Human Rights in Labor and Employment Relations — International and Domestic Perspectives – Edited by James A. Gross and Lance Compa (original) (raw)

Perspectives on labour and human rights

Research Handbook on Labour, Business and Human Rights Law, 2019

Virginia Leary once observed a curious phenomenon: that labour law and human rights law are on parallel tracks that rarely cross.1 This phenomenon is unexpected because some of the most obvious violations of individuals’ human rights, for instance, slave labour or child labour, occur when they are working. But until recently many human rights scholars veered off and focused on civil and political rights, all but ignoring rights that are violated when people are working. It is as if individuals, when they are viewed as workers, are compartmentalized, sealed off and cast to the side in human rights scholarship. This may result from the fact that some see labour law as governing work relationships and fail to consider the human rights dimensions of the employment or work arrangement. It may also result from the fact that those human rights scholars who focus on civil and political rights tend to see the State as the actor who violates the human rights of individuals, either directly or...

Workers Rights as Natural Human Rights

We live in an increasingly polarized world: one summed up by President Clinton, “we’re all in this together;” the other summed up by then-presidential candidate Trump, “I alone can fix it.” These world views have implications for workers and how the future workplace is ordered. In this Article, I explore the idea that a natural human rights approach to workplace regulations will tend to favor the we’reall-in-this-together view, whereas the Lochnerian or neoliberal view tends to favor an individualistic world view. The Article’s six-step analytical approach starts with a historical analysis of labor law jurisprudence, concluding that U.S. labor laws must be filtered through a law-and-economic lens of U.S.-styled capitalism to predict the outcomes of legal disputes and to expose human rights infirmities inherent to that approach. In step two, I explore T.H. Marshall’s account of citizenship, concluding that Marshall’s rights-based rubric is too limited to fully explain workers’ rights, which tend to cut across the full gamut of human rights. In step three, I expand upon Marshall’s work to build a framework for evaluating workplace laws based on the worker as a citizen of the labor force who has human rights. I do this using two methodologies: (1) comparative legal analysis between U.S. law and international human rights standards; and (2) jurisprudential analysis of fundamental values within a rights-based framework. In step four, I modify John Rawls’s famous thought experiment to include a veil of empathy. In that modified experiment, I conclude that participants in the original position behind a veil of empathy would generate values underlying human rights, namely autonomy (to become part author of one’s work life) and dignity (to be treated as a person always as an end and never merely as a means). In step five, I apply this human rights approach to show that workers’ and employers’ interests conflict at the interests-level and, more fundamentally, at the values-level. I conclude that these conflicts are primarily over the distribution of that which labor and capital create. This distributional question is fundamental a question of moral and political justice, which will and does have real political consequences. In step six, I set forth a path along which this research project should explore.