This article was prepared for a symposium at Indiana University Maurer School of Law on Labor and Employment Law under the Obama Administration. The article analyzes the current spate of attacks on public employees with particular reference to three sub-topics: teacher tenure and evaluation “reform,” the periodic cycles of public sector fiscal crises, and the unilateral modification of public sector collective bargaining agreements. The article concludes with the assessment that cyclical attacks on public sector workers reflect a skewed viewpoint that public employees owe first-class obligations but possess only second-class rights.
{"title":"Public Sector Employment Under Siege","authors":"Stephen F. Befort","doi":"10.2139/SSRN.1982125","DOIUrl":"https://doi.org/10.2139/SSRN.1982125","url":null,"abstract":"This article was prepared for a symposium at Indiana University Maurer School of Law on Labor and Employment Law under the Obama Administration. The article analyzes the current spate of attacks on public employees with particular reference to three sub-topics: teacher tenure and evaluation “reform,” the periodic cycles of public sector fiscal crises, and the unilateral modification of public sector collective bargaining agreements. The article concludes with the assessment that cyclical attacks on public sector workers reflect a skewed viewpoint that public employees owe first-class obligations but possess only second-class rights.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117001607","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}
Employment termination in breach of contract is normally remedied by anticipated earnings from the lost job, mitigated by any amounts that the victim actually earned, or could with reasonable effort have earned, from alternative employment. Traditionally neither consequential nor punitive damages are available. The assumption is that most people who lose jobs unlawfully manage quickly to find alternative employment and suffer no long-lasting harm. Recent economic and epidemiological research explodes this assumption. Workers who lose jobs experience health problems (stroke, heart disease, depression, tobacco use), increased mortality, and continuing economic losses, long after the period of unemployment. Moreover, that period of unemployment after job loss lasts much longer than it used to. The Restatement should not freeze existing remedies, but should permit common law remedies to evolve to resemble statutory remedies under the Civil Rights Act of 1991, for example by expanding the covenant of good faith and fair dealing.
{"title":"What Should the Proposed Restatement of Employment Law Say About Remedies?","authors":"A. Hyde","doi":"10.2139/ssrn.2263268","DOIUrl":"https://doi.org/10.2139/ssrn.2263268","url":null,"abstract":"Employment termination in breach of contract is normally remedied by anticipated earnings from the lost job, mitigated by any amounts that the victim actually earned, or could with reasonable effort have earned, from alternative employment. Traditionally neither consequential nor punitive damages are available. The assumption is that most people who lose jobs unlawfully manage quickly to find alternative employment and suffer no long-lasting harm. Recent economic and epidemiological research explodes this assumption. Workers who lose jobs experience health problems (stroke, heart disease, depression, tobacco use), increased mortality, and continuing economic losses, long after the period of unemployment. Moreover, that period of unemployment after job loss lasts much longer than it used to. The Restatement should not freeze existing remedies, but should permit common law remedies to evolve to resemble statutory remedies under the Civil Rights Act of 1991, for example by expanding the covenant of good faith and fair dealing.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131273082","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}
Reporting of wrongdoing in private or public organization in the public interest to the authorities concerned known as ‘whistleblowing’ is globally gaining support. It is no longer strange that some ‘courageous’ current or former employees or even a member of the public exposes a big financial scandal, mismanagement of public funds or grievous breach of health and safety regulation. The revelation made could be disastrous both to the organization reported and to the person making the report. Ordinarily, because of the existence of the common law duties of trust, loyalty and confidence a whistle-blower could be legitimately dismissed and prosecuted. So many countries are now abandoning this old harsh common law principle in favor of laws protecting whistleblowers against any consequences of their revelation. Among these countries is Nigeria. This paper seeks to test the two bills on whistle-blowing before the Nigerian legislature against the best practices in whistle-blowing.
{"title":"Whistleblowers’ Protection Legislation: in Search for Model for Nigeria","authors":"I. Sule","doi":"10.2139/ssrn.3774097","DOIUrl":"https://doi.org/10.2139/ssrn.3774097","url":null,"abstract":"Reporting of wrongdoing in private or public organization in the public interest to the authorities concerned known as ‘whistleblowing’ is globally gaining support. It is no longer strange that some ‘courageous’ current or former employees or even a member of the public exposes a big financial scandal, mismanagement of public funds or grievous breach of health and safety regulation.<br>The revelation made could be disastrous both to the organization reported and to the person making the report. Ordinarily, because of the existence of the common law duties of trust, loyalty and confidence a whistle-blower could be legitimately dismissed and prosecuted. So many countries are now abandoning this old harsh common law principle in favor of laws protecting whistleblowers against any consequences of their revelation. Among these countries is Nigeria. This paper seeks to test the two bills on whistle-blowing before the Nigerian legislature against the best practices in whistle-blowing.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"24 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132700966","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}
This article draws on the findings of the Pike River Royal Commission and other investigations, on the wider international literature on Work Health and Safety (WHS) regulation and on the writer’s own interviews with mining industry stakeholders, to develop a composite picture of what went wrong at Pike River and how best to prevent such disasters in the future. It argues that there are four pillars of effective WHS management and regulation: appropriately designed regulation; effective implementation and enforcement; a competent and motivated enterprise/facility operator; and genuine worker representation and participation. However, building or strengthening these pillars is difficult to achieve. Over and beyond legislation incorporating a complementary combination of different types of standards and worker empowerment, a skilled and adequately resourced regulator is essential. Where regulators are neither, then implementation is likely to be severely compromised. Moreover, unless the influence of neo-liberalism and its accompanying free market ideology are substantially negated, then these pillars are vulnerable to being undermined, creating the seeds of a future disaster. Implications of the Health and Safety Reform Bill are also considered.
{"title":"Lessons from Pike River: Regulation, Safety and Neoliberalism","authors":"N. Gunningham","doi":"10.2139/SSRN.2685444","DOIUrl":"https://doi.org/10.2139/SSRN.2685444","url":null,"abstract":"This article draws on the findings of the Pike River Royal Commission and other investigations, on the wider international literature on Work Health and Safety (WHS) regulation and on the writer’s own interviews with mining industry stakeholders, to develop a composite picture of what went wrong at Pike River and how best to prevent such disasters in the future. It argues that there are four pillars of effective WHS management and regulation: appropriately designed regulation; effective implementation and enforcement; a competent and motivated enterprise/facility operator; and genuine worker representation and participation. However, building or strengthening these pillars is difficult to achieve. Over and beyond legislation incorporating a complementary combination of different types of standards and worker empowerment, a skilled and adequately resourced regulator is essential. Where regulators are neither, then implementation is likely to be severely compromised. Moreover, unless the influence of neo-liberalism and its accompanying free market ideology are substantially negated, then these pillars are vulnerable to being undermined, creating the seeds of a future disaster. Implications of the Health and Safety Reform Bill are also considered.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"91 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126181356","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}
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