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Chapter 3 describes the principle of primacy of reality in Latin America, namely, in Argentina, Brazil, Chile, and Uruguay. The principle is also contained in the International Labor Organization’s Recommendation 198. The principle posits that facts must be given preference over what parties, particularly employers, state in legal texts, documents, and agreements. It is particularly important when determining threshold questions in labor law, such as employee and employer status. While employers might deny an employment relationship given a formal agreement to hire workers as independent contractors, the facts might show otherwise. However, the chapter also argues that primacy of reality depends on the principle of protection and in dubio pro operario to resolve questions when the facts are not dispositive given vague or missing rules. The chapter then searches primacy of reality in the United States and finds it in various employment tests, such as the common law control test. It is also finds it in employer tests of joint employer status. However, many of those tests remain vague, requiring supplementation with the U.S. versions of in dubio pro operario, i.e., liberal construction of the statutes that derogate the common law, and with legislative purpose. Primacy of reality makes it even more important for legal operators to be cognizant of labor law principles and, principally, the protective principle.

This chapter, the book’s conclusion, summarizes the book’s main points and generally describes how the U.S. case illuminates the utility of Latin America and principled labor law for the rest of the world. It argues that, despite globalization, neoliberalism, labor law crises, and whatnot, many countries have deep traditions, legal and otherwise, that support protecting the weak and, as such, the protective principle and its correlative principles, primacy of reality, nonwaiver, and continuity. If the United States, one of the least labor-protective jurisdictions in the developed world, has the potential of having a labor-protective jurisprudence, other countries might do even better than the United States if they ascribe to principled labor law. In fact, the chapter briefly shows how the United Kingdom’s courts acknowledge primacy of reality (fact) and the protective principle in recent cases dealing with “gig” work. The conclusion also acknowledges that the book has been partial to state-enforced labor law, discussing little the importance of freedom of association. However, it asserts that freedom of association remains a necessary aspect for workers’ rights. As such, the book has provided a necessary but still incomplete toolbox for robust labor law. It concludes by underscoring the need for labor-protective jurisprudence in developed and developing countries alike, and the relevance of Latin America for at least part of that task.