Hila Shamir

Spheres of Migration: Political, Economic and Universal Imperatives in Israel’s Migration Regime

This article seeks to describe the piecemeal process of creation of what may, arguably, be a new immigration regime in Israel. In order to do so, we focus on three distinct waves of non-Jewish entry to Israel. The first is the day-labor entry of Palestinian workers from the Occupied Palestinian Territories (OPT) since 1967; the second is the entry of migrant workers from various countries, primarily since 1993; and the third is the entry of asylum-seekers, primarily from Africa, since 2007. Each of these waves was carved out by the state as a distinct sphere of migration, a narrow exception to Israel’s general Jewish Settler Regime, which is based on a different functional imperative. The entry of Palestinians is justified primarily by a political imperative – the political relationship between Israel and the Palestinians under occupation. The entry of migrant workers is, first and foremost, seen as the result of economic imperatives – a way to supply cheap labor to cater to the needs of the domestic labor market and fulfill the economic needs of the state. The entry of asylum-seekers (and their rights upon entry) rests primarily on a universal humanitarian imperative led by the state’s moral and convention-based responsibility toward those who are in dire need, and particularly in need of a safe territorial haven.

Between Home and Work: Assessing the Distributive Effects of Employment Law in Markets of Care

This Article offers a new analytical framework for understanding the distributive role of legal regulation in the interaction of “home” and “work.” Using this framework, the Article maps the “double exceptionalism” of the family in U.S. federal employment law. It suggests that employment law treats familial care responsibilities as exceptional in two different ways: first, through family leave benefits that affect the primary labor market, labeled here “affirmative exceptionalism”; and, second, through the exclusion of inhome care workers from protective employment legislation in the secondary labor market, labeled here “negative exceptionalism.” This double exceptionalism of the family in employment law serves as a basis for an assessment of the distributive outcomes of employment law across class and gender lines. The Article shows that the combined study of affirmative and negative exceptionalism - of how employment law affects the availability of labor, as well as the working conditions, of both care workers and their employers - is crucial to a holistic understanding of the formative and distributive effects of employment law on markets of care. A central implication is that employment law should be understood as an accessible, if obdurate, legal tool which holds the potential for achieving distributional shifts from current social and political divisions of power among members of households and classes alike.

Unionizing Subcontracted Labor

Subcontracting — the practice of using intermediaries to contract workers, whether through temp agencies, manpower agencies, franchise, or other multilayered contracting — is an increasingly popular pattern of employment worldwide. Whether justified from a business perspective or not, subcontracting has dire implications for workers’ rights: it insulates the beneficiary of their labor from direct legal obligations to the workers’ wages and working conditions and drastically reduces their ability to effectively unionize. This Article explores the impact of subcontracting on unionization of subcontracted labor. It argues that labor law in most postindustrial developing economies is structured around the Fordist model of production and employment and therefore provides insufficient protections to workers whose employment arrangements deviate from that model. The Article maps the various hurdles subcontracting poses to unionization. It identifies three main challenges to the basic assumptions that animate traditional labor law: first, that a union has leverage and significant bargaining power vis-à-vis an employer; second, that the union and the employer are repeat players in negotiations, and that accordingly the labor contract is a relational contract in which both parties consider the short and the long term in their calculations; and third, that the bargaining unit represented by the union is relatively easily discernable and relatively stable. The Article argues that subcontracting disrupts all of these assumptions. Accordingly, in order to remain relevant to subcontracted workers, labor law requires adaptations. The Article sketches a preliminary list of existing and potential legal responses to subcontracting that better guarantee subcontracted workers’ rights to unionize. Its main suggestion is to move away from a bilateral towards a multilateral structure of collective agreement bargaining in subcontracting situations. Finally, the Article questions whether law can provide a once-and-for-all solution to the problems posed by subcontracting, and explores the dynamic role of law and unionizing in this context.

The Public/Private Distinction Now: The Challenges of Privatization and of the Regulatory State

Abstract This Article examines what form the public/private distinction takes in contemporary legal consciousness. It proposes that while the public/ private distinction is still an important component of contemporary legal consciousness, the content of each sphere, their stability as distinct spheres, and their interaction with each other have significantly changed. This transformation occurred primarily due to the rise of the regulatory state and the increased visibility of the interconnectedness of the spheres due to public ordering of private activity in an age of widespread privatization. The current state of the distinction challenges courts, when these are asked by petitioners to define the proper scope of the spheres and decide on their boundaries. The Article critically examines the Israeli High Court of Justice decision in a prison privatization case, as a case that reflects the mismatch between the traditional understanding of the public/private distinction and a much messier reality in which the private and public spheres keep changing, and intermingling in new ways.

The Global Governance of Domestic Work

Paid domestic and care-related work in the household — the provision of in-home household services such as cleaning and taking care of dependent children, disabled family members, or the elderly — has long been an unregulated form of labour in most countries. Domestic workers, mostly women, often migrants and from racial or ethnic minorities, have been excluded from some or all employment and labour legislation and social security schemes, and are mostly not covered by collective agreements. Domestic work around the globe is characterized by low levels of regulation, low wages, long working hours and difficult working conditions (ILO, 2013).