Book review: Principled Labor Law. U.S. Labor Law through a Latin American Method

1. The introduction

In the introduction, Gamonal and Rosado Marzán lay out the purpose of their book, which is to offer a Latin American “principled method”, based on labour law’s traditional precepts, “as a tool to defend and reconstruct labour law in the United States and elsewhere where labour law jurisprudence appears to be in tatters” (p. 5). They identify US labour law as the prototype of under-protective labour policy, in view of the low union rates, the lack of dismissal and strike protection, along with the extensive use of arbitration in labour matters. Nevertheless, the authors acknowledge that Latin America is often considered a region where labour rights are ineffective. Yet, they argue that protective labour jurisprudence can hardly be the scapegoat for institutional deficiencies in this field.

The book is thus designed to be a guide for judges and other adjudicators to apply the law by means of principles. Gamonal and Rosado Marzán build upon four interrelated and mutually reinforcing principles: protection, primacy of the reality, nonwaiver, and the continuity of the employment relationship.

In their opinion, the principle of protection is the (one and only) reason for the existence of labour law as it shields employees from the negative consequences of the individual freedom of contract. Accordingly, they reject not only “economicism”, but also moderate positions that claim labour laws should also take into account other potentially conflicting interests. More specifically, Gamonal and Rosado Marzán wonder “if the law already provides a presumption favouring workers, why complicate it with multiple other goals?” (p. 22).

At first, the authors stress the importance of the principle of primacy of reality in order to fill the gaps in ambiguous and vague rules (standards). In particular, they contend that the preference of facts over legal texts, documents and agreements is paramount in worker classification cases in order to bypass the contractual window-dressing designed by the employers. The non-waiver refers to the indispensability of labour rights by the employees who, according to the principle of protection, should not be allowed to contract out their statutory safeguards. The principle of continuity traces a link between the rules in matter of termination of the employment contract and the exercise of worker rights.

The authors maintain that the lack of protection against dismissal (e.g. in the employment-at-will doctrine) deters employees from claiming their rights and thus impairs their position vis-à-vis their employer. At the same time, they observe that precarious employment might be countered through a system of lifetime learning and unemployment benefits, such as in the European model of flexicurity, as an alternative to the universal application of the just cause dismissal standard.

2. The principle of protection

In Chapter 2, the authors point out that labour law’s aim has always been to protect workers in modern capitalist society. In their view, employment subordination entails a limitation of workers’ autonomy and dignity to such an extent that workers become close to involuntary servants (p. 32). In order to counterbalance the disparity of power between the employee and the employer, Latin American Courts developed the principle of “in dubio pro operario”, according to which, in the case of vague and open legal provisions, the Courts opt for the interpretation which favours the employee over the employer. Still, as the authors reckon, the principle normally operates “as a supportive argument and not a decisive criterion” (p. 40). Since it is also generally accepted in International Labour Law, “in dubio pro operario” should be considered as a universal principle.

In order to reinforce this argument, Gamonal and Rosado Marzán scrutinize the origin of US labour law to find hints of a principle of favouring the employee in cases of doubt. They initially contend that the XIII Amendment of the US Constitution, which bans slavery, should be interpreted in a way that it also includes professional freedom. The authors maintain that the two cornerstones of US (federal) labour law (the National Labour Relations Act of 1935 and the Federal Labour Standards Act of 1938) both had the clear purpose to protect the employees, although this goal was impaired by restrictive interpretations of US Courts.

3. The corollaries of the principle of protection

Chapter 3 deals with the principle of giving facts preference over texts and contractual arrangements (“legal formalities”). Gamonal and Rosado Marzán maintain that the latter principle, developed by Latin American labour Courts, finds its ground in the socio-economic inferiority of the employee vis-à-vis the employer, as it is essential to determine the employment status and thus legal obligations, considering the challenges currently posed by non-standard, contingent and precarious work. On the contrary, Gamonal and Rosado Marzán note that US Courts have been reluctant to apply the principle of reality, notwithstanding the incorporation of the latter in US federal labour law (FLSA and NLRA). In fact, common law should require adjudicators to base employment status on the true facts of the case. Moreover, since the approach of US adjudicators varies in times of Democrat and Republican control, the “in dubio pro operario” principle is needed to achieve labour law protection and to overcome the judicial deference towards the employers.

Chapter 4 deals with the trend in favour of private mandatory arbitration of labour disputes in the US. The scholars argue that this procedure strongly favours employers. Conversely, the Latin American principle of non-waiver generally posits that the rights accorded to weaker parties are non-waivable, as a way to safeguard the continued validity of worker protection.

The authors provide an account of the recent decisions in matter of nonwaiver in Latin American Countries, where Courts are adamant in holding that even collective bargaining agreements must entail more favourable conditions to workers and cannot derogate the minimum legal standards. As for the US, Gamonal and Rosado Marzán argue that the principle of non-waiver exists in theory, but not entirely in practice. The US Supreme Court holds that workers may not waive substantial legal rights, but they may waive procedural rights while choosing to arbitrate individual disputes. ¹ Based on the view that arbitration leads to less stringent enforcement of workers’ rights, the authors advance the idea of buttressing non-waiver in the US through the construction of the XIII Amendment as a Constitutional labour-protective provision. Still, they criticise the lack of a comprehensive system of employment tribunals in the US, unlike many other (European and Latin American) jurisdictions, and demand for a new regulation of arbitration aimed at safeguarding workers’ rights.

Chapter 5 concerns the principle of employment stability or permanence. If the employment contract is presumed to have an indefinite duration, the law should compel the employers to provide a just cause either to terminate the contract or to rely on a temporary employment contract. The principle of continuity not only grants employment stability, but also reinforces the effectiveness of employment rights during the validity of the contract, as it allows employees to exercise their rights without being retaliated against. Conversely, under the U.S. employment-at-will doctrine, the employer is free to dismiss any employee for any reason and without notice. The employment-at-will is the general rule in the US, with the exception of the workers covered by a collective agreement entailing a just-cause standard.

4. The universal nature of labour law principles

In Chapter 6, Gamonal and Rosado Marzán engage with the interactions between labour law and other branches of law. They contend that labour laws have to be accommodated with two important constitutional rights: property right and free speech. As to the former, Gamonal and Rosado Marzán maintain that the matters of public concern such as the right of self-organization enshrined by the US National Labour Relations Act justify some limits on employers’ property interest. Still, the one-sided judicial interpretations such as the “Mackey doctrine”, which allows employers to permanently replace strikers, are certainly inconsistent with the constitutional provisions (XIII Amendment) and with international labour standards. As to free speech, the authors observe that the US Supreme Court has recently elevated this right to an unprecedented high standard. In Janus, ² the Court excluded that the State could force public sector employees to pay union agency fees because such a rule would threaten the free speech of workers who disagree with the union.

In Chapter 7, the authors recap the arguments formulated in the book and they insist on the idea of the universal nature of the protective principle. They also criticize the current alleged “textualist” approach of the US Courts in matters of labour law, and they point out that the principle of favour should be lifted to a higher constitutional rank through the XIII Amendment, which calls the Congress to protect human freedom and to eradicate involuntary servitude.

Furthermore, the case study of the US shows how principled labour law can be useful for other jurisdictions as well, in view of the universal labour-protective function of labour laws. Here, the authors highlight how all religious traditions teach social justice and fairness, in particular for workers. Moreover, the protection of the weak is a staple across great works of literature (e.g. the novels of Dickens, Cervantes, etc.) and it is also interwoven with the idea of justice pursued in other branches of law (contract law, consumer law, etc.). In a nutshell, they draw the conclusion that labour law is necessary as a “tool of increased peace and social stability”.

5. Conclusions

The stimulating and insightful analysis by Gamonal and Rosado Marzán is the result of a tremendous comparative effort by the two authors who meritoriously filled the gap of English-language legal scholarship on the basic principles of labour law in Latin America. In this sense, there is no doubt that the book will have a considerable impact on the labour law scholarly debate. Still, Gamonal and Rosado Marzán not only pursue a cultural goal, but their research is openly aimed at transplanting a legal solution (better, a “principled method” based on worker protection) to a Country (the US) which is identified as “the prototype of low level protection of work”. Such a purpose is extremely ambitious. In fact, according to the seminal lesson of Otto Kahn-Freund, the transplantation of foreign legal solutions can be justified, besides the case of international unification, in order to either promote or give response to a social change (Kahn-Freud, 1974).

With regards to worker protection in the US, the recent upsurge of radical leaders like Bernie Sanders and Alexandria Ocasio Cortez does not suffice to reasonably contend that the values of liberty and free market that inspired the development of pro-employer doctrine (e.g. the employment-at-will) were overcome by a new sensitivity towards social rights (Biasi, Tuzet, 2016). Additionally, one might also argue that the Presidential campaign results (i.e. the election of Trump in 2016), along with the constant decline of labour unions, rather than being (just) related to the “ossification” of US labour law (Estlund, 2002), could be linked to the cultural roots that still appear as a formidable obstacle to the promotion of a social change in the direction of worker protection in the US (Biasi, 2015). Nonetheless, the simple fact that some principles are shared in Latin America does not mean that they are universal.

For instance, the authors’ conception of the general principle “in dubio pro operario” is unknown in Continental Europe. Indeed, the terminology sounds unfamiliar and even misleading from a European perspective. The Latin expression “operarius” does not find any reference in the Continental European tradition: in the legal scheme of locatio conductio, those performing a working activity were either the conductor operis or the locator operarum, which were the predecessors, respectively, of the self-employed worker and of the employee (Veneziani, 1986). Conversely, the word “operarius” mirrors the figure of the manual worker (i.e. “operaio” in Italian language), which certainly did not exist before industrialization, a process which followed the French revolution and that had already breached the ancient link between the provision of labour by a free human been and the condition of slavery (status servitutis).

When labor finally entered into the guise of a contract, the extensive role of mandatory rules, placed in the interest of the weaker party, marked the germane separation of labour law from its origin in civil law or, in other terms, in the law of the free exchange of equals (Kahn-Freund, 1967). In other terms, the mandatory nature of labour protection prevents the parties to depart from the legal framework, starting with the classification of the contractual arrangement in terms of employment or self-employment (Waas 2017). Accordingly, there is no need to recur to the principle of favor to justify the non-waiver (Davidov 2020b). On the contrary, the author’s claim against the extensive role of arbitration in labour disputes in the US is well grounded and fully consistent with the limited role of arbitration in Continental Europe, where the effectiveness of workers’ rights is guaranteed by a system of specialized labour courts. We might agree that, in general, the (main) function of labour law is the protection of employees. In Continental Europe, the (complex) task of the legislator (and of the adjudicators as well) is to find an adequate balance between the former and market freedoms and not only to promote social rights.

The idea of countering the – alleged – judicial deference of US judges towards the employers with a one-sided interpretation based on the labour law mission to protect the employee not only sounds rather nostalgic, but it also seems simplistic in the complex realm of contemporary era (see Davidov 2020a, according to whom the method of solving hard cases cannot be “workers always win”). The European adjudicators generally take into account that market freedoms that are deeply rooted, along with social rights, in the legal tradition, as they are both enshrined in European Charters and national Constitutions. As the European Court of Justice stated in the AGET Iraklis case (E.C.J. 21 December 2016, C-201/15, concerning whether the Greek legislator which bestowed upon the Greek Council of State the power to refuse a planned redundancy project in the event of lack of collective agreement was consistent with the principles of EU law), “since the European Union has not only an economic but also a social purpose, the rights under the provision of the Treaty of free movement of goods, persons, services and capital must be balanced against the social objectives recognized by EU law”.

Notably, the European Court of Justice did not share the uncompromising view of the Advocate General, who had previously contended that “the European Union is based on a free market economy, which implies that undertakings have the freedom to conduct their business as they see fit” (Opinion of Advocate General Wahl, 9 June 2019, C-201-15). Conversely, the Court opted in favor of the necessary balance between social rights and market freedoms (N. Countouris, A. Koukiadaki 2017). Yet, one might argue that today’s balance between those two fundamental values might be not only different elsewhere, but also potentially rethought in the same Europe someday. Nevertheless, this is just the consequence of the natural “crisis” that labour law faces as a continuously evolving and developing matter (Davidov, 2016).