Showing papers on "Labour law published in 2020"

The missing stone in the Cathedral: Of unfair terms in employment contracts and coexisting rationalities in European contract law

Abstract: This dissertation attempts to partially refocus the debate on unfair terms control, exploring the contribution that the emergence of unfair terms control in employment contracts in two legal systems can make to articulating the respective positions of judicial control, regulation and justice in contract law. By reconstructing the developments preceding the adoption of rules allowing judicial control of non-negotiated employment contracts in France and Germany, the book focusses on judicial control as a response to contractualisation of employment relations. Such contractualisation – in itself a combination of broad trends in labour law, doctrinal developments and, increasingly, HR practices – is paralleled to the movements which, at the outset of the 20th century, gave rise to the notion of contrat d’adhesion. Employers have good reasons to use the contract as a tool: to customise the contents of the employment relationship, to include elements of flexibilisation and to put in place dispute-management procedures. This increases the saliency of contracts, and contract law, in employment relations. Such success of contract law as a means of managing unequal relations calls for a reconsideration of its basic tenets, and in particular of what corrective justice means between the parties concerned. Judicial control is, in this sense, a first step towards such reconsideration.

Plataformas Digitais, Uberização do Trabalho e Regulação no Capitalismo Contemporâneo

Abstract: The aim of this text is to analyze the relationship between workers and "platforms" and "applications", as well as the possibilities for their regulation, in the light of the use of new information and communication technologies (ICT). To this end, we present the main elements of the dominant narrative from the “platforms”, contrasting them with the empirical evidence from the actual relationships. Contrary to business rhetoric, these relationships are characterized by an intense exploitation of labour. Technically, it has never been easier to regulate labour law. However, politically, it may never have been so difficult. The narrative about what these companies are plays an important role in promoting this kind of management, even though there are signs of workers' resistance to this process.

Get to Work or Go to Jail: State Violence and the Racialized Production of Precarious Work

Abstract: Work requirements backed by threats of incarceration offer a fertile but neglected site for sociolegal inquiry. These “carceral work mandates” confound familiar accounts of both the neoliberal state’s production of precarious work through deregulation and the penal state’s production of racialized exclusion from labor markets. In two illustrative contexts—child support enforcement and criminal legal debt—demands for work emerge as efforts to increase and then seize earnings from indigent debtors; an ability to pay is defined to include an ability to work. In a third, demands for work are imposed directly through probation, parole, and other community supervision. In each context, the carceral state regulates work outside of prison. It defines appropriate labor conditions through concepts of voluntary unemployment, and it enables employers to discipline or retaliate against workers by triggering state violence. Additionally, mandated work may be removed from employment law protections when the carceral context dominates its sociolegal meaning. Finally, the resulting vulnerable workforces can be used to displace or discipline other workers not personally subject to carceral work mandates. Analogies to welfare work requirements, workplace immigration enforcement, and prison labor illustrate these points. Implications are considered for theorizing contemporary racial political economy.

What Forms of Representation Do American Workers Want? Implications for Theory, Policy, and Practice:

Abstract: Recent evidence documents an increased interest among American workers in joining a union. At the same time, there is revived debate among labor scholars, union leaders, politicians, and activists ...

‘Produce or Perish’. The crisis of the late 1940s and the place of labour in post-colonial India

Abstract: This article argues that the late 1940s in India should no longer be reduced to the twin events of partition and independence. A generalized political crisis unsettled, for a brief period, the structures of social and economic power, and not just intercommunity relations and the constitution of the state. These years were thus, among other things, a catalytic moment for the definition of ‘labour’ as both a political category and a parameter of post-colonial politics: processes dating back to the First World War, at least, were consolidated, under pressure from this crisis, into a new labour regime that has withstood political pressure for almost seven decades. The article offers an analysis of the almost-forgotten post-war strike movement, which was nevertheless unprecedented in its social and geographical spread. The movement elicited both repressive and reformist responses: the extraordinary level of emergency powers applied to suppress it are, therefore, as much examined as the series of momentous legislative and institutional changes of the late 1940s. In conclusion, the long-term consequences of this cycle of strike–reform–repression for India's post-colonial labour regime are adumbrated. A strongly etatist, potentially authoritarian, regime of industrial relations, it is argued, was checked by an enduring political trade union pluralism. At the same time, divisions within India's working classes were deepened and consolidated as labour law and social legislation sealed off the comparatively small ‘core workforces’ of public sector and large-scale industrial enterprises from the majority of workers in what would soon be called the ‘informal economy’.

The Law & Political Economy of Workplace Technological Change

Abstract: This article explores how labor and employment laws shape workplace technological change. It focuses on emerging data-driven technologies such as machine learning, the branch of artificial intelligence that has sparked widespread concern about the future of work. The article argues that labor and employment laws shape employers’ technological choices in two ways. First, those laws help to facilitate technological development by granting employers broad rights to gather workplace data, to develop new technologies using that data, and to implement those technologies into the workplace, typically regardless of workers’ preferences. Second, those laws channel technological development in certain directions, in particular by encouraging companies to use technologies to exert power over workers and therefore cut labor costs. This analysis has policy implications. Among other things, it suggests that ensuring a decent future of work may require reforms to guarantee workers a voice in the development and deployment of workplace technologies.

Hybrid Areas of Work Between Employment and Self-Employment: Emerging Challenges and Future Research Directions.

Abstract: The growth of non-standard employment relations has created one of the major challenges in terms of workers’ rights as well as collective representation in European societies. Among non-standard employment relations, the so-called ‘solo self-employed’ – self-employed workers without employees – are challenging the very foundations of our labour markets, that is to say the opposition between employers and employees, fostering the development of emerging ‘hybrid’ areas of work. The heterogeneity of the solo self-employed is difficult to capture from official statistics, which are still based on traditional classifications, and questions also the legal categories that qualify these workers. Moreover, the fact that solo self-employed workers do not form a homogenous group, and are diverse in terms of their activities, interests and needs, calls for changes in the way trade unions, employer organisations, and new freelancer associations develop collective actions, claims-making activities and strategies of organising. With the aim to achieve an in-depth understanding of the increasingly extensive and populated categories of the solo self-employed, this contribution aims at reconstructing the state of the art within different fields of study, such as employment relations, labour law, industrial relations and social movements, and at offering some possible future research directions.

Covid-19 and Labour Law in Italy

Abstract: This article provides an account of the Italian response to the Covid-19 pandemic in the labour law field The author focuses on the policy measures in the matters of income support, parental leave

Privatizing Employment Law: The Expansion of Mandatory Arbitration in the Workplace

Abstract: This article examines the institutional, political, and legal development of employment arbitration as it shifted from a Progressive Era form of justice enhancement to one co-opted by business-friendly conservatives arguably more concerned with protecting employers from litigation. While arbitration has a long history in the United States, the expanding use of mandatory, employer-promulgated arbitration clauses has more than doubled since the 2000s. In examining the nature of the shift, this article argues that it occurred through a gradual process of conversion in three institutional realms (1) legislative conversion, (2) private-sector conversion of public regulation, and (3) judicial conversion. Facilitated by a growing divide among Democrats on the value of arbitration, conservatives began to promote it in the 1970s and 1980s as backlash to the expansion of statutory employment rights. I argue that they did so by converting the institutional infrastructures of labor and commercial arbitration, a process continued by the private sector and Supreme Court. As such, this article argues that conversion is the product of multiple actors targeting multiple institutions, over decades, and with consequences for both the literature on institutional change and conceptions of equality under the law.

Platforms of Work, Labour, and Employment Relationship: The Grey Zones of a Digital Governance.

Abstract: Drawing on numerous case studies, the article examines the specific conditions for organising and managing the employment relationship on digital labour platforms. We show that these conditions are largely due to the disruptive nature of the process of digitising the employee-employer relationship. Digitisation replaces the employment contract of the standard employment relationship with a triangular "worker-platform-customer" relationship. In this model, the boundaries of the employment relationship become opaque and more uncertain: the bond of subordination disappears, labour law gives way to commercial law, and the figures of the employer and the employee lose institutional visibility. The article seeks to clarify the contours of this "in-between" model and proposes the notion of the "grey zone," borrowed from geopolitics. This notion of the "employment grey zone" makes it possible to shift the researcher's perspective by focusing attention on practices and "intermediate spaces of regulation," which are relatively autonomous and endowed with their own dynamics. This framework of analysis broadens the perspective and helps to better understand the impact on the employment relationship of new forms of governance in a context of a digital turning point. The article first returns to the notion of the "grey zone" and argues on the foundations and interest of mobilising this notion in the field of industrial relations studies. The links between digital platforms and grey zones are then examined. In particular, we show that digital governance is based on a confusion of powers between coordination and leadership. The reflection continues in a third phase with an examination of digital management practices in two areas: the control of the activity of connected workers, and the production and management of externalities resulting from the operation of platforms. The article concludes with a discussion on the heuristic value of the notion of grey zones of employment. We are all familiar with the multinational company Uber and its legal wrangling with professional taxi drivers, and also with the conflict between Airbnb and the hotel industry. Uber experimented with an original business model based on bringing together customers and connected workers who have their own private car, a driving licence, a transport network company (TNC) drivers licence (for a chauffeur-driven car), and professional insurance; the premise behind

Essential but Unprotected: Highly Mobile Workers in the EU during the COVID-19 Pandemic

Abstract: The Covid-19 pandemic has shown that highly mobile workers who frequently move either within or in and out of the European Union (EU) are irreplaceable during a public health crisis. Nevertheless, they often remain the least protected and most vulnerable. Measures introduced to protect workers in standard employment relationships during a public health crisis might not reach certain groups of highly mobile workers. As a result, they may become even more marginalised during a crisis. This is further exacerbated by such workers often being foreigners in their host countries. Both host and home countries fail to protect them adequately, and this can be even more pronounced for workers from third countries, outside of the EU. During the COVID-19 pandemic, pre-existing EU law has failed to protect highly mobile workers and, so far, the guidance and policy actions taken by the European Commission have failed them too. To enhance protection for highly mobile workers in the long term, a significant (upwards) convergence of social and labour law standards between countries and for different groups of workers is needed. In the medium term, a pan-European social safety net for crisis situations should be created, with the needs of highly mobile workers in mind. And in the short term, targeted emergency measures including both support and protective standards for this group of workers should be adopted, ideally at the EU level or, if not possible, at the national level. This policy brief's focus is on ‘highly mobile workers’, namely those workers whose place of employment is not a single Member State: they either regularly cross borders due to the nature of their work, work in multiple Member States, or cross a border every day in order to work in a Member State other than the one where they permanently reside (De Wispelaere and Rocca 2020). The following groups of workers are of interest here: international transport workers (drivers, seafarers and air crew members); seasonal workers; frontier workers, who travel to a country other than their own for work on a regular basis; and other types of highly mobile workers.

Atypical work as flexible work: The rise if labour instability in the Spanish labour market

Abstract: The aim of the article is to analyze the Spanish labour law reforms adopted in a period of 10 years and their impact in terms of increasing or decreasing employment precariousness; particularly, in terms of increasing or decreasing labour instability through the promotion of atypical forms of work. The paper concludes that the legislative efforts aimed at promoting permanent employment mainly through reductions on Social Security contributions on behalf of the employer have been offset with other reforms that promote and favour atypical forms of work, such as fixed-term, training, internship, part-time contracts, and self-employment. As a result, atypical forms of work have significantly increased and become flexible forms of work, thus, increasing labour instability.

Do People Know the Law? Empirical Evidence about Legal Knowledge and Its Implications for Compliance

Abstract: Legal knowledge is a core aspect in compliance. For law to shape behaviour, people whose conduct the law tries to influence should know the law. This chapter reviews the body of existing empirical research about legal knowledge. It assesses the extent to which laypersons and professionals know and understand legal rules across various domains including employment, family affairs, criminal justice, education and health care. This body of work shows that ignorance and misunderstanding of the law is common across these domains. There is variation and for some laws, amongst some people and in some jurisdictions there is more or less legal knowledge. Also, the review shows that there is evidence that people tend to equate their own norms with the rules of the law. The review concludes by discussing what these findings mean for compliance and the way our laws try to steer human and organizational conduct. Here it questions compliance approaches that view it as a linear process from rule to behaviour.

COVID-19 and Labour Law: Italy

Abstract: The article summarises the measures adopted by the Italian Government to protect workers and undertakings from the impact of the COVID-19 pandemic. Emergency legislation has provided for the closure of business and social distancing as well as specific health and safety provisions; it has also allocated economic aid for businesses, workers and families.

Algorithmic Bosses and What to Do About Them: Automation, Artificial Intelligence and Labour Protection

Abstract: This paper aims at filling some gaps in the mainstream debate on automation 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. 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.

Why doesn’t anyone talk about non-union collective agreements?:

Abstract: Non-union collective agreements have become a common and widely accepted phenomenon in Australian industrial relations since the 1990s. This article asks why they are so rarely discussed in researc...

What's Wrong with Police Unions?

Abstract: In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like critiques of unions in general, not just police unions. To the extent that public-sector unionism remains a social good because of concerns for economic inequality and worker power, wholeheartedly embracing these critiques seems like a risky proposition. This Article examines the strange case of police unions and asks how they are (and are not) representative of U.S. unionism. More pointedly, this Article asks what increasingly common critiques of police unions should mean for policing reform and the future of public-sector unionism. In an effort to construct a more nuanced picture of police unions’ functions, I situate the role of police unions within two disparate scholarly debates: (1) the literature on policing reform; and (2) the literature on public sector unions. How are police unions different from other public-sector unions, and how might critiques and defenses of police unions apply to other public-sector unions? Ultimately, I argue that the challenge in articulating a theory of what makes police unions different highlights both the problem with police and the problem with the way scholars think about unions. If police unions are objectionable because of their views and the conduct of police, this concern speaks to a problem with police—full stop. The problems with the unions are only issues by extension. If the unions are objectionable because of their commitment to their members’ interests over those of the public at large, though, the critiques are properly understood as undercutting public-sector unions generally.

Why Don’t They Complain? The Social Determinants of Chinese Migrant Workers’ Grievance Behaviors:

Abstract: Using survey data from China, the author examines how migrant workers respond to violations of labor law in their workplaces. The central puzzle is why, given apparent widespread violations, some w...

Migrant Worker Well-Being and Its Determinants: The Case of Qatar

Abstract: Despite significant media attention and criticism, we know very little about the living and working conditions of low-income migrants in the Arab Gulf states, how migrants themselves view these conditions, or what factors most shape migrant worker well-being Utilizing data from a unique, nationally representative survey of migrant workers living in labor camps in Qatar, this paper uses subjective and objective indicators to provide a more complete picture of migrant worker well-being and its determinants We create a composite score of well-being based on migrant worker satisfaction with their job, human rights, salary, company treatment, and medical care We then utilize ordinary least square to examine the degree to which migrant well-being is shaped by demographic characteristics, contract honoring, salary and debt levels, working conditions, human rights, and living conditions Results identify contract-related issues as the strongest determinant of well-being, including whether a contract was honored, whether a copy of the contract was provided, and whether the details of employment in the contract were clear More broadly, our results point to workers having low levels of overall awareness of their legal rights under existing Gulf labor law Migrant worker well-being can thus be improved by raising this awareness and enforcing existing laws

Covid-19 and the Failure of Labour Law: Part 1

Abstract: In this article, we consider how Covid-19 revealed the extent to which, in Britain, the core functions of labour law have been compromised by successive governments stretching back to the 1980s and how workers collectively have been failed as a result by a discipline intended ostensibly in their interests We seek to measure these deficits against a set of core normative principles rooted in ILO standards which we believe underpin labour law as a discipline of worker protection We look first at the exploitation of critical workers;second at the failure generally to make adequate provision for income security;and third at issues relating to health and safety at work Our consideration of these issues addresses both the substantive law and the means for its enforcement Having considered the systemic failures and lack of resilience of British labour law in this article, we intend to return to the theme in Part II at a later date to address the lessons learned and the overhaul which the pandemic has revealed to be necessary

The Perils of Collective Begging: the case for reforming collective labour law globally and locally too

Abstract: This article explores the consequences of “collective begging”, that is the failure to provide meaningful legal protection and support for collective bargaining. The first part identifies the perils we are now facing, including increasing precarious work, growing economic inequality and diminished democratic engagement. The second part considers our journey here, namely how we took our (collective) eye off the ball and enabled “begging” rather than “bargaining”. Finally, the third part considers potential legal solutions, including expanding the coverage of those at work legally entitled to trade union representation, facilitating sectoral bargaining and enlarging the scope for lawful industrial action. There is a saying that, in the absence of effective collective bargaining including recourse to strike action, workers’ organisations engage merely in “collective begging”. The origins of this term have been traced back, by Eric Tucker, to 1921. It is now evident that there are certain dangers that arise if we are resigned to “collective begging”. These are not mere projections for the “future of work” but are readily identifiable now in the global economy and labour markets across the world. The first part of this article seeks to identify the perils we are now facing, which can be characterised by the normalisation of increasing precarious work, growing economic inequality and diminished democratic engagement. The second part considers our journey here, namely how we took our (collective) eye off the ball and enabled “begging” rather than “bargaining”. This analysis deserves more than the short analysis that can be offered in this article, but my * University of Bristol School of Law and Centre for Law at Work, tonia.novitz@bristol.ac.uk. This article is an adaptation of a keynote address delivered at the New Zealand Labour Law Society conference hosted at Victoria University of Wellington in November 2019. I am grateful to the organisers and participants for comments; all errors are my own. 1 Eric Tucker “Can Worker Voice Strike Back? Law and the Decline and Uncertain Future of Strikes” in Alan Bogg and Tonia Novitz (eds) Voices at Work: Continuity and Change in the Common Law World (Oxford University Press, Oxford, 2014) 458. focus will be on tensions between social and economic forces at both national and international levels and how they have manifested in labour law regulation. Finally, the third part considers potential solutions, identifying a set of prescriptions advocated across the globe, on which labour lawyers broadly agree. These include enlarging the coverage of those legally entitled to trade union representation at work and enhancing access to that representation. Enhancing bargaining rather than “begging” can be fostered by greater solidarity, such that there is a powerful argument for facilitating sectoral bargaining within any given state and indeed for enabling industrial action to be taken in solidarity across enterprises and even national borders. Local strength of feeling also matters and is indeed vital to giving collective worker voice meaning. We need the space within national and international labour laws, as well as institutional provision by extant trade unions, to enable emergent voices to be heard on the matters that concern them. This may also entail not just preserving legal protection of a right to strike, but enhancing its scope and the compass of its legitimate objectives. The consensus emerging on the need for such reforms should not be so surprising. There are profound shared global links between industrial labour law systems. Countries are not independent in the ways that they once were but linked through a network of trade, investment, subcontracting supply/value (or “poverty”) chains and corporate interlinkages (whether through subsidiaries or franchising). Workplaces, by way of contrast, are artificially separated or “fissured”, despite the contractual and corporate links between the employers at each site. Their implementation will, of course, have to be sensitive to the dynamics of each domestic industrial relations system, which is embedded into the political culture of any given country. In this sense, the local will always need to be respected in the crafting of change. Additionally, while we might sensibly look to international institutions like the International Labour 2 Charlotte Villiers “Collective Responsibility and the Limits of Disclosure in Regulating Global Supply Chains” (2018) 23 Deakin LR 143, citing Benjamin Selwyn “Global Value Chains or Global Poverty Chains? A New Research Agenda” (June 2016) Working Paper No 10, Centre for Global Political Economy, University of Sussex at 2. See also Benjamin Selwyn “Social Upgrading and Labour in Global Production Networks: A Critique and an Alternative Conception” (2013) 17 Competition and Change 75. 3 David Weil The Fissured Workplace: Why work became so bad for so many and what can be done to improve it (Harvard University Press, Cambridge (Mass), 2014). 4 Otto Kahn-Freund “On Uses and Misuses of Comparative Law” (1974) 37 MLR 1, 26; although note the identification of greater possibilities for transnational transplantation of collective labour representation by Manfred Weiss “The Future of Comparative Labor Law as an Academic Discipline and as a Practical Tool” (2003) 25 Comp Lab L & Poly J 169 at 170 and 179–80; and Katherine Stone “A New Labor Law for a New World of Work: The Case for a Comparative-Transnational Approach” (2007) 28 Comp Lab L & Poly J 565 at 566 and 581, who also advocates comparison as a basis for “a cross-national agenda for progressive social action”. Organization (ILO) for guidance, it remains possible for any country to be proactive in the promotion of the reforms proposed here, so as to evade the current perils of “collective begging”. I What Perils are we Facing? In recent years, policy-makers have spent so much time thinking about and speculating on the more distant “future of work” (and the associated dangers of human replacement by artificial intelligence and robotics), it is almost as if we have forgotten the perils facing us at the present time. We can and should focus on what is happening now in 2020, following the decline of collective bargaining. It is argued here that key trends include: the normalisation of precarity at work, increased inequalities in income and diminished democratic engagement. In the absence of some corrective, these trends will only continue.

Taking EU labour law beyond the employment contract: The role played by the European Court of Justice:

Abstract: The ongoing transformation of work has been increasing the number of working relationships not falling within the domain of labour law. Non-standard and contingent working arrangements, most recent...

Covid-19 and labour law in Spain

Abstract: The Covid-19 crisis in Spain has led to the adoption of several pieces of legislation with labour law and social security content. The main priority of this fast-changing and frequently adapted leg...

Covid-19 and labour law in the United Kingdom

Abstract: 2020 had been marked as a significant year for the UK with its departure from the European Union The coronavirus pandemic quickly became the most important issue facing the Government under a thir

The platform economy : The main challenges for labour law

Abstract: The platform economy has to be distinguished from mere telework or mobile work, and it is different from Industry 4.0, in which smart robots communicate with each other and with humans on interlinking tasks. The platform economy is not a homogeneous phenomenon. Relatively unproblematic internal platforms are to be distinguished from the very problematic external platforms. There again two types are to be distinguished: “work on demand via app” where work is performed in a traditional way and “online crowd work”. Finally, it is important to distinguish platforms in which relatively simple tasks are performed from platforms where highly skilled persons are confronted with complex tasks. Among the many challenges external platforms pose for labour law, only two are selected for discussion: namely, (1) What impact will the platform economy have on the scope of the application of labour law protection? What does it mean for the traditional conceptual framework of employment relationship? In what manner will the notions of employee and employer have to be reconceptualised? Where is the extension of protection limits? and (2) What impact will the platform economy have on collective representation of the persons performing the work? Will it increase the trend to individualisation? What mechanisms can be used to fight this trend, to develop a consciousness of solidarity and, thereby, to promote collectivisation? As a result of these deliberations it may be concluded that the platform economy cannot be conceived by the traditional set of labour law concepts. Debates and activities are under way, but no consensus yet has been reached on how to cope with these challenges. There is, however, reason for optimism that adequate solutions can be found. There is a need for a joint effort of the international scholarly community in labour law and social security to develop suitable regulatory patterns for this new phenomenon.

Consent, Coercion, and Employment Law

Abstract: The Roberts Court has recently handed several high-profile wins in labor and employment law cases to anti-labor and pro-employer forces. This paper argues that those decisions replicate crucial moves made by some infamous Lochner-era cases — and that those same moves continue to underlie key elements of labor and employment doctrine more generally. In particular, these decisions rest on a contestable understanding of free worker choice. This paper begins by examining the key recent Roberts Court decisions and demonstrates that they appear to invoke at least two distinct and conflicting understandings of employee and employer choice. It then turns to the critique of free choice developed by Legal Realist figures during the first half of the Twentieth Century. The Realists deployed their critique to challenge many then-existing areas of doctrine, notably including the Lochner-era freedom-of-contract cases. This paper demonstrates that the recent Roberts Court decisions implicate that critique just as the Lochner-era cases did. Just as in the Lochner era, the Roberts Court has persistently undervalued the importance of regulation and collective organization in rectifying imbalances in bargaining power and guaranteeing workers meaningful freedom of choice. The paper then explores the implications of the Realist analysis for several fundamental questions of labor and employment law doctrine. The paper argues that the doctrine in this area has never really shed the premises of Lochner.

COVID-19 and Labour Law: Portugal

Abstract: Covid-19 is changing the world of labour. On the one hand, we are probably facing the first massive worldwide experience on teleworking, with intensive use of technologies (eg. videoconference). However, it is perhaps the most challenging moment to do it. In fact, the workers are forced to stay at home, but simultaneously to provide assistance to their parents or grandparents (groups at risk), to take care of their children and to provide the necessary means for the “school at distance” and to assist their children to continue studying remotely. On the other hand, we are dealing with several layoffs by mean of reduction of working time or suspension of the employment contract, affecting more than 500 thousand workers (above 10% of the workforce in Portugal). The collective redundancies, non-renewal of fixed-term contracts and the termination during the trial are also increasing, along with the lack – or substantial reduction – of the activity of self-employed workers. If the crisis lasts for a couple of months, the majority of the micro and small companies will conceivably disappear.

Thinking Out of the Box: Fair Work for Platform Workers

Abstract: The burgeoning gig economy largely operates outside of existing labour standards, mainly because in most countries workers are classified as self-employed rather than as employees. Until now, much ...

The Political Economy of Employment Regulation in Small Developing Countries

Abstract: It is generally accepted that employment regulation offers mechanisms to generate orderly economic growth as well as provide for the protection of workers. Both these efficiency and equity arguments particularly pertain to developing country contexts. The evolution and impact of employment law and industrial relations institutions in large developing countries is of growing interest to western scholars, but small developing countries have been ignored. This lack of research inhibits understanding of the political economy of employment regulation in developing country contexts.This article explores developments in labour regulation in three small developing countries in the South Pacific—Nauru, Tonga, and Papua New Guinea—that have been impacted by globalization and international labour regulation in different ways. The comparative research adopts a stakeholder analysis approach based on programs of qualitative interviews and documentary analysis.The paper identifies a number of structural and agency constraints on the development and effective implementation of employment regulatory systems that primarily reflect political factors. These include disorganized employment relations, under-developed civil society institutions, concentration of power networks, the under-resourcing and compartmentalization of state institutions and a broader context of political change and instability. These factors, which are related to country size as well as stage of development, subvert the introduction, implementation and review of employment regulation even where efficiency and equity arguments may be accepted by policymakers. The article concludes with a discussion of the implications and need for future research.