case study labour rights

Labor Forecasting

Task Management

Communications

Performance Management

Employee Engagement

Time & Attendance

Wage & Hour Automation

Restaurants

Hotels & Resorts

Bars & Breweries

Quick Service Restaurants

Stadiums & Events

Apparel & Fashion

Food Retail

Specialty Retail

Physicians & Clinics

CEO & Owner

Chief Financial Officer

General Manager

Human Resources

HR Department of 1

Payroll Manager

Implementation & Launch

Partners & Integrations

The top 7 recent employment law cases you should know

By David I. Brody

Jul. 31, 2020

When March began this year, nobody had any idea what was just around the corner – a global pandemic, a fiscal meltdown, unprecedented unemployment and a national reckoning with the terrible consequences of centuries of racial violence and inequity. Then we all witnessed a historic decision from the Supreme Court, affirming, at long last, that our family and friends in the LBGTQ community are protected from discrimination in employment under federal law. 

In this ever-changing landscape, it is increasingly important to keep up to speed on the latest employment legal cases and developments. Below is a brief summary of the seven most significant employment legal cases.

1. U.S. Supreme Court Issues Landmark Civil Rights Decision

Bostock v. Clayton County, 590 U.S. (2020)

The Supreme Court has issued a landmark decision in Bostock v. Clayton County , holding that Title VII prohibits discrimination against employees based upon sexual orientation and transgender status. 

In the 6-3 Opinion of the Court, written by Justice Gorsuch — who, along with Chief Justice Roberts, sided with the four “liberal” members of the Court — the majority held that a “straightforward” rule emerges from the ordinary meaning and application of Title VII’s prohibition against sex discrimination: 

“[F]or an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex . That has always been prohibited by Title VII’s plain terms — and that should be the end of the analysis.’” 

Such discrimination has long been a violation of Massachusetts law, Chapter 151B, but with the Bostock decision, it is now clearly unlawful to discriminate in employment on the basis of sexual orientation or gender identity.

2. Unlawful Employment Practices During the COVID-19 Pandemic

During these uncertain times, employers and employees alike are struggling to understand their legal rights and obligations. To that end, there has been a great deal of COVID-specific guidance provided by state and federal agencies, including the U.S. Equal Employment Commission , Massachusetts Commission Against Discrimination , and Office of the Attorney General .

It is important to remember that neither a global pandemic nor an economic recession can be used as a shield by employers to carry out unlawful employment practices. 

Indeed, as the Massachusetts Supreme Judicial Court has noted, just because an employer may be required to “reduce its workforce does not mean that it is free to make its employment decisions on impermissible grounds: ‘even during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons.’” See Sullivan v. Liberty Mut. Ins. Co. , 444 Mass. 34, 41–42 (2005).

If you think that you may have been illegally targeted, seek legal counsel as soon as possible and prior to waiving any legal rights.

Hlatky v. Steward Health Care System, Inc., 484 Mass. 566 (2020)

Following a jury trial, Dr. Hlatky, an experienced cancer researcher, was awarded $10 million in damages in a breach of contract action against her former employer, Steward Health. The $10 million damage award represented the cost of reestablishing her research laboratory, which she lost as a result of Defendant’s unlawful conduct. 

On appeal, the Massachusetts Supreme Judicial Court unanimously agreed the damages awarded were not too speculative, noting that the harm suffered by Dr. Hlatky, including the loss of her research laboratory, equipment, and cell samples, constituted her “life’s work.”

The Court was, however, divided regarding whether restrictions should be imposed on how Dr. Hlatky could use the $10 million award. In the six Justice decision, three Justices were concerned that, since the laboratory had not actually belonged to Dr. Hlatky, an unrestricted award might put Dr. Hlatky in a better position than she would have been had there been no breach, e.g., “[n]othing would prevent Hlatky from spending the $10 million on a house or a yacht rather than on the re-establishment of a cancer research laboratory.”

The other three Justice were not persuaded, “Whether she wishes to start again, whether she even could start again after so much time has passed and her faculty position has been lost, whether she wishes to use the money to fund different research or others; research in the same field, or whether she wants to hike the Appalachian trail — these matters simply are not our concern.”

These Justices pointed out that imposing restrictions on such a damage award would open a “Pandora’s box of unknown future harm to the predictability of contract law upon which contracting parties have relied for hundreds of years.”

As the Court was equally divided, the trial court’s award of monetary damages – without restrictions – was affirmed.

4. Non-Competition Agreements and the “Material Change” Doctrine

Now Bus. Intel., Inc. v. Donahue, C.A. No. 17-3732 (Middlesex Sup Ct. Apr. 1, 2020)

A non-competition agreement may become unenforceable if, after execution, the terms and conditions of employment are modified to the point where the parties have effectively abandoned the original employment agreement and entered into a new employment agreement. This is known as the “material change” doctrine which was delineated in F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585 (1968). The application of the material change doctrine is a highly fact-specific inquiry and will focus on factors, such as promotions, changes in job duties and titles, changes in remuneration, changes to sales area, as well as the associated time periods for such changes.

In the recent case of Now Bus. Intel. Inc. V. Donahue , the Superior Court rejected an employee’s material change defense to the enforceability of his non-compete. In granting Summary Judgment in favor of the former employer, the Court ultimately held that the temporary and short-term changes to the employee’s job duties, without more, did not amount to a material change sufficient to render otherwise reasonable and valid post-employment restriction unenforceable.

5. Anti-SLAPP Motion Revived

Rosario v. Caring Bees Healthcare, Inc., C.A. No. 19-P-1223 (Mass. App. Ct. June 5, 2020)

Retaliatory lawsuits designed to silence one from speaking out are referred to as strategic lawsuits against public participation, or “SLAPP Suits,” and are expressly forbidden in Massachusetts. See the Anti-SLAPP Statute, M.G.L. c. 231, § 59H (the “Statute”). The Statute provides a quick mechanism to dispose of SLAPP suits, and it allows the victim of a SLAPP suit to recover attorney’s fees.

Here, Ms. Rosario had complained (to co-workers, her mother, the MCAD, and, finally, in court) of sexual harassment by her supervisor, Jean Paul Karangwa. In response, Mr. Karangwa counter-sued Ms. Rosario for defamation and intentional infliction of emotional distress. Relying on the Statute, Ms. Rosario moved to dismiss Mr. Karangwa’s counter-claims. The lower court denied her motion, indicating that there was a colorable basis to believe that Ms. Rosario’s statements were defamatory, i.e ., false and causing damage to Mr. Karangwa.

However, the Massachusetts Appeals Court reversed and remanded. The Court reiterated that the legal issue was not solely whether Mr. Karangwa’s claims were “colorable” but also, if so, whether or not they were retaliatory, i.e. , “primarily brought to chill [Ms. Rosario’s] legitimate petitioning activities.” 

In considering whether or not Mr. Karangwa’s counterclaims were retaliatory, the lower court should consider, among other things, (1) whether the claims are ‘typical’ SLAPP claims, e.g., claims that one would not likely bring on their own, (2) the temporal proximity of when the counter-claims were brought to when Ms. Rosario engaged in escalated protected activity, e.g., when Ms. Rosario filed her claims to court, and (3) the chilling impact on such activity by, for example, increasing the cost to Ms. Rosario of complaining about sexual harassment.

The case was remanded to the lower court for a sequential application of the correct anti-SLAPP standard.

6. Enforcement of Arbitration Agreements

Theodore v. Uber Technologies, Inc., C.A. No. 18-cv-12147 (D. Mass. Mar. 3, 2020)

Many executives (and employees generally) are subject to arbitration clauses of which they are unaware until a dispute arises. The enforceability of such clauses is often hotly disputed. This is particularly true in civil rights cases, pitting two established principles against each other ( i.e. , the preference for arbitration under federal law against a strong public policy against discrimination). Enforceability is often fact-specific, such as whether the agreement to arbitrate and the waiver of judicial remedy are sufficiently obvious and clear.

Although Theodore is not an employment case, its analysis may be useful, especially regarding on-line forms that invite a user to follow one or more links which can be easily bypassed. The US District Court’s analysis involved not only a review of the text itself but also a discussion of the font size, layout, and background color on the page. The Court went so far as to include screen-shots in the decision.

Ultimately, the Court refused to compel arbitration where Uber invited a customer to click to “CREATE ACCOUNT” without “reasonably communicating” the impact of doing so.

7. The Process – and Not Just the Final Decision – Matters

Comcast Corp. v. Nat’l Assoc. of African American-Owned Media, 140 S.Ct. 1009 (2020)

In Comcast , the Supreme Court of the United States unanimously held that the but-for causation standard applies to claims of racial discrimination raised under 42 U.S.C. § 1981, a statute which guarantees all persons the same right “to make and enforce contracts . . . as is enjoyed by white citizens.” However, the Court expressly declined to decide an issue raised by Comcast, i.e , whether § 1981(a) guarantees only the right to equivalent contractual outcomes, as Comcast argued, or if it also guarantees the right to an equivalent contracting process, as the law has been interpreted for years.

In her concurrence, Justice Ginsburg addressed Comcast’s argument directly:

“I write separately to resist Comcast’s attempt to cabin a ‘sweeping’ law designed to ‘break down all discrimination between black men and white men” … Under Comcast’s view, § 1981 countenances racial discrimination so long as it occurs in advance of the final contract-formation decision. Thus, a lender would not violate § 1981by requiring prospective borrowers to provide one reference letter if they are white and five if they black. Nor would an employer violate § 1981 by reimbursing expenses for white interviewees but requiring black applicants to pay their own way … That view cannot be squared with the statute. An equal ‘right … to make… contracts’ … is an empty promise without equal opportunities to present or receive offers and negotiate over terms … It is implausible that a law ‘intended to secure … practical freedom’ … would condone discriminatory barriers to contract formation.”

As Justice Ginsburg recognized, and recent events have made abundantly clear, we must remain vigilant to protect and expand, not erode, our civil rights laws.

Schedule, engage, and pay your staff in one system with Workforce.com.

Recommended

federal law, minimum wage, pay rates, state law, wage law compliance

Staffing Management

absence management, Employee scheduling software, predictive scheduling, shift bid, shift swapping

Time and Attendance

labor costs, overtime, scheduling, time tracking, work hours

Join over 52,000 of your HR peers

Don't miss out on the latest tactics and insights at the forefront of HR.

• Find a Lawyer
• Ask a Lawyer
• Research the Law
• Law Schools
• Laws & Regs
• Newsletters
• Justia Connect
• Pro Membership
• Basic Membership
• Justia Lawyer Directory
• Platinum Placements
• Gold Placements
• Justia Elevate
• Justia Amplify
• PPC Management
• Google Business Profile
• Social Media
• Justia Onward Blog

Labor & Employment Supreme Court Cases

Many of the labor and employment cases that have reached the Supreme Court involve claims of discrimination, harassment, or retaliation in the workplace. These may arise under Title VII of the Civil Rights Act of 1964, which prohibits adverse employment actions based on the race, color, religion, sex, or national origin of an employee. The Supreme Court also has reviewed cases under parallel anti-discrimination laws, such as the Americans With Disabilities Act and the Age Discrimination in Employment Act.

Meanwhile, the Employee Retirement Income Security Act of 1974 imposes rules for pension, health, and other benefit plans in the private sector. The Supreme Court has clarified ERISA terms and requirements, in addition to determining whether ERISA preempts various state laws. The ERISA preemption clause provides that the law supersedes any state laws to the extent that they relate to employee benefit plans. However, the ERISA savings clause allows states to regulate the business of insurance.

Other workplace issues addressed by the Supreme Court include employee privacy, wage and hour rules under the Fair Labor Standards Act, and the free speech rights of government employees. The Court also has discussed the use of arbitration to resolve labor and employment disputes.

Below is a selection of Supreme Court cases involving labor and employment, arranged from newest to oldest.

Author: Clarence Thomas

The traditional four-factor test for a preliminary injunction governs NLRB requests for a preliminary injunction from a federal district court while administrative enforcement proceedings take place.

Author: Elena Kagan

Although an employee must show some harm from a forced job transfer to prevail in a Title VII claim, they do not need to show that the injury satisfies a significance test.

Author: Samuel A. Alito, Jr.

Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. The impact on coworkers is relevant only to the extent that it goes on to affect the conduct of the business.

Author: Neil Gorsuch

An employer that fires an individual merely for being gay or transgender violates Title VII.

The federal-sector provision of the ADEA demands that personnel actions be untainted by any consideration of age.

The state's extraction of agency fees from non-consenting public-sector employees violates the First Amendment.

Author: Ruth Bader Ginsburg

Dodd-Frank's anti-retaliation provision does not extend to an individual who has not reported a violation of the securities laws to the SEC.

Author: Stephen Breyer

When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer's actions are based on a factual mistake about the employee's behavior.

Author: Anthony Kennedy

ERISA preempts a state law that governs or interferes with the uniformity of plan administration.

Author: Antonin Scalia

To prevail in a disparate treatment claim, an applicant needs to show only that their need for an accommodation was a motivating factor in the employer's decision. They do not need to show that the employer had knowledge of their need.

Time spent waiting to undergo and undergoing security screenings is not compensable under the FLSA.

Author: Sonia Sotomayor

A public employee's sworn testimony outside the scope of their ordinary job duties is entitled to First Amendment protection.

Title VII retaliation claims must be proved according to traditional principles of but-for causation.

An employee is a supervisor for the purposes of vicarious liability under Title VII only if they are empowered by the employer to take tangible employment actions against the victim.

Author: John Roberts

The Establishment and Free Exercise Clauses bar lawsuits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.

A government employer's allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause of the First Amendment unless the employee's petition relates to a matter of public concern.

In an employment discrimination class action, the conceptual gap between an individual's discrimination claim and the existence of a class of persons who have suffered the same injury must be bridged by significant proof that an employer operated under a general policy of discrimination. More generally, a class in a proposed class action has common questions of law or fact if their claims depend on a common contention of such a nature that it is capable of classwide resolution, which means that determination of its truth or falsity will resolve an issue that is central to the validity of each of the claims in one stroke.

If a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, the employer is liable.

A government employer had a right to read text messages sent and received on a pager that the employer owned and issued to an employee.

Before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe that it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action.

A plaintiff bringing an ADEA disparate treatment claim must prove that age was the but-for cause of the adverse employment action.

A provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law.

Author: David Souter

An employer defending a disparate impact claim under the ADEA bears both the burden of production and the burden of persuasion for the “reasonable factors other than age” (RFOA) affirmative defense.

The anti-retaliation provision of Title VII covers only those employer actions that would have been materially adverse to a reasonable employee or applicant. The plaintiff must show that the challenged action well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

When public employees make statements pursuant to their official duties, the Constitution does not insulate their communications from employer discipline.

Author: John Paul Stevens

When employees must don protective clothing on the employer's premises before they engage in the productive labor for which they are primarily hired, the time that employees spend walking between the changing area and the production area is compensable under the FLSA. However, the time that employees spend waiting to put on the protective gear is not compensable.

While the ADEA authorizes recovery in disparate impact cases, ADEA Section 4(f)(1) significantly narrows its coverage by permitting any otherwise prohibited action when the differentiation is based on reasonable factors other than age.

ERISA prevents individuals from suing HMOs in state court for pure eligibility decisions. Also, if an individual at some point in time could have brought their claim under ERISA Section 502(a)(1)(B), and no other independent legal duty is implicated by a defendant's actions, the individual's cause of action is completely preempted.

A plaintiff alleging sexual harassment can establish constructive discharge if they can show that the abusive working environment became so intolerable that their resignation qualified as a fitting response. An employer may assert the Faragher affirmative defense unless the plaintiff quit in reasonable response to an adverse action officially changing their employment status or situation.

Direct evidence of discrimination is not required for a plaintiff to obtain a mixed motive jury instruction under Title VII.

The common-law element of control is the principal guidepost to be followed in deciding whether director-shareholder physicians in a medical clinic should be counted as employees for the purposes of the ADA. Factors to be considered in deciding whether a shareholder-director is an employee include whether the organization can hire or fire the individual or set rules for their work, whether the organization supervises their work, whether they report to someone higher in the organization, whether they can influence the organization, whether written agreements or contracts show that the parties intended the individual to be an employee, and whether the individual shares in the profits, losses, and liabilities of the organization.

HMOs may be insurers and thus subject to state regulation of insurers. State laws directed toward the insurance industry are saved from preemption under ERISA's saving clause.

An agreement between an employer and an employee to arbitrate employment-related disputes does not bar the Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an ADA enforcement action.

Author: Per Curiam

Judicial review of a labor arbitration decision pursuant to a collective bargaining agreement is very limited. Courts are not authorized to review an arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. Even when the arbitrator's award may properly be vacated, the appropriate remedy is to remand the case for further arbitration proceedings.

A retaliation claim will not withstand a summary judgment motion when nobody could reasonably believe that the incident of which the plaintiff complained violated Title VII.

The exemption in Section 1 of the Federal Arbitration Act, which excludes contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce, is confined to transportation workers.

Author: Sandra Day O’Connor

A prima facie case of discrimination, combined with sufficient evidence for a reasonable jury to reject the employer's non-discriminatory explanation for its decision, may be adequate to sustain a finding of liability for intentional discrimination under the ADEA.

Mixed treatment and eligibility decisions by health maintenance organization (HMO) physicians are not fiduciary decisions under ERISA.

An employer's conduct does not need to be independently egregious to satisfy the requirements for a punitive damages award in a Title VII case. However, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents when these decisions are contrary to the employer's good-faith efforts to comply with Title VII.

For a union to waive employees' rights to a federal judicial forum for statutory anti-discrimination claims, the agreement to arbitrate these claims must be clear and unmistakable.

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee. When no tangible employment action is taken, the employer may raise an affirmative defense if they can show that they exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover damages from the employer without showing that the employer was negligent or otherwise at fault for the supervisor's actions, but the employer may interpose an affirmative defense. (The defense consists of the elements in Faragher below.)

Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.

The power to amend or abolish an employee welfare benefit plan does not include the power to discriminate against the plan's participants and beneficiaries for the purpose of interfering with their attainment of rights under the plan.

The salary-basis test denies exempt status under the Fair Labor Standards Act when employees are covered by a policy that permits disciplinary or other deductions in pay as a practical matter. That standard is met if there is either an actual practice of making such deductions or an employment policy that creates a significant likelihood of such deductions.

When employers or other plan sponsors adopt, modify, or terminate pension plans, they do not act as fiduciaries but are analogous to settlors of a trust.

The fact that one member of a protected class lost out to another member is irrelevant to an employment discrimination claim so long as they lost out because of their protected trait.

A law operating as an indirect source of merely economic influence on administrative decisions should not suffice to trigger ERISA preemption.

An employee discharged in violation of the ADEA is not barred from all relief when, after their discharge, their employer discovers evidence of wrongdoing that, in any event, would have led to their termination on lawful and legitimate grounds had the employer known of it.

Title VII is violated when the workplace is permeated with discriminatory behavior that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment. This standard requires an objectively hostile or abusive environment, as well as the victim's subjective perception that the environment is abusive.

An employment decision based on years of service is not necessarily age-based, since this factor is analytically distinct from age.

The common-law test for determining who qualifies as an employee under ERISA considers the hiring party's right to control the manner and means by which the product is accomplished. Other factors to consider include the skill required, the source of the instrumentalities and tools, the location of the work, the duration of the relationship between the parties, the extent of the hired party's discretion over when and how long to work, and the method of payment, among others.

Author: Byron White

An ADEA claim can be subjected to compulsory arbitration.

ERISA's deemer clause demonstrates Congress' clear intent to exclude from the reach of the saving clause self-funded ERISA plans by relieving them from state laws purporting to regulate insurance. State laws directed toward such plans are preempted because they relate to an employee benefit plan but are not saved because they do not regulate insurance.

The proper comparison in a disparate impact employment discrimination case is generally between the racial composition of the at-issue jobs and the racial composition of the qualified population in the relevant labor market.

Author: William Brennan

In the specific context of sex stereotyping, an employer that acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.

A policy of paying discharged employees for their unused vacation time does not constitute an employee welfare benefit plan within the meaning of ERISA, and a criminal action to enforce that policy is not foreclosed.

For disclosure purposes, a “participant” in an ERISA plan means an employee in currently covered employment (or reasonably expected to be in currently covered employment), or a former employee who has a reasonable expectation of returning to covered employment or who has a colorable claim to vested benefits. To establish that they may become eligible for benefits, a claimant must have a colorable claim that they will prevail in a suit for benefits, or that eligibility requirements will be fulfilled in the future.

The National Labor Relations Act does not permit a union, over the objections of dues-paying non-member employees, to expend funds collected from them on activities unrelated to collective bargaining activities.

Disparate impact analysis in an employment discrimination claim may be applied to subjective employment criteria.

To be preempted by ERISA, a state statute must have some connection with or reference to a plan.

ERISA preempts state common law tort and contract actions asserting improper processing of a claim for benefits under an insured employee benefit plan.

Both the inception and the scope of the intrusion must be reasonable when a public employer intrudes on the constitutionally protected privacy interests of government employees for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct.

Author: William Rehnquist

A claim of hostile environment sexual harassment is a form of sex discrimination that is actionable under Title VII.

Author: Harry Blackmun

A law relates to an employee benefit plan for ERISA purposes if it has a connection with or reference to such a plan.

When a public employee speaks as an employee on matters only of personal interest, a federal court is generally not the appropriate forum to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

A non-job-related test that has a disparate impact and is used to limit or classify employees is used to discriminate within the meaning of Title VII, even if it was not designed or intended to have this effect and even if an employer tries to compensate for its discriminatory effect.

Author: Lewis Powell

When a plaintiff in a Title VII case has proved a prima facie case of employment discrimination, the defendant bears only the burden of explaining clearly the non-discriminatory reasons for its actions. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.

Author: Potter Stewart

A regulation could permit private employees of a private employer to avoid workplace conditions that they believe pose grave dangers to their own safety, when the employees have no power under the regulation to order their employer to correct the hazardous condition or to clear the dangerous workplace of others.

A public employee does not forfeit their First Amendment protection when they arrange to communicate privately with their employer, rather than expressing their views publicly.

To establish a prima facie case of employment discrimination, a plaintiff need only show that facially neutral standards select applicants for hire in a significantly discriminatory pattern. If the employer proves that the challenged requirements are job-related, the plaintiff may show that other selection devices without a similar discriminatory effect would also serve the employer's legitimate interest in efficient and trustworthy workmanship.

Once a prima facie case has been established by statistical workforce disparities, the employer must have an opportunity to show that the claimed discriminatory pattern was a product of pre-Title VII hiring, rather than unlawful post-Title VII discrimination.

In cases alleging a pattern or practice of employment discrimination, the government must show that discrimination was the standard operating procedure of the defendant. Statistics may be used in proving discrimination.

An employee's statutory right to trial de novo under Title VII is not foreclosed by prior submission of their claim to final arbitration under the non-discrimination clause of a collective bargaining agreement.

In a private, non-class action complaint under Title VII charging racial employment discrimination, the complainant has the burden of establishing a prima facie case, which they can satisfy by showing that they belong to a racial minority, they applied and were qualified for a job that the employer was trying to fill, they were rejected, and the employer continued to seek applicants with their qualifications.

Author: Warren Burger

An employment practice that operates to exclude members of a protected group is prohibited if it cannot be shown to be related to job performance, even if the employer lacked discriminatory intent.

Author: Thurgood Marshall

When a public employee's false statements concerned issues that were currently the subject of public attention and did not interfere with the performance of their duties or the general operation of their employer, they were entitled to the same protection as if the statements had been made by a member of the general public.

Author: Robert H. Jackson

Rulings, interpretations, and opinions of agency administrators are not controlling on courts but provide a body of experience and informed judgment that courts can use for guidance. The weight of such a judgment depends on the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control. Also, no principle of law precludes a determination that waiting time is working time under the Fair Labor Standards Act.

The fact that an employer has individual contracts of employment with a majority of its employees does not preclude the employees from exercising their right under the National Labor Relations Act to choose a representative for collective bargaining, nor does it warrant refusal by the employer to bargain with this representative regarding terms covered by the individual contracts.

Author: Charles Evans Hughes

In recognizing the right to strike, the National Labor Relations Act contemplates a lawful strike. When a strike, even if it arose from unfair labor practices, is initiated and conducted in lawlessness by the seizure and retention of the employer's property, and the strikers are discharged because of their lawlessness, they do not remain employees under the NLRA.

A restraint or regulation of the liberty to contract is due process if it is reasonable in relation to its subject and adopted for the protection of the community against evils menacing the health, safety, morals, and welfare of the people. Also, in dealing with the relation of employer and employed, the legislature has a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to ensure wholesome conditions of work and freedom from oppression.

Author: George Sutherland

Legislation fixing hours or conditions of work may properly take into account the physical differences between men and women, but the doctrine that women of mature age require (or may be subjected to) restrictions on their liberty of contract that could not lawfully be imposed on men in similar circumstances must be rejected.

Author: David Josiah Brewer

The regulation of the working hours of women falls within the police power of the state, and a statute directed exclusively to such regulation does not conflict with the Due Process or Equal Protection Clauses.

Author: John Marshall Harlan

It is not within the power of Congress to make it a criminal offense against the United States for a carrier engaged in interstate commerce to discharge an employee simply because of their membership in a labor organization. A provision to that effect is an invasion of personal liberty and the right of property and is unenforceable under the Due Process Clause.

A U.S. court has no jurisdiction under the Thirteenth Amendment or other federal laws of a charge of conspiracy made and carried out in a state to prevent citizens of African descent, because of their race and color, from making or carrying out contracts and agreements to labor.

Author: Rufus Wheeler Peckham

The general right to make a contract in relation to one's business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the state in the legitimate exercise of its police power.

• Due Process
• Free Speech
• Health Care
• LGBTQ+ Rights
• Civil Rights and Discrimination
• Employment Law
• Health Care Law
• Bankruptcy Lawyers
• Business Lawyers
• Criminal Lawyers
• Employment Lawyers
• Estate Planning Lawyers
• Family Lawyers
• Personal Injury Lawyers
• Estate Planning
• Personal Injury
• Business Formation
• Business Operations
• Intellectual Property
• International Trade
• Real Estate
• Financial Aid
• Course Outlines
• Law Journals
• US Constitution
• Regulations
• Supreme Court
• Circuit Courts
• District Courts
• Dockets & Filings
• State Constitutions
• State Codes
• State Case Law
• Legal Blogs
• Business Forms
• Product Recalls
• Justia Connect Membership
• Justia Premium Placements
• Justia Elevate (SEO, Websites)
• Justia Amplify (PPC, GBP)
• Testimonials

You are using an outdated browser. Please upgrade your browser to improve your experience.

CASE STUDY: Zara fights sanctions for forced labour in Brazilian supply chain

Spanish fast fashion giant Zara, an Inditex brand, has been found to source clothes from Brazilian workshops with modern slavery conditions but fought against sanctions in court – showing how corporations seek to avoid liability by hiding behind complex supply chains.

In August 2011, Brazilian federal government inspectors found 15 immigrants working and living under deplorable conditions in two small workshops in São Paolo. Labourers had to work for long days – up to 16 hours – and were restricted in their freedom of movement. The inspectors later concluded that the conditions in the two workshops could be classified as “analogous to slavery”. [1]

Sanctions for modern slavery

The workers were sewing clothes for Zara, a brand of Inditex, the world-renowned fast fashion pioneer from Spain. The workshops where the abuses took place were subcontracted by Zara’s supplier. [2] According to the government inspection report, Zara Brasil exercised directive power over the supply chain and therefore should be seen as the real employer and should be held legally responsible for the situation of the workers.

The company faced several sanctions: it was fined for 48 different infractions found during the inspection of the workshops; and the company risked entering the so-called ‘dirty list’ of slave labour – a public registry of individuals or enterprises caught employing workers under conditions analogous to slavery.

In 2015, Zara Brasil was fined again, this time because it cut ties with almost all the workshops that employed immigrants, legally or not, instead of attempting to improve the conditions for workers who were suffering from modern slavery conditions. This new fine, issued by the Ministry of Labour and Employment, was justified because of Zara Brasil’s discriminatory working patterns. [3]

Blaming the contractor

Zara Brasil challenged these sanctions in court, arguing that the subcontracting arrangement was not authorised by them, that Zara Brasil was not aware of it (implying that it had a deficient monitoring system), and that its contracting party had been deceiving them through their audit reports. [4]

The arguments used in the courtroom, however, contradict the message that Inditex sends to its customers: that it effectively monitors its supply chain, and that customers can be assured that there are no human rights abuses attached to their clothing brand. Zara Brasil eventually lost its case and the consequent appeal, and the case was closed in November 2017. [5]

The litigation strategy used by Zara Brasil is a clear cut example of a company doing everything in its power to escape liability for the human rights abuses found in its supply chain.

[1] André Campos, Martje Theuws and Mariëtte van Huijstee, “From moral responsibility to legal liability?”, (Amsterdam: Stichting Onderzoek Multinationale Ondernemingen (SOMO), 2015), p. 9, https://network.somo.nl/wp-content/uploads/2015/05/From-moral-responsibility-to-legal-liability.pdf (accessed October 30, 2019).

[2] Campos, Theuws and van Huijstee, p. 71.

[3] Campos, André, “Zara corta oficinas de imigrantes e será multada por discriminação,” Repórter Brasil , 5 September 2015, https://reporterbrasil.org.br/2015/05/zara-corta-oficinas-de-imigrantes-e-sera-multada-por-discriminacao/ (accessed October 30, 2019).

[4]  Campos, Theuws and van Huijstee.

[5] Lidas, Mais. “Zara é Responsabilizada Por Trabalho Escravo e Pode Entrar Na ‘Lista Suja.’” Brasil Econômico , November 14, 2017. https://economia.ig.com.br/2017-11-14/zara-trabalho-escravo.html (accessed October 30, 2019); Zara Brasil Ltda. v. União 00016629120125020003 + 00089052720145020000 (Tribunal Regional do Trabalho da 2 a Região São Paulo November 7, 2017), (accessed October 30, 2019).

Labor and Employment: The American Worker

• Landmark Cases
• Search Tips
• Additional Resources
• Related HeinOnline Blog Posts
• Help Resources

HeinOnline Specialist

Labor Law Cases

Unique to this database is a chart of landmark court cases related to labor and employment law.

• Shows 24 landmark court cases, accompanied by their decision year and a brief synopsis of the case
• Each case is linked directly to the original full-text decision
• Includes cases from the U.S. Supreme Court and state courts
• Cases included range from 1842 to 2018

• << Previous: Timeline
• Next: Documents >>
• Last Updated: Mar 22, 2024 11:51 AM
• URL: https://libguides.heinonline.org/labor-and-employment

Brill | Nijhoff

Brill | Wageningen Academic

Brill Germany / Austria

Böhlau

Brill | Fink

Brill | mentis

Brill | Schöningh

Vandenhoeck & Ruprecht

V&R unipress

Open Access

Open Access for Authors

Transformative Agreements

Open Access and Research Funding

Open Access for Librarians

Open Access for Academic Societies

Discover Brill’s Open Access Content

Organization

Stay updated

Corporate Social Responsiblity

Investor Relations

Policies, rights & permissions

Review a Brill Book

Author Portal

How to publish with Brill: Files & Guides

Fonts, Scripts and Unicode

Publication Ethics & COPE Compliance

Data Sharing Policy

Brill MyBook

Ordering from Brill

Author Newsletter

Piracy Reporting Form

Sales Managers and Sales Contacts

Ordering From Brill

Titles No Longer Published by Brill

Catalogs, Flyers and Price Lists

E-Book Collections Title Lists and MARC Records

How to Manage your Online Holdings

LibLynx Access Management

Discovery Services

KBART Files

MARC Records

Online User and Order Help

Rights and Permissions

Latest Key Figures

Latest Financial Press Releases and Reports

Annual General Meeting of Shareholders

Share Information

Specialty Products

Press and Reviews

Share link with colleague or librarian

Stay informed about this journal!

• Get New Issue Alerts
• Get Advance Article Alerts

International Labor Rights Case Law

Annotated jurisprudence on fundamental rights at the workplace.

• International Commercial, Trade & Investment Law

Institutional pricing (2024)

• Print Only €474.00 $549.00
• Print + Online €517.00 $599.00
• Online only €431.00 $499.00
• To place an order, please contact [email protected]

Individual pricing (2024)

• Online only €179.00 $235.00
• Print Only €179.00 $235.00

Journal menu

Editorial board, subject list.

• View PDF Flyer

Latest Articles

Front matter.

• Download PDF

Introduction by the Editorial Team

1 constitutional court of the republic of türkiye: muharrem çimen’s application (application no: 2016/5002), 23 march 2023, legal nature of slowdown actions in light of muharrem çimen’s application, 2 committee on freedom of association ( cfa ) of the international labor organization ( ilo ): complaint against the government of cameroon presented by the confederation of public service unions ( cps ), case no 3428, june 2023, freedom of association and covid-19 : striking a balance, 3 south african constitutional court, national union of metalworkers of south africa v. trenstar (pty) ltd [2023], zacc 11, 18 april 2023, balancing power in collective bargaining: the south african constitutional court’s stance on temporary replacement labor, 4 brazilian federal supreme court: extraordinary appeal with grievance ( are ) 10118459 with general application, freedom of association and union financing: a change of direction according to brazil’s highest constitutional court, 5 irish workplace relations commission: hamill v. department of defence , 1 march 2023, religious ordination requirement and military chaplains in ireland, 6 ontario workplace safety and insurance appeals tribunal in canada, 15 september 2023, workers entitled to return to work and loss of earnings compensation based on their jamaican labor markets, tribunal rules, 7 bahia labour court in brazil, 18 september 2023, the cargill conviction on slave and child labor: an analysis of company accountability in the supply chain, 8 commission of inquiry on myanmar set up by the governing body ( gb ) of the international labor organization, 4 october 2023, report of the ilo ’s second commission of inquiry into labour rights in myanmar: continued forced labour and violations of freedom of association, 9 oecd national contact point, chile, foreign mining company & natural persons, final statement , 17 november 2021, challenges and implications of the grievance procedure under oecd guidelines for labor rights: a chilean ncp case study, 10 court of justice of the european union: case d.m. v. azienda ospedale-università di padova (c-765/21), judgement of the court (second chamber) on 13 july 2023, if jabless then jobless eu court refuses to second-guess national covid -19 vaccination mandate contested by health-care worker.

Reference Works

Primary source collections

COVID-19 Collection

How to publish with Brill

Open Access Content

Contact & Info

Sales contacts

Publishing contacts

Stay Updated

Newsletters

Social Media Overview

Terms and Conditions  

Privacy Statement  

Cookie Settings  

Accessibility

Legal Notice

Terms and Conditions   |   Privacy Statement   |  Cookie Settings   |   Accessibility   |  Legal Notice   |  Copyright © 2016-2024

Copyright © 2016-2024

• [185.39.149.46]
• 185.39.149.46

Character limit 500 /500

20 YEARS OF

Business & Human Rights Resource Centre

Show all languages ? You're browsing our English site, so by default we are only showing content in English. If you'd prefer to view all available content regardless of language, please change this switch.

22 Jun 2017

KnowTheChain case study: How are footwear companies and luxury clothing brands tackling forced labour risks in their leather supply chains?

This case study assesses how a sample of five footwear companies and five luxury clothing brands address forced labour risks across their leather supply chains.

The study follows KnowTheChain’s first apparel and footwear benchmark which found a lack of transparency and action to address forced labor abuses beyond first-tier suppliers, particularly in leather. [...]

Key findings of the case study include:

• Publicly available information as well as information provided to us revealed very little on how—apart from auditing suppliers—companies address forced labor risks in countries where they produce hides, process leather, and manufacture leather goods. The German sportswear manufacturer Adidas marks the exception: Adidas trained tanneries in Taiwan and China on how to address forced labor risks and is developing multi-stakeholder partnerships to address risks at third-tier leather hide suppliers in Brazil and Paraguay. This contrasts with the complete lack of disclosure from Belle International, China’s largest shoe retailer. [...]
• Most companies have made commitments to improve supply chain labor conditions. Commitments range from increasing supplier transparency, to undertaking supply chain human rights impact assessments, to developing strategies for social compliance at the tannery level.
• Most companies in our sample participate in more than one multi-stakeholder or other initiative focused on improving labor standards in apparel supply chains. This is an important opportunity for both the initiatives as well as for member companies to work together to ensure robust forced labor standards and accountability mechanisms are developed and implemented, including for lower tiers of supply chains.

KnowTheChain: Ranking of 37 apparel and footwear companies on efforts to address forced labour in supply chains

KnowTheChain assessed the 37 largest global apparel and footwear companies on their efforts to address forced labor risks in supply chains.

KnowTheChain: Ranking of 43 food and beverage companies on efforts to address forced labour in supply chains

In its third benchmark on the sector, KnowTheChain finds that most of the 43 largest global food and beverage companies fail to address forced labor risks in their supply chains—a litmus test of minimum fair treatment of workers.

KnowTheChain: Ranking of 49 ICT companies on efforts to address forced labour in supply chains

Knowthechain investor snapshot: forced labor in forestry (incl. paper & forest products), knowthechain investor snapshot: forced labour in the construction sector, 了解供应链：2019年跨行业报告显示打击强迫劳动的进展和不足之处, knowthechain: 2019 cross-sector report highlights progress and gaps in the fight against forced labour, investors commend top apparel & footwear companies in 2018 knowthechain benchmarking report on efforts to eradicate forced labor in supply chains, knowthechain: ranking of 43 apparel and footwear on efforts to address forced labour in supply chains, knowthechain: ranking of 38 food and beverage companies on efforts to address forced labour in supply chains, knowthechain: ranking of 40 ict companies on efforts to address forced labour in supply chains, knowthechain - analysis of modern slavery statements in the electronics sector, knowthechain announces 125 companies to be benchmarked in 2018, cereal, drinks companies often overlook risk of forced labor in sugarcane: study, knowthechain case study: how food and beverage companies tackle forced labour risks in sugar supply chains, knowthechain apparel & footwear action guide on supply chain forced labour, knowthechain report highlights gaps and better practices on worker voice and remedy, outreach to food & beverage companies on forced labour risks in sugar sourcing, outreach to footwear and luxury goods companies on forced labor risks in leather sourcing, knowthechain food & beverage action guide on supply chain forced labour, are investors taking action to eradicate forced labor and human trafficking from their portfolios, hong kong lags behind in the battle against modern-day slavery, investor calls on peers to hold portfolio companies in the food sector accountable for forced labour, knowthechain: ranking of 20 apparel and footwear companies on efforts to address forced labour in the supply chain, migrant workers in agricultural supply chains: companies must act on recruitment, worker voice and traceability, investors welcome benchmark study of forced labor risks in food and beverage sector, knowthechain: ranking of 20 food & beverage companies on efforts to address forced labour in the supply chain, knowthechain ict company action guide, we’ve asked, many responded: how engaged are technology, food, and apparel companies on forced labor, blog: decision-making in a context of uncertainty – why investors should look at forced labor in their portfolios, bennett freeman: investors should pay attention to how ict firms manage forced labour in supply chains, knowthechain disclosure page - food and beverage, knowthechain disclosure page - apparel and footwear, "knowthechain publishes benchmark methodology and announces 20 ict companies to be assessed, knowthechain disclosure page - ict, knowthechain methodology framework.

Analysis of Coca-Cola Company Violation of Employees' Rights Case

• August 2023
• Highlights in Business Economics and Management 16:471-476
• CC BY-NC 4.0
• This person is not on ResearchGate, or hasn't claimed this research yet.

Discover the world's research

• 25+ million members
• 160+ million publication pages
• 2.3+ billion citations

• BIODIVERS CONSERV

• Nienke Van der Have
• Shabnoor Siddiqui
• Tajinder Singh
• COMPUT HUM BEHAV

• Recruit researchers
• Join for free
• Login Email Tip: Most researchers use their institutional email address as their ResearchGate login Password Forgot password? Keep me logged in Log in or Continue with Google Welcome back! Please log in. Email · Hint Tip: Most researchers use their institutional email address as their ResearchGate login Password Forgot password? Keep me logged in Log in or Continue with Google No account? Sign up

‘BECAUSE WE’RE MERELY LABORERS’, ABUSE OF WORKERS IN NICKEL SUPPLY CHAIN EXPOSED

Press release.

Strong evidence suggests that labor-hire companies on Dinagat Island, a province in the Caraga region of the Philippines, are abusing workers’ rights in the nickel mining sector, Amnesty International reveals in a new report released today.

The report, ‘ Undermining Workers Rights: Labor Rights Abuses in Nickel Supply Chains ’, examines labor practices in the nickel mining sector on Dinagat Islands, and outlines numerous examples of workers being employed without contracts, receiving delayed payment of wages and non-payment of compulsory employee benefits such as Social Security System (SSS), PagIBIG, and PhilHealth contributions.

The research particularly highlights systematic unfair labor practices conducted by labor-hire or subcontracting companies through which mining company workforces are employed. It also examines clear implications for the mining companies themselves, linked to abuse of workers’ rights through their business processing units.

Amnesty’s report puts the statistics into perspective, and lifts the smoke screen on what’s systematically wrong in the mining industry in the Philippines. Butch Olano, Section Director

Nickel Ore for export

According to the Mines and Geosciences Bureau (MGB), the value of mining in Caraga region is at PHP17.74 billion in 2018, or 16.8% of the estimated gross regional domestic product, with an estimated 2,300 people employed by the mining sector in 2019 in Dinagat Island alone.

“Despite the abundance of mineral resources in Caraga, the region remains poor. Dinagat Island in particular, is one of the poorest provinces in the Philippines, with a poverty incidence of 36.7% as of the first quarter of 2019. Amnesty’s report puts the statistics into perspective, and lifts the smoke screen on what’s systematically wrong in the mining industry in the Philippines,” said Amnesty International Philippines Section Director, Butch Olano.

The Philippines is one of the world’s largest producers of nickel ore, and the world’s leading supplier to China. Approximately half of the operating nickel mines in the Philippines are located in Caraga, including in Dinagat Islands, and there is considerable Chinese investment in some of the mining companies operating there.

Chinese investment in the nickel mining sector in the Philippines, and on Dinagat Island, has the potential to have a positive influence on human rights, including the rights of workers but Amnesty’s report findings show the contrary.

This is an outright attempt at deception, which leaves workers in situations of precarity vulnerable to arbitrary terminations. 

Precarious Work

Amnesty International’s research findings exposes strong evidence that workers employed through ‘manpower’ subcontracting or labor-hire companies to work at nickel mine sites on Dinagat Island face abuses of their human rights across the sector. The majority of those employed, who are ‘casual’ or ‘seasonal’ workers, typically work for less than six months at a time during mining season only. One in four workers interviewed for the research said that they did not have written contracts with the mining company or their subcontractors.

“Some of the workers who Amnesty interviewed said that they have worked for the same company for many years but had never even been asked to sign a contract. Even if they did, workers do not understand what’s written in the agreements as the companies make them sign it as ‘a matter of urgency’ towards the end of their employment or only every three months. This is an outright attempt at deception, which leaves workers in situations of precarity vulnerable to arbitrary terminations,” explained Olano. 

Implementing rules of the Labor Code of the Philippines require the signing of a service agreement between the principal and contractor. It allows for the employment of people on a regular, casual or probationary basis. However, seasonal employees are considered regular employees if they have provided one year of service, even if that service is broken because of the seasonal nature of the work they provide, thus requires the signing of an employment agreement.

Amnesty also uncovered that while most workers get the minimum wage, employment in the mining sector can generally be low-paid for many other workers who receive an average monthly wage that is much less than other workers in other industries especially where workers are engaged through subcontractors or labor-hire companies, which is common in Dinagat. The International Labour Organization in 2017 said that a minimum wage earner in the Philippines may not be able to lift his or her household out of poverty.

“When wages are at a minimum only or not paid in a timely manner, it can undermine the ability of workers and their families to enjoy social security, health care, education and an adequate standard of living, including food, water and sanitation and housing. One in five workers Amnesty interviewed also alleged that their SSS and PhilHealth were not properly paid, or not paid at all. Being caught in this situation during a global pandemic can feel like a kick in the teeth,” added Olano.

There is a clear power asymmetry between workers, on one side, and the mining and subcontractors companies, on the other. Fear of retribution is a factor, many of them said they simply do not make complaints “to avoid trouble”.

No one to turn to

Amnesty conducted 50 interviews in 2019 and 2021 and interviewed 100 people in total within five municipalities in Dinagat Island. Most of them talked about work-related abuses such as the absence of an employment contract and non-payment of benefits, but while they know that they can file complaints, they also revealed numerous barriers that are preventing them to do so.

“There is a clear power asymmetry between workers, on one side, and the mining and subcontractors companies, on the other. Fear of retribution is a factor, many of them said they simply do not make complaints “to avoid trouble”. One government representative noted that owners of mining companies are considered ‘big shots’ meaning they can potentially exercise undue social and political influence on the handling of complaints made by workers. Amnesty also found out that a lot of the labor rights violations are perpetrated by the politicians who are businessmen,” explained Olano.

Workers also face practical barriers like the need to travel to Butuan City where the Department of Labor and Employment (DOLE) regional office is located. The travel from San Jose, Dinagat is a two-hour bus ride and another two-hour ferry ride out of the island. This is the same if they want to file a complaint to the National Labor Relations Commission (NLRC), or to check their contributions with SSS or Pag-IBIG. Complainants also need to cover their own expenses, including lawyer’s fees – the Public Attorney’s Office (PAO) for the whole Caraga region only have 52 lawyers with 3,000 clients each. In the case of those who actually file complaints, they often need to wait for a very long time for their complaints to be resolved.

Decent work

The Philippine Labor Code establishes that, in situations where a mining company engages workers through a subcontractor, there exists solidary liability, that is, the mining company is liable along with the contractor or subcontractor for any violation of their workers’ right. Chinese companies engaged in overseas mining investment and cooperation are also expected to follow guidelines for social responsibility developed by the China Chamber of Commerce of Metals Minerals and & Chemicals Importers & Exporters (CCCMC). CCCMC has recognized the importance of due diligence, including in relation to supply chains and human rights.

“Even though the Labor Code establishes solidary liability between the mining company and subcontractors which makes them equally liable for any violations to right to work, the use of sub-contractors actually allows Chinese mining companies to circumvent Philippine labor law, shift the blame to the subcontractors and evade accountability. This is where the Philippine government should step in. Ensuring decent work that respects fundamental human rights, including right to fair conditions at work, safety and remuneration also means strengthening government institutions mandated to enforce labor standards in the mining sector,” said Olano.

Amnesty International Philippines is urging the government to equip relevant line agencies with better resources to have greater capacity to monitor the situation in mining sites, and in instances of labor disputes, a guarantee of fair and timely resolution. The Philippine government must also harmonize relevant legislation, and related orders, rules and regulations such that it is consistent with the UN Committee on Economic, Social and Cultural Rights’ General Comment No. 23 on the right to just and favorable conditions of work.

“It is the low paid, those in precarious employment and working in dire conditions that are exploited and deceived. It is the marginalized, those in minority communities, who often face the greatest threats of discrimination,” explained Olano.

Amnesty’s report exposes abuses of workers’ rights within Dinagat Island, but it represents the general need for the Philippine government to address pre-existing conditions of poverty and lack of access to better work opportunities, further driving insecurity which brings people to their knees. Especially amid the pandemic, forcing workers to settle to sub-standard condition and treatment at work almost constitutes to modern slavery which is unconscionable in all its aspect.

“In Dinagat, though the national government looks at the area as critical for mining, 17 new mining applications were filed after President Duterte lifted the ban on mining in April this year. This is not only telling of the Duterte legacy, it also cements the fate of the labor sector under his regime as it favors profit not people – it is and has always been anti-poor.” Olano concluded.

Full Report and Executive Summary

• Casestudies

Forced labour

"how can a company practically and responsibly identify and address problems of forced labour in lower tiers of its supply chain, particularly when it extends into areas or sectors known to use forced labour", dilemmas and case studies.

• Access to water
• Child labour
• Community relocation
• Conflict minerals
• Cumulative impacts
• Doing business in conflict-affected countries
• Freedom of association
• Freedom of religion
• Freedom of speech
• Gender equality
• Health and safety
• Human trafficking
• Indigenous peoples’ rights
• Living wage
• Migrant workers
• Non-discrimination and minorities
• Product misuse
• Security forces
• Stabilisation clauses
• Working hours
• Working with SOEs
• Case studies

This page presents all relevant good practice case studies that showcase how business have addressed the Forced labour dilemma. Case studies have been developed in close collaboration with a range of multi-national companies and relevant government, inter-governmental and civil society stakeholders. We also draw on public domain sources, including the UN Global Compact's own published Communications on Progress through which signatories are required to report on their performance against the Ten Principles.

The case studies explore the specific dilemmas and challenges faced by each organisation, good practice actions they have taken to resolve them and the results of such action. We reference challenges as well as achievements and invite you to submit commentary and suggestions through the Forum.

IN-DEPTH (Print seperately) Responsible Cotton Network: Combating forced child labour during the cotton harvest - Uzbekistan

IN-DEPTH (Print seperately) ICC: Combating slave labour in the Brazilian charcoal and steel sector - Brazil

Verite, a US-based NGO, conducts research on forced labour and human trafficking around the world, with a particular focus on exploitive labour broker practices. Some of Verite’s projects include:

·          The use of forced labour in the electronics sector in Malaysia

·          Unscrupulous labour practices in the Guatemalan palm oil sector

·          Human rights abuses perpetuated throughout global supply chains of artisanal and small-scale mining (ASM), with a focus on ASM gold in Peru

  Verite aims to engage with companies in implementing strategies to identify and eliminate exploitive labour broker practices from their supply chains in order to minimise the risk of forced labour. Verite also provides courses that provide participants the competencies to perform audits of labour practices within companies, with a focus on auditing compensation, business ethics and working hours. These audits are run by Verite’s partnership organisation, the Electronic Industry Citizenship Coalition (EICC). 

http://www.verite.org

Established in 2002, the International Cocoa Initiative (ICI) is a partnership between NGOs, trade unions, cocoa processors and companies focused on tackling exploitative child labour. Member companies include: Cargill, Hershey’s, Kraft Foods, Mars, Nestle, Twinings and Toms International, amongst others. The ICI works at both the national- and the community-level to foster programmes to combat and prevent forced child labour. The ICI has implemented programmes in Cote d’Ivoire and Ghana.

http://www.cocoainitiative.org

Business Social Compliance Initiative (BSCI) was launched in 2003 by the Foreign Trade Association, a Brussels-based trade association that represents the trade interests of European companies. BSCI acts as an umbrella group for around 1,300 retail companies focused on improving working conditions in their supply chains.

The organisation has developed the BSCI code which addresses a wide range of supply chain issues, including a prohibition on forced labour as well as disciplinary measures for suppliers failing to comply with the code. Members adopt the BSCI Code internally and require their suppliers to come into compliance. BSCI provides capacity building in the form of training and technical assistance. BSCI also relies on external monitoring to ensure conformance to the code. BSCI is a member of the UN Global Compact.

http://www.bsci-eu.org

Founded in 2004, FFC is a New York-based membership organisation of companies seeking to improve working conditions in factories that make consumer goods. FFC shares compliance data between companies in order to improve the availability and standardisation of standards and audits on social, environmental and security standards. Amongst its members are Wal-Mart, Reebok, and Levi Strauss & Co. The FFC receives funding from the US Department of State. Its founders include Reebok, the National Retail Federation and the Retail Council of Canada.

http://www.fairfactories.org

The International Council on Metals and Mining (ICMM) is a CEO-led initiative founded in 2011 which focuses on promoting good practice in the mining and metals sector. Composed of 18 of the world’s largest mining companies and 30 associations, its corporate members include Anglo-American, BHP Billiton, Rio Tinto, Vale, Newmont and Mitsubishi Materials. Members commit to implementing ICMM’s Sustainable Development Framework. The framework comprises a set of 10 principles focused on integrating ethnical business practices across the mining sector, supported by public reporting and independent third-party assurance. The principles were adopted in May 2003. Principle 3 prohibits the use of forced, compulsory and child labour.

Global paper manufacturer Glatfleter implements a policy focused on combating forced labour in its supply chain, based on ILO conventions and national law. The company’s ‘Child and Forced Labor Policy’, which “recognises regional and cultural differences”, explicitly prohibits exploitative working conditions and the use of any forced labour. In order to address the problem, Glatfelter engages with suppliers, industry organisations, civil society representatives and governments.

In its policy document, Glatfelter acknowledges that the risks are particularly elevated for companies sourcing raw agricultural products, due to supply chains which are often long, complex and at risk of perpetuating forced labour use. The company strongly encourages its suppliers, subcontractors and business partners to adhere to its principles on the issue.

http://www.glatfelter.com

As part of its ‘No Child or Forced Labour’ policy, Indian multi-business conglomerate ITC Limited prohibits the use of forced or compulsory labour at all of its units, and maintains that no employee be made to work against their will or be subject to corporal punishment or coercion. The policy is made available to all employees through accessible induction programmes, policy manuals and intranet portals. Trade unions also engage with workers at each ITC unit to ensure they are aware of their rights. All units provide an annual report on any incidents of child or forced labour to divisional heads, and are subject to Corporate Internal Audits and Environment, Health and Safety assessments.

http://www.itcportal.com

Under the California Transparency in Supply Chains Act of 2010 (SB 657), which applies to retail sellers and manufacturers “doing business in the state”, multinational automaker Ford has disclosed its four key principles for the prevention of forced labour use in its supply chains:

·          Firstly, the company engages in risk assessment of its supply base, taking into account the geographic context, commodity type, level of labour required for production, supplier ownership structure and quality performance and the nature of the transaction.

·          Secondly, Ford operates purchase orders which require suppliers to certify compliance with standard terms and conditions on the prohibition of forced labour.

·          Thirdly, along with the other members of the Automotive Industry Action Group (AIAG), Ford conducts training and capacity building for global purchasing staff and suppliers in high-risk markets.

·          Finally, the company carries out regular audits of at-risk ‘Tier 1’ supplier factories, resulting, if necessary, in the completion of corrective action plans to then be reassessed six to 12 months after the original audit.

http://www.ford.com

On 6 May 2013, global sportswear brand Adidas announced that it was gradually launching a new whistle-blowing helpline at all of its Asia-based operations – to enable factory employees to voice potential grievances about labour violations. Workers employed in factories supplying Adidas will be able to send anonymous text messages – limited to 160 characters – to the  SMS Worker Hotline . While managers at the factories will be the main recipients of these text messages, Adidas will also be able to access them. This will allow the company to take direct action – particularly in cases where serious violations such as forced, bonded or child labour are identified.

Adidas acknowledges that workers sometimes do not feel comfortable in bringing issues to the attention of factory management in person. The move by the Germany multinational follows a spate of deadly incidents in Bangladeshi garment factories during 2013, one of the most important source countries for the global clothing industry. In this context, the establishment of worker hotlines can enable factory employees to raise practical issues related to health and safety, as well as labour violations.

Ford implements a supplier training programme to promote responsible working conditions in its supply chain. The programme is focused on “high-priority” countries including those in:

• The Americas (Argentina, Brazil, Colombia, Dominican Republic, Honduras, Mexico, Nicaragua and Venezuela)
• Asia (China, India, Malaysia, the Philippines, South Korea, Taiwan, Thailand and Vietnam)
• Europe, the Middle East and Africa (Morocco, Romania, Russia, South Africa and Turkey)

Training was originally based on Ford’s own Code of Basic Working Conditions and was implemented by Ford at supplier factories. The programme is based on one-day interactive workshops involving multiple suppliers, and is targeted at human resources, health and safety, and legal managers within supplier companies. Each participant is expected to ‘cascade’ relevant training materials to personnel within their own companies – and to their own direct suppliers. Indeed, Ford requires confirmation from participant suppliers that training information has been disseminated to these target groups within four months of each workshop.

The programme has since evolved into a joint initiative with other car manufacturers – in order to reach a larger number of suppliers (many of whom provide parts to multiple brands) more efficiently. This resulted in the formation of the Automotive Industry Action Group (‘AIAG’) through which car manufacturers from North America, Europe and Asia have developed common guidance statements on working conditions – as well as an online training programme for suppliers to the sector. These cover a range of issues including child labour, forced labour, freedom of association, discrimination, health and safety, wages and working hours.

Ford estimates that its training activity (carried out both unilaterally and in conjunction with the AIAG) has reached 2,900 supplier representatives – and been ‘cascaded’ to around 25,000 supplier managers, 485,000 workers and 100,000 sub-tier supplier companies.

Your browser is not supported

Sorry but it looks as if your browser is out of date. To get the best experience using our site we recommend that you upgrade or switch browsers.

Find a solution

We use cookies to improve your experience on this website. To learn more, including how to block cookies, read our privacy policy .

• Skip to main content
• Skip to navigation
• Collaboration Platform
• Data Portal
• Reporting Tool
• PRI Academy
• PRI Applications

• Back to parent navigation item
• What are the Principles for Responsible Investment?
• PRI 2021-24 strategy
• A blueprint for responsible investment
• About the PRI
• Annual report
• Public communications policy
• Financial information
• Procurement
• PRI sustainability
• Diversity, Equity & Inclusion for our employees
• Meet the team
• Board members
• Board committees
• PRI Board annual elections
• Signatory General Meeting (SGM)
• Signatory rights
• Serious violations policy
• Formal consultations
• Signatories
• Signatory resources
• Become a signatory
• Get involved
• Signatory directory
• Quarterly signatory update
• Multi-lingual resources
• Espacio Hispanohablante
• Programme Francophone
• Reporting & assessment
• R&A Updates
• Public signatory reports
• Progression pathways
• Showcasing leadership
• The PRI Awards
• News & events
• The PRI podcast
• News & press
• Upcoming events
• PRI in Person 2024
• All events & webinars
• Industry events
• Past events
• PRI in Person 2023 highlights
• PRI in Person & Online 2022 highlights
• PRI China Conference: Investing for Net-Zero and SDGs
• PRI Digital Forums
• Webinars on demand
• Investment tools
• Introductory guides to responsible investment
• Principles to Practice
• Stewardship
• Collaborative engagements
• Active Ownership 2.0
• Listed equity
• Passive investments
• Fixed income
• Credit risk and ratings
• Private debt
• Securitised debt
• Sovereign debt
• Sub-sovereign debt
• Private markets
• Private equity
• Real estate
• Climate change for private markets
• Infrastructure and other real assets
• Infrastructure
• Hedge funds
• Investing for nature: Resource hub
• Asset owner resources
• Strategy, policy and strategic asset allocation
• Mandate requirements and RfPs
• Manager selection
• Manager appointment
• Manager monitoring
• Asset owner DDQs
• Sustainability issues
• Environmental, social and governance issues
• Environmental issues
• Circular economy
• Social issues
• Social issues - case studies
• Social issues - podcasts
• Social issues - webinars
• Social issues - blogs
• Cobalt and the extractives industry
• Clothing and Apparel Supply Chain
• Human rights
• Human rights - case studies
• Modern slavery and labour rights
• Just transition
• Governance issues
• Tax fairness
• Responsible political engagement
• Cyber security
• Executive pay
• Corporate purpose
• Anti-corruption
• Whistleblowing
• Director nominations
• Climate change
• The PRI and COP28
• Inevitable Policy Response
• UN-convened Net-Zero Asset Owner Alliance
• Sustainability outcomes
• Sustainable Development Goals
• Sustainable markets
• Sustainable financial system
• Driving meaningful data
• Private retirement systems and sustainability
• Academic blogs
• Academic Seminar series
• Introduction to responsible investing academic research
• The Reynolds & Gifford PRI Grant
• Our policy approach
• Policy reports
• Consultations and letters
• Global policy
• Policy toolkit
• Policy engagement handbook
• Regulation database
• A Legal Framework for Impact
• Fiduciary duty
• Taskforce on Net Zero Policy
• Australia policy
• Canada Policy
• China policy
• Stewardship in China
• EU taxonomy
• Japan policy
• SEC ESG-Related Disclosure

• More from navigation items

StepStone: Considering labour, land and data rights in ESG analysis

2021-08-31T07:33:00+01:00

StepStone Group 

• Signatory type: Investment manager 
• Asset class: Private equity 
• Operating region: Global 

StepStone factors ESG into all investment decisions and advocates for the adoption of ESG best practices by its General Partners (GPs). Further, we have integrated human rights considerations into our ESG due diligence, evaluated our supply chain to identify levels of modern slavery risk exposure and incorporated relevant queries in our vendor due diligence. 

Why we incorporate human rights into our investment process 

A strong ESG foundation is essential for incorporating human rights into investment decision-making and asset management. Yet we have noted narrow and sometimes episodic focus areas adopted by GPs, such as diversity and inclusion, operational health and safety, cybersecurity or supply chain considerations. Further, the bulk of human rights due diligence queries in private equity have focused on ensuring supply chains are free from modern slavery in response to regulation in the UK and Australia. While a critical aspect of human rights, stopping the analysis here falls short. Applying a human rights lens to an investment highlights the importance of social issues in the company’s workforce, such as occupational health and safety and diversity. At the same time, broadening the focus to stakeholders such as customers, suppliers and community members reveals the true scope of the business and reputational risks, as well as opportunities. 

As private equity investors, we must analyse land, labour and data rights from the perspective of the rights holder. This responsibility stems from the United Nations Guiding Principles on Business and Human Rights (UNGPs), which state that businesses should have “a human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights” (principle 15). Addressing human rights not only speaks to the core of our humanity as people, but also to our responsibility as investors and fiduciaries to protect, add value and maximise risk-adjusted returns over the long term. 

How we incorporate human rights into our investment process 

Due to the illiquid nature of the asset class, pre-investment due diligence is of critical importance. As such, we ask specific questions on GPs’ approaches to human rights topics. Most GPs do not have overarching policies and procedures with regard to human rights.  

Through our due diligence questionnaire, we encourage GPs to address human rights and stakeholder engagement comprehensively through their ESG policies, in addition to queries on diversity policies and modern slavery statements. 

During underwriting, we query GPs on their approach to analysing material ESG issues, and whether they systematically address specific issues such as climate change, cybersecurity, and modern slavery / supply chain. We also review critical incidents – from workplace accidents to data breaches – and the GP’s response, and have high expectations with regard to disclosure of such matters. 

Specifically for primary investments, we evaluate the GP’s ability to do quality due diligence and manage and monitor ESG risks and opportunities, including human rights issues, throughout the holding period. We assess whether the GP has identified the material issues, whether they are active post-investment and whether reporting channels are established should remediation be required. As we are going into a blind pool, we rely on case studies to understand a GP’s track record of managing such issues.  

In the case of secondaries and co-investments, we evaluate the GP’s due diligence and seek to understand their intentions to integrate management of ESG and human rights issues into 100-day plans and value creation plans. We complement this with our own analysis, leveraging the  SASB materiality framework  to assess whether the material issues have been properly addressed. 

Through both case study review and asset-specific due diligence, the GP is able to showcase their focus on human rights issues. Given that very few GPs have a comprehensive human rights due diligence framework rather focusing on specific issues like gender diversity or modern slavery, we have engaged with several GPs to encourage a more holistic human rights lens to investment opportunities. 

Example: Data rights considerations in a health tech investment 

Data security and customer privacy are among the most common SASB disclosure topics across all StepStone investments. How personal data is collected, managed, protected and valued is a critical component of our human rights evaluation. 

This topic is front of mind in health service and tech companies, where data privacy issues are even more pointed given the sensitivity of medical records. In a recent example, our concern was heightened due to the sensitivity of the data and the vulnerability of the populations being tracked by an investee company. Through our application of the SASB materiality framework and dialogue with our internal Private Equity Responsible Investment Workgroup, the deal team raised this issue with the GP and company management to review the appropriate policies and query about past breaches. In this case, we learned that the company employed best-in-class data security and compliance measures and had experienced no breaches to date.  

We queried the company about data privacy issues through the perspective of the rights holder: Is the company only tracking the necessary data on individuals? How is the data obtained? Can patients request to see their data or ask it be removed from the database? Who has access to the database and is any aggregated or anonymised data being sold or used for marketing or other purposes? This was a topic that the GP and management team had considered, but with a focus on regulatory requirements rather than application of a human rights framework. While it is still early days for this investment, these conversations provided valuable insights into management’s knowledge of the subject matter and willingness to work on providing the board with more transparency. We believe raising these questions deepened our alignment with the GP and company management from the outset. 

• HQ: Developed Markets
• HQ: North America

Related content

Policy briefing: Signatory responses to state anti-ESG laws

Introduction to the Taskforce on Inequality and Social-related Financial Disclosures

2024-07-25T07:00:00Z

Investors and human rights: Ways forward in a time of complexity

2024-07-16T07:00:00Z

The role of the G7 in driving the economic transition

More from Human rights

Human rights in private markets: access to remedy

How to identify human rights risks: A practical guide in due diligence

Jupiter Asset Management: Incorporating human rights considerations into sovereign debt analysis

AP2: Country-level framework to assess human rights

• News and press
• Annual Report
• PRI governance
• Privacy policy
• The PRI is an investor initiative in partnership with UNEP Finance Initiative and UN Global Compact .

• PRI Association, 25 Camperdown Street, London, E1 8DZ, UK
• Company no: 7207947
• +44 (0)20 3714 3141
• [email protected]
• PRI DISCLAIMER The information contained on this website is meant for the purposes of information only and is not intended to be investment, legal, tax or other advice, nor is it intended to be relied upon in making an investment or other decision. All content is provided with the understanding that the authors and publishers are not providing advice on legal, economic, investment or other professional issues and services. PRI Association is not responsible for the content of websites and information resources that may be referenced. The access provided to these sites or the provision of such information resources does not constitute an endorsement by PRI Association of the information contained therein. PRI Association is not responsible for any errors or omissions, for any decision made or action taken based on information on this website or for any loss or damage arising from or caused by such decision or action. All information is provided “as-is” with no guarantee of completeness, accuracy or timeliness, or of the results obtained from the use of this information, and without warranty of any kind, expressed or implied. Content authored by PRI Association For content authored by PRI Association, except where expressly stated otherwise, the opinions, recommendations, findings, interpretations and conclusions expressed are those of PRI Association alone, and do not necessarily represent the views of any contributors or any signatories to the Principles for Responsible Investment (individually or as a whole). It should not be inferred that any other organisation referenced endorses or agrees with any conclusions set out. The inclusion of company examples does not in any way constitute an endorsement of these organisations by PRI Association or the signatories to the Principles for Responsible Investment. While we have endeavoured to ensure that information has been obtained from reliable and up-to-date sources, the changing nature of statistics, laws, rules and regulations may result in delays, omissions or inaccuracies in information. Content authored by third parties The accuracy of any content provided by an external contributor remains the responsibility of such external contributor. The views expressed in any content provided by external contributors are those of the external contributor(s) alone, and are neither endorsed by, nor necessarily correspond with, the views of PRI Association or any signatories to the Principles for Responsible Investment other than the external contributor(s) named as authors.

Site powered by Webvision Cloud

10 Important Cases of Labour Law

This article presents a comprehensive overview of ten landmark cases that have significantly influenced the evolution of labour laws in india..

The article '10 Important Cases of Labour Law' presents a comprehensive overview of ten landmark cases that have significantly influenced the evolution of labour laws in India.

Labour law covers employment contracts, wages, health and safety, fair treatment of employees, dispute resolution mechanisms and so on and so forth. It provides regulations that govern the relationship between an employee and the employer in a workplace. Labour laws play an important role in the protection of the rights of employees. The cases discussed below aim to cover various aspects of labour laws.

1. Workmen of M/S Firestone Tyre and Rubber Co. of India v. Management [1]

In the instant case, the workers of the Firestone Tyre & Rubber Company were terminated from their employment by the employer as a result of the Domestic Inquiry Finding. Meanwhile, during the pendency of the suit, the amendment to the Industrial Tribunal Act in 1971, brought in Section 11 A which conferred Industrial Tribunal with the Appellate Authority power over domestic inquiries into emerging disputes. The Tribunal gave a decision in favour of the employer and therefore dissatisfied with the decision; the aggrieved workers appealed to the Apex court against the order passed by the tribunal. The Supreme Court considered on the understanding of Section 11A of the Industrial Disputes Act, 1947 and acknowledged the Industrial Disputes Act, 1947 as a beneficial legislative measure drafted for the welfare of employees.

However, the court ruled that since the lawsuit was started before the amendment, the said section would not be applicable in this case. It would only be relevant to cases started after the amendment to the Industrial Dispute Act, 1947.

2. Bandhua Mukti Morcha v. Union of India [2]

A PIL was filed by an organization named Bandhua Mukti Morcha who were actively fighting against the abhorrent practice of bonded labour. The organisation outlined a survey report, conducted in stone quarries in the Faridabad district which revealed numerous workers facing inhuman & intolerable conditions, with a drive of forced labour.

In response to the highlighted facts, the Court recognized guidelines for identifying bonded labourers and directed that state governments must locate, release, and rehabilitate the bonded labourers. The court also declared that a person being a bonded labourer is deprived of liberty, and is a slave with no freedom in choosing employment.

The court also ruled that if it is established that a worker is engaged in forced labour, the presumption is that economic deliberations are involved, and therefore, the worker is a bonded labourer. This presumption can only be refuted by the employer & the state government if they deliver satisfactory evidence.

3. Steel Authority of India Limited v. National Union Waterfront Workers [3]

The Government of West Bengal originally forbade contract labour at specified stockyards in Calcutta by virtue of the Contract Labour (Regulation and Abolition) Act, 1989. The prohibition was temporarily put off through a notification dated August 28, 1989, but it was extended until August 31, 1994. The contracted labourers of a central government enterprise which were primarily involved in manufacturing iron and steel products and engaged in import-export had its branches across India, petitioned the Calcutta High Court to direct the appellants, SAIL, to fascinate them into their consistent establishment due to the West Bengal government's prohibition. The Calcutta High Court, considering the State Government as the appropriate authority dismissed the writ petition. In response to this, the appellants appealed to the Supreme Court, putting in question, the interpretation of "appropriate government" enshrined in Section 2(1)(a) of the Contract Labour (Regulation and Abolition) Act, 1970.

The apex court lined that any company working under the authority of the Central Government undertakings, which fails to function due to a lack of conferred power, is considered an industry under the Central Government. Subsequently, the court determined that as per the Contract Labour (Regulation and Abolition) Act, 1970, the appropriate government was the Central Government.

4. People’s Union for Democratic Rights v. Union of India [4]

The PUDR is an organization formed to protect the democratic rights of the Citizens. In the instant case, PUDR appointed three scientists for the inquiry to be conducted in the ASIAD Projects. Based on the investigation report the petitioner addressed a letter to Justice P.N Bhagwati which served as a Public Interest Litigation. The letter highlighted violations of various labour laws and the apex court was requested to look into the issue. The letter was considered as a writ petition by the Supreme Court. Notices were issued to the Union Government, the Delhi Development Authority & the Delhi Administration.

The major allegations highlighted-

The violation of the Equal Remuneration Act, 1976( women workers were not paid properly; misappropriation of money).

The violation of Article 24 of the Constitution of India, the Employment of Children Act, 1938 & 1970 as the children below 14 years were engaged at the construction site by the contractors.

The violations of the Contract Labour (Regulation and Violation) Act of 1970, resulted in the maltreatment of the workers and denial of their various rights.

The apex court in this case found that the stated violations did happen and at a gross means. The court held that there were abuse of labour laws in mass and the State was obliged to take action against such violation ensuring that the fundamental rights of the labourers are safeguarded.

5. Syndicate Bank and Ors v. K. Umesh Nayak [5]

The major issue in the instant case before the Apex Court was whether the workmen were entitled to get paid during the period of strike despite the strike’s nature, legal or illegal.

The Apex Court held that unless a strike contradicts the provisions of the Industrial Disputes Act, 1947, it would be considered legal. Close scrutiny is essential to be applied to the particular factual condition of each claim.

In the instant case, the strike was a result of longstanding disputes between employees and employers. It is the last resort available to the employees for their demands to be fulfilled by the industry. The Industrial Legislation provides for worker’s right to protest and the right of the employer to lockout & provide machinery for peaceful inquiry & clearance of disputes between them. Therefore, the Court ordered that the employees be paid for the strike period.

6. Municipal Corporation of Greater Bombay v. Labour Appellate Tribunal of India [6]

Retrenchment was questioned in this case. The term retrenchment amounts to the termination done by the employer of the employee for reasons other than giving punishment through disciplinary action. It is generally done to relieve them from a job in good faith. In this particular case, the employer sent a show cause notice to the employee after leading an inquiry into misconduct. As a result, the employee was terminated being found guilty and unfit for continued employment with the company. The terminated employee filed a petition seeking restoration and compensation on grounds of termination. The Labour Court ruled in favour of the employee. This decision was challenged by the appellant in Bombay High Court. The High Court decided that this case did not involve retrenchment because the employee’s termination was based on misconduct.

7. M.C. Mehta v. State of Tamil Nadu [7]

In the instant case, Shri MC Mehta invoked Article 32, for violation of fundamental rights of children guaranteed under Article 24. The Court found Sivakasi was the main offender who was employing many child labourers, engaging them in the manufacturing process of matches and fireworks which is qualified as a hazardous industry and held employing children under the age of 14 years in this industry is prohibited.

The Court restated that children below the age of fourteen must not be engaged in any hazardous industry and must ensure all children get free education till the age of 14 years. The Court further also looked at Article 39 (e) which states that the children’s tender age should not be exploited but instead, the opportunities for their healthy growth and development. Therefore, the Court directed the employer Sivakasi must pay a compensation of Rs. 20,000 for violation of the Child Labour (Prohibition and Regulation) Act, 1986.

8. Hindustan Aeronautics Limited v. Workmen [8]

The appellant Hindustan Aeronautics Limited is a company registered under Section 617 of the Companies Act, 1956, belonging to the Central Government. The case is about 1000 workers, working in the company’s repairing unit at Barrackpore, West Bengal were facing issues w.r.t the allowance of the employee’s education, revision of lunch allowances and job permanency. The dispute was then taken by the West Bengal Government under Section 10 (1) to the Industrial Tribunal. The Industrial Tribunal partly awarded some relief to the workers. As a result, the Appellants took their case to the Apex Court and questioned whether the West Bengal government was an appropriate government or not, to resolve the dispute.

The Supreme Court held that the West Bengal government is the appropriate government keeping in mind the company’s subsidiary in West Bengal carried on different business.

Therefore, when there arises a situation of conflict or breakdown, the government of West Bengal has the authority to settle any dispute and keep industrial peace.

9. Bata Shoe Co. Ltd. v. D.N Ganguly [9]

The case is related to a dispute that emerged between Bata Company and the workers. The parties opted for the process of Conciliation to reach a settlement. But the workers initiated a strike post-settlement for which the company declared the strike illegal, stating its contradiction to the earlier settlement. Accordingly, the company conducted an inquiry and terminated the striking workers. In executing the termination dispute, another conciliation proceeding arose, resulting in a signed agreement between both parties. Remarkably, no conciliation officer was present throughout this process.

The main issue before the apex court was whether a settlement executed between the company and the workers could exist in accordance with Section 12 and Section 18 of the Industrial Disputes Act, 1947. The apex court held that the first settlement was binding since it was in accordance with the specified sections however the subsequent settlement remains non-binding since it was contrary to the specified provisions of the Industrial legislation.

10. Bangalore Water Supply v. A. Rajappa & Others [10]

A. Rajappa was an employee of the Bangalore Water Supply and Sewerage Board. A labour dispute was persisting between the employee and the board. A. Rajappa along with several other workmen were fined by the Board for misconduct. A hefty amount was recovered from them which was not reasonable. Therefore A. Rajappa along with other workmen approached the Labour Court. The issue was whether Bangalore Water Supply and Sewerage Board fell within the definition of industry under Section 2(j) of the Industrial Dispute Act, 1947. The Supreme Court of India dismissed the Bangalore Water Supply and Sewerage Board's appeal and held it within the industry definition under the Industrial Dispute Act, 1947.

[1] 1973 SCR (3) 587

[2] AIR 1984 SC 802

[3] Appeal (Civil) 6009-6010 of 2001

[4] 1982 AIR 1473

[5] 1994 SCC (5) 572

[6] AIR 1957 Bom 188

[7] AIR 1997 SC 699

[8] 1975 AIR 1737

[9] 1961 AIR 1158

[10] AIR 1978 SC 548

Important Links

Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams

Law Aspirants: Ultimate Test Prep Destination

Anjali is a passionate graduate from Ramaiah College of Law, Bengaluru, seeking opportunities to learn and grow in the field of law.

Related News

• ENQUIRE NOW
• FAQ’s-PGDRM
• About Global Risk Management Institute (GRMI)
• Governance Structure of GRMI
• GRMI Partners
• Course Overview
• WHY DO A RISK MANAGEMENT PROGRAMME
• INTERNSHIP AND PLACEMENTS
• STUDENTS’ EXPERIENCE
• WHY STUDY AT GRMI?
• CAREER PROGRESSION AND PLACEMENTS
• Faculty Members
• OTHM QUALIFICATIONS
• WHY DEMAND FOR RISK PROFESSIONALS IS RISING?
• News & Stories
• Life at GRMI
• PG in IT Risk Managements
• GRMI Courses
• Risk Masterclass: De-Risking Strategy by FICCI and GRMI
• RISK MANAGEMENT DEVELOPMENT PROGRAMME(RMDP)
• BOARD INDEPENDENT DIRECTOR’S RISK PROGRAMMES
• Campus Photos
• Model Risk Code
• Enquire for PGDRM

Case Study | Regulatory and Compliance Risks | Labour Rights | Shahi Exports Pvt. Ltd.

• Case Study | Re

Labour Rights Case Study – Shahi Exports Pvt. Ltd.

By Sumant Shekhar, Sharvari Saraf, Shubham Chaudhary, Disha Dhawan PGDRM Batch July’19-20 and Jan’20-21)

Introduction & Some Core Labour Standards

• Labour Rights or Worker’s Right are both Legal Rights and Human Rights relating to labour relations between labour and employees.
• These rights are codified in national and international labour and employment law.
• In the Constitution of India from 1950, articles 14,16,19(1) (c), 23, 24, 38, 41 & 43A directly concern labour rights
• The International Labour Organization (ILO) was formed in 1919 as part of the league of nations to protect workers rights and later it became incorporated into the United Nations.

Some of the core labour standards:

• Freedom of association.
• The right to collective bargaining.
• The prohibition of all forms of forced labour.
• Elimination of worst forms of child labour.
• Non-discrimination in employment.

Some Important Labour Laws in India

• The Factories Act, 1948 – Imprisonment max 2 yrs Or fine 1L Or Both
• The Employee Provident Fund Act, 1947
• The Apprentice Act, 1961.
• The Maternity Benefit Act, 1961
• The Workmen’s Compensation Act, 1923
• The Payment of Gratuity Act, 1972
• The Payment of Wages Act, 1936
• The Industrial Disputes Act, 1947
• The Payment of Bonus Act, 1965
• The Employee State Insurance Act, 1948

Importance of Labour Laws

Some common labour rights violations.

• Not paying required overtime wages
• Paying subminimum wages
• Not ensuring a safe workplace
• Not covering workers injuries on the job
• Misclassification of a worker

Note: It is important for all employers, no matter the size of the business, to be aware of the legal obligations they have in adhering to labour laws.

Shahi Exports – Introduction

• Established in 1974 by Mrs Sarla Ahuja.
• It has grown to become India’s largest apparel manufacturer, operating 65 factories and 3 processing mills across 9 states.
• They have over 100,000 employees, including 67,000 women.
• Turnover crossed 500 crores in 2018
• They make university logo apparel for Columbia Sportswear and apparel for Benetton, H&M and Abercrombie & Fitch
• They are committed to serving their customers through design-led innovation and vertically integrated operations.

Workers grievances

Workers grievances relating to:

• Quality of drinking water
• Sanitation issues○Company-supplied transportation service
• Monthly wages they received from the company
• Sexual harassment at the workplace

These issues were being informed by the employees who were members of the union to KOOGU union.

• They also distributed leaflets to create awareness amongst other employees of the factory of these issues

Violations by the managers

• Interrogation and Threats of Adverse Treatment for Associational Activities by Shahi Managers and Supervisors – a clear violation of workers freedom of association
• Surveillance, Attempted Bribery, Interrogation, and Other Interference with Associational Activities by Production Manage
• Threats of Mass Termination, Interrogation, and Incitement of Workers Concerning Associational Activities, by Shahi Production Manager to the other employees who signed the Unions document
• Sex-based Verbal Abuse and Harassment, and Attempt to Suborn False Testimony by Shahi Managers
• Death Threats, Threat of False Imprisonment, Incitement of Violence, Physical Assaults and Battery, and Verbal Abuse, including on Account of Sex, Caste and Religion, by Shahi Managers.

1. Caste-based Verbal Abuse, Death Threat of False Imprisonment Against Employee by Shahi Human Resources Manager

2. Assaults and Batteries Incited, Organized and Committed by Shahi Production Managers and Human Resources Managers Against Two Employees

3. Religion and Sex-based Verbal Abuse and Physical Assault Directed by Shahi Human Resources Manager Against Employee, theft of personal property, gender-based verbal assault and battery was being committed by the managers

• Besides the managers beaten and thrown out the employees who were part of the union and a threat in the mind of other employee was being created.
• They suppressed the media coverage (Deccan Herald) reporting its management’s responsibility for the violence of the factory.

Recommendations from WRC and Compliance

• Workers who have been physically assaulted and suspended from their jobs must be returned to work with full back pay. – Complied
• Compensation for their injuries, pain and suffering, and loss of personal property. – Complied
• A written apology from the company. – MOU Signed with workers.
• Termination of all the managers identified in the report as directing or perpetrating physical violence or death threats against workers. – Terminated only after foreign pressure.

Cause Analysis

• Lack of practicality of SOPs in HR and management communication
• Policies not practiced
• Top-down communication
• Problems of family-owned businesses
• Where does the buck stop? Top Management, Owners?
• Tone at the top

●Reputational loss ●Widely covered in foreign media – The Guardian. ●Indian media had to be managed – Deccan Herald ●PR expense

Read the full case study here:  Case study on Labour Rights, Shahi Exports Pvt. Ltd.

Disclaimer This report has been produced by students of Global Risk Management Institute for their own research, classroom discussions and general information purposes only. While care has been taken in gathering the data and preparing the report, the student’s or GRMI does not make any representations or warranties as to its accuracy or completeness and expressly excludes to the maximum extent permitted by law all those that might otherwise be implied. References to the information collected have been given where necessary. GRMI or its students accepts no responsibility or liability for any loss or damage of any nature occasioned to any person as a result of acting or refraining from acting as a result of, or in reliance on, any statement, fact, figure or expression of opinion or belief contained in this report. This report does not constitute advice of any kind.

• January 2019
• August 2018
• November 2017
• August 2016

Design and Developed by KodeForest @ All Rights Reserved by KodeForest

• Academic Council
• Accommodation and Connectivity
• Admission Form Devlopment
• Admission Form Submission
• Admissions open-PG in Risk Management (PGDRM)
• Amal Ganguli
• Blog 3 Column
• Board of Directors
• Board of Governors
• Book a call slot
• Chetan Mathur
• Connect with counsellors-PGDRM
• Covid-19 Plan for PGDRM
• CURRICULUM- 1 YEAR PGDRM
• EDUCATION LOAN PARTNER-CREDENC
• ENQUIRE NOW-PGDRM
• Faculty Members In GRMI
• Form submitted-Thank You
• Global Risk Management Institute
• GOVERNANCE STRUCTURE
• GRMI Gallery
• GRMI Reports
• HOW WILL I BE ASSESSED?
• Important Documents – Global Risk Management Institute
• Interested in Jan’21 PGDRM-Meet our Students
• INTERNSHIPS
• Management Team
• Mukesh Butani
• Open Payment Form
• OTHM Qualifications
• P K Mukherjee
• PG in Risk Management (PGDRM) by Global Risk Management Institute (GRMI)
• PGDM Apply Now
• PGDRM Enquiry booking
• PGDRM Fee Structure
• PGDRM-Call with academic counsellor
• Privacy Policy, Cookies Policy and Whistleblower
• PROFESSIONALS SPEAK
• Strategy Board
• STUDENTS’ EXPERIENCE IN GRMI
• Subhashis Nath
• Subodh Bhargava
• SUNIL SETHY
• Suresh Krishnan
• Vijay K. Thadani
• ENQUIRE NOW contact_support
• FAQs-PGDRM supervisor_account

Download Brochure

Talk to counsellor.

Breaking News

OPINION ANALYSIS

Justices side with starbucks in union organizing dispute.

The April argument in Starbucks Corp. v. McKinney suggested a bench so pervasively skeptical of the National Labor Relations Board’s position that Thursday’s decision briskly rejecting the government’s argument should surprise nobody. The basic issue in the case is what the NLRB has to prove to get a preliminary injunction against an employer (in this case, Starbucks) while it conducts administrative proceedings to determine if the employer committed an unfair labor practice. The lower courts applied a highly deferential standard that, in practice, leads to injunctions pretty much whenever the agency asks for one. Justice Clarence Thomas’s succinct opinion for eight of the nine justices (all but Justice Ketanji Brown Jackson, who concurred in the judgment but dissented from part of the opinion’s reasoning) firmly rejected that standard.

Thomas started with the language of the statute ( Section 10(j) of the National Labor Relations Act ), which calls for a preliminary injunction whenever the district court “deems” it “just and proper.” Thomas affirmed “a strong presumption that” courts authorized to grant equitable relief “will exercise that authority in a manner consistent with traditional principles of equity.” He then explained that in the context of preliminary injunctions, “the four criteria identified in Winter [v. Natural Resources Defense Council] encompass the relevant equitable principles.” Thomas went on to emphasize that preliminary injunctions are “extraordinary” and “never awarded as of right,” requiring among other things a “clear showing” that the claimant “is likely to succeed on the merits.” And the justices “do not lightly assume that Congress has intended to depart from established principles” like the ones articulated in Winter .

Within that framework, “the statutory directive to grant relief when the district court ‘deems’ it ‘just and proper’ [does not] jettison the normal equitable rules.” Rather, Thomas reasoned, “[t]o the contrary, the phrase ‘just and proper’ invokes the discretion that courts have traditionally exercised.” Congress repeatedly has adopted statutes that unambiguously depart from those principles, he noted, offering a variety of examples, one of which comes from the National Labor Relations Act itself. But Section 10(j), unlike those statutes, “omits an specific instruction that suggests Congress altered the traditional equitable rules.”

Finally, Thomas turned to the agency’s argument that the NLRA’s “statutory context” justifies a special application of equitable considerations in for Section 10(j). Thomas rejected that argument, commenting that the NLRB’s preferred standard “goes far beyond simply fine tuning the traditional criteria [because] it substantively lowers the bar for securing a preliminary injunction by requiring courts to yield to the Board’s preliminary view of the facts, law, and equities.” Thomas was most emphatic in his analysis of “what the Board, as movant, must show about the merits of its claims” under its proposed standard. As discussed above, the “traditional standard” requires “a clear showing” of “likel[ihood of] success on the merits,” which typically requires the “district court [to] evaluate any factual conflicts or difficult questions of law.” Thomas ridiculed the agency’s standard, under which the NLRB need “show only that its theory of the case is ‘substantial and not frivolous,’ without having to convince the court that its theory is likely meritorious.” Indeed, Thomas claims, “it is hard to imagine how the Board could lose under [its] reasonable-cause test if courts deferentially ask only whether the Board offered a plausible legal theory, while ignoring conflicting law or facts.”

Jackson joined her colleagues in the decision to send the case back to the lower court for reevaluation under the four-factor test. But she differed on the court’s conclusion about the likelihood-of-success factor. Thomas’s opinion, she wrote, ignored Congress’s “clear and comprehensive” directives in the NLRA on how courts should exercise discretion when it comes to the NLRB’s authority over labor disputes. “Unfortunately,” she wrote, “today’s decision appears to be another installment in a series of labor cases in which this Court has failed ‘to heed Congress’s intent.’” And in what may come to ring like a theme for the term, Jackson closed by saying, “I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations.”

As I noted, the tone of the oral argument left little doubt that a strong majority of justices would dismiss the agency’s standard for relief. The near-unanimous vote suggests that the NLRB would have lost this one even without the deep skepticism some justices have shown in recent years to the NLRB’s reach.

Posted in Featured , Merits Cases

Cases: Starbucks Corp. v. McKinney

Recommended Citation: Ronald Mann, Justices side with Starbucks in union organizing dispute , SCOTUSblog (Jun. 13, 2024, 4:44 PM), https://www.scotusblog.com/2024/06/justices-side-with-starbucks-in-union-organizing-dispute/

Privacy Overview

California's Black legislators make case for reparations bills while launching statewide tour

Several members of California’s Legislative Black Caucus launched a statewide tour in San Diego Saturday to promote a slate of 14 reparations bills , including a measure that could change the state constitution to end forced prison labor.

That measure and several others designed to mitigate the effects of racism and slavery will face important legislative deadlines in the next two weeks.

Caucus members and other reparations proponents said they will hold similar State of Black California community listening sessions events in six cities over the next five months.

The Black Caucus’ 14 reparations bills tackle education, business, criminal justice, health care and civil rights, and include two proposed constitutional amendments that they hope to place before voters in November.

One of the amendments, ACA 8, would ban one of the last vestiges of slavery: forced labor in jails and prisons.

The California Constitution and the 13th Amendment of the U.S. Constitution explicitly prohibit slavery and involuntary servitude, except as punishment for crime. That exception has enabled corrections facilities to require inmates to work for little or no pay.

Many states have ended those requirements. California is among 16 states that allow it due to exceptions in state constitutions, although Alabama, Oregon, Tennessee and Vermont voters have removed it from theirs.

An effort to stop forced inmate labor in California  failed to make it out of the legislature  in 2022.

Ending slavery in any form

Assemblymember Lori Wilson, a Democrat from Suisun City, proposed an updated initiative that asks voters to affirm that “slavery in any form is prohibited,” but language was recently struck from her proposal that spelled out what that statement meant.

The language now says a prison or jail “shall not punish” an incarcerated person for refusing a work assignment, and it notes that a prison or jail can still reward a prisoner for voluntarily working, such as giving them credit and reducing their sentence.

The bill does not address the issue of cash payment, such as requiring that inmates be paid a minimum wage. In 2022, the California Department of Finance estimated it would  cost the state $1.5 billion  to pay prisoners the state’s minimum wage.

At the panel discussion Saturday, Assemblymember Corey Jackson, a Moreno Valley Democrat, said the proposal’s softened language was a deliberate choice to make the bill more palatable to voters by proposing incremental changes.

Polls that tested variations of the ballot initiative found higher support for a simplified version, he said.

“Of course, we also know that when you make something more simplistic you are watering down its effectiveness,” he said.

If voters approve it, a partial victory would be better than none and would set the stage for subsequent amendments with similar goals, he said.

“We need to chip away at it, rather than do a total elimination” of forced prison labor, Jackson said later in an interview with CalMatters.

The bill to place the proposed amendment on the ballot must first pass the state Senate’s Elections and Constitutional Amendments Committee on June 18 and then the Senate Appropriations Committee on June 24, in order to meet a June 27 deadline to finalize ballot measures.

There could still be changes during its final hearings, the legislators said.

State Sen. Steven Bradford, an Inglewood Democrat who also spoke at the event, said he’s pushing for a stronger version.

“It’s quite clear we want to eliminate involuntary servitude in California,” he said. “Anything less than that is falling short of the objective.”

Seeking a subtle balance

Wilson told CalMatters in a telephone interview that the changes don’t weaken the bill, but there may be more small language revisions.

“The first line is a very bold statement, that slavery is prohibited,” she said. “We all started with what we as legislators agreed to, as well as what we think voters agreed to.”

Voters believed prisoners should work during their sentences, Wilson said, though most agreed they should not be forced to work when they are ill or when a work shift conflicts with a rehabilitation program.

The debate over forced prison labor illustrates the subtle balance that Black Caucus members must often strike to turn the recommendations of the state’s  Reparations Task Force  into policies.

California became the first state in the country to form a reparations task force three years ago and the first to introduce a comprehensive reparations package  of more than 100 recommendations last year.

Several cities, including San Francisco and  Evanston, Ill. , have proposed their own compensation programs for descendants of slaves or victims of racism, often with pushback. A r ecent lawsuit challenging reparations for Evanston’s Black residents gives a preview of the political and financial opposition California’s efforts likely will face.

Some Black California legislators noted that Republican colleagues have pledged to vote against reparations bills and some Democrats also have expressed reservations.

Nevertheless, the Black lawmakers said they will continue trying to build support for their reparations bills through the listening tour and by starting with modest measures that could serve as proof of concept.

“We want to make sure we have some wins we can build up to,” Jackson said at the event. “People need to know that when you do things on reparations the state isn’t going to fall apart. As a matter of fact, it’s going to improve the state overall.”

What would be reparations benefits?

In addition to the ballot initiative to restrict prison labor, another proposed constitutional amendment, authored by Jackson, would counteract Proposition 209, the 1996 measure that banned preferential treatment and affirmative action.

Jackson’s initiative,  ACA 7 , would authorize the state to pay for programs designed to improve life expectancy and educational outcomes of “groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.”

The Black Caucus’s  other priority reparations bills  would expand educational assistance, address food insecurity, prevent community violence, restore property taken through race-based use of eminent domain, and draft a formal apology for California’s role in slavery.

If reparations measures succeed, the benefits for California could offset their costs, because more disadvantaged Californians would be contributing to its economy instead of dropping out of school or landing in prison, said sociologist Manuel Pastor, director of USC’s Equity Research Institute.

“When you have this level of over-incarceration, you are throwing away talent,” he said. “When you have this low level of education you are short-changing productivity in the future. So equity is everyone’s business.”

He pointed to figures showing Black Californians earning less than White counterparts, even with the same education levels. Moreover, those disparities worsened between 1990 and 2021.

“At each and every level of education there is a wage penalty for being Black or Latino,” Pastor said.

Those gaps contribute to what he called “asset stripping” of Black people and families, creating social and economic shortfalls that snowball over generations.

“People asked, why would I want reparations, why would I want to upset the apple cart?” said Secretary of State Shirley Weber, who created the state Reparations Task Force when she was an Assemblymember in 2020. “We need reparations to restore us to a healthy state.”

The next community listening session is scheduled in Santa Barbara on July 13.

This story was originally published by CalMatters and distributed through a partnership with The Associated Press.

For more from NBC BLK, sign up for our weekly newsletter .

The Associated Press

Right To Strike In Light Of Fundamental Rights

Contributor.

This study aims to highlight Right to strike and its legal journey through an analysis of previous judgements and statutes in perspective of fundamental right. This study has adopted a mixed methodology comprising of Exploratory and analytical research methodology which aids to explain and compare the recognition of right to strike as a fundamental right from a international perspective. Further the paper includes a analysis of limitations to the right to strike and lastly concludes by trying to assess the position of right to strike as a fundamental right by taking into consideration the challenges and problems which arises from limitation and adaptiveness by statutes.

INTRODUCTION

In many aspects and scenarios there are constant debates on fundamental right of people. One of the prominent debates in most of the nations is of processions and demonstrations which mainly includes three fundamental rights enshrined in Article 19 1 of the constitution of India thar are right to freedom, to assembly and moment. Many times, a question arises before the courts that whether Right to strike comes in the ambit of fundamental Rights in India.

Strike means stoppage of work by any person with a motive to increase their wages 2 , sufficing their wants and to redress their grievances. It is a weapon to defend the liberty and dignity of the labours. The irrational use of strike does not suit the India's Economy which demands more and continuous production. Despite being a member state to International Labour Organisation, India has not ratified convention No. 98 of 1949 3 which is about right to organise and collective bargaining.

PROBLEM STATEMENT

Which include right to strike but not expressly mentioned. The paper focuses into the question of whether the scope of article 19 is large enough to include Right to freedom in respect to freedom of speech and expression, freedom of assembly and freedom od association.

The main objectives of this study is to Identify the scope of article 19 (a) (b) (c) in respect of right to strike and to compare the same with stance of other nations.

In this study, secondary source of data has been used. The Data is collected from Newspapers, books, articles and internet. In addition to this a qualitative method for content analysis and summative analysis content method is adopted.

HISTORY OF STRIKE AND REGULATIONS -

Strike Action was first observed at the end of 20 th Dynasty under Pharaoh named Rameses 3 in Ancient Egypt then later in 17 th century strikes were observed in Landon. Strike became prominent during the advent of Industrial revolution e.g. during the economic panic of 1893, where the Pulmman car company had cut wag es up to 28% as demand for train cars crashed and the company's revenue dropped 4 The first ever strike by the Indian industrial works took place in 1862 in which around 1200 Railway works of Howrah Station went on strike 5 .

For the first time the trade union act 1926 provided right to strike, section 18 and 19 6 of the act confer immunity to trade union on strike. Section 18 protects the registered trade unions from any civil proceeding in respect of cessation of work and section 19 states that any agreement which is about stoppage of work between the members of a registered trade union cannot be void or voidable. Strike got recognition as a statutory right when the act defined it in section 2(q) of the act, strike was defined as "a cessation of work by a body of a person employed in any industry acting in any contribution, or a concentrated refusal or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or accept employment 7 . whereas section 22, 23, 24 of the Industrial Dispute Act recognise right to strike, section 24 states the difference between legal and illegal strikes.

Article 8(1)(d) 8 ICESCR states that the parties of the covenant should undertake and recognise right to strike taking into consideration the laws of a particular state. Article 2(1) of the covenant abide the state parties to implement and promote the right in particular states. As India, being a party to this covenant is bound by Article 2 (1) to provide right to strike given in Article 8(1)(d) by appropriate legislative measures. Looking into the other provisions of other countries the right to strike has been enshrined under the constitutions of around 90 counties across the world 9 . The right to strike has been seen in international laws in way of instruments such as Article 22 10 of international covenant of civil and political rights, Article 11 11 of European convention on human rights and Article 16 12 of Multilateral Treaties. Compared to India, small places with limited democracy such as Rwanda has recognised the right to strike and Ethiopia's constitution has included right to strike likewise Angola also guarantees this right, The South African constitution in Article 23 guarantees the right in absolute terms to the workers. Brazil has guaranteed this right Under Article 9 of its constitution similarly in Europe, Greec, Article 73, Macedonia, Article 78 Hungary, Article 70(C), Slovakia, Article 37, Poland, Article 59, Portugal, Article 57, all have constitutionally protected the right to strike, Even capitalised countries like Japan, Article 28 and South Korea, Article 39 has also recognised right Bargain collectively in their constitution. In contrast India having the largest constitution, these rights still are absent in it.

JUDICIAL INTERPRETATION

In 90's the Hon'ble Supreme court had clarified that even in liberal interpretation of clause(C) of article 19 13 , it cannot be said that the trade union has granted right to strike and collective bargaining 14 , further it was held that this right is not a fundamental right 15 . Later in Paragraph number 17 of a judgement from Kerala High court 16 , it was stated that "No political Party or a Organization can claim that it is entitled to paralyze the industry and commerce in entire state or nation and is entitle to prevent the citizens not in sympathy with its viewpoints from exercising their fundamental rights or duties for their own benefit or the benefit of State or Nation. Such claim would be unreasonable and could not be accepted as a exercise of fundamental right by the political party."

Viewing Strike as a right of government servant the Hon'ble court mentioned that no Fundamental right is granted to the government employs to go on a strike 17 . Further Alladi Kuppuswami 18 in 2003 that, yes there exist misuse of strike but causes Indian economy to suffer but that does not mean all strikes are immoral as strike in genuine times may act lawfully in favour and protection of the workers.

In Indian Express Bombay v. TM Nagarajan, the had held that the workers can exercise strike peacefully. In India there exists a fundamental right to form associations of labour union but there is no right to go on a strike which is fundamental in nature.

Justice Bhagwati stated that right to strike is a integral part of collective bargaining and this right is a process recognised by industrial Jurisprudence and is supported by social justice 19 Most of the times the employer and employee don't get to a conclusion and instead the strike affects the overall economy.

CONCLUSIONS AND SUGGESTIONS

Right to strike links with collective Bargaining and will remain inclusive the right in collective bargaining by form of various ways such as expression, response by people inferior to the authoritative decision who are bargaining to suffice their want. The courts have failed to recognise and comprehend the evolution of right to strike. As the statutory provision have clearly distinguished the legal and illegal rights, the judiciary can take a softer approach by deciding whether a strike is legal or illegal rather than a stringent declaration sating no right to strike at all.

The circumstantial idea of complete ban on Right to strike contravenes the covenants to which India is a party such as the Freedom and protection of the right to organize, Collective Bargaining convention 1981 20 , Labour Relation Public Service Commission 21 and Right to organise and collective bargaining 22 Even as India is a signatory to International Labour Organisation , India is bound to obligate at least the fundamental promoted by the organisation irrespective of this the Indian court has refused to adhere the fundamentals of the organisation. In reference to Apparel Export Council v. A.K Chopra, hon'ble supreme court had held that what the stand of international covenants is mandate to follow and it is a obligation on India it follow and fulfil it.

It is seen that in many decisions of the courts pertaining to an unjustifiable case, the court tends to neglects the truth that not all workman who participate in a strike can be placed on same footing and this sort of a situation cannot be assumed as mass dismissal. often, the right to strike not being a fundamental right proves to helpless as the superiors tend to supress the situation by neglecting the real, genuine demand of the workman.

Practically, Strike certainly has merits as well as equal number of demerits. Even if in future if the Right to strike would come in the ambit of Article 19 of the constitution of India the right would have numerous limitations as when it comes to strike it not affects the Individual but also affects other people, it is not less than 'Right in Rem'. Right to strike would struggle and would eventually fail to sustain its legality majorly in the environment of developing economy in India.

• Constitution of India
• Halsbury Dictionary
• International Labour Organisation
• Trade Union Act 1926
• Research paper on contemporary dynamics in world-historical perspective published by Cambridge Law Press.
• Article – The Working Class in hundred years.
• Case Laws –
• All India Bank Employees Association v. National Industry Tribunal and others (1962)
• Radhye Shyam Sharma v. The post master general central circle. (1964)
• Communist Party of India v. Bharat Kumar and others (1998)
• K. Rangarajan v. State of Tamil Nadu(2003)
• Gujarat Steel Tubes ltd. V. ITS Mazdoor Sabha (1980)

1 Constitution of India, Part III, Article 19[1950]

2 Halsbury dictionary

3 International Labour Organization. (1949). Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

4 Silver, B. (2003). CONTEMPORARY DYNAMICS IN WORLD-HISTORICAL PERSPECTIVE. In Forces of Labor: Workers' Movements and Globalization Since 1870 (Cambridge Studies in Comparative Politics, pp. 168-180). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511615702.006

5 Communist Party of India (Marxist-Leninist) Liberation. (2008, April). The Working Class in a Hundred Years. Liberation. https://archive.cpiml.org/liberation/year_2008/april/working_class_hundred_years.htm

6 Trade Union Act 1926, Chapter III , Section 18 , 19 [1926]

7 Industrial Dispute Act, Chapter I, Section2(q), [1947]

Industrial Dispute Act, Chapter V, Section 22, 23, 24[1947]

8 The International Covenant of Economic Social and Cultural rights. (ICESCR)

9 United Nations Human Rights Council. (2017, March). UN rights expert: Fundamental right to strike must be preserved. Office of the United Nations High Commissioner for Human Rights. https://www.ohchr.org/en/press-releases/2017/03/un-rights-expert-fundamental-right-strike-must-be-preserved

10 Office of the United Nations High Commissioner for Human Rights. (n.d.). International Covenant on Civil and Political Rights. OHCHR. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

11 European Court of Human Rights. (n.d.). European Convention on Human Rights. Council of Europe. https://www.echr.coe.int/european-convention-on-human-rights#:~:text=The%20Convention%20for%20the%20Protection,force%20on%203%20September%201953

12 United Nations. Volume 1144-I: Multilateral Treaties deposited with the Secretary-General. https://treaties.un.org/doc/publication/unts/volume%201144/volume-1144-i-17955-english.pdf

13 Constitution of India, Part III, Article 19, [1950]

14 All India bank employees Association v. National Industrial Tribunal and others (1962) 3 SCR 269

15 Radhye Shamya Sharma v. The post master general central circle , Nagpur (1964) 7 SCR 403

16 Communist Party of India (M) v. Bharat kumar and others (1998) SCC 201

17 TK Rangarajan v. state of Tamil Nadu , AIR 2003 SC 3032

18 Former chief Justice of Andra Pradesh High Court

19 Gujarat Steel Tubes ltd . V. its Mazdoor Sabha AIR 1980 SC 1896

20 International Labour Organization. (1981). Collective Bargaining Convention, 1981 (No. 87)

21 International Labour Organization. (1978). Labour Relations (Public Service) Convention, 1978 (No. 154).

22 International Labour Organization. (1949). Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Employment and HR

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

This website uses cookies

The only cookies we store on your device by default let us know anonymously whether you have seen this message.  With your permission, we also set Google Analytics cookies.  You can click “Accept all” below if you are happy for us to store cookies (you can always change your mind later).  For more information please see our Cookie Policy .

Google Analytics will anonymize and store information about your use of this website, to give us data with which we can improve our users’ experience.

Created in partnership with the Helpdesk on Business & Human Rights

Child Labour

If you have questions, feedback or you're looking for further help in protecting human rights, please contact us at

[email protected]

Together Against Trafficking in Human Beings

Trafficking in human beings is a crime that should have no place in today’s society. It destroys individuals’ lives by depriving people of their dignity, freedom and fundamental rights. It is often a violent crime committed by organised crime networks.

Facts about trafficking in human beings

37% of the victims of trafficking in the EU are EU citizens, and a significant number of them are trafficked within their own country. However, non-EU victims have increased in recent years and they now outnumber victims with an EU citizenship. The majority of victims in the EU are women and girls who are mainly trafficked for sexual exploitation. The ratio of male victims has more than doubled in the last years.

Around 15% of victims of trafficking in the EU are children.

The most common forms of trafficking in the EU is sexual exploitation and labour exploitation . Both forms of exploitation amount to an equal share of victims. Most traffickers in the EU are EU citizens and often of the same nationality as their victims. More than three quarters of perpetrators are men.

Links with organised crime

This crime brings high profits to criminals and carries with it enormous human, social and economic costs. Trafficking in human beings is often linked with other forms of organised crime such as migrant smuggling, drug trafficking, extortion, money laundering, document fraud, payment card fraud, property crimes, cybercrime and other.

This complex criminal phenomenon continues to be systematically addressed in a wide range of EU policy areas and initiatives from security to migration, justice, equality, fundamental rights, research, development and cooperation, external action and employment to name a few.

Discover the 'End human trafficking. Break the invisible chain' campaign

Learn about EU Anti-trafficking actions

A comprehensive EU approach to fight trafficking in human beings is anchored in the EU Anti-trafficking Directive, and complemented by the EU Strategy on Combatting Trafficking in Human Beings (2021-2025).

The EU Anti-Trafficking Coordinator is responsible for improving coordination and coherence among EU institutions, EU agencies, Member States and international actors, and for developing existing and new EU policies to address Trafficking in Human Beings.

Part of the mandate of the EU Anti-Trafficking Coordinator is to foster cooperation and policy coherence, including the EU Networks of the National Rapporteurs and Equivalent Mechanisms, the EU Civil Society Platform and the cooperation with the EU Agencies.

This section provides comprehensive information on how each EU country, tackles, prevents and identifies instances of trafficking in human beings.

Recent calls for proposals and EU projects and Funding for projects addressing trafficking in human beings are presented.

This section provides an overview of relevant publications and studies on EU anti-trafficking actions.

News on combatting trafficking

• News article
• 27 May 2024

• 22 May 2024

• 28 February 2024

• 24 January 2024

• 10 November 2023

• 18 October 2023

Share this page

• Open access
• Published: 12 June 2024

Risk factors for neonatal hypoxic ischemic encephalopathy and therapeutic hypothermia: a matched case-control study

• Suoma Roto 1 ,
• Irmeli Nupponen 2 ,
• Ilkka Kalliala 1 &
• Marja Kaijomaa   ORCID: orcid.org/0000-0003-2180-1483 1  

BMC Pregnancy and Childbirth volume  24 , Article number:  421 ( 2024 ) Cite this article

184 Accesses

2 Altmetric

Metrics details

Peripartum asphyxia is one of the main causes of neonatal morbidity and mortality. In moderate and severe cases of asphyxia, a condition called hypoxic-ischemic encephalopathy (HIE) and associated permanent neurological morbidities may follow. Due to the multifactorial etiology of asphyxia, it may be difficult prevent, but in term neonates, therapeutic cooling can be used to prevent or reduce permanent brain damage. The aim of this study was to assess the significance of different antenatal and delivery related risk factors for moderate and severe HIE and the need for therapeutic hypothermia.

We conducted a retrospective matched case-control study in Helsinki University area hospitals during 2013–2017. Newborn singletons with moderate or severe HIE and the need for therapeutic hypothermia were included. They were identified from the hospital database using ICD-codes P91.00, P91.01 and P91.02. For every newborn with the need for therapeutic hypothermia the consecutive term singleton newborn matched by gender, fetal presentation, delivery hospital, and the mode of delivery was selected as a control. Odds ratios (OR) between obstetric and delivery risk factors and the development of HIE were calculated.

Eighty-eight cases with matched controls met the inclusion criteria during the study period. Maternal and infant characteristics among cases and controls were similar, but smoking was more common among cases (aOR 1.46, CI 1.14–1.64, p  = 0.003). The incidence of preeclampsia, diabetes and intrauterine growth restriction in groups was equal. Induction of labour (aOR 3.08, CI 1.18–8.05, p  = 0.02) and obstetric emergencies (aOR 3.51, CI 1.28–9.60, p  = 0.015) were more common in the case group. No difference was detected in the duration of the second stage of labour or the delivery analgesia.

Conclusions

Smoking, induction of labour and any obstetric emergency, especially shoulder dystocia, increase the risk for HIE and need for therapeutic hypothermia. The decisions upon induction of labour need to be carefully weighed, since maternal smoking and obstetric emergencies can hardly be controlled by the clinician.

Peer Review reports

Peripartum asphyxia, generally referred to as birth asphyxia, is one of the main causes of neonatal mortality worldwide [ 1 ]. Approximately three to five newborns per 1000 live births in developed countries are affected by birth asphyxia [ 2 ]. This condition of hypoxia and acidemia can develop gradually during pregnancy and lead to an emergency cesarean section when detected. It can also develop abruptly when complications during labour occur [ 3 ].

The pathophysiology of birth asphyxia and its multifactorial antecedents are well studied and recognized: An increased risk is associated with maternal health problems such as diabetes mellitus, cholestasis of pregnancy, anemia, and hypertension, as well as fetal conditions like intrauterine growth restriction and infections [ 4 , 5 ]. Extensive effort is made to screen and follow-up these mothers and pregnancies with known obstetric risk factors for development of birth asphyxia.

The clinical signs associated with birth asphyxia may be transient and reversible or lead to permanent neurological impairment or death [ 6 ]. A condition called hypoxic-ischemic encephalopathy may follow and, if diagnosed, can further be divided in mild, moderate, and severe [ 7 ]. A quick recovery, normal level of consciousness, mild neurological signs and absence of seizures are typical to a mild HIE, whereas moderate and severe HIE include presence of seizures, multiorgan failure, primitive reflexes and altered level of consciousness and tone [ 7 ]. The diagnosis of severe birth asphyxia is set when the neonate presents with a five-minute Apgar score of 0 to 3 and a pH of 7.0 or less in the umbilical artery blood sample [ 4 ].

In the severe cases of birth asphyxia, HIE predisposes the resuscitated neonate to permanent neurologic morbidities such as cerebral palsy, epilepsy, and developmental delays. The medical intervention to reduce brain damage in term neonates with moderate and severe HIE is therapeutic hypothermia, i.e., cooling of the neonates to around 33 °C for three days [ 8 ].

Despite the high-quality maternal care and the recognition of antenatal risks, birth asphyxia and HIE remain a challenge in perinatal care. Due to the multifactorial nature of fetal distress [ 9 , 10 ], the adverse outcome is not always predictable in risk pregnancies. In addition, many cases of HIE occur unanticipated in low-risk pregnancies.

The aim of this study was to assess the importance of different obstetric risk factors associated with moderate and severe HIE and the need for therapeutic hypothermia in term neonates delivered at the hospitals of Helsinki University Hospital area. We particularly focused on the management protocols of pregnancy and delivery.

This was a retrospective, matched case-control study concerning pregnancies and deliveries in the Helsinki University Hospital area. The same guidelines for follow-up and treatment of pregnancy and delivery are used in all Helsinki University area hospitals. The neonatal intensive care is centralized at the Neonatal Intensive Care Unit (NICU) in Helsinki University Hospital Women’s Clinic. The study period was from January 1, 2013, to December 31, 2017. The treatment of deliveries in the Helsinki University Hospital area was re-organized after a closure of one delivery hospital in late 2017 and the patient record systems was changed in early 2020. Due to the possible bias caused by these factors, years after 2017 were excluded from the study.

The study group consisted of patients who gave birth to asphyxiated singleton neonates with aforementioned symptoms of moderate or severe HIE. Each neonate was born term (one case of 36 6/7 gestation weeks), was admitted to the NICU and offered therapeutic hypothermia for neuroprotection. The indications for hypothermia were admitted from the international guidelines and previous research [ 2 ].

After each delivery with an asphyxiated newborn, the consecutive term singleton, matched by the delivery hospital, fetal gender, presentation (occipital vs. breech), and the mode of delivery (vaginal, assisted vaginal, elective, emergency, and crash cesarean delivery), was selected as a control. An emergency cesarean was defined as a decision-to-delivery-interval of 30 min and a crash cesarean as an immediate delivery after the decision to deliver. Subgroups were formed based on the mode and onset (spontaneous vaginal delivery, induced vaginal delivery, failed induction and cesarean, cesarean) of delivery.

The data for the study was collected from the hospital database (Siemens Obstetrix). All available information concerning fetal and maternal well-being during pregnancy and delivery was collected. This included maternal age and health (pregestational body mass index (BMI), chronic illnesses, medication), gestation at delivery, parity and previous births, and information concerning hospital visits during the ongoing pregnancy. Data on the time of hospital admission and the time of birth in relation to midwife work shifts was also obtained. We considered and tested multiple previously suggested risk factors for HIE or birth asphyxia [ 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 ] and analyzed their possible interactions.

Statistics/analyses

SPSS version 25.0.0 (IBM SPSS Statistics, Armonk, New York) was used to analyze the data. Independent samples t-test and Chi-square test were used for comparing continuous and categorical variables within subgroups, and for testing the independence of variables. Interactions between variables were further assessed with a stratified analysis. ( S10 )

Crude and adjusted odds ratios (OR and aOR respectively) were calculated using logistic regression to estimate associations between different independent variables and the outcome. From the univariate logistic regression, variables with a p  < 0.1 were exported to the multivariable logistic regression analysis. A forward stepwise logistic regression analysis was used to suggest multivariable models. Statistical significance was declared at p  < 0.05 and the CIs were set to 95%. Due to the novel study design and small sample sizes, we saw fit to try out and present two different approaches to the multivariate logistic regression analysis.

We used Benjamini-Hochberg corrected p -values (q-values) in the univariate logistic regression to account for multiple testing [ 25 ]. Missing values of > 5% per category were imputed using the fully conditional specification method and with maximum iterations of 10.

During the study period, 98 355 deliveries took place in Helsinki University area hospitals, the average being 19 671 per year. One hundred and twelve term neonates (including one case of 36 + 6 gestational weeks) presented with moderate to severe HIE and were admitted to the NICU to receive therapeutic hypothermia. The study period incidence of therapeutic hypothermia for signs of moderate to severe HIE in our obstetric population was 1.0/1000.

After excluding twin pregnancies, ninety-seven singleton pregnancies with neonatal HIE and therapeutic hypothermia made up the primary study group. Due to the failure to find matched controls, nine more pregnancies were excluded, leaving us with the final study group of eighty-eight cases.

Altogether, 45.5% of the neonates (40/88) in the study group were born vaginally and 65% (26/40) of them were ventouse-assisted. Two neonates were vaginally born in breech position. Cesarean deliveries constituted 54.5% (48/88) of study group deliveries, including elective, emergency, and crash procedures with the proportion of 2.0% (1/48), 29.2% (14/48), and 68.8% (33/48) respectively. Four emergency cesarean sections were preceded by a failed instrumental delivery. Due to the matching by delivery mode, the proportions were equal in the control group (Fig.  1 : The mode of delivery among cases of HIE and therapeutic hypothermia). The mortality in the study group was 10.2% (9/88). There were no neonatal deaths in the control group.

The mode of delivery (%) among cases of hypoxic ischemic encephalopathy and therapeutic hypothermia

Approximately the same proportion of patients in the groups were nulliparous (62.5% vs. 59.1%, p  = 0.576), and no difference was observed in mean maternal age (31.99 vs. 32.96, p  = 0.239) and BMI (24.20 vs. 23.96, p  = 0.467). The mean number of daily cigarettes (1.9 vs. 0.4) was higher ( p  = 0.001) in the study group. No difference was detected in the mean gestational age at delivery (38.89 vs. 40.21 gestational weeks, p  = 0.160) and newborn weight (3458.61 vs. 3472.33 g, p  = 0.898). Post term pregnancy was more common (3.41% vs. 13.64%, p  = 0.024) in the control group (Table  1 ).

There was no difference in the incidence of the most common antenatal complications, such as hypertension or preeclampsia (10.23% vs. 12.50%, p  = 0.797), intrauterine growth restriction (5.68% vs. 7.95%, p  = 0.552), gestational (13.64% vs. 15.91, p  = 0.671) diabetes, type I diabetes (4.55% vs. 3.41%, p  = 0.701) or suspected chorionamniotis (7.95% vs. 6.82%, p  = 0.773). There were no cases of diabetes type II in the study group (0% vs. 2.27%, p  = 0.497) and cholestasis of pregnancy in the control group (3.41% vs. 0%, p  = 0.246) (Table  2 ).

We detected a higher incidence of labour induction in the study group (21.59% vs. 9.09%, p  = 0.025), but no difference was detected in the incidence of cesarean after a failed induction (4.55% vs. 11.36%, p  = 0.106) or the phase II duration of delivery (35.44 min vs. 46.38 min, p  = 0.098). The overall incidence of any obstetric emergency, i.e., shoulder dystocia, placental abruption, or uterine rupture, was higher ( p  = 0.038) in the study group (20.45% vs. 10.23%), driven by a markedly higher incidence of shoulder dystocia (6.82% vs. 0%, p  = 0.029).

There was no difference in the use of epidural (56.82% vs. 68.18%, p  = 0.121), spinal (31.82% vs. 29.55%, p  = 0.744) or oral opioid (20.45% vs. 23.86%, p  = 0.586) anesthesia of deliveries, whereas the use of oxytocin augmentation (27.27% vs. 57,95%, p  < 0.001) and nitrous oxide (38.64% vs. 53.41%, p  = 0.050) was more common in the control group.

Midwife shift change during the active phase of delivery (45.45% vs. 60.23%, p  = 0.051) was somewhat more frequent in the control group and the incidence of delivery during the night shift insignificantly more common in the study group (48.86% vs. 37.50%, p  = 0.070) (Table  2 ).

The univariate analysis showed that nine independent variables were associated ( p  < 0.1) with either the presence or absence of moderate to severe HIE: Smoking, post term pregnancy, induction of delivery, duration of phase II, any obstetric emergency, augmentation of delivery by oxytocin (all stages of labour, including induction), use of nitrous oxide, shift change of midwives during active delivery, and delivery during night shift (10 pm. to 8 am.).

In the multivariate regression model with four to eight variables in the same model, obstetric emergencies, labour induction and smoking significantly increased the odds of HIE (Table  3 , Supporting information Tables S1 - S9 ). We were able to repeat these results in most of the tried models. Induction of labour had a significant association with HIE ( p  = 0.02) in all tried models, but there was no significant association with HIE and the subgroups of induction methods (balloon catheter, vaginal misoprostol, amniotomy followed by oxytocin-infusion), when entered separately to the regression analysis. In fact, in just 33% of cases only one induction method was used.

In the stratified analysis, the association of induction of labour with HIE was even stronger when oxytocin augmentation was used, OR 9.2 (2.71–31.21). Also, the midwife shift change in induced labours resulted in higher OR for HIE (4.5, 1.73–12.20) (Supporting information, Table S10 ). When adjusted with other variables in logistic regression, the significant association of oxytocin use and HIE was still strong, while shift change, duration of the second phase of delivery, and delivery during night shift lost their statistical significance (Table  3 ).

To reveal any common features in different modes of delivery, results were further analyzed in four subgroups: spontaneous and assisted vaginal delivery, and emergency and crash cesarean (Supporting information, Table S11 ). Mothers without preceding active labour or medical intervention, were omitted from the crash cesarean subgroup.

We also made efforts to deeper analyze the cases of shoulder dystocia and induced labours.

There were six cases of shoulder dystocia in the study group, but none in the control group, which made the regression analysis inapplicable for this specific variable. However, the analyses of all obstetric emergencies (placental abruption, uterine rupture, shoulder dystocia) as a surrogate variable showed a statistically significant association with obstetric emergencies and HIE. The increase in odds of HIE with placental abruption and uterine rupture was insignificant or nonexistent. Aforementioned obstetric emergencies altogether presented an OR of 2.57 and aOR of 3.51 ( p  < 0.05) (Table  3 ). Other obstetric emergencies, such as cord prolapse and eclampsia, were not present in our data. The analysis of induced labours showed that even though newborns in the study group were heavier (3790 g vs. 3314 g, p  = 0.030), they were more often born vaginally (84.2% vs. 37.5%, p  = 0.027) (Supporting information, Table S12 ).

When analyzed by the mode of delivery, induction was more common in the study group in vaginal (OR 2.75, 95% 1.13–6.68, p  = 0.016) and assisted (ventouse) vaginal deliveries ( p  = 0.017) (Supporting information, Table S11 ). The midwife shift change was more common in the control groups of the emergency ( p  = 0.008) and crash ( p  = 0.044) caesarean sections and smoking was more common ( p  = 0.039) in the study group of the crash cesarean subgroup. Five of the six study group cases with shoulder dystocia occurred in the ventouse delivery subgroup ( p  = 0.051) (Supporting information Table S11 ).

In this study, maternal smoking, induction of labour and obstetric emergencies appeared to be independent risk factors for HIE. There was a clear dose-dependent association with maternal smoking and HIE. This finding prevailed in the multivariate analysis, although the increase in odds remained quite small. There were more induced labours in the study group and the association with labour induction was most pronounced in the subgroup that received oxytocin, accounting for the use during and after induction. Also shoulder dystocia, a poorly predictable obstetric emergency, increased the risk for HIE. Other previously stated antecedents, e.g., nulliparity, gestational age, maternal weight [ 22 ], prematurity [ 15 ] and chorionamnionitis [ 6 ] appeared mostly not to associate with HIE in this study. Furthermore, post term pregnancy, nitrous oxide, and the use of oxytocin as an independent variable had a seemingly opposite association with HIE.

Smoking is known to be a major risk factor for birth asphyxia and HIE. It is strongly associated with antecedents for asphyxia, i.e., fetal growth restriction [ 26 ] and the risk of placental abruption [ 6 , 27 , 28 ]. Smoking increases oxidative stress and reduces endogenous defenses in the fetus, which may play a role in the pathogenesis [ 29 ]. Even though the harmful effect of smoking is quite indisputable, some bias in the results has to be recognized. The proportion of missing data was substantial, and the imputed data may have skewed the results towards HIE. Also, the frequency, cessation and continuity of smoking was self-reported and susceptible to social desirability bias. It may be, however, safe to assume that the effect of smoking is at least what is presented by the unimputed data (OR 1.21, 95% CI 0.99–1.46, p  = 0.06).

The association between labour induction and HIE requires careful analysis. Significant multicollinearity between induction of labour and other supposed risk factors (obstetric emergency, oxytocin augmentation, shift change, nitrous oxide, and gestational diabetes) was noticed (Supporting information, Table S13 ). The induced labours in the study group ended more frequently in vaginal delivery than in the control group. There were no differences in the indications of labour induction. When these factors are weighed in, the independence of induction of labour as a risk factor for HIE can be considered a complex issue.

The role of induction is, however, worth serious consideration, since these pregnancies may include mothers or fetuses with multiple risk factors. In Finland the rate of induced labours has increased from 17.5% in 2007 to 33.9% in 2021 [ 30 ]. In addition, the proportion of elective inductions without a medical indication are also increasing [ 31 ]. In this study, the risk for HIE was most pronounced among patients with induction of labour together with the use of oxytocin during labour. The oxytocin associated increase in the incidence of encephalopathy was also described in the recent review and meta-analysis by Burgod et al. [ 32 ]. It is also worth noticing that even though newborns in the study group of induced labours were heavier, they were more often born vaginally and the number of ventouse deliveries was twice the proportion in the control group. Compared to zero cases in the study group, in approximately one third of control group cases, a crash cesarean followed a failed ventouse delivery. It can be speculated whether some anchoring bias in decision making is involved and the higher proportions of ventouse and vaginal deliveries in the study group and crash cesareans following ventouse trials in the control group reflect the clinicians’ decisions that are associated with the outcome of the newborn. The number of cases is however too small to draw conclusions.

Shoulder dystocia is an obstetric emergency, that results in prolongation of head-to-body delivery, traction of the brachial plexus, and possible birth trauma [ 33 , 34 ]. The shoulder dystocia incidence reported in studies is approximately 0.7% [ 35 ]. Fetal macrosomia is known to increase the risk of shoulder dystocia more than tenfold [ 35 ] and in these situations, a planned delivery at early term has been demonstrated to reduce the risk of shoulder dystocia [ 34 ]. In this study, six cases of shoulder dystocia were detected in the study group (6.8%) compared to none in the control group. This made the regression analysis inapplicable for this variable. Even though the analysis of all obstetric emergencies (placental abruption, uterine rupture, shoulder dystocia) as a surrogate variable was associated with HIE, the association of HIE with placental abruption and uterine rupture alone was less clear.

As stated, the use of oxytocin in general (irrespective of induction) and nitrous oxide was significantly more common in the control group. However, as shown in the stratified analysis (supplementary information Table S10 ), in the subgroup of induced labours, oxytocin use was more common in the study group. As the need for induction of labour itself may indicate increased risks in the pregnancy, these variables together increase the risk for adverse outcome. In contrast, spontaneous deliveries with oxytocin augmentation were more frequent in the control group. We suggest that the seemingly protective association of oxytocin augmentation in relation to HIE in the regression models could be explained by the asymmetric distribution of these different subgroups. The same can be speculated for the negative association of the administration of nitrous oxide.

The higher incidence of post-term pregnancies in the control group also needs additional attention. It can be speculated that the need for interventions in control group pregnancies was lower and post term was reached more often. It is also of note, that there was significant collinearity between post term pregnancy and oxytocin administration, midwife shift change and delivery during night shift.

In our study population, 54.5% of patients had a cesarean section and the incidences of emergency and crash cesarean were 15.9% and 37.5%. This describes the underlying existence of ante- and intrapartum complications in the study cohort, since the overall incidences of cesarean sections in the Finnish population were 16.7%, 9.2% and 0.9%, respectively [ 30 ]. For example, the rates of pre-eclampsia and pregnancy-induced hypertension in the study were 10.2% and 12.5% compared to our national and worldwide incidences of 5% and 7% [ 36 ].

The purpose of this study was to find HIE risk factors that could be anticipated and avoided in the antenatal care and treatment of delivery. For some patients in the study group, the active labour surveillance, and early obstetric interventions, were never at hand. Our efforts in prevention of HIE should be targeted to patients, that during labour are under constant care and observation.

Compared to previous studies, the selection criteria for this study group were different. Although a similar approach with therapeutic hypothermia as surrogate outcome for severe birth asphyxia (and sequential HIE) has been used before [ 19 ], most case-control studies rest on a study group of neonates diagnosed with neonatal asphyxia, or with signs of birth asphyxia (low Apgar score and/or signs of acidemia in the peripartum blood samples) [ 16 , 18 , 20 , 21 , 24 , 27 , 37 ]. In this study, we chose to use the application of therapeutic hypothermia as the study group inclusion criteria, since it is a clearly defined clinical intervention and in our clinic the indications for use are standardized. The incidence of our inclusion criteria, therapeutic hypothermia (1.1/1000), is slightly higher than the incidence of moderate and severe HIE (0.67/1000) in the study by Liljeström et al. [ 22 ]. Although moderate and severe HIE are the main indications for therapeutic hypothermia, the direct comparison of these incidences should be done with caution. Since the exact severity of HIE may still be uncertain immediately after birth (which may have occurred in another hospital) and the decision concerning this undeniably beneficial treatment has to be made within six hours, the incidence of therapeutic hypothermia treatment may be somewhat higher than the exact incidence of diagnosed moderate and severe HIE.

The study setting could be considered a strength of this study. To the best of our knowledge, this was the first case-control study pairing the groups by the mode of delivery, sex, hospital, and fetal presentation at birth. This could partially explain the differences in our results compared to previous similar studies.

The limitations of this study were its retrospective nature and small sample sizes. It is also likely that the matched case control setting together with a small number of cases failed to show the risks associated with previously described risk factors like hypertension, diabetes, and intrauterine growth restriction. These limitations, as well as coincidence, may also explain the higher incidence of post term pregnancies in the control group. The multicollinearity of some studied risk factors also set limitations when interpreting the data.

There were also some restrictions regarding obtaining data. We didn’t have access to primary health care and antenatal outpatient data, and we relied on the history information of the maternity card and database information upon mothers’ admission to the hospital. Chronic illnesses, obstetric complications and infections were not always structurally recorded. Some information such as substance abuse may be underrepresented but unlikely affects our results.

Demographic risk factors, such as social and marital status, are not collected and had to be excluded. Some previously identified risk factors (urinary tract and viral infections) [ 17 , 23 , 38 , 39 ] had to be excluded because they are treated at the primary health care level.

After controlling for multiple testing, only two of the univariate logistic regression results (maternal smoking and use of oxytocin) remained statistically significant. When studying rare outcomes in limited sample size, one must be careful not to reject the null hypothesis too readily, while minding possibly important findings that fail to reach nominal statistical significance. We considered both these pitfalls and considered clinical applicability as best we could while interpreting these results, but conclusions based on the findings should still be done with caution.

According to our results, induction of labor may be an independent risk factor for HIE, and it should only be used in situations where it evidently improves the outcome of labour. Special vigilance is required from the obstetric team when deciding upon induction and when managing these patients during labour. The increased risk of HIE associated with smoking and obstetric emergencies is unfortunately mostly out of the clinician’s reach.

Data availability

The data that support the findings of this study are available from the corresponding author upon reasonable request.

Abbreviations

• Hypoxic-ischemic encephalopathy

Neonatal Intensive Care Unit

Lawn JE, Cousens S, Zupan J. 4 Million neonatal deaths: When? Where? Why? Vol. 365, Lancet.2005;365(9462):891–900.

Jacobs SE, Berg M, Hunt R, Tarnow-Mordi WO, Inder TE, Davis PG. Cooling for newborns with hypoxic ischaemic encephalopathy. Cochrane Database Syst Rev. 2013;2013(1):CD003311.

PubMed   PubMed Central   Google Scholar  

Yli BM, Kjellmer I. Pathophysiology of foetal oxygenation and cell damage during labour. Best Pract Res Clin Obstet Gynaecol. 2016;30:9–21.

Article   PubMed   Google Scholar  

Igboanugo S, Chen A, Mielke JG. Maternal risk factors for birth asphyxia in low-resource communities. A systematic review of the literature. J Obstet Gynaecol. 2020;40(8):1039–55.

Rossi AC, Prefumo F. Antepartum and intrapartum risk factors for neonatal hypoxic-ischemic encephalopathy: a systematic review with meta-analysis. Curr Opin Obstet Gynecol. 2019;31(6):410–17.

Sarnat HB, Sarnat MS. Neonatal Encephalopathy following fetal distress: a clinical and electroencephalographic study. Arch Neurol. 1976;33(10):696–705.

Article   CAS   PubMed   Google Scholar  

Morales P, Bustamante D, Espina-Marchant P, Neira-Peña T, Gutiérrez-Hernández MA, Allende-Castro C et al. Pathophysiology of perinatal asphyxia: can we predict and improve individual outcomes? EPMA J;2(2). p. 211–30.

Shankaran S, Laptook AR, Ehrenkranz RA, Tyson JE, McDonald SA, Donovan EF, et al. Whole-body hypothermia for neonates with hypoxic-ischemic encephalopathy. N Engl J Med. 2005;353(15):1574–84.

Westgate JA, Gunn AJ, Gunn TR. Antecedents of neonatal encephalopathy with fetal acidaemia at term. Br J Obstet Gynaecol. 1999;106(8):774–82.

Seikku L, Gissler M, Andersson S, Rahkonen P, Stefanovic V, Tikkanen M, et al. Asphyxia, neurologic morbidity, and perinatal mortality in early- term and postterm birth. Pediatrics. 2016;137(6):e20153334.

Locatelli A, Incerti M, Paterlini G, Doria V, Consonni S, Provero C, et al. Antepartum and intrapartum risk factors for neonatal encephalopathy at term. Am J Perinatol. 2010;27(8):649–54.

Torres-Muñoz J, Rojas C, Mendoza-Urbano D, Marín-Cuero D, Orobio S, Echandía C. Risk factors associated with the development of perinatal asphyxia in neonates at the Hospital Universitario del Valle, Cali, Colombia, 2010–2011. Biomedica. 2017 1;37(0):51–6.

Lundgren C, Brudin L, Wanby AS, Blomberg M. Ante- and intrapartum risk factors for neonatal hypoxic ischemic encephalopathy. J Matern Fetal Neonatal Med. 2018;18(12):1595–601.

Article   Google Scholar  

Itoo BA, Al-Hawsawi ZM, Khan AH. Hypoxic ischemic encephalopathy. Incidence and risk factors in North Western Saudi Arabia. Neurosciences. 2003;8(2):113–9.

PubMed   Google Scholar  

Ayuk Widiani NN, Yuli Kurniati DP, Trisna Windiani IGA. Maternal and infant risk factors on the incidence of neonatal asphyxia in Bali: Case Control Study. Public Health Prev Med Arch. 2016;4(2):120–6.

Hall DR, Smith M, Smith J. Maternal factors contributing to asphyxia neonatorum. J Trop Pediatr. 1996;42(4):192–5.

Badawi N, Kurinczuk JJ, Keogh JM, Alessandri LM, O’Sullivan F, Burton PR, et al. Intrapartum risk factors for newborn encephalopathy: the western Australian case-control study. Br Med J. 1998;317(7172):1549–53.

Article   CAS   Google Scholar  

Blume HK, Loch CM, Li CI. Neonatal encephalopathy and socioeconomic status: Population-based case-control study. Arch Pediatr Adolesc Med. 2007;161(7):663–8.

Nelson DB, Lucke AM, Mcintire DD, Sánchez PJ, Leveno KJ, Chalak LF. Obstetric antecedents to body cooling treatment of the Newborn Infant. Am J Obs Gynecol. 2014;211(2):155–6.

Nayeri F, Shariat M, Dalili H, Bani Adam L, Zareh Mehrjerdi F, Shakeri A. Perinatal risk factors for neonatal asphyxia in Vali-e-Asr hospital, Tehran-Iran. Iran J Reprod Med. 2012;10(2):137–40.

Heinonen S, Saarikoski S. Reproductive risk factors of fetal asphyxia at delivery: a population based analysis. J Clin Epidemiol. 2001;54(4):407–10.

Liljestrom L, Wikstrom AK, Agren J, Jonsson M. Antepartum risk factors for moderate to severe neonatal hypoxic ischemic encephalopathy: a Swedish national cohort study. Acta Obstet Gynecol Scand. 2018;97(5):615–23.

Martinez-Biarge M, Madero R, Gonzlez A, Quero J, Garca-Alix A. Perinatal morbidity and risk of hypoxic-ischemic encephalopathy associated with intrapartum sentinel events. Am J Obstet Gynecol. 2012;206(2):148.e1-148.e7.

Ellis M, Manandhar N, Manandhar DS, De L, Costello AM. Risk factors for neonatal encephalopathy in Kathmandu, Nepal, a developing country: unmatched case-control study. Br Med J. 2000;320(7244):1229–36.

Benjamini Y, Hochberg Y. Controlling the false Discovery rate: a practical and powerful Approach to multiple testing. J R Stat Soc Ser B. 1995;57(1):289–300.

Abraham M, Alramadhan S, Iniguez C, Duijts L, Jaddoe VWV, Den Dekker HT, et al. A systematic review of maternal smoking during pregnancy and fetal measurements with meta-analysis. PLoS ONE Public Libr Sci. 2017;12(2):e0170946.

Tikkanen M, Surcel HM, Bloigu A, Nuutila M, Ylikorkala O, Hiilesmaa V, et al. Self-reported smoking habits and serum cotinine levels in women with placental abruption. Acta Obstet Gynecol Scand. 2010;89(12):1538–44.

Downes KL, Shenassa ED, Grantz KL. Neonatal outcomes Associated with placental abruption. Am J Epidemiol. 2017;186(12):1319–28.

Article   PubMed   PubMed Central   Google Scholar  

Gitto E, Reiter RJ, Karbownik M, Tan D-x, Gitto P, Berberi S, et al. Causes of oxidative stress in the pre- and Perinatal Period. Neonatology. 2002;81(3):146–57.

Perinataalitilasto. – synnyttäjät, synnytykset ja vastasyntyneet - THL [Internet]. [cited 2020 Aug 6]. https://thl.fi/fi/tilastot-ja-data/tilastot-aiheittain/seksuaali-ja-lisaantymisterveys/synnyttajat-synnytykset-ja-vastasyntyneet/perinataalitilasto-synnyttajat-synnytykset-ja-vastasyntyneet .

Kruit H, Nuutila M, Rahkonen L. Lääkärilehti - Synnytyksen käynnistäminen, Kun raskaus on täysiaikainen. Lääkärilehti. 2016;71(25–32/2016):1845–51.

Google Scholar  

Burgod C, Pant S, Morales MM, Montaldo P, Ivain P, Elangovan R, et al. Effect of intra-partum oxytocin on neonatal encephalopathy: a systematic review and meta-analysis. BMC Pregnancy Childbirth. 2021;21(1):1–7.

Collins KA, Popek E. Birth Injury: Birth Asphyxia and Birth Trauma. Academic Forensic Pathology. Volume 8. SAGE Publications Inc.; 2018. pp. 788–864.

Farrar D, Simmonds M, Bryant M, Sheldon TA, Tuffnel D, Golder S, et al. Treatments for gestational diabetes: a systematic review and meta-analysis. BMJ Open. 2017;7(6):e015557.

Hartiadystokia. - Duodecim Oppiportti [Internet]. [cited 2020 Aug 18]. https://www-oppiportti-fi.libproxy.helsinki.fi/op/njs15507/do?p_haku=hartiadystokia#q=hartiadystokia .

Rana S, Lemoine E, Granger J, Karumanchi SA, Preeclampsia. Pathophysiology, challenges, and perspectives. Circ Res. 2019;124(7):1094–112.

Milsom I, Ladfors L, Thiringer K, Niklasson A, Odeback A, Thornberg E. Influence of maternal, obstetric and fetal risk factors on the prevalence of birth asphyxia at term in a Swedish urban population. Acta Obstet Gynecol Scand. 2002;81(10):909–17.

Hayes BC, McGarvey C, Mulvany S, Kennedy J, Geary MP, Mattherws TG et al. A case-control study of hypoxic-ischemic encephalopathy in newborn infants at > 36 weeks gestation. Am J Obstet Gynecol. 2013;209(1):29.e1-29.e19.

Kapaya H, Williams R, Elton G, Anumba D. Can obstetric risk factors predict fetal acidaemia at Birth? A retrospective case-control study. J Pregnancy. 2018;2018:2195965.

Download references

Acknowledgements

We gratefully acknowledge the assistance of Paula Bergman, biostatistician at Biostatistics consulting, University of Helsinki, Finland, for her biostatistical advice.

Helsinki University State Research Funding.

Open Access funding provided by University of Helsinki (including Helsinki University Central Hospital).

Author information

Authors and affiliations.

Department of obstetrics and gynecology, Helsinki University Women’s Hospital, Haartmaninkatu 2, Helsinki, 00029, Finland

Suoma Roto, Ilkka Kalliala & Marja Kaijomaa

Children’s Hospital, University of Helsinki and Helsinki University Hospital, Helsinki, Finland

Irmeli Nupponen

You can also search for this author in PubMed   Google Scholar

Contributions

SR contributed to the literature search, figures, study design, data collection, data analysis, data interpretation and writing. IN contributed to the study design, data collection data interpretation and writing. IK contributed to the data interpretation and writing. MK contributed to the study design, data collection, data analysis, data interpretation, figures, and writing.

Corresponding author

Correspondence to Marja Kaijomaa .

Ethics declarations

Ethical approval.

The study was approved by the Helsinki University Hospital Institutional Review Board. (March 3, 2018, 1/2018).

Consent for publication

Not applicable.

Competing interests

The authors declare no competing interests.

Additional information

Publisher’s note.

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Electronic supplementary material

Below is the link to the electronic supplementary material.

Supplementary Material 1

Rights and permissions.

Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/ . The Creative Commons Public Domain Dedication waiver ( http://creativecommons.org/publicdomain/zero/1.0/ ) applies to the data made available in this article, unless otherwise stated in a credit line to the data.

Reprints and permissions

About this article

Cite this article.

Roto, S., Nupponen, I., Kalliala, I. et al. Risk factors for neonatal hypoxic ischemic encephalopathy and therapeutic hypothermia: a matched case-control study. BMC Pregnancy Childbirth 24 , 421 (2024). https://doi.org/10.1186/s12884-024-06596-8

Download citation

Received : 31 May 2023

Accepted : 20 May 2024

Published : 12 June 2024

DOI : https://doi.org/10.1186/s12884-024-06596-8

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Birth asphyxia
• Induction of labour
• Oxytocin treatment
• Shoulder dystocia
• Therapeutic hypothermia

BMC Pregnancy and Childbirth

ISSN: 1471-2393

• Submission enquiries: [email protected]
• General enquiries: [email protected]