Labor Law Reform Research Articles

Fairness and Opportunity for Choice: The Employee Free Choice Act & the Canadian Model

The authors are engaged in a multi-dimensional project that analyzes Canadian private sector experience under provincial and federal labour statutes. The broad objective of the research is to draw nuanced lessons from the Canadian experience that will inform the debate over labour law reform in the U.S. This commentary reflects the authors’ preliminary research results as they relate to the specific proposals included in the Employee Free Choice Act.

The French first employment contract: efficient screening device or Kleenex contract?

The controversial novelty in the French Labor Law reform, withdrawn in April 2006, was a contract form under which employers could dismiss young workers on probation without justification. Proponents argued that the reform would improve screening and boost employment whereas opponents dubbed it the “Kleenex contract.” We show that the new contract can produce an incentive to dismiss even suitable workers but that this harmful effect could be mitigated by instituting public ratings of firms according to their propensity to dismiss young workers. Informed workers could then respond to job offers according to firms’ layoff records, which in turn would restore promotion incentives and efficient screening.

Introduction to Symposium on “The Future of US Labor Law”

Dating back to at least the mid-1970s, many labor relations/labor law scholars, union officials and union activists have increasingly criticized the inadequacies of US labor law in protecting employees’ rights to participate in collective action. These parties have argued that the original intent of the 1935 National Labor Relations Act (NLRA), also popularly known as the Wagner Act, has been subverted by the Act’s amendments, as well as by a National Labor Relations Board that has been ineffective in preventing the occurrence of illegal employer activities which has successfully discouraged employees from organizing unions and engaging in collective bargaining. The Labor Reform Act of 1977, which, if passed, would have imposed punitive penalties on employers who committed such unfair labor practices, was filibustered to death in the US Senate. With Barack Obama’s election to the US presidency in 2008, many unions and labor activists believe that the time is right for launching a major drive to reform US labor legislation through the passage of the Employee Free Choice Act (EFCA), a law which would make it easier for employees to organize unions. Writing in February 2009, the future of EFCA has yet to be determined although Republican Party legislators appear committed to mobilizing all of their resources to ensure the bill’s defeat. Regardless of what happens to EFCA, at the end of the twenty-first century’s first decade, an examination of the future of US labor law is merited due to the political and economic changes that have occurred in the US since the passage of the landmark NLRA nearly 75 years ago. This symposium contains essays by three of the most distinguished labor law scholars in the US as well as a short piece by an international management scholar. In the first essay, Theodore J. St. Antoine, James E. and Sarah A. Degan Professor Emeritus of Law at the University of Michigan Law School, argues that even if labor law reform is implemented in the US, the secret ballot should remain in effect, in some form, for union certification elections while compulsory arbitration should only be utilized in special cases. Additionally, antidiscrimination legislation should be expanded to include nonemployees while wrongful terminations should be proscribed. Ellen Dannin, Fannie Employ Respons Rights J (2009) 21:131–132 DOI 10.1007/s10672-009-9106-6

Labor Law Reforms: China’s Response to Challenges of Globalization

The post-Mao years witnessed vigorous labor law reform efforts in China, which can be partly understood in terms of globalization, economic and legal. In the economic globalization, China was increasingly integrated into the world economic system and exposed to international pressures to reform its traditional labor system and follow internationally-accepted labor rules. In other words, the economic globalization created the need for labor law reforms in China. In the legal globalization, China was apparently the recipient or borrower of foreign legal ideas including ideas about labor legislation. These ideas inspired the Chinese to build a new legal system concerning labor.

Restoring Workplace Democracy: Eleanor Roosevelt and Labor Law Reform

Restoring Workplace Democracy: Eleanor Roosevelt and Labor Law Reform

An Analysis of Labor Law Reforms in American Public Education : Focusing on the Amendment of the Michigan Public Employment Relations Act

An Analysis of Labor Law Reforms in American Public Education : Focusing on the Amendment of the Michigan Public Employment Relations Act

Labor Law Reform Thirty Years Later: Back to the Future with Efca?

Labor Law Reform Thirty Years Later: Back to the Future with Efca?

International Institutions and Transnational Advocacy: The Case of the North American Agreement on Labour Cooperation

The North American Agreement on Labor Cooperation is studied as both a new type of arena for labor advocacy in North America, as well as a site that has fostered the emergence of new transnational networks of advocates. We locate our discussion in the context both of debates on the emergence and efficacy of 'soft law' in a diverse array of transnational contexts, a nascent literature on the globalization of public interest lawyering (PIL), as well as more long standing debates on transnational advocacy networks (TANS). The article provides an overview of the uses made of the NAALC complaints process between 1994 and 2005. While many of the early cases brought before the NAALC have been well documented, more recently, questions have been raised by some groups about the efficacy of the process. The article provides an in-depth consideration of two recent complaints, the first involving a proposed set of labour law reforms in Mexico, filed in the US NAO, and the second involving the treatment of Mexican H2B (forestry) Visa workers in Idaho, filed in the Mexican NAO. It documents the advocacy networks developed in relation to each of these complaints, and the reasons why these particular networks turned to the NAALC process, notwithstanding the disillusionment expressed by a number of organizations that had filed complaints over the previous decade. While the advocates we spoke with were under no illusions about the likely outcomes of the complaints process itself, they sought to utilize it as a part of a wider range of strategies for publicity and social mobilization around their issues of concern.

Grasping the Moment: Some Cross-Tasman Thoughts on Australian Labour Law Reform

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Labour Market Efficiency and Fairness: Agreements and the Independent Resolution of Difference

It is now settled that we need to get beyond WorkChoices by Moving Forward with Fairness. But what does this mean? In particular, what does it mean if we are interested in improving efficiency, effectiveness and equity in the Australian labour market? As an election manifesto, the ALP's policy on labour law was, understandably, strong on rhetoric and light on detail. A paper this length cannot overcome the 'details' problem. Instead, it clarifies the key issue of institutional design that should guide the impending legislative changes. This is: facilitating dynamic agreement making supported by a strong system of independent resolution where agreement cannot be reached and which also sets national labour market standards. The argument is straight forward. Any effective system of labour law must engage with the two asymmetries at the heart of the employment relationship: inequality of bargaining power before a worker is hired and uncertainty of performance once they are engaged. The former favours the employer, the latter the worker. These inequalities change over time. Differences arising from these asymmetries underpin the need for ongoing agreement making. Not infrequently, however, agreement cannot be reached. While each of the plenary papers differed, all four agreed that, over the last century, Australia has devised a dynamic system for independently resolving such 'deadlock' situations. These tribunals have succeeded because they have kept most industrial or workplace relations issues out of parliament and the courts. This argument is developed by answering the following connected questions: * What are the fundamental problems any system of labour law must deal with? * What does the latest research on labour market arrangements and economic performance tell about institutional design? * What guidance do the plenary papers offer in moving the debate on labour law reform forward? * What do recent experiences with enterprise bargaining reveal about problems to avoid? The Fundamental Problem: Labour as a Factor Production Labour law was once regarded as an arcane area of interest to only a small group of specialists. In recent times, however, it has become a matter of intense public interest. If policy debate is to mature we must move beyond rhetorical claim and counter-claim. Instead, analysis must be built on clear conceptual foundations. These can be traced back to the distinctive nature of labour as a factor of production. As Brown and Nolan have noted, what underlies industrial or workplace relations 'is the inherently controversial nature of the employment transaction (Brown and Nolan 1988: 340). This arises from two asymmetries (Fox 1974: 190). The first arises from the inequality of bargaining power between the parties before the contract is made. While many employees have few options to them other than to sell their labour, employers are, generally speaking, not so constrained (Fox 1974: 190). The second asymmetry arises from the peculiar nature of labour as a commodity (Biernacki 1994). An employer hires a worker's potential to perform, not the actual performance of work itself. This inequality of uncertainty means that while workers are sure of their wages once hired, the output an employer receives is open-ended because only workers know how diligently they apply themselves on the job (Braverman 1974: 52-58; Fox 1974: 183-189; Brown and Nolan 1988: 340). For the sake of brevity, the first inequality will be referred to as the 'external inequality', and the second the 'internal inequality'. While the first tends to disadvantage the employee, the latter creates major problems for the employer. Labour law as a distinct realm of jurisprudence primarily emerged to redress the inequality of bargaining inherent in the open labour market. Initially this took the form of limited recognition for unions by granting them immunity from suit for civil and criminal conspiracy (Deakin and Wilkinson 2004: ch 4). …

LABOR'S NEW OPENING TO INTERNATIONAL HUMAN RIGHTS STANDARDS

Most trade unionists were oblivious to international human rights movement in the last half of the twentieth century. For their part, human rights advocates did not include workers' rights on their agenda. But in the late 1990s, labor and human rights advocates came together to reframe workers' collective action as a human rights mission rather than a self‐interested syndical action. A new labor–human rights alliance built a wide‐ranging discourse of workers' rights as human rights. The expertise and knowledge attributable to human rights actors gave their critique of workers' rights violations in the U.S. a high measure of authoritativeness compared with trade unionists making the same claims.Critics suggest that a human rights frame moves away from a class analysis, de‐emphasizing principles of industrial democracy and mass action in favor of individual rights. This article argues that a human rights argument can help win needed labor law reform to protect workers' rights.

THE EMPLOYEE FREE CHOICE ACT AND A LONG‐TERM STRATEGY FOR WINNING WORKERS' RIGHTS

Despite its positive features, the Employee Free Choice Act has no place in a long‐term strategy for workers' rights. If enacted, it will dissipate the energy for labor law reform without producing any results other than a marginal improvement in the prospects for staff‐driven organizing campaigns. More likely, however, it will fail of passage. History teaches that the enormous advantages enjoyed by employers in ordinary politics (for example, the grossly disproportionate influence exerted by wealthy interests and rural states in our political system) can be offset only by a long‐term and uncompromising movement for workers' rights. In the first half of the twentieth century—the period when all of our major workers' rights statutes were won—the movement approached the issue as one of long‐term struggle over fundamental principles, and not as a matter of wheeling and dealing for whatever gain could be obtained at the moment. For half a century, workers and unions insisted that without the full freedom to associate in unions and engage in concerted activities like strikes, workers would be reduced to an unconstitutional condition of involuntary servitude. By adopting a similarly principled approach, adapted to fit the emerging industrial regime of flexible production, we can reclaim the rights to organize and strike.

The New Labor Culture and Labor Law Reform in Mexico

There are two competing labor law reform proposals in the Mexican legislature, both of which would profoundly reshape labor-capital-government relations should they be passed. The Plan Abascal is based on idealized relations of production derived from the post-Fordist theory that new global economic realites demand new regulations that allow employers more flexibility to deal with sudden market shifts. In contrast, the reform authored by an independent union confederation protects workers against employer and government unilateralism and exploitation.

Labor Law Reform and the Role of Delay in Union Organizing: Empirical Evidence from Canada

This paper examines the determinants and consequences of delay in the union certification process using data from certification applications and unfair labor practice complaints (ULPs) from British Columbia (1986–98) and Ontario (1993–98). During the period studied, there were several changes in delay-related laws, including laws regulating the presence and stringency of election time limits and the availability of expedited ULP hearings. Key findings are that ULPs against the employer reduced the likelihood of compliance with time limit laws except where expedited ULP hearings also existed; employer-filed objections to the application reduced the likelihood of compliance; and election delay reduced the likelihood of certification success both in policy regimes without time limits and in those where stipulated time limits were frequently breached. Overall, the results suggest that enforced time limits on elections coupled with expedited ULP hearings may substantially mitigate the adverse effects of election delay on certification success.

The Clinton Administration and Labor Law: Was Comprehensive Reform Ever a Realistic Possibility?

This article analyzes the critical obstacles in the path of labor law reform during the 1990s. It stresses the importance of the lukewarm support of the Clinton Administration for labor law reform, organized labor’s failure to frame the debate on labor law reform to its advantage and its inability to convince key Senators to support its reform agenda, and, especially, the determined opposition to reform of employer groups and their allies in Congress. The article concludes with a brief discussion of the lessons of the legislative defeats of the 1990s for the AFL-CIO’s current campaign to revise the National Labor Relations Act.

The strategic use of dismissal legislation: an empirical analysis using Spanish data

In this paper, we analyse empirically how the legal framework affects the relationship between labour market conditions and dismissals. We use a pseudo-panel of Spanish data from 1987 to 2001. We find that Labour Law reforms have effects on the use of individual and collective dismissals although such effects are much lower than those related to the business cycle. The results also show a strategic use of the different types of dismissals, distorting the work of those institutions involved in dismissals.

Forging New Labor Activism in Global Commodity Chains in Latin America

AbstractInternational industrial restructuring has fomented a decline in unionization in Latin America and has forced labor organizations to pursue new forms of activism. Due to the segmentation of the production process and the dispersion of the locations of production sites, the coordination of collective action has become more difficult. At the same time, labor law reforms have failed to respond to the challenges presented by market-oriented industrial reforms. As a result, labor activists are resorting to new or modified forms of labor organizing, ranging from domestic cross-class collaboration to international alliances and sporadic campaigns with labor and nongovernmental organizations. The sources of this variation in new labor actions can be found not only in contemporary political and economic contexts, but also in labor histories and ideational influences. An exploration of labor actions in the Salvadoran export apparel sector and the Brazilian automobile industry illustrates these processes.

2 Labor Law Reform and Employment Systems : The Case of Dismissal Regulations in 2003(From the Sub-sessions)

2 Labor Law Reform and Employment Systems : The Case of Dismissal Regulations in 2003(From the Sub-sessions)

The Death of Labor Law?

▪ Abstract This review tells three interlocking tales of decline, each with its respective prognosis for recovery: the declines of labor law scholarship, labor law, and organized labor. The relationship between the latter two and the role that a reformed labor law might play in reviving organized labor are matters of continuing controversy. In the meantime, two developments on the ground suggest a way forward for organized labor, labor law, and labor law scholars. Activist unions have found success with a new organizing model: neutrality and card-check agreements. Elsewhere, antisweatshop activists are developing increasingly sophisticated supplier codes and monitoring schemes to improve labor standards in developing countries. Both strategies, with their basically contractual architecture, exemplify what regulatory scholars are calling new governance. These strategies suggest a potential way around the roadblocks that meet labor law reform proposals and toward more agile and responsive forms of workplace governance.

Regulated Flexibility and Small Business: Revisiting the LRA and the BCEA

The object of the paper is to identify the conceptual underpinnings of the labour law reforms of the 1990s, particularly the concept of regulated flexibility, and the changes to the labour market since then in order to review the performance of those reforms and to propose changes to more appropriately regulate that market. The main argument made of paper is that the concept of regulated flexibility may be put to good use in extending protection to those who most need it and limiting intervention, particularly judicial intervention, where there is no appreciable gain in protection. The paper reviews the regulation each of the standard incidents of the employment relationship, from recruitment to termination, and finds that much of this regulation (in the form of an unfair labour practice remedy) escaped careful scrutiny in the reform process in the 1990s. The unfair labour practice remedy has, for the most part, become a charter of rights for middle and senior management while the most vulnerable workers are left without protection. Rather than intensifying regulation, labour law reform should be setting its sights on the extension of protection to those who most need it, namely employees in atypical employment. The paper makes various proposals to fine tune the legal regulation of the labour market, in particular removing unnecessary regulation in the form of judicial interference in the employment relation and extending legislative protection to the most vulnerable employees.