Whistleblowers, the Public Interest, and the Public Interest Disclosure Act 1998

Corporate crime and organisational deviance raise complex legal issues. An initial problem lies simply in identifying when such wrongdoing has occurred. Here, whistleblowers can perform a valuable service. However, publicized cases suggest that they often pay dearly for their candour, encountering unfair sanctions at work. In Britain, the Public Interest Disclosure Act 1998 seeks to protect "good-faith" whistleblowers from employer reprisals. In the wake of this legislation, the authors examine whistleblowing from a socio-legal perspective, asking what motivates whistleblowers, how do institutions respond to them, can legislation adequately protect them, and what effects will PIDA have on whistleblowing, employment practices, the culture of the workplace and, ultimately, society.     

Finnish guidelines for workplace drug testing

The Finnish guidelines for workplace drug testing outlined here represent what is considered the best practice for workplace drug testing to be followed in Finland. The guidelines are based on the act on the protection of privacy in working life (759/2004), the occupational health care act (1383/2001) and the decree on workplace drug testing (218/2005). They start by defining situations in which workplace testing is allowed and continue up to the point where the certificate is submitted to the employer. The role of the occupational health care system is crucial in the procedure. The guidelines include the best practice procedures to be followed by laboratories providing workplace drug testing services. The laboratory recommendations are based on general principles established internationally. In the Finnish guidelines, accreditation is an absolute prerequisite for a laboratory functioning as a workplace drug testing laboratory. The laboratory section of the guidelines includes specimen collection, laboratory organisation, analysis procedure, quality assurance and quality control measures. These largely conform to the European laboratory guidelines for legally defensible workplace drug testing published by the European workplace drug testing society (EWDTS), but there are differences. In addition to using urine as a specimen, the Finnish guidelines also encompass blood.     

"犯罪人-被害人和解"的制度设计与司法践行

“犯罪人-被害人和解”可谓是当下西方刑事法领域的焦点性话题之一。作为“犯罪人-被害人和解”运动的有力推进者,德国的立法与实践动向,尚未得到国内学界的应有关注。文章不仅对德国“犯罪人-被害人和解”制度的整体立法设计进行了分析,而且对“犯罪人-被害人和解”在德国实务上的具体运作、判例发展亦予以近距离观察。透过此种立法与司法的交错考察,文章试图以德国经验为基点,进一步反思“犯罪人-被害人和解”践行的成果、问题及可能出路,以提供前瞻性的、比较性的借鉴。     

艾滋病防治的世界性法律行动与中国的法律实践

面对艾滋病对社会经济的巨大影响,国际社会和各个国家纷纷通过立法来找寻艾滋病防治的有效路径。近年来的相关研究业已表明,人权保护乃是艾滋病防治工作和艾滋病立法的重要内容。20多年来世界性艾滋病立法行动对人权保护给予了足够的重视。同时,在国际社会的指引下,中国的艾滋病防治立法中也有了更多人权保护的规定。     

被害人视角与刑法理论的重构

被害人的公法主体地位的确立构成在刑事实体法领域引入被害人视角的正当性根据。整合规范的被害人视角之于刑事实体法具有重要的意义。它不仅将促成对刑罚、危害、刑事责任等基本范畴的重构,而且对刑事立法、刑法解释与司法推理具有指导作用,同时还影响到量刑理论及实务。     

Sex crime legislation: Proactive and anti-therapeutic effects

Therapeutic jurisprudence may have its major role within law practice, but analysis of the law from a therapeutic perspective is a task that should not be neglected; how a piece of legislation is designed and formulated certainly influences the therapeutic outcome of a legal process. This article uses sex legislation as an example to demonstrate how the old rape law based on coercion has anti-therapeutic effects on rape victims. If the law requires resistance, it implies that a woman is sexually available until she resists physically, resulting in an attitude that a woman reporting rape without injuries should be mistrusted. This mistrust of the victim and the victim's attendant feelings of self-blame aggravate the victim's trauma. On the other hand, a modern rape law based on lack of consent gives the signal that a woman is not available until she has given her consent, resulting in a different starting position for the investigation. Since the will of the victim must be respected, the victim herself must be respected in the legal process. Furthermore, being able to tell one's story in a respectful atmosphere can be more important for the well-being of the victim than the outcome of the reported case.     

Reinstatement of the sexual harasser: the conflict between federal labor law and Title VII

Greater numbers of employers are adopting and vigorously enforcing policies prohibiting sexual harassment in the workplace. Discipline, including possible termination of employment, often is prescribed for the violation of such policies. When employees are represented by a union and covered by a collective bargaining agreement, final decisions relating to discipline often are made by arbitrators pursuant to the agreement's grievance and arbitration procedure. For a variety of reasons, arbitrators may decide that a lesser form of discipline than that imposed by the employer is warranted for acts of sexual harassment. Such arbitration awards present a substantial conflict between two compelling public policies--the public policy favoring the private resolution of workplace disputes and the public policy against sexual harassment. This article will address the several federal courts of appeals' decisions that have attempted to resolve this conflict.     

Adolescents and Sexual Violations Online

The article describes and discusses sexual violations online using the recent Danish case law and legislation as an example and drawing upon the United Nation Convention on the Rights of the Child. It is argued that the legislation does not provide a sufficient solution to the problems connected to digital violations of the physical integrity of the victim.     

Workplace drug testing in Europe

Not much information is available on workplace drug testing (WDT) in Europe. There is no specific legislation and there are no generally accepted guidelines. Many companies establish a drug policy with little or no provisions for drug testing. Often, testing is performed on-site by occupational physicians, with little or no quality control, no systematic confirmation of positives, no chain of custody and no adulteration testing. In some parts of Europe, e.g. in the United Kingdom and some Scandinavian countries, WDT is increasing in importance, but it is not as widespread as in USA. The most frequently performed tests are amphetamines, cannabinoids, cocaine, opiates and alcohol. The percentage of positives is variable, but seems to decrease with the years following the introduction of WDT. Cannabis is the drug that is most frequently found.Recently, the European Workplace Drug Testing Society (EWDTS) was founded, with the aims to ensure that WDT in Europe is performed to a defined quality standard and in a legally secured way and to provide an independent forum for all aspects of WDT.A working group in the United Kingdom has recently finalised the United Kingdom laboratory guidelines for legally defensible WDT and discussions are under way with the EWDTS to establish common guidelines.Many efforts will be needed to establish WDT as an accepted part of a company policy on drugs: establishing and maintaining the confidence in the results of the laboratory, establishing the legal status of WDT, preserving the privacy and rights of the employees, proving the cost-effectiveness of WDT in a European context, finding a balance between strict guidelines and enough flexibility to tailor testing to the changing needs. It is hoped that the exchange of experience between different countries will contribute to reaching these goals.     

The UNGASS Declaration of Commitment on HIV/AIDS: a review of legislation in six Southern African countries

This article reviews legislation of six Southern African countries to determine what progress has been made after the UNGASS Declaration of Commitment on HIV/AIDS, particularly with regard to paragraph 58 on human rights and paragraph 69 on rights in the workplace. The article notes the complexities introduced by the coexistence of customary laws and practices and codified law. It describes certain features of specific codified and customized laws. It concludes that, with the possible exception of South Africa, the countries under review have not responded to the challenges the HIV/AIDS epidemic have confronted their legal systems with. They have resorted in the first instance to criminal law, and have allowed discriminatory customary laws and practices, which propel the epidemic, to continue to operate.     

“实际劳动权”的理念塑造与现实作用

劳动者是否有权要求实际从事约定的工作,对这一问题我国现行劳动法中没有明确的答案,学术界也基本没有相关讨论,现实生活中,用人单位随意安排劳动者＂待岗＂或者＂调职＂的现象却不少见。德国法经过多年司法实践的发展,逐步承认了一般条件下用人单位有义务在劳动关系存续期间按照合同约定安排劳动者工作,完善了对劳动者＂实际劳动权＂的保护。借鉴德国法的经验,在我国确立＂实际劳动权＂,不仅体现了劳动法理念的进步,而且有利于促进劳动合同实际履行,规范劳动合同变更。     

比较视野下的刑事被害人诉讼权利保障

随着被害人学及被害人保护运动的兴起,世界各国纷纷加强了刑事被害诉讼权利的保障。尽管我国现行刑事诉讼法取得了巨大的进步,将刑事被害人提升至当事人的诉讼地位并赋予了多项诉讼权利。但与先进国家相比仍存在诸多漏洞和不足。因此,通过对域外刑事被害人诉讼权利保障进行比较研究,吸取其精华,将会推动我国刑事被害人诉讼权利立法工作。     

Describing intimate partner stalking over time: an effort to inform victim-centered service provision

Stalking has increasingly been the subject of legislation and research in the past 20 years. Within intimate partner violence, the context where it is most likely to occur, stalking predicts both greater danger and greater distress for the victim. However, research shows that practitioners are often unsure how to address stalking, and that the remedies available may not be effective. This longitudinal exploration of stalking focused on the experience of victims of intimate partner stalking and was conducted by Safe Horizon, an organization providing assistance to victims of violence and abuse in New York City. The sample of 82 women was interviewed monthly over 7 months, and the data were analyzed using growth curve models. We found that stalking decreased over time at a marginally significant level, and that change in stalking varied among participants. Perceived safety followed a similar pattern, increasing but not significantly, while stalking-related distress decreased significantly. The slopes of these variables were correlated, such that as stalking frequency decreased, perceived safety increased and distress decreased. Help-seeking was greater from court sources than victim services over the course of the study, but neither help source was related to a significant decrease in the stalking trajectory. According to victim report, orders of protection (OP) were helpful at some points and not at others. Implications of these results for offering victim-centered services are discussed.     

Organisational restructuring/downsizing, OHS regulation and worker health and wellbeing

A growing body of international evidence indicates that downsizing and related forms of organisational restructuring are having profound adverse effects on worker safety, health and wellbeing. In particular, evidence links downsizing to poorer mental health outcomes, including bullying and other forms of occupational violence. In Australia federal, state and territory occupational health and safety (OHS) legislation imposes obligations on employers who make changes to the workplace or work processes to identify hazards, undertake risk assessment, consult with employee representatives and take appropriate steps to manage any significant hazards that are identified, including psychosocial hazards. This study shows that while Australian regulators are aware of the problems posed by downsizing they have made only modest efforts to pursue compliance with legislative duties, producing some guidance material that refers to restructuring and workloads and launching a small number of prosecutions. At the same time, there is an increased willingness to address staffing levels and other impacts of downsizing (like working in isolation). Employer and union responses were also examined. The article concludes by identifying a number of initiatives that would enable regulators, unions and employers to address the problems posed by downsizing more effectively.     

试论刑法中的被害者过错制度

被害者过错问题是被害学理论中的一个关键问题。被害者过错问题的研究有着重要的刑法学意义,而这一问题虽已在不同程度上被各国刑法学界意识到,并在立法中有着片段性的反映,但问题没有被系统化地认识和规制。根据其对刑事事件发生的影响力大小及性质的不同,具体被害者过错可以被分为迫发行为、引发行为、激发行为和触发行为等几个层级,并和加害者刑事责任的大小呈反比对应关系。抽象被害者过错有着与此一致的道理。在刑法及一些相关法律中确立完整、系统的被害者过错制度,意义显著。     

Protection Orders in the European Member States: Where Do We Stand and Where Do We Go from Here?

This article tries to provide an overview of current criminal, civil and administrative protection order legislation in the 27 European Member States by comparing five studies that have (laterally) touched upon this topic. Although the data are sometimes questionable and, on occasion, even contradictory, the general picture emerges that there is a huge variation in levels of victim protection across the EU. In some Member States there are considerable gaps in victim protection legislation, for example, because there is no (pre-trial or post-trial) protection in criminal proceedings or because civil protection orders and/or barring orders are not available. If we agree that in the light of today??s emphasis on victim protection the current gaps in protection order legislation can no longer be accepted, a strategy needs to be devised on how to solve this problem. It was argued that the European Union could play an important part in addressing the protective vacuum, first by supporting thorough research into the current status of protection order legislation and implementation in the 27 Member States, and second by further exploring certain ??soft law?? possibilities such as co-regulation or the open method of coordination.     

A Peek into a Future Filled with Climate Change Regulation

The recent federal presidential election and Democratic majority in Congress assure that federal legislation to address climate change will be enacted. The nature and extent of future federal climate change regulation cannot be predicted. But, climate change regulation will be in our future. In the absence of federal regulation, regional associations and states have taken action on their own to reduce carbon emissions and address climate change. The Western Climate Initiative (WCI) is a regional association that is developing a detailed climate change program. New Jersey is one of the states which has passed, and is now implementing, legislation to address climate change. By evaluating the WCI and New Jersey activities regarding climate change, one can develop an understanding of the major issues, some possible options for dealing with those issues, and the impact climate change regulation will have on the economy, energy issues, and everyday living.     

Atypical Accommodations for Employees with Psychiatric Disabilities

People with psychiatric disabilities often need atypical accommodations to participate in today's workforce. Some of these accommodations, including structural and social changes in the workplace, can address biases against people with psychiatric disabilities, while others ameliorate deficits that may affect performance or interaction with others. Many courts have denied requests for such accommodations based on employers' assumptions about performance or the direct threats purportedly posed by people with psychiatric disabilities. By challenging these assumptions, which can be influenced by stigma and stereotypes, and by enforcing an employer's duty to interact regarding potential accommodations, employees with psychiatric disabilities could benefit from structural and social accommodations. Courts should consider social science research in determining which nontraditional accommodations may be reasonable and whether the employer can establish that they impose any undue hardship. Such consideration will expand opportunities for people with psychiatric disabilities in the workplace without unduly interfering with employers' interests.     

Victim cooperation and the prosecution of domestic violence in a specialized court

We address the role of victim cooperation in the prosecution of domestic violence cases in a specialized court in Toronto, Canada. We first examine what factors predict whether a case will proceed to prosecution. We find that, even in a court designed to minimize reliance on victim cooperation through the use of other types of evidence, when prosecutors perceive a victim to be cooperative, the odds that a case will be prosecuted are seven times higher than if a victim is not perceived to be cooperative. In the second part of our analysis, where we seek to determine the correlates of victim cooperation, we find that the two most important determinants of victim cooperation are the availability of videotaped testimony and meetings between victims and victim/witness assistance workers. We discuss the implications of these findings for future research and policy.     

Smoking in the workplace: a management perspective

Caution is warranted when undertaking smoking measures that go beyond those required by state or local laws and do not accommodate the interests of all employees. Twenty states and the District of Columbia have enacted laws regulating smoking in the private workplace. In contrast, twenty-two states recently have enacted laws that protect persons who smoke outside the workplace from being subjected to adverse employment actions. Although these laws vary widely in their language and specifics, most pose practical and compliance problems for employers. The following article updates the author's more comprehensive examination in 1988 of judicial, legislative, and employer responses to the workplace smoking issue published in 14 Employee Relations Law Journal 359 (1988).