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Principled Labor LawU.S. Labor Law through a Latin American Method$
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Sergio Gamonal C. and César F. Rosado Marzán

Print publication date: 2019

Print ISBN-13: 9780190052669

Published to Oxford Scholarship Online: May 2019

DOI: 10.1093/oso/9780190052669.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.date: 01 July 2022

Primacy of Reality

Primacy of Reality

(p.63) 3 Primacy of Reality
Principled Labor Law

Gamonal C. Sergio

César F. Rosado Marzán

Oxford University Press

Chapter 3 describes the principle of primacy of reality in Latin America, namely, in Argentina, Brazil, Chile, and Uruguay. The principle is also contained in the International Labor Organization’s Recommendation 198. The principle posits that facts must be given preference over what parties, particularly employers, state in legal texts, documents, and agreements. It is particularly important when determining threshold questions in labor law, such as employee and employer status. While employers might deny an employment relationship given a formal agreement to hire workers as independent contractors, the facts might show otherwise. However, the chapter also argues that primacy of reality depends on the principle of protection and in dubio pro operario to resolve questions when the facts are not dispositive given vague or missing rules. The chapter then searches primacy of reality in the United States and finds it in various employment tests, such as the common law control test. It is also finds it in employer tests of joint employer status. However, many of those tests remain vague, requiring supplementation with the U.S. versions of in dubio pro operario, i.e., liberal construction of the statutes that derogate the common law, and with legislative purpose. Primacy of reality makes it even more important for legal operators to be cognizant of labor law principles and, principally, the protective principle.

Keywords:   primacy of reality, primacy of fact, Argentina, Brazil, Chile, Uruguay, United States, employee status, independent contractors, joint employer

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