Guy Davidov
Guy Davidov, LL.B (Tel-Aviv, 1996), LL.M. (Toronto, 1998), SJD (Toronto, 2002), is the Elias Lieberman Professor of Labour Law at the Hebrew University of Jerusalem, where he previously served as Vice-Dean as well as Chair of Graduate Studies at the Faculty of Law. He was the founder and first Chair of the Labour Law Research Network, a world-wide organization of labour law scholars. He was also the Editor-in-Chief of the International Journal of Comparative Labour Law and Industrial Relations, and is currently a member of the advisory board of several labour law journals and research centers. He has published widely on labour law issues in top journals, including the Oxford Journal of Legal Studies, Modern Law Review, the University of Toronto Law Journal, McGill Law Journal, Law & Social Inquiry, Industrial Law Journal and the Comparative Labour Law and Policy Journal, and has co-edited (with Brian Langille) two influential books, "Boundaries and Frontiers of Labour Law" (Hart, 2006) and "The Idea of Labour Law" (Oxford UP, 2011). His book "A Purposive Approach to Labour Law" was published by Oxford UP in 2016.
Address: Faculty of Law, Hebrew University of Jerusalem
Mount Scopus, Jerusalem 91905, Israel
Address: Faculty of Law, Hebrew University of Jerusalem
Mount Scopus, Jerusalem 91905, Israel
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Labour/Employment Law Papers by Guy Davidov
We argue that one aspect of the platform model – “work on demand” which allows workers to log into the app whenever they wish to do so – poses a difficulty. Workers should be compensated for the time they are “on call” and available to work. But platforms can be expected to respond by assigning workers to pre-set shifts to avoid paying for an unknown amount of working hours, thereby dismantling the “on demand” model. Such a change would be welcomed by many employees, who will gain more security, but others can be expected to object to losing the flexibility which they value.
We consider possible solutions that could allow workers to choose the “on-demand” model. While rejecting the possibility of allowing employees to waive on-call compensation rights, we consider several intermediate solutions that ensure partial payments for this time or exempt employees with another full-time job. The proposed solutions are based on the understanding that more choice is preferable in labour law, as long as we can protect the interests of the affected employees, and eliminate the externalities that some choices might generate for other workers.
Section I explains why labour laws are inherently challenging to enforce, and why the problem has exacerbated in recent years. Section II explains the difference between a focus on compliance and a focus on enforcement. Although the two are sometimes described as opposing approaches, I argue that they are both needed and compatible, and in section III combine them into a framework of three steps needed to secure compliance. I then focus most of the discussion on methods to reduce the ability of an employer to benefit from a violation (section IV) and methods to increase the cost of violations once they have occurred (section V). Throughout the article, most of my examples will come from Israeli law, which I am most familiar with; but there are similar examples in other legal systems (which I will sometimes point out).
This chapter, written for a book in honour of Arthurs, briefly assessed two concrete proposals he made for the adoption of an intermediate category between “employees” and independent contractors. I start by describing the original proposal in made in 1965, then move to explain the logic behind intermediate categories in this area, before assessing the Canadian legislated definition (which adopted Arthurs' proposal to some extent), explaining its deficiencies. I then move to analyze a more recent proposal made by Arthurs for the adoption of an intermediate category (along the same lines), suggesting some amendments that could further improve it.
The goal of this chapter is to consider – and justify – the expansion of the duty to accommodate in labour law. Section §12.02 explains the two basic parameters setting the breadth of the duty. One question is whether it takes the form of concrete duties in legislation (e.g., an employer must grant maternity leave after an employee gives birth) or rather includes also an open-ended general duty to do whatever can reasonably be done to accommodate. The other question is whether the duty applies to a specific group of people that are especially vulnerable or rather to many different groups of people, or even (ultimately) every employee. Otherwise put, do employers have to
accommodate every special need, or just specific needs such as those of workers with
disabilities? Section §12.03 argues that there is a gradual change (as a descriptive matter) towards expansion on both fronts: more open-ended duties and more reasons for accommodation (or: more groups of people possessing a right to enjoy accommodation). We draw on Israeli developments for the purpose of stylizing this process of change, but also give some examples from other countries. Section §12.04 justifies this development and calls for further expansion towards a universal duty to accommodate. We argue that such a change goes beyond the context of equality and reaches into the fundamental structure of the employment contract, deeply affecting the primacy of the managerial prerogative. Section §12.05 addresses some possible critiques.
Part I of the Article opens by describing the phenomenon of indirect employment in Israel, where it is widespread. Part II then critically considers the solutions adopted in Israel so far. I then move to discuss some additional/alternative solutions, to a large extent in line with Weil’s proposals, offering some more details on the appropriate legal structures and their justifications. Part III begins by clarifying the legal questions, proposing some distinctions, which I find useful and necessary. Part IV then moves to address the question least developed so far in the case law and literature, which is whether firms (or other entities) could sometimes be held directly responsible for workers employed by their subcontractors/franchisors, even if they have no direct relationship with them. The final Part concludes and adds some preliminary suggestions regarding methods, i.e. possible legal routes to establish legal responsibility by lead companies, assuming it is indeed justified.
We argue that one aspect of the platform model – “work on demand” which allows workers to log into the app whenever they wish to do so – poses a difficulty. Workers should be compensated for the time they are “on call” and available to work. But platforms can be expected to respond by assigning workers to pre-set shifts to avoid paying for an unknown amount of working hours, thereby dismantling the “on demand” model. Such a change would be welcomed by many employees, who will gain more security, but others can be expected to object to losing the flexibility which they value.
We consider possible solutions that could allow workers to choose the “on-demand” model. While rejecting the possibility of allowing employees to waive on-call compensation rights, we consider several intermediate solutions that ensure partial payments for this time or exempt employees with another full-time job. The proposed solutions are based on the understanding that more choice is preferable in labour law, as long as we can protect the interests of the affected employees, and eliminate the externalities that some choices might generate for other workers.
Section I explains why labour laws are inherently challenging to enforce, and why the problem has exacerbated in recent years. Section II explains the difference between a focus on compliance and a focus on enforcement. Although the two are sometimes described as opposing approaches, I argue that they are both needed and compatible, and in section III combine them into a framework of three steps needed to secure compliance. I then focus most of the discussion on methods to reduce the ability of an employer to benefit from a violation (section IV) and methods to increase the cost of violations once they have occurred (section V). Throughout the article, most of my examples will come from Israeli law, which I am most familiar with; but there are similar examples in other legal systems (which I will sometimes point out).
This chapter, written for a book in honour of Arthurs, briefly assessed two concrete proposals he made for the adoption of an intermediate category between “employees” and independent contractors. I start by describing the original proposal in made in 1965, then move to explain the logic behind intermediate categories in this area, before assessing the Canadian legislated definition (which adopted Arthurs' proposal to some extent), explaining its deficiencies. I then move to analyze a more recent proposal made by Arthurs for the adoption of an intermediate category (along the same lines), suggesting some amendments that could further improve it.
The goal of this chapter is to consider – and justify – the expansion of the duty to accommodate in labour law. Section §12.02 explains the two basic parameters setting the breadth of the duty. One question is whether it takes the form of concrete duties in legislation (e.g., an employer must grant maternity leave after an employee gives birth) or rather includes also an open-ended general duty to do whatever can reasonably be done to accommodate. The other question is whether the duty applies to a specific group of people that are especially vulnerable or rather to many different groups of people, or even (ultimately) every employee. Otherwise put, do employers have to
accommodate every special need, or just specific needs such as those of workers with
disabilities? Section §12.03 argues that there is a gradual change (as a descriptive matter) towards expansion on both fronts: more open-ended duties and more reasons for accommodation (or: more groups of people possessing a right to enjoy accommodation). We draw on Israeli developments for the purpose of stylizing this process of change, but also give some examples from other countries. Section §12.04 justifies this development and calls for further expansion towards a universal duty to accommodate. We argue that such a change goes beyond the context of equality and reaches into the fundamental structure of the employment contract, deeply affecting the primacy of the managerial prerogative. Section §12.05 addresses some possible critiques.
Part I of the Article opens by describing the phenomenon of indirect employment in Israel, where it is widespread. Part II then critically considers the solutions adopted in Israel so far. I then move to discuss some additional/alternative solutions, to a large extent in line with Weil’s proposals, offering some more details on the appropriate legal structures and their justifications. Part III begins by clarifying the legal questions, proposing some distinctions, which I find useful and necessary. Part IV then moves to address the question least developed so far in the case law and literature, which is whether firms (or other entities) could sometimes be held directly responsible for workers employed by their subcontractors/franchisors, even if they have no direct relationship with them. The final Part concludes and adds some preliminary suggestions regarding methods, i.e. possible legal routes to establish legal responsibility by lead companies, assuming it is indeed justified.