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Principled Labor LawU.S. Labor Law through a Latin American Method$
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Sergio Gamonal C. and César F. Rosado Marzán

Print publication date: 2019

Print ISBN-13: 9780190052669

Published to Oxford Scholarship Online: May 2019

DOI: 10.1093/oso/9780190052669.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 17 November 2019

Protection

Protection

Chapter:
(p.31) 2 Protection
Source:
Principled Labor Law
Author(s):

Gamonal C. Sergio

César F. Rosado Marzán

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190052669.003.0002

Chapter 2 describes the protective principle and in dubio pro operario in Latin America, namely, in Argentina, Brazil, Chile, and Uruguay. It also describes worker protection in International Labor Organization (ILO) instruments and other international human rights texts. It then searches for the protective principle and in dubio pro operario in the United States. It argues that the protective principle can be found in the Thirteenth Amendment, the National Labor Relations Act (NLRA), and the Fair Labor Standards Act (FLSA). The Thirteenth Amendment bans involuntary servitude and mandates Congress to protect free labor. The chapter even finds something akin to in dubio pro operario in the general way that U.S. jurisprudence calls for “liberal” interpretations of statutes that derogate the common law. It further finds the protective principle in U.S. purposive methods of statutory interpretation, applied by some judges. However, those broad, purposive, worker-protective interpretations of the law have given way to more reluctant and narrow readings of the labor laws—and without good reasons. Finally, we address how employment at will narrows worker protection in the United States. While U.S. labor law has grown less labor protective, judges could reverse existing jurisprudence through the existing legal texts. Some statutory reform is, however, desirable, especially if anchored in the Thirteenth Amendment and if it derogates employment at will.

Keywords:   protective principle, labor law, in dubio pro operario, International Labor Organization, Argentina, Brazil, Chile, Uruguay, United States, Thirteenth Amendment

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