil Rights

Abstract: AGENCY: United States Commission on Civil Rights. ACTION: Briefing Notice DATES: Date and Time: Monday, March 16, 2015; 9:00 am – 5:00 pm EST. ADDRESSES: Place: 1331 Pennsylvania Ave, NW, Suite 1150, Washington, DC FOR FURTHER INFORMATION CONTACT: Lenore Ostrowsky, Acting Chief, Public Affairs Unit (202) 376-8591. Hearing-impaired persons who will attend the briefing and require the services of a sign language interpreter should contact Pamela Dunston at (202) 376-8105 or at signlanguage@usccr.gov at least seven business days before the scheduled date of the meeting.

Dualization or liberalization? Investigating precarious work in eight European countries:

Abstract: A recent upsurge in the incidence of precarious work in Europe necessitates fresh examination of the origins of this trend. On the basis of field research in eight European countries and with reference to theories of liberalization and dualization, the factors that drive precarious work in discrete European labour markets are thus investigated. It is discovered that, while a structural-demographic factor such as non-compliance with labour law is a notable progenitor of precarious work, the deregulatory strategies of public authorities are particularly significant drivers. In conclusion it is asserted that although the theory of dualization helps explain developments in conservative-corporatist countries, in Anglophone and Mediterranean countries liberalization theory is generally more apposite. Central and Eastern European (CEE) countries emerge as a hybrid case.

New Zealand's turbulent waters: the use of forced labour in the fishing industry

Abstract: In this article, we make an empirical and conceptual contribution to the emerging debate on unfree labour in the context of labour chains and global value chains. We recast an historical view of poor labour practices aboard some foreign charter vessels fishing in New Zealand's waters as something more nefarious. Applying the International Labour Organization (ILO) and European Commission (EC) operational indicators of human trafficking for forced labour to 293 interviews, we evaluate the extent to which we can consider migrant fishing crew aboard South Korean vessels as victims of forced labour. We find that they are indeed victims of forced labour and that there is a need to extend the ILO/EC operational indicators to take into account exit strategies. Specifically, there is insufficient recognition of deception, exploitation and coercion at the point of exit, which can prevent a trafficked victim from exiting the employment relationship. Thus, it is crucial to take account of all stages, from recruitment to exit, to understand fully unfree labour in labour and global value chains.

Employment Rights in the Platform Economy: Getting Back to Basics

Abstract: The employment status of workers for “platform economy” firms such as Uber, Lyft, TaskRabbit and Handy has become a significant legal and political issue. Lawsuits against several such companies allege that they have misclassified workers as independent contractors to evade employment law obligations. Various lawmakers and commentators, pointing to the complexity of existing tests for employment and the costs of employment duties, have responded with proposals to limit platform companies’ liability. This article steps into such debates, using the status of Uber drivers as a test case. It argues that Uber drivers may not fall neatly into either the “employee” or the “independent contractor” category under existing tests. Nevertheless, an important principle underlying those tests — the anti-domination principle — strongly indicates that the drivers are employees. That principle also indicates that proposals to limit platform economy firms’ liabilities are premature at best and misguided at worst.

Hyper-mobile migrant workers and Dutch trade union representation strategies at the Eemshaven construction sites

Abstract: The EU regulatory regime and employers’ cross-border recruitment practices complicate unions’ ability to represent increasingly diverse and transnationally mobile workers. Even in institutional contexts where the industrial relations structure and labour law are favourable, such as the Netherlands, unions struggle with maintaining labour standards for these workers. This article analyses Dutch union efforts to represent hyper-mobile construction workers at the Eemshaven construction sites. It shows that the nexus of subcontracting, transnational mobility, legal insularity and employer anti-unionism complicate enforcement so that even well-resourced unions can, at best, improve employment conditions for a limited set of workers and only for a limited period of time.

Can labour provisions work beyond the border? Evaluating the effects of EU free trade agreements

Abstract: The European Union (EU) has approximately fifty bilateral trade agreements in place with partners across the world, and more than twenty more that are at various stages of the negotiating process. At the same time as they increase in number, these agreements also increase in scope. EU trade agreements now cover a wide range of regulatory measures, including ‘Trade and Sustainable Development’ chapters, which, among other things, contain obligations in relation to labour standards. These labour standards provisions follow a common model (with limited variations) and adopt an approach which has been described as ‘promotional’ rather than ‘conditional’. In the context of the broader debate about the purpose and efficacy of the labour and trade linkage, this article examines the possibilities and limitations of the EU's new provisions on labour standards. It draws attention to the limited research on the impact of existing provisions ‘on the ground’ with respect to different types of agreements, and why this is problematic. It then concludes with proposals for a research agenda that can fill this gap, involving a set of methodologies requiring greater concern for firm and country-level assessment of changes arising from the implementation of this new breed of EU bilateralism and directed to the question of whether EU labour standards can really work ‘beyond the border’.

Introduction: Crowdsourcing, the Gig-Economy and the Law

Abstract: The Comparative Labor Law & Policy Journal is publishing a collection of papers on the gig-economy and labor law, edited by Valerio De Stefano (International Labour Office and Bocconi University). This collection, entitled “Crowdsourcing, the Gig-Economy and the Law”, gathers contributions from several labour lawyers and social scientists to provide a comprehensive analytical overview of work in the gig-economy, testing the validity of several assumptions underlying the general debate on platform-based work, and advancing policy options for labour and social protection of this work. Contributing authors are Antonio Aloisi, Janine Berg, Miriam Cherry, Valerio De Stefano, Matt Finkin, Lili Irani, Jeremias Prassl, Martin Risak, and Six Silberman. This article introduces this collection and gives an overview of the issues discussed by the authors.

Labour Market Segmentation and the EU Reform Agenda: Developing Alternatives to the Mainstream

Abstract: European employment regulation has been repeatedly identified by policymakers as too stringent resulting in policy recommendations aimed at a more flexible labour market. This diagnosis has been reaffirmed, particularly by international policymakers, in the post-2008 economic and jobs crisis with high employment protection regarded as harmful for employment, responsible for boosting precarious jobs and likely to result in social costs including unemployment. The labour market reforms pushed by the European Commission after 2010 targeted reducing employment protection legislation (EPL) with the dual expectation that they will revive “job creation in sclerotic labour markets while tackling segmentation and adjustment at the same time” (European Commission 2012, 4).In this paper the authors argue that the current — overwhelmingly de-regulatory — reform agenda is too narrowly specified. Above all, the debate needs to be turned around from the focus on de-regulation to the role of re-regulation for inclusive labour markets. With the focus on costs-related disincentives for employers to use standard forms of employment, the dominant debate fails to recognise a more complex set of problems that may put groups of workers at risk of exclusion.

Employment and Social Security Rights of Third-Country Labour Migrants under eu Law: An Incomplete Patchwork of Legal Protection

Abstract: Labour migration within the European Union (EU), as well as from outside the EU, has evolved significantly. There are more temporary forms of labour migration, such as seasonal work, temporary migration of both high- and low-skilled workers and temporary posting by employers. This evolution has led to an increasing vulnerability of labour migrants’ rights. In particular, the employment and social rights of these migrants are subject to legal disputes, as well as to political discussions. The latter resulted in the adoption of legal instruments meant to guarantee some rights to labour migrants, but which in some cases rather increased their vulnerability. This article explores the issues of employment and social protection of third-country migrant workers in legal instruments of the EU. It starts with an examination of a number of EU directives dealing specifically with labour migration from third countries such as the Blue Card Directive 2009/50, the Employers’ Sanctions Directive 2009/52, the Single Permit Directive 2011/98, the Seasonal Workers Directive 2014/36 and the Intra-corporate Transferees Directive 2014/66 (Section 2). This section also explores the interaction between these instruments as well as their shortcomings. Next, this article focuses on international agreements concluded by the EU with third countries. A large number of these agreements contain provisions which, directly or indirectly, regulate the employment and social security rights of nationals of the third States involved (Section 3). Further, it will comment on the issue of (the absence of) social security coordination between the systems of the Member States and those of third countries (Section 4). Finally, it draws some conclusions and pleads for a better enforcement of the rights already guaranteed and for a more prominent role for the protection of human rights (Section 5).

The Gig Economy & The Future of Employment and Labor Law

Abstract: In April 2016, Professor Orly Lobel delivered the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. Lobel asks, what is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? She proposes four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others. The first path is to clarify and simplify the notoriously malleable classification doctrine; the second is to expand certain employment protections to all workers, regardless of classification, or in other words to altogether reject classification; the third is to create special rules for intermediate categories; and the fourth is to disassociate certain social protections from the work.

Working hard or hardly working? : Evaluating New Labour's active labour market policy.

Abstract: When New Labour were elected in 1997, the party’s leader, Tony Blair, claimed the dawn of radical labour market reforms that would substantially reduce long-term unemployment and welfare dependency. This thesis is an evaluation of New Labour’s active labour market policy (ALMP), and focuses on the three central components of that policy agenda: the New Deal programmes, Tax Credit programmes and the National Minimum Wage. These reforms were targeted at key client groups such as the young (defined as those aged 18 to 25 year olds), the long-term unemployed, those aged over 50, the disabled and lone-parents. This thesis adopts Economics of Conventions (EC) as its focal theory, and uses a range of quantitative methods to analyse official labour market data while drawing into question the trajectories of improvement found in the official statistics. It also provides a systematic review of existing evaluative research including that conducted by the Department for Work and Pensions, Low Pay Commission and HM Treasury. This thesis found that rates of unemployment declined while New Labour were in power, arguably as a result of strong economic growth but potentially as a result of their ALMP. Rates of economic activity and inactivity did not significantly change, even after the introduction of additional obligations on lone parents. However, due to the introduction of programmes like the New Deal for Young People, individuals were re-categorised, drastically altering labour market statistics and trends. Indeed, when it comes to the justification and evaluation of their ALMP, New Labour made clear moral judgements about ‘the deserving poor’ and ‘the undeserving poor’ based on links between rights and responsibilities of benefit claimants. Indeed, the economic policies of New Labour continued and promoted neo-liberal precepts of labour market management, i.e. they focused on individual behaviour and personal responsibility, at the expense of potentially more effective policy alternatives.

Intra-European labour migration and deteriorating employment relations in Danish cleaning and agriculture: Industrial relations under pressure from EU8/2 labour inflows?

Abstract: Eastern and Central European labour migration following the EU enlargement has significant impact on the Nordic labour markets. This article demonstrates, through sector-based case studies in Denmark, how labour migration influences working condition and wages in two sectors that have so far only been sparsely studied: the agriculture and cleaning industries. The high inflow of labour migrants is used by some employers to bypass and undermine the institutionalized class compromise, by employing EU8/2-workers at lower wages and often without collective agreements coverage frequently combined with below average working conditions. This put strains on the Danish agreement-based model of industrial relations, potentially leading to a more segmented labour market as well as replacement of native, mainly low-skilled workers with EU8/2-workers.

From Amazon to Uber: Defining Employment in the Modern Economy

Abstract: American companies increasingly hire workers without offering them formal employment. Because nearly all workplace protections apply only to “employers” and “employees,” businesses avoid these labels by delegating their employment responsibilities to workers and intermediaries. For example, Amazon hires third-party contractors to staff its distribution centers and Uber invites only independent contractors to join its platform. As nonemployees, these workers cannot enforce such basic workplace rights as overtime and antidiscrimination protections.Assessing the growing asymmetry between workers and firms, this Article critically evaluates what it means to employ workers today. Many companies disclaim their status as employers by claiming that they do not exercise daily, direct control over workers. But such a binary approach to control unnecessarily constrains the meaning of employment. In fact, employment status has never depended on whether firms control the minutia of workplace details. Rather, businesses today become employers when they meaningfully influence working conditions, even if layers of contractual relationships obscure that power.Proposing a model for delineating the reach of employment law, this Article calls upon courts to assess three specific aspects of workplace control: the subjects of control, direction of control, and obligations of control. From peer-to-peer platforms that hire independent contractors to more traditional businesses that retain workers through intermediaries, companies that deny their status as employers may still effectively control the manner and means of work. Whether it is Amazon setting its contractors’ pay scale, FedEx specifying the color of its drivers’ socks, or Uber telling its drivers to play soft jazz, firms that control contractual outcomes frequently control working conditions as well. By analyzing these diverse permutations of control, this Article provides a framework for defining employer-employee relationships in contemporary workplace settings.

The Status of Uber Drivers: A Purposive Approach

Abstract: The status of Uber drivers – the question of whether they are independent contractors (as argued by Uber) or employees – has been the subject of a heated debate recently. The goal of this paper is to address this question at the normative level: what should the law be in this regard? It begins, in part II, by briefly discussing some preliminary issues about how to address the problem: does it make sense to retain the employee/independent contractor distinction at all? Is it justified to maintain an “all or nothing” dichotomy? Should we leave the determination of “who is an employee” to courts? And finally, how should we interpret the term “employee” that appears in legislation? As will become clear, my approach is purposive, and Part III outlines – based on my previous writings – what this means in the context of identifying an employment relationship that justifies the application of labour laws. I will briefly consider several goals of labour law, and suggest that the most useful level of abstraction for current purposes is to focus on the unique vulnerabilities of employment, which I identify as democratic deficits (subordination, broadly conceived) and dependency (economic as well as for social/psychological needs). Finally, part IV applies these general principles to the specific context of Uber drivers, concluding eventually that Uber drivers should be considered employees.

Labour law, enforcement and the rise of temporary contract workers: empirical evidence from India’s organised manufacturing sector

Abstract: There is an intense debate on the impact of labour regulation in India today Labour regulation in India differ state-wise and apply differently across types of workers (both regular and contract workers) This paper examines the joint effects of Employment Protection Legislation (EPL) and variable enforcement intensity on the growth in a size of temporary contract workers in the organised manufacturing sector It uses the state level amendments to Industrial Dispute Act of 1947, and the average size of total number of labour inspectors for each state, as independent variables to capture the variation in labour regulations and enforcement intensity across thirty-one Indian states for the period 2000–2007 This paper argues that, average Indian firms located in strict EPL states hire differentially more temporary contract workers as compare to regular workers in response to variable enforcement intensity Among other findings, the empirical analysis shows that firms prefer to employ excessive number of contract workers to circumvent firing and overall compliance costs of regular workers as stipulated by the Indian labour laws Our results are robust to alternative specifications

Within and against the law : the politics of labour law in China's adaptive authoritarianism

Abstract: This thesis seeks to answer how and why legal institutions, in particular laws, sustain authoritarianism in China. This thesis questions the paradox of law as domination and resistance: laws sustaining the CPC’s adaptive authoritarianism, or opening up avenues for political contestation and bringing about political change. It does so through the study of the political role of labour laws in China, combining an institutionalist perspective with a law and society approach. First, it argues that labour laws have been developed to support the capitalist economy, enforcing property rights and institutionalizing the rule of the Party-state. Second, through ethnographic-oriented research of three case studies of legal aid/labour non-governmental organizations (LAL NGOs) in Beijing, it demonstrates that labour laws, lawyers and LAL NGOs fulfil regime-supportive functions that both display and enable the adaptiveness of the CPC’s authoritarianism. Lawyers and LAL NGOs work within the law to protect workers’ rights and to improve the legal framework, helping to contain labour disputes and maintain social stability. Third, it finds that the legal definitions of rights contrast with workers’ conceptions of rights, the former being based on a capitalist rationale, while the latter is based on concepts of morality, fairness, equality, and on workers’ socio-economic conditions.Studying workers’ perceptions, understandings and uses of the law shows that some workers disagree with the premises of the labour laws, do not find the laws useful for a variety of reasons, and distrust the legal system, putting into question the legitimacy of such institutions of governance. I find that, according to popular conceptions of rights, workers act outside and against the law. The pitfall of the CPC’s ‘adaptive governance’ lies in its simplification of social order into rational legal order, omitting popular conceptions of rights and coherent forms of action that the same laws try to dismiss. Therefore, the space for transformative political action, either to challenge capital or the Party-state, rests outside and against the law.

Assessment of labour provisions in trade and investment arrangements

Abstract: Nearly half of trade agreements concluded in the past five years included either a labour chapter or labour provision that makes reference to international labour standards and ILO instruments. The evidence so far suggests that labour provisions have been an important tool for raising awareness and improving laws and legislation with respect to workers’ rights, increasing stakeholder involvement in negotiation and implementation phases, and developing domestic institutions to better monitor and enforce labour standards. But challenges remain, particularly with respect to sustainability of impacts, coherence, and cooperative efforts. This report, part of the Studies on Growth with Equity series, gives a full examination of the scope and effectiveness of these labour provisions.

Labor law, economics and regulation: Italy and Spain: comparing models in the European framework

Abstract: The work here presented wishes to propose a critical and reasoned reflection about the relationship between labor law and economics in a continuously changing international scenario. The theme can certainly be inserted among the “classic” ones, because it faces one of the most fascinating issues labor law – as a subject – places when it projects itself outside its natural conceptual perimeter. The research object is in fact based on a critical reflection around the vexata quaestio of the relationship between the juridical-labor law sphere and the economic dimension of reference. More in detail, in this general framework, we carry out a research which thrusts down its roots in an organic analysis of the theoretical positions of law and labor economics, in order to develop a synergic argument which can possibly be advantageous in both research ambits. With the present work, we wish therefore to test the holding of the relationship between the two spheres of knowledge considered, also in the perspective of the elaboration of hermeneutic contributions useful for a possible re-conceptualization of labor law, partially imposed by the morphological change of the socio-economic contexts of reference. Following a logical sequence, the present work is structured in five conceptually autonomous chapters, which however permeate each other and are conceived in a indissoluble unitary dimension in order to guarantee systematic coherence to the research. In detail, moving from a careful reflection about the “crisis” of labor law considered by itself and in its interaction with economics, attention is placed on the intrinsically conflictual and dualistic nature of the subject, in its being a projection of the pair “capital/work”. After some unavoidable methodological considerations, useful for an analytical-conceptual reflection, we then highlight the elements of interest deriving from the comparison between and the balancing of economic and social rationality, economic factuality and juridical “evaluation”. From a methodological point of view, the logical and scientific assumption of the research is the firm conviction that only through a systemic approach, characterized by a strong comparative and multidisciplinary framework, it is possible to carefully analyze the current structure and configuration of the relationship between labor law and economics in order to outline in particular the boundaries of future perspectives of development. A clear reconstruction of a suitable method to rationalize the dialectic process between cognitive openness and juridical reconceptualization is indeed inescapable. The use of the comparison – contextualized and teleologically addressed to give the work an appreciable hermeneutic contribution – is thus considered the privileged, functional research method. The labor law systems compared – as shown in the body of the present work – are those of Italy and Spain, because of the proximity of the regulatory paths explored from time to time and of the convergence resulting also from recent reforms. Hence, looking at the paradigmatic institutes of the impact of the economic sphere on juridical regulations, the concrete relationship between economics and labor law is in particular considered with specific reference to the worker’s tasks (and demotion/deskilling), also as a consequence of the recent legislative reforms, which have been introduced in the two legal systems object of comparison. In addition, special consideration is reserved to the concept of “flexibility”, to the specular notion of “security”, and to the boundaries of the concept of “flexicurity”, in the scenario of a European labor law undergoing a deep change in the search of a possible new balance. Exactly the search of a new adjustment between the different interests involved in present-day labor law relationships finds in an axiological framework of values the natural landing of the research path here briefly presented. In the conclusions of the present work, we propose some targeted reflections about the urgent need to “return” to the principles and the values which have represented the essence of the subject, yesterday as today. Labor regulation, in relation to economic efficiency and to the requests of deregulation coming from the market, cannot leave aside the rediscovery of the table of values of reference and the balancing of the different interests involved.

Navigating the Uber Economy

Abstract: In litigation against ride-sharing companies Uber and Lyft, former drivers have alleged that they were misclassified as independent contractors and denied employment benefits. The companies have countered that they do not employ drivers and merely license access to a platform that matches those who need rides with nearby available drivers. At stake are the prospects, not only for Uber and Lyft, but for a nascent, multi-billion dollar "on-demand" economy.Unfortunately, existing laws fail to provide adequate guidance regarding the distinction between independent contractors and employees, especially when applied to the hybrid working arrangements characteristic of a modern economy. Under the Fair Labor Standards Act and analogous state laws, courts consider several factors to assess the "economic reality" of a worker's alleged employment status; yet, there is no objective basis for prioritizing those factors.This Essay argues that the classification of workers as independent contractors or employees should be shaped by an overarching inquiry: how much flexibility does the individual have in the working relationship? Those who can choose the time, place and manner of the work they perform are more independent than those who must accommodate themselves to a business owner's schedule. Our approach is novel and would provide an objective basis for adjudicating classification disputes, especially those that arise in the context of the on-demand economy. By reducing legal uncertainty, we would ensure both that workers receive appropriate protections under existing law and that businesses are able to innovate without fear of unknown liabilities.

Employment relations and political transition in Cambodia

Abstract: Literature to date on employment relations in Cambodia has focused for the most part on the emergence of the labour legislation and third-party monitoring mechanisms in the context of export-oriented manufacturing in the 1990s. This article builds on these analyses to consider the state’s political transition and the role of external influences in this process. It explores the relationship between political transition and the development of Cambodia’s employment relations framework, arguing that deep contradictions between a formally progressive framework of labour regulation and the regime’s ideologies and interests continue to shape employment relations practice. These contradictions are evidenced by the obstacles posed to comprehensive implementation of the labour law by the need to accommodate international interests, facilitate prescribed forms of citizen participation and maintain ruling elite power and privilege. Despite these tensions, regulatory reform and the corresponding civil society developm...