Across Latin America a common set of principles governs the relationship between employers and employees. With the rise of the so-called gig economy in the United States and the decline of unions, among other developments affecting the quality of jobs and life of U.S. workers, Associate Professor César F. Rosado Marzán of Chicago-Kent College of Law and Professor Sergio Gamonal C. of Adolfo Ibáñez University in Chile explore how the principles of Latin America could be used to look at U.S. labor law in a new way that meets these and other demands for equity in the new era.
Their new book, Principled Labor Law: U.S. Labor Law through a Latin American Method, was published in May 2019 by Oxford University Press.
“Principled labor law is labor law built on some basic principles from which adjudicators cannot deviate; it differs from a view where labor and employment law is built on whatever rules exist on the books, however vague or inchoate, or a labor law that is built on whatever agenda exists in a specific government administration that controls the agencies,” says Rosado Marzán.
Rosado Marzán and his co-author look at four principles of Latin American labor law in their book: the protective principle, primacy of reality, the nonwaiver principle, and continuity of employment.
“There’s nothing in English, explicit, about these principles,” says Rosado Marzán, “and yet they’re used all the time in Brazil, in Argentina, elsewhere in Latin America, and in many other countries.” He adds, “We argue that all four principles exist in statutory U.S. labor and employment laws, albeit they are not always recognized by judges, agencies, and other adjudicators. Some recently decided cases have even rejected their existence, contrary to the purposes of Congress, and against a plain reading of the rules expressed in the law, making U.S. labor and employment law wholly unprincipled in practice.”
Rosado Marzán met his co-author in Chile in 2009 while doing research on how that nation’s labor courts operate. The judges invited him to an evening class with Gamonal, who was training judges on Chile’s labor law principles. After the class, Rosado Marzán and Gamonal discussed their research and decided to collaborate on a new book that would use the principles of Latin American labor law to re-examine U.S. labor and employment law.
The biggest difference between Latin American and U.S. labor law, Rosado Marzán explains, is that Latin American labor law offers stronger protections against employee dismissal.
In the United States, says Rosado Marzán, “we presume that you can generally be fired for good, bad, or no reason, and in all the other countries, including in Latin American ones, you can never be fired for good, bad, or no reason. You can only be fired for cause.”
Another big difference is that labor protections are enshrined in the constitutions of many Latin American countries; the protective principle is thus of constitutional character in Latin America. “In the U.S., we don’t have constitutional labor protections as understood in other countries, but we could have them through the Thirteenth Amendment,” he says.
Drawing on the scholarship of Thirteenth Amendments scholars, the authors argue that the Thirteenth Amendment wasn’t just aimed at ending chattel slavery but was also supposed to end other forms of servitude. They explain that such a view of the Thirteenth Amendment could be used to protect workers in unequal bargaining relationships with their employers.
“We want folks to see U.S. labor law in a very different light,” says Rosado Marzán.
“Our statutes have been narrowed and diminished significantly by the courts and by some government administrations,” he adds. “And, so, I think that by looking at what we already have in a different light we can reverse that belittling trend and provide wider protections for workers as weaker bargaining agents under capitalism.”