Comparative Labor Law and Policy Journal最新文献

{"title":"SOCIAL MEDIA AND PRIVACY IN THE CHINESE WORKPLACE: WHY ONE SHOULD NOT 'FRIEND' THEIR EMPLOYER ON WECHAT","authors":"Mimi Zou","doi":"10.2139/SSRN.3056783","DOIUrl":"https://doi.org/10.2139/SSRN.3056783","url":null,"abstract":"It is no understatement that social media has become a ubiquitous feature of our lives. In the People’s Republic of China, the popularity of social media usage continues to grow, particularly in the workplace setting. The vast quantity and range of data generated and shared on social networks, including personal information, have become a valuable resource for employers to screen job applicants, monitor work performance, and investigate employee wrongdoings. Developments in workplace surveillance technologies have also made it easier for employers to track, monitor, and access employees’ online activities. The legitimacy of employers’ inquiry into the online lives of job applicants and employees is often justified on the basis of business concerns about reputational risks, leakage of intellectual property and trade secrets, and other legal liabilities that could arise from employees’ social media activities. \u0000This article probes into a number of important regulatory challenges arising from employers’ access to and use of social media in China. It starts with an analysis of the extent to which privacy and data protection laws in China, including relatively recent developments in the Cyber Security Law and the General Provisions of Civil Law 2017, protect employees’ rights in this context. I then examine relevant cases brought before local courts that reveal how employers have accessed and made use of employees’ social media communications in a variety of common circumstances. From this analysis, three key issues remain unresolved by lawmakers and the courts: unlawful discrimination arising from the use of social media in recruitment; employee speech that may harm an employer’s business and reputational interests; and off-duty social media communications of employees. I conclude that extant regulatory gaps provide much scope for employers in China to monitor and inquire into employees’ social media activities, especially in light of the power asymmetries in the employment relationship.","PeriodicalId":315561,"journal":{"name":"Comparative Labor Law and Policy Journal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115672724","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":"Race for the Exits: The Unraveling of Japan's System of Social Protection","authors":"Leonard J. Schoppa","doi":"10.7591/9780801461804","DOIUrl":"https://doi.org/10.7591/9780801461804","url":null,"abstract":"“This creative and important book addresses the most profound conundrum posed by Japanese politics in the past few decades: Given economic collapse and the failure of reform, why aren’t the Japanese up in arms? The writing is lively, the research thorough, the argumentation consistently helpful. Schoppa’s take on the relationship between exit and voice will interest comparativists and political economists, and his special attention to the plight of women in the Japanese labor market will attract readers in gender studies. Race for the Exits also has much to say to those interested in how public policy can address market failures.” —Frances Rosenbluth, Yale University","PeriodicalId":315561,"journal":{"name":"Comparative Labor Law and Policy Journal","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114054416","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 rise of the \"just-in-time workforce\": on-demand work, crowdwork and labour protection in the \"gig-economy\"","authors":"Valerio De Stefano","doi":"10.2139/SSRN.2682602","DOIUrl":"https://doi.org/10.2139/SSRN.2682602","url":null,"abstract":"The so-called “gig-economy” has been growing exponentially in numbers and importance in recent years but its impact on labour rights has been largely overlooked. Forms of work in the “gig-economy” include “crowdwork”, and “work-on-demand via apps”, under which the demand and supply of working activities is matched online or via mobile apps. These forms of work can provide a good match of job opportunities and allow flexible working schedules. However, they can also pave the way to a severe commodification of work. This paper discusses the implications of this commodification and advocates the full recognition of activities in the gig-economy as “work”.","PeriodicalId":315561,"journal":{"name":"Comparative Labor Law and Policy Journal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130942250","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":"Employment Stability in Spanish Labor Law: Between Regulatory Tradition and Social Reality","authors":"I. Baviera","doi":"10.2139/SSRN.2277090","DOIUrl":"https://doi.org/10.2139/SSRN.2277090","url":null,"abstract":"A traditional principle in Spanish labor law is employment stability. The effect of the economic crisis on labor law since the mid-1970s and especially the devastating impact of the 2008 global financial crisis on employment has, however, deeply weakened this traditional paradigm. This article explores this dynamic by focusing on the legal provisions for recruitment and dismissal from the labor market.","PeriodicalId":315561,"journal":{"name":"Comparative Labor Law and Policy Journal","volume":"104 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115444844","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 Principle of Proportionality in Labor Law and its Impact on Precarious Workers","authors":"G. Davidov","doi":"10.2139/SSRN.2168275","DOIUrl":"https://doi.org/10.2139/SSRN.2168275","url":null,"abstract":"The principle of proportionality is a key legal tool used in human rights' settings. It usually includes three tests, examining the relationship between goals and means in the achievement of some legitimate goal: there has to be a rational relation between the means and the goal; the means chosen should impair rights as minimally as possible; and the gains should be proportional to the price in terms of rights' infringement. I argue that these tests are used (although sometimes without reference to the explicit term \"proportionality\") in many labor law contexts, including in the private sector. Examples will be given from Israeli case law. I then argue that the use of these tests in the labor law context is justified and should be further extended, albeit with some limits. In this regard, special attention will be given to strategic and distributive considerations: to what extent can the principle of proportionality be used to improve the situation of precarious workers, as opposed to stronger workers.","PeriodicalId":315561,"journal":{"name":"Comparative Labor Law and Policy Journal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117094280","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":"Good Faith Bargaining Downunder","authors":"P. Nuttall, B. Creighton","doi":"10.2139/SSRN.1969635","DOIUrl":"https://doi.org/10.2139/SSRN.1969635","url":null,"abstract":"The purpose of this article is to examine the provisions that have been adopted by the Australian and New Zealand legislatures to encourage good faith bargaining and to attempt an assessment of the extent to which those measures have achieved, or have the potential to achieve, their objective. For almost a century the two jurisdictions uniquely relied on compulsory conciliation and arbitration rather than collective bargaining as the principal means of regulating terms and conditions of employment. With the shift to greater reliance on collective bargaining and individual employment contracts, good faith requirements have been viewed as a means of ensuring continued collective coverage and the maintenance of union density. Detailed analysis of the statutory provision and their interpretation is set in the context of a brief historical overview of the preceding conciliation and arbitration regime, followed by some tentative conclusions about the efficacy of statutory regulation as a vehicle for promoting good faith bargaining.","PeriodicalId":315561,"journal":{"name":"Comparative Labor Law and Policy Journal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128483618","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":"Convergences and Divergences in International Legal Norms on Migrant Labor","authors":"Chantal Thomas","doi":"10.2139/SSRN.1750264","DOIUrl":"https://doi.org/10.2139/SSRN.1750264","url":null,"abstract":"This essay will argue that even where disparate treaties converge doctrinally, they may diverge normatively and that normative divergence may be significant in its own right. Section I of this essay seeks to chart out an initial such analysis, conducting a concise comparison of particular rules affecting migrant workers from different realms of international law. Section I concludes with both a graphic representation of doctrinal convergences and divergences, and a further discussion the doctrinal relationships among treaties as elucidated through consideration of hypothetical legal disputes.Section II considers the normative implications of divergent rule systems. In particular, Section II raises the question of whether the rise of international criminal law, combating forms of illegal migration such as migrant smuggling and trafficking in persons, may support a normative divergence in international migration law between the primacy of the rights of individuals, on the one hand, and the primacy of states, on the other. This normative tension in turn marks a rift still greater than those between trade and labor, or labor and human rights: it represents the polarities of liberal legalism as a jurisprudential framework ultimately transcending sovereignty, or one that protects and legitimates sovereignty.This kind of normative analysis is, of course, highly stylized. Legal regimes do not stand for only one set of norms, but rather reflect contested and complicated histories. International labor law, for example, harbors tensions between the “economic and the social,” that is to say, an emphasis on particular industrial and workplace contexts versus broader aspirations toward justice. Moreover, even where particular principles predominate, this should not be taken to discount the importance of political economy, self-interested bargaining, and historical contingency in allowing those norms to prevail or in influencing the particular ways in which norms continue to develop and change over time.Finally, a consideration of norms explicitly articulated by the treaties or laws in question does not begin to describe their full effect, and formal principles often create substantive effects sharply at odds with their own terms. The treaty regimes analyzed in this article should be studied not only in terms of their internal complexities but also in their external “realworld” impact. Such an analysis is beyond the scope of this essay. Nevertheless, by mapping the array of international legal regimes across human rights, trade, labor, and crime that affect migration, and in describing some of their prevalent doctrinal and normative characteristics, it is hoped that the article might contribute to emerging scholarship on this topic.","PeriodicalId":315561,"journal":{"name":"Comparative Labor Law and Policy Journal","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132851268","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":"Laval, Viking, and American Labor Law","authors":"S. Willborn","doi":"10.2139/SSRN.1600182","DOIUrl":"https://doi.org/10.2139/SSRN.1600182","url":null,"abstract":"Laval and Viking are important decisions of the European Court of Justice. Both restrict the ability of unions to take industrial action. The decisions have been highly controversial and widely debated in Europe. This article considers how the decisions would have been decided under American labor law. I find that the United States would have resolved the cases differently and more generously to labor interests. This is a counter-intuitive result given the conventional wisdom about attitudes towards unions and labor regulation in Europe and the United States. The article concludes by arguing that this comparative analysis tells us something about the cross-cutting currents that contribute to the development of labor law. This article is part of a symposium to be published in the Comparative Labor Law & Policy Journal that also includes articles by European and Canadian academics.","PeriodicalId":315561,"journal":{"name":"Comparative Labor Law and Policy Journal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123505797","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":"When it is Reasonable for Europeans to Be Confused: Understanding When a Disability Accommodation is 'Reasonable' from a Comparative Perspective","authors":"L. Waddington","doi":"10.4324/9781315094861-17","DOIUrl":"https://doi.org/10.4324/9781315094861-17","url":null,"abstract":"The article discusses the meaning of the concept reasonable accommodation for persons with a disability from a European perspective. The requirement to provide for such accommodations flows from Article 5 of the EC Employment Equality Directive (2000/78). In spite of this common origin, the article notes that that EC Member States have transposed and interpreted the obligation in a variety of different ways, and no common understanding of, in particular, the notion of reasonableness with regard to an accommodation, exists. Instead, the article identifies three different ways in which the term reasonable has been understood. In the first approach, an accommodation will only be regarded as reasonable if it does not impose excessive difficulties or costs on the employer or other covered party. According to the second approach, an accommodation will be regarded as reasonable if it is effective in allowing the relevant individual to carry out the necessary (employment related) tasks. The last way is which the term reasonable is used in legislation is to convey both that the accommodation must be effective and that it must not impose significant inconvenience or cost on the employer or covered party. Given that this approach also seems to be adopted in Article 5 of the Employment Equality Directive, the European Court of Justice will be confronted with the task of interpreting, and thereby enabling national courts to apply, this dual meaning in the future.","PeriodicalId":315561,"journal":{"name":"Comparative Labor Law and Policy Journal","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133780879","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":"'Great Expectations' Defeated?: The Trajectory of Collective Bargaining Regimes in Canada and the U.S. Post-NAFTA","authors":"E. Tucker","doi":"10.2139/SSRN.707132","DOIUrl":"https://doi.org/10.2139/SSRN.707132","url":null,"abstract":"From the beginning of the free-trade era one contentious area has been the impact of trade liberalization on labor law. Opponents of NAFTA (and some supporters) predicted a regulatory race to the bottom (RTB) would ensue leading to increasingly deregulated labor markets. The result would be weaker collective bargaining laws, lower minimum standards, and a decline in the social wage. In recent years a number of scholars have examined the question in light of more than fifteen years experience under CUFTA and ten under NAFTA and there seems to be a growing consensus that, contrary to those 'great expectations', labor laws in North America have not been significantly weakened. In this article, I re-examine the effects of NAFTA on collective bargaining law in Canada and the United States. My contribution to the debates comes down to two points. On the one hand, I argue that the emerging consensus understates the impact of NAFTA-style trade liberalization on the legal regulation of collective bargaining because its focus is artificially narrow. In reaching their conclusions, 'new consensus' scholars have looked exclusively at changes in private sector collective bargaining legislation. I argue this produces a misleading picture of the impact of trade liberalization because it omits public sector collective bargaining and, even more importantly, it fails to consider the impact of trade liberalization on the effectiveness of statutory collective bargaining schemes. If the focus is broadened to include public sector bargaining and labor law's effectiveness, then one finds there has been more labor market deregulation than consensus scholars acknowledge. On the other hand, I accept that, even after broadening our analytical lens, the downward trajectory of the collective bargaining regime has not been as steep as many RTB theorists predicted. I argue that the model upon which this prediction was based was overly structural and that a more nuanced one is needed. Such a model must better take into account a range of factors that mediate the impact of NAFTA-style trade liberalization on labor market regulation. These mediations occur at the economic level, within the collective bargaining regime itself, and in the external environment that shapes the direction of state action.","PeriodicalId":315561,"journal":{"name":"Comparative Labor Law and Policy Journal","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124519880","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}