Protecting Workers as a Matter of Principle: A South American View of U.S. Work Law

Abstract

Scholars have noted that judicial conservatism has eroded labor and employment law (hereinafter referred to as “work law”) in the U.S. and elsewhere. The Roberts Court has kept in line with such conservatism, perhaps with sharpened audacity, deciding a number of key work law cases in the favor of employers. Moreover, the pro-employer judicial hue over recent work law cases comes at the heels of recent legal scholarship calling for a rethinking of the “idea of labor law,” the demise of the standard employment contract, and an upsurge in labor precarity. Work law, which has always been under attack, has seen better days in the U.S.But work law has experienced a rebirth in South America after years of authoritarian rule and dictatorship. There may be lessons that can be drawn from the South American experience for the U.S. and other jurisdictions where work law has suffered setbacks. One of the key institutionalized methodologies that have helped to reconstruct work law in South America has been the use of legal principles. This article discusses the principle of protection, perhaps the central pillar of South American work law. Under this principle, one of work law’s essential functions is to protect workers because workers are “weaker parties” in employment relations. According to South American work law, worker protection is needed because workers’ weaker position puts them at the risk of being dehumanized and treated as commodities or articles of commerce.The protective principle is operationalized in South American work law through the rule of in dubio pro operario, which essentially means that a judge or other adjudicator must rule in favor of the worker when confronted with hard cases. In dubio pro operario directs adjudicators’ discretion in a manner consistent with the protective functions of work law.After describing South American work law’s protective principle, the authors turn to the U.S. work law, namely the 13th Amendment of the U.S. Constitution, the Fair Labor Standards Act (“FLSA”) and the National Labor Relations Act (“NLRA”), to explain how a South American labor judge would likely find the protective principle in the U.S. The authors argue that a South American labor judge would find protection for ordinary workers under the 13th Amendment. The protective principle guards human dignity, a goal inherent behind the ban against involuntary servitude of the 13th Amendment. A South American labor judge would also recognize that the FLSA and the NLRA attempt to equalize bargaining power between workers and employers to hedge commodification and its affronts to human dignity.The authors also argue that South American labor judges would recognize that something like the rule of in dubio pro operario sometimes prevails in the U.S under the common law rubric that “remedial statutes should be interpreted liberally.” Therefore, South American judges would more consistently decide cases in favor of workers by giving U.S. work law a principled and protective interpretation.The authors recognize that the U.S. courts do not always recognize the protective nature of U.S. work law, not only because there is no officially recognized labor protection under the constitution. Lack of protection also exists in the U.S. because of the American employment-at-will doctrine, which the authors acknowledge weakens statutory worker protections. Hence, for labor protection to find a more solid ground in the U.S., employment-at-will must be statutorily rescinded. In all, there is a need in the U.S. to develop work law principles, starting with the principle of protection, in the Constitution, Congressional policies and purposes, and positive law. This article attempts to jump-start such a discussion.