Principled Labor Law U.S. Labor Law through a Latin American Method

Sergio Gamonal C. is Professor of Law at Adolfo Ibáñez University in Chile.

César F. Rosado Marzán is Associate Professor of Law and Co-Director of the Institute for Law and the Workplace at the Chicago-Kent College of Law at the Illinois Institute of Technology.

Introduction: A Principled Method, Even for the United States
The Unlikeliest Case
A Ripe Time for Principled Labor Law
Can Latin America Teach Us Anything?
Legal Principles: What are they? What Are They Good For?
Principles in Action: A Teaser
Supplementing the Labor Law Constitution
A Simpler and More Coherent Alternative to Davidov's "Purposivism"
Against Economism
Principled Labor Law and the "Capabilities" Perspective
A Necessary Counter-Cultural Narrative for the United States
The Rest of this Book

Chapter 1: Protection
Introduction
The Protective Principle in Latin America
The International Aspects of Worker Protection
The Protective Principle in Argentina, Brazil, Chile, and Uruguay
When in Doubt, Rule in Favor of the Weaker Party: The Rule of In Dubio Pro Operario
Protection in the United States: An Exercise in Legal Archeaology
The Protective Principle in the Thirteenth Amendment of the U.S. Constitution
Free Labor in U.S. Reconstruction and Contemporary Latin America
The Protective Principle in the NLRA
The Protective Principle in the FLSA
What About Employment At Will?
Conclusion

Chapter 2: Primacy of Reality
Introduction: Fact, Fiction, and Principle
Primacy of Reality in Latin America
Argentina
Brazil
Chile
Uruguay
Primacy of Reality in the United States
Determining Employee and Employer Status
The Common Law Control Test
The Primary Purpose Test
The Joint Employer Under the FLSA and NLRA
Joint Employment and FLSA
Joint Employment Under the NLRA
Primacy of Reality and the Importance of Principles
Conclusion: For a Labor Protective Jurisprudential Toolkit

Chapter 3: Nonwaiver
Introduction: A Floor of Mandatory Rights
Nonwaiver in Latin America
Positive Law
Jurisprudence
Regulating Settlements Through Nonwaiver
Waiver of Contractually Acquired Rights
Nonwaiver in the United States
The Promise of Nonwaiver Under the Thirteenth Amendment
Waiver under the FLSA
Waiver Under Collective Labor Law
The Perilous American Journey to Arbitration
The Empirical Evidence Against Arbitration
Buttressing Nonwaiver in the United States: The Thirteenth Amendment, Statutory Reform, and Regulating Arbitration
Conclusion: A Way out of the Procedural Trap Through Principles

Chapter 4: Continuity
Introduction: Presuming Stability and Continuity
Continuity in Latin America
Contract Termination
Contractual Dynamics: Continuing Obligations Despite Changing Terms and Parties in the Employment Contract
Reforming Contracts in Favor of Non-Precarious Work
Continuity in the United States
The Peculiar Doctrine of Employment at Will
Wrongful Dismissal Law Under the Shadow of Employment at will
A Stubborn Presumption
Continuity in the Public Sector and Unionized Contexts
Modifying Contracts and Successorship
Employment at will is not Labor Law
Conclusion: States of (Dis)Continuity

Chapter 5: The Return of Labor Principles: Conflict or Harmony?
Introduction
Labor Law and Property Rights
Labor Law and Free Speech
Labor Rights are Human Rights
Conclusion

Conclusion: A Universal Idea
Developed Countries Need Labor Law
Latin America Can Help
Protecting the Weak
A Note on Freedom of Association
Labor Law: A Victim of its Own Success