Browse

In this volume, leading scholars of both labour law and the Capability Approach (CA) explore the possible connections between their disciplines. Accounts of the CA—particularly those of Martha C. Nussbaum and Amartya Sen—do not specifically address labour law, but the CA is attractive to labour lawyers and scholars examining the foundations of their discipline. The questions being asked are whether the CA has anything to offer labour law, and if it does, what forms might this offering take? And, conversely, what light labour law might shine on the CA? In addressing these questions, the chapters in Part I inquire into the nature of the relationship between the CA and labour law—whether it is positive or negative and whether the CA can provide a normative basis for, or an understanding of, labour law. The chapters in Part II explore the CA/labour law debate through different and well-known perspectives on labour law, including economics, history, critical theory, restorative justice, and human rights. The final set of chapters examine the possible relevance of the CA to a range of specific labour law issues, such as freedom of association, age discrimination in the workplace, trade, employment policy, and sweatshop goods. As with this set of specific issues, the book as a whole is not meant to be an exhaustive account of the CA/labour law connection. Rather, it is offered as a first focused effort to open up the discussion and to stimulate further inquiry in this interdisciplinary enterprise.

Over the last three decades, welfare policies have been informed by popular beliefs that welfare fraud is rampant. As a result, welfare policies have become more punitive and the boundaries between the welfare system and the criminal justice system have blurred—so much so that in some locales prosecution caseloads for welfare fraud exceed welfare caseloads. In reality, some recipients manipulate the welfare system for their own ends, others are gravely hurt by punitive policies, and still others fall somewhere in between. This book endeavors to clear up these gray areas by providing insights into the history, social construction, and lived experience of welfare. It shows why welfare cheating is all but inevitable—not because poor people are immoral, but because ordinary individuals navigating complex systems of rules are likely to become entangled despite their best efforts. Through an examination of the construction of the crime we know as welfare fraud, the book challenges readers to question their assumptions about welfare policies, welfare recipients, and crime control in the United States.

This work develops a functional concept of the employer in the hope of overcoming the theoretical and practical problems arising from the ascription of responsibility in fragmented employment settings. A first part analyses two conflicting strands in the received concept of the employer, simultaneously identified as a single party to a bilateral contract and defined through the exercise of a range of employer functions. As a result of this tension, full employment law coverage is restricted to a narrow paradigm scenario where a single legal entity exercises all employer functions, and fails to grapple with the rise of complex work arrangements, from temporary agency work to corporate groups and Private Equity investors. The second part illustrates the practical implications of these developments: regulatory obligations are placed on inappropriate entities, and workers may find themselves without recourse to employment law protection. A subsequent chapter compares this situation with German law, where a sophisticated apparatus has been developed to regulate employment in corporate groups. The final part reconceptualizes the employer, defining it as the entity, or combination of entities, exercising functions regulated in a particular domain of employment law. Each of the two strands of the received concept is addressed in turn to demonstrate how this openly multi-functional approach overcomes the rigidities of the current concept without abandoning an underlying unitary definition. As a result, employment law obligations fasten on the entity, or combination of entities, exercising the relevant employer functions, regardless of the formal legal organization of the enterprise in question.

The contract of employment is the central legal institution of modern English employment law. It provides the foundation upon which most statutory employment rights are constructed; it provides a conduit for the implementation of norms negotiated in collective bargaining; and it continues to provide a contractual structure for the terms and conditions of employment for a significant proportion of the working population. The Contract of Employment provides a comprehensive treatise on the theoretical and doctrinal aspects of the English law of the contract of employment in the common law world. Part I examines the theoretical context to the contract of employment, studying its structure and development from a wide variety of theoretical and comparative perspectives. Part II provides an exposition and analysis of the doctrinal aspects of the contract of employment, which progresses from the formation of the contract through its content or terms and conditions to its termination and post-employment obligations, and to the remedies for its breach and wrongful termination. The legal analysis seeks to be informed by a keen sense of the modern labour market context of the contract of employment, and to be sensitive to contemporary challenges such as precariousness, the interaction with migration law, the role of legislation in the contract of employment, and the decline of collective bargaining.

There has been a growing interest in the disciplinary ‘autonomy’ of labour law. The chapters in this book examine the interface between criminal law and theory and the regulation of labour markets, given the importance of this interface in the twenty-first century. The four chapters in the first section of the book are concerned broadly with the normative questions concerning the legitimacy of criminalisation in the regulation of social activity. It is a fundamental feature of liberal theories of criminalisation that the legitimate use of the criminal sanction requires special justification. The criminal law is coercive, punitive, and stigmatic. Each chapter examines the normative issue of criminalisation from a different perspective. The second section examines the distinctiveness of the criminal law as a form of regulation, especially compared with civil enforcement. The third section is concerned with criminal law, vulnerability, and precarious work relations. Recent scholarship in labour law has been intensively concerned with the concepts of vulnerability and precariousness in labour market relations. There is now a significant literature on these concepts from legal, economic, and social-scientific perspectives. The chapters in this section provide a novel theoretical perspective on those concepts by examining the distinctive role of the criminal law in respect of vulnerability and precarious work relations. The fourth section is concerned with contexts of criminalisation. The chapters in this section explore the different labour market contexts in which criminalisation has occurred. The fifth section is concerned with criminalisation and enforcement, and it examines the variety of ways in which the criminal law is being used as an enforcement tool, either as an auxiliary support to civil enforcement or as a substitute for civil enforcement. Finally, the last section provides two comparative chapters by leading scholars in the US and Canada. These chapters provide a comparative perspective on the role of penal policy in labour law.

Cartel activity is prohibited under EU law by Article 101(1) TFEU. Firms violating this provision face severe punishment from the European Commission, the NCAs, and the national courts, which regularly impose stiff fines. Recently, however, it has been recognized that punishment should focus on the individuals within the firms responsible, as well as the firms themselves, leading to a growing tendency to criminalize cartel activity in the EU Member States. Some crucial challenges need to be met if the underlying enforcement objectives are to be achieved in practice without violating prevailing legal norms. First, given the severe consequences of a custodial sentence, criminal antitrust punishment must be justifiable in principle: a robust normative framework rationalizing the existence of criminal cartel sanctions is needed. Second, for it to be legitimate, antitrust criminalization should respect the mandatory legalities of the European jurisdiction in question, including the accused's due process rights and the principle of legal certainty. Finally, the correct practical measures (e.g., a criminal leniency policy and a correctly defined criminal cartel offence) are needed to ensure that the punishment achieves its aims in practice while maintaining its legitimacy. These challenges can be conceptualized respectively as theoretical, legal, and practical. They are analysed in this book to further the understanding of the complexity of the European antitrust criminalization process. The book also acknowledges that the challenges should not be considered in isolation and that, in fact, there is a dynamic relationship between them and that an effective antitrust criminalization policy recognizes and respects this complex interaction.

When it was published twenty-five years ago, Catharine MacKinnon's pathbreaking work Sexual Harassment of Working Women had a major impact on the development of sexual harassment law. The U.S. Supreme Court accepted her theory of sexual harassment in 1986. Here MacKinnon collaborates with eminent authorities to appraise what has been accomplished in the field and what still needs to be done. An introductory essay by Reva Siegel considers how sexual harassment came to be regulated as sex discrimination. Contributors discuss how law can best address sexual harassment, the importance and definition of consent and unwelcomeness, issues of same-sex harassment, questions of institutional responsibility for sexual harassment in both employment and education settings, considerations of freedom of speech, effects of sexual harassment doctrine on gender and racial justice, and transnational approaches to the problem. An afterword by MacKinnon assesses the changes wrought by sexual harassment law in the past quarter-century.

Dying to Work is a collection of short stories from and about workers who were injured or killed on the job. The stories are bookended by a brief history of safety laws that still today leave millions of workers without effective compensation and employers without any meaningful incentive to keep their workers safe. In the last part of the book, Dying to Work attempts to provide some answers to questions about worker safety, and to offer policy suggestions that may make American workers safer and employers more accountable. In the end, Dying to Work insists that Americans change their mindset that workplace death and injuries are caused by accidents.

This book investigates the extent to which the European Union intervenes, and should intervene, in domestic labour law. It examines the stated and potential rationales for EU intervention, and argues that there are considerable merits to be derived from separating out the integrationist, economic, and social arguments which have been deployed in defence of EU intervention. It critically considers the competence of the EU to act in this field, and demonstrates that proper regard for the subsidiarity and proportionality principles can contribute to the legitimacy of the EU. The book is informed by the ongoing debate on governance in Europe, and aims to provide insights into the implications of the shifts in policy-making technique. The intention is to provide a framework to enable the reader to think about the role that the EU has, and should, play in this field.

Labour law and social policy have long provided an arena within which key debates over the depth and pace of European integration have taken place. Increasingly, as the European Union's employment policy has matured, employment and economic policy discourses have come to displace discourses around social policy and social law, a displacement which has occurred in tandem with a shift from legislative harmonisation to the use of ‘soft law’ and governance by means of guidelines. This book charts the evolution of the European Employment Strategy and the new forms of governance to which it has given rise. It offers an interdisciplinary exploration of European social law and employment policy, scrutinising the law and economics of labour market regulation in the European context and responding to the economic critique of traditional notions of social protection. Through a detailed examination of the legal and economic underpinnings of the European Employment Strategy, this book outlines the implications of this strategy for labour law, social protection, and industrial relations within the EU. The book also provides a timely contribution to the growing literature on ‘new governance’ in the EU. This innovative form of governance has the potential to forge a middle course through the regulatory choices facing the EU: the choice over the appropriate level of regulation in the EU, whether national or supranational; that over the legitimate role for the state in regulating or deregulating the labour market; and ultimately, the choice between centralised harmonisation and regulatory competition.

The rise of the gig economy is disrupting business models across the globe. Platforms’ digital work intermediation has had a profound impact on traditional conceptions of the employment relationship. The completion of ‘tasks’, ‘gigs’, or ‘rides’ in the (digital) crowd fundamentally challenges our understanding of work in modern labour markets: gone are the stable employment relationships between firms and workers, replaced by a world in which everybody can be ‘their own boss’ and enjoy the rewards—and face the risks—of independent businesses. Is this the future of work? What are the benefits and challenges of crowdsourced work? How can we protect consumers and workers without stifling innovation? Humans as a Service provides a detailed account of the growth and operation of gig-economy platforms, and develops a blueprint for solutions to the problems facing on-demand workers, platforms, and their customers. Following a brief introduction to the growth and operation of on-demand platforms across the world, the book scrutinizes competing narratives about ‘gig’ work. Drawing on a wide range of case studies, it explores how claims of ‘disruptive innovation’ and ‘micro-entrepreneurship’ often obscure the realities of precarious work under strict algorithmic surveillance, and the return to a business model that has existed for centuries. Humans as a Service shows how employment law can address many of these problems: gigs, tasks, and rides are work—and should be regulated as such. A concluding chapter demonstrates the broader benefits of a level playing field for consumers, taxpayers, and innovative entrepreneurs.

Labour law is widely considered to be in crisis, at least by scholars of the field. This crisis has an obvious external dimension—labour law is attacked for impeding efficiency, flexibility and development; vilified for reducing employment and for favouring already well placed employees over less fortunate ones; and discredited for failing to cover the most vulnerable workers and workers in the ‘informal sector’. These are just some of the external challenges to labour law. There is also an internal challenge, as labour lawyers themselves increasingly question whether their discipline is conceptually coherent, relevant to the new empirical realities of the world of work, and normatively salient in the world as we now know it. The goal of this book is to respond to such fundamental challenges by asking the most fundamental questions: What is labour law for? How can it be justified? And what are the normative premises on which reforms should be based? There has been growing interest in such questions in recent years. The current book seeks to take this body of scholarship seriously and take it forward. Its aim is to provide, if not answers which satisfy everyone, at least intellectually nourishing food for thought for those interested in understanding, explaining and interpreting labour laws.

The latest title in the Oxford Monographs on Labour Law series, this study elucidates the general legal rules and principles of the law of unfair dismissal, as well as offering an account of the social, political, and philosophical context in which the idea of protection from unfair dismissal at work has developed and currently operates.

The book uses a Marxian inspired social ontological framework, and a genealogic method to explore the relationship between labour law, the market, and capitalist social relations. It advances a constitutive conception of the law–market and law–society ‘relationship’ that stresses law’s contradictory roles in the emergence and reproduction of capitalist social relations—and, relatedly, in the emergence, and reproduction, of the (capitalist) market, and explores this role in depth through a genealogical analysis of the social category of the wage. Tracing the evolution of the wage through legal discourse and the shifting repertoire of legal concepts (the ‘wage’, the ‘salary’, ‘remuneration’) through which it has been denoted over time, the book sheds new light on the problems of low pay and under-inclusive employment status, and on the role of the legal system in perpetuating, and potentially constituting, these problems. Spanning from the Norman conquest to the present day, and exploring issues as diverse as the decasualization of the docks; sweated labour; the truck system; tax credits, tips, and minimum wages, the book provides one of the most in-depth and comprehensive analyses of the wage to date, while, at the same time, offering a number of practical suggestions for labour law reform.

The book aims to contribute to current debates regarding the idea of labour law. In particular, it aims to assess the validity of the suggestion that old ways of thinking about the subject have become outdated. Detailed consideration is given to two such ‘old ways’: the idea of the labour constitution, developed by Hugo Sinzheimer in the early years of the Weimar Republic, and the principle of collective laissez-faire, elaborated by Otto Kahn-Freund in the 1950s. The question is then addressed as to whether and how these ideas could be abstracted from the political, economic, and social contexts within which they were developed so that they might still usefully be applied to the study of labour law. The central argument of the book is that the labour constitution can be developed so as to provide an ‘enduring idea of labour law’. That argument is constructed against a critique of the work of a number of British scholars who have argued in recent years that labour law scholarship ought to be reorientated to align more closely with the functioning of labour markets. As compared with the posited ‘law of the labour market’, the primary claim made for the idea of the labour constitution is that it highlights the inherently political nature of labour laws and institutions, as well as their economic functions. It provides a framework for analysing labour laws, labour markets, and labour market institutions which does not limit the capacity of scholarship in the field to retain its critical edge.

Throughout the industrial world, the discipline of labour law has fallen into deep philosophical and policy crisis, at the same time as new theoretical approaches make it a field of considerable intellectual ferment. Modern labour law evolved in a symbiotic relationship with a post-war institutional and policy agenda, the social, economic, and political underpinnings of which have gradually eroded in the context of accelerating international economic integration and wage-competition, a decline in the capacity of the nation-state to steer economic progress, the ascendancy of fiscal austerity and monetarism over Keynesian/welfare state politics, the appearance of post-industrial production models, the proliferation of contingent employment relationships, the fragmentation of class-based identities and the emergence of new social movements, and the significantly increased participation of women in paid work. These developments offer many appealing possibilities — the opportunity, for example, to contest the gender division of labour and re-think the boundaries between immigration and labour policy. However, they also hold out quite threatening prospects — including increased unemployment and inequality and the decline of workers' organizations and social participation — in the context of proliferating constraints imposed by international financial pressures on enacting redistributive social and economic policies. New strategies must be developed to meet these challenges. These chapters — which are the product of a transnational comparative dialogue among academics and practitioners in labour law and related legal fields, including social security, immigration, trade, and development — identify, analyse, and respond to some of the conceptual and policy challenges posed by globalization.

Are efforts to protect workers' rights compatible with the forces of globalization? How can minimum standards designed to protect labour rights be implemented in a world in which national labour law is more and more at the mercy of international forces beyond its control? The chapters in this volume argue that international agreements and institutions are of central importance if labour rights are to be protected in a globalized economy. This book explores some of the options that are open to governments, civil society, and the labour movement in the years ahead.

The emergence of a ‘labour market’ in industrial societies implies not just greater competition and increased mobility of economic resources, but also the specific form of the work relationship which is described by the idea of wage labour and its legal expression, the contract of employment. This book examines the evolution of the contract of employment in Britain through a close investigation of changes in its juridical form during and since the industrial revolution. The initial conditions of industrialization and the subsequent growth of a particular type of welfare state are shown to have decisively shaped the evolutionary path of British labour and social security law. In particular, the book argues that nature of the legal transition which accompanied industrialization in Britain cannot be adequately captured by the conventional idea of a movement from status to contract. What emerged from the industrial revolution was not a general model of the contract of employment, but rather a hierarchical conception of service, which originated in the Master and Servant Acts and was slowly assimilated into the common law. It was only as a result of the growing influence of collective bargaining and social legislation, and with the spread of large-scale enterprises and of bureaucratic forms of organization, that the modern term ‘employee’ began to be applied to all wage and salary earners. The concept of the contract of employment which is familiar to modern labour lawyers is thus a much more recent phenomenon than has been widely supposed. This has important implications for conceptualizations of the modern labour market, and for the way in which current proposals to move ‘beyond’ the employment model, in the face of intensifying technological and institutional change, should be addressed.

This book argues that a broad notion of ‘personal work relations’ should become the central organising idea for the future development of labour law. This concept is developed by drawing on extensive comparative research of the legal architecture of employment relations in national legal systems and EU law to analyse the traditional model of the contract of employment and the difficulties of using that traditional model to frame modern working relationships. The chapters then present a new model of the foundations of employment relationships, based on the concept of a ‘personal work nexus’, and explore the potential of the book's model in shaping labour law along the lines of the normative goal of ‘personality in work’, and its conceptual building blocks of ‘dignity’, ‘capability’, and ‘stability’. Throughout, the book analyses the interaction of domestic and EU employment law, and discusses the possibility of future legal harmonisation in the area. The book concludes by exploring the potential for a common framework for European employment law, in the context of broader debates surrounding the harmonisation of European private law.

In this groundbreaking book, Marshall presents a a regulatory plan for addressing poorly paid, precarious work in global supply chains. Aside from climate change, inequality and poverty remain the biggest crises of our age. While the top 1 per cent continues to make gains in their share of wealth, the number of low income people in precarious and insecure work is also increasing. In a unique approach that draws on legal sociology, political economy and regulatory studies, this book describes existing regulatory measures that have succeeded, but which have to date attracted little scholarly attention. It builds on these successful experiments to set out a vision for a new multi-level, international labour law that would increase minimum wages incrementally across all nations until they reach the level of a living wage.