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CHAPTER 20 Labor and Employment Discrimination Law. General Directions of Labor Law Abroad. Employee Participation in Strategic Decisions: U.S. View (plants with more than 100 employees need 60 days notice). German Approach : grants workers a right of consultation.

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CHAPTER 20 Labor and Employment Discrimination Law


General directions of labor law abroad
General Directions of Labor Law Abroad

  • Employee Participation in Strategic Decisions:

    • U.S. View (plants with more than 100 employees need 60 days notice).

    • German Approach: grants workers a right of consultation.

    • Mandatory Employee Representation on Boards of Directors.

    • Japanese Approach.


Impediments to dismissal
Impediments to Dismissal

  • U.S.: “at will” employment very flexible, can be fired at any time, some exceptions (contracts, plant closing law).

  • Europe: just cause termination, employee representation on boards.

  • Impact of different legal constraints on business? Job creation? See the Kochi Hosocase.


Employment discrimination outside the united states
Employment Discrimination Outside the United States

  • Extraterritorial Application of U.S. Employment Discrimination Law.

    • VII and 1991 Civil Rights Act applies to firms outside the U.S. that are “under control” of U.S. firm. See the EEOC v. AramCo (Arab American Oil Co) case.

    • Exception if practice would violate law of host country.

    • In 2005, Shekoyan v. Sibley Int’l Corp. excluded a permanent US resident who worked abroad for US company.


Reyes gaono v north carolina growers
Reyes-Gaono v. North Carolina Growers

  • A Mexican national was told by NCGA official in Mexico that he was over 40 and thus not eligible for a job in N.C.

  • Issue: Does the ADEA apply extraterritorially?

  • Holding: No. Foreign nationals in foreign countries are not covered by the law.


Defenses to extraterritorial application of u s law
Defenses to Extraterritorial Application of U.S. Law

  • Three Defenses:

    • (1) Control By Foreign Person: Decision is made by “foreign person not controlled by an American employer”,

    • (2) Foreign Compulsion: The US Equal Employment law conflicts with host country’s laws so employer faces foreign compulsion (see the Mahoney case ), and

    • (3) BFOQ: Job requires specific trait such as religion or gender. Contained in both Title VII and ADA.


Foreign compulsion defense
Foreign Compulsion Defense

  • Mahoney v. RFE/RL, Inc.

  • The Court found that adherence to a foreign collective bargaining agreement requiring mandatory retirement at 65 was sufficient and although not a foreign law met the requirements of the statute.


Antidiscrimination laws outside the united states
Antidiscrimination Laws Outside the United States

  • Some convergence in outlawing discrimination, even in Japan, but different enforcement mechanisms.

  • EU Maternity Directive- 14 weeks at

    75% - 80% net salary (more generous than U.S. which does not require payment).

  • What about laws favoring discrimination based on national origin (Besguia Adoi case) or religion (the Bilka case )?


National origin bilka kaufhaus gmbh v karin weber
National Origin: Bilka-Kaufhaus GmbH v. Karin Weber

  • Exclusion of part-time employees from benefits and pension.

  • Is this discrimination when most of those part-time employees are women?

  • Court articulates an “effects” test justified for economic reasons.


Foreign laws permitting difficult work conditions
Foreign Laws Permitting Difficult Work Conditions

  • Work safety- how safe need the work environment be? What standards?

  • Unsafe Labor Conditions.

  • Child Labor.

  • Prison Labor.

  • Codes of Conduct.

  • What is the international norm for jurisdiction? See the Rio Tinto and Bridgestonecases.


Conclusion
Conclusion

  • US has proposed amendments to the WTO trade rules that tie labor standards to international trade.

  • 1997: Sanders Amendment: bans imports of goods made by forced child labor.

  • Role of NGOs?

  • Government Codes of Conduct?