Conclusion

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.

The Return of Labor Principles: Conflict or Harmony?

Chapter 6 acknowledges that labor law principles are not the end-all for all labor law cases and controversies. Labor law may conflict with other laws and their principles, complicating adjudication. The chapter discusses two major conflicts between labor law and other law, particularly in the United States, but likely also present elsewhere: constitutional rights concerning property and free speech. The U.S. Supreme Court has held in ways that essentially sustain that labor law conflicts with property rights and free speech and, in addition, must cede space to property rights and free speech. The U.S. doctrine of permanent strike replacements, which violates international labor standards, is based on protecting employer property rights. The recent Janus v. AFSCME decision outlawing compulsory union service fees in the public sector is based on protecting individual free speech. But such conflicts need not be. By understanding labor law principles and how labor norms operate, we should recognize that labor law protects workers’ property rights and their capacity to consume, which better guarantees the health of capitalism and societal property rights generally. Moreover, labor law provides a voice to workers, who would be otherwise subordinated. As long as labor norms stem from democratic processes, labor norms should respect constitutional free speech rights. Labor law can thus live side by side with important constitutional principles. Given the importance of property rights and free speech in contemporary, liberal societies, the U.S. case can help warn other jurisdictions from heading down the same erroneous jurisprudential path.

Continuity

Chapter 5 describes the principle of continuity, also called the principle of “stability” or “permanence,” in Argentina, Brazil, Chile, and Uruguay. The principle presumes employment contracts of indefinite duration where employers must provide cause to terminate the contract. The chapter describes how continuity provides judges and other adjudicators with the authority to protect workers against unfair dismissal, reinforce employer obligations despite contract modification and successorship, and reform precarious contracts into standard contracts of employment. The chapter then describes the uneven and weaker presence of continuity in the United States due to employment at will. It argues that employment at will needs to be derogated by statute, likely state by state. But despite the need to derogate employment at will, the chapter also underscores that about 15 percent of the U.S. workforce, that one employed in the public sector and in the unionized private sector, is not covered by employment at will. Moreover, even under employment at will, many private sector employees are covered by antidiscrimination, antiretaliation, tort, and public policies that together concoct a law of wrongful dismissal. Hence, while weak and uneven, some form of employment stability does pervade in the United States.

Primacy of Reality

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.

Nonwaiver

Chapter 4 describes the principle of nonwaiver in Latin America focusing on Argentina, Brazil, Chile, and Uruguay. It posits that employers and workers cannot waive labor rights, given by law, through contract. It shows how the principle is expressly stated in some positive law, in court opinions, and in legal scholarship. It also details how the principle is typically applied in controversies over contract terms and claim settlements. The chapter also shows that the principle surfaces in Latin American cases related to contract modification and novation, even when such contracts contain terms that meet or exceed minimum labor standards. Second, the chapter finds a nonwaiver principle in the United States, mostly in its protection of free labor under the Thirteenth Amendment and in the positive labor law and jurisprudence. However, the chapter also focuses on the particular problem of so-called “procedural” waivers sanctioned by the U.S. Supreme Court’s coerced readings of the Federal Arbitration Act (FAA). The U.S. Supreme Court permits employers to require employees to sign agreements to arbitrate legal claims, even if those legal claims are class or collective in scope. Evidence clearly shows that such “procedural waivers” undermine substantial labor rights. Because the U.S. Supreme Court has already ruled on the issue, we argue that such waivers need to either be legally banned or regulated by Congress, under its Thirteenth Amendment authority, so as to not undo workers’ rights in the United States and force workers to agree to terms they likely oppose. In fact, we argue that regulated arbitration might actually help to create legitimate labor courts in the United States, which that country still lacks.

Introduction

This chapter introduces the book’s main goal: to provide a “principled labor law” method to decide hard cases. It describes principled labor law as a Latin American method embedded in the principles of protection, primacy of reality, nonwaiver, and continuity. It argues that principled labor law can be useful even in the least likely case of labor protection, the United States, and explains how, if useful for the United States, it is likely helpful for other jurisdictions. It describes how principled labor law complements perspectives favoring freedom of association—the so-called labor constitution—but opposes views attempting to eviscerate the idea of protecting weaker parties from contemporary law, or those that envision labor law as merely a regulatory endeavor. It also describes how principled labor law shares similarities with the purposive perspective of Guy Davidov, but also contrasts with that perspective, to the extent principled labor law is mostly concerned, and is, in fact, “rulified” in favor of labor protection. It explains that principled labor law seems particularly needed to evade problems of legal endogeneity. The chapter concludes by arguing that the book provides a countercultural narrative for labor law in the United States that is also consonant with international labor standards and, as such, better brings U.S. labor law into the mainstream. Principled labor law may be less countercultural in other countries, but may also help there to renew jurisdictional commitments in favor of labor protection.

Protection

Chapter 2 describes the protective principle and in dubio pro operario in Latin America, namely, in Argentina, Brazil, Chile, and Uruguay. It also describes worker protection in International Labor Organization (ILO) instruments and other international human rights texts. It then searches for the protective principle and in dubio pro operario in the United States. It argues that the protective principle can be found in the Thirteenth Amendment, the National Labor Relations Act (NLRA), and the Fair Labor Standards Act (FLSA). The Thirteenth Amendment bans involuntary servitude and mandates Congress to protect free labor. The chapter even finds something akin to in dubio pro operario in the general way that U.S. jurisprudence calls for “liberal” interpretations of statutes that derogate the common law. It further finds the protective principle in U.S. purposive methods of statutory interpretation, applied by some judges. However, those broad, purposive, worker-protective interpretations of the law have given way to more reluctant and narrow readings of the labor laws—and without good reasons. Finally, we address how employment at will narrows worker protection in the United States. While U.S. labor law has grown less labor protective, judges could reverse existing jurisprudence through the existing legal texts. Some statutory reform is, however, desirable, especially if anchored in the Thirteenth Amendment and if it derogates employment at will.