United States labor law

Source: Wikipedia, the free encyclopedia.

United States labor law sets the rights and duties for employees,

Occupational Safety and Health Act of 1970
requires employees have a safe system of work.

A

corporate boards.[6]

Since the

global economy do not undermine fair and full employment
.

History

Main articles: History of labor law in the United States and Labor history of the United States
slavery in the US was progressively abolished in the north, but only finished by the 13th Amendment in 1865 near the end of the American Civil War
.

Modern US labor law mostly comes from statutes passed between

indentured servitude. From the Pequot War in Connecticut from 1636 onwards, Native Americans were enslaved by European settlers. More than half of the European immigrants arrived as prisoners, or in indentured servitude,[12] where they were not free to leave their employers until a debt bond had been repaid. Until its abolition, the Atlantic slave trade
brought millions of Africans to do forced labor in the Americas.

However, in 1772, the English

Harlan J said the majority was leaving people "practically at the mercy of corporations".[19] Even if people were formally free, they remained factually dependent on property
owners for work, income and basic services.

Labor is prior to and independent of capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration ... The prudent, penniless beginner in the world labors for wages awhile, saves a surplus with which to buy tools or land for himself, then labors on his own account another while, and at length hires another new beginner to help him. This is the just and generous and prosperous system which opens the way to all, gives hope to all, and consequent energy and progress and improvement of condition to all. No men living are more worthy to be trusted than those who toil up from poverty; none less inclined to take or touch aught which they have not honestly earned. Let them beware of surrendering a political power which they already possess, and which if surrendered will surely be used to close the door of advancement against such as they and to fix new disabilities and burdens upon them till all of liberty
shall be lost.

—Abraham Lincoln, First Annual Message (1861)

Like slavery, common law repression of labor unions was slow to be undone.

Shaw CJ held people "are free to work for whom they please, or not to work, if they so prefer" and could "agree together to exercise their own acknowledged rights, in such a manner as best to subserve their own interests." This stopped criminal cases, although civil cases persisted.[23] In 1869 an organisation called the Knights of Labor was founded by Philadelphia artisans, joined by miners 1874, and urban tradesmen from 1879. It aimed for racial and gender equality, political education and cooperative enterprise,[24] yet it supported the Alien Contract Labor Law
of 1885 which suppressed workers migrating to the US under a contract of employment.

Industrial conflicts on

Clayton Act of 1914 §6. This removed labor from antitrust law, affirming that the "labor of a human being is not a commodity or article of commerce" and nothing "in the antitrust laws" would forbid the operation of labor organizations "for the purposes of mutual help".[32]

In his State of the Union address of 1944, President Franklin D. Roosevelt urged that America develop Second Bill of Rights through legislation, including the right to fair employment, an end to unfair competition, to education, health, and social security.

Throughout the early 20th century, states enacted labor rights to advance social and economic progress. But despite the

corporate promoters tricked people into paying more than stocks were really worth. The Wall Street Crash of 1929 wiped out millions of people's savings. Business lost investment and fired millions of workers. Unemployed people had less to spend with businesses. Business fired more people. There was a downward spiral into the Great Depression
.

This led to the election of

Social Security Act of 1935 gave everyone the right to a basic pension and to receive insurance if they were unemployed, while the Securities Act of 1933 and the Securities Exchange Act of 1934 ensured buyers of securities on the stock market had good information. The Davis–Bacon Act of 1931 and Walsh–Healey Public Contracts Act of 1936 required that in federal government contracts, all employers would pay their workers fair wages, beyond the minimum, at prevailing local rates.[45] To reach full employment and out of depression, the Emergency Relief Appropriation Act of 1935 enabled the federal government to spend huge sums of money on building and creating jobs. This accelerated as World War II began. In 1944, his health waning, Roosevelt urged Congress to work towards a "Second Bill of Rights" through legislative action, because "unless there is security here at home there cannot be lasting peace in the world" and "we shall have yielded to the spirit of Fascism here at home."[46]

President Lyndon B. Johnson explains the Civil Rights Act of 1964 as it was signed, to end discrimination and segregation in voting, education, public services, and employment.

Although the

skin color across other workplaces. Also, despite the increasing numbers of women in work, sex discrimination was endemic. The government of John F. Kennedy introduced the Equal Pay Act of 1963, requiring equal pay for women and men. Lyndon B. Johnson introduced the Civil Rights Act of 1964, finally prohibiting discrimination against people for "race, color, religion, sex, or national origin." Slowly, a new generation of equal rights laws spread. At federal level, this included the Age Discrimination in Employment Act of 1967, the Pregnancy Discrimination Act of 1978, and the Americans with Disabilities Act of 1990, now overseen by the Equal Employment Opportunity Commission
.

electoral college to Donald Trump
.

Although people, in limited fields, could claim to be equally treated, the mechanisms for fair pay and treatment were dismantled after the 1970s. The last major labor law statute, the

President Reagan took office in 1981, he dismissed all air traffic control staff who went on strike, and replaced the National Labor Relations Board members with pro-management men. Dominated by Republican appointees, the Supreme Court suppressed labor rights, removing rights of professors, religious school teachers, or illegal immigrants to organize in a union,[50] allowing employees to be searched at work,[51] and eliminating employee rights to sue for medical malpractice in their own health care.[52] Only limited statutory changes were made. The Immigration Reform and Control Act of 1986 criminalized large numbers of migrants. The Worker Adjustment and Retraining Notification Act of 1988 guaranteed workers some notice before a mass termination of their jobs. The Family and Medical Leave Act of 1993 guaranteed a right to 12 weeks leave to take care for children after birth, all unpaid. The Small Business Job Protection Act of 1996 cut the minimum wage, by enabling employers to take the tips of their staff to subsidize the minimum wage. A series of proposals by Democratic and independent politicians to advance labor rights were not enacted,[53] and the United States began to fall behind most other developed countries in labor rights.[54]

In relation to

Executive Order 13782.[57]

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
Eleanor Roosevelt believed the Universal Declaration of Human Rights of 1948 "may well become the international Magna Carta of all". Based on the President's call for a Second Bill of Rights in 1944, articles 22–24 elevated rights to "social security", "just and favourable conditions of work", and the "right to rest and leisure" to be as important as the "right to own property".[58]

US Supreme Court
.

Scope of protection

See also:
Employee, and Inequality of bargaining power

Restatement of Agency must be considered, though none is necessarily decisive.[63]

unequal bargaining power.[64]

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. A.T. Williams Oil Co.,[70] 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, Inc. v. NLRB,[71] 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.[72]

In September 2015, the California Labor and Workforce Development Agency held that Uber drivers are controlled and sanctioned by the company and are therefore not self-employed.[73]

Common law tests were often important for determining who was, not just an employee, but the relevant employers who had "

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.[80]

Contracts of employment

See also: United States contract law

When people start work, there will almost always be a

torts
, will apply.

collective agreements.[89]

Aside from terms in oral or written agreements, terms can be incorporated by reference. Two main sources are

United Kingdom the requirement for "good faith"[98] has been found to limit the power of discharge except for fair reasons[99] (but not to conflict with statute[100]), in Canada it may limit unjust discharge also for self-employed persons,[101] and in Germany it can preclude the payment of wages significantly below average.[102]

Finally, it was traditionally thought that arbitration clauses could not displace any employment rights, and therefore limit access to justice in public courts.[103] However, in 14 Penn Plaza LLC v. Pyett,[104] in a 5 to 4 decision under the Federal Arbitration Act of 1925, individual employment contract arbitration clauses are to be enforced according to their terms. The four dissenting judges argued that this would eliminate rights in a way that the law never intended.[105]

Wages and pay

Main articles:
Income tax in the US

While contracts often determine wages and terms of employment, the law refuses to enforce contracts that do not observe basic standards of fairness for employees.

US Supreme Court held them unconstitutional. A right to freedom of contract, argued a majority, could be construed from the Fifth and Fourteenth Amendment's protection against being deprived "of life, liberty, or property, without due process of law". Dissenting judges argued that "due process" did not affect the legislative power to create social or economic rights, because employees "are not upon a full level of equality of choice with their employer".[108]

inflation-adjusted.[109][110]

After the

Freedom of Contract) that a Washington law setting minimum wages for women was constitutional because the state legislatures should be enabled to adopt legislation in the public interest.[111] This ended the "Lochner era", and Congress enacted the Fair Labor Standards Act of 1938.[112] Under §202(a) the federal minimum wage aims to ensure a "standard of living necessary for health, efficiency and general well being".[113] Under §207(a)(1), most employees (but with many exceptions) working over 40 hours a week must receive 50 per cent more overtime pay on their hourly wage.[114] Nobody may pay lower than the minimum wage, but under §218(a) states and municipal governments may enact higher wages.[115] This is frequently done to reflect local productivity and requirements for decent living in each region.[116] However the federal minimum wage has no automatic mechanism to update with inflation. Because the Republican Party has opposed raising wages, the federal real minimum wage
is over 33 per cent lower today than in 1968, among the lowest in the industrialized world.

real minimum wage has fallen by 43% compared to 1968.[110] In "tipped
" jobs, some states still enable employers to take their workers' tips for between $2.13 and the $7.25 minimum wage per hour.

Although there is a federal minimum wage, it has been restricted in (1) the scope of who it covers, (2) the time that counts to calculate the hourly minimum wage, and (3) the amount that employers' can take from their employees' tips or deduct for expenses. First, five

Breyer J for a unanimous court agreed with the Department of Labor that it was only intended for carers in private homes.[125]

Second, because §206(a)(1)(C) says the minimum wage is $7.25 per hour, courts have grappled with which hours count as "working".

FLSA 1938 §216(b)-(c) the Secretary of State can enforce the law, or individuals can claim on their own behalf. Federal enforcement is rare, so most employees are successful if they are in a labor union. The Consumer Credit Protection Act of 1968 limits deductions or "garnishments" by employers to 25 per cent of wages,[137] though many states are considerably more protective. Finally, under the Portal to Portal Act of 1947, where Congress limited the minimum wage laws in a range of ways, §254 puts a two-year time limit on enforcing claims, or three years if an employing entity is guilty of a willful violation.[138]

marginal income tax rates
  Lowest marginal income tax rates

Working time and family care

Main articles:
Maternity leave in the United States, and Work–family balance in the United States
paid annual leave: Americans have the least in the developed world.[139]

People in the United States work among the longest hours per week in the

US Supreme Court in 1937,[150] but experimentation to improve working time rights, and "work-life balance
" has not yet recovered.

paid family leave.[151]

Just as there are no rights to paid annual leave or maximum hours, there are no rights to paid time off for child care or

day care. This has encouraged several proposals to create a public system of free child care, or for the government to subsize parents' costs.[164]

Pensions

Main articles:
Investment manager

In the early 20th century, the possibility of having a "retirement" became real as people lived longer,

defined benefit" plan, a 401(k) only contains whatever the employer and employee contribute. It will run out if a person lives too long, meaning the retiree may only have minimum social security. The Pension Protection Act of 2006 §902 codified a model for employers to automatically enroll their employees in a pension, with a right to opt out.[172] However, there is no right to an occupational pension. The Employee Retirement Income Security Act of 1974 does create a series of rights for employees if one is set up. It also applies to health care or any other "employee benefit" plan.[173]

conflicts of interest. During a takeover bid, Donovan v. Bierwirth held trustees must take advice or not vote on corporate stocks if in doubt about conflicts.[174]

Five main rights for beneficiaries in

securities.' So, the Supreme Court has also held valid a Massachusetts law requiring mental health to be covered by employer group health policies.[201] But it struck down a Pennsylvania statute which prohibited employers becoming subrogated to (potentially more valuable) claims of employees for insurance after accidents.[202] Yet more recently, the court has shown a greater willingness to prevent laws being preempted,[203]
however the courts have not yet adopted the principle that state law is not preempted or "superseded" if it is more protective to employees than a federal minimum.

investment managers control most voting rights in the economy using "other people's money".[205]

The most important rights that

fair pay, job security
, or pension policy.

Health and safety

Main articles:
US tort law, and Affordable Care Act

The

Occupational Safety and Health Act,[213] 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.

Civil liberties

  • Pickering v. Board of Education, 391 US 563 (1968) 8 to 1, a public school teacher was dismissed for writing a letter to a newspaper that criticized 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-training 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
  • Employee Polygraph Protection Act (1988) outlawed the use of lie detectors by private employers except in narrowly prescribed circumstances
  • Whistleblower Protection Act (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
  • City of 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.
  • Heffernan v. City of Paterson, 578 US __ (2016)

Workplace participation

See also:
Work council
fair day's wage for a fair day's work".[214]

The central right in

work councils
with binding rights on workplace issues.

Labor unions

Main articles:
List of labor unions in the US

antitrust law. Then, after the Great Depression passed the National Labor Relations Act of 1935 to positively protect the right to organize and take collective action. After that, the law increasingly turned to regulate unions' internal affairs. The Taft–Hartley Act of 1947 regulated how members can join a union, and the Labor Management Reporting and Disclosure Act of 1959
created a "bill of rights" for union members.

Change to Win Federation
has 5.5m members in affiliated unions. The two have negotiated merging to create a united American labor movement.

While union governance is founded upon

financial institutions.[236]

AFL–CIO.[237]

Beyond members rights within a labor union, the most controversial issue has been how people become members in unions. This affects union membership numbers, and whether labor rights are promoted or suppressed in democratic politics. Historically, unions made

2016 US Presidential election
, for the future of the labor movement, and democratic life.

Collective bargaining

Main articles:
National Labor Relations Act 1935, Taft–Hartley Act, Federal Service Labor-Management Relations Statute, and Railway Labor Act

Since the

coverage by collective agreement. This is the lowest in the industrialized world.[262]

After 1981 air traffic control strike, when Ronald Reagan fired every air traffic controller,[263] the National Labor Relations Board was staffed by people opposed to collective bargaining. Between 2007 and 2013 the NLRB was shut down as the President and then Senate refused to make appointments.

At any point employers can freely bargain with union representatives and make a

NLRB
to act to promote collective bargaining.

The proposed Employee Free Choice Act, sponsored repeatedly by Hillary Clinton, Bernie Sanders and Democrat representatives, would require employers to bargain in 90 days or go to arbitration, if a simple majority of employees sign cards supporting the union.[274] It has been blocked by Republicans in Congress.

Once collective agreements have been signed, they are legally enforceable, often through

unfair labor practices
, and improving remedies within the existing structure of labor relations.

Right to organize

Main articles: Freedom of association, Unfair labor practice, and Federal preemption

To ensure that employees are effectively able to bargain for a collective agreement, the

litigation which most workers cannot afford. The fundamental principle of freedom of association, however, is recognized worldwide to require various rights. It extends to the state, so in Hague v. Committee for Industrial Organization held the New Jersey mayor violated the First Amendment when trying to shut down CIO meetings because he thought they were "communist".[287]
Among many rights and duties relating to unfair labor practices, five main groups of case have emerged.

voice at work
.

First, under §158(a)(3)–(4) a person who joins a union must suffer no discrimination or retaliation in their chances for being hired, terms of their work, or in termination.

Lechmere, Inc. v. National Labor Relations Board the Supreme Court held 6 to 3 that an employer was entitled to prevent union members, who were not employees, from entering the company parking lot to hand out leaflets.[298] Fifth, there are a large group of cases concerning "unfair" practices of labor organizations, listed in §158(b). For example, in Pattern Makers League of North America v. NLRB an employer claimed a union had committed an unfair practice by attempting to enforce fines against employees who had been members, but quit during a strike when their membership agreement promised they would not. Five judges to four dissents held that such fines could not be enforced against people who were no longer union members.[299]

work councils.[301]

The

Ginsburg J dissented because the law was simply neutral to the bargaining process.[308] State governments may, however, use their funds to procure corporations to do work that are union or labor friendly.[309]

Collective action

Main articles: Strike action and Collective action
Arizona teachers in 2019, are guaranteed the right to take collective action, including strikes, by international law, federal law and most state laws.[310]

The right of labor to take

labor is not a commodity or article of commerce". It became fundamental that no antitrust sanctions could be imposed, if "a union acts in its self-interest and does not combine with non-labor groups."[318] The same principles entered the founding documents of the International Labour Organization in 1919.[319] Finally at the end of the Lochner era[320] the National Labor Relations Act of 1935 §157 enshrined the right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection" and in §163, the "right to strike".[321]

Sí, se puede".[322]

Although federal law guarantees the

labor unions face the most severe constraints in the developed world in taking collective action. First, the law constrains the purposes for which strikes are allowed. The National Labor Relations Act of 1935 only covers "employees" in the private sector, and a variety of state laws attempt to suppress government workers' right to strike, including for teachers,[323] police and firefighters, without adequate alternatives to set fair wages.[324] Workers have the right to take protected concerted activity.[325] But NLRB v. Insurance Agents' International Union held that although employees refusing to perform part of their jobs in a "partial strike" was not a failure to act in good faith, they could be potentially be discharged: perversely, this encourages workers to conduct an all-out strike instead.[326] Second, since 1947 the law made it an "unfair labor practice" for employees to take collective action that is not a "primary strike or primary picketing" against the contractual employer.[327] This prohibition on solidarity action includes a ban on employees of a subsidiary corporation striking in concert with employees of a parent corporation, employees striking with employees of competitors, against outsourced businesses, or against suppliers.[328] However the same standards are not applied to employers: in NLRB v. Truck Drivers Local 449, the Supreme Court held that a group of seven employers were entitled to lock out workers of a union at once, in response to a strike at just one of the employers by the union.[329] This said, employees may peacefully persuade customers to boycott any employer or related employer, for instance by giving out handbills.[330] Third, a union is bound to act in good faith if it has negotiated a collective agreement, unless an employer commits an unfair labor practice. The union must also give 60 days warning before undertaking any strike while a collective agreement is in force.[331] An employer must also act in good faith, and an allegation of a violation must be based on "substantial evidence": declining to reply to the National Labor Relations Board's attempts to mediate was held to be insubstantial.[332]

2016 Presidential candidate
international labor law
standards.

The fourth constraint, and most significant, on the right to strike is the lack of protection from unjust discharge. Other countries protect employees from any detriment or discharge for strike action,

strikebreakers, and it was not an unfair labor practice for the employer to refuse to discharge the strikebreakers after the dispute was over.[334] This decision is widely condemned as a violation of international law.[335] However the Supreme Court further held in NLRB v. Fansteel Metallurgical Corp. that the Labor Board cannot order an employer to rehire striking workers,[336] and has even held that employers could induce younger employees more senior jobs as a reward for breaking a strike.[337] Fifth, the Supreme Court has not consistently upheld the right to free speech and peaceful picketing. In NLRB v. Electrical Workers the Supreme Court held that an employer could discharge employees who disparaged an employer's TV broadcasts while a labor dispute was running, on the pretext that the employees' speech had no connection to the dispute.[338] On the other hand, the Supreme Court has held there was a right to picket shops that refused to hire African-American workers.[339] The Supreme Court declared an Alabama law, which fined and imprisoned a picketer, to be unconstitutional.[340] The Supreme Court held unions could write newspaper publications to advocate for pro-labor political candidates.[341] It also held a union could distribute political leaflets in non-work areas of the employer's property.[342] In all of these rights, however, the remedies available to employees for unfair labor practices are minimal, because employees can still be locked out and the Board cannot order reinstatement in the course of a good faith labor dispute. For this reason, a majority of labor law experts support the laws on collective bargaining and collective action being rewritten from a clean slate.[343]

Right to vote at work

See also:
Work council
Chrysler Corp employees would be on the board of directors, but despite experiments, today asset managers monopolize voting rights in corporations with "other people's money".[346]

While

Dunlop Commission on the Future of Worker-Management Relations: Final Report examined law reform to improve collective labor relations, and suggested minor amendments to encourage worker involvement.[357]
Congressional division prevented federal reform, but labor unions and state legislatures have experimented.

... while there are many contributing causes to unrest ... one cause ... is fundamental. That is the necessary conflict—the contrast between our political

vote. And the main objection, as I see it, to the very large corporation is, that it makes possible—and in many cases makes inevitable—the exercise of industrial absolutism. ... The social justice for which we are striving is an incident of our democracy, not its main end ... the end for which we must strive is the attainment of rule by the people, and that involves industrial democracy
as well as political democracy.

—Louis Brandeis, Testimony to Commission on Industrial Relations (1916) vol 8, 7659–7660

worker directors, though often linked to corporate stock.[366]

work councils
to give employees and its labor union more of a voice at work.

As well as representation on a corporation's board of directors, or top management, employees have sought binding rights (for instance, over working time, break arrangement, and layoffs) in their organizations through elected

political democracy and traditional labor law goals of workplace and economic democracy
.

Equality and discrimination

See also:
UK employment discrimination law
I have a dream
that one day ... little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers."

Since the

served in the military. In principle, states may require rights and remedies for employees that go beyond the federal minimum. Federal law has multiple exceptions, but generally requires no disparate treatment by employing entities, no disparate impact of formally neutral measures, and enables employers to voluntarily take affirmative action favoring under-represented people in their workforce.[381] The law has not, however, succeeded in eliminating the disparities in income by race
, health, age or socio-economic background.

Constitutional rights

See also: Equal opportunity and Discrimination

The right to equality in employment in the United States comes from at least six major statutes, and limited jurisprudence of the

Harlan J would have held that no "corporation or individual wielding power under state authority for the public benefit" was entitled to "discriminate against freemen or citizens, in their civil rights".[387]

Harlan J wrote his famous dissent that all social institutions should be bound to equal rights,[388] Barack Obama
won election for President.

By 1944, the position had changed. In

US Supreme Court has failed, against dissent, to recognize a constitutional principle of equality,[393] federal and state legislation contains the stronger rules. In principle, federal equality law always enables state law to create better rights and remedies for employees.[394]

Equal treatment

See also:
Retaliation (law)

Today legislation bans discrimination, that is unrelated to an employee's ability to do a job, based on sex, race,

FLSA 1938 itself. Another is that equal pay rules only operate within workers of an "enterprise",[399] so that it has no effect upon high paying enterprises being more male dominated, nor child care being unequally shared between men and women that affects long-term career progression. Sex discrimination includes discrimination based on pregnancy,[400] and is prohibited in general by the landmark Civil Rights Act of 1964.[401]

Rosie the Riveter symbolized women factory workers in World War II. The Equal Pay Act of 1963 banned pay discrimination within workplaces.[402]

Beyond gender equality on the specific issue of pay, the

Souter J in dissent, pointed out the majority's approach was "inexplicable in forgiving employers who present false evidence in court".[410]

Disparate treatment can be justified under

ADEA 1967, age requirements can be used, but only if reasonably necessary, or compelled by law or circumstance. For example, in Western Air Lines, Inc v. Criswell the Supreme Court held that airlines could require pilots to retire at age 60, because the Federal Aviation Administration required this. It could not, however, refuse to employ flight engineers over 60 because there was no comparable FAA rule.[414]

We are confronted by powerful forces telling us to rely on the good will and understanding of those who profit by exploiting us. They deplore our discontent, they resent our will to organize, so that we may guarantee that humanity will prevail and equality will be exacted. They are shocked that action organizations, sit-ins, civil disobedience, and protests are becoming our everyday tools, just as strikes, demonstrations and union organization became yours to insure that bargaining power genuinely existed on both sides of the table. ...

—

AFL–CIO
Miami, Florida (11 December 1961)

In addition to prohibitions on discriminatory treatment,

EEOC to investigate the claim.[421] Furthermore, in Robinson v. Shell Oil Co. the Supreme Court held that writing a negative job reference, after a plaintiff brought a race discrimination claim, was unlawful retaliation: employees were protected even if they had been fired.[422] It has also been held that simply being reassigned to a slightly different job, operating forklifts, after making a sex discrimination complaint could amount to unlawful retaliation.[423]
This is all seen as necessary to make equal rights effective.

Equal impact and remedies

See also: Disparate impact

In addition to

unconstitutional
, against the [[Equal Protection Clause]] because, in his view, the lack of a good faith defense meant employers were compelled to do "racial decision making" that "is ... discriminatory." In dissent,
Ginsburg J pointed out that disparate impact theory advances equality, and in no way requires behavior that is not geared to identifying people with skills necessary for jobs.[429]

The Paycheck Fairness Act, repeatedly proposed by Democrats such as Hillary Clinton, would prevent employer defenses to sex discrimination that are related to gender. It has been rejected by Republicans in the United States Congress.

Both disparate treatment and disparate impact claims may be brought by an individual, or if there is a "pattern or practice" by the Equal Employment Opportunity Commission, the Attorney General,[430] and by class action. Under the Federal Rules of Civil Procedure, Rule 23 a class of people who share a common claim must be numerous, have "questions of law or fact common to the class", have representatives typical of the claimants, who would "fairly and adequately protect the interests of the class".[431] Class actions may be brought, even in favor of people who are not already identified, for instance, if they have been discouraged from applying for jobs,[432] so long as there is sufficiently specific presentation of issues of law and fact to certify the action.[433]

A significant practical problem for disparate impact claims is the "

Rehnquist J dissented, arguing the Amendment should have put the plaintiffs in an even worse position: they should be required to prove they do "equal work", as is stated in the first part of §703(h).[437] Nevertheless, the majority held that the gender pay provisions could be worse because, for example, an employer could apply ""a bona fide job rating system," so long as it does not discriminate on the basis of sex", whereas the same would not be possible for other claims under the Civil Rights Act of 1964. Given that a significant gender pay gap remains, it is not clear why any discrepancy or less favorable treatment, should remain at all.[438]

Affirmative action

Main articles:
Disability in the US, Reasonable accommodation, and Positive action
Franklin Delano Roosevelt, suffering from polio, required a wheelchair through his Presidency
.

Free movement and immigration

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

Job security

Main articles: Job security and Full employment
President Franklin D. Roosevelt brought unemployment down from over 20% to under 2%, with the New Deal's investment in jobs during the Great Depression
.

Job security laws in the United States are the weakest in the developed world, as there are no federal statutory rights yet.

severance pay if an employer lays off employees for economic reasons. The only exception is that the Worker Adjustment and Retraining Notification Act of 1988 requires 60 days notice is given if a business with over 100 employees lays off over 33% of its workforce or over 500 people. While a minority of theorists defend at will employment on the ground that it protects liberty and economic efficiency,[444] the empirical evidence suggests that job insecurity hampers innovation, reduces productivity, worsens economic recessions,[445] deprives employees of liberty and pay,[446] and creates a culture of fear.[447] US unemployment has historically been extremely volatile, as Republican presidents have consistently increased post-war unemployment, while Democratic presidents have reduced it.[448][citation needed] In its conduct of monetary policy, it is the duty of the Federal Reserve to achieve "maximum employment",[449] although in reality Federal Reserve chairs prioritize the reducing of inflation. Underemployment from growing insecurity of working hours has risen. Government may also use fiscal policy (by taxing or borrowing and spending) to achieve full employment, but as unemployment affects the power of workers, and wages, this remains highly political.[450]

Termination and cause

See also:
Wrongful termination, Unfair dismissal, At-will employment, and Termination of employment

The reasons or "causes" that an employer can give to terminate employment affect everything from people's income, to the ability to pay the rent, to getting health insurance. Despite this, the legal right to have one's job terminated only for a "just cause" is confined to just three groups of people. First, in the

conflicts of interest.[455] Most countries treat job security as a fundamental right,[456] as well as necessary to prevent irrational job losses, to reduce unemployment, and to promote innovation.[445] An alternative view is that making it easier to fire people encourages employers to hire more people because they will not fear the costs of litigation,[444] although the empirical credibility of this argument is doubted by a majority of scholars.[457]

at will employment
" doctrine that deprives employees of job security, and lets people become unemployed for arbitrary reasons.

Because most states have not yet enacted proposals for job security rights,[458] the default rule is known as "at-will employment". For example, in 1872, the California Civil Code was written to say "employment having no specified term may be terminated at the will of either party", and even employment for a specified term could be terminated by the employer for a wilful breach, neglect of duty or the employee's incapacity.[459] In the late 19th century, employment at will was popularized by academic writers as an inflexible legal presumption,[460] and state courts began to adopt it, even though many had presumed that contract termination usually required notice and justifications.[461] By the mid-20th century this was summed up to say that an employee's job could be terminated for a "good reason, a bad reason, or no reason at all".[441] However, the employer's discretion to terminate could not violate any statutory prohibition, including termination for union membership,[462] discriminatory termination based on a protected characteristic (e.g. race, gender, age or disability),[463] and bringing claims for occupational health and safety,[464] fair labor standards,[465] retirement income,[466] family and medical leave,[467] and under a series of other specific Acts.[468] Many state courts also added at least four "public policy" exceptions,[469] to ensure that the purpose of statutes in general would not be frustrated by firing. First, employees will be wrongfully discharged if are discharged after they refused to act unlawfully, for instance for refusing to perjure themselves in court.[470] Second, employees cannot be terminated if they insist on performing public duties such as serving on a jury or responding to a subpoena even if this affects an employer's business.[471] Third, an employee cannot be discharged for exercising any statutory right, such as refusing to take a lie detector test or filing litigation.[472] Fourth, employees will be wrongfully discharged if they legitimately blow the whistle on unlawful employer conduct, such as violating food labelling laws,[473] or reporting unlawful standards in a nursing home.[474] However none of these exceptions limit the central problem of terminations by an employer that are unrelated to an employee's conduct, capability, or business efficiency.[475] Some states interpret the general duty of good faith in contracts to cover discharges,[476] so that an employee cannot, for example, be terminated just before a bonus is due to be paid.[477] However the vast majority of Americans remain unprotected against most arbitrary, irrational or malicious conduct by employers.[478]

Despite the default, and absence of job security rights in statute, a contract may require reasons before dismissal as a matter of construction. When there is a "just cause" term in a contract, courts generally interpret this to enable termination for an employee's inadequate job performance after fair warning,[479] and job-related misconduct where the employer consistently enforces a rule,[480] but not actions outside of the job.[481] An employee's job may be constructively and wrongfully terminated if an employer's behavior objectively shows it no longer wishes to be bound by the contract, for instance by unfairly depriving an employee of responsibility.[482] If a written contract does not promise "just cause" protection against termination, statements in a handbook can still be enforceable,[483] and oral agreements can override the written contract.[484]

Economic layoffs

Main articles:
Worker Adjustment and Retraining Notification Act

Many job terminations in America are economic

severance allowance if the termination is for economic reasons, as well as consultation with worker representatives about ways to avoid layoffs.[454] Most developed countries regard information and consultation in the event of any economic change as a fundamental right.[485] The United States government also helped write Control Council Law No 22 for post-war Germany which enabled unions to collectively bargain for elected work councils, which would have the right to participate in decisions about dismissals.[486] However, there are no state or federal laws requiring severance pay or employee participation in layoff decisions. Where employment contracts or collective agreements contain "just cause" provisions, these have been interpreted to give employers broad discretion,[487]
and immunity from the social consequences for the laid off workforce.

American workers do not yet have a right to vote on employer layoff decisions, even though the US government helped draft laws for other countries to have elected work councils.[488]

The only statutory right for employees is for extreme cases of mass layoffs under the

WARN Act regulates any "plant closing" where there is an "employment loss" of 33% of employees if that is over 50 employees, or any case of over 500 employee layoffs, and the business employs 100 persons or more.[489] In these cases, employers have to give 60 days notice to employee representatives such as a union, or to each employee if they have none, and the State.[490] Employment loss is defined to include reduction of over 50% of working time, but exclude cases where an employee is offered a suitable alternative job within reasonable commuting distance.[491] Despite the absence of any duty to consult, employers can argue three main defenses for failure to give notice of mass layoff. First, an employer can argue that they believed in good faith that less notice was necessary to improve chances of a capital injection.[492] Second, an employer may argue that business circumstances were unforeseen.[493] Third, an employer can argue it had reasonable grounds for believing its failure was not a violation of the Act.[494] The only remedies are pay that would have been due in the notice period, and a $500 a day penalty to the local governments that were not notified.[495]
States such as Massachusetts, Connecticut and Maine have statutes with slightly more stringent notice requirements, but none yet require real voice for employees before facing economic hardship.

A common cause of layoffs is that businesses are merged or taken over, either through stock market acquisitions or private equity transactions, where new managements want to fire parts of the workforce to augment profits for shareholders.

corporate law,[497] this issue is largely unregulated. However, if an employer is under a duty to bargain in good faith with a union, and its business is transferred, there will be a duty on the successor employer to continue bargaining if it has retained a substantial number of the previous workforce. This was not made out in the leading case, Howard Johnson Co. v. Detroit Local Joint Executive Board, where the new owner of a restaurant and motor lodge business retained 9 out of 53 former employees, but hired 45 new staff of its own.[498]
The majority held there must be "substantial continuity of identity" of the business for the good faith bargaining duty to continue.

Full employment

Main articles: Unemployment in the United States, Job guarantee, and Full employment

The right to

Rural Electrification Administration
brought electrification of farms from 11% in 1934 to 50% by 1942, and nearly 100% by 1949. After war production brought full employment, the WPA was wound up in 1943.

Unemployment since World War I has been lower under Democratic presidents and higher under Republican presidents. The high rate of incarceration raised real unemployment by around 1.5% since 1980.[504]

After World War II, the Employment Act of 1946 declared a policy of Congress to "promote full employment and production, increased real income... and reasonable price stability".[505] However the Act did not follow the original proposal to say "all Americans... are entitled to an opportunity for useful, remunerative, regular, and full-time employment".[506] By the 1970s, there was a growing opinion that the Equal Protection Clause itself in the 14th Amendment should also mean, according to Justice Marshall in Board of Regents of State Colleges v. Roth, that "every citizen who applies for a government job is entitled to it unless the government can establish some reason for denying the employment."[507] The Humphrey–Hawkins Full Employment Act of 1978 was passed and enabled the President to create jobs to maintain full employment: it stated "the President shall, as may be authorized by law, establish reservoirs of public employment and private nonprofit employment projects".[508] The Act sets the goal of federal government to ensure unemployment is below "3 per centum among individuals aged twenty and over" with inflation also under 3 per cent.[509] It includes "policy priorities" of the "development of energy sources and supplies, transportation, and environmental improvement".[510] These powers of a job guarantee, full employment, and environmental improvement have not yet been used.[511]

The Works Progress Administration from 1935 to 1943,[512] created 8.5m jobs spending $1.3bn a year to get out of the Great Depression.

While the laws for a federal or state

non-accelerating inflation rate of unemployment (NAIRU).[515] It is doubted that any natural rate of unemployment exists, because the United States and other countries have sustained full employment with low inflation before,[516] and the US unemployment rate follows which political party is in the White House.[517]

... my friends, after this war, there will be a great unemployment problem. The munition plants will be closed and useless, and millions of munitions workers will be thrown out upon the market... First they ignore you. Then they ridicule you. And then they attack you and want to burn you. And then they build monuments to you. And that is what is going to happen to the Amalgamated Clothing Workers of America. And I say, courage to the strikers, and courage to the delegates, because great times are coming, stressful days are here, and I hope your hearts will be strong, and I hope you will be one hundred per cent union when it comes!

—Nicholas Klein, Biennial Convention of the Amalgamated Clothing Workers of America (1918)

If despite fiscal and monetary policy people are unemployed, the Social Security Act of 1935 creates

unemployment insurance.[518] One of its goals is to stabilize employment by encouraging employers to retain workers in downturns. Unlike other systems, this makes social security highly dependent on employers. It is funded through a federal payroll tax, and employers that make more layoffs pay higher rates based on past experience. A laid off employee brings a claim to state unemployment office, the former employer is informed and may contest whether the employee was laid off fairly: they are given absolute privilege to communicate information regardless of how false or defamatory it is.[519] Employees cannot get benefits if they are laid off for misconduct,[520] and for participation in strikes,[521] even though the reality may be the employer's fault and there are no other jobs available. Social security claimants must also accept any suitable job.[522] Unemployment offices usually provide facilities for claimants to search for work, but many also turn to private employment agencies. The Supreme Court has held that licensing, fees and regulation of employment agencies under state law is constitutional.[523]

Trade and international law

Main articles:
International labor law and International trade law

[The

children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of freedom of association
, the organization of vocational and technical education ...

—

Versailles Treaty of 1919
Part XIII

Eugene V. Debs, founder of the American Railway Union and five-time presidential candidate, was jailed twice for organizing the Pullman Strike and denouncing World War I. His life story is told in a documentary by Bernie Sanders.[524]

Labor law in individual states

California

Main articles:
California Department of Fair Employment and Housing

In 1959, California added the Division of Fair Employment Practices to the

Department of Fair Employment and Housing, with the stated purpose of protecting citizens against harassment and employment discrimination on the basis of:[526] 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 status and sexual 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.[527]

The state also has its own labor law covering agricultural workers, the

California Agricultural Labor Relations Act
.

New Jersey

In 1945, New Jersey enacted the first statewide civil rights act in the entire nation. with the purpose of protecting citizens against harassment and employment discrimination on the basis of: race, creed, color, national origin, nationality, or ancestry.[528] This has since been expanded to age, sex, disability, pregnancy, sexual orientation, perceived sexual orientation, marital status, civil union status, domestic partnership status, affectional orientation, gender identity or expression, genetic information, military service, or mental or physical disability, AIDS and HIV related illnesses and atypical hereditary cellular or blood traits.[529]

Laws restricting unions

Main article: Right-to-work law
Right-to-work states
  Statewide Right-to-work law
  Local Right-to-work laws
  No Right-to-work law

As of 2019, twenty-six states plus Guam prevent 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).

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.

Enforcement of rights

See also

Organizations

Notes

  1. 29 USC §141. J. R. Commons and J. B. Andrews, Principles of Labor Legislation (Harper 1916) ch 1, The basis of labor law, 9, "where bargaining power on the one side is power to withhold access to physical property
    and the necessaries of life, and on the other side is only power to withhold labor by doing without those necessaries, then equality of rights may signify inequality of bargaining power."
  2. US Supreme Court developed a doctrine not found in the Act, and Employee Retirement Income Security Act of 1974
    .
  3. 42 USC §§301–306 on federally funded state programs and §§401–434
    on federal old age, survivors and disability insurance benefits.
  4. ^ 15 USC §17, "The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws."
  5. ^ D Webber, The Rise of the Working Class Shareholders: Labor's Last Best Weapon (2018)
  6. ^ E McGaughey, 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019) 42 Seattle University Law Review 697
  7. 42 USC §2000e-2(a)
    , "Employers must not refuse to hire, discharge or otherwise discriminated 'against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
  8. ^ cf International Labour Organization, Termination of Employment Convention, 1982 setting out general principles on fair reasons for discharge of workers.
  9. C. L. Estlund, 'The Ossification of American Labor Law' (2002) 102 Columbia Law Review 1527 argues that collective labor right "ossified" with the Labor Management Reporting and Disclosure Act of 1959, after which there was a "longstanding political impasse at the national level". E. McGaughey, 'Fascism-Lite in America (or the Social Ideal of Donald Trump)' (2018) 7(1) British Journal of American Legal Studies
    , 14, argues that since 1976, "No modern judiciary had engaged in a more sustained assault on democracy and human rights. In particular, its attack on labor and democratic society made inequality soar."
  10. ^ See JV Orth, Combination and conspiracy: a legal history of trade unionism, 1721–1906 (1992)
  11. ^ R v Journeymen-Taylors of Cambridge (1721) 8 Mod 10, 88 ER 9
  12. ^ C Tomlins, 'Reconsidering Indentured Servitude: European Migration and the Early American Labor Force, 1600–1775' (2001) 42 Labor History 5
  13. ^ (1772) 98 ER 499
  14. ^ AW Blumrosen, 'The Profound Influence in America of Lord Mansfield's Decision in Somerset v Stuart' (2007) 13 Texas Wesleyan Law Review 645
  15. ^ Slave Trade Act 1807
  16. ^ The Slavery Abolition Act 1833 distributed around £20 million, around $3 billion in 2017 dollars. See the UCL Legacies of British Slave-ownership page.
  17. ^ 60 US 393 (1857)
  18. J. R. Commons, Principles of Labor Legislation (1916) ch II, 38–40
  19. ^ Civil Rights Cases, 109 US 3 (1883)
  20. ^ S Perlman, A History of Trade Unionism in the United States (1922)
  21. ^ 3 Doc Hist 59 (1806)
  22. ^ 45 Mass. 111, 4 Metcalf 111 (1842)
  23. ^ See EE Witte, 'Early American Labor Cases' (1926) 35 Yale Law Journal 829, employers brought at least three successful claims against their employees before 1863, and fifteen up to 1880 for "conspiracy". See also FB Sayre, 'Criminal Conspiracy' (1922) 35 Harvard Law Review 393. W.. Holt, 'Labor Conspiracy Cases in the United States, 1805–1842: Bias and Legitimation in Common Law Adjudication' (1984) 22 Osgoode Hall Law Journal 591. 'Tortious Interference with Contractual Relations in the Nineteenth Century' (1980) 93 Harvard Law Review 1510.
  24. ^ L Fink, Workingmen's Democracy: The Knights of Labor and American Politics (1983) xii–xiii, it declined due to a 'titanic' lack of leadership, and divisions. Members turned over quickly.
  25. Final Report and Testimony Submitted to Congress by the Commission on Industrial Relations (Government Printing Office, 1916) 64th Cong., 1st sess., S. Doc. 415, 2, 1526–1529
  26. ^ See TW Hazlett, 'The Legislative History of the Sherman Act Re-examined' (1992) 30 Economic Inquiry 263, 266 and H Hovenkamp, 'Labor Conspiracies in American Law, 1880–1930' (1988) 66 Texas Law Review 919
  27. Eugene Debs being imprisoned. See the Documentary by Bernie Sanders
    (1979)
  28. ^ See also Oklahoma v. Coyle, 1913 OK CR 42, 8 Okl.Cr. 686, 130 P. 316 per Henry Marshall Furman
  29. ^ 167 Mass. 92 (1896) See also Plant v. Woods, 176 Mass 492, 57 NE 1011 (1900)
  30. ^ 198 US 45 (1905)
  31. ^ 208 U.S. 274 (1908)
  32. ^ Now 15 USC §17
  33. US Commission on Industrial Relations, Final Report and Testimony (Government Printing Office 1915
    )
  34. Holmes J
    , Hughes J and Day J dissenting.
  35. ^ Adkins v. Children's Hospital, 261 US 525 (1923)
  36. ^ Adams v. Tanner, 244 US 590 (1917)
  37. ^ Duplex Printing Press Co. v. Deering, 254 US 443 (1921)
  38. Keating-Owen Act of 1916. Bailey v. Drexel Furniture Co.
    , 259 US 20 (1922) on federal tax.
  39. ^ See Debs v. United States, 249 US 211 (1919)
  40. Railroad Retirement Board v. Alton Railroad Co.
    , 295 US 330 (1935) striking down a compulsory contributory pension scheme for rail workers.
  41. LD Brandeis, Other People's Money and How the Bankers Use It
    (1914)
  42. AA Berle
    .
  43. ^ A.L.A. Schechter Poultry Corp. v. United States, 295 US 495 (1935)
  44. ^ 300 US 379 (1937)
  45. McNamara–O'Hara Service Contract Act of 1965
    wage rates to be paid as prevail in the locality.
  46. ^ Franklin Delano Roosevelt, Eleventh State of the Union Address (1944)
  47. ^
    Ginsburg J
    dissented.
  48. Brown v. Board of Education of Topeka
    , 347 US 483 (1954)
  49. ^ See 2016 Democratic Party Platform (July 21, 2016 Archived November 10, 2016, at the Wayback Machine)
  50. ^ NLRB v. Yeshiva University, 444 US 672, (1980), NLRB v. Catholic Bishop of Chicago, 440 US 490 (1979) 5 to 4 on the National Labor Relations Act of 1935, and Hoffman Plastic Compounds, Inc. v. NLRB, 535 US 137 (2002) 5 to 4 under the NLRA of 1935
  51. ^ Brown v. Hotel and Restaurant Employees, 468 US 491 (1984) 5 to 4 on the NLRA of 1935
  52. ERISA 1974
    .
  53. Equality Act of 2015
  54. Centre for Business Research 2016
    ) 761, United States of America
  55. ^ a b Guidance for Executive Order 13673, "Fair Pay and Safe Workplaces"; Final Guidance, accessed 10 October 2022
  56. ^ a b Executive Order 13673, accessed 6 November 2022
  57. ^ [https://en.wikisource.org/wiki/Executive_Order_13782 accessed 6 November 2022
  58. UDHR 1948 art 17
  59. ^ See Lochner v. New York 198 US 45 (1905)
  60. ^ 322 U.S. 111 (1944)
  61. ^ 331 U.S. 704 (1947)
  62. ^ See also Goldberg v. Whitaker House Cooperative, Inc, 366 US 28 (1961), on homeworkers making 'knitted, crocheted, and embroidered goods of all kinds.'
  63. ERISA
    , rejecting two-prongs of the Fourth Circuit's substitute test, based on expectations and reliance.
  64. ^ 322 U.S. 111 (1944), confirmed in United States v. Silk, 331 U.S. 704 (1947) and Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992)
  65. Restatement of the Law of Agency, Second §220 and Community for Creative Non-Violence v. Reid
    , 490 US 730 (1989)
  66. ^ 444 U.S. 672 (1980)
  67. ^ 532 U.S. 706 (2001)
  68. Breyer J
    dissenting on reasoning, held it was clear that they were.
  69. ^ 567 US __ (2012)
  70. ^ 350 S.E.2d 83 (1986)
  71. ^ 535 U.S. 137 (2002)
  72. Right to Organize and Collective Bargaining Convention, 1949 C098
  73. ^ Hern, Alex (September 11, 2015). "Uber driver declared employee as the company loses another ruling". The Guardian.
  74. ^ 413 F.2d 310 (1969)
  75. ^ See also, Zheng v. Liberty Apparel Co, 335 F3d 61 (2003) Second Circuit, Cabranes J finding joint employment.
  76. ^ 976 F.2d 805 (1992)
  77. ^ Advance Electric, 268 NLRB 1001 (1984)
  78. ^ 425 US 800 (1976)
  79. ^ Local No International Union of Operating Engineers v. National Labor Relations Board, 518 F.2d 1040 (1975)
  80. 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 of 1983
    .
  81. restitution
    can be available.
  82. F Kessler, 'Contracts of Adhesion—Some Thoughts About Freedom of Contract' (1943) 43(5) Columbia Law Review 629
  83. National Labor Relations Act 1935 §1, 29 USC §151
    , "The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries."
  84. Fair Labor Standards Act 1938, 29 USC §202
  85. OSHA 1970 preempted Illinois
    state law that improved training and handling hazardous waste materials.
  86. ERISA 1974 precluded a Texas
    wrongful termination action for denying an employee benefit from the federal statute on general grounds in §514. The minority only endorsed preemption on specific ground in §510.
  87. B. I. Sachs, 'Despite Preemption: Making Labor Law in Cities and States' (2011) 124 Harvard Law Review 1153
  88. Brandeis J
    "To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment."
  89. ^ JI Case Co v. National Labor Relations Board 321 US 322 (1944)
  90. ^ 321 US 322 (1944)
  91. ^ See McLain v. Great American Insurance Co, 208 Cal. App. 3d 1476 (1989) holding the parol evidence presumption will rarely apply to employment.
  92. ^ 662 A2d 89 (1995)
  93. ^ e.g. Demasse v. ITT Corp, 984 P2d 1138 (1999) in the Arizona Supreme Court
  94. ^ 999 P2d 71 (2000)
  95. ^ See Kirke La Shelle Company v. The Paul Armstrong Company et al 263 NY 79 (1933) and see Restatement (Second) of Contracts §205
  96. ^ Stark v. Circle K Corp, 230 Mont 468, 751 P2d 162 (1988)
  97. ^ See Foley v. Interactive Data Corp, 765 P2d 373 (1988)
  98. ^ This is also referred to as "mutual trust and confidence". See Eastwood v. Magnox Electric plc [2004] UKHL 35, per Lord Steyn
  99. ^ See Wilson v. Racher [1974] ICR 428
  100. ^ Johnson v. Unisys Limited [2001] UKHL 13
  101. Bhasin v. Hrynew [2014] SCR 494
  102. Italian Constitution
    , art 36
  103. ^ e.g. Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) state policy favoring arbitration, but arbitrator decision can be reviewed de novo on employment rights.
  104. ^ 556 U.S. 247 (2009)
  105. ^ See also AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) 5 to 4, binding arbitration can be imposed in class action cases for employment and consumer rights
  106. J. S. Mill, Principles of Political Economy (1848) Book V, ch XI, §§9–11 and generally Shelley v. Kraemer, 334 US 1
    (1948)
  107. J. R. Commons, History of Labor in the United States (Macmillan 1918) vol I, ch II, 50
  108. Holmes J
    objecting.
  109. ^ Congressional Research Service (March 2, 2023). "State Minimum Wages: An Overview". Chart on page 3.
  110. ^
    Inflation adjusted (by FRED) via the Consumer Price Index for All Urban Consumers: All Items in U.S. City Average (CPIAUCSL)
    . Run cursor over graph to see nominal and real minimum wage by month.
  111. ^ 300 US 379 (1937)
  112. FLSA 1938
    being constitutional.
  113. FLSA 1938, 29 USC §202(a)
  114. ^ a b "[USC02] 29 USC 207: Maximum hours". uscode.house.gov.
  115. ^ a b 29 USC §218(a).
  116. New York Consolidated Laws LAB art 19, requires $9 per hour from 2016. Lawsuits from business groups have mostly been rejected, e.g. in New Mexicans for Free Enterprise v. Santa Fe
    , 138 NM 785 (2005) the City of Santa Fe enacted a minimum wage ordinance, above the federal and state wages. Businesses challenged it as being beyond the City's powers. Fry J held that the ordinance was lawful and constitutional.
  117. ^ 527 US 706 (1999)
  118. Breyer J
    dissented.
  119. FLSA 1938
    to state and local government workers. There was authority under the FLSA consistent with the Tenth Amendment to extend the Act's protection to public transport employees. Blackmun J gave the majority opinion. Powell, Burger, Rehnquist, O'Connor J dissenting.
  120. FLSA 1938, 29 USC §203(r)–(s). Previously, Walling v. Jacksonville Paper Co., 317 US 564 (1943). See also AB Kirschbaum Co v. Walling 316 US 517 (1942), workers building for firms that would not do interstate commerce were not covered, and Borden Co v. Borella
    325 US 679 (1945)
  121. FLSA 1938, 29 USC §203(s)(2)
  122. ^ 29 USC §213 n.b. the statute does not make clear what justifications there are for any exemptions.
  123. ^ 519 US 452 (1997)
  124. ^ See Adams v. United States, 44 Fed Claims 772 (1999) and Erichs v. Venator Group, Inc 128 F Supp 2d 1255 (ND Cal 2001)
  125. ^ 551 U.S. 158 (2007)
  126. ^ Under 29 USC §211(c) employers must keep payroll records for evidence of working time.
  127. ^ Jewell Ridge Coal Corp. v. United Mine Workers of America 325 US 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. See also, Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 US 590 (1944) travel to work, once underground, was working time.
  128. ^ 328 US 680 (1946)
  129. California Supreme Court
    held an employer must pay for hours traveling on company vehicles.
  130. ^ 323 U.S. 126 (1944)
  131. ^ See Martin v. Onion Turnpike Commission 968 F2d 606 (6th 1992) See also Merrill v. Exxon Corp, 387 FSupp 458 (SD Tex 1974) while pep meetings are working, but Department of Labor approved standard apprenticeship mandatory training was not working time.
  132. ^ Steiner v. Mitchell 350 US 247 (1956)
  133. Stevens J
    for a unanimous court.
  134. Murphy J
    holding that higher afternoon wages did not count as "premium" pay that could be ignored.
  135. ^ 529 US 576 (2000)
  136. Skidmore v. Swift & Co
    , 323 US 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.
  137. ^ 15 USC §1672
  138. Blackmun J
    dissented.
  139. ^ See R Ray, M Sanes and J Schmitt, 'No Vacation Nation Revisited' (Washington DC 2013) Center for Economic and Policy Research 1, "the average worker in the private sector in the United States receives only about ten days of paid vacation and about six paid holidays per year".
  140. Organisation for Economic Co-operation and Development, 'Average annual hours actually worked per worker' (Retrieved August 9, 2016) showing 1790 hours per year in the US, 1674 hours in the UK, and 1371 in Germany. OECD, 'Society at a glance 2009: OECD social indicators' (2009[permanent dead link
    ]    ) 39, Figure 2.17
  141. Thanksgiving Day
    (10) Christmas Day.
  142. Holidays with Pay Convention 1970
    (no 132)
  143. ^ See HB 2238
  144. ^ See the Working Time Directive 2003 art 7
  145. FLSA 1938, 29 USC §213
  146. ^ See FT de Vyver, 'The Five-Day Week' (1930) 33(2) Current History 223. Rybczynski, Waiting for the Weekend (1991) 142
  147. ^ 198 US 45 (1905)
  148. ISBN 9781496819949
    . p. 258.
  149. ^ Robertson, pp. 262 ff.
  150. ^ West Coast Hotel Co. v. Parrish, 300 US 379 (1937)
  151. ^ California, New Jersey, Rhode Island and New York
  152. L Summers, 'Some simple economics of mandated benefits' (1989) 79(2) American Economic Review 177 (theorizing
    (without evidence) that pay will fall to compensate for the cost of any mandated benefit, such as family and medical leave).
  153. ^ But under 29 USC §2611(2) employees "at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50."
  154. ^ 29 USC §2512(a)(2) and on adoption, see Kelley v. Crosfield Catalysts 135 F2d 1202 (7th Circuit 1998) The same rules for federal employees were codified in 5 USC §§6381–6387.
  155. ^ 29 USC §2612(a)(2) and 29 USC §2612(f) mothers and fathers must share time if they work for the same employer.
  156. ^ 29 USC §2612(e)
  157. ^ 29 USC §2612(e)(2)
  158. ^ 29 USC §2614(c). If an employee quits, the employer is enabled to recoup costs.
  159. ^ 535 US 81 (2002)
  160. ^ 29 USC §2614(b). Under 29 USC §2612(b)(2) employers may transfer employees to another position with similar pay and benefits if health absences could be intermittent. Under §2618 special rules apply for employees of local educational agencies.
  161. ^ 29 USC §2617, and see Frizzell v. Southwest Motor Freight, 154 F3d 641 (6th Circuit 1998)
  162. ^ 29 USC §2617(a)(1)(A)(iii)
  163. ^ See Moore v. Payless Shoe Source (8th Circuit 1998)
  164. ^ e.g. D. Paquette, 'The enormous ambition of Hillary Clinton's child-care plan' (May 12, 2016) The Washington Post
  165. ^ See generally WC Greenough and FP King, Pension plans and public policy (1976), S Sass, The Promise of Private Pensions: The First 100 Years (Harvard University Press 1997)
  166. J. R. Commons and J. B. Andrews, Principles of Labor Legislation (1920) 423–438
  167. 42 USC
    ch 7
  168. ^ See L Conant, A Critical Analysis of Industrial Pension Systems (1922) and M. W. Latimer, Trade Union Pension Systems (1932)
  169. 29 USC §186(c)(5)(B)
  170. ^ This followed Carnegie's attendance the Commission on Industrial Relations in 1916 to explain labor unrest. See W. Greenough, It's My Retirement Money – Take Good Care of It: The TIAA-CREF Story (Irwin 1990) 11–37, and E. McGaughey, 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019) 42 Seattle University Law Review 697
  171. 26 USC §401(k)
  172. ^ On the theory behind automatic enrolment, see R Thaler and S Benartzi, 'Save more tomorrow: Using Behavioral Economics to Increase Employee Savings' (2004) 112(1) Journal of Political Economy 164 and E McGaughey, 'Behavioural economics and labour law' (2014) LSE Legal Studies Working Paper No. 20/2014
  173. Voluntary Employee Beneficiary Association
    , such as for child care cover, sick leave, fringe benefits or extra unemployment insurance.
  174. ^ 680 F2d 263 (1982)
  175. 29 USC
    §§1022–1133
  176. ^ Rhorer v. Raytheon Engineers and Constructors, Inc 181 F3d 364 (5th 1999) a plan beneficiary can enforce terms in the summary plan description, even if the underlying document conflicts.
  177. 29 USC
    §1052
  178. 29 USC §1081–1102 Archived June 23, 2018, at the Wayback Machine
    , containing detailed rules.
  179. 29 USC
    §1053. The employer can extend to 7 years, with staggered vesting and a labor union can collectively agree for up to 10 years. Most will seek the shortest period of time.
  180. 29 USC
    §1054
  181. 29 USC
    §1058
  182. ^ Patterson v. Shumate, 504 US 753 (1992) Blackmun J, a pension is treated like a right under a spendthrift trust, so in bankruptcy proceedings, pensions cannot be taken away. Scalia J concurred. See again, Guidry v. Sheet Metal Workers National Pension Fund, 493 US 365 (1990)
  183. ^ 517 US 882 (1996)
  184. ^ cf Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 1 WLR 589 and Equitable Life Assurance Society v. Hyman [2000] UKHL 39
  185. ^ 490 US 714 (1989)
  186. 29 USC §1140, however see the highly controversial case McGann v. H&H Music Co
    (5th 1991) where a man diagnosed HIV positive, filed for treatment under work health care plan. The employer changed the plan to limit AIDS treatment to $5000. Fifth Circuit held the employer's motive was not specifically to injure the worker but to control costs and apparently lawful.
  187. negligent) and the duty to follow the terms of one's assignment. Discussed further in Peacock v. Thomas
    516 US 349 (1996)
  188. 29 USC §1104(a)(1)(D)
  189. 29 USC §1104(a)(1)(B)–(C)
  190. ^ Varity Corp. v. Howe 516 US 489 (1996)
  191. ERISA Sec. 404(a)(1)(A) and (B), require that, in voting proxies, the responsible fiduciary consider those factors that may affect the value of the plan's investment and not subordinate the interests of the participants and beneficiaries in their retirement income to unrelated objectives. These duties also require that the named fiduciary appointing an investment manager periodically monitor the activities of the investment manager with respect to the management of plan assets, including decisions made and actions taken by the investment manager with regard to proxy voting decisions. The named fiduciary
    must carry out this responsibility solely in the interest of the participants and beneficiaries and without regard to its relationship to the plan sponsor."
  192. Keech v. Sandford [1726] EWHC Ch J76
  193. 29 USC §1104(a)(1)(A)
  194. 29 USC §1106
  195. ^ 680 F2d 263 (1982) per Friendly J, "We do not mean by this either that trustees confronted with a difficult decision need always engage independent counsel or that engaging such counsel and following their advice will operate as a complete whitewash. ... perhaps, after the events of late September, resignation was the only proper course."
  196. ^ e.g. Local 144, Nursing Home Pension Fund v. Demisay, 508 US 581 (1992) and Great-West Life & Annuity Insurance Co v. Knudson 534 US 204 (2002)
  197. 29 USC §1144
  198. Blackmun J
  199. ^ Ingersoll-Rand Co. v. McClendon, 498 US 133 (1990)
  200. ^ Egelhoff v. Egelhoff, 532 US 141 (2001)
  201. ^ Metropolitan Life Insurance Co. v. Massachusetts 471 US 724 (1985)
  202. Stevens J
    dissented.
  203. HMO
    contract was not preempted because it was insurance regulation.
  204. ^ a b See HR 1277, Title III, §301
  205. LD Brandeis, Other People's Money and How the Bankers Use It (1914
    ) and JS Taub, 'Able but Not Willing: The Failure of Mutual Fund Advisers to Advocate for Shareholders' Rights' (2009) 34(3) The Journal of Corporation Law 843, 876
  206. ERISA 1974, 29 USC §1102
  207. 29 USC §1105(d)
  208. 29 USC
    §302(c)(5)(B)
  209. US Department of Labor, Critical, Endangered and WRERA Status Notices
    ' (Retrieved August 11, 2016)
  210. ^ See D Hess, 'Protecting and Politicizing Public Pension Fund Assets: Empirical Evidence on the Effects of Governance Structures and Practices' (2005–2006) 39 UC Davis LR 187, 195. The recommended Uniform Management of Public Employee Retirement Systems Act of 1997 §17(c)(3) suggested funds publicize their governance structures. This was explicitly adopted by a number of states, while others already followed the same best practice.
  211. Peter Visclosky, Joint Trusteeship Bill of 1989 HR 2664[permanent dead link]. See further R Cook, 'The Case for Joint Trusteeship of Pension Plans' (2002) WorkingUSA 25. Most recently, the Employees' Pension Security Act of 2008 (HR 5754
    ) §101 would have amended ERISA 1974 §403(a) to insert 'The assets of a pension plan which is a single-employer plan shall be held in trust by a joint board of trustees, which shall consist of two or more trustees representing on an equal basis the interests of the employer or employers maintaining the plan and the interests of the participants and their beneficiaries.'
  212. ^ This inserted a new Securities Exchange Act of 1934 §6(b)(10)
  213. ^ Text of the Occupational Safety and Health Act
  214. E. Appelbaum and LW Hunter, 'Union Participation in Strategic Decisions of Corporations' in Richard B. Freeman
    (ed), Emerging labor market institutions for the twenty-first century (2005) and L. W Hunter, 'Can Strategic Participation be Institutionalized? Union Representation on American Corporate Board.s' (1998) 51(4) Industrial and Labor Relations Review 557
  215. ^ Archibald Cox, D. C. Bok, Matthew W. Finkin and R. A. Gorman, Labor Law: Cases and Materials (2011)
  216. 15 USC §17
  217. 29 USC §151
  218. Ginsburg J
    dissented.
  219. NLRB's election machinery is dramatically too slow, enabling employers to defeat organizing drives through delay and attrition. The NLRB's remedial regime is also too weak to protect employees against employer retaliation. And, with respect to the statute's goal of facilitating collective bargaining, the regime's "good faith
    " bargaining obligation is rendered meaningless by the Board's inability to impose contract terms as a remedy for a party's failure to negotiate in good faith.'
  220. ^ See NAACP v. Alabama, 357 US 449 (1958) referring to the "constitutionally protected right of association".
  221. J. R. Commons, History of Labor in the United States (Macmillan 1918) vol I, ch 1, 25
  222. ^ JB Commons, A Documentary History of American Industrial Society (1910)
  223. ^ Archibald Cox, D. C. Bok, Matthew W. Finkin and R. A. Gorman, Labor Law: Cases and Materials (2006) 11. The federation collapsed during the Panic of 1837.
  224. ^ 45 Mass. 111, 4 Metcalf 111 (1842) See further EE Witte, 'Early American Labor Cases' (1926) 35 Yale Law Journal 829, finding that only three cases on conspiracy were brought between 1842 and 1863. But at least 15 cases were brought between 1863 and 1880.
  225. ^ In re Debs, 64 Fed 724 (CC Ill 1894), 158 U.S. 564 (1895)
  226. ^ a b 208 US 274 (1908)
  227. Freedom of Association Convention 1948
    c 87, art 3(1) "Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes."
  228. ^ See historically TW Glocker, The Government of American Trade Unions (1913) ch XI, and American Civil Liberties Union, Democracy in Trade Unions: A survey, with a program of action (1943)
  229. McClellan Committee, Interim Report of the Select Committee on Improper Activities in the Labor or Management Field, S Rep No 1417, 85th Cong, 2d Sess 60 ff. Summarized by Joseph R. Grodin's Union Government and the Law: British and American Experiences (1961) 158–159. There was minor wrongdoing found in four other unions, recounted in Robert F. Kennedy's The Enemy Within (1960) 190–212. At the Bakery and Confectionery Workers, the president had doubled his salary. At the Allied Trades Unions the Vice President made a self-dealing transaction. At the International Union of Operating Engineers officials had extorted money from employers. At the United Textile Workers Union
    , the president and treasurer bought second homes.
  230. 29 USC § 411
  231. ^
    29 USC § 481
  232. NLRA 1935
    § 7. The dissent argued that the requirement was disproportionate because it applied penalties to the whole union rather than the officials.
  233. ^ e.g. JR Grodin, Union Government and the Law: British and American Experiences (1961) 159, "there is little doubt that in nearly every case [against Beck] a court would agree that conduct found by the committee to be "improper" was also a violation of the union officer's fiduciary obligation. So far as substance, as distinguished from remedy, is concerned, it appears that existing common law [was] probably adequate."
  234. ^ Trbovich v. United Mine Workers, 404 U.S. 528 (1972) See also Hall v. Cole, 412 U.S. 1 (1973) holding that if plaintiffs are successful, they can be awarded fees.
  235. ^ Dunlop v. Bachowski, 421 U.S. 560 (1975)
  236. ^ For a contrasting set of views, compare MJ Nelson, 'Slowing Union Corruption: Reforming the Landrum–Griffin Act to Better Combat Union Embezzlement' (1999–2000) 8 George Mason Law Review 527
  237. ITUC, Constitution
    (2006)
  238. 29 USC § 158(a)(3)
  239. 29 USC § 164(b)
  240. ^ 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." See also Lincoln Fed Labor Union 19129 v. Northwestern Iron & Metal Co, 335 US 525 (1949). 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 included the Maine State Employees Association's costs for in national arbitration litigation.
  241. Federal Corrupt Practices Act 1910
    in a union publicly advocating for particular Congress members to be elected.
  242. ^ Buckley v. Valeo, 424 US 1 (1976)
  243. ^ 435 US 765 (1978)
  244. ^ 558 US 310 (2010)
  245. Davenport v. Washington Education Association
    , 551 US 177 (2007) state legislation could require, consistently with the First Amendment, that a union member opts into the fund for political expenditure.
  246. ^ 573 US __ (2014)
  247. ^ 578 US __ (2016)
  248. ^ "[USC02] 15 USC 17: Antitrust laws not applicable to labor organizations". uscode.house.gov.
  249. ^ 208 US 161 (1908)
  250. ^ 236 US 1 (1915)
  251. Hughes J
  252. 29 USC §§101–115. This was approved and applied by New Negro Alliance v. Sanitary Grocery Co., 303 US 552
    (1938)
  253. 29 USC §104
  254. ^ This reenacted labor provisions from the National Industrial Recovery Act of 1933, after A.L.A. Schechter Poultry Corp. v. United States, 295 US 495 (1935) struck it down.
  255. 29 USC §157
    , "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."
  256. Federal Labor Relations Act of 1978. There are special rules for the United States Department of Homeland Security
    .
  257. 29 USC §152(2)
  258. 29 USC
    §158(3)
  259. Blackmun J
    .
  260. ^ 563 F3d 492 (DC 2009)
  261. ^ R Eisenbrey and L Mishel, 'Supervisor in Name Only: Union Rights of Eight Million Workers at Stake in Labor Board Ruling' (2006) Economic Policy Institute Issue Brief #225
  262. ^ See Bureau of Labor Statistics, 'Union Members – 2015' (January 28, 2016) recording 14.8m union members, 16.4m people covered by collective bargaining or union representation. Union membership was 7.4% in private sector, but 39% in the public sector. In the five largest states, California has 15.9% union membership, Texas 4.5%, Florida 6.8%, New York 24.7% (the highest in the country), and Illinois 15.2%. See further OECD, Trade Union Density (1999–2013)
  263. ^ See H. S. Farber and B. Western, 'Ronald Reagan and the Politics of Declining Union Organization' (2002) 40(3) British Journal of Industrial Relations 385
  264. NLRA 1935, 29 USC §158(d). See NLRB v. Borg-Warner Corp 356 US 342 (1958) Burton J held an employer refused to bargain unlawfully by insisting on a clause requiring a pre-strike ballot of employees. Harlan J dissented. See also First National Maintenance Corp. v. NLRB 452 US 666
    (1981) holding there was no mandatory duty to bargain over First National Maintenance Corp's "decision to terminate its Greenpark Care Center operation and to discharge the workers". Brennan J, joined by Marshall J, dissented saying the majority "states that "bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business."... I cannot agree with this test, because it takes into account only the interests of management; it fails to consider the legitimate employment interests of the workers and their union."
  265. 29 USC §153
  266. 29 USC §159(b)
    .
  267. 29 USC §159(a)
  268. BI Sachs, 'Revitalizing labor law' (2010) 31(2) BJELL 335
    –6
  269. ^ National Labor Relations Board, Seventy Fourth Annual Report Archived December 21, 2016, at the Wayback Machine (2009) 152
  270. ^ 321 US 332 (1944)
  271. ^ 323 US 248 (1944)
  272. ^ 306 US 332 (1939) 5 to 2
  273. ^ 560 US 674 (2010)
  274. ^ H.R. 1409, S. 560.
  275. 29 USC §185 and see Textile Workers Union of America v. Lincoln Mills
    353 US 448 (1957) holding federal law is to be applied to promote national uniformity and carry out policies in the national labor laws.
  276. ^ Charles Dowd Box Co v. Courtney, 368 US 502 (1962) Also Avco Corporation v. Machinists, Aero Lodge 735, 390 US 557 (1968) suits to enforce collective agreements may be removed from state court to federal court.
  277. 9 USC §§1 ff
  278. ^ 363 US 574 (1960) See also United Steelworkers v. American Manufacturing Co. 363 US 564 (1960) construction or interpretation of an agreement is for the arbitrator, not the court to decide, and the court must order arbitration even if a claim made seems frivolous.
  279. ^ United Steelworkers v. Enterprise Wheel & Car Corp. 363 US 593 (1960)
  280. ^ United Paperworkers v. Misco, Inc. 484 US 29 (1987)
  281. ^ 415 US 36 (1974)
  282. Alito J
  283. ^ See also AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) another 5 to 4 decision on consumers.
  284. ^ S.987 and H.R.1873
  285. ^ HR 8410, 95th Cong (1977) S 1883, 95th Cong (1977)
  286. ^ HR 1409. S 560.
  287. ^ 307 US 496 (1939)
  288. 29 USC §158
  289. ^ 301 US 1 (1937) Hughes CJ stated "a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that, if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; that union was essential to give laborers opportunity to deal on an equality with their employer."
  290. ^ Filler Products, Inc. v. NLRB 376 F2d 369 (4th 1967)
  291. ^ e.g. Sunbelt Manufacturing Inc, AFL-CIO, 308 NLRB 780 (1992)
  292. ^ 373 US 221 (1963)
  293. ^ 380 US 263 (1965)
  294. ^ Marquez v. Screen Actors Guild Inc., 525 US 33 (1998)
  295. ^ 420 US 251 (1975)
  296. ^ Epilepsy Foundation of North-east Ohio v. NLRB (DC 2001)
  297. ^ 440 US 301 (1979) Stevens, White, Brennan, Marshall J dissented.
  298. ^ 502 US 527 (1992)
  299. ^ 473 US 95 (1985) Blackmun, Brennan, Marshall, Stevens J dissented.
  300. ^ Sources: E McGaughey, 'Do corporations increase inequality?' (2015) TLI Think! Paper 32/2016, 29. Bureau of Labor Statistics, Series D 940–945 and Thomas Piketty (2014) Technical Appendices, Table S9.2
  301. ^ See further RL Hogler and GJ Grenier, Employee Participation and Labor Law in the American Workplace (1992)
  302. A Cox, 'Labor Law Preemption Revisited' (1972) 85 Harvard Law Review 1337
    .
  303. ^ 346 US 485 (1953) per Jackson J
  304. ^ 359 US 236 (1959)
  305. Frankfurter J
    put it, "because the amount of interstate commerce involved did not meet the Board's monetary standards in taking jurisdiction. ... "
  306. ^ 427 US 132 (1976)
  307. Rehnquist J
    dissented.
  308. ^ 522 US 60 (2008)
  309. ^ Building & Construction Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc. 507 US 218 (1993)
  310. ^ B Gernigo, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) 137 International Labour Review 441. In US federal law, see the National Labor Relations Act of 1935, 29 USC §163.
  311. Shaw CJ held that pre-Independence English cases creating liability for "conspiracy" in organizing a union no longer applied. Contrast R v Journeymen-Taylors of Cambridge
    (1721) 88 ER 9
  312. ^ Clayton Antitrust Act of 1914 §6 and National Labor Relations Act of 1935 §163.
  313. ^ B Gernigon, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) 137 International Labour Review 441 Archived February 24, 2021, at the Wayback Machine
  314. ^ LJ Siegel, 'The unique bargaining relationship of the New York City Board of Education and the United Federation of Teachers' (1964) 1 Industrial & Labor Relations Forum 1, 46, referring to Jules Kolodney, during teacher strikes, 'In New York, you can't have true collective bargaining without the implied threat of a strike. If you can't call a strike you don't have real collective bargaining, you have 'collective begging.' ... Never give up the right of withholding services; have a threat in the background; the leverage of a strike possibility. We must awaken the public to the fact that the largest single employer in the United States is Government. We could become a nation that can't strike, and that is moving towards Totalitarianism.' Further, A Anderson, 'Labor Relations in the Public Service' [1961] Wisconsin Law Review 601, as 'Collective conferences, collective negotiation, collective dealing, and even collective begging have been used to describe the public employer employee relations.'
  315. ^ See EE Witte, 'Early American Labor Cases' (1926) 35 Yale Law Journal 829, employers brought at least three successful claims against their employees before 1863, and fifteen up to 1880 for "conspiracy". See also F. B. Sayre, 'Criminal Conspiracy' (1922) 35 Harvard Law Review 393. W. Holt, 'Labor Conspiracy Cases in the United States, 1805-1842: Bias and Legitimation in Common Law Adjudication' (1984) 22 Osgoode Hall Law Journal 591. 'Tortious Interference with Contractual Relations in the Nineteenth Century' (1980) 93 Harvard Law Review 1510.
  316. ^ In re Debs, 64 Fed 724 (CC Ill 1894), 158 US 564 (1895)
  317. ^ See Samuel Gompers, 'Labor and the War: the Movement for Universal Peace Must Assume the Aggressive' (October 1914) XXI(1) American Federationist 849, 860.
  318. ^ United States v. Hutcheson 312 US 219 (1941) per Justice Frankfurter
  319. international labor law, ILO Freedom of Association and Protection of the Right to Organise Convention
    , No 87. See B Gernigon, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) 137 International Labour Review 441, 461–465.
  320. Norris-La Guardia Anti-Injunction Act of 1932
    was subsequently passed to void contracts promising to not join a union, and articulated that no federal court could pass an injunction to stop any non-violent labor dispute. Roughly half the states have enacted their own version of the Norris-LaGuardia Act.
  321. NLRA 1935 29 USC §§157 and 163
  322. ^ See 'Cesar Chavez Explains Boycotts' and 'Cesar Chavez speaking at UCLA 10/11/1972'.
  323. 2018–19 education workers' strikes in the United States
    .
  324. Boston Police Strike
    of 1919: "There is no right to strike against the public safety, anywhere, anytime."
  325. NLRA 1935 29 USC §157. n.b. NLRB v. City Disposal Systems, Inc
    465 US 822 (1984) one man, Brown, without the union was allowed to refuse to work on unsafe machinery, pursuant to a collective agreement. He was protected even without the union also taking action.
  326. NLRA 1935
    , 29 USC §158(b)(3)
  327. NLRA 1935 29 USC §158(b)(4)(B)
  328. ^ See National Woodword Manufacturers Association v. NLRB 386 US 612 (1967) on "hot cargo" agreements under 29 USC §158(e) and work preservation under §158(b)(4)(ii)(A)-(B).
  329. ^ NLRB v. Truck Drivers Local 449, 353 US 87 (1957) workers were going strike against the employers one by one, known as a whipsaw strike.
  330. ^ Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council 485 US 568 (1988) urging a secondary boycott cannot be an unfair labor practice.
  331. NLRA 1935
    29 USC §158(d)
  332. National Labor Relations Board v. Columbian Enameling & Stamping Co.
    , 306 U.S. 292 (1939) 5 to 2, Reed J and Black J dissented.
  333. ^ e.g. under the European Convention on Human Rights 1950 article 11, the no detriment rule for union membership is seen in Wilson and Palmer v United Kingdom [2002] ECHR 552. In the UK, the Trade Union and Labour Relations (Consolidation) Act 1992 s 238A protects employees on strike from unfair dismissal for 12 weeks at least.
  334. ^ 304 US 333 (1938)
  335. ^ See International Labour Organization, Complaint Against the Government of the United States Presented by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) (1991 Archived March 28, 2020, at the Wayback Machine) [92] 'The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests. The Committee considers that this basic right is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally. The Committee considers that, if a strike is otherwise legal, the use of labour drawn from outside the undertaking to replace strikers for an indeterminate period entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights.' P Weiler, 'A Principled Re-Shaping of Labor Law for the Twenty-First Century' [2001] University of Pennsylvania Journal of Labor and Employment Law 201, Mackay is 'the worst contribution that the U.S. Supreme Court has made to the current shape of labor law in this country.'
  336. ^ NLRB v. Fansteel Metallurgical Corp. 306 US 240 (1939) Reed J and Black J dissented.
  337. ^ Trans World Airlines, Inc v. Flight Attendants 489 US 426 (1989) Brennan J, Marshall J, Blackmun J dissented.
  338. ^ NLRB v. Electrical Workers 346 US 464 (1953)
  339. ^ New Negro Alliance v. Sanitary Grocery Co., 303 US 552 (1938)
  340. ^ Thornhill v. Alabama, 310 US 88 (1940)
  341. Labor Management Relations Act
    .
  342. ^ Eastex, Inc. v. NLRB 437 US 556 (1978)
  343. ^ e.g. Clean Slate for Worker Power: Building a Just Economy and Democracy (2019) Labor and Worklife Program, Harvard Law School.
  344. ^ See the Reward Work Act, S.2605, sponsored by Tammy Baldwin, Elizabeth Warren, Brian Schatz, joined by Kirsten Gillibrand
  345. ^ The Sanders "Corporate Accountability and Democracy" plan proposes 45% of boards to be elected by workers for companies with over $100 million in revenue, while Warren's Accountable Capitalism Act would require 40% on large federal corporations.
  346. J. R. Commons, Industrial Government (1921) ch 6, L. D. Brandeis, Other People's Money and How the Bankers Use It
    (1914).
  347. ^ See E. McGaughey, 'Corporate Law Should Embrace Putting Workers On Boards: The Evidence Is Behind Them' (17 September 2018) Harvard Law School Forum on Corporate Governance and Financial Regulation and 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019) 42 Seattle University Law Review 697. R. L. Hogler and G. J. Grenier, Employee Participation and Labor Law in the American Workplace (1992)
  348. ^ See D. Webber, The Rise of the Working Class Shareholder: Labor's Last Best Weapon (2018) and the section above on "Pensions".
  349. ^ See the popular text by the former Dean of Harvard Law School, R. C. 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.'
  350. ^ See the Reward Work Act, S.2605, sponsored by Tammy Baldwin, Elizabeth Warren, Brian Schatz, joined by Kirsten Gillibrand. In the House, HR 6096 was sponsored by Keith Ellison and Ro Khanna.
  351. Framingham
    .
  352. ^ NM Clark, Common Sense in Labor Management (1919) ch II, 29–30
  353. J. R. Commons, Industrial Government (1921) ch 6
  354. J. R. Commons
    and J. B. Andrews, Principles of Labor Legislation (1920) and US Congress, Report of the Committee of the Senate Upon the Relations between Labor and Capital (Washington DC 1885) vol II, 806 on Straiton & Storm.
  355. Sidney Webb and Beatrice Webb
    , The History of Trade Unionism (1920) Appendix VIII
  356. ^ See further, www.worker-participation.eu, E McGaughey, 'Votes at Work in Britain: Shareholder Monopolisation and the 'Single Channel' (2018) 15(1) Industrial Law Journal 76 and 'The Codetermination Bargains: The History of German Corporate and Labour Law' (2016) 23(1) Columbia Journal of European Law 135.
  357. Dunlop Commission on the Future of Worker-Management Relations: Final Report (1994
    )
  358. ^ n.b. The New Jersey Revised Statute (1957) §14.9–1 to 3 expressly empowered employee representation on boards, but has subsequently been left out of the code. See further 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
  359. ^ e.g. RA Dahl, 'Power to the Workers?' (November 19, 1970) New York Review of Books 20
  360. ^ See B Hamer, 'Serving Two Masters: Union Representation on Corporate Boards of Directors' (1981) 81(3) Columbia Law Review 639, 640 and 'Labor Unions in the Boardroom: An Antitrust Dilemma' (1982) 92(1) Yale Law Journal 106
  361. ^ American Telephone & Telegraph Company, CCH Federal Securities Law Reporter 79,658 (1974) see JW Markham, 'Restrictions on Shared Decision-Making Authority in American Business' (1975) 11 California Western Law Review 217, 245–246
  362. ^ This was stalled by litigation in Business Roundtable v. SEC, 647 F3d 1144 (DC Cir 2011). See D Webber, The Rise of the Working Class Shareholder: Labor's Last Best Weapon (2018)
  363. ^ J. D. Blackburn, 'Worker Participation on Corporate Directorates: Is America Ready for Industrial Democracy?' (1980–1981) 18 Houston Law Review 349
  364. ^ 'The Unions Step on Board' (October 27, 1993) Financial Times
  365. ^ P. J. Purcell, 'The Enron Bankruptcy and Employer Stock in Retirement Plans' (March 11, 2002) CRS Report for Congress and JH Langbein, SJ Stabile and BA Wolk, Pension and Employee Benefit Law (4th edn Foundation 2006) 640–641
  366. E. Appelbaum
    and LW Hunter, 'Union Participation in Strategic Decisions of Corporations' (2003) NBER Working Paper 9590
  367. ^ See E Schelzig, 'Volkswagen powers up 33-acre solar park in Tenn.' (January 23, 2013) USA Today
  368. National Industrial Conference Board
    , Works Councils in the United States (1919) Research Report Number 21, 13, found that in 1919 in a survey of 225 work council plans, 120 were created under Federal government supervision, and 105 on employers initiative.
  369. ^ NICB, Works Council Manual (1920) Supplemental to Research Report No 21, 25, Appendix, Model Article II(1)
  370. NLRA 1935
    §158(a)(2)
  371. ^ See further NLRB v. Newport News Shipbuilding Co. 308 US 241 (1939)
  372. ^ Control Council Law No 22 Works Councils (April 10, 1946) in Official Gazette of the Control Council for Germany (1945–1946) 43 (R498) arts III–V.
  373. ^ See San Diego Building Trades Council v. Garmon 359 US 236 (1959) holding that state laws are only preempted for bargaining, rather than outcomes (like setting minimum wages, pension rights, health and safety, or workplace representation) which are protected by "§7 of the National Labor Relations Act, or constitute an unfair labor practice under §8 ... When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted."
  374. ^ 309 NLRB No 163, 142 LRRM 1001 (1992)
  375. ^ 311 NLRB No 88, 143 LRRM 1121 (1993)
  376. ^ US Department of Labor and US Department of Commerce, Commission on the Future of Worker-Management Relations: Final Report (1994) 22, 27, 30–31.
  377. ^ J Ramsey, 'VW Chattanooga plant union votes to approve collective bargaining' (December 6, 2015) autoblog.com and NE Boudette, 'Volkswagen Reverses Course on Union at Tennessee Plant' (April 25, 2016) NY Times
  378. US Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed
    . ...
  379. Second Bill of Rights of 1944
    .
  380. 42 USC §2000e-2(a)
    , "Employers must not refuse to hire, discharge or otherwise discriminated 'against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
  381. 42 USC §2000e-2(j)
  382. US Constitution Article IV, Section 2, "no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." This was extended by the Fugitive Slave Act of 1793, limited by Prigg v. Pennsylvania, 41 US 539 (1842), restored by the Fugitive Slave Act of 1850 and entrenched by Ableman v. Booth
    , 62 US 506 (1859)
  383. Harper v. Virginia Board of Elections, 383 US 663 (1966) and contrast Yick Wo v. Hopkins 118 US 356
    , 370 (1886) referring to 'the political franchise of voting' as a 'fundamental political right, because [it is] preservative of all rights.'
  384. ^ Contrast the Slaughter-House Cases, 83 US 36 (1873) holding that states were entitled to regulate or shut down slaughter houses, causing pollution, without violating the Fourteenth Amendment's clause that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".
  385. 42 USC
    §1981(a)
  386. ^ 109 US 3 (1883)
  387. Harlan J dissented. See also Lochner v. New York
    198 US 45 (1905)
  388. ^ See the Civil Rights Cases 109 US 3 (1883) where the majority struck down the Civil Rights Act of 1875
  389. ^ 323 US 192 (1944)
  390. ^ 421 US 454 (1975)
  391. ^ See Washington v. Davis 426 US 229 (1976) holding that a prima facie case of unconstitutionality would be established by evidence of intent. It was not enough that verbal tests had a disparate impact. Brennan J and Marshall J dissented.
  392. ^ 414 US 632 (1974)
  393. Lord Hoffmann
    discussing the principle of equality as it is potentially seen in Commonwealth jurisdictions.
  394. ^ California Fed Savings and Loan Ass v. Guerra 479 US 272 (1987) holding the California Fair Employment and Housing Act of 1959 §12945(b)(2) was not preempted.
  395. CRA 1964
  396. Discrimination Convention 1958 c 111
    , art 1(1)(b) applying to "such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation".
  397. 29 USC §206(d)(1), "No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system
    ; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee." §206(d)(2) expressly prevents any discrimination caused by labor unions also.
  398. ^ 417 US 188 (1974) See also Schultz v. Wheaton Glass Co., 421 F2d 259 (3rd 1970) if work is "substantially equal" then the work must be paid the same, regardless of the job title. See also County of Washington v. Gunther, 452 US 161 (1980).
  399. FLSA 1938
    , 29 USC §203(r)
  400. AT&T Corporation v. Hulteen, 556 U.S. 701 (2009) 7 to 2, holding that maternity leave taken before the Pregnancy Discrimination Act
    1978 did not need to count as time worked that will contribute to pension earnings.
  401. 42 USC §2000e-2
  402. collective agreements
    between employers and workers".
  403. 42 USC §2000e-2(a)(1)
  404. 42 USC §2000e-2(a)(2)
  405. 29 USC §§623 and 631
  406. 42 USC §12112(a)–(b)
  407. 42 USC §2000e(b). See Walters v. Metropolitan Educational Enterprises, Inc
    519 US 202 (1997)
  408. ^ 450 US 248 (1981) and see previously McDonnell Douglas Corp. v. Green, 411 US 792 (1973)
  409. ^ 509 US 502 (1993)
  410. ^ Contrast O'Connor v. Consolidated Coin Caterers Corporation 517 US 308 (1996) on age discrimination
  411. ^ CRA 1965, 42 USC §2000e-2(e)
  412. ^ 433 US 321 (1977)
  413. ^ 517 FSupp 292 (ND Tex 1981)
  414. ^ 472 US 400 (1985)
  415. ^ 477 US 57 (1986)
  416. ^ 510 US 17 (1993) reversing the Sixth Circuit.
  417. ^ Burlington Industries Inc v. Ellerth 524 US 742 (1998) relying on Restatement of Torts §219
  418. ^ 524 US 775 (1998) n.b. Oncale v. Sundowner Offshore Services, Inc., 523 US 75 (1998) sexual harassment was possible between members of the same sex.
  419. 42 USC
    §2000e-3
  420. ^ Gomez-Perez v. Potter, 553 US 474 (2008) 6 to 3.
  421. ^ 493 US 182 (1990)
  422. ^ 519 US 337 (1997)
  423. Burlington Northern & Santa Fe (BNSF) Railway Co. v. White
    , 548 US 53 (2006)
  424. U.S. Bureau of the Census
    , U.S. Census of Population (1960) vol 1, Characteristics of the Population, pt. 35, Table 47. This rate, under a segregated education system, was worse than most non-segregated systems for European-Americans.
  425. ^ 401 US 424 (1971)
  426. ^ This overturned Wards Cove Packing Co, Inc v. Atonio 490 US 642 (1989) where it was held 5 to 4 that employees had the burden of showing a disparate impact did not serve an employer's "legitimate employment goals".
  427. 42 USC
    §2000e–2(k)(1)(A)
  428. Kennedy J
    giving the first judgment.
  429. Breyer J
  430. 42 USC §§2000e-5 to 2000e-6
  431. ^ Federal Rules of Civil Procedure Rule 23
  432. ^ e.g. International Brotherhood of Teamsters v. US 431 US 324 (1977)
  433. ^ See General Telephone Co of Southwest v. Falcon 457 US 147 (1982)
  434. ^ 29 USC §206(d)(1).
  435. ^ This exempts (i) a bona fide seniority system (ii) merit systems (iii) systems measuring earnings by quantity or quality of production.
  436. ^ 452 US 161 (1981)
  437. ^ See also Schultz v. Wheaton Glass Co, 421 F.2d 259 (3rd Cir 1970)
  438. ^ Similar problems are evident in the UK's Equality Act 2010 and its separate "equal pay" provisions. It has been argued that they should be scrapped, so that a claimant can choose the most favorable legal avenue.
  439. ^ See Centre for Business Research, Labour Regulation Index (Dataset of 117 Countries) (2016) 763-4
  440. ^ See LE Blades, 'Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power' (1967) 67(8) Columbia Law Review 1404, 1411-12. Contrast the Delaware General Corporation Law §141(k) where a corporation can require a "classified board" where directors can only be removed "with cause". This happens frequently, e.g. Campbell v. Loew's, Inc., 36 Del Ch 563, 134 A 2d 852 (Ch 1957) referring to Auer v. Dressel, 306 NY 427, 118 NE 2d 590, 593 (1954)
  441. ^ a b Cusano v. NLRB 190 F 2d 898 (1951) citing NLRB v. Condenser Corp, 128 F.2d 67, 75 (3rd Cir 1942) stating "poor reason". See further Payne v. Western & Atlantic Railroad, 81 Tennessee 507 (1884)
  442. ^ a b Montana Code Annotated 2015 Title 39 ch 2 part 9, §4
  443. ^ e.g. Bernie Sanders presidential campaign, Workplace Democracy Plan (2019). Mike Siegel Congress campaign in Texas 2020, Dignity for Workers by Protecting and Growing Union Membership Archived March 22, 2020, at the Wayback Machine
  444. ^ a b e.g. R Epstein, 'In Defense of the Contract at Will' (1984) 57 University of Chicago Law Review 947
  445. ^ a b e.g. V. V. Acharya and R. P. Baghai, 'Labor Laws and Innovation' (2013) 56(4) Journal of Law and Economics 997 and V. V. Acharya, R. P. Baghai, K. V. Subramanian, 'Wrongful Discharge Laws and Innovation' (2014) 27(1) Review of Financial Studies 301
  446. ^ e.g. L. E. Blades, 'Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power' (1967) 67(8) Columbia Law Review 1404. C. L. Estlund, 'How Wrong Are Employees About Their Rights, and Why Does It Matter?' (2002) 77 NYU Law Review 6
  447. ^ e.g. L Ryan, 'Ten Ways Employment At Will Is Bad For Business' (October 3, 2016) Forbes.
  448. ^ See chart below.
  449. Federal Reserve Act of 1913
    , 12 USC §225a
  450. ^ M Kalecki, 'Political aspects of full employment' (1943) 14(4) Political Quarterly 322
  451. ^ 5 USC §7513(a)
  452. ^ Campbell v. Loew's, Inc., 36 Del Ch 563, 134 A 2d 852 (Ch 1957) referring to Auer v. Dressel, 306 NY 427, 118 NE 2d 590, 593 (1954)
  453. UK labour law, see the Employment Rights Act 1996 ss 94 ff
    .
  454. ^
    ILO, Termination of Employment Convention, 1982 arts 4-13
  455. Work Constitution Act 1972
    or Betriebsverfassungsgesetz 1972 (worker participation).
  456. ^ e.g. Charter of Fundamental Rights of the European Union art 30
  457. ^ e.g. WB MacLeod and V Nakavachara, 'Can Wrongful Discharge Law Enhance Employment?' (2007) 117 Economic Journal F218, I Marinescu, 'Job Security Legislation and Job Duration: Evidence from the United Kingdom' (2009) 27(3) Journal of Labor Economics 465. On OECD studies, see E McGaughey, 'OECD Employment Protection Legislation Indicators and Reform' (2019) ssrn.com
  458. ^ cf Bernie Sanders presidential campaign, Workplace Democracy Plan (2019). Mike Siegel Congress campaign in Texas 2020, Dignity for Workers by Protecting and Growing Union Membership Archived March 22, 2020, at the Wayback Machine
  459. ^ California Civil Code (1872) §1999
  460. ^ Especially HG Wood, Master and Servant (3rd edn 1886) 134, 'With us the rule is inflexible that a general or indefinite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof. A hiring at so much a day, week, month, or year, no time being specified, is an indefinite hiring, and no presumption attaches that it was for a day even, but only at the rate fixed whatever time the party may serve.'
  461. yellow-dog contracts, but Harlan J conceding that an employer "was at liberty, in his discretion, to discharge [an employee] from service without giving any reason for doing so." Contrast EA Ross, 'A Legal Dismissal Wage' (1919) 9(1) American Economic Review 132 and AS Erofones, 'Contracts. Termination of Employment at Weekly Salary' (1927) 40(4) Harvard LR 646
  462. ^ National Labor Relations Act of 1935 §8(a)(3) preventing union discrimination
  463. ^ Civil Rights Act of 1964 42 USC §2000e-2(a). Age Discrimination in Employment Act of 1967, 29 USC §§621-634. Americans with Disabilities Act of 1990.
  464. Occupational Safety and Health Act of 1970
    , 29 USC §§651-678
  465. ^ Fair Labor Standards Act of 1938, 29 USC §§20-219
  466. ERISA 1974
    , 29 USC §§1140-41
  467. Family and Medical Leave Act
    , 29 USC §2615
  468. Consumer Credit Protection Act, 15 USC §1674. Judiciary and Judicial Procedure Act
    , 28 USC §1875
  469. ^ Petermann v. International Brotherhood of Teamsters 214 Cal App. 2d 155 (Cal App 1959) public policy is 'a prohibition for the good of the community against whatever contravenes good morals or any established interests of society'.
  470. ^ Ivy v. Army Times Pub Co 428 A.2d 831 (DC App 1981) declining to perjure at employer's request.
  471. ^ e.g. Nees v. Hocks 536 P2d 512 (Or 1975) refusing to seek to be excused from serving on a jury. Daniel v. Carolina Sunrock Corp 335 NC 233 (NC 1993) responding to a subpoena.
  472. ^ e.g. Perks v. Firestone Tire & Rubber Co 611 F2d 1363 (3rd Cir 1979) refusing to take a lie detector test where the state prohibited it. Tacket v. Delco Remy, Division of General Motors Corp 937 F.2d 1201 (7th Cir 1992) filing litigation against the employer
  473. ^ e.g. Sheets v. Teddy's Frosted Foods, Inc. 179 Conn. 471, 427 A.2d 385 (1980) plaintiff noticed violations of the Connecticut Uniform Food, Drug and Cosmetic Act, told the employer, and was fired. Held, wrongful discharge, as he could not be required to perform an illegal act.
  474. 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 discharge 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.
  475. ^ cf Model Employment Termination Act (8 August 1991) "§1(4) 'Good cause means (i) a reasonable basis related to an individual employee for termination of the employee's employment in view of relevant factors and circumstances, which may include the employee's duties, responsibilities, conduct on the job or otherwise, job performance, and employment record..."
  476. Restatement (Second) of Contracts 1981
    §205, 'Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement'
  477. 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.
  478. ^ e.g. 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. cf Brockmeyer v. Dun & Bradstreet 113 Wis. 2d 561 (Wis. 1983) employer dismissed an employee after another worker sued for sex discrimination and the case had to be settled. The Wisconsin Supreme Court acknowledged there could be public policy reasons to hold a dismissal is unlawful. Dismissal was justified in this case.
  479. ^ e.g. Wilking v. County of Ramsey 983 F. Supp. 848 (8th Cir 1998) poor performance claims are more credible if the employer shows it gave a warning about improving.
  480. ^ e.g. Taylor v. Procter & Gamble Dover Wipes (D Del 2002) terminated worker involved of serious acts that cannot be tolerated at work, like assaulting a fellow worker. Pearson v. Metro-North Commuter Railroad 1990 WL 20173 (SDNY 1990) if a rule is not consistently enforced, it cannot be relied on by the employer.
  481. marijuana
    twice. The employee's right to be dismissed for a 'just cause' under a collective agreement contained the remedy of reinstatement. 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.
  482. ^ e.g. Lincoln v. University System of Georgia Board of Regents 697 F2d 928 (11th Cir 1983) a college took teaching away from a faculty member and assigned her to prepare a revision of a handbook and other large clerical duties for grant applications. Held, constructively terminated.
  483. ^ Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich 579 (1980) employee was told at hiring that he would be employed as long as he did his job. The handbook said the employer's policy was only to terminate for 'just cause'. Held, that both express and implied promises were enforceable, and raised legitimate expectations for the employee. See also Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 662 A2d 89 (1995)
  484. ^ e.g. Schipani v. Ford Motor Co 102 Mich 606 (1981) an employer made an oral agreement, along with personnel manuals, policies and employment practice, for an employee to work till age 65. The written contract, however, said that employment was terminable at will. The employer sought summary judgment. Michigan Court of Appeals held there would be no summary judgment. The other assurances were enough to potentially rebut the written agreement.
  485. Charter of Fundamental Rights of the European Union 2000 art 27
  486. Work Constitution Act 1972
    or Betriebsverfassungsgesetz 1972 (worker participation).
  487. ^ e.g. Telesphere International Inc v. Scollin 489 So 2d 1152 (Fla App 1986) eliminating a product or service. Nixon v. Celotext Corp 693 F Supp 547 (WD Mich 1988) consolidating operations.
  488. Work Constitution Act 1972
    or Betriebsverfassungsgesetz 1972 (worker participation in layoffs).
  489. WARN Act 1988 §2101(a)(2)-(3)
    . §2101(a)(1), the 100 employee threshold excludes part-time employees.
  490. WARN Act 1988 §2102(a)
  491. WARN Act 1988 §§2101(a)(6) and 2101(b)(2)
  492. WARN Act 1988 §2102(b)
  493. WARN Act 1988 §2102(b)(2) and see Local Union 7107, United Mine Workers v. Clinchfield Coal Co
    124 F3d 639 (4th Cir 1997) cancellation of major contract in unforeseeable circumstances.
  494. WARN Act 1988 §2104(a)(4). See Kildea v. Electro-Wire Products, Inc.
    60 F. Supp. 2d 710 (6th Cir 1998) not giving notice to employees on a reasonable misunderstanding that they were not entitled to it counts as good faith.
  495. WARN Act 1988 §2104(a)(1)-(3)
  496. ^ See E. Appelbaum and R Batt, Private Equity at Work – When Wall Street Manages Main Street (2014)
  497. ^ Unocal Corp. v. Mesa Petroleum Co. 493 A 2d 946 (Del 1985)
  498. ^ 417 US 249 (1974)
  499. International Covenant on Economic, Social and Cultural Rights 1966 art 6
  500. ^ See also Franklin D. Roosevelt, 'Second Bill of Rights', in State of the Union Address (January 11, 1944)
  501. ^ See AW Phillips, 'The Relation between Unemployment and the Rate of Change of Money Wage Rates in the United Kingdom 1861–1957' (1958) 25 Economica 283
  502. ^ 239 US 33 (1915) per Justice Hughes. cf Massachusetts Board of Retirement v. Murgia 427 US 307 (1976) holding that an age limit of 50 years old for police in Massachusetts was constitutional.
  503. Federal Emergency Relief Act of 1933
    .
  504. ^ E McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2018) Centre for Business Research, University of Cambridge, Working Paper no. 496
  505. ^ Employment Act of 1946, 15 USC §1021
  506. ^ See G. J. Santoni, 'The Employment Act of 1946: Some History Notes' (1986) 68(9) Federal Reserve of St Louis Paper 7. K. V. W. Stone, 'A Right to Work in the United States: Historical Antecedents and Contemporary Possibilities' in V Mantouvalou (ed), The Right to Work: Legal and Philosophical Perspectives (2015) ch 15.
  507. ^ Board of Regents of State Colleges v. Roth 408 US 564, 588 (1972) per Justice Marshall dissenting.
  508. ^ 15 USC §3116
  509. ^ 15 USC §1022a.
  510. ^ 15 USC §1022c.
  511. global financial crisis, the American Recovery and Reinvestment Act of 2009
    was passed to enable more spending, but not a job guarantee.
  512. ^ Emergency Relief Appropriation Act of 1935
  513. ^ Amended by the Federal Reserve Reform Act of 1977, 12 USC §225a
  514. J. M. Keynes, The General Theory of Employment, Interest and Money
    (1936) ch 22, IV, pointing to "the .chronic tendency of contemporary societies to under-employment is to be traced to under-consumption; — that is to say, to social practices and to a distribution of wealth which result in a propensity to consume which is unduly low."
  515. ^ M Friedman, 'The Role of Monetary Policy' (1968) 58(1) American Economic Review 1. M Friedman, 'Inflation and Unemployment' (1977) 85 Journal of Political Economy 451-72
  516. ^ See G Marshall, The Marshall Plan Speech (5 June 1947) Harvard (on the investment plan for post-war Europe). SP Hargreaves Heap, 'Choosing the Wrong 'Natural' Rate: Accelerating Inflation or Decelerating Employment and Growth?' (1980) 90(359) Economic Journal 611.
  517. ^ E. McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2018) Centre for Business Research, University of Cambridge, Working Paper no. 496, part 2(1)
  518. Steward Machine Company v. Davis, 301 US 548 (1937) held unemployment benefits
    to be constitutional.
  519. ^ e.g. Millner v. Enck 709 A 2d 417 (Pa Super 1998)
  520. Employment Division, Department of Human Resources v. Smith
    , 494 US 872 (1988)
  521. ^ Ohio Bureau of Employment Services v. Hodary, 431 US 471 (1977)
  522. ^ Internal Revenue Code §3304(a)(5)
  523. ILO, Private Employment Agencies Convention, 1997
  524. ^ Bernie Sanders and Jane Sanders, Eugene V. Debs Documentary (1979)
  525. ^ The Fair Employment and Housing Act
  526. ^ Details of law Archived January 16, 2006, at the Wayback Machine from the DFEH website
  527. ^ Barnes & Thornburg LLP (October 12, 2011). "California Enacts 22 New Employment Laws Impacting All Companies Doing Business in the State". The National Law Review.
  528. ^ New Jersey, Legislature (April 16, 1945). "L.1945 c.168-174. AN Act concerning civil rights, and amending sections 10 :1-3, 10 :1-6 and 10 :1-8 of the Revised Statutes". NJ State Library. Retrieved November 15, 2021.
  529. ^ The New Jersey Law Against Discrimination

References

Books
Articles
  • J. M. Feinman, 'The Development of the Employment at Will Rule' (1976) 20(2) The American Journal of Legal History 118
  • Herbert Hovenkamp, 'Labor Conspiracies in American Law, 1880–1930' (1988) 66 Texas Law Review 919
  • C. W. Summers, 'Democracy in a One-Party State: Perspectives from Landrum-Griffin' (1984) 43 Maryland Law Review 93

External links

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