El Salvador: activists challenge law allowing pre-employment HIV testing

On 24 October 2001, El Salvador's national legislature passed a law allowing employers to impose pre-employment HIV testing on job applicants, although it also prohibits employers from discriminating against those who test HIV-positive.     

Special report on labor and employment. Provider obligations under the Drug-Free Workplace Act

In view of the sanctions that may be taken by government agencies against employers, all providers should take their obligations under the Act seriously. The first step for each provider is to determine if it is subject to the Act or to any analogous state statutes. If so, the provider should take steps, if it has not already done so, to comply with the Act or applicable state legislation. While the Act has been criticized as a matter of social policy for not going further to prevent substance abuse in the workplace--by, for example, mandating drug testing or requiring sanctions against employees without the prerequisite of a criminal conviction--there is no question that the penalties it authorizes against employers do go far enough to warrant careful compliance with the Act's provisions.     

职场性骚扰雇主替代责任说质疑

雇主对职场中发生的性骚扰行为承担责任的性质,存在着替代责任说和自己责任说两种相对立的观点。解决职场性骚扰情况下雇主责任的承担有两种路径：侵权责任法和劳动法。通过侵权责任法解决职场性骚扰的责任,雇主承担对自己安全保障义务违反的不作为责任,属于过错责任,自己责任。在劳动社会保障法领域,雇主承担对劳动者保护的法定义务,应该提供给劳动者较好的工作环境,如果雇员违反法定义务致使雇员受到损害,雇主应该承担赔偿责任,是违反劳动法规定的法定义务承担的后果,其实质仍然是一种自己责任。     

Is "ten days" really ten days?--the National Labor Relations Act's strike notice requirement in the healthcare industry

Nearly thirty years ago, Congress amended the National Labor Relations Act (Act) and provided employees of healthcare institutions with the right to strike and picket. At the same time, Congress added a new Section 8(g) requiring a labor organization to provide a healthcare institution with ten days' notice before engaging in various types of concerted activity--primarily strikes and picketing--against the institution. Thus, Section 8(g) is an important statute for healthcare employers. But since the time Congress added Section 8(g), the National Labor Relations Board has taken various views on Section 8(g) and whether "ten days" is really ten days. This Note explores the purposes of Section 8(g), as well as the reach and limits of its language, noting areas in which the board may wish to reconsider its application of the statute. Ultimately, the Note provides a checklist for healthcare employers to keep in mind with respect to Section 8(g).     

Finger in the Dyke or the Floodgates Stemmed? Sections 29–40 of the Employment Act 2002

This article considers Sections 29–40 of the Employment Act 2002 in the context of post-War developments in labour relations culminating in the National Industrial Relations Court. It considers the development of Employment Tribunal which rather than being the last resort intended by the legislators, has become the first resort of complainants, often for trivial matters by employees; or by employers taking an extremely broad view of Gross Misconduct by employees. Due to the volume of cases and the shortage of Chairs, cases are constantly delayed and postponed. The article posits that these are the principle reason behind the framing of Sections 29–40 of the Employment Act 2002 which introduced a new Section 9(1)(a) into the Employment Tribunals Act 1995. This has given the Chair of an Employment Tribunal the authority to strike out a weak case at a Pre-Hearing Review that will strike the case out once and for all at this juncture. The aim is to encourage employers to have proper procedures and for employees to follow them. This article suggests that in fact the reforms will have the opposite effect; that they have introduced another layer of legal complexity which will further increase the number of cases brought before the Employment Tribunal.     

人道主义干涉在国际法中的地位

北约对南联盟的武力威胁和军事打击使人道主义干涉成为国际社会关注的焦点。本文从界定人道主义干涉的概念入手 ,分析了传统的人道主义干涉 ,认为其并未成为被普遍接受的习惯国际法 ;在研究了联合国成立以来的集体人道主义干涉、特别是 90年代的实践之后 ,进一步指出未经联合国安理会授权的任何单方面人道主义干涉都是非法的。最后 ,作者论述了对人道主义干涉限制的必要性 ,并从规范化的角度提出了人道主义干涉合法化的条件     

传统中国政治化惩贪例析——以唐前期为中心

传统中国政治斗争无处不在，在政治斗争的需要下，政治化惩贪应运而生。政治化惩贪是以惩贪为名，行打击政敌之实。专制政体下政治权力制衡的缺失是政治化惩贪产生的根本原因，官员多贪贿的事实及政治斗争的需要是政治化惩贪产生的直接原因。政治化惩贪对传统中国惩贪实践整体产生了深刻影响，使其表现出选择性办案、选择性不办案、用刑畸轻畸重等特点，惩贪的效果由此大打折扣，而传统中国的政治斗争也因此更趋激烈复杂。     

Stigma as a barrier to employment: mental disability and the Americans with Disabilities Act

In a controversial expansion of workplace civil rights, the 1990 Americans with Disability Act (ADA) extended anti-discrimination protection to individuals with "mental impairments." One of the most critical barriers to the employment of individuals with mental disabilities is the degree of social stigma such disabilities incur, and there is compelling evidence that employers have stigmatizing attitudes and have discriminated against those with mental disabilities. This study examines the role played by stigma in employers' response to the 1990 Americans with Disability Act (ADA). A stratified sample of one hundred ninety employers were surveyed in 1996-1997 in a major Southern metropolitan area. Telephone interviews were completed with one hundred seventeen employers (response rate of 61.6%). The article describes employers' experiences with employees with mental disabilities and accommodations, specific employment practices, and attitudes towards those with mental disabilities. Stigma played an important role in conformity to the ADA (operationalized as either hiring or having specific recruiting policies for hiring individuals with mental disabilities). Furthermore, employers expressing coercive (fear of a lawsuit) as opposed to normative (belief that it is the right thing to do) rationales for compliance were more likely to hold stigmatized attitudes. Employers' beliefs about mental disability form a crucial foundation for truly supportive work environments (those that value difference and diversity), and further research is needed to determine if over time the ADA is successful in changing attitudes as well as behavior.     

The legality of employee attitude surveys in union environments

Employee attitude surveys are becoming an increasingly popular tool for employers. A host of legal implications, such as the circumstances under which they can be used, what they can ask, and whether or not they are a subject of mandatory bargaining, arise when surveys are conducted by companies that have an incumbent union or by companies that are involved in union-organizing campaigns. The following article describes the survey process, outlines some of the inherent advantages and pitfalls, and examines the legal questions raised when surveys are used by nonunion employers, by employers with incumbent unions, and by employers who are involved in union-organizing-campaigns. It concludes with recommendations for employers that undertake attitude surveys.     

Employer remedies for work stoppages that violate no-strike provisions

An employer faced with a work stoppage that violates a contractual no-strike provision has several alternatives: the employer can seek an injunction against the strike, discipline employees involved in the strike, or attempt to recover damages for violations of the collective bargaining agreement. Each of these remedies, however, presents practical problems in terms of employer-employee relations as well as legal questions regarding the extent of relief available. In the following article, the author examines the remedies available to an employer when employees engage in activity that violates a no-strike provision. He also examines the impact of recent cases on an employer's ability to enforce a no-strike pledge.     

New tainted-blood class actions in Québec and Alberta

In two cases in Québec and Alberta, people infected with HIV and HCV through infected blood and blood products have successfully defended motions to strike out all or parts of their legal actions against federal and provincial governments and the Canadian Red Cross Society (CRCS). On 16 January 2003, the Québec Superior Court ruled that the plaintiffs in a class action could rely on the Krever Commission Report in their application for certification of a class proceeding. On 20 February 2003, the Alberta Court of Queen's Bench dismissed an application brought by the Canadian and Alberta governments to strike out the legal action brought against them. These cases illustrate that the settlement schemes proposed by the federal and provincial governments and the CRCS, and approved by the courts, have not put an end to the civil and constitutional claims brought by people seeking compensation for infection through tainted blood.     

Sickness Absence and the Court of Justice: Examining the Role of Fundamental Rights in EU Employment Law

Being absent from work due to sickness is a critical issue for individuals and their employers, but it has traditionally fallen outside the scope of EU employment legislation. This article argues that this is changing; it examines case‐law under the Working Time and Employment Equality Directives. The article considers the justifications that the Court of Justice has advanced to explain this expansion in EU employment law. It finds that the Court has, at times, invoked fundamental social rights as a basis for interpreting employment legislation in a manner favourable to workers. Yet the way in which the Court deploys rights‐based reasoning can be difficult to anticipate, not least the countervailing weight attached to the interests of employers. The case studies indicate that fundamental rights discourse offers a possible foundation for more extensive readings of employment legislation, but it is not a simple ‘trump card’ for advocates of stronger worker protection.     

Employee assistance programs: an employer's guide to emerging liability issues

Increasing numbers of employers are implementing employee assistance programs (EAPs) designed to assist employees with personal issues that affect their work performance. Studies show that EAPs can dramatically increase employee productivity, but the benefits from EAPs have been accompanied by a less welcome development: lawsuits filed against employers by employees who allege that they suffered harm in the course of obtaining services through their employers' EAPs. Although the potential for liability will always exist, the employer that adheres to certain guidelines will be able to minimize its risk and make its EAP well worth the investment.     

THE EFFECT OF CRIMINAL BACKGROUND CHECKS ON HIRING EX‐OFFENDERS*

Research Summary The rapid increase in the nation's incarceration rate over the past decade has raised questions about how to reintegrate a growing number of ex‐offenders successfully. Employment has been shown to be an important factor in reintegration, especially for men over the age of 27 years who characterize most individuals released from prison. This article explores this question using unique establishment‐level data collected in Los Angeles in 2001. On average, we replicate the now‐common finding that employer‐initiated criminal background checks are negatively related to the hiring of ex‐offenders. However, this negative effect is less than complete. The effect is strongly negative for those employers that are legally required to perform background checks, which is not surprising because these legal requirements to perform checks are paired with legal prohibitions against hiring ex‐offenders. However, some employers seem to perform checks to gain additional information about ex‐offenders (and thus hire more ex‐offenders than other employers), and checking seems to have no effect on hiring ex‐offenders for those employers not legally required to perform checks. Policy Implications One public policy initiative that has received considerable attention is to deny employers access to criminal history record information, which includes movements to “ban the box” that inquires about criminal history information on job applications. The assumption underlying this movement is that knowledge of ex‐offender status leads directly to a refusal to hire. The results of this analysis show that policy initiatives aimed at restricting background checks, particularly for those firms not legally required to perform checks, may not have the desired consequences of increasing ex‐offender employment. This result is consistent with an alternative view that some employers care about the characteristics of the criminal history record and use information about criminal history in a more nuanced, nondiscrete way.     

Privacy, Efficiency, and the Equality of Men and Women: A Revisionist View of Sex Discrimination in Employment

The Supreme Court's decision in City of Los Angeles Department of Water and Power v. Manhart has engendered a considerable debate, much of which has appeared in the pages of this Journal. Defenders of the Manhart decision take its critics to task for failure to appreciate the place of that decision in the overall jurisprudence of employment discrimination. In this article, the authors challenge the underlying conception of the law of sex discrimination that is said to dictate the result in Manhart. Far from erecting a per se rule against all sex classifications, the Civil Rights Act of 1964 is shown to recognize both the relevance of prevalent social norms about sex differences and the legitimacy of certain interests of employers as limited justifications for the maintenance of sex-conscious lines in some circumstances, a recognition that contrasts sharply with the statute's categorical prohibition on racial classifications. It follows from this discussion that Manhart's outcome was not ordained by the ethos of the laws against sex discrimination.     

论劳动者的罢工权

在法律上承认和规范劳动者的罢工权,防止非法罢工,不仅有利于劳动者劳动权益的维护,也有利于社会的稳定。罢工权不是孤立的,劳动法领域中的罢工权,是劳动者的一项劳动权利,是劳动者集体劳动权的重要组成部分,与劳动者组织工会的权利（团结权）、集体谈判的权利密不可分。劳动者享有法律所保护的合法罢工权。罢工基于维护劳动者的合法权益,局限于劳动关系领域,并要符合法律规定的程序。在法律上确立劳动者享有合法的罢工权后,如何保护依法罢工的劳动者的利益是法律必须面对和解决的重要问题,也是关系到劳动者罢工权是否能真正享有的保障。为了维护劳动者的权益,法律应当赋予劳动者罢工权,但当罢工影响到社会公共秩序的时候,罢工权就应该受到限制。     

家庭雇佣型家政工人工伤保险制度研究

家政工作存在风险是客观的,世界上一些国家和地区采取集体协商和国家指引的方式将家庭雇佣型家政工人排除在工伤保险之外的做法,不仅对该群体有失公允,而且难以有效化解家政工人与其雇主之间的诸多矛盾。考虑到家政工人的特殊性,建议我国未来家政工人工伤保险政策以工作时间作为权衡家政工人享受工伤保险权益的核心标准,将每周工作达到3天或者达到24小时的家政工人纳入工伤保险范畴,强制要求家庭雇主为该类家政工人购买工伤保险,同时,许可每周工作时间不到3天或者不到24小时的家政工人以自我雇佣者身份自行参加工伤保险。     

Censure Theory and Intuitions about Punishment

Many philosophers and laypeople have the following twointuitions about legal punishment: the state has a protanto moral reason to punish all those guilty ofbreaking a just law and to do so in proportion totheir guilt. Accepting that there can be overridingconsiderations not to punish all the guilty inproportion to their guilt, many philosophers stillconsider it a strike against any theory if it does notimply that there is always a supportive moral reasonto do so. In this paper, I demonstrate that censuretheory accounts for these intuitions much better thanany other theory, including forms of retributivismsuch as desert theory and fairness theory, and explainwhy censure theory is able to do so.     

Biological monitoring: the employer's dilemma

The industrial workplace contains many potential health hazards that not only can cause great harm to workers, but also can destroy the employers' economic stability. Often these hazards are documented and dealth with, but frequently they are unknown. When health-conscious employers monitor the physical well-being of their employees in an effort to avoid the terrible personal and economic costs these hazards can produce, they may be supplying their employees with the documentation necessary to recover financially for their industrial illnesses. This Article analyzes this dilemma confronting employers. It describes the many factors employers must consider when deciding whether to institute a monitoring process that takes full advantage of technological developments in medical care. The Article suggests an approach employers may take until some of the disincentives surrounding the implementation of monitoring are removed.