Copyright (c) 2009 All rights reserved. http://works.bepress.com/marley_weiss Recent documents in Marley S. Weiss en-us Wed, 12 Aug 2009 05:10:01 PDT 3600 http://works.bepress.com/marley_weiss/10 http://works.bepress.com/marley_weiss/10 Wed, 12 Aug 2009 05:09:37 PDT Marley S. Weiss Labor Law International Law http://works.bepress.com/marley_weiss/8 http://works.bepress.com/marley_weiss/8 Tue, 12 May 2009 12:50:26 PDT Marley S. Weiss Labor Law Human Rights http://works.bepress.com/marley_weiss/6 http://works.bepress.com/marley_weiss/6 Wed, 11 Mar 2009 08:47:45 PDT Marley S. Weiss Labor Law http://works.bepress.com/marley_weiss/7 http://works.bepress.com/marley_weiss/7 Wed, 11 Mar 2009 08:47:45 PDT Marley S. Weiss Labor Law Employment Law http://works.bepress.com/marley_weiss/4 http://works.bepress.com/marley_weiss/4 Wed, 11 Mar 2009 08:47:45 PDT Marley S. Weiss Labor Law Comparative Law http://works.bepress.com/marley_weiss/5 http://works.bepress.com/marley_weiss/5 Wed, 11 Mar 2009 08:47:45 PDT Marley S. Weiss Employment Law Discrimination http://works.bepress.com/marley_weiss/3 http://works.bepress.com/marley_weiss/3 Wed, 11 Mar 2009 08:47:44 PDT Until the advent of binding "social clauses" in free trade arrangements, and incorporation of stronger social rights in the European Community treaties, the rapid widening and deepening of international commercial integration proceeded largely separate from international labor rights obligations. Inclusion of a "social clause" in a trade agreement ensures that the parties´ international labor rights commitments have equal dignity and binding force with their trade obligations. The threat of economic sanction for non-observance of labor commitments akin to the penalties for trade rule violations also may provide some "teeth" to induce compliance, unlike the lack of economic sanctions for violation of formally binding ILO and international human rights-based labor provisions. The implicit domestic political promise of trade negotiators, however, is that the social clause will operate as a circuit breaker in the feared downward spiral of domestic labor standards under pressure of free trade; the social clause functions as a political quid pro quo for trade liberalization. This paper argues that this bargain is largely illusory. Neither the typical human rights "naming and shaming" solution nor the usual national government-centered enforcement machinery provides realistic mechanisms to induce party-state compliance in the labor rights arena. The real parties in interest - employers, trade unions, and workers - are too disconnected from the international institutional process in most international regimes. Those benefiting through a form of unjust enrichment by a signatory country´s violations of its international labor commitments are institutionally insulated from any corresponding liability. Those suffering injury are institutionally excluded from ability to enforce the international obligations, and have no claim to recover compensation for their injuries caused by the government´s breach. The EU might provide a source of useful models for improving institutional arrangements and remedies, so as to ensure that "effective enforcement" becomes a meaningful term. Government reluctance to yield its sovereign control over the politically and economically delicate subject area of labor rights, however, presents an obdurate barrier to movement in this direction. Marley S. Weiss Labor Law International Law http://works.bepress.com/marley_weiss/2 http://works.bepress.com/marley_weiss/2 Wed, 11 Mar 2009 08:47:43 PDT The American collective bargaining system is in serious trouble, as is the employee benefits system providing pensions and health care benefits for millions of non-union as well as unionized workers and retirees. The portion of the labor force covered by collective bargaining has dropped so low that one can barely refer to it as a system. Simultaneously, the American private employer-based pension system is moving towards a crisis. Large employers with the finest pension plans, covering thousands of workers and retirees, in industry after industry, are terminating their pension plans, or replacing them with cheaper, weaker retirement programs, often while reorganizing under the American bankruptcy system. Pension benefits upon which retirees and their families have relied are suddenly, often dramatically, cut, as the expense and liability are transferred to the federal government pension benefit guaranty program, a back-up scheme which only covers specified portions of the original benefits. The health care system, too, largely employer-based, is beginning to stagger under the weight of employer reductions in coverage, for retirees as well as employees. These changes are all in the nature of broken promises, whether or not a contract technically has been breached: broken promises to individual workers and retirees, broken promises to trade unions, and on a grand scale, the broken promise of the American social contract.This paper will sketch out, in comparative perspective, some flaws in American labor law regarding the nature of the collective bargaining agreement (CBA), trade union representation in negotiating and enforcing CBAs, and treatment of long-term benefits promises to employees and retirees. It will suggest that the cumulative effect of these doctrinal contradictions has made possible the thwarting of the bargained-for, relied upon, expectations of workers and retirees, and has led to massive difficulties in the employee benefits system as well as in the collective bargaining regime. These aspects of both collective labor law and employee benefits law must be reconsidered if the system is to function soundly in the future. The American situation also may have implications for the pensions and health care systems of many other countries. Marley S. Weiss Employment Law http://works.bepress.com/marley_weiss/1 http://works.bepress.com/marley_weiss/1 Wed, 11 Mar 2009 08:47:42 PDT International labor standards are among the oldest international standards pertaining to the conduct of private, as well as public, economic actors. Far from being settled, however, nearly every aspect of the current international labor standards regime is in flux: the role of labor standards in the international legal, economic, political, and social order, as well as in the parallel domestic orders; the modes by which standards are brought into being; the manner and means of their implementation and enforcement; the degree to which they may be binding solely on nation-state parties, and enforceable only at their behest; and the extent to which private actors, such as employer associations, trade union associations, worker rights non-governmental organizations, and individuals, play roles in the creation and enforcement of international labor norms. Although the substantive content of international labor standards is changing at a far less blistering pace, important alterations in priorities for these standards also gradually are becoming manifest. This article sketches out the historical trajectory of transformation in the manner and means, participants and roles involved in creation, implementation and enforcement of international labor standards, as well as their content. It concludes with some speculative remarks about their future. The future of international labor standards may be more formal standards, covering fewer and fewer countries, companies and workers, posing ever greater obstacles to turning the law on the books into workers' reality in fact. On the other hand, innovative trade union and worker organizations are combining across boundaries to push the limits of transnational labor cooperation, pooling their economic and political power to improve each other's collective bargaining power. In the longer term, at least some of the workers of the world may unite, combining their shared collective leverage with the moral suasion of international norms, to make a reality of international labor standards. Marley S. Weiss Labor Law International Law