Showing papers on "Labour law published in 2018"

Women, Business, and the Law 2018

Abstract: Women, business and the law 2018 is the fifth edition in a series of biennial reports measuring the legal obstacles to women who engage in economic activity around the world. Since the World Bank started this study a decade ago, our understanding has increased about how laws influence women’s decisions to start and run businesses or get jobs. The analysis draws on newly-collected data across seven indicators: accessing institutions, using property, getting a job, providing incentives to work, going to court, building credit, and protecting women from violence. The study expands coverage to 189 economies around the world. The data show the challenge many women face in the quest for economic opportunity. One hundred and four economies still prevent women from working in certain jobs, simply because they are women. In 59 economies there are no laws on sexual harassment in the workplace. And in 18 economies, husbands can legally prevent their wives from working. By informing politicians about the legal obstacles to women’s economic opportunities, women, business and the law contributes towards promoting gender equality. The study celebrates the progress that has been made while emphasizing the work that remains to ensure equality of opportunity.

‘Negotiating the Algorithm’: Automation, Artificial Intelligence and Labour Protection

Abstract: This paper aims at filling some gaps in the mainstream debate on automation, the introduction of new technologies at the workplace and the future of work. This debate has concentrated, so far, on how many jobs will be lost as a consequence of technological innovation. This paper examines instead issues related to the quality of jobs in future labour markets. It addresses the detrimental effects on workers of awarding legal capacity and rights and obligation to robots. It examines the implications of practices such as People Analytics and the use of big data and artificial intelligence to manage the workforce. It stresses on an oft-neglected feature of the contract of employment, namely the fact that it vests the employer with authority and managerial prerogatives over workers. It points out that a vital function of labour law is to limit these authority and prerogatives to protect the human dignity of workers. In light of this, it argues that even if a Universal Basic Income were introduced, the existence of managerial prerogatives would still warrant the existence of labour regulation since this regulation is about much more than protecting workers’ income. It then highlights the benefits of human-rights based approaches to labour regulation to protect workers’ privacy against invasive electronic monitoring. It concludes by highlighting the crucial role of collective regulation and social partners in governing automation and the impact of technology at the workplace. It stresses that collective dismissal regulation and the involvement of workers’ representatives in managing and preventing job losses is crucial and that collective actors should actively participate in the governance of technology-enhanced management systems, to ensure a vital “human-in-command” approach.

The Cambridge Handbook of the Law of the Sharing Economy

Abstract: This is a draft of the table of contents and introduction of the forthcoming Cambridge Handbook on the Law of the Sharing Economy (2018). The handbook grapples conceptually and practically with what the sharing economy – which includes entities ranging from large for- profit firms like Airbnb, Uber, Lyft, TaskRabbit, and Upwork to smaller, nonprofit collaborative initiatives – means for law, and how law, in turn, is shaping critical aspects of the sharing economy. Featuring a diverse set of contributors from multiple academic disciplines and countries, the book compiles the most important, up- to- date research on the regulation of the sharing economy. The first part surveys the nature of the sharing economy, explores the central challenge of balancing innovation and regulatory concerns, and examines the institutions confronting these regulatory challenges. The second part turns to a series of specific regulatory domains, including labor and employment law, consumer protection, tax, and civil rights. This groundbreaking work should be read by anyone interested in the dynamic relationship between law and the sharing economy.

The Concept of ‘Worker’ in EU Law: Status Quo and Potential for Change

Abstract: In the changing world of work and the emergence of new forms of employment that are often in the grey zone between traditional employment and self-employment the question of the scope of protection of labour and employment law becomes again more urgent. Although defining the concept of worker is thus of utmost (and growing) importance, it is not legally defined (yet) at EU level, but has been shaped by numerous decisions of the Court of Justice of the European Union (CJEU, formerly European Court of Justice (ECJ)). This report analyses this jurisprudence and explores how and whether the underlying concept of worker is able to adapt to the changes in the world of work and still fit for purpose to protect those who are in need of protection. Based on this, the study develops a European concept of worker which would be adapted to the new forms of employment namely to the self-employed that are in need of protection to a similar extent as traditional employees.

Economic Integration and State Responses: Change in European Industrial Relations since Maastricht

Abstract: The article analyses industrial relations change in the six largest EU countries since 1992 in relation to increased internationalization pressures. Based on qualitative and quantitative analysis, it distinguishes between associational and state governance, and detects that despite a predominant, but not universal, trend of weakening trade unions and collective bargaining, no overall liberalization has occurred in the political regulation of employment (employment policies, welfare state, labour law, state support to collective bargaining, public sector). Rather than converging towards neoliberalism, industrial relations emerge as more politically contingent and dependent on multiple forms of power, which are affected by internationalization in different ways.

Rethinking the Labour Movement in the 'New South Africa'

Abstract: The socio-economic system underpinning apartheid in South Africa was based on the exploitation of black workers in the mines, the factories, the fields and the shops. It is widely recognized that the struggles of the South African black working class contributed decisively to the overthrow of the racist regime. In recognition of the power of organised labour, the democratic government elected in 1994 granted South Africa's unions unprecedented legal and constitutional rights. However, despite these gains, the country's labour movement has been facing a fresh set of challenges, from macroeconomic policy to the factory floor, many of them emanating from labour’s political allies in Government. The purpose of this book is to examine how the South African labour movement is responding to these challenges in the new millennium. A variety of experts on South African labour, both within the country and outside deal with crucial issues: How has South Africa's labour movement reacted to the ANC Government's neoliberal economic agenda? How do the unions relate to an increasingly diversifying, “flexible” and vulnerable workforce? What are labour’s prospects of contributing to a left project in democratic South Africa? What are the challenges facing the unions in relation to new forms of militancy and social movements?

Modern slavery, unfree labour and the labour market: the social dynamics of legal characterization

Abstract: Treating the United Kingdom’s Modern Slavery Act as its focus, this article examines what the legal characterization of labour unfreedom reveals about the underlying conception of the labour market...

Leveraging employer practices in global regulatory frameworks to improve employment outcomes for people with disabilities

Abstract: Work is an important part of life, providing both economic security and a forum to contribute one’s talents and skills to society, thereby anchoring the individual in a social role. However, access to work is not equally available to people with disabilities globally. Regulatory environments that prohibit discrimination and support vocational training and educational opportunities constitute a critical first step toward economic independence. However, they have not proven sufficient in themselves. In this article, we aim to infuse deeper consideration of employer practice and demand-side policy reforms into global policy discussions of the right to work for people with disabilities. We begin by documenting the employment and economic disparities existing for people with disabilities globally, followed by a description of the international, regional, and local regulatory contexts aiming to improve labor market outcomes for people with disabilities. Next, we examine how policies can leverage employer interests to further address inequalities. We discuss employer policies and practices demonstrated in the research to facilitate recruitment, hiring, career development, retention, and meaningful workplace inclusion. The goal of the article is to synthesize existing international literature on employment rights for people with disabilities with the employer perspective.

Rethinking legal taxonomies for the gig economy

Abstract: Both tax law and employment law incentivize engagers of labour to structure their workforce as a crowd of self-employed micro-entrepreneurs. Recent technological change and the rise of the gig economy have made it easier for agents to respond to these incentives, contributing to an increase in self-employment. In this article, we review the evidence on the rise of the gig economy in the UK and lay out a set of key principles to guide the reform of tax and employment law to better enable policy to meet its underlying objectives.

Enforcement matters: the effective regulation of labor

Abstract: The distinction between de jure and de facto regulation is well understood in theory, but has rarely been applied to cross‐country empirical work on the impact of labour regulation on labour market outcomes for lack of data. Policy debate has been based on measures of stringency of law, suggesting a negative correlation between labour regulation and labour market outcomes. This article provides new cross‐country measures of labour law enforcement and evidence of a negative correlation between stringency and intensity of enforcement. Previous results concerning the consequences of labour regulation and the legal origins theory no longer hold when a measure of effective labour regulation is used.

Labor law and innovation revisited

Abstract: This paper examines the impact of changes in job security on corporate innovation in 20 non-U.S. OECD countries. Using a difference-in-differences approach, we provide firm-level evidence that the enhancement of labor protection has a negative impact on innovation. We then discuss possible channels and find that employee-friendly labor reforms induce inventor shirking and a distortion in labor flow. Further investigation reveals that the negative relation is more pronounced in (1) firms that heavily rely on external financing, (2) firms that have high R&D intensity, (3) manufacturing industries, and (4) civil-law countries. Our micro-level evidence indicates that enhanced employment protection impedes corporate innovation.

The Trade Unions and the Labour Party

Abstract: First published in 1987. This book considers the Trade Unions-Labour Party relationship. It traces developments over the 1970s and early 1980s, and analyses the debate between those who argue for the Unions to take a more prominent lead within the Party and those who are against this. This title will be of interest to scholars and students of politics and history.

Platform Work, Algorithmic Decision-Making, and EU Gender Equality Law

Abstract: Much of the literature produced in recent years has tried to systematize the various forms of platform work while considering how to (re)classify those working through digital platforms. While this contributes to our understanding of the nature of work in the digital economy and the extent to which current labour law is problematic for some platform workers, the gender dimension and implications, especially the growing concern about discrimination between men and women in the digital economy, appear to have received little attention so far. A recent study showed that some female platform workers receive lower pay than their male counterparts. As some online platforms use algorithms to determine pay levels, the key question addressed here is to the extent to which current EU gender equality law, and the principle of equal pay for women and men in particular, is adequate for protecting platform workers in a situation where work-related decisions are not taken by a human being but by an algorithm that is the potential source of discrimination. To understand how regulation should be ‘calibrated’ in cases where algorithms result in discrimination, the theory of classification bias can be helpful. It is assumed that the reason for providing protection based on the equal pay principle to a specific group of employees is not compelling enough to exclude platform workers who are classified as self-employed. This article starts with a brief examination of the challenges of working in the digital economy and then goes on to analyse the role of algorithms and their potential to discriminate based on gender. It is argued that the theory of classification bias could be used to address discriminatory algorithmic decision-making. The theory is then applied to the EU’s principle of equal pay for women and men, suggesting some improvements in relation to platform work.

Expanding Employment Discrimination Protections for Individuals with Disabilities: Evidence from California:

Abstract: Effective 2001, California passed the Prudence Kay Poppink Act which broadened California's disability employment discrimination law to cover individuals with less severe disabilities by lowering the burden of proof to establish a disability. I estimate how this act affected the labor market outcomes for individuals with disabilities using both difference-in-differences and difference-in-differences-in-differences regression analyses and data from the Current Population Survey. The results suggest that the act signii¬cantly increased employment, with the effect persisting at least partially up to six years later.

Algorithms at Work: Productivity Monitoring Applications and Wearable Technology as the New Data-Centric Research Agenda for Employment and Labor Law

Abstract: Recent work technology advancements such as productivity monitoring platforms and wearable technology have given rise to new organizational behavior regarding the management of employees and also prompt new legal questions regarding the protection of workers’ privacy rights. In this Essay, I argue that the proliferation of productivity monitoring applications and wearable technologies will lead to new legal controversies for employment and labor law. In Part I, I assert that productivity monitoring applications will prompt a new reckoning of the balance between the employer’s pecuniary interests in monitoring productivity and the employees’ privacy interests. Ironically, such applications may also be both shield and sword in regards to preventing or creating hostile work environments. In Part II of this Essay, I note the legal issues raised by the adoption of wearable technology in the workplace, notably: privacy concerns; the potential for wearable tech to be used for unlawful employment discrimination; and worker safety and workers’ compensation issues. Finally, in Part III, I chart a research agenda for privacy law scholars, particularly in defining “a reasonable expectation of privacy” for employees and in deciding legal questions over employee data collection and use.

Working in Digital and Smart Organizations: Legal, Economic and Organizational Perspectives on the Digitalization of Labour Relations

Abstract: "Contributing to recent debate on the emergence of digital and agile work, this book explores the implications for labour and employment relations within and beyond organizational boundaries. Taking a multidisciplinary approach to the key issues and challenges of digitalization, this collection covers topics such as the gig economy, crowdworking and Industry 4.0. Theory and analysis are combined as the authors examine the impact of digital and smart work on organization, HRM and labour law. With comprehensive empirical evidence for those interested in understanding the more complex trajectories of today’s transforming work relationships, this book will not only appeal to students and academics but also to policy-makers, trade unionists and employers’ organizations."

Transnational Labour Law and the Environment: Beyond the Bounded Autonomous Worker

Abstract: Labour and environmental law operate in silos. This is equally true in the transnational sphere, despite the 2011 endorsement of UN Guiding Principles on Business and Human Rights. Labour rights as human rights appear easier to grasp than environmental human rights, and the UNGPs specifically highlight the work of the ILO. Due to egregious events such as the Bangladesh Rana Plaza factory collapse, transnational governance regimes have emerged to better ensure building safety and respect for labour rights. Yet the process of production of “fast fashion” is not only a problem for workers whose health and safety are put at risk, but also for children and families who live in the vicinity of polluting factories and experience “slow death” as a result of contaminated air and water. This paper will explore how a reconceptualization of the worker as a relational being and corporeal citizen might bridge the silos.

The Use of Quantitative Methods in Labour Law Research: An Assessment and Reformulation

Abstract: This article considers the potential and limits of quantitative approaches to labour law research. It explores the methods used to construct and validate indicators of labour regulation (‘leximetrics’) and those used in the econometric analysis of the effects of labour law rules on employment, productivity and inequality. It is argued that while there is a risk of the misuse and misappropriation of legal indicators, they can provide new evidence on the nature and effects of labour law rules, and thereby contribute to labour law theory as well as to the resolution of some practical issues of regulatory policy.

What Should We Do After Work? Automation and Employment Law

Abstract: Will advances in robotics, artificial intelligence, and machine learning put vast swaths of the labor force out of work or into fierce competition for the jobs that remain? Or, as in the past, will new jobs absorb workers displaced by automation? These hotly debated questions have profound implications for the fortress of rights and benefits that the law of work has constructed on the foundation of the employment relationship. This Article charts a path for reforming the law of work in the face of both justified anxiety and uncertainty about the future impact of automation on jobs. Automation is driven largely by the same forces that drive firms’ decisions about “fissuring,” or replacing employees with outside contractors. Fissuring has already transformed the landscape of work and contributed to weaker labor standards and growing inequality. A sensible response to automation should have in mind the adjacent problem of fissuring, and vice versa. Unfortunately, the dominant legal responses to fissuring—which aim to extend firms’ legal responsibility for the workers whose labor they rely on—do not meet the distinctive challenge of automation, and even modestly exacerbate it. Automation offers the ultimate exit from the costs and risks associated with human labor. As technology becomes an ever-more-capable and cost-effective substitute for human workers, it enables firms to circumvent prevailing legal strategies for protecting workers and shoring up the fortress of employment. The question is how to protect workers’ rights and entitlements while reducing firms’ incentive both to replace employees with contractors and to replace human workers with machines. The answer, I argue, lies in separating the issue of what workers’ entitlements should be from the issue of where their economic burdens should fall. Some worker rights and entitlements necessarily entail employer duties and burdens. But for those that do not, we should look for ways to shift their costs beyond employer payrolls, or to extend the entitlements themselves beyond employment. The existing fortress of employment-based rights and benefits is under assault from fissuring and automation; it is failing to protect those who remain outside its walls, and erecting barriers to some who seek to enter. We need to dismantle some of its fortifications and construct a broader foundation of economic security for all, including those who cannot or do not make their living through steady employment.

Developments in comparative employment relations in Australia and New Zealand: reflections on ‘Accord and Discord’

Abstract: This article reflects on the recent literature comparing employment relations in Australia and New Zealand. It begins by returning to the ‘Accord and Discord’ article by Bray and Walsh, published i...

From Exclusion to Resistance: Migrant Domestic Workers and the Evolution of Agency in Lebanon

Abstract: In addition to hosting a large population of refugees and displaced persons, Lebanon is home to an estimated 200,000 to 300,000 migrant domestic workers. Under Lebanese law, domestic workers fall under the kafala, or sponsorship, system. Existing literature has focused on the legality of the kafala system and the ensuing human rights violations resulting from workers' exclusion from Lebanese labor law. Based on fieldwork conducted in 2016, this article argues that migrant domestic workers in Lebanon have defied their spatial, social, and legal exclusion by organizing collective resistance, triggered in part by the July 2006 Israel-Lebanon war.

Illegal Working, Migrants and Labour Exploitation in the UK

Abstract: The UK’s Immigration Act 2016 is an assemblage of carceral elements targeting illegal working by migrants and their employers, and regulatory elements designed to enforce labour market regulation. This combination of immigration, criminal and labour law raises questions about how the UK government has framed the issue of labour exploitation. This article adopts a sociolegal approach in order to appreciate how making ‘illegal working’ a crime features in a specific governance project. Situating the Immigration Act 2016 within the context of neo-liberal globalisation, it develops a productive account of migrant illegality to which it adds a conception of liminal legality that emphasises both the agency of actors and the gap between legality and legitimacy. Using official documents, it shows how the Immigration Act 2016 is a response to a specific governance crisis, which is how to maintain the ‘British way’ of light touch labour market regulation in the face of deteriorating outcomes for many workers.

Women’s ILO: Transnational networks, global labour standards and gender equity, 1919 to Present

Abstract: This edited volume asks: what was the role of women’s networks in shaping ILO policies and what were the gendered meanings of international labour law in a world of uneven and unequal development? Women’s ILO explores issues like equal remuneration, home-based labour and social welfare internationally and in places such as Argentina, Italy and Ghana. It scrutinizes the impact of both geopolitical relations and transnational feminisms on the making of global labour policies in a world shaped by colonialism, the Cold War and post-colonial inequality. It further charts the disparate advancement of gender equity, highlighting the significant role of women experts and activists in the process. Co-published with Koninklije Brill NV.

Trade unions and the whistleblowing process in the UK: An opportunity for strategic expansion?

Abstract: Historically, whistleblowing research has predominantly focused on psychological and organisational conditions of raising concerns about alleged wrongdoing. Today, however, policy makers increasingly start to look at institutional frameworks for protecting whistleblowers and responding to their concerns. This article focuses on the latter by exploring the roles that trade unions might adopt in order to improve responsiveness in the whistleblowing process. Research has consistently demonstrated that the two main reasons that deter people from reporting perceived wrongdoing are fear of retaliation and a belief that the wrongdoing is unlikely to be rectified. In this article, we argue that trade unions have an important part to play in dealing with both these inhibiting factors but this requires them to be appropriately engaged in the whistleblowing process and willing to take a more proactive approach to negotiations. We use Vandekerckhove’s 3-tiered whistleblowing model and Kaine’s model of union voice level to structure our speculative analysis of the various ways in which trade unions can interact with whistleblowers and organisations they raise concerns about alleged wrongdoing in, as well as agents at a regulatory level. Our articulation of specific roles trade unions can play in the whistleblowing process uses examples from the UK as to how these trade union roles are currently linked to and embedded in employment law and whistleblowing regulation.

The Black Hole of Mandatory Arbitration

Abstract: What is the impact of mandatory arbitration agreements (MAAs) in employment? It is now several decades since the Supreme Court gave a green light to employers’ imposition of broad MAAs that foreclose litigation over nearly all federal and state employment claims Since then, scholars have labored to develop a clear empirical picture of the shape and impact of arbitration From the growing body of data on arbitration, this Article underscores one crucial point: The great bulk of employment disputes that are subject to MAAs simply evaporate before they are ever filed They are “MIA,” or “missing in arbitration” That conclusion emerges from a comparison of the tiny number of employment claims that are filed in arbitration with an estimated number of claims one would expect to see given the number of employees who are covered by MAAs and the volume of employment litigation by those who are free to litigate The implications for employee rights are dire: Mandatory employment arbitration, at least as it has evolved under the Federal Arbitration Act, functions less as a mechanism of “alternative dispute resolution” than as an ex ante waiver of legal rights by employees and a means of self-exculpation by employers

Using Mixed Methods to Study Labour Market Institutions: The Case of Better Factories Cambodia

Abstract: The aim of this article was to demonstrate how the application of mixed methods over a period of time can enrich the study of a labour market institution. The article shows how the adoption of an historical institutionalist approach, combined with repeated fieldwork, can provide novel insights into the reasons why an institution operates in particular ways: its potentialities and limitations. The article shows how this methodology is being applied in ongoing research focused upon the International Labour Organization (ILO)’s Better Factories Cambodia (BFC). Since the early 2000s, the ILO has been providing ‘hands-on’ assistance in a number of poor countries though its Better Work programme. Cambodia was the first country in which an institution of a ‘monitoring and advice’ nature was set up, and BFC has since provided the model for the expansion of such bodies to other jurisdictions. The aim of the research project is to discover why the history of BFC has resulted in its fulfilling certain functions and ...

How do social security schemes and labor market policies support the return-to-work of cancer survivors? A review article

Abstract: Objective About 40% of new cancer diagnoses are detected among working age individuals. Cancer diagnosis and treatment have high impact on the work ability of workers and represent a real challenge for the healthcare and social security systems but also for employers and the labour market. This review aims at investigating the legal frameworks set up in EU Member States that support the retention and integration of workers with disability. Furthermore, we look at these initiatives or measures to see whether they fit the specific needs of workers with cancer. Methods We searched the PubMed database combining 4 key words: cancer, labour market, labour law and disability insurance or disability benefits. A total of 1.185 articles were found of which 10 were used for this review. In addition, grey literature, reports from the European Commission, the OECD and the WHO were searched and included in the material used for this review. Results Few peer reviewed articles discuss the impact of labor market law on the (re)integration of cancer survivors. Most measures and initiatives support workers with chronic diseases but present important limits when considering workers with cancer. Collaboration and coordination among health providers, social workers and employment decision makers is the mostly required and effective. Conclusion More research efforts should be made to systematically assess the impact of labor market and employment measures and initiatives on the (re)integration of workers with chronic diseases, with specific attention for workers with cancer. Legal frameworks need to be rethought for a better balance between productivity and equity, inclusion and social justice.

Nordic labour markets and the sharing economy : – Report from a pilot project

Abstract: This report presents a preliminary knowledge status about implications of the sharing economy for labour markets and employment relations in the Nordic countries. It also reviews how the Nordic cou ...

Labour Law and (In)justice in Workers’ Letters in Vietnam

Abstract: This article explores whether and how labour law matters in factory workers’ grievances and demands in their letters sent to the unions and state authorities in Đồng Nai Province, an industrial hub in the south of Vietnam. An examination of the letters demonstrates that the legalistic language of rights and other provisions in the Labour Code plays little role in shaping workers’ accounts. A majority of letter writers instead referred to moral aspects of subsistence, reciprocity, and their subjective views of fairness to make their claims. Yet the moral constructions of workers’ claims may overlap and derive from values imbricated within the Labour Code. These observations raise the need to consider the subtle way in which law generates workers’ resistance against management and/or the state, as well as the fluid boundary between law and morality in workers’ narratives of (in)justice.