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Labor Law Information
United States labor law is a heterogeneous collection of
state and federal laws. Federal law not only sets the standards that govern
workers' rights to organize in the private sector, but overrides most state and
local laws that attempt to regulate this area. Federal law also provides more
limited rights for employees of the federal government. These federal laws do
not, on the other hand, apply to employees of state and local governments,
agricultural workers or domestic employees; any statutory protections those
workers have derive from state law.
The pattern is even more mixed in the area of wages and working conditions.
Federal law establishes minimum wages and overtime rights for most workers in
the private and public sectors; state and local laws may provide more expansive
rights, Similarly, federal law provides minimum workplace safety standards, but
allows the states to take over those responsibilities and to provide more
stringent standards.
Finally, both federal and state laws protect workers from employment
discrimination. In most areas these two bodies of law overlap; as an example,
federal law permits state to enact their own statutes barring discrimination on
the basis of race, gender, religion, national origin and age, so long as the
state law does not provide less protections than federal law would. Federal law,
on the other hand, preempts most state statutes that would bar employers from
discriminating against employees to prevent them from obtaining pensions or
other benefits or retaliating against them for asserting those rights.
Regulation of unions and organizing
The National Labor Relations Act gives private sector workers the right to
choose whether they wish to be represented by a union and establishes the
National Labor Relations Board to hold elections for that purpose. As originally
enacted in 1935, the NLRA, then also known as "the Wagner Act", makes it illegal
for employers to discriminate against workers because of their union membership
or retaliate against them for engaging in organizing campaigns or other
"concerted activities", to form "company unions", or to refuse to engage in
collective bargaining with the union that represented their employees.
The Taft-Hartley Act, passed in 1947, loosened some of the restrictions on
employers, changed NLRB election procedures, and added a number of new
limitations on unions. The Act, among other things, prohibits jurisdictional
strikes and secondary boycotts by unions, outlaws the "closed shop" and
authorizes individual states to pass "right to work laws", regulates pension and
other benefit plans established by unions and provides that federal courts have
jurisdiction to enforce collective bargaining agreements.
The United States Congress subsequently tightened those restrictions on unions
in the Labor Management Reporting and Disclosure Act of 1959, which also
regulates the internal affairs of all private sector unions, providing for
minimum standards for unions' internal disciplinary proceedings, federal
oversight for unions' elections of their own officers, and fiduciary standards
for union officers' use of union funds. Congress has since expanded the NLRB's
jurisdiction to health care institutions, with unique rules governing organizing
and strikes against those employers.
The NLRA does not, on the other hand, cover governmental employees, with the
exception of employees of the United States Postal Service, a quasi-public
entity. The Federal Labor Relations Act provides for much more limited rights
for employees of the federal government; Congress has, moreover, excluded a
number of these workers in the United States Department of Homeland Security and
elsewhere from even these limited protections
Federal law does not provide employees of state and local governments with the
right to organize or engage in union activities, except to the extent that the
United States Constitution protects their rights to freedom of speech and
freedom of association. The Constitution provides even less protection for
governmental employees' right to engage in collective bargaining: while it bars
public employers from retaliating against employees for forming a union, it does
not require those employers to recognize that union, much less bargain with it.
Most states provide public employees with limited statutory protections; a few
permit public employees to strike in support of their demands in some
circumstances. Some states, however, particularly in the South, make it illegal
for a governmental entity to enter into a collective bargaining agreement with a
union.
The NLRA does not cover agricultural or domestic employees. A few states have
enacted labor laws similar to the NLRA covering farm workers.
Finally, the NLRA does not cover employees in the railroad and airline
industries. Those workers are covered by the Railway Labor Act, first passed in
1926, then amended in 1936 to cover airline employees. The RLA creates a wholly
different structure for resolving labor disputes, requiring bargaining under
indirect governmental supervision and permitting strikes only in limited
circumstances.
The Norris-LaGuardia Act of 1932 outlawed the issuance of injunctions in labor
disputes by federal courts. While the Act does not prevent state courts from
issuing injunctions, it ended what some observers called "government by
injunction", in which the federal courts used injunctions to prevent unions from
striking, organizing and, in some cases, even talking to workers or entering
certain parts of a state. The Act also led, indirectly, to the end of the use of
anti-trust law to outlaw strikes by unions. Roughly half the states have enacted
their own version of the Norris-LaGuardia Act.
For the most part the NLRA and RLA displace state laws that attempt to regulate
the right to organize, to strike and to engage in collective bargaining. The
NLRB has exclusive jurisdiction to determine whether an employer has engaged in
an unfair labor practice and to decide what remedies should be provided. States
and local governments can, on the other hand, impose requirements when acting as
market participants, such as requiring that all contractors sign a project labor
agreement to avoid strikes when building a public works project, that they could
not if they were attempting to regulate those employers' labor relations
directly.
Regulation Of Wages, Benefits & Working Conditions
The Fair Labor Standards Act of 1938 establishes minimum wage and overtime
rights for most private sector workers, with a number of exemptions and
exceptions. Congress amended the Act in 1974 to cover governmental employees,
leading to a series of United States Supreme Court decisions in which the Court
first held that the law was unconstitutional, then reversed itself to permit the
FLSA to cover governmental employees.
The FLSA does not preempt state and local governments from providing greater
protections under their own laws. A number of states have enacted higher minimum
wages and extended their laws to cover workers who are excluded under the FLSA
or to provide rights that federal law ignores. Local governments have also
adopted a number of "living wage" laws that require those employers that
contract with them to pay higher minimum wages and benefits to their employees.
The federal government, along with many state governments, likewise require
employers to pay the prevailing wage, which typically reflects the standards
established by unions' collective bargaining agreements in the area, to workers
on public works projects.
The Employee Retirement Income Security Act establishes standards for the
funding and operation of pension and health care plans provided by employers to
their employees. ERISA preempts most state legislation that attempts to regulate
how such plans are administered and, to a great extent, what types of health
care coverage they provide. ERISA also preempts state law claims that an
employer discriminated against employees in order to prevent them from obtaining
the benefits they would have earned otherwise or to retaliate against them for
asserting their rights.
The Family and Medical Leave Act, passed in 1993, requires employers to provide
workers with twelve weeks of unpaid medical leave and continuing medical benefit
coverage in order to attend to certain medical conditions of close relatives or
themselves. Many states have comparable statutory provisions; some states have
offered greater protections.
The Occupational Safety and Health Act, signed into law in 1970 by President
Richard Nixon, creates specific standards for workplace safety. The Act has
spawned years of litigation by industry groups that have challenged the
standards limiting the amount of permitted exposure to chemicals such as
benzene. The Act also provides for protection for "whistleblowers" who complain
to governmental authorities about unsafe conditions while allowing workers the
right to refuse to work under unsafe conditions in certain circumstances.
The Act allows states to take over the administration of the OSHAct 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.
Employment Discrimination & Whistleblowers
While Congress passed laws barring racial discrimination by private employers in
1867, the Supreme Court's decision in the Civil Rights Cases made that Act a
dead letter for nearly a century. Congress adopted limited prohibitions against
racial discrimination by defense contractors during World War II, but no general
prohibition against employment discrimination until it passed Title VII of the
Civil Rights Act of 1964, which bars employment discrimination on the basis of
race, gender, national origin and religion. Congress amended that Act in 1972 to
cover governmental employers, in 1981 to outlaw employment discrimination on the
basis of pregnancy, and again in the Civil Rights Act of 1991 to overturn a
number of decisions by the Supreme Court limiting employees' rights.
Congress has also protected the rights of workers over forty years of age in the
Age Discrimination in Employment Act, passed in 1967, and the Americans with
Disabilities Act of 1990. The Immigration Reform and Control Act of 1986 also
provides narrow prohibitions against certain types of employment discrimination
based on immigration status.
Title VII encourages states to pass their own anti-discrimination laws; most
states outside the South have done so. A number of states and local governments
have also enacted statutes that expand on the rights that federal law offers,
either by offering greater remedies or broader protections, or have legislated
in areas that federal law does not cover, such as discrimination based on sexual
orientation or marital status.
The states and the federal government have also enacted a welter of laws to
protect whistleblowers; these statutes vary widely in what conduct is protected,
what procedures must be followed to enforce the law and what remedies are
provided. Public sector employees are also protected from retaliation by their
employers for some forms of whistle-blowing activities by the First Amendment to
the United States Constitution.
Job Security
While most state and federal laws start from the presumption that workers who
are not covered by a collective bargaining agreement or an individual employment
agreement are "at will" employees who can be fired without notice and for no
stated reason, state and federal laws prohibiting discrimination or protecting
the right to organize or engage in whistle-blowing activities modify that rule
by providing that discharge or other forms of discrimination are illegal if
undertaken on grounds specifically prohibited by law. In addition, a number of
states have modified the general rule that employment is at will by holding that
employees may, under that state's common law, have implied contract rights to
fair treatment by their employers.
Public employees in both federal and state government are also typically covered
by civil service systems that protect them from unjust discharge. Public
employees who have enough rights against unjustified discharge by their
employers may also acquire a property right in their jobs, which entitles them
in turn to additional protections under the due process clause of the Fourteenth
Amendment to the United States Constitution.
The Worker Adjustment and Retraining Notification Act, better known by its
acronym as the WARN Act, requires private sector employers to give sixty days
notice of large-scale layoffs and plant closures; it allows a number of
exceptions for unforeseen emergencies and other cases. Several states have
adopted more stringent requirements of their own.
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