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United States labor law

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In 2013, the US had a working population of 155.5 million people. 11.9 million people, 7.7% of the labor force, are unemployed. Union membership is 35.9% of public sector workers and 6.6% in the private sector.[1] The median income was $50,054 per year in 2011, and ranked 23rd in the world human development index, adjusted for inequality.

United States labor law is the body of law that mediates the rights and duties of workers, employers and labor unions in the United States of America. Federal laws, such as the Fair Labor Standards Act, the National Labor Relations Act, the Civil Rights Act of 1964 and the Occupational Safety and Health Act set the standards that govern workers' rights to organize in the private sector, and override most state and local laws. Usually there are more limited rights for employees of the federal government, but not state or local governments, where workers derive their rights from state law. Federal and state laws protect workers from employment discrimination, on grounds of race, gender, religion, national origin and age. Federal law preempts most state statutes that would bar employers from discriminating against employees to prevent them from obtaining pensions or other benefits or retaliating against them for asserting those rights.

History

Main articles: History of labor law in the United States and Labor history of the United States
A man building the frame of the Empire State Building at the start of the Great Depression in 1930.[2]

In 1941, Executive Order 8802 (or the Fair Employment Act) became the first law to prohibit racial discrimination, although it only applied to the national defense industry. Later laws include Title VII of the Civil Rights Act of 1964 (and amendments), Title I of the Americans with Disabilities Act of 1990,[3] the Family and Medical Leave Act of 1993,[4] and numerous state laws with additional protections. The Fair Labor Standards Act[5] regulates minimum wages and overtime pay for certain employees who work more than 40 hours in a work week.

While working an employee must work a minimum of two hours in a day. Cases of employment discrimination in the United States are most often subject to the jurisdiction of the Equal Employment Opportunity Commission, the federal commission responsible for the enforcement of the anti-discrimination laws. Once a case has been filed with the EEOC or similar state agencies with concurrent jurisdiction, employees have a right to remove the case to the courts with the permission of the agency, or in some instances, after the expiration of a set time period. Employment law cases are heard in state or federal courts, depending upon the issue, the size of the employer (the Civil Rights Act of 1964,[6] for example, applies only to employers with 15 or more employees), and the litigation strategy of the plaintiff.

Contract and rights at work

Contract of employment

See also: United States contract law

Scope of protection

Wages regulation

Main articles: Fair Labor Standards Act and Minimum wage in the United States
A graph of the changes in the federal minimum wage rate. Light blue is the real wage and dark blue the nominal wage

The Fair Labor Standards Act[7] of 1938 (FLSA) establishes minimum wage and overtime rights for most private sector workers, with a number of exemptions and exceptions. Congress amended the Act in 1974 to cover governmental employees, leading to a series of United States Supreme Court decisions in which the Court first held that the law was unconstitutional, then reversed itself to permit the FLSA to cover governmental employees.

The FLSA does not preempt state and local governments from providing greater protections under their own laws. A number of states have enacted higher minimum wages and extended their laws to cover workers who are excluded under the FLSA or to provide rights that federal law ignores.

Local governments have also adopted a number of "living wage" laws that require those employers that contract with them to pay higher minimum wages and benefits to their employees. The federal government, along with many state governments, likewise require employers to pay the prevailing wage, which typically reflects the standards established by unions' collective bargaining agreements in the area, to workers on public works projects.

  • Skidmore v. Swift & Co., 323 U.S. 134 (1944) the Department of Labor's recommendations over what counted as overtime would be given a level of deference commensurate to its persuasiveness, the thoroughness of investigation, its consistency, and the validity of its reasoning.
  • Auer v. Robbins, 519 U.S. 452 (1997) police sergeants and lieutenants were classed as executives or professional employees, and therefore could not claim overtime pay under the FLSA.
  • Christensen v. Harris County, 529 U.S. 576 (2000) an employer could require police employees to use up their "comp" time before claiming extra overtime pay. The Department of Labor's recommendation that this violated the FLSA was not binding.

Pensions

Main article: Pensions in the United States

The Employee Retirement Income Security Act[8] establishes standards for the funding and operation of pension and health care plans provided by employers to their employees. The ERISA preempts most state legislation that attempts to regulate how such plans are administered and, to a great extent, what types of health care coverage they provide. ERISA also preempts state law claims that an employer discriminated against employees in order to prevent them from obtaining the benefits they would have earned otherwise or to retaliate against them for asserting their rights.

Health and safety

Main article: Occupational Safety and Health Act 1970

The Occupational Safety and Health Act,[9] signed into law in 1970 by President Richard Nixon, creates specific standards for workplace safety. The Act has spawned years of litigation by industry groups that have challenged the standards limiting the amount of permitted exposure to chemicals such as benzene. The Act also provides for protection for "whistleblowers" who complain to governmental authorities about unsafe conditions while allowing workers the right to refuse to work under unsafe conditions in certain circumstances. The Act allows states to take over the administration of OSHA in their jurisdictions, so long as they adopt state laws at least as protective of workers' rights as under federal law. More than half of the states have done so.

The Family and Medical Leave Act,[10] passed in 1993, requires employers to provide workers with twelve weeks of unpaid medical leave and continuing medical benefit coverage in order to attend to certain medical conditions of close relatives or themselves. Many states have comparable statutory provisions; some states have offered greater protections.

Child care rights

Income tax

Main article: Income tax in the United States

Civil liberties

  • Pickering v. Board of Education, 391 U.S. 563 (1968) 8 to 1, a public school teacher was dismissed for writing a letter to a newspaper that criticised the way the school board was raising money. This violated the First Amendment and the Fourteenth Amendment
  • Connick v. Myers, 461 U.S. 138 (1983) 5 to 4, a public attorney employee was not unlawfully dismissed after distributing a questionnaire to other staff on a supervisor's management practices after she was transferred under protest. In dissent, Brennan J held that all the matters were of public concern and should therefore be protected by the First Amendment
  • Rankin v. McPherson, 483 U.S. 378 (1987) 5 to 4, a Texas deputy constable had a First Amendment right to say, after the assassination attempt on Ronald Reagan "Shoot, if they go for him again, I hope they get him." Dismissal was unlawful and she had to be reinstated because even extreme comments (except potentially advocating actual murder) against a political figure should be protected. She could not be fired for merely exercising a right in the Constitution.
  • Waters v. Churchill, 511 U.S. 661 (1994) 7 to 2, a public hospital nurse stating, outside work at dinner, that the cross-checking policies of the hospital were flawed, could be dismissed without any violation of the First Amendment because it could be seen as interfering with the employer's operations
  • Garcetti v. Ceballos, 547 U.S. 410 (2006) 5 to 4, no right against dismissal or protected speech when the speech relates to a matter in one's profession
  • O'Connor v. Ortega, 480 U.S. 709 (1987) searches in the workplace
  • Ontario v. Quon, 130 S.Ct. 2619, (2010) the right of privacy did not extend to employer owned electronic devices so an employee could be dismissed for sending sexually explicit messages from an employer owned pager.

Workplace participation

President Franklin D. Roosevelt

Contrary to popular intent, the Sherman Antitrust Act (1890) led to prosecution of unions as illegal combinations, but Section 6 of the Clayton Antitrust Act (1914) ended this practice by stipulating that unions shall not be "construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws." The National Labor Relations Act gave a general right to organize in a trade union and collectively bargain.

The Taft-Hartley Act (also the "Labor-Management Relations Act"), passed in 1947, loosened some of the restrictions on employers, changed NLRB election procedures, and added a number of new limitations on unions. The Act, among other things, prohibits jurisdictional strikes and secondary boycotts by unions, and authorizes individual states to pass "right-to-work laws", regulates pension and other benefit plans established by unions and provides that federal courts have jurisdiction to enforce collective bargaining agreements.

The United States Congress has not yet ratified the International Labour Organization Convention on the Freedom of Association and Protection of the Right to Organise Convention, 1948 or the Right to Organise and Collective Bargaining Convention, 1949.

Trade unions

Main articles: Labor unions in the United States, Labor Management Reporting and Disclosure Act, and Union democracy

The United States Congress subsequently tightened those restrictions on unions in the Labor Management Reporting and Disclosure Act of 1959, which also regulates the internal affairs of all private sector unions, providing for minimum standards for unions' internal disciplinary proceedings, federal oversight for unions' elections of their own officers, and fiduciary standards for union officers' use of union funds.

Union members' participation rights

Restrictions on membership
  • De Veau v. Braisted, 363 U.S. 144 (1960) 5 to 3, that it was consistent with the NLRA 1935 that state law could bar union officials from holding office if they had been convicted of a felony. The dissenting judges argued that state law could introduce no additional requirement to those in the statute.
  • Brown v. Hotel and Restaurant Employees, 468 U.S. 491 (1984) 4 to 3, New Jersey could impose a requirement that all union officials in a casino had no association with organized crime, consistently with NLRA 1935 §7. The dissenting judgment argued that the requirement was disproportionate because it applied penalties to the whole union rather than the officials
Union fees
Political contributions

Right to organize

Main articles: National Labor Relations Act 1935 and Taft-Hartley Act 1947

The National Labor Relations Act (NLRA, the "Wagner Act") gives private sector workers the right to choose whether they wish to be represented by a union and establishes the National Labor Relations Board (NLRB) to hold elections for that purpose. As originally enacted in 1935, the NLRA makes it illegal for employers to discriminate against workers because of their union membership or retaliate against them for engaging in organizing campaigns or other "concerted activities", to form "company unions", or to refuse to engage in collective bargaining with the union that represents their employees. The NLRA does not cover governmental employees, with the exception of employees of the United States Postal Service, a quasi-public entity. The Federal Labor Relations Act provides for much more limited rights for employees of the federal government. Congress has excluded workers in the United States Department of Homeland Security and elsewhere from even these limited protections. In order to keep up with the most recent versions to be in compliance with federal labor law, employees could get more detailed information by reading the federal labor law poster, which is required to be posted in the company.

Federal law does not provide employees of state and local governments with the right to organize or engage in union activities, except to the extent that the United States Constitution protects their rights to freedom of speech and freedom of association. The Constitution provides even less protection for governmental employees' right to engage in collective bargaining: while it bars public employers from retaliating against employees for forming a union, it does not require those employers to recognize that union, much less bargain with it. Most states provide public employees with limited statutory protections; a few permit public employees to strike in support of their demands in some circumstances. Some states, however, particularly in the South, make it illegal for a governmental entity to enter into a collective bargaining agreement with a union.

The NLRA does not cover agricultural or domestic employees. A few states have enacted labor laws similar to the NLRA covering farm workers. Finally, the NLRA does not cover employees in the railroad and airline industries. Those workers are covered by the Railway Labor Act, first passed in 1926, then amended in 1936 to cover airline employees. The RLA creates a wholly different structure for resolving labor disputes, requiring bargaining under indirect governmental supervision and permitting strikes only in limited circumstances.


Freedom of association

  • Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939) held to be a violation of the First Amendment for the NJ mayor to shut down trade union CIO meetings because he thought they were "communist"
  • National Labor Relations Act 1935 §7, "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

Right to communicate to colleagues

Right to suffer no detriment for being in a union

  • NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) a trade union member has the right to a union representative in any disciplinary inquiry by the management

Collective bargaining

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a)(3) of this title."

Main articles: Collective bargaining, National Labor Relations Act, and Taft-Hartley Act

Congress has since expanded the NLRB's jurisdiction to health care institutions, with unique rules governing organizing and strikes against those employers.

For the most part the NLRA and RLA displace state laws that attempt to regulate the right to organize, to strike and to engage in collective bargaining. The NLRB has exclusive jurisdiction to determine whether an employer has engaged in an unfair labor practice and to decide what remedies should be provided. States and local governments can, on the other hand, impose requirements when acting as market participants, such as requiring that all contractors sign a project labor agreement to avoid strikes when building a public works project, that they could not if they were attempting to regulate those employers' labor relations directly.

Collective action

"Nothing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right."

Main articles: Strike action and Collective action
Members of the Writers' Guild of America on strike against deteriorating terms and conditions in their employment agreements in 2007

The Norris-LaGuardia Act of 1932 outlawed the issuance of injunctions in labor disputes by federal courts. While the Act does not prevent state courts from issuing injunctions, it ended what some observers called "government by injunction", in which the federal courts used injunctions to prevent unions from striking, organizing and, in some cases, even talking to workers or entering certain parts of a state. Roughly half the states have enacted their own version of the Norris-LaGuardia Act.

  • NLRB v. Mackay Radio & Telegraph Co. 304 U.S. 333 (1938) striking workers remain as employees while on strike, and so it is an unfair labor practice under NLRA 1935 §7 to discriminate in reinstating the workers. However, it was not unfair to hire new workers to break the strike, or to not discharge the strike breakers in order to reinstate the former workers
  • National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U.S. 240 (1939) employees who took part in an unlawful sit down strike, after the employer had attempted to set up a company union, were not entitled to reinstatement in their jobs. Engaging in an unlawful strike meant losing the protection of the NLRA 1935.

Equality and discrimination

See also: Employment discrimination law in the United States and Civil Rights Act 1964
President Lyndon B. Johnson speaks to a television camera at the signing of the Civil Rights Act of 1964.

Civil rights

While Congress passed laws barring racial discrimination by private employers in 1866 with the Civil Rights Act of 1866,[11] the Supreme Court's decision in the Civil Rights Cases made that Act a dead letter for nearly a century. Congress adopted limited prohibitions against racial discrimination by defense contractors during World War II, but no general prohibition against employment discrimination until it passed Title VII of the Civil Rights Act of 1964,[12] which bars employment discrimination on the basis of race, gender, national origin and religion.

Congress amended that Act in 1972 to cover governmental employers, in 1981 to outlaw employment discrimination on the basis of pregnancy, and again in the Civil Rights Act of 1991 to overturn a number of decisions by the Supreme Court limiting employees' rights.

Congress has also protected the rights of workers over forty years of age in the Age Discrimination in Employment Act, passed in 1967, and the Americans with Disabilities Act[13] of 1990. The Immigration Reform and Control Act of 1986 also provides narrow prohibitions against certain types of employment discrimination based on immigration status.

Title VII[14] encourages states to pass their own anti-discrimination laws; most states outside the South have done so. A number of states and local governments have also enacted statutes that expand on the rights that federal law offers, either by offering greater remedies or broader protections, or have legislated in areas that federal law does not cover, such as discrimination based on sexual orientation or marital status.

The states and the federal government have also enacted a welter of laws to protect whistleblowers; these statutes vary widely in what conduct is protected, what procedures must be followed to enforce the law and what remedies are provided. Public sector employees are also protected from retaliation by their employers for some forms of whistleblowing activities by the First Amendment to the United States Constitution.[15]

Harassment
Retaliation

Justifications

Affirmative action

Main article: Affirmative action
  • United Steelworkers of America v. Weber, 443 U.S. 193 (1979) 5 to 3 held that the Civil Rights Act did not prohibit preference being given to under-represented groups as a temporary measure to correct historical disadvantage
  • Bushey v. New York State Civil Serv. Comm'n, 733 F.2d 220, 224 (2d Cir. 1984) the use of a separate grading curve on the New York Civil Service Commission entrance test for minority candidates was legitimate
  • Ricci v. DeStefano, 557 U.S. 557 (2009) the Connecticut employer was held to have acted unlawfully by invalidating white candidate test results out of concern that they could be sued when none of the black candidates had scored highly enough by comparison to be eligible for a job.

Free movement and immigration

Main articles: Freedom of movement under United States law, Immigration law, and Immigration to the United States

Job security

Dismissal protections

See also: At-will employment

Many state and federal laws presume workers who are not covered by a collective bargaining agreement or an individual employment agreement have "at-will employment".[16] This is a policy that employees' may be dismissed without notice and for no stated reason. However state and federal laws prohibiting discrimination or protecting the right to organize or engage in whistleblowing activities modify that rule by providing that discharge or other forms of discrimination are illegal if undertaken on grounds specifically prohibited by law. An employment relationship could be terminated by either party at any time without a reason. Starting in 1941, a series of laws prohibited certain discriminatory firings. That is, in most states, absent an express contractual provision to the contrary, an employer can still fire an employee for no or any reason, as long as it is not a reason in violation of public policy.

A number of states have modified the general rule that employment is at will by holding that employees may, under that state's common law, have implied contract rights to fair treatment by their employers. US private-sector employees thus do not have the indefinite contracts (similar to US academic tenure) traditionally common in many European countries, Canada and New Zealand.

Public employees in both federal and state government are also typically covered by civil service systems that protect them from unjust discharge. Public employees who have enough rights against unjustified discharge by their employers may also acquire a property right in their jobs, which entitles them in turn to additional protections under the due process clause of the Fourteenth Amendment to the United States Constitution.[17]

  • Sheets v. Teddy's Frosted Foods, Inc. 179 Conn. 471, 427 A.2d 385 (1980)
  • Magnan v. Anaconda Industries, Inc 193 Conn. 558, 479 A.2d 781 (1984) the Connecticut Supreme Court held that good faith was a rule of construction, which could not contradict the express terms of a contract. However, the rule of good faith did not require a good reason for a discharge under Connecticut law.
  • Bammert v. Don's Super Valu, Inc., 646 N.W.2d 365 (Wis. 2002) the Wisconsin Supreme Court held that it was not contrary to public policy for an employer to dismiss an employee on grounds of her husband's drunk driving charge
  • Brockmeyer v. Dun & Bradstreet 113 Wis. 2d 561 (Wis. 1983) the Wisconsin Supreme Court acknowledged there could be public policy reasons to hold a dismissal is unlawful. The employer dismissed and employee after another worker sued for sex discrimination and the case had to be settled: dismissal was justified in this case.
  • Fortunato v. Office of Stephen M. Silston, D.D.S., 856 A.2d 530 (Conn. Super. 2004) the Connecticut Supreme Court held that it was contrary to public policy for an employer to dismiss his dental assistant because her daughter was contemplating bringing a medical malpractice against him. It was contrary to public policy because it frustrated a person's right to access the courts.
  • Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57 (2000) the right to be dismissed for a "just cause" under a collective agreement contained the remedy of reinstatement. The employee tested positive for marijuana twice. The arbitrator found he was discharged without just cause and ordered reinstatement. The Supreme Court held that this could not be found contrary to public policy.
  • Labriola v. Pollard Group, Inc., 152 Wash.2d 828 (2004) there was insufficient consideration to add a non compete clause to an at will employee's contract.

Redundancies

Main article: Worker Adjustment and Retraining Notification Act

The Worker Adjustment and Retraining Notification Act, better known by its acronym as the WARN Act, requires private sector employers to give sixty days' notice of large-scale layoffs and plant closures; it allows a number of exceptions for unforeseen emergencies and other cases. Several states have adopted more stringent requirements of their own.

Unemployment

Main article: Unemployment in the United States
Unemployment between 1976 and 2010.

Labor law in individual states

Laws restricting unions

Main article: Right to not support a union laws
Right-to-work states shown in turquoise

Nineteen states that have legislation that prevents trade unions from signing collective agreements with employers requiring employees pay fees to the union when they are not members (frequently called "right-to-work" laws by their political proponents). These are Alabama, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Nebraska, Nevada, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming. In addition, Arizona, Arkansas, Florida, Mississippi, and Oklahoma have the right to not support a union enacted in their constitutions. The territory of Guam also has an equivalent law.

In 2010, the organization "Save Our Secret Ballot" pushed four states: Arizona, South Carolina, South Dakota, and Utah to pass constitutional amendments to ban Card check.

California

Main articles: California Labor Code and California Department of Fair Employment and Housing

In 1959, California added the Division of Fair Employment Practices to the California Department of Industrial Relations. The Fair Employment and Housing Act[18] of 1980 gave the division its own Department of Fair Employment and Housing, with the stated purpose of protecting citizens against harassment and employment discrimination on the basis of:[19] age, ancestry, color, creed, denial of family and medical care leave, disability (including HIV/AIDS), marital status, medical condition, national origin, race, religion, sex, transgender and orientation. Sexual orientation was not specifically included in the original law but precedent was established based on case law. On October 9, 2011, California Governor Edmund G. "Jerry" Brown signed into law Assembly Bill No. 887 alters the meaning of gender for the purposes of discrimination laws that define sex as including gender so that California law now prohibits discrimination on the basis of gender identity and gender expression.[20]

The state also has its own labor law covering agricultural workers, the California Agricultural Labor Relations Act.

Enforcement of rights

Distinguishing labor law and employment law

The field of work law can be broken up into four categories: “employment law,” “labor law,” “employment discrimination,” and some variation of a tax-oriented “employee-benefits law.” Employment law, in most categorizations, studies the boundaries of the individual employment contract, including contractual limitations, tort liabilities, and minimum protections. Labor law is the subject of collective bargaining between unions and employers, statutorily framed by the National Labor Relations Act (“NLRA”). Employment anti-discrimination law is the subject of status-based unequal treatment in the workplace, including on the basis of gender, race, national origin, disability, or religion. Lastly, the fourth category, employee-benefits law, involves the standards controlling the administration and taxation of social welfare attached to the work cycle, including unemployment benefits, pensions and ERISA, health insurance and the Consolidated Omnibus Budget Reconciliation Act (COBRA), disability benefits, and worker compensation plans. [21]

See also

Journals
Organizations

Notes

  1. ^ See International Labour Organization, Recent US Labor Market Data (2013)
  2. ^ See also "Lunch atop a Skyscraper".
  3. ^ Finduslaw.com
  4. ^ Finduslaw.com
  5. ^ Finduslaw.com
  6. ^ Finduslaw.com
  7. ^ Text of the Fair Labor Standards Act
  8. ^ Text of the Employee Retirement Income Security Act
  9. ^ Text of the Occupational Safety and Health Act
  10. ^ Text of the Family and Medical Leave Act
  11. ^ Finduslaw.com
  12. ^ Finduslaw.com
  13. ^ Finduslaw.com
  14. ^ Finduslaw.com
  15. ^ Finduslaw.com
  16. ^ Typically justified by reference to HG Wood, Master and Servant (1877)
  17. ^ Finduslaw.com
  18. ^ The Fair Employment and Housing Act
  19. ^ Details of law from the DFEH website
  20. ^ Barnes & Thornburg LLP (October 12, 2011). "California Enacts 22 New Employment Laws Impacting All Companies Doing Business In The State". The National Law Review.
  21. ^ Lobel, Orly, The Four Pillars of Work Law. Michigan Law Review, 2006; San Diego Legal Studies Paper No. 07-22. Available at SSRN: http://ssrn.com/abstract=827468

References

Books
  • JR Commons, Principles of Labor Legislation (1916)
  • A Cox, DC Bok and RA Gorman, Labor Law: Cases and Materials (2011)
  • KG Dau-Schmidt, MH Malin, RL Corrada and CDR Camron, Labor Law in the Contemporary Workplace (4th edn 2009)
  • MA Rothstein and L Liebman, Employment Law Cases and Materials (7th edn Foundation 2011)
Articles
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