LSN: Employment Statutes (Topic)最新文献

{"title":"Reforming Labour Laws in the Netherlands: An Assessment of the Redistributive Effects","authors":"N. Zekić","doi":"10.2139/ssrn.3498934","DOIUrl":"https://doi.org/10.2139/ssrn.3498934","url":null,"abstract":"This contribution examines recent labour law reforms in the Netherlands in terms of their distributive aims and effects. Are redistributive concerns part of the reform motives, and if so, what kind of redistribution do the legislators have in mind? Furthermore, what kind of legal mechanisms do they use to reach the redistributive goals and are these mechanisms likely to reach their goals considering what we know about economic inequality?","PeriodicalId":431496,"journal":{"name":"LSN: Employment Statutes (Topic)","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126450522","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":"Twenty-First Century Employers","authors":"Jeffrey M. Hirsch","doi":"10.1017/9781108610070.016","DOIUrl":"https://doi.org/10.1017/9781108610070.016","url":null,"abstract":"The most fundamental question in labor and employment law is whether an employment relationship exists. Often, this questions centers on whether a worker is classified as an employee covered by a relevant statute. But even when there is no issue about a statute’s jurisdiction over workers and firms involved in a dispute, determining whether an employment relationship exists can still pose challenges. This is especially true when multiple firms are involved in the supply or use of labor, such as through contracting, franchising, leasing, and other similar business models. Although these business forms can have legitimate and beneficial corporate justifications, they can also lead to a “fissured” employment relationship that is fraught with problems, including the inability of workers to hold their primary or official employers liable for workplace violations; exclusion of workers from the often superior working conditions and benefits enjoyed under traditional work relationships; a decrease in cooperation between workers and firms; an increase in workplace accidents; and frustration of workers’ attempts to engage in collective bargaining. The practice of firms using indirect or fissured labor is not a new one. Courts have long struggled to determine firms’ liability under various workplace laws pursuant to the joint-employer concept. Technology, however, has greatly exacerbated this issue, as it has made it easier for firms to use contingent workers and to enter into shared operational relationships like franchising. The salience of this issue was brought home by the NLRB General Counsel’s recent case against McDonald’s, arguing that the corporation was a joint employer along with many of its franchisees. \u0000 \u0000This chapter explores these issues and proposes an alternative analysis that renews the focus on the primary purpose of labor law’s joint-employer doctrine — ensuring meaningful collective bargaining. The central inquiry under this test would be whether the official employer, by itself, is able to effectively bargain over the work conditions at issue or whether a third-party firm’s absence thwarts employees’ right to engage in good-faith bargaining over their work conditions. If a third party is needed for an employer to alter or make a concession over a term of employment, then that third party should be considered a joint employer and have to bargain over that term. This proposed test compares favorably to current common-law tests by maintaining more focus on the issues in dispute, by typically involving a more streamlined application, and by providing third-party firms more control over their potential status as a joint employer.","PeriodicalId":431496,"journal":{"name":"LSN: Employment Statutes (Topic)","volume":"138 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114237972","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 Fourth Circuit Year in Review: Labor and Employment Law Cases October 1, 2015 Through September 30, 2016","authors":"B. Clarke","doi":"10.2139/ssrn.3178432","DOIUrl":"https://doi.org/10.2139/ssrn.3178432","url":null,"abstract":"This paper discusses all of the substantive labor & employment law opinions issued by the U.S. Court of Appeals for the Fourth Circuit from October 1, 2015 through September 30, 2016. The discussion of each case begins with an italicized summary of the court’s holding and is followed by a more detailed discussion of the facts and the court’s rationale. At the end of the more interesting cases is an “AUTHOR’S NOTE” that briefly provides my thoughts on the relative importance of the case and/or the case’s unusual or interesting aspects.","PeriodicalId":431496,"journal":{"name":"LSN: Employment Statutes (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116866163","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":"Automatically Unfair and Operational Requirement Dismissals: Making Sense of the 2014 Amendments","authors":"Kamalesh Newaj, S. Van Eck","doi":"10.17159/1727-3781/2016/V19N0A1203","DOIUrl":"https://doi.org/10.17159/1727-3781/2016/V19N0A1203","url":null,"abstract":"This article explores the concept of the automatic unfair dismissal that is regulated in s 187(1)(c) of the Labour Relations Act 66 of 1995 (LRA), where the reason for the dismissal is to \"compel the employee to accept a demand in respect of any matter of mutual interest\". This provision raised important questions of law, as it brought to the fore the conflict that existed between this provision and sections 188(1)(a)(ii) and 189 of the LRA, which permits dismissals for operational requirements. This dichotomy was dealt with by the court in Fry's Metals (Pty) Ltd v National Union of Metalworkers of SA 2003 ILJ 133 (LAC), but the decision was controversial and faced criticism. The decision of the court was consequently rendered incorrect, resulting in the amendment to s 187(1)(c), which now reads that a dismissal is automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer. However, it is doubtful whether the amended provision provides a solution to the contradiction that exists. Resultantly, this article seeks to critique the amendment and to make recommendations regarding the regulation of this part of labour law.","PeriodicalId":431496,"journal":{"name":"LSN: Employment Statutes (Topic)","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125041046","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":"Untrustworthy: ERISA's Eroded Fiduciary Law","authors":"Peter J. Wiedenbeck","doi":"10.2139/SSRN.2865752","DOIUrl":"https://doi.org/10.2139/SSRN.2865752","url":null,"abstract":"The trust law analogy has come to dominate judicial thinking about employee benefit plans. Yet despite its rise to rhetorical prominence, ERISA fiduciary law has been dramatically transformed by a series of uncoordinated low-visibility judicial decisions on multiple fronts. These apparently unconnected case law developments reveal a startling pattern of mutually reinforcing restrictions on ERISA’s protection of pension and welfare benefits. This study makes the case that both the scope and the intensity of fiduciary oversight have been radically pruned back in the courts. Notwithstanding the congressional declaration that attempts to relax workers’ federal fiduciary protections “shall be void as against public policy”, the U.S. Supreme Court has shown the way to curtail fiduciary obligations. That de facto or implicit exculpation, combined with unilateral employer control over both plan terms and plan interpretation, indicate that the federal courts have defanged — or deranged — ERISA’s fiduciary regime. In the course of chronicling ERISA’s trust law turn and exposing how untrustworthy workers’ fiduciary defenses have become, the article explains, contrasts, extends, and ultimately reconciles the two premier scholarly analyses of ERISA’s fiduciary regime: Daniel Fischel & John H. Langbein, ERISA’s Fundamental Contradiction: The Exclusive Benefit Rule, 55 U. Chi. L. Rev. 1105 (1988); and Dana Muir & Norman Stein, Two Hats, One Head, No Heart: The Anatomy of the ERISA Settlor/Fiduciary Distinction, 93 N.C. L. Rev. 459 (2015).","PeriodicalId":431496,"journal":{"name":"LSN: Employment Statutes (Topic)","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121679488","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":"FLSA Working Hours Reform: Worker Well-Being Effects in an Economic Framework","authors":"L. Golden","doi":"10.2139/ssrn.2370049","DOIUrl":"https://doi.org/10.2139/ssrn.2370049","url":null,"abstract":"A model is developed to predict the effects of recently proposed amendments to the FLSA workweek and overtime provisions. It contrasts allowing compensatory time for overtime pay for private non-exempt employees to “rights to request” reduced hours. It finds that hours demanded are likely to rise for the workers who request comp time, undermining its intention of family-friendliness and alleviating overemployment — unless it were accompanied by offsetting policies that prevent the denied use or forced use of comp time and resurrect some monetary deterrent effect. A unique survey shows that the preference for comp time is far more prevalent among exempts, thus, worker welfare is likely better served if comp time in lieu were incorporated into the right to request.","PeriodicalId":431496,"journal":{"name":"LSN: Employment Statutes (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128367883","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":"What Constitutes a Benefit by Virtue of Section 186(2) of the Labour Relations Act 66 of 1995? Apollo Tyres South Africa (Pty) Ltd v CCMA 2013 5 BLLR 434 (LAC)","authors":"E. Fourie","doi":"10.4314/PELJ.V18I1.11","DOIUrl":"https://doi.org/10.4314/PELJ.V18I1.11","url":null,"abstract":"The uncertainty surrounding the concept benefit as provided for in section 186(2) of the Labour Relations Act 66 of 1995 was created not by the courts but rather by the legislature. The concept is not defined and clearly has a wide ambit. In previous decisions the courts upheld a restrictive interpretation of benefits to maintain the divide between disputes of interest and disputes of rights and to ensure that issues that should be the subject of negotiation could not become issues that can be decided by an arbitrator. Previously the courts insisted that a benefit was something arising out of a contract or law. In the Apollo case the court had to determine what constitutes a benefit and if a benefit is limited to an entitlement which arises ex contractu or ex lege. The court found that the early retirement scheme was a benefit, although the employee at that stage did not have a contractual entitlement to the benefit and that the benefit was subject to the employer's discretion. What becomes clear from this case is that the unfair labour practice jurisdiction cannot be used to assert an entitlement to new benefits, new forms of remuneration or new policies. The Labour Appeal Court criticizes the distinction between salaries and remuneration drawn by our courts and describes it as artificial and unsustainable. Under the unfair labour practice regime the conduct of the employer may be scrutinized by the CCMA in at least two instances, namely when an employer fails to comply with a contractual obligation, an entitlement or right that an employee may have in terms of a statute, and secondly when an employer exercises a discretion under the contractual terms of a scheme conferring a benefit, including situations where the employer enjoys a discretion in terms of benefits provided in terms of a policy or practice - rights created judicially. This decision places the emphasis on the employer's actions and the unfairness of such acts or omissions.","PeriodicalId":431496,"journal":{"name":"LSN: Employment Statutes (Topic)","volume":"493 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123430396","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 Social Costs of Uber","authors":"Brishen Rogers","doi":"10.2139/SSRN.2608017","DOIUrl":"https://doi.org/10.2139/SSRN.2608017","url":null,"abstract":"The rise of the car-sharing company Uber will likely have mixed effects on labor standards. On the one hand, Uber’s partial consolidation of the car-hire sector and its compilation of data on passenger and driver behavior could enable the company and regulators to ensure safety and root out discrimination against passengers with relative ease. In that regard, Uber may be an improvement over the existing taxi sector, which is quite difficult to regulate. Uber’s longer-term impact on labor standards is quite unclear, however, and it may have dark implications for the future of low-wage work more generally.","PeriodicalId":431496,"journal":{"name":"LSN: Employment Statutes (Topic)","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122178793","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":"Revenue Sport Fever","authors":"W. Devine","doi":"10.2139/SSRN.2441401","DOIUrl":"https://doi.org/10.2139/SSRN.2441401","url":null,"abstract":"The day of reckoning in the to-pay-or-not-to-pay debate over college revenue sports — a day many higher education advocates have awaited for decades — is just about here. Many people believe that the debate will yield one of two outcomes: university trustees will pay the players, or they will not. Yet in fact the trustees have three outcomes to consider, and the one they aim for will tell us a lot about the role higher education will play during coming decades as America tries to rebuild from the global financial crisis.","PeriodicalId":431496,"journal":{"name":"LSN: Employment Statutes (Topic)","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122777504","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":"Not Enough Hours in the Day: Work Hour Insecurity and a New Approach to Wage and Hour Regulation","authors":"Charlotte S. Alexander, A. Haley-Lock","doi":"10.2139/SSRN.2367070","DOIUrl":"https://doi.org/10.2139/SSRN.2367070","url":null,"abstract":"When it was passed, the 1938 Fair Labor Standards Act sought to address the “evils” of underpay and overwork by establishing a minimum wage and requiring premium overtime pay. However, today’s low-wage, hourly workers more often face underwork than overwork. In this paper, we examine the scope of the problem of work hour insecurity, particularly employers’ practice of sending workers home early from scheduled shifts. We assess tools for addressing the resulting income and scheduling instability, principally state “reporting pay” laws. We evaluate the laws’ capacity to promote work hour security, and consider paths for strengthening such protections in law.","PeriodicalId":431496,"journal":{"name":"LSN: Employment Statutes (Topic)","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126453620","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}