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.[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, 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

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

Scope of protection

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,[7] 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,[8] 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.[9] 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.[10]

"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.[11]

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.[12] 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,[13] 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,[14] 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".[15] Similarly, under the Fair Labor Standards Act, in Christopher v SmithKline Beecham Corp,[16] 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,[17] 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,[18] 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.[19]

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.[20]

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,[21] 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.[22] In Local 217, Hotel & Restaurant Employees Union v MHM Inc[23] 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."[24] In South Prairie Construction Co v Local No 627,[25] 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",[26] 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.[27]

Contract of employment

Health and safety

The Occupational Safety and Health Act,[28] 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.

Wage regulation

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[29] 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.

Working time and family care

The Family and Medical Leave Act,[30] 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

The Employee Retirement Income Security Act[31] 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.

Income tax

Civil liberties

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.

Trade unions

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
Union fees
Political contributions

Right to organize

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

Right to communicate to colleagues

Right to suffer no detriment for being in a union

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

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."

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.

Direct participation rights

Equality and discrimination

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,[32] 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,[33] 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[34] 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[35] 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.[36]

Harassment
Retaliation

Justifications

Affirmative action

Main article: Affirmative action

Free movement and immigration

Job security

Dismissal protections

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".[37] 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.[38]

Redundancies

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

Unemployment between 1976 and 2010.

Labor law in individual states

Laws restricting unions

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

In 1959, California added the Division of Fair Employment Practices to the California Department of Industrial Relations. The Fair Employment and Housing Act[39] 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:[40] 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.[41]

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

Enforcement of rights

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. ↑ 322 U.S. 111 (1944)
  8. ↑ 331 U.S. 704 (1947)
  9. ↑ See also Goldberg v Whitaker House Cooperative, Inc, 366 US 28 (1961), on homeworkers making 'knitted, crocheted, and embroidered goods of all kinds.'
  10. ↑ Nationwide Mut Ins Co v Darden, 503 U.S. 318 (1992) employee under ERISA, rejecting two-prongs of the Fourth Circuit's substitute test, based on expectations and reliance.
  11. ↑ 322 U.S. 111 (1944), confirmed in United States v Silk, 331 U.S. 704 (1947) and Nationwide Mut Ins Co v Darden, 503 U.S. 318 (1992)
  12. ↑ Restatement of the Law of Agency, Second §220 and Community for Creative Non-Violence v Reid, 490 US 730 (1989)
  13. ↑ 444 U.S. 672 (1980)
  14. ↑ 532 U.S. 706 (2001)
  15. ↑ cf Clackamas Gastroenterology Associates v Wells, 538 U.S. 440 (2003) a majority of the Supreme Court held four physician shareholders could potentially be "employees" under the Americans with Disabilities Act. Ginsburg J, joined by Breyer J dissenting on reasoning, held it was clear that they were.
  16. ↑ 567 US __ (2012)
  17. ↑ 350 S.E.2d 83 (1986)
  18. ↑ 535 U.S. 137 (2002)
  19. ↑ See International Labour Organization, Freedom of Association and Protection of the Right to Organise Convention, 1948 C087 and Right to Organize and Collective Bargaining Convention, 1949 C098
  20. ↑ Reported in A Hern, 'Uber driver declared employee as the company loses another ruling' (11 September 2015) The Guardian
  21. ↑ 413 F.2d 310 (1969)
  22. ↑ See also, Zheng v Liberty Apparel Co, 335 F3d 61 (2003) Second Circuit, Cabranes J finding joint employment.
  23. ↑ 976 F.2d 805 (1992)
  24. ↑ Advance Electric, 268 NLRB 1001 (1984)
  25. ↑ 425 US 800 (1976)
  26. ↑ Local No International Union of Operating Engineers v National Labor Relations Board, 518 F.2d 1040 (1975)
  27. ↑ e.g. Castillo v Case Farms of Ohio, 96 F Supp. 2d 578 (1999) an employer who used an employment agency called "American Temp Corps", was responsible for how migrant farm workers hired in Texas to work in an Ohio chicken factory, were packed into sub-human transport and living conditions in violation of the Migrant and Seasonal Agricultural Workers Protection Act 1983
  28. ↑ Text of the Occupational Safety and Health Act
  29. ↑ Text of the Fair Labor Standards Act
  30. ↑ Text of the Family and Medical Leave Act
  31. ↑ Text of the Employee Retirement Income Security Act
  32. ↑ Finduslaw.com
  33. ↑ Finduslaw.com
  34. ↑ Finduslaw.com
  35. ↑ Finduslaw.com
  36. ↑ Finduslaw.com
  37. ↑ Typically justified by reference to HG Wood, Master and Servant (1877)
  38. ↑ Finduslaw.com
  39. ↑ The Fair Employment and Housing Act
  40. ↑ Details of law from the DFEH website
  41. ↑ Barnes & Thornburg LLP (October 12, 2011). "California Enacts 22 New Employment Laws Impacting All Companies Doing Business In The State". The National Law Review.

References

Books
Articles

External links

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