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Lawful Termination by the Employing Entity

MARK R. FREEDLAND FBA

in The Personal Employment Contract

This chapter forms the first in a sequence of four final chapters of this work which between them present and seek to develop a radical critique of the law concerning the termination and ... More

This chapter forms the first in a sequence of four final chapters of this work which between them present and seek to develop a radical critique of the law concerning the termination and transformation of personal work or employment contracts. It argues that the starting point for a set of concerns about the coherence of this body of law can be found in the dominant conception, of the powers of termination possessed by the employing entity, as essentially unfettered ones. This conception asserts itself as a less than fully reasoned or justified but constant feature of a body of jurisprudence about the termination of contracts of employment, which is torn between two genres of adjudication — one of which arises in the context of claims to common law and equitable remedies, while the other has developed in the very different context of adjudication about statutory employment rights, such as the right to remedies for unfair dismissal.Less

Theoretical Perspectives on Individual Employment Rights

Jeffrey Hilgert

in Hazard or Hardship: Crafting Global Norms on the Right to Refuse Unsafe Work

This chapter discusses some of the major theoretical perspectives in labor scholarship explaining the rise of the individual employment rights era. It identifies three key characteristics of ... More

This chapter discusses some of the major theoretical perspectives in labor scholarship explaining the rise of the individual employment rights era. It identifies three key characteristics of individual employment rights that distinguish them from collective and associational forms of workplace governance. The first is an absence of a negotiation with workers regarding what is to be protected. The second critical difference is that an obligation is placed on individual workers to seek enforcement, in contrast to enforcement through representation by a workers' collective institution such as a union. Third, individual employment rights afford no prescribed role for workers in direct day-today workplace governance. The chapter also presents a basic conceptual framework for this book, the idea of mobilization bias in labor policy.Less

Discrimination on the grounds of pregnancy and maternity

Evelyn Ellis and Philippa Watson

in EU Anti-Discrimination Law

This chapter brings together all the relevant provisions and case-law on pregnancy and maternity discrimination. The pivotal concepts of ‘pregnancy’ and ‘pregnant worker’ are analysed. The discussion ... More

This chapter brings together all the relevant provisions and case-law on pregnancy and maternity discrimination. The pivotal concepts of ‘pregnancy’ and ‘pregnant worker’ are analysed. The discussion then moves on to the role of the comparator, the health and safety obligations of the employer with respect to the pregnant worker, and employment rights during pregnancy and maternity leave. The right not to be dismissed is the subject of a specific section. The right to parental leave both under the new Parental Leave Directive and the Equal Treatment Directive is analysed The chapter ends with a discussion of the proposed amendments to the Pregnancy Directive.Less

2 Theoretical Perspectives on Individual Employment Rights

Jeffrey Hilgert

in Hazard or Hardship: Crafting Global Norms on the Right to Refuse Unsafe Work

This chapter discusses some of the major theoretical perspectives in labor scholarship explaining the rise of the individual employment rights era. It identifies three key characteristics of ... More

This chapter discusses some of the major theoretical perspectives in labor scholarship explaining the rise of the individual employment rights era. It identifies three key characteristics of individual employment rights that distinguish them from collective and associational forms of workplace governance. The first is an absence of a negotiation with workers regarding what is to be protected. The second critical difference is that an obligation is placed on individual workers to seek enforcement, in contrast to enforcement through representation by a workers' collective institution such as a union. Third, individual employment rights afford no prescribed role for workers in direct day-today workplace governance. The chapter also presents a basic conceptual framework for this book, the idea of mobilization bias in labor policy. Less

Highly Skilled Migration to the European Union and the United States

Metka Hercog and Anja Wiesbrock

in Adjusting to a World in Motion: Trends in Global Migration and Migration Policy

This chapter explores how European countries can improve their position in the international competition for talent. It examines existing frameworks on highly skilled migration in three EU ... More

This chapter explores how European countries can improve their position in the international competition for talent. It examines existing frameworks on highly skilled migration in three EU states—Germany, the Netherlands, and the United Kingdom—and compares their frameworks to labor migration policy in the United States, their main competitor. Each EU country has recently introduced immigration policies that target skilled migrants. The analysis finds that these new policies are more favorable than they use to be toward high-skilled workers on eligibility criteria, special provision for young migrants, validity of permits and access to permanent residence, family migration options, employment rights, and social security provisions. The results also indicate that now, in many aspects, these countries are more favorable to high-skilled migrants than the United States. However, these policies are still works in progress, and as a result, the United States continues to be more attractive to high-skilled immigrants, and a more popular destination.Less

The emergence of policy supporting working carers: developments in six countries

Sue Yeandle, Teppo Kröger, Bettina Cass, Yueh-Ching Chou, Masaya Shimmei, and Marta Szebehely

in Combining paid work and family care: Policies and experiences in international perspective

This chapter presents developments in public policy affecting carers of working age in the six countries included in the book: Australia, England, Finland, Sweden, Japan and Taiwan. It briefly ... More

This chapter presents developments in public policy affecting carers of working age in the six countries included in the book: Australia, England, Finland, Sweden, Japan and Taiwan. It briefly outlines the broad approach taken to supporting or involving carers in each type of welfare system. It then explains in more detail what services are available to support carers of working age; what rights and entitlements carers of working age have in each country when in employment; and the financial support available to carers of working age. These can include carers’ benefits, income support for carers disconnected from the labour market, payments to care, cash-for-care payments to carers enabling them to purchase alternative care support, and payments to carers to offset the extra costs of caring. The chapter also considers the role of voluntary organisations in supporting carers and in lobbying for better public policy carer support in each of the six countries. It concludes by highlighting the policy variations identified in the six countries.Less

Life Story: Sid Tegler

in Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities

The emphasis of the Americans with Disabilites Act (ADA) on employment rights in achieving inclusion for persons with disabilities acknowledges the relationship between identity and work for all ... More

The emphasis of the Americans with Disabilites Act (ADA) on employment rights in achieving inclusion for persons with disabilities acknowledges the relationship between identity and work for all Americans. This chapter explores connections between ADA employment rights and the efforts of adults with disabilities to transform their identities by participating more fully as members of the American workforce. To achieve inclusion, persons with disabilities—Sid Tegler is but one example—must overcome deeply rooted practices and perceptions that contribute to their exclusion from employment. Employees are often selected on the basis of stereotyped assumptions about the appropriate identity of jobholders. Understandings about employment filter back into the earliest stages of socialization, education, and identity formation. A disability that is perceived to limit or preclude employment fundamentally affects identity formation and preparation for adult life from an early age. The culture of work in American society shapes the very practices of employment and perceptions of identity that the ADA seeks to change.Less

Employment Rights and Industrial Policy

Paul L. Latreille and Richard Saundry

in New Perspectives on Industrial Policy for a Modern Britain

This chapter explores the case of employment rights within a new industrial policy framework. The chapter provides a critical assessment of recent policies based on the (unfounded) notion that ... More

This chapter explores the case of employment rights within a new industrial policy framework. The chapter provides a critical assessment of recent policies based on the (unfounded) notion that (further) deregulation is likely to raise business competitiveness by reducing employment costs. The chapter argues that while such policies are typically predicated on a ‘race to the bottom’, the weakening of employment rights can actually be counterproductive, since it may lead to ‘lower employee commitment, more perfunctory performance and high rates of employee turnover’, thus adversely impacting company performance. The chapter argues there is a need to recognize the long-term mutual interests between employers and employees, and resolve conflicts possibly through greater internal mediation and workplace institutions. The chapter concludes that ‘high road’ industrial strategy might therefore be enhanced by promoting a greater balance in the respective interests of employers and employees.Less

Using Criminal Law to Enforce Statutory Employment Rights

David Cabrelli

in Criminality at Work

This chapter examines the current terrain of criminal law as a technique of labour market regulation. It identifies a range of possible interactions between the criminal law and civil law in the ... More

This chapter examines the current terrain of criminal law as a technique of labour market regulation. It identifies a range of possible interactions between the criminal law and civil law in the legal enforcement of labour standards. Sometimes fundamental labour rights, such as the right not to be unfairly dismissed or the right not to be discriminated against, are protected exclusively through a ‘private’ enforcement model at the initiative of the individual right-holder. Sometimes there will be exclusive enforcement through the criminal law with no private right of civil action, as under the Health and Safety at Work Act 1974. Finally, there may be mixed enforcement regimes where there is a combination of criminal and civil measures linked to specific statutory rights, as with the enforcement of the National Minimum Wage Act 1998.Less

Government Support for Indianpreneurs: Challenges and Conflicts

Courtney Lewis

in Sovereign Entrepreneurs: Cherokee Small-Business Owners and the Making of Economic Sovereignty

The EBCI government recognizes that small- business owners on the Qualla Boundary face very distinctive challenges, and its sovereign status allows it to aid in ways particular to Native Nations. ... More

The EBCI government recognizes that small- business owners on the Qualla Boundary face very distinctive challenges, and its sovereign status allows it to aid in ways particular to Native Nations. These small- business entrepreneurs have access to a variety of valuable support mechanisms, ranging from intergenerational business advantages (as seen in family enterprises) to federal and Native Nation government interventions, which can enhance opportunities and mitigate challenges. It is in these relationships that we see how Native Nations deploy economic sovereignty in a small- business context. The EBCI government offers support specific to the needs of American Indian businesses located on trust land and for Eastern Band business owners. This includes financial support (e.g., loans – especially those that address the needs of trust land as collateral), the establishment of their own Tribal Employment Rights Commission (TERO) office, small business training (such as the Indianpreneurship course), and the managing of their Chamber of Commerce.Less

Reconciling work and care for parent-carers of disabled children in Australia and England: uncertain progress

Sue Yeandle and kylie valentine

in Combining paid work and family care: Policies and experiences in international perspective

This chapter focuses on issues for parents of disabled children in reconciling work and care in Australia and England. It considers the prevalence of disability among children and points out that in ... More

This chapter focuses on issues for parents of disabled children in reconciling work and care in Australia and England. It considers the prevalence of disability among children and points out that in both countries almost all children with disabilities live with their parents. The chapter highlights the financial difficulties many parents face when raising a disabled child, noting that in their case parental financial and caring investments often involve life-long commitments to their child’s wellbeing, and the impact their care frequently has on their opportunities to participate in paid work. The chapter shows that women are particularly affected by work-care reconciliation difficulties in such families, which often find that the services and support their children need are offered in ways which make combining work and care difficult. Attention is drawn to the shifting policy agenda affecting families with disabled children in both countries, which includes both improvements in and risks for, these families in changing socio-economic contexts. While in both countries parents in these families have been accorded some employment rights in recognition of their additional needs, they are still left at a significant economic and labour market disadvantage compared with other parents.Less

Hosting Workers’ Rights Training Sessions

Kim Bobo and Marién Casillas Pabellón

in The Worker Center Handbook: A Practical Guide for Starting and Building the New Labor Movement

This chapter discusses various approaches that have been used by worker centers to develop and conduct workers’ rights training sessions. One of the most fundamental things worker centers do is ... More

This chapter discusses various approaches that have been used by worker centers to develop and conduct workers’ rights training sessions. One of the most fundamental things worker centers do is educate workers about their employment rights and organize them to protect these rights and improve conditions in their workplaces. Every new worker center offers some sort of workers’ rights training. The sessions are engaging, build on workers’ experience, reflect understanding about how the political and economic system is not serving workers, and involve workers in figuring out their own solutions. This chapter offers suggestions on how a worker center can grow its expertise on workers’ rights, offer regular sessions, conduct training sessions outdoors and at other organizations’ locations, develop training goals, and use popular education styles of education and training. It also describes popular education training resources on workers’ rights and leadership development, including comic books and health and safety training materials.Less

Labour Exploitation and Posted Workers in the European Construction Industry

Jon Davies

in European White-Collar Crime: Exploring the Nature of European Realities

When considering what is ‘European’ about white-collar and corporate crime, this essay examines exploitative labour practices in the European construction industry, especially in relation to the ... More

When considering what is ‘European’ about white-collar and corporate crime, this essay examines exploitative labour practices in the European construction industry, especially in relation to the notion of ‘posted workers’, which is a distinct EU phenomenon. Since employers arrange temporary posting of workers to another country under free movement of services rules, this leaves workers dependent on arrangements made by their employers, which exposes them to poor accommodation provisions, lower pay than local workers receive, as well as increased segregation from local populations. Companies often use worker posting as a way to avoid regulatory oversight, thereby reducing their own costs. Given that companies are in a prime position to mistreat employees and posted workers while worsening their workplace conditions, these distinctly European processes are relevant to contemporary discussions in corporate criminology, which may not traditionally view the harmful consequences of posted working as ‘crimes’.Less

Conclusions: Control in the Twenty-First Century

Alex J. Wood

in Despotism on Demand: How Power Operates in the Flexible Workplace

This concluding chapter explains that the findings from ConflictCo and PartnershipCo suggest that a form of flexible despotism is key for understanding workplace control of workers in the ... More

This concluding chapter explains that the findings from ConflictCo and PartnershipCo suggest that a form of flexible despotism is key for understanding workplace control of workers in the twenty-first century. It considers how the form that flexible despotism takes is modified by the differing levels of bargaining power of workers. Specifically, the chapter looks at how the provision of greater employment rights and union protection leads to a more progressive form of flexible despotism—but one in which precarious scheduling nonetheless remains central to workplace control. This account of power at work provides a valuable insight into the experiences of control of a large number of postindustrial workers in the on-demand economy. The chapter then reflects on the implications for the future of work in the on-demand economy and assesses the forms of workplace control that are likely to achieve prominence as the century progresses.Less