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Labour/Employment Law Papers by Pnina Alon-Shenker

Research paper thumbnail of Employee Status Preconditions: A Critical Assessment

BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW, 2024

Much has been written about the legal tests that exclude independent contractors from employment ... more Much has been written about the legal tests that exclude independent contractors from employment and labor law coverage. Less attention has been devoted to courts' use of classification processes that invoke some preliminary requirements (i.e. preconditions for employee status) and result in the exclusion of various categories of workers from potential coverage. Those workers include volunteers, prisoners, persons with disabilities, interns, trainees and apprentices, business owners, corporate directors and officeholders. This Article brings these preconditions together into a coherent framework by critically examining their different variations in the U.S. as well as the UK, Canada, and the EU. Further, this Article proposes a narrower set of preconditions which will better advance the purpose of employment and labor laws and increase consistency and predictability in its application. The three proposed preconditions are: (1) performing work or providing services that benefit an employer (regardless of whether there is also a personal benefit for the worker) unless such benefits are negligible; (2) the work should be remunerated (regardless of whether wages are paid in practice or have been promised or not); and (3) the work is substantially performed personally.

Research paper thumbnail of Organizing: Should the Employer Have a Say?

Israeli courts were recently faced with the question of whether an employer is allowed to voice o... more Israeli courts were recently faced with the question of whether an employer is allowed to voice objections to unionization during an organizing drive. Since the legislation fails to provide an answer for this question, it was up to the courts to come up with a solution. The National Labor Court in Histadrut v. Pelephone held that employers have no say and must refrain from any communications whatsoever with the workers regarding the decision of whether to join the union or not. The Supreme Court later affirmed this decision. This Article explores this legal question and examines whether this decision was justified, and whether it should be adopted in other countries as well. It first discusses the justifications for the conflicting freedoms in this scenario – the workers’ freedom of association and the employer’s freedom of speech – to appreciate their relative strength in the circumstances. It then examines whether some balance is possible. To this end, the Article critically reviews the legal mechanisms adopted by other legal jurisdictions (the U.S., Canada and the U.K.) in this regard, shedding light on their effectiveness and the difficulties of organizing in practice in each jurisdiction. The main argument advanced in this Article is that the solution has to be purposive: to advance the goals of labor law and specifically freedom of association; and that the purposive analysis must be contextual. A rule prohibiting the employer from voicing opinions is surely an infringement of freedom of speech, and strong reasons are needed to justify it. Whether strong enough reasons exist depends on several contextual factors. Essentially, the question is whether given the current context, it is possible to secure real freedom of association without such a rule. By context we mean two main things: First, the real-life current experience concerning the struggles of organizing; and second, the existence of alternative legal mechanisms that might address this problem.

Research paper thumbnail of The ABC Test: A New Model for Employment Status Determination

Industrial Law Journal, 2022

The tests for identifying who is an 'employee'the gateway for a multitude of employment rights ha... more The tests for identifying who is an 'employee'the gateway for a multitude of employment rights have preoccupied generations of labour lawyers. It is relatively rare, however, to see a significant change in the law itself in this area. We are currently witnessing such a rare change in the US, where a new test called the 'ABC test' was adopted in California and is gaining support elsewhere. The new California test starts with a legal presumption of employee status. To rebut the presumption, the hiring party has to demonstrate that all the following conditions are satisfied: no control over the worker; the work is outside the usual course of the employer's business; the worker is customarily engaged in an independently established business. The goal of this article is examine whether this new test is normatively better than previous tests and should be regarded as a model for legislation in other countries as well. Our assessment is made in light of three benchmarks: whether the new test successfully advances the purpose of labour laws; whether it adopts an optimal balance between selectivity and universalism; and whether it strikes an optimal balance between rules and standards. Our conclusion is generally positive, but at the same time we argue that some modifications are necessary to improve the test and make it a useful model.

Papers by Pnina Alon-Shenker

Research paper thumbnail of Management Consultants and the Employees of Their Client Organizations: Towards a Model of Employee Protection

Canadian Law eJournal, 2018

Organizations increasingly rely on external management consultants to restructure their businesse... more Organizations increasingly rely on external management consultants to restructure their businesses in an effort to improve performance, competitiveness, and profitability. This article focuses on the ramifications of such arrangements for the client organization’s employees. Management consultants generally wield substantial influence on their clients, and often perform managerial functions, directly interacting with, and exercising significant control over, the client’s employees. As a result, consultants may directly or indirectly contribute to labour and employment law infringements by the client organization. The author argues that while existing laws may provide some mechanisms of enforcement and protection, there is a need for more robust regulation to ensure that management consultants are made directly responsible for their actions where the effect of those actions is to cause a violation of employees’ rights. Accordingly, using “Lean” consulting as an example, specifically ...

Research paper thumbnail of Organizing: Should the Employer Have a Say?

Theoretical Inquiries in Law, 2016

Israeli courts were recently faced with the question whether an employer is allowed to voice obje... more Israeli courts were recently faced with the question whether an employer is allowed to voice objections to unionization during an organizing drive. Since the legislation fails to provide an answer to this question, it was up to the courts to come up with a solution. The National Labor Court in Histadrut v. Pelephone held that employers have no say and must refrain from any communications whatsoever with the workers regarding the decision whether or not to join the union. The Supreme Court later affirmed this decision. This Article explores this legal question and examines whether this decision was justified, and whether it should be adopted in other countries as well. It first discusses the justifications for the conflicting freedoms in this scenario — the workers’ freedom of association and the employer’s freedom of speech — to appreciate their relative strength in the circumstances. It then examines whether it is possible to achieve a certain balance. To this end, the Article crit...

Research paper thumbnail of Employee Status Preconditions: A Critical Assessment

BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW, 2024

Much has been written about the legal tests that exclude independent contractors from employment ... more Much has been written about the legal tests that exclude independent contractors from employment and labor law coverage. Less attention has been devoted to courts' use of classification processes that invoke some preliminary requirements (i.e. preconditions for employee status) and result in the exclusion of various categories of workers from potential coverage. Those workers include volunteers, prisoners, persons with disabilities, interns, trainees and apprentices, business owners, corporate directors and officeholders. This Article brings these preconditions together into a coherent framework by critically examining their different variations in the U.S. as well as the UK, Canada, and the EU. Further, this Article proposes a narrower set of preconditions which will better advance the purpose of employment and labor laws and increase consistency and predictability in its application. The three proposed preconditions are: (1) performing work or providing services that benefit an employer (regardless of whether there is also a personal benefit for the worker) unless such benefits are negligible; (2) the work should be remunerated (regardless of whether wages are paid in practice or have been promised or not); and (3) the work is substantially performed personally.

Research paper thumbnail of Organizing: Should the Employer Have a Say?

Israeli courts were recently faced with the question of whether an employer is allowed to voice o... more Israeli courts were recently faced with the question of whether an employer is allowed to voice objections to unionization during an organizing drive. Since the legislation fails to provide an answer for this question, it was up to the courts to come up with a solution. The National Labor Court in Histadrut v. Pelephone held that employers have no say and must refrain from any communications whatsoever with the workers regarding the decision of whether to join the union or not. The Supreme Court later affirmed this decision. This Article explores this legal question and examines whether this decision was justified, and whether it should be adopted in other countries as well. It first discusses the justifications for the conflicting freedoms in this scenario – the workers’ freedom of association and the employer’s freedom of speech – to appreciate their relative strength in the circumstances. It then examines whether some balance is possible. To this end, the Article critically reviews the legal mechanisms adopted by other legal jurisdictions (the U.S., Canada and the U.K.) in this regard, shedding light on their effectiveness and the difficulties of organizing in practice in each jurisdiction. The main argument advanced in this Article is that the solution has to be purposive: to advance the goals of labor law and specifically freedom of association; and that the purposive analysis must be contextual. A rule prohibiting the employer from voicing opinions is surely an infringement of freedom of speech, and strong reasons are needed to justify it. Whether strong enough reasons exist depends on several contextual factors. Essentially, the question is whether given the current context, it is possible to secure real freedom of association without such a rule. By context we mean two main things: First, the real-life current experience concerning the struggles of organizing; and second, the existence of alternative legal mechanisms that might address this problem.

Research paper thumbnail of The ABC Test: A New Model for Employment Status Determination

Industrial Law Journal, 2022

The tests for identifying who is an 'employee'the gateway for a multitude of employment rights ha... more The tests for identifying who is an 'employee'the gateway for a multitude of employment rights have preoccupied generations of labour lawyers. It is relatively rare, however, to see a significant change in the law itself in this area. We are currently witnessing such a rare change in the US, where a new test called the 'ABC test' was adopted in California and is gaining support elsewhere. The new California test starts with a legal presumption of employee status. To rebut the presumption, the hiring party has to demonstrate that all the following conditions are satisfied: no control over the worker; the work is outside the usual course of the employer's business; the worker is customarily engaged in an independently established business. The goal of this article is examine whether this new test is normatively better than previous tests and should be regarded as a model for legislation in other countries as well. Our assessment is made in light of three benchmarks: whether the new test successfully advances the purpose of labour laws; whether it adopts an optimal balance between selectivity and universalism; and whether it strikes an optimal balance between rules and standards. Our conclusion is generally positive, but at the same time we argue that some modifications are necessary to improve the test and make it a useful model.

Research paper thumbnail of Management Consultants and the Employees of Their Client Organizations: Towards a Model of Employee Protection

Canadian Law eJournal, 2018

Organizations increasingly rely on external management consultants to restructure their businesse... more Organizations increasingly rely on external management consultants to restructure their businesses in an effort to improve performance, competitiveness, and profitability. This article focuses on the ramifications of such arrangements for the client organization’s employees. Management consultants generally wield substantial influence on their clients, and often perform managerial functions, directly interacting with, and exercising significant control over, the client’s employees. As a result, consultants may directly or indirectly contribute to labour and employment law infringements by the client organization. The author argues that while existing laws may provide some mechanisms of enforcement and protection, there is a need for more robust regulation to ensure that management consultants are made directly responsible for their actions where the effect of those actions is to cause a violation of employees’ rights. Accordingly, using “Lean” consulting as an example, specifically ...

Research paper thumbnail of Organizing: Should the Employer Have a Say?

Theoretical Inquiries in Law, 2016

Israeli courts were recently faced with the question whether an employer is allowed to voice obje... more Israeli courts were recently faced with the question whether an employer is allowed to voice objections to unionization during an organizing drive. Since the legislation fails to provide an answer to this question, it was up to the courts to come up with a solution. The National Labor Court in Histadrut v. Pelephone held that employers have no say and must refrain from any communications whatsoever with the workers regarding the decision whether or not to join the union. The Supreme Court later affirmed this decision. This Article explores this legal question and examines whether this decision was justified, and whether it should be adopted in other countries as well. It first discusses the justifications for the conflicting freedoms in this scenario — the workers’ freedom of association and the employer’s freedom of speech — to appreciate their relative strength in the circumstances. It then examines whether it is possible to achieve a certain balance. To this end, the Article crit...