United States labor law

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. 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, including employment law and collective labor rights. 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.

• Indentured servant
• Commonwealth v. Pullis (1806), establishing that unions were criminal conspiracies in the Philadelphia Mayor's court
• Commonwealth v. Hunt (1842), disapproving Pullis in the Massachusetts Supreme Judicial Court, and establishing that unions were not necessarily criminal
• Vegelahn v. Guntner, 167 Mass. 92 (1896)
• Sherman Antitrust Act 1890 (contrary to intent) 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.
• Loewe v. Lawlor 208 U.S. 274 (1908) or The Danbury Hatters' case

• Lochner v. New York, 198 US 45 (1905)
• Adair v. United States, 208 U.S. 161 (1908) upholding yellow dog contracts, banned by The Erdman Act of 1898 section 10 on the railroads, until reversed by the Norris-LaGuardia Act
• Commission on Industrial Relations (1915)
• Adkins v. Children's Hospital, 261 U.S. 525 (1923) Supreme Court held a minimum wage for women and children in DC was unconstitutional
• West Coast Hotel Co v Parrish, 300 U.S. 379 (1937)

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, the Family and Medical Leave Act of 1993, and numerous state laws with additional protections. The Fair Labor Standards Act 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, for example, applies only to employers with 15 or more employees), and the litigation strategy of the plaintiff.

Contract and rights at work

See also: UK labour law, Canadian labour law, Australian labour law, European labour law, German labour law, French labour law, Indian labour law, and South African labour law

Scope of protection

See also: Worker, Employee, and Inequality of bargaining power

Common law, state and federal statutes usually confer labor rights on "employees", but not people who are autonomous and have sufficient bargaining power to be "independent contractors". In 1994, the Dunlop Commission on the Future of Worker-Management Relations: Final Report recommended a unified definition of an employee under all federal labor laws, to reduce litigation, but this was not implemented. As it stands, Supreme Court cases have stated various general principles, which will apply according to the context and purpose of the statute in question. In NLRB v Hearst Publications, Inc, newsboys who sold papers in Los Angeles claimed that they were "employees", so that they had a right to collectively bargain under the National Labor Relations Act 1935. The paper corporations argued the newsboys were "independent contractors", and they were under no duty to bargain in good faith. The Supreme Court held the newsboys were employees, and common law tests of employment, particularly the summary in the Restatement of the Law of Agency, Second §220, were no longer appropriate. They were not "independent contractors" because of the degree of control employers had. But the National Labor Relations Board could decide itself who was covered if it had "a reasonable basis in law." Congress reacted, first, by explicitly amending the NLRA §2(1) so that independent contractors were exempt from the law while, second, disapproving that the common law was irrelevant. At the same time, the Supreme Court decided United States v Silk, holding that "economic reality" must be taken into account when deciding who is an employee under the Social Security Act 1935. This meant a group of coal loaders were employees, having regard to their economic position, including their lack of bargaining power, the degree of discretion and control, and the risk they assumed compared to the coal businesses they worked for. By contrast, the Supreme Court found truckers who owned their own trucks, and provided services to a carrier company, were independent contractors. Thus, it is now accepted that multiple factors of traditional common law tests may not be replaced if a statute gives no further definition of "employee" (as is usual, e.g. the Fair Labor Standards Act, Employee Retirement Income Security Act, Family and Medical Leave Act, etc). Alongside the purpose of labor legislation to mitigate inequality of bargaining power and redress the economic reality of a worker's position, the multiple factors found in the Restatement of Agency must be considered, though none is necessarily decisive.

"Newsboys" in L.A. were held in the leading case, NLRB v Hearst Publications, Inc, to be employees with labor rights, not independent contractors, on account of their lack of bargaining power.

Common law agency tests of who is an "employee" take account of an employer's control, if the employee is in a distinct business, degree of direction, skill, who supplies tools, length of employment, method of payment, the regular business of the employer, what the parties believe, and whether the employer has a business. Some statutes also make specific exclusions that reflect the common law, such as for independent contractors, and others make additional exceptions. In particular, the National Labor Relations Act 1935 §2(11) exempts supervisors with "authority, in the interest of the employer", to exercise discretion over other employees' jobs and terms. This was originally a narrow exception. Controversially, in NLRB v Yeshiva University, a 5 to 4 majority of the Supreme Court held that full time professors in a university were excluded from collective bargaining rights, on the theory that they exercised "managerial" discretion in academic matters. The dissenting judges pointed out that management was actually in the hands of university administration, not professors. In NLRB v Kentucky River Community Care Inc, the Supreme Court held, again 5 to 4, that six registered nurses who exercised supervisory status over others fell into the "professional" exemption. Stevens J, for the dissent, argued that if "the 'supervisor' is construed too broadly", without regard to the Act's purpose, protection "is effectively nullified". Similarly, under the Fair Labor Standards Act, in Christopher v SmithKline Beecham Corp, the Supreme Court held 5 to 4 that a traveling medical salesman for GSK of four years was an "outside salesman", and so could not claim overtime. People working unlawfully are often regarded as covered, so as not to encourage employers to exploit vulnerable employees. For instance in Lemmerman v AT Williams Oil Co, under the North Carolina Workers' Compensation Act an eight-year-old boy was protected as an employee, even though children working under the age of 8 was unlawful. However, in Hoffman Plastic Compounds v NLRB, the Supreme Court held 5 to 4 that an undocumented worker could not claim back pay, after being discharged for organizing in a union. The gradual withdrawal of more and more people from the scope of labor law, by a slim majority of the Supreme Court since 1976, means that the US falls below international law standards, and standards in other democratic countries, on core labor rights, including freedom of association.

Admid national protests, the California Labor Commission held the taxi corporation Uber to be using sham self-employment, as drivers are controlled and sanctioned by the network monopoly.

Common law tests were often important for determining who was, not just an employee, but the relevant employers who had "vicarious liability". Potentially multiple, joint-employers could share responsibility. In Ruiz v Shell Oil Co, the Fifth Circuit held that it was relevant which employer had more control, whose work was being performed, whether there were agreements in place, who provided tools, had a right to discharge the employee, or had the obligation to pay. In Local 217, Hotel & Restaurant Employees Union v MHM Inc the question arose under the Worker Adjustment and Retraining Notification Act 1988 whether a subsidiary or parent corporation was responsible to notify employees that the hotel would close. The Second Circuit held the subsidiary was the employer, although the trial court had found the parent responsible while noting the subsidiary would be the employer under the NLRA. Under the Fair Labor Standards Act 1938, 29 USC §203(r), any "enterprise" that is under common control will count as the employing entity. Other statutes do not explicitly adopt this approach, although the NLRB has found an enterprise to be an employer if it has "substantially identical management, business purpose, operation, equipment, customers and supervision." In South Prairie Construction Co v Local No 627, the Supreme Court found that the DC Circuit had legitimately identified two corporations as a single employer given that they had a "very substantial qualitative degree of centralized control of labor", but that further determination of the relevant bargaining unit should have been remitted to the NLRB. When employees are hired through an agency, it is likely that the end-employer will be considered responsible for statutory rights in most cases, although the agency may be regarded as a joint employer.

Contract of employment

See also: United States contract law

• Contract express terms
• Company or staff handbook terms incorporated into the contract
• Ingersoll-Rand Co v McClendon, 498 US 133 (1990) ERISA precluded a state law wrongful termination action, where McClendon claimed an employee benefit from the federal statute.
• Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992) OSHA pre-empted state law

• Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)
• 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009) 5 to 4, individual employment contract arbitration clauses are to be enforced
• AT&T Mobility v. Concepcion, 563 U.S. 333 (2011) 5 to 4, binding arbitration can be imposed in class action cases for employment and consumer rights

Health and safety

Main articles: Occupational Safety and Health Act 1970 and US tort law

The Occupational Safety and Health Act, 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.

• Child labor laws in the United States

Wage 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 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.

• Tennessee Coal, Iron & Railroad Co v Muscoda Local No 123, 321 U.S. 590 (1944) travel to work, once underground, was working time under the FLSA.
• Jewell Ridge Coal Corp. v. United Mine Workers of America, 325 U.S. 161 (1945) time traveling to work through the coal mine did count as working because it (1) required physical and mental exertion that was (2) controlled and required by the employer (3) for the employer's benefit.
• Anderson v Mount Clemens Pottery Co, 328 U.S. 680 (1946) 5 to 2, that preparatory activities at work for the employer's benefit (such as setting up at one's work station) count as working time for FLSA §§7(a) and 11(c).

• 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 with 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.

• National League of Cities v Usery, 426 U.S. 833 (1976) 5 to 4 decision that the FLSA could not be extended to state government employees, reversed by Garcia.
• Garcia v San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) 5 to 4, there was authority under the FLSA consistent with the Tenth Amendment to extend the Act's protection to public transport employees.

Working time and family care

• Family and Medical Leave Act of 1993
• Maternity leave in the United States
• Work-family balance in the United States
• Work–life balance (United States)
• Parental leave
• Government Day Care in the United States

The Family and Medical Leave Act, 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.

Pensions

Main article: Pensions in the United States

The Employee Retirement Income Security Act 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.

• Internal Revenue Code 401(k)
• Taft-Hartley plan
• Employee Retirement Income Security Act of 1974
• Pension Benefit Guaranty Corporation
• Voluntary Employee Beneficiary Association

Income tax

Main article: Income tax in the United States

• 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

• Whistleblower Protection Act of 1989
• Huffman v Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001)

• 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

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.

• Commission on Industrial Relations (1912-1915)
• Workplace democracy, Industrial democracy, Economic democracy

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

• American Civil Liberties Union, Democracy in Trade Unions (1943)
• United States Senate Select Committee on Improper Activities in Labor and Management (1957-1960)
• Labor Management Reporting and Disclosure Act 1959 §§
• Trbovich v. United Mine Workers, 404 U.S. 528 (1972) upheld the right of union members to intervene in enforcement proceedings brought by the United States Department of Labor
• Hall v. Cole, 412 U.S. 1 (1973), in which the Supreme Court interpreted the Landrum-Griffin Act to permit the awarding of attorney's fees to successful plaintiffs.
• Dunlop v. Bachowski, 421 U.S. 560 (1975) upheld the authority of federal courts to review the Department of Labor's decision to proceed or not proceed with prosecutions under Landrum-Griffin

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 US 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

• Taft-Hartley Act 1947 §14(b) confirmed states rights to pass "right to work laws", so that a union cannot sign a collective agreement to register all workers as union members, or collect fees for the service of collective bargaining.
• Lincoln Fed Labor Union 19129 v. Northwestern Iron & Metal Co, 335 US 525 (1949)
• Machinists v. Street, 367 US 740 (1961), states that "a union may constitutionally compel contributions from dissenting nonmembers in an agency shop only for the costs of performing the union's statutory duties as exclusive bargaining agent."
• Communications Workers of America v. Beck, 487 US 735 (1988) 5 to 3 that unions could have an agreement with employers that fees be collected to pay for the union's activities, but only up to the point that it was necessary to cover its costs.
• Locke v. Karass, 129 S. Ct. 798 (2008) legitimate costs could include the Maine State Employees Association's costs for in national arbitration litigation.

Political contributions

• United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948) there was no violation of the Federal Corrupt Practices Act 1910 in a union publicly advocating for particular Congress members to be elected
• Abood v Detroit School Board, 431 US 209 (1977) consistent with freedom of association, unions can be required to allow members to contract out of the political activity levies of the union.
• Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991) 5 to 4, the union can require nonmembers to give service fee contributions only for its activities as an exclusive bargaining agent, and not for political activities.
• Davenport v. Washington Education Association, 551 U.S. 177 (2007) state legislation could require, consistently with the First Amendment, that a union member opts into the fund for political expenditure

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

• National Labor Relations Act 1935 §§7-8
• Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527 (1992) 6 to 3, held that an employer did not commit an unfair labor practice under NLRA 1935 §7 by preventing union members, who were not employees of Lechmere Inc, from entering the company parking lot to hand out leaflets. They could not order union members to leave the public grassy area outside the employer's property.

Right to suffer no detriment for being in a union

• Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002) 5 to 4, the right to not suffer detriment for union organizing activities under NLRA 1935 §8(a)(3) did not apply for an illegal immigrant. This meant the employer did not need to give substantial back pay for firing a worker after he handed out fliers for the AFL 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."

Wagner Act 1935 §7

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.

• National Labor Relations Board v. Sands Manufacturing Co., 306 U.S. 332 (1939) 5 to 2, for collective bargaining to be taking place under the NLRA 1935 there must be scheduled meetings between the union and the employer, but if there were none, the employer could not be considered to violate its duties by shutting down a factory. It held the NLRB's charges were not supported by evidence.
• National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292 (1939) 5 to 2, held the NLRB had not produced the requisite "substantial evidence" that an employer had acted unlawfully and in directing employment to resume and a lockout to end. The NLRB had attempted to negotiate with an employer on a union's behalf during a lockout.
• Wallace Corporation v. National Labor Relations Board, 323 U.S. 248 (1944) it was an unfair labor practice to recognize a company union and have a closed shop agreement with it, so excluding workers who wished to join the independent union.

• Marquez v. Screen Actors Guild Inc., 525 U.S. 33 (1998) duty of fair representation

• Federal Labor Relations Act 1978
• Railway Labor Act 1926, for rail and airline workers

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."

Wagner Act 1935 §13

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.

• Protected concerted activity
• New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938)
• NLRB v. Mackay Radio & Telegraph Co. 304 U.S. 333 (1938), that striking workers remain "employees"
• United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948), holding that unions advocating members vote for particular Congress candidates did not violate the Federal Corrupt Practices Act as amended by the Labor Management Relations 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.

• NLRB v. Truck Drivers Local 449, 353 U.S. 87 (1957) temporary lockout held to be lawful

• Thornhill v. Alabama, 310 U.S. 88 (1940) picketing could not be restricted by state law, as that would violate the First Amendment and the Fourteenth Amendment, so long as the picket was related to a labor dispute in issue.

Direct participation rights

See also: US corporate law and Codetermination

• RC Clark, Corporate Law (1986) 32, ‘even if your aim is not to understand all of law’s effects on corporate activities but only to grasp the basic legal ‘constitution’ or make-up of the modern corporation, you must, at the very least, also gain a working knowledge of labor law.’
• US Congress, Report of the Committee of the Senate Upon the Relations between Labor and Capital (Washington DC 1885) vol II, 806
• Commission on Industrial Relations, Final Report and Testimony (1915) vol 1, 92 ff, and LD Brandeis, The Fundamental Cause of Industrial Unrest (1916) vol 8, 7672
• NICB, Works Councils in the United States (1919) Research Report Number 21
• An Act to enable manufacturing corporations to provide for the representation of their employees on the board of directors (3 April 1919) Chap. 0070
• Massachusetts Laws, General Laws, Part I Administration of the Government, Title XII Corporations, ch 156 Business Corporations, §23
• New Jersey Revised Statute (1957) §14.9-1 to 3
• E Appelbaum and LW Hunter, ‘Union Participation in Strategic Decisions of Corporations’ (2003) NBER Working Paper 9590
• RB McKersie, ‘Union-Nominated Directors: A New Voice in Corporate Governance’ (1 April 1999) MIT Working Paper
• JB Bonanno, ‘Employee Codetermination: Origins in Germany, present practice in Europe and applicability to the United States’ (1976-1977) 14 Harvard Journal on Legislation 947
• B Hamer, ‘Serving Two Masters: Union Representation on Corporate Boards of Directors’ (1981) 81(3) Columbia Law Review 639
• Dunlop Commission on the Future of Worker-Management Relations: Final Report (1994)

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, 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, 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 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 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.

• Equal Pay Act 1963
• Saint Francis College v. al-Khazraji, 481 U.S. 604 (1987) an Arabic man was protected from race discrimination under the Civil Rights Act
• AT&T Corporation v. Hulteen, 556 U.S. 701 (2009) 7 to 2, maternity leave taken before the Pregnancy Discrimination Act 1978 needed not count as time worked that will contribute to pension earnings.
• Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) 5 to 2, a school's requirement for women teachers to take mandatory maternity leave was unconstitutional, against the Due Process Clause
• Schultz v. Wheaton Glass Co., 421 F.2d 259 (3rd Cir. 1970) if work is "substantially equal" then the work must be paid the same, regardless of the job title
• County of Washington v. Gunther, 452 U.S. 161 (1980) the definition of equal pay for equal work

Harassment

• Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) unlawful sexual harassment by creating a hostile environment counted as sex discrimination under Title VII
• Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) sexual harassment was possible between members of the same sex

Retaliation

• Robinson v. Shell Oil Company, 519 U.S. 337 (1997) writing a poor job reference is unlawful retaliation after bringing a race discrimination claim
• University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182 (1990) a university could not refuse to give up the review file documents for a job applicant's promotion, and her competitors. She had alleged sex and race discrimination. The university had no defence on grounds of free speech, or academic freedom to refuse the material
• Piscataway School Board v. Taxman, 91 F.3d 1547 (3d Cir. 1996) case dropped
• Burlington Northern & Santa Fe (BNSF) Railway Co. v. White, 548 U.S. 53 (2006) an employee who was reassigned to a slightly different forklift operating job within the company after making a sex discrimination complaint could bring a claim for unlawful retaliation under CRA 1964 Title VII, 42 U.S.C. § 2000e–3(a).
• Gomez-Perez v. Potter, 553 U.S. 474 (2008) 6 to 3, a plaintiff bringing a claim under the Age Discrimination in Employment Act of 1967 was protected against retaliation by the employer

• Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir. 1982) plaintiffs can claim recovery of a reasonable sum for attorney fees for a case brought under CRA 1964

Justifications

• Dothard v. Rawlinson, 433 U.S. 321 (1977) the need of a bona fide occupational qualification could be a legitimate reason for hiring someone, even with a discriminatory impact.
• Griggs v Duke Power Co, 401 US 424 (1971) creating indirect discrimination claims, through a disparate impact test. Requiring high school diploma when it was unnecessary for the job was unlawful, given the requirement would affect racial groups differently.
• Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) 5 to 4, test for determining a disparate impact

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

• Corfield v. Coryell, 6 Fed. Cas. 546 (1823)
• Paul v. Virginia, 75 U.S. 168 (1869)

• Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002) 5 to 4, an immigrant worker, who had arrived without permission, denied effective rights under the NLRA 1935 for helping in union organizing.
• History of immigration to the United States
• Immigration Reform and Control Act of 1986
• Illegal immigration to the United States
• Comprehensive Immigration Reform Act of 2007

Job security

• Transfer of employees
• Howard Johnson Co v Detroit Local Joint Executive Board, 417 US 249 (1974) 8 to 1, no duty to bargain in good faith with employees of a transferred restaurant and motor lodge business, where the new employer had retained 9 out of 53 former employees and hired 45 of his own new staff.

Dismissal protections

See also: Wrongful dismissal, Unfair dismissal, and 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". 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.

• 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.

• Employment agency
• Brazee v. Michigan, 241 US 340 (1916)
• Adams v. Tanner, 244 U.S. 590 (1917)
• JR Commons, Principles of Labor Legislation ch VI

• Emergency Relief Appropriation Act of 1935
• Reconstruction Finance Corporation and Federal Emergency Relief Administration
• Works Progress Administration
• American Recovery and Reinvestment Act of 2009

• Federal Reserve Act 1913, as amended by the Federal Reserve Reform Act of 1977, (12 USC §225a), "The Board of Governors of the Federal Reserve System and the Federal Open Market Committee shall maintain long run growth of the monetary and credit aggregates commensurate with the economy’s long run potential to increase production, so as to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates."
• Marriner Stoddard Eccles, Beckoning Frontiers: Public and Personal Recollections (1951) "As mass production has to be accompanied by mass consumption, mass consumption, in turn, implies a distribution of wealth ... to provide men with buying power. ... Instead of achieving that kind of distribution, a giant suction pump had by 1929-30 drawn into a few hands an increasing portion of currently produced wealth. ... The other fellows could stay in the game only by borrowing. When their credit ran out, the game stopped."
• Employment Act of 1946 and the Humphrey–Hawkins Full Employment Act of 1978 in the United States, and full employment
  • Automatic stabilisers, effective aggregate demand, fiscal stimulus, natural rate of unemployment

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 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: 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.

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

Enforcement of rights

• United States Department of Labor
• National Labor Relations Board
• Ford Motor Co. v. NLRB, 305 U.S. 364 (1939) the right of the NLRB to withdraw its submissions to the Court were at the court's discretion
• In re NLRB, 304 U.S. 486 (1938) to enforce an order, the NLRB must file a petition and transcript with the courts
• Equal Employment Opportunity Commission

• Elgin v. Department of Treasury, 567 U.S. ___ (2012) 6 to 3, under the Civil Service Reform Act of 1978 federal employees have no recourse to the federal courts over wrongful discharge cases, but must instead go to the Merit Systems Protection Board.
• United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966) state and federal jurisdiction in labor disputes

See also

• Labor law
• UK labour law
• Agricultural Labor Relations Act
• Child labor laws in the United States
• List of U.S. minimum wages

Journals

• Comparative Labor Law and Policy Journal est 1997
• Labor Law Journal est 1949
• Monthly Labor Review est 1915

Organizations

• American Rights at Work, a charity supporting union rights
• Congress of Industrial Organizations
• International Society for Labor Law and Social Security
• National Labor Federation, an organization supporting workers outside the protection of federal labor laws
• United States Department of Labor, includes a list of labor legislation

References

Books

• JR Commons, Principles of Labor Legislation (1916)
• A Cox, DC Bok, MW Finkin 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

• CW Summers, 'Democracy in a One-Party State: Perspectives from Landrum-Griffin' (1984) 43 Maryland Law Review 93
• JM Feinman, 'The Development of the Employment at Will Rule' (1976) 20(2) The American Journal of Legal History 118

External links

• Labor laws of Federal and State legislatures on law.cornell.edu
• Synopses of US Employment Law Cases
• Typical benefits of a union contract
• Federal employment discrimination law office