Category Archives: Employment and Labour Law
Eric Posner, ‘The Economic Basis of the Independent Contractor/Employee Distinction’
ABSTRACT In recent years, a controversy has erupted over the distinction between employees and independent contractors. Commentators have argued that in the modern gig economy, many people traditionally classified as independent contractors are as vulnerable as employees and should be granted the legal protections that employees alone normally enjoy. However, the distinction between the two […]
Matt Malone, ‘Non-Competes and Protections for Confidential Information and Trade Secrets: Reconsidering the Public Interest’
ABSTRACT Restrictive covenants in employment agreements have become a major tool of employment and intellectual property regulation over the last three decades. While the Canadian law of restrictive covenants has undergone minimal change during this time, reforms to the law of confidential information and trade secrets and sustained scholarly critique on the adverse policy impacts […]
Diamond Ashiagbor, ‘Race and Colonialism in the Construction of Labour Markets and Precarity’
ABSTRACT This article explores the interconnections and continuities between racial inequalities in the contemporary labour market and the legacies of colonialism and racial distinctions woven into the evolution of market economy. It argues that race is embedded in the legal form by which labour is regulated. In its focus on the legal relations between individual […]
Noel Whiteside, ‘Before the Gig Economy: UK Employment Policy and the Casual Labour Question’
ABSTRACT Focussing on the UK, this paper considers how employment has been understood and identifies the policies pursued to promote specific models of working life over the course of the twentieth century. In recent decades, jobs on offer in Britain have become increasingly precarious, a trend actively promoted by governments of all political complexions. Labour […]
‘What If I Told You That Employer Power Is a Legal Construct’
Gali Racabi, ‘Abolish the Employer Prerogative, Unleash Work Law’, 43 Berkeley Journal of Employment and Labor Law (forthcoming), available at SSRN. What is an ’employer’, and what can it do? And what role does law play in answering those questions? In this understated yet radical new piece – ‘Abolish the Employer Prerogative, Unleash Work Law’ […]
Matthew Finkin, ‘Hard Bargains: Economic Duress in German, French, and the US Employment Law’
ABSTRACT This essay, to appear in Festschrift für Werner F. Ebke zum 70. Geburstag (Boris Paal, Dörte Poelzig and Oliver Fehrenbacher eds), takes up where Jack Dawson left off in ‘Economic Duress in French and German Law’, 11 Tulane Law Review 345 (1937). A contract made under duress is voidable. Such was the blackletter rule […]
Diamond Ashiagbor, ‘Race and Colonialism in the Construction of Labour Markets and Precarity’
ABSTRACT This article explores the interconnections and continuities between racial inequalities in the contemporary labour market and the legacies of colonialism and racial distinctions woven into the evolution of market economy. It argues that race is embedded in the legal form by which labour is regulated. In its focus on the legal relations between individual […]
Pauline Bomball, ‘Contractual Autonomy and Public Policy in Australian Labour Law’
ABSTRACT Recent changes in the nature of work relationships have drawn into sharp focus the way that employing entities may disguise employees as independent contractors and thereby remove those employees from the protective domain of labour law. In many cases, the avoidance of labour statutes is facilitated by the use of contractual terms that disclaim […]
Heise and Sherwyn, ‘Sexual Harassment: A Doctrinal Examination of the Law, An Empirical Examination of Employer Liability, and A Question About NDAs – Because Complex Problems Do Not Have Simple Solutions’
ABSTRACT The #MeToo movement casts critical light on the pervasive nature of sexual harassment, particularly in the employment context, and continues to motivate a number of initiatives that address important social and workplace ills. The problems this movement has uncovered, however, run much deeper and likely exceed the scope and capacity of many of the […]
Sia, Cornish and Tranter, ‘Fired for Facebook … terminated for Tinder: dismissal for social media misconduct in New Zealand’
ABSTRACT This article reports the findings of a qualitative study of first instance New Zealand employment tribunal decisions concerned with employee dismissal for social media misconduct. There are two main findings. The first relates to the legal approach to employee dismissal for social media misconduct developing in New Zealand. The decisions show New Zealand decision-makers […]