LEEL 570 Lecture Notes - Lecture 10: Unemployment Benefits, Lincoln Electric, Canada Labour Code
27 Jun 2018
School
Department
Course
Professor
Employment Law
Jan 15 - 17: Regulating the Employment Relationship: Sources, History & Context
Jan 15 – Employment as a Relational K (Bird)
Questions to Consider:
What is the relationship btwn the master and servant relationship and the modern K of emp?
Does "status" still matter?
Why is a life-cycles approach relevant to the contemporary regulation of the emp relationship?
Ranking the importance of reasons why people work:
Wages, security, dignity and citizenship
Contractual frame puts emphasis of wages
How does emp law take into account of these things broadly more direct or indirectly
Employment as a Relational Contract (Bird)
Gives us a good sense of the shift that is currently still underway
oWhat are lawmakers thinking when they shift employment law?
The model in which our understanding of employment law is framed
Meaning of work in society
oBird: "employees find satisfaction from not just wages, but the sociability, security,
dignity, self-respect, and meaningfulness that gainful employment brings"
oChief Justice Dickson's dissent: "work is one of the most fundamental aspects of a
person's life... A person's employment is an essential component of his or her sense of identity,
self-worth and well-being. Accordingly, the conditions in which a person works are highly
significant in shaping the whole compendium of psychological, emotional and physical elements
of a person's dignity and self-respect" (Reference Re Public Service Employee Relations Act, para
91)
Vital, ongoing relationship
oWhy does Bird argue that "employment scholarship focuses too much on laws and not
enough on norms& (p 149)
oHow does Bird conceive of the emp relationship? How is this diff from some other legal
Ks?
Cites Ian McNeil: agreement are not always transactional
The exchange might change on a daily basis, showing that it's more
about the relationships and the persons involved
What are employment norms?
oAccording to Bird: "employment norms embrace what legal agreements cannot.
Virtually every aspect of the employment relation that falls outside the treatment by K lawyers
– corp culture, office politics, future planning, and the complex social matrix of
organizational ife – is the exclusive domain of norms" (p 150)
oEmployment norms are perceived as law more than laws are"
oReflection: what are examples of typically unwritten employment norms?
Relational K:
oHe looks at a number of key work places at a specific time period (of transition).
find more resources at oneclass.com
find more resources at oneclass.com
oWhy is it significant that the at-will employee is engaged not only in performance of a K,
but is "constantly remaking the k?"
Bundled together, work norms form a K, a relational K, which is more important
to the parties in most situations than any formal written agreement" (Patterson v. McLean
Credit Union)
oPsychological Ks form an integral part of relational Ks (Katherine Stone's work)
Status in employment law
o"one of the fundamental problems is that much of the employment law simply engrafts
K law upon the employment relationship" P158
oWhat historical relationship, according to Bird, encapsulates the employment
relationship?
oAre you surprised that Bird offers (provocative/evocative) contemp parallels?
"the corporation may be today's modern lord and the employee its vassal"
(161)
What is the link to broader social protection?
The most significant feature in a K of employment is time? T or F
Characteristics of a relational K, according to Bird (p153)
1. Time – long term
2. Open terms, with discretion reserved to plan for the future
3. Future cooperation, accommodation is expected – governance arrangements are agreed
upon
4. Benefits and burdens and shared, not divided (cooperative rather than self-interest and
opportunism)
5. Capital (including social capital) investments specific to the needs of the K are made
6. Personal relationships arise forging bonds of friendship, interdependence and altruism
7. Dispute resolution is prearranged
8. Relationship gains independent value apart from the exchange
To what extent are the elements of the relational K shaped by state law?
1. Next class: look at these "other sources"
2. Key point: state and non-state or pluralist sources of law in the employment relationship
are not so readily severable... they shape one another, and shape the broader understanding of
the nature and meaning of work in society
3. Bird's acticle is set in the US, and there is a key difference:
"Employment at will" in the US
1. Bird's core concern: temriantion of employment
2. Core characteristic: employer (and employe) right to termiante the K relationship
without just cause
3. Some limits over time in US: notably on equal emplloyment opportunity law (anti-
discrimiantion measures)
4. Bird – seeks to explain what employees expect, based in part on what they give up and
what they reasonably expect at different stages in the lifecycle
5. Notion of reasonable notice: Ks of indefinite time, even if they say you have the job until
you retire. The courts decide what is reasonable. Based on life cycles approach
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find more resources at oneclass.com
Life cycles at work: 4 phase model of career-wage relationships (Bird p155ff)
Phase 1: Recruitment
oNew employee, new relationship
oWages received are equal to or slightly in excess of employee's value to the firm
oTransaction-specific investments
Phase II
oEmployee leans new skills
oValue of the employee's "marginal product" is increased:
BEYOND the value of her wage
BEYOND the opportunity for higher wages elsewhere
oMoment of high opportunity to leave to optimize wages and opportunities
Why does Bird suggest she would stay? What outweighs higher wages
elsewhere?
What significance does/(did) "deferred benefit" play in the employment
relationship – employees reliance on future cooperative behaviour...
Are these new relational terms?
oEmbedding a long-term relationship
Back to time...
Future opportunities for promotion, for career development, and for
salary icnreases
Is it all hypothetical?
What else might be embedded in the long-term relationship?
Does Bird consider how important is it for the embedded understandings to be
shared? By the employer? By the judiciary? By the broader society?
Phase III
o"the employee is worth much 'more to her employer than she is to other employers'"
(citing Stone)
oPaid more than her opportunity wage
Value of her marginal product MINUS her firm-specific investments and
transaction costs
I.e. worth it for employee to keep her
Phase IV
oDecelerating productivity accord to Bird (ageism?)
oSo why does pay not drop?
Weight of "custom, norms, or pre-set pay ladders"
oBird: recoupment stage by the employee of the benefits of "long term, firm-specific
training and deferred compensation"
oFruit of planning...
Comfortable job & wage, strong security, retirement with pension benefits and
healthcare
Psychological K
oFocus: implicit understandings of both employees AND employers – RECIPROCITY?
oIs this individualized? We have talked so far about individual employees – by page 165f-
166, the language has shifted to "labour and management" and then back again to the
individual employee at page 166... why?
oCan the psych K described by Bird survive under the individual employment
relationship? What is the context?
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Jan 15 - 17: regulating the employment relationship: sources, history & context. Jan 15 employment as a relational k (bird) Ranking the importance of reasons why people work: How does emp law take into account of these things broadly more direct or indirectly. Gives us a good sense of the shift that is currently still underway o. The model in which our understanding of employment law is framed. Bird: "employees find satisfaction from not just wages, but the sociability, security, dignity, self-respect, and meaningfulness that gainful employment brings" o. Chief justice dickson"s dissent: "work is one of the most fundamental aspects of a person"s life a person"s employment is an essential component of his or her sense of identity, self-worth and well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person"s dignity and self-respect" (reference re public service employee relations act, para.
