This paper examines a Canadian experiment in addressing work/family conflict – the use of human rights codes to prohibit discrimination in employment based on “family status”. The author argues that this experiment has radical potential to disturb the traditional boundaries between work and family that have played so fundamental a role in organizing work and social life under industrial capitalism. The paper analyses the legislative and jurisprudential history of Canadian prohibitions against discrimination on the basis of family status. It then examines recent lines of family status cases in which adjudicators have attempted to give meaning to code prohibitions while at the same time leaving intact management’s historic right to organize the workplace without regard to workers’ family care obligations. The author analyzes the legal tests which have evolved to date for establishing a prima facie case for family status discrimination. She argues that the emergence of high prima facie thresholds for family status discrimination reflects intense pressure from employers to avoid being forced to account for the impact of their employment practices on employee family life under the Meiorin test and the duty to accommodate. She warns that the radical potential of family status discrimination claims may fuel a jurisprudential backlash of which we are already seeing the beginnings in Canadian courts and tribunals, in which O’Malley’s time-tested ‘bare-bones’ approach to prima facie discrimination has been eroded by tests which require proof that the adverse impact of a challenged work rule is arbitrary, or based on stereotyping or prejudice, before that impact triggers a duty to accommodate. She identifies the Seeley/CN and Johnstone/CBSA cases up-coming in the Federal Court of Appeal as important tests of the future direction of family status litigation in Canada.
{"title":"'Family Status' Discrimination: New Tool for Transforming Workplaces, or Trojan Horse for Subverting Gender Equality?","authors":"Elizabeth Shilton","doi":"10.2139/SSRN.2330294","DOIUrl":"https://doi.org/10.2139/SSRN.2330294","url":null,"abstract":"This paper examines a Canadian experiment in addressing work/family conflict – the use of human rights codes to prohibit discrimination in employment based on “family status”. The author argues that this experiment has radical potential to disturb the traditional boundaries between work and family that have played so fundamental a role in organizing work and social life under industrial capitalism. The paper analyses the legislative and jurisprudential history of Canadian prohibitions against discrimination on the basis of family status. It then examines recent lines of family status cases in which adjudicators have attempted to give meaning to code prohibitions while at the same time leaving intact management’s historic right to organize the workplace without regard to workers’ family care obligations. The author analyzes the legal tests which have evolved to date for establishing a prima facie case for family status discrimination. She argues that the emergence of high prima facie thresholds for family status discrimination reflects intense pressure from employers to avoid being forced to account for the impact of their employment practices on employee family life under the Meiorin test and the duty to accommodate. She warns that the radical potential of family status discrimination claims may fuel a jurisprudential backlash of which we are already seeing the beginnings in Canadian courts and tribunals, in which O’Malley’s time-tested ‘bare-bones’ approach to prima facie discrimination has been eroded by tests which require proof that the adverse impact of a challenged work rule is arbitrary, or based on stereotyping or prejudice, before that impact triggers a duty to accommodate. She identifies the Seeley/CN and Johnstone/CBSA cases up-coming in the Federal Court of Appeal as important tests of the future direction of family status litigation in Canada.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123776669","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}
Pub Date : 2013-05-01DOI: 10.4337/9781781000137.00011
G. Davidov, M. Freedland, N. Countouris
Who is an employee? Which workers ought to be covered by the protective panoply offered by labor law? These are questions with a long history. In the current contribution we consider them from a comparative perspective. Our aim is to highlight similarities and differences between different legal systems. This cross-national analysis can in turn assist the national analyses. Understanding how others have been approaching the same problem can help us better understand our own legal system, including in terms of its historical development and in identifying shortcoming, inconsistencies and hidden assumptions. Understanding to what extent the problem and solutions are universal can also assist us in identifying the normative foundations behind the law.We start with a brief overview of the tests used in different countries to decide if one is an employee (and covered by labor law), showing some points of diversity but for the most part significant similarities, with a trend towards greater convergence. We then turn to examine some relatively recent developments in different legal systems through three prisms. First we discuss the response in different countries to employers’ evasion attempts. We show how in some systems courts and legislatures remain inactive in the face of evasion, and the stagnation of the law leaves room to massive misclassification of employees as independent contractors. In other countries, on the other hand, creative solutions have been used to contain or minimize this problem. Next we consider the dialogue between the judiciary and the legislature in determining who is an employee. We show how in some countries, judicial approaches to the problem have triggered a legislative response, while in others the legislature remains silent, possibly to signal approval or simply out of disinterest. Finally, we examine the breaking of the binary divide between employees and independent contractors. We show that a third (intermediate) category has been added in an increasing number of countries, as a response to similar problems in classifying workers who share only some of the characteristics of employees. In the conclusion we return to reflect on the issues of diversity vs. convergence, in light of the developments discussed in the previous parts.
{"title":"The Subjects of Labor Law: 'Employees' and Other Workers","authors":"G. Davidov, M. Freedland, N. Countouris","doi":"10.4337/9781781000137.00011","DOIUrl":"https://doi.org/10.4337/9781781000137.00011","url":null,"abstract":"Who is an employee? Which workers ought to be covered by the protective panoply offered by labor law? These are questions with a long history. In the current contribution we consider them from a comparative perspective. Our aim is to highlight similarities and differences between different legal systems. This cross-national analysis can in turn assist the national analyses. Understanding how others have been approaching the same problem can help us better understand our own legal system, including in terms of its historical development and in identifying shortcoming, inconsistencies and hidden assumptions. Understanding to what extent the problem and solutions are universal can also assist us in identifying the normative foundations behind the law.We start with a brief overview of the tests used in different countries to decide if one is an employee (and covered by labor law), showing some points of diversity but for the most part significant similarities, with a trend towards greater convergence. We then turn to examine some relatively recent developments in different legal systems through three prisms. First we discuss the response in different countries to employers’ evasion attempts. We show how in some systems courts and legislatures remain inactive in the face of evasion, and the stagnation of the law leaves room to massive misclassification of employees as independent contractors. In other countries, on the other hand, creative solutions have been used to contain or minimize this problem. Next we consider the dialogue between the judiciary and the legislature in determining who is an employee. We show how in some countries, judicial approaches to the problem have triggered a legislative response, while in others the legislature remains silent, possibly to signal approval or simply out of disinterest. Finally, we examine the breaking of the binary divide between employees and independent contractors. We show that a third (intermediate) category has been added in an increasing number of countries, as a response to similar problems in classifying workers who share only some of the characteristics of employees. In the conclusion we return to reflect on the issues of diversity vs. convergence, in light of the developments discussed in the previous parts.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128135732","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 simultaneously exposes a fundamental error in employment termination doctrine and a paradox in contract law jurisprudence. Contemporary employment law has developed under the assumption that at-will parties may terminate their relationship both without reason and without notice. This Article argues that the second half of this formulation – the idea that parties reserve the procedural right to terminate without notice – is neither historically supported nor legally correct. Employment at will, as originally expressed, was a mere duration presumption reflecting America’s rejection of the predominant British rule favoring one-year employment terms. While subsequent caselaw expanded the presumption in various ways, a reinterpretation that requires advance notice of termination remains compatible with the way in which most contemporary courts articulate the rule. In fact, an examination of general contract law reveals that in a variety of non-employment contexts courts impose on parties to an indefinite relationship the duty to provide reasonable notice while still safeguarding their right to terminate at will. Such an obligation serves not only as a gapfiller in the face of contractual silence, but as a good faith limitation on parties’ exercise of substantive discretion. Absent such a notice requirement, employment is an illusory relationship, one that lacks the modicum of consideration necessary to create a binding contract. While courts have sought to circumvent this problem by theorizing employment as a unilateral contract, that formulation is ill-suited to the reality that both sides generally aspire to an ongoing, dynamic relationship. Instead, this Article recasts employment as a bilateral contract terminable at will by either party upon reasonable notice. Establishing a reasonable notice obligation will grant terminated workers much needed transition time in which to seek new employment and develop new skills. At the same time, adopting this rule paves the way for a more unified body of contract law. The case for deviations from general contract principles is strongest where context-specific rules fulfill the reasonable expectations of the weaker party. Employment-specific contract rules, as they currently stand, do precisely the opposite. While ordinary contract law cannot adequately protect workers’ interests in all circumstances, this Article demonstrates that in at least some instances mainstream doctrine, properly understood and creatively applied, can produce results that are both good for workers and in harmony with existing law.
{"title":"Mainstreaming Employment Contract Law: The Common Law Case for Reasonable Notice of Termination","authors":"Rachel S. Arnow-Richman","doi":"10.2139/SSRN.2238220","DOIUrl":"https://doi.org/10.2139/SSRN.2238220","url":null,"abstract":"This Article simultaneously exposes a fundamental error in employment termination doctrine and a paradox in contract law jurisprudence. Contemporary employment law has developed under the assumption that at-will parties may terminate their relationship both without reason and without notice. This Article argues that the second half of this formulation – the idea that parties reserve the procedural right to terminate without notice – is neither historically supported nor legally correct. Employment at will, as originally expressed, was a mere duration presumption reflecting America’s rejection of the predominant British rule favoring one-year employment terms. While subsequent caselaw expanded the presumption in various ways, a reinterpretation that requires advance notice of termination remains compatible with the way in which most contemporary courts articulate the rule. In fact, an examination of general contract law reveals that in a variety of non-employment contexts courts impose on parties to an indefinite relationship the duty to provide reasonable notice while still safeguarding their right to terminate at will. Such an obligation serves not only as a gapfiller in the face of contractual silence, but as a good faith limitation on parties’ exercise of substantive discretion. Absent such a notice requirement, employment is an illusory relationship, one that lacks the modicum of consideration necessary to create a binding contract. While courts have sought to circumvent this problem by theorizing employment as a unilateral contract, that formulation is ill-suited to the reality that both sides generally aspire to an ongoing, dynamic relationship. Instead, this Article recasts employment as a bilateral contract terminable at will by either party upon reasonable notice. Establishing a reasonable notice obligation will grant terminated workers much needed transition time in which to seek new employment and develop new skills. At the same time, adopting this rule paves the way for a more unified body of contract law. The case for deviations from general contract principles is strongest where context-specific rules fulfill the reasonable expectations of the weaker party. Employment-specific contract rules, as they currently stand, do precisely the opposite. While ordinary contract law cannot adequately protect workers’ interests in all circumstances, this Article demonstrates that in at least some instances mainstream doctrine, properly understood and creatively applied, can produce results that are both good for workers and in harmony with existing law.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126274295","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}
Pub Date : 2012-09-18DOI: 10.1002/9781118364741.CH32
Judith Kish Ruud, Wendy S. Becker
The employment-at-will doctrine governs when and how an employer and employee may terminate an employment relationship having no definite term (Rand, 2007). Each state interprets this doctrine under its own laws, which creates inconsistencies in its interpretation and application across the states (Moss, 2005). We provide a very general overview of this important and complex doctrine. Readers must seek additional information to understand how the doctrine applies in each state.
{"title":"Employment-at-Will","authors":"Judith Kish Ruud, Wendy S. Becker","doi":"10.1002/9781118364741.CH32","DOIUrl":"https://doi.org/10.1002/9781118364741.CH32","url":null,"abstract":"The employment-at-will doctrine governs when and how an employer and employee may terminate an employment relationship having no definite term (Rand, 2007). Each state interprets this doctrine under its own laws, which creates inconsistencies in its interpretation and application across the states (Moss, 2005). We provide a very general overview of this important and complex doctrine. Readers must seek additional information to understand how the doctrine applies in each state.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"223 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122883962","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}
The North American workplace law model is broken, characterized by declining collective bargaining density, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether 'decentred' or "new governance" regulatory theory offers useful insights into the challenge of improving compliance with employment standards laws. It argues that the dominant political perspective today is no longer Pluralist or Neoclassical, but 'Managerialist.' Politicians with a Managerialist orientation reject the Pluralist idea that collective bargaining is always preferred, and the Neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers who mistreat their employees. The fact that Managerialists and Pluralists agree on this latter point creates a space for potential movement on workplace law reform. A law that encourages high road employment practices, while fast-tracking access to collective bargaining for low road employers could both encourage greater compliance with employment regulation, while also facilitate collective bargaining at high risk workplaces. This paper examines lessons from decentred regulatory scholarship for the design of a legal model designed to achieve these results. In particular, it develops and assesses a 'dual regulatory stream' model that restricts existing rights of employers to resist their employees' efforts to unionize once they have been found in violation of targeted employment regulation.
{"title":"A Model of Responsive Workplace Law","authors":"David J. Doorey","doi":"10.60082/2817-5069.1032","DOIUrl":"https://doi.org/10.60082/2817-5069.1032","url":null,"abstract":"The North American workplace law model is broken, characterized by declining collective bargaining density, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether 'decentred' or \"new governance\" regulatory theory offers useful insights into the challenge of improving compliance with employment standards laws. It argues that the dominant political perspective today is no longer Pluralist or Neoclassical, but 'Managerialist.' Politicians with a Managerialist orientation reject the Pluralist idea that collective bargaining is always preferred, and the Neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers who mistreat their employees. The fact that Managerialists and Pluralists agree on this latter point creates a space for potential movement on workplace law reform. A law that encourages high road employment practices, while fast-tracking access to collective bargaining for low road employers could both encourage greater compliance with employment regulation, while also facilitate collective bargaining at high risk workplaces. This paper examines lessons from decentred regulatory scholarship for the design of a legal model designed to achieve these results. In particular, it develops and assesses a 'dual regulatory stream' model that restricts existing rights of employers to resist their employees' efforts to unionize once they have been found in violation of targeted employment regulation.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114220006","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}
Pub Date : 2012-05-01DOI: 10.1111/J.1468-2230.2012.00911.X
J. McClelland
This note discusses how far the Supreme Court judgment in Autoclenz Ltd v Belcher and others provides grounds for a purposive interpretation of the contract of employment for employment protection purposes, or whether its scope is limited to the specific issue of considering the validity of boilerplate contractual terms. The author reflects on the approach taken by the Supreme Court and how far issues of inequality and substantive fairness within employment relationships have been addressed. The note concludes that whilst the judgment has extended the context of facts to be considered to include a consideration of relative bargaining power, this in itself does not extend to a consideration of substantive fairness nor does it clarify the standards that should apply to a fair employment relationship.
本文讨论最高法院在Autoclenz Ltd v Belcher和其他案件中的判决在多大程度上为就业保护目的的雇佣合同提供了有目的的解释依据，或者其范围是否仅限于考虑模板合同条款的有效性这一具体问题。作者反思了最高法院采取的方法，以及在多大程度上解决了就业关系中的不平等和实质性公平问题。该说明的结论是，虽然判决扩大了需要考虑的事实背景，包括对相对议价能力的考虑，但这本身并没有扩大到对实质性公平的考虑，也没有澄清应适用于公平雇佣关系的标准。
{"title":"A Purposive Approach to Employment Protection or a Missed Opportunity?","authors":"J. McClelland","doi":"10.1111/J.1468-2230.2012.00911.X","DOIUrl":"https://doi.org/10.1111/J.1468-2230.2012.00911.X","url":null,"abstract":"This note discusses how far the Supreme Court judgment in Autoclenz Ltd v Belcher and others provides grounds for a purposive interpretation of the contract of employment for employment protection purposes, or whether its scope is limited to the specific issue of considering the validity of boilerplate contractual terms. The author reflects on the approach taken by the Supreme Court and how far issues of inequality and substantive fairness within employment relationships have been addressed. The note concludes that whilst the judgment has extended the context of facts to be considered to include a consideration of relative bargaining power, this in itself does not extend to a consideration of substantive fairness nor does it clarify the standards that should apply to a fair employment relationship.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116697334","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}
Prior to filing a lawsuit against an employer for discrimination, a claimant must first file a complaint with the EEOC in order to exhaust administrative remedies. The federal employment discrimination statutes do not explicitly require a claimant to cooperate with the EEOC investigation prior to filing suit in federal court, as long as the claimant receives a right-to-sue letter from the EEOC. The circuits are split as to whether a cooperation requirement should be read-in to the statutes. Future decisions should follow the Seventh Circuit, which does not require a claimant to cooperate, because although counter-intuitive at first glance, allowing noncooperation will ultimately further the most important purpose of the antidiscrimination statutes — eliminating discrimination in employment, while affording claimants fair notice of their responsibilities in pursuing a claim.
{"title":"Is Cooperation with the EEOC an Implied Requirement for Exhaustion of Administrative Remedies?","authors":"Laura Hyer","doi":"10.2139/SSRN.2030012","DOIUrl":"https://doi.org/10.2139/SSRN.2030012","url":null,"abstract":"Prior to filing a lawsuit against an employer for discrimination, a claimant must first file a complaint with the EEOC in order to exhaust administrative remedies. The federal employment discrimination statutes do not explicitly require a claimant to cooperate with the EEOC investigation prior to filing suit in federal court, as long as the claimant receives a right-to-sue letter from the EEOC. The circuits are split as to whether a cooperation requirement should be read-in to the statutes. Future decisions should follow the Seventh Circuit, which does not require a claimant to cooperate, because although counter-intuitive at first glance, allowing noncooperation will ultimately further the most important purpose of the antidiscrimination statutes — eliminating discrimination in employment, while affording claimants fair notice of their responsibilities in pursuing a claim.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120949110","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}
More than two-thirds of the unauthorized immigrant population - roughly eight million out of 11.2 million - is in our nation’s workforce, and growing evidence suggests that unauthorized workers are more likely than their authorized counterparts to experience workplace-related violations. Although scholars have begun shifting their focus to the agencies empowered to regulate immigrants in the workplace, important questions remain unanswered. Why, for example, has the Department of Labor (“DOL”), our nation’s top labor enforcement agency, struggled to protect unauthorized workers against this exploitation despite the scope and seriousness of the problem? And why has Immigration and Customs Enforcement (“ICE”), our nation’s top immigration enforcement agency, resisted taking into account the labor consequences of their actions? Our ignorance is becoming increasingly indefensible given that agencies often have the final word within an immigration universe characterized by legislative stasis. A closer look reveals a peculiar dynamic: ICE has relatively little interest in regulating the relationship between employers and unauthorized workers, while the DOL has a relatively high interest but lacks the autonomy to effectively do so - a dynamic that tends to foster interagency conflict, ultimately enabling the problem of labor exploitation to persist. What is the way out? Borrowing the insights of administrative law scholars, this Article argues that increasing the ability of the DOL to monitor immigration enforcement decisions can help minimize the externalities that ICE actions ordinarily force the DOL to absorb. This monitoring framework constrains the ex ante stage of decision-making, complements existing immigration scholarship (which has tended to focus on ex post remedies like expanding the ability of the DOL to issue temporary visas), and pushes back on ICE’s law enforcement culture (which has traditionally resisted the incorporation of labor norms). Moreover, the monitoring framework is able to track evolving problems of coordination and to identify emerging vulnerabilities as the Executive’s immigration enforcement authority continues to grow and outpace the development of adequate constraints on the exercise of that authority.
{"title":"Monitoring Immigration Enforcement","authors":"Stephen Lee","doi":"10.2139/ssrn.1974624","DOIUrl":"https://doi.org/10.2139/ssrn.1974624","url":null,"abstract":"More than two-thirds of the unauthorized immigrant population - roughly eight million out of 11.2 million - is in our nation’s workforce, and growing evidence suggests that unauthorized workers are more likely than their authorized counterparts to experience workplace-related violations. Although scholars have begun shifting their focus to the agencies empowered to regulate immigrants in the workplace, important questions remain unanswered. Why, for example, has the Department of Labor (“DOL”), our nation’s top labor enforcement agency, struggled to protect unauthorized workers against this exploitation despite the scope and seriousness of the problem? And why has Immigration and Customs Enforcement (“ICE”), our nation’s top immigration enforcement agency, resisted taking into account the labor consequences of their actions? Our ignorance is becoming increasingly indefensible given that agencies often have the final word within an immigration universe characterized by legislative stasis. A closer look reveals a peculiar dynamic: ICE has relatively little interest in regulating the relationship between employers and unauthorized workers, while the DOL has a relatively high interest but lacks the autonomy to effectively do so - a dynamic that tends to foster interagency conflict, ultimately enabling the problem of labor exploitation to persist. What is the way out? Borrowing the insights of administrative law scholars, this Article argues that increasing the ability of the DOL to monitor immigration enforcement decisions can help minimize the externalities that ICE actions ordinarily force the DOL to absorb. This monitoring framework constrains the ex ante stage of decision-making, complements existing immigration scholarship (which has tended to focus on ex post remedies like expanding the ability of the DOL to issue temporary visas), and pushes back on ICE’s law enforcement culture (which has traditionally resisted the incorporation of labor norms). Moreover, the monitoring framework is able to track evolving problems of coordination and to identify emerging vulnerabilities as the Executive’s immigration enforcement authority continues to grow and outpace the development of adequate constraints on the exercise of that authority.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127652883","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}
In this article several of the most prominent arguments in support of employee drug testing will be considered. As we shall see, none of the arguments typically offered are particularly compelling.
{"title":"Drug Testing and Privacy in the Workplace","authors":"A. Moore","doi":"10.2139/ssrn.1973739","DOIUrl":"https://doi.org/10.2139/ssrn.1973739","url":null,"abstract":"In this article several of the most prominent arguments in support of employee drug testing will be considered. As we shall see, none of the arguments typically offered are particularly compelling.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"161 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127417803","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 represents the first empirical analysis of the possible effects that the Family Medical and Leave Act of 1993 (FMLA) had on medical leave-taking patterns within the general population. I estimate changes in work-leave rates for both one’s own illness and family members’ medical conditions through the natural experiment created by the existence of state-level FMLA-like statutes before 1993. Applying two identification strategies to an original, more finely-tuned coding of state laws and using the previously unexploited Panel Study of Income Dynamics (PSID) from 1987 through 2006, I find no robust evidence that the FMLA affected either form of leave-taking. In light of this “null” result, I consider several possible explanations and discuss more general lessons for the empirical study of employment rights laws. I also argue, contrary to many accounts of the FMLA’s failure, that a null finding may be consistent with the FMLA having generated benefits for covered employees even if the statute did not increase leave-taking rates.
{"title":"Medical Leave-Taking After the FMLA: An Empirical Analysis of Affirmative Employment Rights","authors":"Christopher L. Griffin","doi":"10.2139/ssrn.1974572","DOIUrl":"https://doi.org/10.2139/ssrn.1974572","url":null,"abstract":"This Article represents the first empirical analysis of the possible effects that the Family Medical and Leave Act of 1993 (FMLA) had on medical leave-taking patterns within the general population. I estimate changes in work-leave rates for both one’s own illness and family members’ medical conditions through the natural experiment created by the existence of state-level FMLA-like statutes before 1993. Applying two identification strategies to an original, more finely-tuned coding of state laws and using the previously unexploited Panel Study of Income Dynamics (PSID) from 1987 through 2006, I find no robust evidence that the FMLA affected either form of leave-taking. In light of this “null” result, I consider several possible explanations and discuss more general lessons for the empirical study of employment rights laws. I also argue, contrary to many accounts of the FMLA’s failure, that a null finding may be consistent with the FMLA having generated benefits for covered employees even if the statute did not increase leave-taking rates.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"224 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116202762","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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