Common Law, Labor Law, and Reality: A Rejoinder to Professors Getman and Kohler

Chapter 3 describes the principle of primacy of reality in Latin America, namely, in Argentina, Brazil, Chile, and Uruguay. The principle is also contained in the International Labor Organization’s Recommendation 198. The principle posits that facts must be given preference over what parties, particularly employers, state in legal texts, documents, and agreements. It is particularly important when determining threshold questions in labor law, such as employee and employer status. While employers might deny an employment relationship given a formal agreement to hire workers as independent contractors, the facts might show otherwise. However, the chapter also argues that primacy of reality depends on the principle of protection and in dubio pro operario to resolve questions when the facts are not dispositive given vague or missing rules. The chapter then searches primacy of reality in the United States and finds it in various employment tests, such as the common law control test. It is also finds it in employer tests of joint employer status. However, many of those tests remain vague, requiring supplementation with the U.S. versions of in dubio pro operario, i.e., liberal construction of the statutes that derogate the common law, and with legislative purpose. Primacy of reality makes it even more important for legal operators to be cognizant of labor law principles and, principally, the protective principle.

Download Full-text

Labor Law. Effect of Anti-Injunction Acts on Municipal Ordinances, Common-Law Actions, and Sherman Act

The University of Chicago Law Review ◽

10.2307/1597035 ◽

1940 ◽

Vol 7 (2) ◽

pp. 388

Keyword(s):

Common Law ◽

Labor Law ◽

Sherman Act

Download Full-text

Principle of Interpretation in Favor of the Insuree in Turkish Social Security Law

International Conference on Eurasian Economies 2016 ◽

10.36880/c07.01754 ◽

2016 ◽

Author(s):

Nurgül Emine Barın

Keyword(s):

Social Security ◽

Rule Of Law ◽

Common Law ◽

Labor Law ◽

Court Decisions ◽

Business Law ◽

The Rule Of Law ◽

The Social ◽

True Meaning ◽

The Common

One of the major problems encountered in the implementation of the rule of law is in the absence of the meaning of law or what it wants to tell is not clearly defined, the true meaning is revealed through interpretation. In labor law and social security law; Although the review will benefit from the rules for the common law, workers-interpretation in favor of the insuree is effective. This policy is considered as one of the fundamental policies of the Labour and Social Security Law. Located between the basic policies of business law, the protection of the workers, which is a consequence of the interpretation in favor of the insuree policy, shows itself in the form of interpretation in favor of the insuree in the social security law. One factor for necessity of supporting interpretation in favor of the insuree is, social security right is among the basic human rights. In particular, the interpretation of legislation related to the social security right by constitutional guarantee, it is important to keep in mind this basic policy. The overall purpose of the social security law is to benefit from this right by more people, namely the expansion of the scope. In this study, the place of interpretation in favor of the insuree and limitations related to this interpretation will be examined in the light of samples of Supreme Court Decisions and regarding substance of the Constitution and laws.

Download Full-text