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USING HIGH-PERFORMANCE WORK SYSTEMS TO SUPPORT INDIVIDUAL EMPLOYMENT RIGHTS AND DECREASE EMPLOYEE TELECOMMUNICATION VIOLATIONS IN THE WORKPLACE 使用高性能的工作系统来支持个人就业权利,减少员工在工作场所违反电信的行为
Pub Date : 1900-01-01 DOI: 10.2190/32J9-TAFG-HAX0-218G
Z. M. Leffakis, W. Doll
In the United States, organizations can be held legally liable when their employees create conditions for a hostile work environment by operating telecommunication systems for personal use in the workplace. Conventionally, many organizations implement acceptable telecommunication usage policies and electronic surveillance to prevent harassing situations from occurring and to protect themselves against costly liability lawsuits. However, these authoritarian methods have been criticized because of the apparent trade-offs they cause among employee privacy rights, productivity, and the need to safeguard the firm from harassment lawsuits. As an alternative approach, our analysis shows that the development of a High-Performance Work System (HPWS) will lower employees’ propensity to misuse telecommunication systems in the workplace, resulting in the reduction of employee rights lawsuits for the firm. Our analysis indicates that a HPWS creates a work environment that ensures telecommunication systems will be properly used and employees will not have to relinquish their expectation of privacy. We argue that organizations that manage their telecommunication systems by HPWS practices rather than bureaucratically controlling them will be in a better position to overcome the legal inadequacies of authoritarian methods.
在美国,如果员工在工作场所操作个人使用的电信系统,从而创造了一个充满敌意的工作环境,企业可能要承担法律责任。通常,许多组织实施可接受的电信使用政策和电子监视,以防止骚扰情况的发生,并保护自己免受代价高昂的责任诉讼。然而,这些专制方法受到了批评,因为它们在员工隐私权、生产力和保护公司免受骚扰诉讼的需要之间造成了明显的权衡。作为一种替代方法,我们的分析表明,高性能工作系统(HPWS)的发展将降低员工在工作场所滥用电信系统的倾向,从而减少公司的员工权利诉讼。我们的分析表明,HPWS创造了一个工作环境,确保电信系统被正确使用,员工不必放弃他们对隐私的期望。我们认为,通过HPWS实践管理其电信系统而不是官僚控制它们的组织将处于更好的位置,以克服专制方法的法律缺陷。
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引用次数: 1
AFFIRMATIVE ACTION: THE LAW 平权行动:法律
Pub Date : 1900-01-01 DOI: 10.2190/KE8X-J7E8-RWD5-XMVQ
H. Findley, R. Wheatley, Earl E. Ingram
This is a review article on the complex and often misunderstood topic of affirmative action. This article reviews the origin of affirmative action, the nature of the plans, and the surrounding legal network. A subsequent article will address contemporary problems and issues. Affirmative action has been with us for nearly 40 years. Interestingly, it was initially intended to be a temporary measure to redress past discriminatory practices [1]. However, like many government programs, it seems to have become a permanent fixture of public policy. But periodically, the nation revisits and debates the value of this divisive issue. This is just such a period, as affirmative action is once again near the foreground of the nation’s conscience, at least partially due to the recent Supreme Court decisions dealing with the University of Michigan’s controversial affirmative action plans (AAPs). In June 2003, the Supreme Court upheld the Michigan Law School’s AAP and struck down its undergraduate AAP [2, 3]. The public interest and furore created by these decisions provides an opportunity to reexamine the legal principles that directly affect at least 190,000 establishments employing more than 22,000,000 workers [4]. This reexamination is of particular importance, since there is a great deal of misunderstanding and confusion as to the definition and practice of affirmative action. Many wrongly believe that affirmative action involves only hiring quotas
这是一篇关于平权行动这个复杂且经常被误解的话题的评论文章。本文回顾了平权行动的起源、计划的性质以及周围的法律网络。随后的一篇文章将讨论当代的问题和问题。平权法案已经实施了近40年。有趣的是,它最初的目的是作为纠正过去歧视性做法的临时措施[1]。然而,像许多政府计划一样,它似乎已经成为公共政策的永久固定装置。但是,这个国家会周期性地重新审视和辩论这个引起分歧的问题的价值。这正是这样一个时期,因为平权行动再次接近国家良知的前景,至少部分原因是最近最高法院就密歇根大学有争议的平权行动计划(AAPs)做出的裁决。2003年6月,最高法院支持密歇根法学院的AAP,并推翻了其本科生的AAP[2,3]。这些决定引发的公众利益和愤怒,为重新审视直接影响到至少19万家企业的法律原则提供了机会,这些企业雇佣了超过2200万名工人[4]。这种重新审查特别重要,因为对于平权行动的定义和实践存在着大量的误解和混乱。许多人错误地认为,平权法案只涉及招聘配额
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引用次数: 0
Unjust Dismissal for Nonunion Workers: Adjudication Decisions in the Canadian Federal Jurisdiction 非工会工人的不公正解雇:加拿大联邦管辖下的裁决决定
Pub Date : 1900-01-01 DOI: 10.2190/65FH-YN8R-LMN2-P8CJ
G. Eden
This study involves an analysis of the determinants of adjudicator decisions dealing with complaints of unjust dismissal from nonunionized workers in the Canadian federal jurisdiction. All decisions rendered between the enactment of the legislation in 1978 and up to March 1989 were analyzed and the relevant decisions (395 cases) were coded according to the factors believed to determine arbitral decision making. The results, based on logit analysis, suggest that some of the major just cause principles developed by arbitrators in the unionized sector appear to have been adopted by adjudicators in the nonunion sector; however, it cannot be stated conclusively that the arbitral approach to just cause in the unionized sector has been adopted. Implications for public policy as well as for the participants in the adjudication process are discussed. Statutory protection against unjust dismissal for nonunionized workers has received increasing attention in the last decade. In the United States, legislation to require some form of "just cause" to dismiss employees was introduced in ten state legislatures between 1981 and 1988, albeit so far it was passed only in Montana, in 1987. In 1991, the National Conference of Commissioners on Uniform State Laws adopted a Model Employment-Termination Act that urges reliance on arbitration rather than the civil courts or administrative agencies. As unionization has declined, increased attention has been paid to adopting some of the procedures developed in the union sector into the growing nonunion sector. 'Financial assistance was provided by the Social Sciences and Humanities Research Council of Canada. 39 © 1993, Baywood Publishing Co., Inc. doi: 10.2190/65FH-YN8R-LMN2-P8CJ http://baywood.com
本研究涉及对加拿大联邦管辖范围内非工会工人不公正解雇投诉的裁决决定因素的分析。对1978年立法颁布至1989年3月期间所作的所有决定进行了分析,并根据据信决定仲裁决定的因素对有关决定(395起案件)进行了编码。基于逻辑分析的结果表明,由工会部门的仲裁员制定的一些主要的正当理由原则似乎已被非工会部门的仲裁员采用;但是,不能肯定地说,已经对工会部门的正当理由采取了仲裁办法。讨论了对公共政策的影响以及对裁决过程参与者的影响。在过去十年中,法律保护非工会工人免受不公正解雇受到越来越多的关注。在美国,1981年至1988年间,有10个州立法机构提出了要求解雇雇员有某种形式的“正当理由”的立法,尽管到目前为止,只有蒙大拿在1987年通过了这项立法。1991年,全国统一州法委员会议通过了一项《终止雇佣示范法》,敦促依靠仲裁而不是民事法院或行政机构。随着工会组织的减少,人们更加注意将工会部门制定的一些程序应用于日益增长的非工会部门。经费由加拿大社会科学与人文研究理事会提供。39©1993,Baywood Publishing Co., Inc. doi: 10.2190/65FH-YN8R-LMN2-P8CJ http://baywood.com
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引用次数: 0
The Canadian Charter of Rights and Freedoms and Mandatory Retirement of Academic Employees 《加拿大权利与自由宪章》和《学术雇员强制退休宪章》
Pub Date : 1900-01-01 DOI: 10.2190/N82D-EYY9-98WG-UFWH
A. Khan
Under the Canadian Constitution, education is a provincial rather than the federal government's responsibility. In the majority of Canadian universities, colleges, and schools, a mandatory retirement age of sixty-five for men and women is stipulated either by by-laws made under, or collective agreements facilitated by, provincial legislation. A majority of the provinces, in their individual rights or human rights acts/codes, while proscribing discrimination on the ground of, inter alia, age, provides an exception in that between certain ages the provisions against age discrimination do not apply. 1 One of the consequences is that compulsory retirement is not protected under human rights legislation. One of the principal ways the mandatory retirement of academics and others could be challenged was to use the equality provisions of the Canadian Charter of Rights and Freedoms. However, courts lower than the Supreme Court of Canada could not agree whether compulsory retirement at a certain age was, under the equality section of the Charter, discriminatory or not. It was left to the Supreme Court of Canada to decide that important question. This article examines these recent developments. For example, the British Columbia Human Rights Act defines age as between forty-five and sixty-five; and the Ontario Human Rights Code limits the definition of age between eighteen and sixty-five. Thus, discrimination outside these ages is permissible. The Canadian (Federal) Human Rights Act also provides a defense to a complaint of age discrimination of an employee who is forced to retire at the "normal age of retirement." •This article originally appeared in Education and the Law, 4:, pp. 7-17, 1992, published by the Longman Group UK, Ltd. Reprinted with permission.
根据加拿大宪法,教育是省政府的责任,而不是联邦政府的责任。在加拿大的大多数大学、学院和学校,男性和女性的强制性退休年龄为65岁,这要么是根据省立法制定的细则规定的,要么是由省立法促进的集体协议规定的。大多数省在其个人权利或人权法/法典中虽然禁止基于年龄等理由的歧视,但规定了一个例外,即在某些年龄之间不适用反对年龄歧视的规定。结果之一是,强制退休不受人权立法的保护。可以对学者和其他人员的强制性退休提出挑战的主要方法之一是利用《加拿大权利和自由宪章》的平等条款。但是,低于加拿大最高法院的法院不能就《宪章》平等一节规定的某一年龄的强制退休是否具有歧视性达成一致意见。这一重要问题交由加拿大最高法院裁决。本文探讨了这些最新的发展。例如,《不列颠哥伦比亚省人权法案》将年龄定义为45至65岁;安大略省人权法典将年龄的定义限制在18岁到65岁之间。因此,这些年龄之外的歧视是允许的。《加拿大(联邦)人权法》还对一名被迫在“正常退休年龄”退休的雇员的年龄歧视投诉提供了辩护。•本文原载于《教育与法律》,1992年第4期,第7-17页,朗曼集团英国有限公司出版。经许可转载。
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引用次数: 1
Injured Customers Make Employers Pay Under the Negligent Hiring Doctrine: Evolution, Explanation, and Avoidance of Negligent Hiring Litigation 雇佣过失原则下的受害方赔偿:雇佣过失诉讼的演变、解释与避免
Pub Date : 1900-01-01 DOI: 10.2190/C0D7-J2M6-RQQY-PFKY
Jeffrey Cohen
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引用次数: 0
Dress Codes and Arbitration 着装规范与仲裁
Pub Date : 1900-01-01 DOI: 10.2190/8J6F-R38N-VRC5-LTPY
D. J. Petersen
Personal grooming and dress code issues are not disappearing. Generally, employers attempt to justify rules regarding personal appearance as necessary to promote its image or for health or safety reasons. Employees may find such rules as inhibiting their own notions of personal freedom and expression. An emerging question arising out of such rules is the degree of proof required by arbitrators to establish the necessity for promulgating them. Such proof appears to be more often required in image cases to those involving the safety and health of employees. Public sector and male-female dress code issues are also reviewed in this article. Ο wad some power the gifte gie us To see oursel's as others see us! (Robert Burns) Especia l ly s ince the 1960s, arbitrators have been deciding cases involv ing dress codes , personal appearance requi rements , and discipl ine imposed for al leged violat ions of such dress codes . Whi le the passage of t ime may h a v e d a m p e n e d s o m e of the a rdor or tone involved in these cases , the issues have not d i sappeared [1] . Dress codes have also been at tacked on g rounds such as a l leged violat ions of the U . S . Const i tu t ion or civil r ights l aws [2] . W h i l e no one would seriously quest ion m a n a g e m e n t ' s r ight to adopt and imple­ m e n t reasonable dress requi rements , un ions have somet imes d isagreed wi th the assumpt ions on which such requi rements are based. For e x a m p l e , un ions m a y ques t ion whe the r c lothing-rela ted safety rules are really necessary or whe the r such rules should b e appl ied to even those employees not direct ly affected b y the © 1997, Baywood Publishing Co., Inc. 103 doi: 10.2190/8J6F-R38N-VRC5-LTPY http://baywood.com
个人仪容整洁和着装规范问题并没有消失。一般来说,雇主试图证明有关个人外表的规定是为了提升公司形象或出于健康或安全原因所必需的。员工可能会发现这样的规定抑制了他们个人自由和表达的观念。这种规则所引起的一个新问题是,仲裁员为确定颁布这些规则的必要性所需要的证据程度。在涉及雇员安全和健康的形象案件中,似乎更经常需要这种证明。公共部门和男女着装规范问题也在本文中进行了审查。Ο上帝赐予我们一些力量,让我们像别人看待我们一样看待自己!特别是自20世纪60年代以来,仲裁员一直在裁决涉及着装规定、个人外貌要求和因涉嫌违反这些着装规定而受到处罚的案件。虽然随着时间的推移,我们可能已经发现了一些问题,但这些问题并没有完全消失[1]。着装要求也因违反美国法律等理由而受到质疑。年代。民事权利与法律的关系[2]。虽然没有人会认真地质疑工会是否有权利采纳和实施合理的着装要求,但工会有时也不同意这些要求所依据的假设。对于员工来说,工会需要考虑是否真的需要服装相关的安全规定,或者这些规定是否应该适用于那些没有直接受到©1997,Baywood Publishing Co., Inc. 103 doi: 10.2190/8J6F-R38N-VRC5-LTPY http://baywood.com影响的员工
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引用次数: 0
U.S. Employment Rights Legislation and the Legal Theory of Co-Employment as Constraints on the Use of Contract Labor 美国就业权立法与共同雇佣法律理论对契约劳动使用的制约
Pub Date : 1900-01-01 DOI: 10.2190/QBAU-ENGV-V08T-J6YD
D. Rebne, R. Jarmon
This article examines the implications of U.S. individual employment rights for secondary employment under the contract labor mechanism. Based on an analysis of common law and regulatory agency tests and the evolving legal theory of co-employment, it is argued that employment rights management is fundamentally problematic for firms using contract labor. Factors which make it difficult to externalize employment management through contract labor agencies include 1) moral hazard problems associated with such agen­ cies, 2) costs of monitoring rights compliance, 3) rights violations involving third-party liability and 4) related problems associated with the extension of contract labor to professional occupations. Anticipated managerial responses (in terms of refinements to contract labor practice) are discussed, together with their limitations. Also considered are the implications of such refine­ ments for dual labor market configurations involving primary workers under the human resources or "salaried" model. Historically, secondary employment, with its key characteristics of market-based pricing and tenuous attachment to the firm, has been the norm in America. Its counterpart—rule-based primary employment via internal labor markets—is a phenomenon of this century [1]. As Jacoby [2] has documented, the development of internal labor markets (and personnel/administrative control over employment) is best understood as a response to legal-institutional support for collective organization and individual employment rights rather than limitations of marketbased employment, per se. While market forces and direct efficiency incentives identified by Doeringer and Piore [3] and others certainly play a role in the
本文考察了在合同劳动机制下,美国个人就业权对二次就业的影响。基于对普通法和监管机构测试的分析以及共同雇佣的法律理论的演变,本文认为雇佣权管理对于使用合同劳动力的公司来说是一个根本性的问题。通过劳动合同中介难以实现用工管理外部化的因素包括:1)与劳动合同中介相关的道德风险问题;2)监督权利履行的成本;3)涉及第三方责任的侵权行为;4)劳动合同延伸到专业职业的相关问题。讨论了预期的管理反应(就合同劳动实践的改进而言),以及它们的局限性。还考虑了在人力资源或“受薪”模式下涉及初级工人的双重劳动力市场配置的这种改进的影响。从历史上看,以市场定价和对企业的脆弱依附为主要特征的二次就业在美国一直是常态。与之对应的是通过内部劳动力市场实现的基于规则的初级就业,这是本世纪的一种现象。正如Jacoby[2]所记载的那样,内部劳动力市场(以及对就业的人事/行政控制)的发展最好被理解为对集体组织和个人就业权利的法律体制支持的回应,而不是对基于市场的就业本身的限制。虽然Doeringer和Piore b[3]等人确定的市场力量和直接效率激励在经济增长中肯定发挥了作用
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引用次数: 1
The Hassan Case: An Analysis of the Issue of Accent Discrimination in American Higher Education 哈桑案:美国高等教育中的口音歧视问题分析
Pub Date : 1900-01-01 DOI: 10.2190/Q1KB-8WVE-86FA-TTVQ
D. Wyld
This article addresses the often-hidden accent discrimination issue in higher education. The article begins with an examination of the concept of just what an accent is. Next, the scope of Title VH's protection against discrimination due to national origin is analyzed. The rationale for equating accent and national origin discrimination under Title VH's umbrella is laid out. Then, court rulings in cases of alleged accent discrimination both within and outside of higher education are examined. This sets the stage for an analysis of the decision in Hassan v. Auburn University (1993), which offers important insights into the scope of administrative prerogative to deal with the language and accent issue in higher education. A concluding discussion of the ramifica­ tions of the Hassan court's ruling for higher education in a changing era is then offered. America's colleges and universities enjoy a competitive advantage versus the rest of the world. Around the globe, the quality of American higher education is regarded as unequaled. Higher education institutions in the United States thus stand in a unique position. They have the ability to attract the best and the brightest from countries all over the planet to come to the United States for their academic pursuits—both as students and professors. What is at the core of America's magnetism to attract the best scholars worldwide? Former Harvard University President Derek Bok answered quite clearly that the answer lay in the common currency of the English language. He wrote:
本文探讨了高等教育中经常隐藏的口音歧视问题。这篇文章首先考察了什么是口音的概念。其次,分析了第VH条对国籍歧视的保护范围。在标题VH的保护伞下,将口音和国籍歧视等同起来的理由被列出。然后,对高等教育内外涉嫌口音歧视的案件的法院裁决进行审查。这为哈桑诉奥本大学(Hassan v. Auburn University, 1993)一案的判决分析奠定了基础,该判决为处理高等教育中语言和口音问题的行政特权范围提供了重要见解。最后讨论了哈桑法院对高等教育在不断变化的时代中的影响。与世界其他地区相比,美国的学院和大学享有竞争优势。在全球范围内,美国高等教育的质量被认为是无与伦比的。因此,美国的高等教育机构处于独特的地位。他们有能力吸引世界各地最优秀、最聪明的人来美国从事学术研究——无论是学生还是教授。美国吸引全球最优秀学者的核心魅力是什么?前哈佛大学校长德里克·博克非常明确地回答说,答案就在英语这一通用语言中。他写道:
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引用次数: 0
Arbitrator Decision Making in Substance Abuse Cases 药物滥用案件中的仲裁员决策
Pub Date : 1900-01-01 DOI: 10.2190/FDWX-QY36-FU3L-EQW9
Ahmad R. Karim, Lawrence J. Haber
The approach taken in this study is to regard substance abuse discharge cases as specific instances of discharge cases in general. Consequently, in trying to model arbitrators' decisions, the possible predictors of the outcome of arbitra­ tion hearings are derived from those factors found to significantly affect the outcome in earlier discharge studies. Discriminant analysis is used to deter­ mine those factors that significantly affected the outcomes of substance-abuse discharge cases in the period 1985-1993. While most of the predictors thought to influence arbitral decision making operated in the anticipated manner, there were some surprises. In particular, neither management's concern for safety nor the grievant's prior work record affected the outcome of the cases. Over the past thirty years, the abuse of drugs, both licit and illicit, has increasingly pervaded the consciousness of American society in general and, more recently, of American industry. According to a recent survey undertaken by the Conference Board, business and industry in the United States loses approximately $20.6 billion annually because of alcoholism alone [1]. When the losses of nonbusiness organizations are included, the figure swells to a staggering $100 billion [1, 2]. While initially employers were reluctant to acknowledge the magnitude of the problem, they have responded with a combination of both corrective and deter­ rent measures [3-4]. Management in many businesses has either negotiated or unilaterally promulgated drug policies that have become part of the work rules at these firms. As a result of the sanctions inherent in these measures, penalties and other actions taken against employees who are alleged by their employers to have
本研究采取的方法是将药物滥用出院案件视为一般出院案件的具体案例。因此,在试图模拟仲裁员的决定时,仲裁听证结果的可能预测因子来源于那些在早期的出院研究中发现对结果有显著影响的因素。采用判别分析来确定在1985-1993年期间对药物滥用出院案件的结果有重大影响的因素。虽然大多数被认为影响仲裁决策的预测因素以预期的方式运作,但也有一些出人意料的情况。特别是,管理部门对安全的关注和申诉人以前的工作记录都没有影响案件的结果。在过去的三十年里,滥用药物,无论是合法的还是非法的,已经越来越普遍地渗透到美国社会的意识中,最近也渗透到美国工业界。根据世界大型企业联合会最近进行的一项调查,仅酗酒一项,美国工商业每年就损失约206亿美元[1]。如果把非商业组织的损失也计算在内,这个数字将膨胀到惊人的1000亿美元[1,2]。虽然最初雇主不愿意承认问题的严重性,但他们已经采取了纠正和威慑措施[3-4]。许多企业的管理层要么谈判,要么单方面颁布药物政策,这些政策已成为这些公司工作规则的一部分。由于这些措施所固有的制裁、惩罚和对雇主指称有下列行为的雇员采取的其他行动
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引用次数: 1
Joint Union-Management Training Programs 联合工会管理培训计划
Pub Date : 1900-01-01 DOI: 10.2190/W28X-AAFM-6YR1-M48K
M. Levine
In an effort to overcome the historically low priority place upon employee training efforts, many American firms and the unions they deal with have recently negotiated joint union-management training programs. These endeavors prove to be essential in the face of complex world competition, shifting markets, strategic alliances among corporations, changing demographics and rapidly changing technological developments. They enhance present skills training for employees and prepare them to take advantage of future employment opportunities when they arise. However, the numerous benefits of joint training are counterbalanced by a number of issues threatening the future of such undertakings and need to be jointly resolved by labor
为了克服员工培训工作历来不受重视的问题,许多美国公司和他们打交道的工会最近就工会-管理层联合培训计划进行了谈判。事实证明,面对复杂的世界竞争、不断变化的市场、企业间的战略联盟、不断变化的人口结构和迅速变化的技术发展,这些努力是必不可少的。他们加强了对员工的现有技能培训,并为他们做好准备,以便在未来的就业机会出现时利用它们。然而,联合培训的诸多好处被一些威胁到这些企业未来的问题所抵消,这些问题需要劳工共同解决
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引用次数: 2
期刊
Journal of Individual Employment Rights
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