Wage Claims Research Articles

단기 시효기간의 전용 가능성과 판단 방법에 관한 소고 - 직접고용의무에 관한 대법원 2023. 4. 27. 선고 2021다229618 판결을 출발점으로 -

When multiple claims for damages arise simultaneously in the same case, and when the prescription period for each claim is different, the question arises as to whether the short prescription period of one claim can be diverted to another claim. This recently became an issue in a case regarding the direct employment obligation under the dispatch law. After the Dispatch Act went into effect, when workers who were in an illegal dispatch relationship claimed fulfillment of their direct employment obligations and claimed compensation for damages, the short-term 3-year statute of limitations applicable to wage claims was applied without any question. However, since the regulations deemed as employment were revised to obligatory employment regulations, it became possible to view the violation of the relevant Dispatch Act provisions as non-performance of legal obligations and claim a 10-year statute of limitations. The short-term statute of limitations on wage claims cannot be diverted to the right to claim compensation for damages resulting from a violation of the direct employment obligation simply by asserting that wages were not received as a result of a violation of the direct employment obligation, or that wages could have been received if the direct employment obligation had not been violated. Rather, it is necessary to examine whether there is a substantive and economic closeness between the two bonds. At this time, the similarity between the amount of compensation and the amount of wages, which is the result of calculating damages, cannot be an important criterion for judgment. Rather, practical and economic relevance should be reviewed taking into account the purpose of the legal obligations. Since the practical and economic closeness between the two bonds is only the first step in examining whether the purpose of defining the short-term prescription period is similar, it is natural to reexamine whether the purpose of the short-term prescription period can be applied equally. As a result, it is difficult to recognize a practical and economic closeness between the right to claim damages resulting from a violation of the direct employment obligation and the wage claim. In addition, the purpose of the short prescription period for wage claims does not correspond to the right to claim damages due to violation of direct employment obligations.

Wage claim detracts reciprocity in labor relations: experimental study of gift exchange games

Wage claim detracts reciprocity in labor relations: experimental study of gift exchange games

위법파견 시 직접고용에 관련된 권리의 실효에 관한 연구

The Supreme Court regards the legal provisions of the law on direct employment deeming and direct employment obligations to constitute a right of claim. As a result, various problems arise, including retrospective double labor contract relations, iniquities between the continuation of dispatch of workers and direct employment obligations under Article 13 of Act on the Protection, Etc. of Temporary Agency Workers (henceforth, “the Workers Dispatching Act”), and the legal application of workers who deviate from the legal relationship of dispatching workers due to resignation.<BR> In particular, the court narrowly interprets the scope of workers’ “explicit expression of opposition” under the Workers Dispatching Act in order to be consistent when interpreting the provisions of direct employment deeming and obligations. Additionally, in the process of citing a wage claim for non-fulfillment of the duty of direct employment, the court has found that a worker who expressed his intention to resign to the dispatching employer and left the dispatched worker relationship did not express an “explicit expression of opposition”; it also cited a wage claim.<BR> The interpretation of the court is unreasonable because it contradicts the perceptions of the parties involved in the worker dispatch relationship and recognizes the exercise of the dispatched worker’s rights that break the trust between the direct employer and the dispatching employer. The principle of extinction of rights can be applied to claims based on the legal provisions of the law on direct employment deeming and direct employment obligations of the dispatched worker. In the case of the resignation of a dispatched worker, it is also necessary to reconsider the worker’s explicit expression of opposition and wage claim for non-fulfillment of the duty of direct employment under the Workers Dispatching Act.

Categorical Distinctions and Claims-Making: Opportunity, Agency, and Returns from Wage Negotiations

In this article, we examine wage negotiations as a specific instance of claims-making, predicting that the capacity to make a claim is first a function of the position, rather than the person, and that lower-status actors—women, migrants, fixed-term, part-time, and unskilled workers—are all more likely to be in positions where negotiation is not possible. At the same time, subordinate-status actors may be less likely to make claims even where negotiation is possible, and when they do make wage claims they may receive lower or no returns to negotiation. Analyses of wage negotiations by more than 2,400 German employees largely confirm these theoretical expectations, although the patterns of opportunity, agency, and economic returns vary by categorical status. All low-status actors are more likely to be in jobs where negotiation is not possible. Women, people in lower-class jobs, and people with temporary contracts are less likely to negotiate even when given the opportunity. Regarding returns, agency in wage claims does not seem to improve the wages of women, migrants, or working-class individuals. The advice to “lean-in” will not substantially lower wage inequalities for everyone, although men who lean in do benefit relative to men who do not.

Returning home empty handed: Examining how COVID-19 exacerbates the non-payment of temporary migrant workers’ wages

The crisis unleashed by COVID-19 has profoundly impacted the world of work, with many workers losing their jobs or with insufficient safety measures in place for those still in work. Migrant workers are among the precarious workforce that is employed in particularly affected sectors where they have been subjected to labour rights’ violations for a long time. The pandemic has further exposed and exacerbated the exploitation of migrant workers in particular, as evident from the widespread occurrence of the non- or underpayment of wages for work that has been carried out. Despite the efforts made in recent years at the global level to arrive at a common framework to regulate international labour migration in accordance with international human and labour rights’ standards, little progress has been achieved on the issue of wage theft. This article analyses the reasons why the institutional architecture in place is ineffective to tackle the settlement of outstanding wage claims. We use the concept of access to justice as a starting point and steer our examination towards global advocacy as epitomised by a concerted campaign by an alliance between civil society organisations (CSOs) and global union confederations, which calls for the implementation of a justice mechanism for repatriated migrant workers. Our analysis is specifically centred on low-wage migrants on temporary, employer-tied contracts as illustrated by the South Asia–Middle East/Gulf migration corridor.

Better Than Jail: Social Policy in the Shadow of Racialized Mass Incarceration

Racialized mass incarceration enables forms of economic exploitation that evade traditional worker protections despite being integrated into conventional labor markets. Such exploitation is legitimated by normalizing incarceration as the baseline against which these practices are judged. In contrast, conventional social policy imagines an “economy” separate from state violence, opposing “free labor” to “involuntary servitude.” The emergent “carceral baseline” recharacterizes labor practices as subjects of criminal justice policy, not economic regulation, especially in “alternatives to incarceration.” Examples of this baseline’s deployment are drawn from regulation of child support work programs, Thirteenth Amendment challenges to community service “working off” criminal legal debts, minimum wage claims by workers in diversion programs, and legislative proposals to exclude formerly incarcerated workers from labor protections. Implications include the need to integrate insights from theories of nonmarket work and of racial capitalism that challenge the dominance of markets as objects of description and critique in law and political economy analysis.

A Study on the Institutional Improvement for the Guarantee of Fisher Wage Claims

A Study on the Institutional Improvement for the Guarantee of Fisher Wage Claims

Wage Theft in Lawless Courts

Low-wage workers experience wage theft — that is, employers’ failure to pay earned wages — at alarmingly high rates. Indeed, the number of wage and hour cases filed in federal and state courts and administrative agencies steadily increases every year. While much of the scholarly assessment of wage and hour litigation focuses on large collective and class actions involving hundreds or thousands of workers and millions of dollars in lost wages, the experiences of individual workers with small claims have received little attention. Furthermore, scholarly consideration of the justice gap in lower courts, more generally, has often focused on debt collection cases in which the individual denied justice is the defendant, not the plaintiff. This article fills a significant gap in the literature by considering the experiences of individual low-wage workers who pursue their claims in the lower courts. In doing so, it identifies the difference between the law as written and the law as experienced by low-wage workers seeking to vindicate their substantive legal rights. After considering the challenges to adjudicating wage and hour cases in small claims courts, it argues that procedural informality and frequent absence of critical inquiry into the substantive legal issues create significant hurdles to low-wage workers’ ability to prevail on their claims. Indeed, despite the various protections provided by both federal and state wage and hour laws, courts adjudicating these claims often apply a breach of contract analysis that disadvantages vulnerable workers. This return to what I term a pre-New Deal, Lochnerian approach to wage and hour disputes runs afoul of Congress and state governments’ efforts to regulate the workplace and, particularly, to protect vulnerable low-wage workers. This article argues that the challenge of injecting legal standards into small claims court requires the creative use of narrative and case theory to prevail in wage and hour claims. It also considers potential procedural changes, such as the introduction of specific pleadings and forms for wage and hour claims and state court judge trainings that would better enable pro se parties to assert their federal and state substantive wage and hour rights in small claims courts.

A Power Model of the Labour Market

This article discusses a bilateral monopoly model of wage determination in which the employers determine the level of production and employment. The threat of a strike is the principal instrument of the employees, while employers, being the owners of the monopoly surplus, can simply ignore wage claims. In the orthodox-economic model the wage elasticity of labour demand as well as the horizon and the discount rate used when calculating strike costs and strike benefits, are essential. In a heterodox-economic model employers can frame their reality in an Austrian or in a neoclassical way. Employees can frame their reality in a radical-economic or in a post-Keynesian way. The frame chosen affects the factors discussed in the orthodox model. Moreover, irrationality (from behavioural economics) and immorality (from social economics/economic sociology) play a significant role in the outcome of the negotiations. To make participants more rational and morally aware, a Communication Platform should be set up, in order to organize Habermas-like power-free confrontations. In this way society could slowly move from a shareholder society to a stakeholder society.

Developments in Labor and Employment Law In the United States (September 2018 - January 2019)

I - United States Supreme Court In New Prime, Inc. v. Oliveira, the U.S. Supreme Court held that an employer trucking company could not compel its drivers to arbitrate their wage claims, rather than litigating the claims in court. This case is an unusual win for workers, given the long line of Supreme Court precedents since 2001 that have established that mandatory agreements to arbitrate employment–related disputes are enforceable in non-union workplaces. Under such agreements, as a conditio...

Making Workers Whole: A Retrospective Analysis of SB 588 and Enhanced Post-Judgment Collection in California

When wages are stolen, workers end up navigating a complex legal landscape to obtain relief. Indeed, they do so largely on their own and in the face of sometimes fierce opposition and retaliation. If they somehow reach a final judgment, many employers do not pay or attempt to shift or shield assets and dissolve their corporate form, all in an attempt to make themselves collection-proof. In fact, recent research suggests that only 17 percent of all final judgments are ever recovered by employees who use the state administrative process. In response to these trends, California enacted SB 588 which became effective January 2016. The legislation provides new and potentially powerful tools to help workers recover judgments entered in their favor. Using new data from the state Labor Commissioner and interviews with 22 non-profit and for-profit advocates, this paper provides a first-of-its-kind look at the effect of the new law. The paper assesses the Labor Commissioner’s use of new mail levy authority, its power to issue stop orders for companies with outstanding wage claims, the effect of expanded liability included in the final law, and more. This retrospective look at the effect of the new law reveals a mixed report. While new mail levy and stop order authority have together helped workers recover over $3.7 million in money otherwise out of their reach, it represents only 13 percent of the outstanding judgments owed to workers. While a modest figure, these new tools have helped increase overall successful judgment collection to nearly 28 percent. At the same time, while advocates have stressed that new individual liability provisions have made wage claims more likely to settle (and thus more valuable to workers), many are still unaware of other key provisions in the law. Yet, the law is still in its infancy, and outcome data suggest that in certain industries, the Labor Commissioner’s collection efforts have resulted in significant sums of money returning to workers. With continued training and implementation, there is a potential for more workers to be made whole. The paper concludes with reflections on the further effects of this sweeping law and suggestions for future research and reform.

Taking the Companies to Court

Abstract Taking the Companies to Court. Wage Litigation against the Dutch East and West India Companies in the High Court Both the Dutch East and West India Companies were taken to court in the Republic. Court cases were pursued to the highest court in the Republic, the appellate Hoge Raad van Holland, Zeeland en West-Friesland (High Court), by subjects of the States General and by foreigners, individuals, and groups. This article focuses on wage claims which involved issues of inheritance, shipwreck, and illegal private trade. They show the wide pool of litigants who took on the companies, and the use of the court to manage labour disputes. Litigation involving the VOC and WIC has long been ignored by scholars, but this article showcases the contribution that can be made to the fields of social, economic, and legal history through analysis of the High Court records.

임금채권보장제도에 관한 연구 - 일본과 한국의 체당금 지급제도의 비교를 중심으로 -

임금채권보장제도에 관한 연구 - 일본과 한국의 체당금 지급제도의 비교를 중심으로 -

The Widespread Use of Workplace Arbitration Among America's Top 100 Companies (The Employee Rights Advocacy Institute for Law &amp; Policy 2017)

The ability to access courts is disappearing for workers in America because arbitration clauses have permeated the majority of the leading companies in America. Personal injury claims, wage claims, civil rights claims, sexual assault claims, and other claims involving the workplace and vulnerable workers may never be heard in a public court, with broad procedural protections for employees, because of the use of arbitration clauses. Further, through the use of class waivers, it is impossible for employees to join together in a class or collective action against their more powerful and far better-resourced employers. Access to courts has become increasingly more difficult for workers, and the vast majority of America’s top companies have tried to block workers from entering the courthouse door. This report examines the use of arbitration agreements by the largest domestic U.S. companies. The research in this report was undertaken to identify: 1) How many of these companies have utilized arbitration to resolve workplace disputes since 2010; and 2) Of those companies, how many use arbitration clauses that require workers also to waive their right to proceed collectively or as part of a class (a “class waiver”). This report does not address labor arbitration or unionized employees who are bound to arbitrate under a collective bargaining agreement; instead, this report focuses on individual arbitration agreements for workplace disputes. The key findings from the research done for this report are that eighty percent of top companies have used arbitration agreements since 2010, and of those, almost forty percent have used arbitration clauses that contain class waivers.

A Solidarity Machine? Hong Kong Labour NGOs in Guangdong

Although the literature on labour NGOs (LNGOs) in China has significantly expanded, few scholars have attempted to subject the work of these organizations to a Marxist perspective. This article draws on a recently developed Marxian theoretical framework on social movements to analyse the pioneering work of Hong Kong LNGOs and their partners in the province of Guangdong, China. Over the past 15 years, the Hong Kong groups, as they are known collectively, have been ideally placed to develop specific interventions in response to migrant workers’ pursuance of wage claims and improved working conditions during a time of increased rights awareness and widespread labour shortages. While consistently careful to remain the right side of China’s restrictive laws on freedom of association and demonstrations, the Hong Kong LNGOs were able to contribute to a narrative of class-based collective solidarity that has yielded significant gains for workers.

An Argument and an Outline for a New Employment Scheme

&lt;div class="page" title="Page 1"&gt;&lt;div class="layoutArea"&gt;&lt;div class="column"&gt;&lt;p&gt;Liberalism is celebrating triumphs in these years. As faith in the welfare state and Keynesianism began to crack in the 1970s, capitalist principles were revitalised and the old virtues and dogmas were found and dusted. Now all that restrained the free competition in the market were considered a danger to the growth and the welfare. The impact of trade unions on wage formation should be limited, the welfare state should be reduced, and ‘modernised’ and the incentive structure strengthened by reducing social policy standards. Unemployment was again considered a natural part of the economy where individual choices were crucial to whether you were unemployed or not: lower your wage claims and you would probably get a job. &lt;/p&gt;&lt;p&gt;As a part of the Maastricht Treaty in 1992, a consensus between the representatives of capital and labor had to be invented. An ideal model for European employment policy should be found to supplement the strengthening of the internal market and the canonisation of the free movement of capital, labor, goods, and services. The result was the so-called social dimension, which could act as a counter weight for the employees. The Danish labor market policy from the 1960s became the prototype of the European employment policy and was called flexicurity, and from the late 1990s until the crisis’ breakout in 2008, flexicurity celebrated triumphs as a political-ideological construction for a common reference model (Larsson 1998).&lt;/p&gt;&lt;/div&gt;&lt;/div&gt;&lt;/div&gt;

An Argument and an Outline for a New Employment Scheme

Liberalism is celebrating triumphs in these years. As faith in the welfare state and Keynesianism began to crack in the 1970s, capitalist principles were revitalised and the old virtues and dogmas were found and dusted. Now all that restrained the free competition in the market were considered a danger to the growth and the welfare. The impact of trade unions on wage formation should be limited, the welfare state should be reduced, and ‘modernised’ and the incentive structure strengthened by reducing social policy standards. Unemployment was again considered a natural part of the economy where individual choices were crucial to whether you were unemployed or not: lower your wage claims and you would probably get a job. (...)

Unionization Regimes, Capacity Choice by Firms and Welfare Outcomes

This paper studies how unionization regimes that differ in the degree of wage setting centralization interplay with the strategic choice of production capacity by firms and how this affects product market outcomes. When labour markets are unionized, firms typically opt for under‐capacity to dampen the unions’ wage claims. This is in contrast with the conventional choice of over‐capacity that applies when labour markets are competitive. Moreover, unless unions are distinctly oriented towards employment, the level of capacity is more efficient under centralized unionization than in a decentralized structure. Relative to more general welfare outcomes, profits are always higher under decentralization, but both consumer surplus and overall welfare can be higher under a centralized structure, depending on the unions’ preference towards wages or employment.

Negative Effects of Wage Claims on Labor Relations: An Experimental Study on a Gift Exchange Game

We examined how wage claims impact the principal–agent relationship between firms and workers with hidden action using laboratory experiments on a gift exchange game in which workers made payoff-irrelevant requests concerning their wage before the firm made a wage offer. We compared the experimental results of this game to those of a gift exchange game without wage claims and found that the wage claim detracted reciprocity regardless of the wage levels offered by the firm, resulting in shrinking economic surplus in their labor contracts. JEL Classification: C92, J3, J42

The Impact of Temporary Agency Work on Trade Union Wage Setting: A Theoretical Analysis

Focusing on the cost-reducing motive behind the use of temporary agency employment, this paper aims at providing a better theoretical understanding of the effects of temporary agency work on the wage-setting process, trade unions' rents, firms' profits and employment. It is shown that trade unions may find it optimal to accept lower wages to prevent firms from using temporary agency workers. Hence, the firms' option to use agency workers may affect wage setting also in those firms that only employ regular workers. However, if firms decide to employ agency workers, trade union wage claims will increase for the (remaining) regular workers. An intensive use of temporary agency workers in high-wage firms may therefore be the cause and not the consequence of the high wage level in those firms. Even though we assume monopoly unions that ascribe the highest possible wagesetting power to the unions, the economic rents of trade unions decline because of the firms' option to use temporary agency work, whereas firms' profits may increase.