Employment Law eJournal最新文献

{"title":"Fiduciary Principles in Employment Law","authors":"Aditi Bagchi","doi":"10.1093/OXFORDHB/9780190634100.013.13","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190634100.013.13","url":null,"abstract":"Employees are agents of their employers, and in some cases, are in a position to undermine the interests of their employers in ways that the employers cannot fully anticipate or contractually protect themselves against. While most jurisdictions historically treated all employees as fiduciaries of their employers, by now only a minority of jurisdictions regards all employees as fiduciaries. Most states treat only high-level employees of “trust and confidence” as fiduciaries, while other employees owe a lesser duty of loyalty. Some scholars have made arguments in support of recognizing employers as fiduciaries to employees, but as yet, employers owe neither fiduciary duties nor any lesser duty of loyalty to employees. Only employer-related entities such as pension funds and employee stock option programs owe fiduciary duties to employees under the Employee Retirement Income Security Act (ERISA). The doctrinal status and conceptual basis for the fiduciary duties of employees are discussed in Section I. Section II addresses fiduciary duties under ERISA. Section III touches on potential fiduciary duties of employers.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130112350","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":"Regulatory of the Teleworking Activities in Romania","authors":"D. Țop","doi":"10.2139/SSRN.3157517","DOIUrl":"https://doi.org/10.2139/SSRN.3157517","url":null,"abstract":"Recently, in Romania, a regulation concerning teleworking activity was adopted that was modeled after Japan's legislation, although similar regulations existed in some EU member states. Previously, there is no teleworking regulation in the Romanian labour law, but it is considered to be a form of recent work, characterized by the fact that the employee is working regularly outside the employer's premises, using the information technologies linked to the employer's computer network. At the European level on 16 July 2002, however, between U.I.C.E. - on behalf of the employer - and U.E.A.P.M.E, C.E.E.R and C.E.S. - from the professional organizations of the employees - the framework agreement on telework. Application of the Law on teleworking will confirm whether its provisions are more or less met by the expectations of employers and employees interested in such a flexible form of work organization.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"1 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":"130176624","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":"‘Wage’, ‘Salary’ and ‘Remuneration’: A Genealogical Exploration of Juridical Terms and Their Significance for the Employer's Power to Make Deductions from Wages","authors":"Zoe Adams","doi":"10.17863/CAM.23630","DOIUrl":"https://doi.org/10.17863/CAM.23630","url":null,"abstract":"The Supreme Court in Hartley v King Edwards VI College (2017) has confirmed that an employee who refuses to work in accordance with his contract forfeits his right to be paid for the duration of the breach. The decision extends to professional employees paid a periodic salary the principle established in Miles v Wakefield MDC (1987). The present article sheds new light on these decisions by situating them within a broader debate concerning the function of the wage and the proper relationship between work and payment. Drawing on insights from economic theory, and engaging in a genealogical analysis of legal concepts, the article shows how this debate has, over time, conditioned the use of concepts such as the 'wage', 'the salary' and 'remuneration' in legislation and case law concerning deductions. It shows that the legal concept of the 'wage' is closely related to the economic idea of the wage as the price of a commodity, while the legal concepts of 'salary' and 'remuneration' are more closely analogous to the economic idea of the wage as the cost of subsistence. The courts' tendency to confuse these concepts, and to analyse the employer's power to deduct as a right to withhold wages for non-performance of the contract, tells us much about the implicit assumptions underpinning cases such as Miles and Hartley, and how they have shaped the path of the law.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126606068","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":"Is New Code Section 199A Really Going to Turn Us All into Independent Contractors?","authors":"Shu-Yi Oei, Diane M. Ring","doi":"10.2139/SSRN.3101180","DOIUrl":"https://doi.org/10.2139/SSRN.3101180","url":null,"abstract":"There has been a lot of interest lately in new IRC Section 199A, the new qualified business income (QBI) deduction that grants passthroughs, including qualifying workers who are independent contractors (and not employees), a deduction equal to 20% of a specially calculated base amount of income. One of the important themes that has arisen is its effect on work and labor markets, and the notion that the new deduction creates an incentive for businesses to shift to independent contractor classification. A question that has been percolating in the press, blogs, and on social media is whether new Section 199A is going to create a big shift in the workplace and cause many workers to be reclassified as independent contractors. \u0000 \u0000Is this really going to happen? How large an effect will tax have on labor markets and arrangements? We think that predicting and assessing the impact of this new provision is a rather nuanced and complicated question. There is an intersection of incentives, disincentives and risks in play among various actors and across different legal fields, not just tax. Here, we provide an initial roadmap for approaching this analysis. We do so drawing on academic work we have done over the past few years on worker classification in tax and other legal fields. \u0000 \u0000For an updated and expanded analysis of these issues, see Oei & Ring, \"Tax Law's Workplace Shift,\" forthcoming, Boston University Law Review (2020), https://ssrn.com/abstract=3285591.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128775062","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":"Are Uber and Transportation Network Companies the Future of Transportation (Law) and Employment (Law)?","authors":"Miriam A. Cherry","doi":"10.37419/LR.V4.I2.1","DOIUrl":"https://doi.org/10.37419/LR.V4.I2.1","url":null,"abstract":"Transportation network companies (“TNCs”) such as Uber and Lyft manage ridesharing platforms that have increased efficiency and convenience for many passengers. These platforms, however, have also opened the door to many legal and regulatory issues pertaining to their business practices, employment structures, and transportation law and policy. This article provides a perspective on the economic, social, technical, and political aspects of TNCs in two steps, focusing on transportation and employment. First, it examines the future of TNCs in transportation, noting that TNCs could do more in terms of environmentalism to live up to the promise of the “sharing” economy. Second, the article analyzes the interaction of TNCs with labor and employment law. It proposes development of basic protections from the negative side of the TNCs management model, i.e. precarious labor and automatic management through algorithmic surveillance.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"428 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132337751","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 Law and Intellectual Property Law: Attempts to Resolve Issues at the Points of Convergence","authors":"Ann Monotti","doi":"10.4337/9781785366420","DOIUrl":"https://doi.org/10.4337/9781785366420","url":null,"abstract":"This chapter introduces a collection of published articles and book chapters from a range of jurisdictions in the area of employment law and intellectual property law. The chapter explains that the collection adopts a thematic approach through the lens of varied perspectives: contextual, historical and theoretical. The overall contextual perspective is that of intellectual property rights in both public (government and universities) and private sector employment. A separate section is dedicated to historical perspectives on ownership of employee inventions to reflect the extent of classic scholarship on this topic. However, historical perspectives also appear more broadly within each theme, especially where they present and analyse the legal, theoretical and practical issues that necessitated and catalysed change. Although there is extensive theoretical scholarship that examines justifications for each of the different forms of intellectual property, the research uncovered limited theoretical analysis of the legal principles that apply at the union of employment law and intellectual property law. Nevertheless, a collection of this kind is incomplete without some theoretical reflections. This collection is enriched by the contributions of both employment law and intellectual property law scholars. The authors’ principal discipline has a direct impact on the selection of issues, the point from which they commence their analysis, the perspective they take and the themes that interest them. In broad terms, an intellectual property scholar might frame the questions and conduct the analysis from the perspective of the creation of intellectual property rights during employment with particular attention to patents, confidential information and to duties of employment. What balance of rights between employer and employee will most effectively and efficiently create incentives for production of knowledge that has the relevant attributes for protection? An employment law scholar, on the other hand, might frame the questions from the perspective of safeguarding the employee’s ability to continue to use her skills and knowledge after leaving employment to work elsewhere. Their focus may not be on the creation of intellectual property rights during employment but on the evaluation of restraints that an employer might impose under contract law on departing employees. Employment law scholars in particular might question the extent to which contractual restraints undermine the balance that intellectual property laws seek to maintain between monopolised information and the public domain. They may be concerned to constrain the parameters of what knowledge might have protection as a trade secret and support the imposition of restraints on a departing employee. This chapter considers the points of convergence and the attempts to resolve the issues that arise at those points. The chapter takes the reader on a personal voyage of discovery across the literature and hope","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121915524","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":"ILO Conventions 111 and 100 in Central America and Mexico: An Assessment of the Jurisprudence of the ILO Committee of Experts","authors":"Tequila J. Brooks","doi":"10.2139/SSRN.3133808","DOIUrl":"https://doi.org/10.2139/SSRN.3133808","url":null,"abstract":"The International Labor Organization (ILO) monitors compliance with Conventions through two mechanisms: the Committee on Freedom of Association (CFA) and the Committee of Experts on the Application of Conventions and Recommendations (CEACR). While there is a significant amount of attention and literature dedicated to the work of the CFA, there is less attention devoted to the work of the CEACR. There is also inadequate attention to the ILO’s promotion and monitoring of ILO Conventions 100 (equal pay for work of equal value for women and men) and 111 (prohibition of discrimination in work and occupation based on sex and other grounds). These Conventions form the third pillar of the 1998 Declaration on Fundamental Rights at Work. This paper hopes to rectify this gap in the literature by examining the jurisprudence of the CEACR relating to ILO Conventions 100 and 111 in Mexico,Guatemala, El Salvador and Honduras. It finds that ILO Committee of Experts comments had an impact on the development and improvement in labor laws in the countries examined but that sole causation could not be ascribed. Legal changes frequently took decades to occur and resulted from a combination of efforts by national and international social movements as well as reports and comments issued by the ILO and other regional and international bodies.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134618880","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":"Volunteer Work, Inclusivity, and Social Equality","authors":"Sabine Tsuruda","doi":"10.1093/OSO/9780198825272.003.0017","DOIUrl":"https://doi.org/10.1093/OSO/9780198825272.003.0017","url":null,"abstract":"This chapter argues that current attempts in employment law to distinguish volunteers from employees on the basis of volunteer work’s civic, humanitarian, or charitable character are premised on overly narrow views of the moral significance of work. The chapter proposes that the law distinguish volunteer work from employment on the basis of the work’s merit inclusivity—inclusivity with respect to skill and ability. By offering people access to a broader range of social projects than their skills might offer in the labour market, merit inclusive volunteering opportunities can lessen the risk that skill and ability will confine people to particular social roles. Distinguishing volunteers from employees on the basis of merit inclusivity can thus create a more principled volunteer–employee legal boundary and can preserve legal space for work that lessens inegalitarian effects of the labour market on opportunities to participate in social life.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130865313","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 Wage Theft Was a Crime in Canada, 1935-1955","authors":"E. Tucker","doi":"10.60082/2817-5069.3163","DOIUrl":"https://doi.org/10.60082/2817-5069.3163","url":null,"abstract":"In recent years the term “wage theft” has been widely used to describe the phenomenon of employers not paying their workers the wages they are owed. While the term has great normative weight, it is rarely accompanied by calls for employers literally to be prosecuted under the criminal law. However, it is a little known fact that in 1935 Canada enacted a criminal wage theft law, which remained on the books until 1955. This article provides an historical account of history of the wage theft law, including the role of the Royal Commission on Price Spreads, the legislative debates and amendments that narrowed its scope and the one unsuccessful effort to prosecute an employer for intentionally paying less than the provincial minimum wage. It concludes that the law was a symbolic gesture and another example of the difficulty of using the criminal law to punish employers for their wrongdoing.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"107 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116089609","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":"U.S.-Russia-East Asia Comparisons of Dispatch (Temporary) Worker Regulations","authors":"Ronald C. Brown, O. Rymkevich","doi":"10.17589/2309-8678-2017-5-1-6-32","DOIUrl":"https://doi.org/10.17589/2309-8678-2017-5-1-6-32","url":null,"abstract":"Russia had few temporary workers in the 1990s, but after the fall of the Soviet Union and the entrance of foreign MNCs, the percent of workers on temporary contracts grew in 2014. In 2016, a new law was implemented that bans hiring temporary workers except through government-accredited agencies, but only for the purpose of substituting for employees who are temporarily absent from the workplace; to assist in the temporary expansion of production or services (for up to a maximum of nine months); and to provide temporary employment to certain approved categories of workers (i.e., fulltime students, single parents, parents of multiple children, and former convicts). This paper will compare and contrast the current labor protections of temporary dispatch workers in the U.S. and Russia, with consideration also of the recent legislative labor protections provided in the East Asian countries of China, South Korea, and Japan. Following the Introduction, the paper, in Part I discusses the phenomena of “fissurization,” in employment relations and its resulting legal implications for the regulation of “dispatch (agency)” workers in the above countries. Part II compares and contrasts the regulatory approaches of the U.S. with Russia and the East Asian countries of China, Japan, and South Korea; and the Conclusion follows. Perhaps the menu of regulatory legislation provided in this paper will be useful for those looking for the tools to construct dispatch regulation in the U.S.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132345173","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}