LSN: Theoretical Perspectives on Employment & Labor Law (Topic)最新文献

{"title":"EU Employment Dynamics: The Pandemic Years and Beyond","authors":"Stefan Jestl, Robert Stehrer","doi":"10.2139/ssrn.3935804","DOIUrl":"https://doi.org/10.2139/ssrn.3935804","url":null,"abstract":"The economic shock induced by the pandemic has plunged European economies into a recession. Lockdowns and social distancing measures have affected economic life in a substantial way, with industries and population groups facing varying difficulties. This study explores potential future employment dynamics across European industries and employment groups for the period up to 2026 by drawing on past sectoral trends and the latest macroeconomic forecast results from the International Monetary Fund (IMF) and the European Commission. A scenario analysis is also carried out, taking into account the great uncertainty and risks that are related to the baseline forecasts. We consider four scenarios: The ‘baseline scenario’ presumes a strong economic recovery The ‘negative scenario’ reflects the possible emergence of one or more mutations which will spread more quickly and have a higher death rate. The ‘worst-case scenario’ presumes the emergence of new, more infectious virus variants. The ‘more optimistic scenario’ predicts an even stronger economic recovery in 2021 and 2022 compared to the baseline scenario.","PeriodicalId":288236,"journal":{"name":"LSN: Theoretical Perspectives on Employment & Labor Law (Topic)","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129486202","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Evaluation of the Practice of Industrial Democracy Across Jurisdictions","authors":"Destiny Aisekhaghe","doi":"10.2139/ssrn.3922613","DOIUrl":"https://doi.org/10.2139/ssrn.3922613","url":null,"abstract":"''The capitalist is very fond of declaring that labour is a commodity, and the wage contract a bargain of purchase and sale like any other. But he instinctively expects his wage-earners to render him, not only obedience, but also personal deference. If the wage contract is a bargain of purchase and sale like any other, why is the workman expected to doff his hat to his employer, and to say 'sir' to him without reciprocity?'' - Webb. This paper evaluates the practice of industrial democracy in different jurisdictions of the world.","PeriodicalId":288236,"journal":{"name":"LSN: Theoretical Perspectives on Employment & Labor Law (Topic)","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133332426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Miser’s Rule of Reason: Student Athlete Compensation and the Alston Antitrust Case","authors":"Herbert Hovenkamp","doi":"10.2139/ssrn.3879580","DOIUrl":"https://doi.org/10.2139/ssrn.3879580","url":null,"abstract":"The unanimous Supreme Court decision in NCAA v. Alston is its most important probe of antitrust’s rule of reason in decades. The decision implicates several issues, including the role of antitrust in labor markets, how antitrust applies to institutions that have an educational mission as well as involvement in a large commercial enterprise, and how much leeway district courts should have in creating decrees that contemplate ongoing administration. The Court accepted what has come to be the accepted framework: the plaintiff must make out a prima facie case of competitive harm. Then the burden shifts to the defendant to produce a justification and, if it produces one, the plaintiff will have a chance to show a less restrictive alternative. While the Court has articulated this three-stage inquiry several times, it has almost always loaded all the important proof requirements into the first stage, with the result that plaintiffs nearly always lose. This is an irrational approach to decision making that reflects a deep anti-enforcement bias. In Alston, however, the plaintiffs finally broke out of that box, but only because the practice itself was a nearly naked cartel. So is the Court now ready to develop a more enforcement-neutral approach to antitrust’s rule of reason? Most rule of reason cases do not involve naked or nearly naked cartels. They are concerned with production or research joint ventures, standard setting, or other agreements whose effects are more complex. Alston was the unique rule of reason case in which the challenged practice was close to a naked cartel. In any other setting it would have been governed by the per se rule but for an idiosyncratic history that compelled the rule of reason. If plaintiffs can successfully navigate the “three-step” rule of reason case only when the challenged restraint is little more than collusion, then the rule of reason is not doing its job. In most rule of reason challenges, including those brought by the government, the plaintiff’s prima facie case depends on market evidence that supports reasonable inferences of competitive harm. By contrast, when the burden shirts, the defense typically depends on evidence about its own conduct and the rationales for it. In terms of decisional quality, cases that raise an inference of competitive harm will be more accurately resolved at the second stage rather than the first one. This does not mean that trivial claims or claims against firms that clearly lack power should go forward. It does suggest, however, that at the first stage the plaintiff should bear a smaller burden.","PeriodicalId":288236,"journal":{"name":"LSN: Theoretical Perspectives on Employment & Labor Law (Topic)","volume":"254 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114325320","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"#MeToo, Sexual Harassment and Accountability: Considering the Role of Restorative Approaches","authors":"Julie Goldscheid","doi":"10.2139/ssrn.3645439","DOIUrl":"https://doi.org/10.2139/ssrn.3645439","url":null,"abstract":"Questions about the meaning of accountability for civil rights violations, and about what role the law can play in advancing accountability, are critically important to law reform. With respect to gender violence, the #MeToo movement has prompted widespread recognition of what feminists have long known, that sexual harassment is pervasive both in and out of the workplace. Yet its persistence, notwithstanding sexual harassment laws and policies that now have been on the books for decades, should spur reflection about what law and policy reforms actually would deter and prevent harassment, and what approaches would meaningfully advance equality at work. \u0000 \u0000Sexual harassment at work lies at the intersection of parallel critiques of anti-discrimination law and of criminal legal interventions in response to gender violence. Both critiques should be taken into account in developing workplace responses to sexual harassment. In both contexts, commentary as well as pilot programs have begun to explore the possibility of incorporating restorative programs to promote healing and redress harms. \u0000 \u0000This Article builds on those foundations and argues that workplaces should integrate restorative approaches into the options available to workers who raise sexual harassment complaints. It summarizes, and draws parallels between critiques of criminal legal regimes addressing gender violence, on the one hand, and workplace discrimination, on another. It describes principles common to restorative justice approaches and reviews the emerging research on the use of restorative justice with gender violence cases. It offers a beginning assessment of how restorative justice approaches might be incorporated into workplace sexual harassment responses, and identifies challenges that will have to be addressed for effective implementation.","PeriodicalId":288236,"journal":{"name":"LSN: Theoretical Perspectives on Employment & Labor Law (Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128348943","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rethinking the Global Governance of Migrant Domestic Workers: The Heterodox Case of Informal Filipina Workers in China","authors":"Yiran Zhang","doi":"10.2139/ssrn.3750241","DOIUrl":"https://doi.org/10.2139/ssrn.3750241","url":null,"abstract":"This Article uses an ethnographic case study to challenge the conventional wisdom in international labor law that formality – including formal contracts and special migration programs – always produces better jobs for transnational migrant workers than informality. Interviews with informal Filipina domestic workers in China – often visa overstayers working outside any legally recognized labor migration program – revealed that, despite working without formal status, they earned higher wages and enjoyed more favorable working conditions relative to other Asian labor markets for migrant domestic workers. National regimes of immigration law, which shape the negotiation, formation, and enforcement of the labor contract between the foreign worker and the domestic employer, explain this paradox. Typical labor migration programs (e.g. Singapore’s) tie the worker's immigration status to a specific labor contract, the breach of which results in prompt deportation. In contrast, such connections between workplace strategies and immigration law measures are more uncertain and leave more room for parties to negotiate in the informal Chinese market. These contingencies between immigration law enforcement and job status ironically enable workers to renegotiate both the employer and the structure of their jobs after arrival, which significantly enhances their bargaining power inside and outside the workplace household. This Article conducts a cross-jurisdiction comparison between a formal program in Singapore and the informal market in China and makes a compelling argument for using a comparative-bargaining-power framework to evaluate how contracts and background rules distribute power and risk among parties in the global care chain. This approach joins the emerging scholarly critiques of the International Labor Organization's almost exclusive focus on formalization to advance migrant workers' conditions.","PeriodicalId":288236,"journal":{"name":"LSN: Theoretical Perspectives on Employment & Labor Law (Topic)","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114916591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reefer Madness: The Legal Quagmire of Medical Marijuana in the Workplace","authors":"K. Jacob","doi":"10.2139/ssrn.3570081","DOIUrl":"https://doi.org/10.2139/ssrn.3570081","url":null,"abstract":"The film ‘Reefer Madness’1 propagandized the evil effects of marijuana in the 1930s.2 Nearly 83 years later, marijuana is largely decriminalized, chiefly for medicinal purposes. Less melodramatic than the side effects portrayed in Reefer Madness is the reality of how employment law will be impacted by medicinal marijuana use. <br><br>Ordinarily, the Americans with Disabilities Act (“ADA”) would sufficiently address employee protections and permissible adverse employment actions, and, where it fails to provide guidance, surely state law would fill the gap. However, the current state of marijuana law presents a bizarre dilemma: how does a local or state jurisdiction regulate a medically and lawfully recommended drug that is outlawed federally? Does marijuana’s federal classification as a Schedule I drug permit an employer to claim preemption under the Supremacy Clause of the Constitution to avoid liability for adverse employment actions, such as discrimination, when state law would otherwise permit damages to be awarded? Where does an employee find balance between medical necessity and an organization’s business risk associated with medicinal side effects of marijuana? Why is reasonable accommodation even a legal answer for a drug used off site and after work hours? <br><br>The current answers to these questions are divisive, pitting employer against employee and circuit against circuit. Yet the application of employment law is not at conflict with federal mandates. As this article will argue, the shortcomings of the ADA can therefore be remedied by applying an equitable balancing test to medical marijuana discrimination claims.","PeriodicalId":288236,"journal":{"name":"LSN: Theoretical Perspectives on Employment & Labor Law (Topic)","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122135148","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"El Derecho a La Desconexión: Contenidos Y Perspectivas Para Su Implementación Desde La Experiencia Francesa (The Right to Disconnect: Contents and Perspectives for Its Implementation from the French Experience)","authors":"Facundo Martin Chiuffo","doi":"10.2139/ssrn.3418700","DOIUrl":"https://doi.org/10.2139/ssrn.3418700","url":null,"abstract":"<b>Spanish Abstract:</b> El avance y la masificación en el uso de las Tecnologías de la Información y la Comunicación (TICs) ha modificado enormemente la forma en que las relaciones humanas se desarrollan, y continuará haciéndolo en el futuro. En lo que respecta al campo del derecho del trabajo, las nuevas tecnologías han afectado el equilibrio entre vida profesional y personal. La sobre conectividad a la que estamos expuestos gracias a la facilidad de comunicarse en todo momento y lugar desdibuja los límites entre tiempos de trabajo y tiempos de descanso. Para contrarrestar los efectos nocivos de la sobre conectividad, Francia ha reconocido en la Ley n° 2016-1088 del 8 de agosto de 2016 – conocida como Ley El Khomri – un derecho a la desconexión para los trabajadores, en respeto de su vida personal y familiar. El presente trabajo pretende exponer la serie de antecedentes fácticos que trazaron el camino para la obtención legal del derecho a la desconexión en Francia y los factores que justifican la oportunidad de su tratamiento como herramienta para devolver el equilibrio al binomio trabajo-vida personal. Luego se analizará el marco regulatorio actual, meritando sus aciertos y desaciertos con la intención de servir como punto de partida a futuras mejoras y regulaciones en otras jurisdicciones. Finalmente se indicarán ciertas modalidades de ejercicio prácticas de este derecho en base a la experiencia empírica.<br><br><b>English Abstract:</b> The advances and popularisation of the use of Information and Communication Technologies (ICTs) have greatly modified the way in which human relationships develop, and will continue to do so in the future. With regard to the field of labor law, new technologies have thoroughly affected the balance between professional and personal life. The over-connectivity to which we are exposed thanks to the current ease of getting communicated at any time and place blurs the boundaries between working times and rest periods. To counteract its harmful effects, France has recognized in the Act No. 2016-1088 of August 8, 2016 – known as the El Khomri Law – a right to disconnect for workers, in order to respect their personal and family lives. This paper intends to present the factual background that paved the way for the legal obtaining of the right to disconnect in France and the aspects that justify the convenience of its treatment as a means to restore the balance of the binomial work-personal life. Then the current regulatory framework will be analyzed, considering its strengths and drawbacks with the purpose of serving as a starting point for future improvements and regulation in other jurisdictions. Finally, certain modalities of practical exercise of this right will be indicated based on empirical experience.","PeriodicalId":288236,"journal":{"name":"LSN: Theoretical Perspectives on Employment & Labor Law (Topic)","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114254399","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Normative Framework of Labour Law","authors":"N. Zekić","doi":"10.5553/rem/.000044","DOIUrl":"https://doi.org/10.5553/rem/.000044","url":null,"abstract":"This article looks at how normative questions, i.e. ‘what should the law be?‘, are approached in modern labour law scholarship. A distinction is made between internal and external normative frameworks for analysis, whereby internal frameworks are made up of principles, values or standards that are part of the law and the external frameworks are made up of theories outside of law. As a functional legal field, labour law can also benefit to a great deal from empirical research. However, the article argues that empirical facts by themselves have a limited normative value and that we need a normative framework in order to answer normative and evaluative questions. Therefore, the aim of the article is to review, clarify and evaluate the internal normative framework of labour law.","PeriodicalId":288236,"journal":{"name":"LSN: Theoretical Perspectives on Employment & Labor Law (Topic)","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121679337","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Gaming the System: The Exemption of Professional Sports Teams from the Fair Labor Standards Act","authors":"Charlotte S. Alexander, N. Grow","doi":"10.2139/SSRN.2568758","DOIUrl":"https://doi.org/10.2139/SSRN.2568758","url":null,"abstract":"This article examines a little known exemption to the Fair Labor Standards Act (“FLSA”) that relieves seasonal recreational or amusement employers from their obligation to pay the minimum wage and overtime. The article evaluates the existing, confused case law surrounding the exemption and proposes a new, simplified framework for applying the provision. It then applies this framework to a recent wave of FLSA lawsuits brought against professional sports teams by cheerleaders, minor league baseball players, and stadium workers who claim they received less than the hourly minimum wage and/or were denied overtime pay. In particular, it determines that, when viewed properly, sports teams will often qualify for the exemption in at least some aspects of their operations. The article concludes by considering the policy implications of exempting this class of employers — some of which are worth up to three billion dollars — from the FLSA’s wage and hour requirements.","PeriodicalId":288236,"journal":{"name":"LSN: Theoretical Perspectives on Employment & Labor Law (Topic)","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123332509","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unemployment and Regulatory Policy","authors":"J. Masur, E. Posner","doi":"10.2139/ssrn.2198596","DOIUrl":"https://doi.org/10.2139/ssrn.2198596","url":null,"abstract":"In an earlier article, Regulation, Unemployment, and Cost-Benefit Analysis, we argued that regulatory agencies should incorporate the costs of unemployment into cost-benefit analyses of proposed regulations. We argued that alternatives to including unemployment costs in cost-benefit analysis — including feasibility analysis and job loss analysis — make little sense because they do not specify the threshold at which job loss is excessive and do not explicitly make tradeoffs between unemployment effects and social gains. Our paper was cited in a 2012 draft OMB report that sought advice from commentators as to whether cost-benefit analysis should incorporate unemployment costs and, if so, how it should do so. This chapter, prepared for a volume on the treatment of unemployment costs within cost-benefit analysis, builds and expands upon that earlier work. We first respond to some important questions and critiques that commentators have raised regarding our paper in the intervening years since we published it. We then discuss some broader issues raised by the debate about the incorporation of unemployment costs into cost-benefit analysis, including the role of “second-order” or remote costs and benefits and the treatment of the ex ante incentives of regulation.","PeriodicalId":288236,"journal":{"name":"LSN: Theoretical Perspectives on Employment & Labor Law (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123714198","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}