States routinely administer labour law so as to discriminate among workers on the basis of citize... more States routinely administer labour law so as to discriminate among workers on the basis of citizenship, despite ILO Conventions forbidding this practice. Revival and enforcement of this nondiscrimination norm would improve working conditions for many of the world's most exploited workers.
The labor market features of the Silicon Valley area, which are common to high-technology employe... more The labor market features of the Silicon Valley area, which are common to high-technology employers or districts, are examined. These features include: rapid job mobility; short job tenures; heavy use of temporary labor, independent contracting and other contingent labor; weak internal labor markets; weak loyalty to individual firms; career paths that often involve starting a business or joining a startup; hiring for specific skills; labor market intermediaries that facilitate short-term hiring, such as temporary help agencies and Internet job boards; flexible compensation involving bonuses and stock options; and strong inequality in earnings and labor market participation. (LMH)
Bilateral trade agreements are the preferred mode of transnational regulation for the People’s Re... more Bilateral trade agreements are the preferred mode of transnational regulation for the People’s Republic of China. China has made promises on labor rights in draft bilateral agreements that it has not previously made in any other venue. The future of transnational labor regulation requires Chinese participation. Bilateral agreements should therefore become a normal part of transnational labor law. Model labor rights provisions for bilateral agreements should be promulgated. Consultative and informal enforcement will be necessary.
The nondiscrimination obligation of INA Sec 202(a)(1)(A) entered the law in 1965 as part of a lar... more The nondiscrimination obligation of INA Sec 202(a)(1)(A) entered the law in 1965 as part of a larger Congressional repudiation of the executive branch's claim to flexibility and discretion in the issuance of immigrant visas. The administration had specifically claimed the discretion to direct immigrant visas to Western European countries potentially disadvantaged by the abolition of national origin quotas. Congress eliminated this discretion and, in the same substitute bill, reserved the power to create categories of immigrant admission to itself. Congress reinforced that power by directing the executive branch to administer visa categories without favoring countries or races. The nondiscrimination obligation thus rules out some of the more extravagant recent claims for executive authority unilaterally to alter immigration law.
Legal impediments to labor market mobility, such as enforcement of restrictive covenants and trad... more Legal impediments to labor market mobility, such as enforcement of restrictive covenants and trade secrets law, have only recently come under careful economic scrutiny. So far, there are no provable social gains in enforcing noncompete covenants. Studies have made empirical comparisons between enforcing and nonenforcing states, some horizontal comparisons, some comparing a jurisdiction before and after legal change. These invariably show the social advantages of not enforcing noncompetes. States that do not enforce noncompetes have more startups, venture capital, growth, investment in human capital, and patenting. The last finding is crucial since courts often accept the unsupported argument that enforcing noncompetes gives employers incentives to train employees and make other investments in human capital. Enforcing noncompetes also creates social waste of employee talents, as most affected employees are unable to work in their areas of expertise. Economic models of contracts to impede employee mobility are highly responsive to their assumptions, but the dominant approach shows that employers and employees can negotiate efficient allocation of intellectual property on the employee’s departure, even if the employer has no ex ante intellectual property rights. The old employer simply outbids rivals. The time has come for law to join those states refusing to enforce restrictive covenants, and to restrict employer claims that departing employees will disclose trade secrets.
Employee Social Responsibility & HR Practices eJournal, 2016
The US is the only advanced country that expects victims of wage theft or discrimination to sue i... more The US is the only advanced country that expects victims of wage theft or discrimination to sue in courts of general jurisdiction, as it lacks labor courts or administrative agencies with power to compel remedies. This omission is intentional. Both the Fair Labor Standards Act (1938) and Title VII of the Civil Rights Act of 1964 were weakened in the drafting process to weaken administrative power. This choice for litigation is poorly-defended, rapidly approaching crisis, and makes resolution more difficult of such much-commented problems in labor rights enforcement as affixing responsibility in complex organization and classification of workers. As employment law increasingly becomes state law, states will experiment with administrative agencies with powers to grant remedies.
International Employment & Labor Law eJournal, 2009
Unions facing global capital, or representing migrant workers, or both, should adopt a strategy o... more Unions facing global capital, or representing migrant workers, or both, should adopt a strategy of: (1) insisting, to the extent possible, on representation of workers by national labour movements covering the location where work is performed; (2) linking those national labour movements in enduring transnational union organizations that coordinate reciprocity; and (3) vigourously seeking alliances with worker support organizations outside the union movement. These conclusions follow a review of recent experiences, which confirm a game-theoretic account in which transnational institutions arise to solve coordination problems among national institutions. (1) The insistence on the local responds to union defeats in European Union law, in which Swedish unions, insisting that Latvian workers building a school in Sweden be paid Swedish wages, were held to have interfered with the free movement of capital. North American unions representing migrant farm workers must avoid the analogous cla...
The proposed Restatement of Employment Law provides no answer to the question of why employment l... more The proposed Restatement of Employment Law provides no answer to the question of why employment law exists as a distinct field, a question that every other nation on earth, and many states, answer with an account of the failures of an unregulated employment market, necessitating minimum terms and default rules. Since the Restatement cannot explain its purpose, its line-drawing is inevitably arbitrary and political. An illustration is its first chapter, likely to be its most influential, on the definition of employee, consisting of a broad definition, and three categorical exclusions, none of which, as the Reporter's Notes show, is supported as such by case law.
States routinely administer labour law so as to discriminate among workers on the basis of citize... more States routinely administer labour law so as to discriminate among workers on the basis of citizenship, despite ILO Conventions forbidding this practice. Revival and enforcement of this nondiscrimination norm would improve working conditions for many of the world's most exploited workers.
The labor market features of the Silicon Valley area, which are common to high-technology employe... more The labor market features of the Silicon Valley area, which are common to high-technology employers or districts, are examined. These features include: rapid job mobility; short job tenures; heavy use of temporary labor, independent contracting and other contingent labor; weak internal labor markets; weak loyalty to individual firms; career paths that often involve starting a business or joining a startup; hiring for specific skills; labor market intermediaries that facilitate short-term hiring, such as temporary help agencies and Internet job boards; flexible compensation involving bonuses and stock options; and strong inequality in earnings and labor market participation. (LMH)
Bilateral trade agreements are the preferred mode of transnational regulation for the People’s Re... more Bilateral trade agreements are the preferred mode of transnational regulation for the People’s Republic of China. China has made promises on labor rights in draft bilateral agreements that it has not previously made in any other venue. The future of transnational labor regulation requires Chinese participation. Bilateral agreements should therefore become a normal part of transnational labor law. Model labor rights provisions for bilateral agreements should be promulgated. Consultative and informal enforcement will be necessary.
The nondiscrimination obligation of INA Sec 202(a)(1)(A) entered the law in 1965 as part of a lar... more The nondiscrimination obligation of INA Sec 202(a)(1)(A) entered the law in 1965 as part of a larger Congressional repudiation of the executive branch's claim to flexibility and discretion in the issuance of immigrant visas. The administration had specifically claimed the discretion to direct immigrant visas to Western European countries potentially disadvantaged by the abolition of national origin quotas. Congress eliminated this discretion and, in the same substitute bill, reserved the power to create categories of immigrant admission to itself. Congress reinforced that power by directing the executive branch to administer visa categories without favoring countries or races. The nondiscrimination obligation thus rules out some of the more extravagant recent claims for executive authority unilaterally to alter immigration law.
Legal impediments to labor market mobility, such as enforcement of restrictive covenants and trad... more Legal impediments to labor market mobility, such as enforcement of restrictive covenants and trade secrets law, have only recently come under careful economic scrutiny. So far, there are no provable social gains in enforcing noncompete covenants. Studies have made empirical comparisons between enforcing and nonenforcing states, some horizontal comparisons, some comparing a jurisdiction before and after legal change. These invariably show the social advantages of not enforcing noncompetes. States that do not enforce noncompetes have more startups, venture capital, growth, investment in human capital, and patenting. The last finding is crucial since courts often accept the unsupported argument that enforcing noncompetes gives employers incentives to train employees and make other investments in human capital. Enforcing noncompetes also creates social waste of employee talents, as most affected employees are unable to work in their areas of expertise. Economic models of contracts to impede employee mobility are highly responsive to their assumptions, but the dominant approach shows that employers and employees can negotiate efficient allocation of intellectual property on the employee’s departure, even if the employer has no ex ante intellectual property rights. The old employer simply outbids rivals. The time has come for law to join those states refusing to enforce restrictive covenants, and to restrict employer claims that departing employees will disclose trade secrets.
Employee Social Responsibility & HR Practices eJournal, 2016
The US is the only advanced country that expects victims of wage theft or discrimination to sue i... more The US is the only advanced country that expects victims of wage theft or discrimination to sue in courts of general jurisdiction, as it lacks labor courts or administrative agencies with power to compel remedies. This omission is intentional. Both the Fair Labor Standards Act (1938) and Title VII of the Civil Rights Act of 1964 were weakened in the drafting process to weaken administrative power. This choice for litigation is poorly-defended, rapidly approaching crisis, and makes resolution more difficult of such much-commented problems in labor rights enforcement as affixing responsibility in complex organization and classification of workers. As employment law increasingly becomes state law, states will experiment with administrative agencies with powers to grant remedies.
International Employment & Labor Law eJournal, 2009
Unions facing global capital, or representing migrant workers, or both, should adopt a strategy o... more Unions facing global capital, or representing migrant workers, or both, should adopt a strategy of: (1) insisting, to the extent possible, on representation of workers by national labour movements covering the location where work is performed; (2) linking those national labour movements in enduring transnational union organizations that coordinate reciprocity; and (3) vigourously seeking alliances with worker support organizations outside the union movement. These conclusions follow a review of recent experiences, which confirm a game-theoretic account in which transnational institutions arise to solve coordination problems among national institutions. (1) The insistence on the local responds to union defeats in European Union law, in which Swedish unions, insisting that Latvian workers building a school in Sweden be paid Swedish wages, were held to have interfered with the free movement of capital. North American unions representing migrant farm workers must avoid the analogous cla...
The proposed Restatement of Employment Law provides no answer to the question of why employment l... more The proposed Restatement of Employment Law provides no answer to the question of why employment law exists as a distinct field, a question that every other nation on earth, and many states, answer with an account of the failures of an unregulated employment market, necessitating minimum terms and default rules. Since the Restatement cannot explain its purpose, its line-drawing is inevitably arbitrary and political. An illustration is its first chapter, likely to be its most influential, on the definition of employee, consisting of a broad definition, and three categorical exclusions, none of which, as the Reporter's Notes show, is supported as such by case law.
The nondiscrimination obligation of INA Sec 202(a)(1)(A) entered the law in 1965 as part of a lar... more The nondiscrimination obligation of INA Sec 202(a)(1)(A) entered the law in 1965 as part of a larger Congressional repudiation of the executive branch's claim to flexibility and discretion in the issuance of immigrant visas. The administration had specifically claimed the discretion to direct immigrant visas to Western European countries potentially disadvantaged by the abolition of national origin quotas. Congress eliminated this discretion and, in the same substitute bill, reserved the power to create categories of immigrant admission to itself. Congress reinforced that power by directing the executive branch to administer visa categories without favoring countries or races. The nondiscrimination obligation thus rules out some of the more extravagant recent claims for executive authority unilaterally to alter immigration law.
Uploads
Papers by Alan Hyde