Acceso usuarios
Guy Davidov, Edo Eshet
Enforcement of labor laws is inherently challenging.1 The same reasons that led to the enactment of labor laws-the inequality of bargaining power and the vulnerability of employees vis-a-vis their employers-also make the workers, in many cases, unlikely to complain or sue during the relationship. Additional barriers put significant limitations on the ability of workers to sue after the end of the relationship as well. The state can use inspectors and prosecute offenders, but this can affect only a small fraction of violations. For various reasons, the problem has exacerbated in recent years.2 As a result, new ideas have been proposed by scholars and some new tools introduced by legislatures, in an attempt to better prevent payments of wages below the minimum wage, as well as many other violations of laws that are crucial to the well-being of employees.3 It is possible to divide the efforts into two: methods to improve compliance and methods designed to improve enforcement. Although there are obviously strong connections between the two-the prospect of effective enforcement can be expected to push more employers to comply in the first place-there are also important differences. Efforts to improve the level of compliance focus on prevention by inducing a change of behavior among employers. The attempt is to structure the law in a way that will lead to more compliance, without investing resources in enforcement. For example, a law that requires the employer to keep records about working hours can include a provision shifting the burden of proof to the employer in case of violation, making it easier for employees to sue for overtime payments. Such an incentive structure is one possible way of increasing compliance. In contrast, instruments at the level of enforcement focus on which sanctions to use in case of violations, how to allocate inspection resources, monitoring mechanisms, etc. obviously, this is also intended to change the behavior of employers, through deterrence, so the line is admittedly blurred.4 Without claiming that there is a clear line separating the two levels, our aim in the current contribution is to focus on the level of compliance, and specifically, on the role of courts. The literature in this area is mostly concerned with legislation and with enforcement agencies. A highly interesting and useful branch of the literature focuses on public-private initiatives, which add a role for private actors to support enforcement efforts. But the role of the judiciary has been relatively neglected. What can courts do (and to some extent are already doing) to push employers towards complying with labor laws? One aspect of the court's role is deciding who should be considered an "employee" and an "employer." These topics received enormous attention in the literature, and they are certainly important for tackling evasion; but they are not directly about compliance or enforcement. In any case, we do not discuss them in the current article. The question we wish to address is what judges can do to increase compliance in those cases in which the status of employer and employee are not in dispute. our discussion assumes that judges have significant discretion to develop the law, which is especially true in common law systems. We draw our examples from Israel, which has a "mixed" legal system with common law origins. We believe that much of the discussion is relevant for civil law systems as well, but claim no expertise in this regard.
