United States labor law

{{main|History of labor law in the United States|Labor history of the United States}}

File:US Slave Free 1789-1861.gif, 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 1935 and 1974, and changing interpretations of the US Supreme Court.The National Labor Relations Act of 1935 to the last major statute Employee Retirement Income Security Act of 1974. C. L. Estlund, 'The Ossification of American Labor Law' (2002) [https://www.jstor.org/stable/1123792 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) [https://ssrn.com/abstract=3024584 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." However, laws regulated the rights of people at work and employers from colonial times on. Before the Declaration of Independence in 1776, the common law was either uncertain or hostile to labor rights.See JV Orth, Combination and conspiracy: a legal history of trade unionism, 1721–1906 (1992) Unions were classed as conspiracies, and potentially criminal.R v Journeymen-Taylors of Cambridge (1721) 8 Mod 10, 88 ER 9 It tolerated slavery and 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,C Tomlins, 'Reconsidering Indentured Servitude: European Migration and the Early American Labor Force, 1600–1775' (2001) [http://www.tandfonline.com/doi/abs/10.1080/00236560123269?journalCode=clah20 42 Labor History 5] 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 Court of King's Bench held in Somerset v Stewart that slavery was to be presumed unlawful at common law.(1772) [http://www.commonlii.org/int/cases/EngR/1772/57.pdf 98 ER 499] Charles Stewart from Boston, Massachusetts had bought James Somerset as a slave and taken him to England. With the help of abolitionists, Somerset escaped and sued for a writ of habeas corpus (that "holding his body" had been unlawful). Lord Mansfield, after declaring he should "let justice be done whatever be the consequence", held that slavery was "so odious" that nobody could take "a slave by force to be sold" for any "reason whatever". This was a major grievance of southern slave owning states, leading up to the American Revolution in 1776.AW Blumrosen, 'The Profound Influence in America of Lord Mansfield's Decision in Somerset v Stuart' (2007) [http://heinonline.org/HOL/LandingPage?handle=hein.journals/twlr13&div=28&id=&page= 13 Texas Wesleyan Law Review 645] The 1790 United States census recorded 694,280 slaves (17.8 per cent) of a total 3,893,635 population. After independence, the British Empire halted the Atlantic slave trade in 1807,Slave Trade Act 1807 and abolished slavery in its own territories, by paying off slave owners in 1833.The Slavery Abolition Act 1833 distributed around £20 million, around $3 billion in 2017 dollars. See the [https://www.ucl.ac.uk/lbs/ UCL Legacies of British Slave-ownership] page. In the US, northern states progressively abolished slavery. However, southern states did not. In Dred Scott v. Sandford the Supreme Court held the federal government could not regulate slavery, and also that people who were slaves had no legal rights in court.[http://www.worldlii.org/us/cases/federal/USSC/1856/9.html 60 US 393] (1857) The American Civil War was the result. President Lincoln's Emancipation Proclamation in 1863 made abolition of slavery a war aim, and the Thirteenth Amendment of 1865 enshrined the abolition of most forms of slavery in the Constitution. Former slave owners were further prevented from holding people in involuntary servitude for debt by the Peonage Act of 1867.See also J. R. Commons, Principles of Labor Legislation (1916) [https://archive.org/stream/cu31924020748095#page/n55/mode/2up/search/cambridge ch II, 38–40] In 1868, the Fourteenth Amendment ensured equal access to justice, and the Fifteenth Amendment required that everyone would have the right to vote. The Civil Rights Act of 1875 was also meant to ensure equality in access to housing and transport, but in the Civil Rights Cases, the Supreme Court found it was "unconstitutional", ensuring that racial segregation would continue. In dissent, Harlan J said the majority was leaving people "practically at the mercy of corporations".Civil Rights Cases, [http://www.worldlii.org/us/cases/federal/USSC/1883/182.html 109 US 3] (1883) Even if people were formally free, they remained factually dependent on property owners for work, income and basic services.

{{quote box|bgcolor=#c6dbf7|width=25em|salign=right|quote=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. |source= —Abraham Lincoln, First Annual Message ([https://millercenter.org/the-presidency/presidential-speeches/december-3-1861-first-annual-message 1861])}}

Like slavery, common law repression of labor unions was slow to be undone.S Perlman, A History of Trade Unionism in the United States (1922) In 1806, Commonwealth v. Pullis held that a Philadelphia shoemakers union striking for higher wages was an illegal "conspiracy",3 Doc Hist 59 (1806) even though corporations—combinations of employers—were lawful. Unions still formed and acted. The first federation of unions, the National Trades Union was established in 1834 to achieve a 10 hour working day, but it did not survive the soaring unemployment from the financial Panic of 1837. In 1842, Commonwealth v. Hunt, held that Pullis was wrong, after the Boston Journeymen Bootmakers' Society struck for higher wages.45 Mass. 111, 4 Metcalf 111 (1842) The first instance judge said unions would "render property insecure, and make it the spoil of the multitude, would annihilate property, and involve society in a common ruin". But in the Massachusetts Supreme Judicial Court, 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.See EE Witte, 'Early American Labor Cases' (1926) [https://www.jstor.org/stable/789460 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) [https://www.jstor.org/stable/1328648 35 Harvard Law Review 393]. W.. Holt, 'Labor Conspiracy Cases in the United States, 1805–1842: Bias and Legitimation in Common Law Adjudication' (1984) [http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1913&context=ohlj 22 Osgoode Hall Law Journal 591]. 'Tortious Interference with Contractual Relations in the Nineteenth Century' (1980) 93 Harvard Law Review 1510. 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,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. 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 railroads and telegraphs from 1883 led to the foundation of the American Federation of Labor in 1886, with the simple aim of improving workers wages, housing and job security "here and now".See U.S. Congress, Senate, Final Report and Testimony Submitted to Congress by the Commission on Industrial Relations (Government Printing Office, 1916) [http://historymatters.gmu.edu/d/5757/ 64th Cong., 1st sess., S. Doc. 415, 2, 1526–1529] It also aimed to be the sole federation, to create a strong, unified labor movement. Business reacted with litigation. The Sherman Antitrust Act of 1890, which was intended to sanction business cartels acting in restraint of trade,See TW Hazlett, 'The Legislative History of the Sherman Act Re-examined' (1992) [https://www.proquest.com/docview/1297279202?pq-origsite=gscholar 30 Economic Inquiry 263], 266 and H Hovenkamp, 'Labor Conspiracies in American Law, 1880–1930' (1988) [http://heinonline.org/HOL/Page?handle=hein.journals/tlr66&div=45&g_sent=1&collection=journals 66 Texas Law Review 919] was applied to labor unions. In 1895, the US Supreme Court in In re Debs affirmed an injunction, based on the Sherman Act, against the striking workers of the Pullman Company. The strike leader Eugene Debs was put in prison.64 Fed 724 (CC Ill 1894), {{ussc|158|564|1895}} imposed an injunction on the striking workers of the Pullman Company, leading to Eugene Debs being imprisoned. See the [https://www.youtube.com/watch?v=w82pFvUq3o8&t=323s Documentary by Bernie Sanders] (1979) In notable dissent among the judiciary,See also Oklahoma v. Coyle, 1913 OK CR 42, 8 Okl.Cr. 686, 130 P. 316 per Henry Marshall Furman Holmes J argued in Vegelahn v. Guntner that any union taking collective action in good faith was lawful: even if strikes caused economic loss, this was equally legitimate as economic loss from corporations competing with one another.167 Mass. 92 (1896) See also Plant v. Woods, 176 Mass 492, 57 NE 1011 (1900) Holmes J was elevated to the US Supreme Court, but was again in a minority on labor rights. In 1905, Lochner v. New York held that New York limiting bakers' working day to 60 hours a week violated employers' freedom of contract. The Supreme Court majority supposedly unearthed this "right" in the Fourteenth Amendment, that no State should "deprive any person of life, liberty, or property, without due process of law."{{ussc|periods=no|198|45|1905}} With Harlan J, Holmes J dissented, arguing that the "constitution is not intended to embody a particular economic theory" but is "made for people of fundamentally differing views". On questions of social and economic policy, courts should never declare legislation "unconstitutional". The Supreme Court, however, accelerated its attack on labor in Loewe v. Lawlor, holding that triple damages were payable by a striking union to its employers under the Sherman Act of 1890.{{ussc|208|274|1908}} This line of cases was finally quashed by the 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".Now 15 USC §17

File:Second Bill of Rights Speech.ogv 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 Clayton Act, and abuses of employers documented by the Commission on Industrial Relations from 1915, the Supreme Court struck labor rights down as unconstitutional, leaving management powers virtually unaccountable.On the "science" of management that developed, see FW Taylor, The Principles of Scientific Management ([https://archive.org/stream/principlesofscie00taylrich#page/n5/mode/2up 1911]). Contrast LD Brandeis, 'The Fundamental Cause of Industrial Unrest' (1916) vol 8, 7659–7660 from the US Commission on Industrial Relations, Final Report and Testimony ([https://archive.org/details/finalreportofcom00unitiala Government Printing Office 1915]) In this Lochner era, the Courts held that employers could force workers to not belong to labor unions,Adair v. United States 208 US 161 (1908) on yellow-dog contracts being banned in the Erdman Act of 1898 §10 for railroads, not reversed until the Norris-LaGuardia Act. Also Coppage v. Kansas 236 US 1 (1915) Holmes J, Hughes J and Day J dissenting. that a minimum wage for women and children was void,Adkins v. Children's Hospital, 261 US 525 (1923) that states could not ban employment agencies charging fees for work,Adams v. Tanner, 244 US 590 (1917) that workers could not strike in solidarity with colleagues of other firms,Duplex Printing Press Co. v. Deering, 254 US 443 (1921) and even that the federal government could not ban child labor.Hammer v. Dagenhart, 247 US 251 (1918) on the Keating-Owen Act of 1916. Bailey v. Drexel Furniture Co., 259 US 20 (1922) on federal tax. It also imprisoned socialist activists, who opposed the fighting in World War I, meaning that Eugene Debs ran as the Socialist Party's candidate for president in 1920 from prison.See Debs v. United States, 249 US 211 (1919) Critically, the courts held state and federal attempts to create Social Security to be unconstitutional.State Board of Control v. Buckstegge, 158 Pac 837, 842 (1916) Arizona Supreme Court striking down a new state pension law. Railroad Retirement Board v. Alton Railroad Co., 295 US 330 (1935) striking down a compulsory contributory pension scheme for rail workers. Because they were unable to save in safe public pensions, millions of people bought shares in corporations, causing massive growth in the stock market.See GC Means, 'The Separation of Ownership and Control in American Industry' (1931) [https://www.jstor.org/stable/1883922 46(1) The Quarterly Journal of Economics 68] and LD Brandeis, Other People's Money and How the Bankers Use It'' (1914) Because the Supreme Court precluded regulation for good information on what people were buying, 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 Franklin D. Roosevelt for president in 1932, who promised a "New Deal". Government committed to create full employment and a system of social and economic rights enshrined in federal law.See FD Roosevelt, Campaign Address on Progressive Government at the Commonwealth Club in San Francisco, California ([https://en.wikisource.org/wiki/Campaign_Address_on_Progressive_Government_at_the_Commonwealth_Club_in_San_Francisco,_California 1932]) written by AA Berle. But despite the Democratic Party's overwhelming electoral victory, the Supreme Court continued to strike down legislation, particularly the National Industrial Recovery Act of 1933, which regulated enterprise in an attempt to ensure fair wages and prevent unfair competition.A.L.A. Schechter Poultry Corp. v. United States, 295 US 495 (1935) Finally, after Roosevelt's second overwhelming victory in 1936, and Roosevelt's threat to create more judicial positions if his laws were not upheld, one Supreme Court judge switched positions. In West Coast Hotel Co. v. Parrish the Supreme Court found that minimum wage legislation was constitutional,300 US 379 (1937) letting the New Deal go on. In labor law, the National Labor Relations Act of 1935 guaranteed every employee the right to unionize, collectively bargain for fair wages, and take collective action, including in solidarity with employees of other firms. The Fair Labor Standards Act of 1938 created the right to a minimum wage, and time-and-a-half overtime pay if employers asked people to work over 40 hours a week. The 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.See also Copeland "Anti-kickback" Act of 1934, 18 USC §874 and McNamara–O'Hara Service Contract Act of 1965 wage rates to be paid as prevail in the locality. 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."Franklin Delano Roosevelt, Eleventh State of the Union Address ([https://en.wikisource.org/wiki/Franklin_Delano_Roosevelt%27s_Eleventh_State_of_the_Union_Address 1944])

File:Remarks upon Signing the Civil Rights Bill (July 2, 1964) Lyndon Baines Johnson.ogv 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 New Deal had created a minimum safety net of labor rights, and aimed to enable fair pay through collective bargaining, a Republican dominated Congress revolted when Roosevelt died. Against the veto of President Truman, the Taft–Hartley Act of 1947 limited the right of labor unions to take solidarity action, and enabled states to ban unions requiring all people in a workplace becoming union members. A series of Supreme Court decisions, held the National Labor Relations Act of 1935 not only created minimum standards, but stopped or "preempted" states enabling better union rights, even though there was no such provision in the statute.See San Diego Building Trades Council v. Garmon 359 US 236 (1959) but contrast Chamber of Commerce v. Brown, [http://www.worldlii.org/us/cases/federal/USSC/2008/22.html 522 US 60] (2008) where Breyer J and Ginsburg J dissented. Labor unions became extensively regulated by the Labor Management Reporting and Disclosure Act of 1959. Post-war prosperity had raised people's living standards, but most workers who had no union, or job security rights remained vulnerable to unemployment. As well as the crisis triggered by Brown v. Board of Education,Brown v. Board of Education of Topeka, 347 US 483 (1954) and the need to dismantle segregation, job losses in agriculture, particularly among African Americans was a major reason for the civil rights movement, culminating in the March on Washington for Jobs and Freedom led by Martin Luther King Jr. Although Roosevelt's Executive Order 8802 of 1941 had prohibited racial discrimination in the national defense industry, people still suffered discrimination because of their 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.

File:Unions are my Family - Bernie Sanders.webm became the most successful Democratic Socialist presidential candidate since Eugene Debs, winning 22 states and 43.1% of votes in the 2016 Democratic primary. He co-authored the 2016 Democratic platform,See 2016 Democratic Party Platform ([https://www.demconvention.com/wp-content/uploads/2016/07/Democratic-Party-Platform-7.21.16-no-lines.pdf July 21, 2016] {{webarchive|url=https://web.archive.org/web/20161110225904/https://www.demconvention.com/wp-content/uploads/2016/07/Democratic-Party-Platform-7.21.16-no-lines.pdf |date=November 10, 2016 }}) before Hillary Clinton lost the 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 Employee Retirement Income Security Act of 1974 created rights to well regulated occupational pensions, although only where an employer had already promised to provide one: this usually depended on collective bargaining by unions. But in 1976, the Supreme Court in Buckley v. Valeo held anyone could spend unlimited amounts of money on political campaigns, as a part of the First Amendment right to "freedom of speech". After the Republican 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,NLRB v. Yeshiva University, [http://www.worldlii.org/us/cases/federal/USSC/1980/24.html 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 allowing employees to be searched at work,Brown v. Hotel and Restaurant Employees, 468 US 491 (1984) 5 to 4 on the NLRA of 1935 and eliminating employee rights to sue for medical malpractice in their own health care.Mertens v. Hewitt Associates, 508 US 248 (1993) 5 to 4 under ERISA 1974. 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,e.g. the Dunlop Report of 1994, Workplace Democracy Act of 1999, Employee Free Choice Act, Paycheck Fairness Act, Equality Act of 2015 and the United States began to fall behind most other developed countries in labor rights.See Z. Adams, L. Bishop and S. Deakin, CBR Labour Regulation Index (Dataset of 117 Countries) (Cambridge, Centre for Business Research [https://www.repository.cam.ac.uk/bitstream/handle/1810/256566/cbr-lri-117-countries-codebook-and-methodology.pdf?sequence=1&isAllowed=y 2016]) 761, United States of America

In relation to federal government contracting, Executive Order 13673, entitled Fair Pay and Safe Workplaces, was issued by President Barack Obama on 31 July 2014. It contained "new requirements designed to increase efficiency and cost savings in the Federal contracting process",[https://www.osha.gov/laws-regs/federalregister/2016-08-25-0 Guidance for Executive Order 13673, "Fair Pay and Safe Workplaces"; Final Guidance], accessed 10 October 2022 specifically referring to "contracting with responsible sources who comply with labor laws".[https://en.wikisource.org/wiki/Executive_Order_13673 Executive Order 13673], accessed 6 November 2022 The Occupational Safety and Health Administration published guidance on 25 August 2016. The order listed 14 federal laws which were defined as "labor laws", and extended coverage to "equivalent state laws". A breach of any of these laws during the three year period preceding the contract award was treated as non-compliance; for a contract valued over $500,000, contracting officers were to consider such violations, and any corrective actions taken by the business concerned, in determining contract award. Similar provisions were built into sub-contracting arrangements. To support compliance, each federal agency was required to appoint a "Labor Compliance Advisor".{{rp|Sec. 3}} The order was revoked by President Donald Trump on 27 March 2017 under Executive Order 13782.[https://en.wikisource.org/wiki/Executive_Order_13782 Executive Order 13782], accessed 6 November 2022

{{See also|UK labour law|Canadian labour law|Australian labour law|European labour law|German labour law|French labour law|Indian labour law|South African labour law}}

File:Eleanor Roosevelt UDHR.jpg 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".UDHR 1948 [https://en.wikisource.org/wiki/Universal_Declaration_of_Human_Rights art 17]]]

Contracts between employees and employers (mostly corporations) usually begin an employment relationship, but are often not enough for a decent livelihood. Because individuals lack bargaining power, especially against wealthy corporations, labor law creates legal rights that override arbitrary market outcomes. Historically, the law faithfully enforced property rights and freedom of contract on any terms,See Lochner v. New York [http://www.worldlii.org/us/cases/federal/USSC/1905/100.html 198 US 45] (1905) whether or not this was inefficient, exploitative and unjust. In the early 20th century, as more people favored the introduction of democratically determined economic and social rights over rights of property and contract, state and federal governments introduced law reform. First, the Fair Labor Standards Act of 1938 created a minimum wage (now $7.25 at federal level, higher in 28 states) and overtime pay of one and a half times. Second, the Family and Medical Leave Act of 1993 creates very limited rights to take unpaid leave. In practice, good employment contracts improve on these minimums. Third, while there is no right to an occupational pension or other benefits, the Employee Retirement Income Security Act of 1974 ensures employers guarantee those benefits if they are promised. Fourth, the Occupational Safety and Health Act 1970 demands a safe system of work, backed by professional inspectors. Individual states are often empowered to go beyond the federal minimum, and function as laboratories of democracy in social and economic rights, where they have not been constrained by the US Supreme Court.

{{Slist worker scope}}

{{see also|Work (human activity)#Workers|Employee|Inequality of bargaining power}}

Common law, state and federal statutes usually confer labor rights on "employees", but not people who are autonomous and have sufficient bargaining power to be "independent contractors". In 1994, the Dunlop Commission on the Future of Worker-Management Relations: Final Report recommended a unified definition of an employee under all federal labor laws, to reduce litigation, but this was not implemented. As it stands, Supreme Court cases have stated various general principles, which will apply according to the context and purpose of the statute in question. In NLRB v. Hearst Publications, Inc.,{{ussc|322|111|1944}} newsboys who sold newspapers in Los Angeles claimed that they were "employees", so that they had a right to collectively bargain under the National Labor Relations Act of 1935. The newspaper corporations argued the newsboys were "independent contractors", and they were under no duty to bargain in good faith. The Supreme Court held the newsboys were employees, and common law tests of employment, particularly the summary in the Restatement of the Law of Agency, Second §220, were no longer appropriate. They were not "independent contractors" because of the degree of control employers had. But the National Labor Relations Board could decide itself who was covered if it had "a reasonable basis in law." Congress reacted, first, by explicitly amending the NLRA §2(1) so that independent contractors were exempt from the law while, second, disapproving that the common law was irrelevant. At the same time, the Supreme Court decided United States v. Silk,{{ussc|331|704|1947}} holding that "economic reality" must be taken into account when deciding who is an employee under the Social Security Act of 1935. This meant a group of coal loaders were employees, having regard to their economic position, including their lack of bargaining power, the degree of discretion and control, and the risk they assumed compared to the coal businesses they worked for. By contrast, the Supreme Court found truckers who owned their own trucks, and provided services to a carrier company, were independent contractors.See also Goldberg v. Whitaker House Cooperative, Inc, [http://www.worldlii.org/us/cases/federal/USSC/1961/71.html 366 US 28] (1961), on homeworkers making 'knitted, crocheted, and embroidered goods of all kinds.' Thus, it is now accepted that multiple factors of traditional common law tests may not be replaced if a statute gives no further definition of "employee" (as is usual, e.g., the Fair Labor Standards Act of 1938, Employee Retirement Income Security Act of 1974, Family and Medical Leave Act of 1993). Alongside the purpose of labor legislation to mitigate inequality of bargaining power and redress the economic reality of a worker's position, the multiple factors found in the Restatement of Agency must be considered, though none is necessarily decisive.Nationwide Mutual Insurance Co. v. Darden, {{ussc|503|318|1992}} employee under ERISA, rejecting two-prongs of the Fourth Circuit's substitute test, based on expectations and reliance.

File:Michael Mc Nelis, 8 years old, a newsboy. This boy has just recovered from his second attack of pneumonia. Was found... - NARA - 523323.jpg" in L.A. were held in the leading case, NLRB v. Hearst Publications, Inc., to be employees with labor rights, not independent contractors, on account of their unequal bargaining power.{{ussc|322|111|1944}}, confirmed in United States v. Silk, {{ussc|331|704|1947}} and Nationwide Mutual Insurance Co. v. Darden, {{ussc|503|318|1992}}]]

Common law agency tests of who is an "employee" take account of an employer's control, if the employee is in a distinct business, degree of direction, skill, who supplies tools, length of employment, method of payment, the regular business of the employer, what the parties believe, and whether the employer has a business.Restatement of the Law of Agency, Second §220 and Community for Creative Non-Violence v. Reid, 490 US 730 (1989) Some statutes also make specific exclusions that reflect the common law, such as for independent contractors, and others make additional exceptions. In particular, the National Labor Relations Act of 1935 §2(11) exempts supervisors with "authority, in the interest of the employer", to exercise discretion over other employees' jobs and terms. This was originally a narrow exception. Controversially, in NLRB v. Yeshiva University,{{ussc|444|672|1980}} a 5 to 4 majority of the Supreme Court held that full time professors in a university were excluded from collective bargaining rights, on the theory that they exercised "managerial" discretion in academic matters. The dissenting judges pointed out that management was actually in the hands of university administration, not professors. In NLRB v. Kentucky River Community Care, Inc.,{{ussc|532|706|2001}} the Supreme Court held, again 5 to 4, that six registered nurses who exercised supervisory status over others fell into the "professional" exemption. Stevens J, for the dissent, argued that if "the 'supervisor' is construed too broadly", without regard to the Act's purpose, protection "is effectively nullified".cf Clackamas Gastroenterology Associates v. Wells, {{ussc|538|440|2003}} a majority of the Supreme Court held four physician shareholders could potentially be "employees" under the Americans with Disabilities Act of 1990. Ginsburg J, joined by Breyer J dissenting on reasoning, held it was clear that they were. Similarly, under the Fair Labor Standards Act of 1938, in Christopher v. SmithKline Beecham Corp.,[https://www.law.cornell.edu/supremecourt/text/11-204 567 US __] (2012) the Supreme Court held 5 to 4 that a traveling medical salesman for GSK of four years was an "outside salesman", and so could not claim overtime. People working unlawfully are often regarded as covered, so as not to encourage employers to exploit vulnerable employees. For instance in Lemmerman v. A.T. Williams Oil Co.,[https://casetext.com/case/lemmerman-v-williams-oil-co 350 S.E.2d 83] (1986) 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,{{ussc|535|137|2002}} 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.See International Labour Organization, Freedom of Association and Protection of the Right to Organise Convention, 1948 [http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312232 C087] and Right to Organize and Collective Bargaining Convention, 1949 [http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312243:NO C098]

File:UberTaxiProtestChicago.jpg held that Uber drivers are controlled and sanctioned by the company and are therefore not self-employed.{{cite news | first=Alex | last=Hern | title=Uber driver declared employee as the company loses another ruling | date=September 11, 2015 |

url=https://www.theguardian.com/technology/2015/sep/11/uber-driver-employee-ruling | work=The Guardian}}]]

Common law tests were often important for determining who was, not just an employee, but the relevant employers who had "vicarious liability". Potentially there can be multiple, joint-employers could who share responsibility, although responsibility in tort law can exist regardless of an employment relationship. In Ruiz v. Shell Oil Co,[http://www.worldlii.org/us/cases/federal/USCA5/1969/758.html 413 F.2d 310] (1969) the Fifth Circuit held that it was relevant which employer had more control, whose work was being performed, whether there were agreements in place, who provided tools, had a right to discharge the employee, or had the obligation to pay.See also, Zheng v. Liberty Apparel Co, 335 F3d 61 (2003) Second Circuit, Cabranes J finding joint employment. In Local 217, Hotel & Restaurant Employees Union v. MHM Inc[http://www.worldlii.org/us/cases/federal/USCA2/1992/908.html 976 F.2d 805] (1992) the question arose under the Worker Adjustment and Retraining Notification Act of 1988 whether a subsidiary or parent corporation was responsible to notify employees that the hotel would close. The Second Circuit held the subsidiary was the employer, although the trial court had found the parent responsible while noting the subsidiary would be the employer under the NLRA. Under the Fair Labor Standards Act of 1938, 29 USC §203(r), any "enterprise" that is under common control will count as the employing entity. Other statutes do not explicitly adopt this approach, although the NLRB has found an enterprise to be an employer if it has "substantially identical management, business purpose, operation, equipment, customers and supervision."Advance Electric, 268 NLRB 1001 (1984) In South Prairie Const. Co. v. Local No. 627, International Union of Operating Engineers, AFL-CIO,[http://www.worldlii.org/us/cases/federal/USSC/1976/88.html 425 US 800] (1976) the Supreme Court found that the DC Circuit had legitimately identified two corporations as a single employer given that they had a "very substantial qualitative degree of centralized control of labor",Local No International Union of Operating Engineers v. National Labor Relations Board, [http://www.worldlii.org/us/cases/federal/USCADC/1975/366.html 518 F.2d 1040] (1975) but that further determination of the relevant bargaining unit should have been remitted to the NLRB. When employees are hired through an agency, it is likely that the end-employer will be considered responsible for statutory rights in most cases, although the agency may be regarded as a joint employer.e.g. Castillo v. Case Farms of Ohio, 96 F Supp. 2d 578 (1999) an employer who used an employment agency called "American Temp Corps", was responsible for how migrant farm workers hired in Texas to work in an Ohio chicken factory, were packed into sub-human transport and living conditions in violation of the Migrant and Seasonal Agricultural Workers Protection Act of 1983.

{{Slist employment contract}}

{{see also|United States contract law}}

When people start work, there will almost always be a contract of employment that governs the relationship of employee and the employing entity (usually a corporation, but occasionally a human being).If there is no contract (written, oral, or by conduct) a quantum meruit claim for restitution can be available. A "contract" is an agreement enforceable in law. Very often it can be written down, or signed, but an oral agreement is also a fully enforceable contract. Because employees have unequal bargaining power compared to almost all employing entities, most employment contracts are "standard form".See F Kessler, 'Contracts of Adhesion—Some Thoughts About Freedom of Contract' (1943) [https://www.jstor.org/stable/1117230 43(5) Columbia Law Review 629] Most terms and conditions are photocopied or reproduced for many people. Genuine negotiation is rare, unlike in commercial transactions between two business corporations. This has been the main justification for enactment of rights in federal and state law. The federal right to collective bargaining, by a labor union elected by its employees, is meant to reduce the inherently unequal bargaining power of individuals against organizations to make collective agreements.National Labor Relations Act 1935 §1, [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section151&num=0&edition=prelim 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." The federal right to a minimum wage, and increased overtime pay for working over 40 hours a week, was designed to ensure a "minimum standard of living necessary for health, efficiency, and general well-being of workers", even when a person could not get a high enough wage by individual bargaining.Fair Labor Standards Act 1938, [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section202&num=0&edition=prelim 29 USC §202] These and other rights, including family leave, rights against discrimination, or basic job security standards, were designed by the United States Congress and state legislatures to replace individual contract provisions. Statutory rights override even an express written term of a contract, usually unless the contract is more beneficial to an employee. Some federal statutes also envisage that state law rights can improve upon minimum rights. For example, the Fair Labor Standards Act of 1938 entitles states and municipalities to set minimum wages beyond the federal minimum. By contrast, other statutes such as the National Labor Relations Act of 1935, the Occupational Safety and Health Act of 1970,e.g. Gade v. National Solid Wastes Management Association, [http://www.worldlii.org/us/cases/federal/USSC/1992/86.html 505 US 88] (1992) holding 5 to 4 that OSHA 1970 preempted Illinois state law that improved training and handling hazardous waste materials. and the Employee Retirement Income Security Act of 1974,e.g. Ingersoll-Rand Co. v. McClendon, [http://www.worldlii.org/us/cases/federal/USSC/1990/159.html 498 US 133] (1990) holding 6 to 3 that 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. have been interpreted in a series of contentious judgments by the US Supreme Court to "preempt" state law enactments.See generally B. I. Sachs, 'Despite Preemption: Making Labor Law in Cities and States' (2011) [https://ssrn.com/abstract=1788911 124 Harvard Law Review 1153] These interpretations have had the effect to "stay experimentation in things social and economic" and stop states wanting to "serve as a laboratory" by improving labor rights.cf New State Ice Co. v. Liebmann, 285 US 262 (1932) per 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." Where minimum rights do not exist in federal or state statutes, principles of contract law, and potentially torts, will apply.

File:Ecrivains consult - Texte 4 mains.jpg.JI Case Co v. National Labor Relations Board [http://www.worldlii.org/us/cases/federal/USSC/1944/39.html 321 US 322] (1944)]]

Aside from terms in oral or written agreements, terms can be incorporated by reference. Two main sources are collective agreements and company handbooks. In JI Case Co v. National Labor Relations Board an employing corporation argued it should not have to bargain in good faith with a labor union, and did not commit an unfair labor practice by refusing, because it had recently signed individual contracts with its employees.[http://www.worldlii.org/us/cases/federal/USSC/1944/39.html 321 US 322] (1944) The US Supreme Court held unanimously that the "very purpose" of collective bargaining and the National Labor Relations Act 1935 was "to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group". Terms of collective agreements, to the advantage of individual employees, therefore supersede individual contracts. Similarly, if a written contract states that employees do not have rights, but an employee has been told they do by a supervisor, or rights are assured in a company handbook, they will usually have a claim.See McLain v. Great American Insurance Co, 208 Cal. App. 3d 1476 (1989) holding the parol evidence presumption will rarely apply to employment. For example, in Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc. the Supreme Court of Connecticut held that a promise in a handbook that an employee could be dismissed only for a good reason (or "just cause") was binding on the employing corporation. Furthermore, an employer had no right to unilaterally change the terms.662 A2d 89 (1995) Most other state courts have reached the same conclusion, that contracts cannot be altered, except for employees' benefit, without new consideration and true agreement.e.g. Demasse v. ITT Corp, 984 P2d 1138 (1999) in the Arizona Supreme Court By contrast, a slight majority on the California Supreme Court, appointed by Republican governors, held in Asmus v. Pacific Bell that a company policy of indefinite duration can be altered after a reasonable time with reasonable notice, if it affects no vested benefits.[https://scholar.google.com/scholar_case?q=Asmus+v+Pacific+Bell&hl=en&as_sdt=2006&case=5124554271174185010&scilh=0 999 P2d 71] (2000) The four dissenting judges, appointed by Democratic governors, held this was a "patently unfair, indeed unconscionable, result—permitting an employer that made a promise of continuing job security ... to repudiate that promise with impunity several years later". In addition, a basic term of good faith which cannot be waived, is implied by common law or equity in all states. This usually demands, as a general principle that "neither party shall do anything, which will have the effect of destroying or injuring the right of the other party, to receive the fruits of the contract".See Kirke La Shelle Company v. The Paul Armstrong Company et al 263 NY 79 (1933) and see Restatement (Second) of Contracts §205 The term of good faith persists throughout the employment relationship. It has not yet been used extensively by state courts, compared to other jurisdictions. The Montana Supreme Court has recognized that extensive and even punitive damages could be available for breach of an employee's reasonable expectations.Stark v. Circle K Corp, 230 Mont 468, [https://casetext.com/case/stark-v-circle-k-corporation 751 P2d 162] (1988) However others, such as the California Supreme Court limit any recovery of damages to contract breaches, but not damages regarding the manner of termination.See Foley v. Interactive Data Corp, [http://scocal.stanford.edu/opinion/foley-v-interactive-data-corp-28525 765 P2d 373] (1988) By contrast, in the United Kingdom the requirement for "good faith"This is also referred to as "mutual trust and confidence". See Eastwood v. Magnox Electric plc [2004] [http://www.bailii.org/uk/cases/UKHL/2004/35.html UKHL 35], per Lord Steyn has been found to limit the power of discharge except for fair reasonsSee Wilson v. Racher [1974] ICR 428 (but not to conflict with statuteJohnson v. Unisys Limited [2001] [http://www.bailii.org/uk/cases/UKHL/2001/13.html UKHL 13]), in Canada it may limit unjust discharge also for self-employed persons,Bhasin v. Hrynew [2014] [http://www.canlii.org/en/ca/scc/doc/2014/2014scc71/2014scc71.html SCR 494] and in Germany it can preclude the payment of wages significantly below average.Bürgerliches Gesetzbuch [http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0417 §138]. See also Italian Constitution, art 36

Finally, it was traditionally thought that arbitration clauses could not displace any employment rights, and therefore limit access to justice in public courts.e.g. Alexander v. Gardner-Denver Co., {{ussc|415|36|1974}} state policy favoring arbitration, but arbitrator decision can be reviewed de novo on employment rights. However, in 14 Penn Plaza LLC v. Pyett,{{ussc|556|247|2009}} 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.See also AT&T Mobility LLC v. Concepcion, {{ussc|563|333|2011}} 5 to 4, binding arbitration can be imposed in class action cases for employment and consumer rights

{{Slist wage}}

{{Main|Fair Labor Standards Act|Minimum wage in the US|List of U.S. minimum wages|Executive pay in the US|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.On economic and political theory, see J. S. Mill, Principles of Political Economy (1848) [http://oll.libertyfund.org/titles/101#Mill_0199_1672 Book V, ch XI, §§9–11] and generally Shelley v. Kraemer, [http://www.worldlii.org/us/cases/federal/USSC/1948/63.html 334 US 1] (1948) Today, the Fair Labor Standards Act of 1938 aims to create a national minimum wage, and a voice at work, especially through collective bargaining should achieve fair wages. A growing body of law also regulates executive pay, although a system of "maximum wage" regulation, for instance by the former Stabilization Act of 1942, is not currently in force. Historically, the law actually suppressed wages, not of the highly paid, by ordinary workers. For example, in 1641 the Massachusetts Bay Colony legislature (dominated by property owners and the official church) required wage reductions, and said rising wages "tende to the ruin of the Churches and the Commonwealth".Massachusetts Bay Colony Records (1641) vol I, 223. See also J. R. Commons, History of Labor in the United States (Macmillan 1918) [https://archive.org/stream/historyoflabouri01commuoft#page/50/mode/2up vol I, ch II, 50] In the early 20th century, democratic opinion demanded everyone had a minimum wage, and could bargain for fair wages beyond the minimum. But when states tried to introduce new laws, the 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".Adkins v. Children's Hospital, [www.worldlii.org/us/cases/federal/USSC/1923/78.html 261 US 525] (1923) per Taft CJ (dissenting). The majority held a minimum wage passed by Congress for young people and women in Washington, D.C. was unconstitutional. Continued in Murphy v. Sardell, [https://casetext.com/case/murphy-v-sardell 269 US 530] (1925) wage laws for young people struck down, Brandeis J dissenting and Holmes J objecting.

File:Timeline of federal minimum hourly wage for the United States (including inflation-adjusted). Congressional Research Service.gif federal minimum wage has declined by 46% since February 1968. Lower line is nominal dollars. Top line is inflation-adjusted.{{cite web|url=https://crsreports.congress.gov/product/pdf/R/R43792|title=State Minimum Wages: An Overview|date=March 2, 2023|author=Congressional Research Service}} Chart on page 3.[https://fred.stlouisfed.org/graph/?graph_id=529071 FRED Graph]. Using U.S. Department of Labor data. [https://fred.stlouisfed.org/series/FEDMINNFRWG Federal Minimum Hourly Wage for Nonfarm Workers for the United States]. Inflation adjusted (by FRED) via the [https://fred.stlouisfed.org/series/CPIAUCSL 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.]]

After the Wall Street Crash, and the New Deal with the election of Franklin D. Roosevelt, the majority in the US Supreme Court was changed. In West Coast Hotel Co. v. Parrish Hughes CJ held (over four dissenters still arguing for 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.[http://www.worldlii.org/us/cases/federal/USSC/1937/73.html 300 US 379] (1937) This ended the "Lochner era", and Congress enacted the Fair Labor Standards Act of 1938.United States v. Darby Lumber Co, [http://www.worldlii.org/us/cases/federal/USSC/1941/49.html 312 US 100] (1941) dismissed a challenge to the FLSA 1938 being constitutional. Under §202(a) the federal minimum wage aims to ensure a "standard of living necessary for health, efficiency and general well being".FLSA 1938, [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section202&num=0&edition=prelim 29 USC §202(a)] 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.{{Cite web|url=https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section207&num=0&edition=prelim|title=[USC02] 29 USC 207: Maximum hours|website=uscode.house.gov}} Nobody may pay lower than the minimum wage, but under §218(a) states and municipal governments may enact higher wages.[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section218&num=0&edition=prelim 29 USC §218(a)]. This is frequently done to reflect local productivity and requirements for decent living in each region.See the California Labor Code [http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=LAB&division=2.&title=&part=4.&chapter=1.&article= §1182.12], requiring a $10 per hour wage from 2016. New York Consolidated Laws [http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO: 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. 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.

File:Fight for $15 on 4-15 (17160512642).jpg has fallen by 43% compared to 1968. 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 US Supreme Court judges held in Alden v. Maine that the federal minimum wage cannot be enforced for employees of state governments, unless the state has consented, because that would violate the Eleventh Amendment.[http://www.worldlii.org/us/cases/federal/USSC/1999/62.html 527 US 706] (1999) Souter J, joined by three dissenting justices,Souter J, Stevens J, Ginsburg J, Breyer J dissented. held that no such "sovereign immunity" existed in the Eleventh Amendment.This brought the effective position back to National League of Cities v. Usery, {{ussc|periods=no|426|833|1976}} where 5 judges to 4, held the FLSA 1938 could not be constitutionally applied to state governments. Brennan, White, Marshall, Stevens J dissenting. Yet in Garcia v. San Antonio Metro Transit Authority, {{ussc|periods=no|469|528|1985}} 5 judges to 4 upheld extension of the 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. Twenty-eight states, however, did have minimum wage laws higher than the federal level in 2016. Further, because the US Constitution, article one, section 8, clause 3 only allows the federal government to "regulate Commerce ... among the several States", employees of any "enterprise" under $500,000 making goods or services that do not enter commerce are not covered: they must rely on state minimum wage laws.See today FLSA 1938, [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section203&num=0&edition=prelim 29 USC §203(r)–(s)]. Previously, Walling v. Jacksonville Paper Co., [http://www.worldlii.org/us/cases/federal/USSC/1943/25.html 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) FLSA 1938 §203(s) explicitly exempts establishments whose only employees are close family members.FLSA 1938, [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section203&num=0&edition=prelim 29 USC §203(s)(2)] Under §213 the minimum wage may not be paid to 18 categories of employee, and paying overtime to 30 categories of employee.[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section213&num=0&edition=prelim 29 USC §213] n.b. the statute does not make clear what justifications there are for any exemptions. This include under §213(a)(1) employees of "bona fide executive, administrative, or professional capacity". In Auer v. Robbins police sergeants and lieutenants at the St Louis Police Department, Missouri claimed they should not be classed as executives or professional employees, and should get overtime pay.[http://www.worldlii.org/us/cases/federal/USSC/1997/13.html 519 US 452] (1997) Scalia J held that, following Department of Labor guidance, the St Louis police commissioners were entitled to exempt them. This has encouraged employers to attempt to define staff as more "senior" and make them work longer hours while avoiding overtime pay.See Adams v. United States, 44 Fed Claims 772 (1999) and Erichs v. Venator Group, Inc 128 F Supp 2d 1255 (ND Cal 2001) Another exemption in §213(a)(15) is for people "employed in domestic service employment to provide companionship services". In Long Island Care at Home, Ltd. v. Coke, a corporation claimed exemption, although Breyer J for a unanimous court agreed with the Department of Labor that it was only intended for carers in private homes.{{ussc|=noperiods|551|158|2007}}

Second, because §206(a)(1)(C) says the minimum wage is $7.25 per hour, courts have grappled with which hours count as "working".Under 29 USC §211(c) employers must keep payroll records for evidence of working time. Early cases established that time traveling to work did not count as work, unless it was controlled by, required by, and for the benefit of an employer, like traveling through a coal mine.Jewell Ridge Coal Corp. v. United Mine Workers of America [http://www.worldlii.org/us/cases/federal/USSC/1945/88.html 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, [http://www.worldlii.org/us/cases/federal/USSC/1944/97.html 321 US 590] (1944) travel to work, once underground, was working time. For example, in, Anderson v. Mt. Clemens Pottery Co. a majority of five to two justices held that employees had to be paid for the long walk to work through an employer's Mount Clemens Pottery Co facility.[http://www.worldlii.org/us/cases/federal/USSC/1946/110.html 328 US 680] (1946) According to Murphy J this time, and time setting up workstations, involved "exertion of a physical nature, controlled or required by the employer and pursued necessarily and primarily for the employer's benefit."[http://www.worldlii.org/us/cases/federal/USSC/1946/110.html 328 US 680] (1946) per Murphy J. See also Morillion v. Royal Packing Co, [http://law.justia.com/cases/california/supreme-court/4th/22/575.html 22 Cal 4th 575] (2000) the California Supreme Court held an employer must pay for hours traveling on company vehicles. In Armour & Co. v. Wantock firefighters claimed they should be fully paid while on call at their station for fires. The Supreme Court held that, even though the firefighters could sleep or play cards, because "[r]eadiness to serve may be hired quite as much as service itself" and time waiting on call was "a benefit to the employer".{{ussc|=noperiods|323|126|1944}} By contrast, in 1992 the Sixth Circuit controversially held that needing to be infrequently available by phone or pager, where movement was not restricted, was not working time.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. Time spent doing unusual cleaning, for instance showering off toxic substances, does count as working time,Steiner v. Mitchell 350 US 247 (1956) and so does time putting on special protective gear.IBP, Inc. v. Alvarez, 546 US 21 (2005) Stevens J for a unanimous court. Under §207(e) pay for overtime should be one and a half times the regular pay. In Walling v. Helmerich & Payne, Inc., the Supreme Court held that an employer's scheme of paying lower wages in the morning, and higher wages in the afternoon, to argue that overtime only needed to be calculated on top of (lower) morning wages was unlawful. Overtime has to be calculated based on the average regular pay.323 US 37 (1944) Murphy J holding that higher afternoon wages did not count as "premium" pay that could be ignored. However, in Christensen v. Harris County six Supreme Court judges held that police in Harris County, Texas, could be forced to use up their accumulated "compensatory time" (allowing time off with full pay) before claiming overtime.[http://www.worldlii.org/us/cases/federal/USSC/2000/38.html 529 US 576] (2000) Writing for the dissent, Stevens J said the majority had misconstrued §207(o)(2), which requires an "agreement" between employers, unions or employees on the applicable rules, and the Texas police had not agreed.See also 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. Third, §203(m) allows employers to deduct sums from wages for food or housing that is "customarily furnished" for employees. The secretary of labor may determine what counts as fair value. Most problematically, outside states that have banned the practice, they may deduct money from a "tipped employee" for money over the "cash wage required to be paid such an employee on August 20, 1996"—and this was $2.13 per hour. If an employee does not earn enough in tips, the employer must still pay the $7.25 minimum wage. But this means in many states tips do not go to workers: tips are taken by employers to subsidize low pay. Under 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,15 USC §1672 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.29 USC §254. See McLaughlin v. Richland Shoe Co, 468 US 128 (1988) Stevens J, 'willful' means reckless disregard for whether conduct was forbidden by the state. Brennan J and Blackmun J dissented.

[[File:Historical Income Tax Rates and brackets.png|thumb|350px|right|

{{legend-line|#F23F45 solid 3px|Top marginal income tax rates}}

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• Income tax in the United States
• Legal history of income tax in the United States
• State income tax
• Payroll tax, Federal Insurance Contributions Act tax

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{{main|Public holidays in the United States|Maternity leave in the United States|Work–family balance in the United States}}

File:Clock 200 Fifth Av jeh.JPG of 1948 article 23 requires "reasonable limitation of working hours and periodic holidays with pay", but there is no federal or state right to paid annual leave: Americans have the least in the developed world.See R Ray, M Sanes and J Schmitt, 'No Vacation Nation Revisited' (Washington DC 2013) [http://cepr.net/documents/publications/no-vacation-update-2013-05.pdf 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".]]

People in the United States work among the longest hours per week in the industrialized world, and have the least annual leave.See the Organisation for Economic Co-operation and Development, '[https://stats.oecd.org/Index.aspx?DataSetCode=ANHRS 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' ([http://www.oecd-ilibrary.org/docserver/download/8109011e.pdf?expires=1470785242&id=id&accname=guest&checksum=B69779C632870268573116DC6B5D56A1 2009]{{Dead link|date=June 2022 |bot=InternetArchiveBot |fix-attempted=yes }}) 39, Figure 2.17 The Universal Declaration of Human Rights of 1948 article 24 states: "Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay." However, there is no general federal or state legislation requiring paid annual leave. Title 5 of the United States Code §6103 specifies ten public holidays for federal government employees, and provides that holidays will be paid.See [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section6303&num=0&edition=prelim 5 USC §6303]. These are (1) New Year's Day (2) Martin Luther King Jr.'s Birthday (3) Washington's Birthday (4) Memorial Day (5) Independence Day (6) Labor Day (7) Columbus Day (8) Veterans Day (9) Thanksgiving Day (10) Christmas Day. Many states do the same, however, no state law requires private sector employers to provide paid holidays. Many private employers follow the norms of federal and state government, but the right to annual leave, if any, will depend upon collective agreements and individual employment contracts. State law proposals have been made to introduce paid annual leave. A 2014 Washington Bill from United States House of Representatives member Gael Tarleton would have required a minimum of 3 weeks of paid holidays each year to employees in businesses of over 20 staff, after 3 years work. Under the International Labour Organization Holidays with Pay Convention 1970Holidays with Pay Convention 1970 (no 132) three weeks is the bare minimum. The bill did not receive enough votes.See [http://apps.leg.wa.gov/billinfo/summary.aspx?bill=2238&year=2013 HB 2238] By contrast, employees in all European Union countries have the right to at least 4 weeks (i.e. 28 days) of paid annual leave each year.See the Working Time Directive 2003 art 7 Furthermore, there is no federal or state law on limits to the length of the working week. Instead, the Fair Labor Standards Act of 1938 §207 creates a financial disincentive to longer working hours. Under the heading "Maximum hours", §207 states that time and a half pay must be given to employees working more than 40 hours in a week. It does not, however, set an actual limit, and there are at least 30 exceptions for categories of employee which do not receive overtime pay.FLSA 1938, [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section213&num=0&edition=prelim 29 USC §213] Shorter working time was one of the labor movement's original demands. From the first decades of the 20th century, collective bargaining produced the practice of having, and the word for, a two-day "weekend".See FT de Vyver, 'The Five-Day Week' (1930) 33(2) Current History 223. Rybczynski, Waiting for the Weekend (1991) 142 State legislation to limit working time was, however, suppressed by the US Supreme Court in Lochner v. New York.[http://www.worldlii.org/us/cases/federal/USSC/1905/100.html 198 US 45] (1905) The New York State Legislature had passed the Bakeshop Act of 1895, which limited work in bakeries to 10 hours a day or 60 hours a week, to improve health, safety and people's living conditions. After being prosecuted for making his staff work longer in his Utica, Mr Lochner claimed that the law violated the Fourteenth Amendment on "due process". Despite the dissent of four judges, a majority of five judges held that the law was unconstitutional. The Supreme Court, however, did uphold Utah's mine workday statute in 1898.Robertson, James L. (2019). Heroes, Rascals, and the Law: Constitutional encounters in Mississippi History. Jackson, Ms: University Press of Mississippi. {{ISBN|9781496819949}}. p. 258. The Mississippi State Supreme Court upheld a ten hour workday statute in 1912 when it ruled against the due process arguments of an interstate lumber company.Robertson, pp. 262 ff. The whole Lochner era of jurisprudence was reversed by the US Supreme Court in 1937,West Coast Hotel Co. v. Parrish, 300 US 379 (1937) but experimentation to improve working time rights, and "work-life balance" has not yet recovered.

File:Childcare Development Center-Crestwood High School cheerleaders 120815-F-PG936-400.jpg for children under five, the costs of child care fall on parents. But in 2016, four states had legislated for paid family leave.California, New Jersey, Rhode Island and New York]]

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 family leave in federal law. There are minimal rights in some states. Most collective agreements, and many individual contracts, provide paid time off, but employees who lack bargaining power will often get none.On the economic effects of rules, see J Frieson, 'The Response of Wages to Protective Labor Legislation: Evidence from Canada' (1996) [http://ilr.sagepub.com/content/49/2/243.short 49(2) ILR Review 243] (showing empirical evidence that wages do not fall in unionized workplaces where workers have sufficient bargaining power). Contrast L Summers, 'Some simple economics of mandated benefits' (1989) [https://www.jstor.org/stable/1827753 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). There are, however, limited federal rights to unpaid leave for family and medical reasons. The Family and Medical Leave Act of 1993 generally applies to employers of 50 or more employees in 20 weeks of the last year, and gives rights to employees who have worked over 12 months and 1250 hours in the last year.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." Employees can have up to 12 weeks of unpaid leave for child birth, adoption, to care for a close relative in poor health, or because of an employee's own poor health.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. Child care leave should be taken in one lump, unless agreed otherwise.29 USC §2612(a)(2) and 29 USC §2612(f) mothers and fathers must share time if they work for the same employer. Employees must give notice of 30 days to employers if birth or adoption is "foreseeable",29 USC §2612(e) and for serious health conditions if practicable. Treatments should be arranged "so as not to disrupt unduly the operations of the employer" according to medical advice.29 USC §2612(e)(2) Employers must provide benefits during the unpaid leave.29 USC §2614(c). If an employee quits, the employer is enabled to recoup costs. Under §2652(b) states are empowered to provide "greater family or medical leave rights". In 2016 California, New Jersey, Rhode Island and New York had laws for paid family leave rights. Under §2612(2)(A) an employer can make an employee substitute the right to 12 unpaid weeks of leave for "accrued paid vacation leave, personal leave or family leave" in an employer's personnel policy. Originally the Department of Labor had a penalty to make employers notify employees that this might happen. However, five judges in the US Supreme Court in Ragsdale v. Wolverine World Wide, Inc. held that the statute precluded the right of the Department of Labor to do so. Four dissenting judges would have held that nothing prevented the rule, and it was the Department of Labor's job to enforce the law.[http://www.worldlii.org/us/cases/federal/USSC/2002/557.html 535 US 81] (2002) After unpaid leave, an employee generally has the right to return to his or her job, except for employees who are in the top 10% of highest paid and the employer can argue refusal "is necessary to prevent substantial and grievous economic injury to the operations of the employer."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. Employees or the secretary of labor can bring enforcement actions,29 USC §2617, and see Frizzell v. Southwest Motor Freight, 154 F3d 641 (6th Circuit 1998) but there is no right to a jury for reinstatement claims. Employees can seek damages for lost wages and benefits, or the cost of child care, plus an equal amount of liquidated damages unless an employer can show it acted in good faith and reasonable cause to believe it was not breaking the law.29 USC §2617(a)(1)(A)(iii) There is a two-year limit on bringing claims, or three years for willful violations.See Moore v. Payless Shoe Source (8th Circuit 1998) Despite the lack of rights to leave, there is no right to free 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.e.g. D. Paquette, 'The enormous ambition of Hillary Clinton's child-care plan' (May 12, 2016) [https://www.washingtonpost.com/news/wonk/wp/2016/05/12/the-enormous-ambition-of-hillary-clintons-child-care-plan/ The Washington Post]

{{Slist pensions}}

{{main|Pensions in the United States|List of largest pension schemes in the US|Investment manager}}

In the early 20th century, the possibility of having a "retirement" became real as people lived longer,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) and believed the elderly should not have to work or rely on charity until they died.See J. R. Commons and J. B. Andrews, Principles of Labor Legislation (1920) [https://archive.org/stream/principlesoflabo00commrich#page/422/mode/2up 423–438] The law maintains an income in retirement in three ways (1) through a public social security program created by the Social Security Act of 1935,See 42 USC ch 7 (2) occupational pensions managed through the employment relationship, and (3) private pensions or life insurance that individuals buy themselves. At work, most occupational pension schemes originally resulted from collective bargaining during the 1920s and 1930s.See L Conant, A Critical Analysis of Industrial Pension Systems (1922) and M. W. Latimer, Trade Union Pension Systems (1932) Unions usually bargained for employers across a sector to pool funds, so that employees could keep their pensions if they moved jobs. Multi-employer retirement plans, set up by collective agreement became known as "Taft–Hartley plans" after the Taft–Hartley Act of 194] required joint management of funds by employees and employers.See LMRA 1947, 29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section186&num=0&edition=prelim §186(c)(5)(B)] Many employers also voluntarily choose to provide pensions. For example, the pension for professors, now called TIAA, was established on the initiative of Andrew Carnegie in 1918 with the express requirement for participants to have voting rights for the plan trustees.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) [https://digitalcommons.law.seattleu.edu/sulr/vol42/iss2/18/ 42 Seattle University Law Review 697] These could be collective and defined benefit schemes: a percentage of one's income (e.g. 67%) is replaced for retirement, however long the person lives. But more recently more employers have only provided individual "401(k)" plans. These are named after the Internal Revenue Code §401(k),26 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title26-section401&num=0&edition=prelim §401(k)] which allows employers and employees to pay no tax on money that is saved in the fund, until an employee retires. The same tax deferral rule applies to all pensions. But unlike a "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.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) [https://ssrn.com/abstract=2460685 LSE Legal Studies Working Paper No. 20/2014] 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.ERISA 1974, 29 USC §1003(a). This could include any Voluntary Employee Beneficiary Association, such as for child care cover, sick leave, fringe benefits or extra unemployment insurance.

File:The Morgan Stanley Building (WTM by official-ly cool 112).jpg and all pension trustees, are fiduciaries. This means they must avoid 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.[http://www.worldlii.org/us/cases/federal/USCA2/1982/447.html 680 F2d 263] (1982)]]

Five main rights for beneficiaries in ERISA 1974 include information, funding, vesting, anti-discrimination, and fiduciary duties. First, each beneficiary should receive a "summary plan description" in 90 days of joining, plans must file annual reports with the secretary of labor, and if beneficiaries make claims any refusal must be justified with a "full and fair review".ERISA 1974, 29 USC §§1022–1133 If the "summary plan description" is more beneficial than the actual plan documents, because the pension fund makes a mistake, a beneficiary may enforce the terms of either.Rhorer v. Raytheon Engineers and Constructors, Inc [http://www.worldlii.org/us/cases/federal/USCA5/1999/1081.html 181 F3d 364] (5th 1999) a plan beneficiary can enforce terms in the summary plan description, even if the underlying document conflicts. If an employer has pension or other plans, all employees must be entitled to participate after at longest 12 months, if working over 1000 hours.ERISA 1974, 29 USC §1052 Second, all promises must be funded in advance.ERISA 1974, 29 USC [http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter18/subchapter1/node551/part3&edition=prelim §1081–1102] {{Webarchive|url=https://web.archive.org/web/20180623113242/http://uscode.house.gov/view.xhtml?path=%2Fprelim%40title29%2Fchapter18%2Fsubchapter1%2Fnode551%2Fpart3&edition=prelim |date=June 23, 2018 }}, containing detailed rules. The Pension Benefit Guaranty Corporation was established by the federal government to be an insurer of last resort, but only up to $60,136 per year for each employer. Third, employees' benefits usually cannot be taken away (they "vest") after 5 years,ERISA 1974, 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. and contributions must accrue (i.e. the employee owns contributions) at a proportionate rate.ERISA 1974, 29 USC §1054 If employers and pension funds merge, there can be no reduction in benefits,ERISA 1974, 29 USC §1058 and if an employee goes bankrupt their creditors cannot take their occupational pension.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) However, the US Supreme Court has enabled benefits to be withdrawn by employers simply amending plans. In Lockheed Corp. v. Spink a majority of seven judges held that an employer could alter a plan, to deprive a 61-year-old man of full benefits when he was reemployed, unbound by fiduciary duties to preserve what an employee had originally been promised.[http://www.worldlii.org/us/cases/federal/USSC/1996/52.html 517 US 882] (1996) In dissent, Breyer J and Souter J reserved any view on such "highly technical, important matters".cf Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 1 WLR 589 and Equitable Life Assurance Society v. Hyman [2000] [http://www.bailii.org/uk/cases/UKHL/2000/39.html UKHL 39] Steps to terminate a plan depend on whether it is individual, or multi-employer, and Mead Corp. v. Tilley a majority of the US Supreme Court held that employers could recoup excess benefits paid into pension plans after PBGC conditions are fulfilled. Stevens J, dissenting, contended that all contingent and future liabilities must be satisfied.[http://www.worldlii.org/us/cases/federal/USSC/1989/103.html 490 US 714] (1989) Fourth, as a general principle, employees or beneficiaries cannot suffer any discrimination or detriment for "the attainment of any right" under a plan.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. Fifth, managers are bound by responsibilities of competence and loyalty, called "fiduciary duties".See EP Serota and FA Brodie (eds), ERISA Fiduciary Law (2nd edn 2007). In general, people who manage other people's money will be a "fiduciary" in law, and bound by special duties. The core duty is to avoid any possibility of a conflict of interest. Other duties that fiduciaries have (but any agent may also have) include the duty of care, skill and competence (i.e. not to be negligent) and the duty to follow the terms of one's assignment. Discussed further in Peacock v. Thomas 516 US 349 (1996) Under §1102, a fiduciary is anyone who administers a plan, its trustees, and investment managers who are delegated control. Under §1104, fiduciaries must follow a "prudent" person standard, involving three main components. First, a fiduciary must act "in accordance with the documents and instruments governing the plan".29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1104&num=0&edition=prelim §1104(a)(1)(D)] Second, they must act with "care, skill and diligence", including "diversifying the investments of the plan" to "minimize the risk of large losses".29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1104&num=0&edition=prelim §1104(a)(1)(B)–(C)] Liability for carelessness extends to making misleading statements about benefits,Varity Corp. v. Howe 516 US 489 (1996) and have been interpreted by the Department of Labor to involve a duty to vote on proxies when corporate stocks are purchased, and publicizing a statement of investment policy.United States Department of Labor, Interpretive bulletin relating to written statements of investment policy, including proxy voting policy or guidelines (1994) [http://www.dol.gov/dol/allcfr/title_29/part_2509/29CFR2509.94-2.htm 29 CFR 2509.94–2], "The fiduciary duties described at 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." Third, and codifying fundamental equitable principles, a fiduciary must avoid any possibility of a conflict of interest.See Meinhard v. Salmon, 164 NE 545 (NY 1928) and Keech v. Sandford [1726] [http://www.bailii.org/ew/cases/EWHC/1726/J76.html EWHC Ch J76] Fiduciaries must act "solely in the interest of the participants ... for the exclusive purpose of providing benefits" with "reasonable expenses",29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1104&num=0&edition=prelim §1104(a)(1)(A)] and specifically avoiding self-dealing with a related "party in interest".29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1106&num=0&edition=prelim §1106] For example, in Donovan v. Bierwirth, the Second Circuit held that trustees of a pension which owned shares in the employees' company as a takeover bid was launched, because they faced a potential conflict of interest, had to get independent legal advice on how to vote, or possibly abstain.[http://www.worldlii.org/us/cases/federal/USCA2/1982/447.html 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." Remedies for these duties have, however, been restricted by the Supreme Court to disfavor damages.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) In these fields, according to §1144, ERISA 1974 will "supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan".29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1144&num=0&edition=prelim §1144] ERISA did not, therefore, follow the model of the Fair Labor Standards Act of 1938 or the Family and Medical Leave Act of 1993, which encourage states to legislate for improved protection for employees, beyond the minimum. The preemption rule led the US Supreme Court to strike down a New York that required giving benefits to pregnant employees in ERISA plans.Shaw v. Delta Air Lines, Inc, [https://supreme.justia.com/cases/federal/us/463/85/case.html 463 US 85] (1983) per Blackmun J It held a case under Texas law for damages for denying vesting of benefits was preempted, so the claimant only had ERISA remedies.Ingersoll-Rand Co. v. McClendon, 498 US 133 (1990) It struck down a Washington law which altered who would receive life insurance designation on death.Egelhoff v. Egelhoff, 532 US 141 (2001) However, under §1144(b)(2)(A) this does not affect 'any law of any State which regulates insurance, banking, or securities.' So, the Supreme Court has also held valid a Massachusetts law requiring mental health to be covered by employer group health policies.Metropolitan Life Insurance Co. v. Massachusetts 471 US 724 (1985) But it struck down a Pennsylvania statute which prohibited employers becoming subrogated to (potentially more valuable) claims of employees for insurance after accidents.FMC Corp. v. Holliday 498 US 52 (1990) per O'Connor J. Stevens J dissented. See also District of Columbia v. Greater Washington Board of Trade, 506 US 125 (1992) Stevens J dissented. Yet more recently, the court has shown a greater willingness to prevent laws being preempted,Rush Prudential HMO, Inc. v. Moran, 536 US 355 (2002) Souter J, 5 to 4, held an Illinois statute requiring 'independent medical review' of a denial of a claim for treatment under an HMO contract was not preempted because it was insurance regulation. 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.

File:Bernie Sanders in East Los Angeles (27211671695).jpg,See [https://www.govtrack.us/congress/bills/106/hr1277/text HR 1277], Title III, §301 proposed by Bernie Sanders but not yet passed, would give every employee the representatives on boards of their pension plans, to control how vote are cast on corporate stocks. Currently investment managers control most voting rights in the economy using "other people's money".See earlier, LD Brandeis, Other People's Money and How the Bankers Use It ([http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/other-peoples-money-by-louis-d.-brandeis 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]]

The most important rights that ERISA 1974 did not cover were who controls investments and securities that beneficiaries' retirement savings buy. The largest form of retirement fund has become the 401(k). This is often an individual account that an employer sets up, and an investment management firm, such as Vanguard, Fidelity, Morgan Stanley or BlackRock, is then delegated the task of trading fund assets. Usually they also vote on corporate shares, assisted by a "proxy advice" firm such as ISS or Glass Lewis. Under ERISA 1974 §1102(a),ERISA 1974, [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1102&num=0&edition=prelim 29 USC §1102] a plan must merely have named fiduciaries who have "authority to control and manage the operation and administration of the plan", selected by "an employer or employee organization" or both jointly. Usually these fiduciaries or trustees, will delegate management to a professional firm, particularly because under §1105(d), if they do so, they will not be liable for an investment manager's breaches of duty.29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1105&num=0&edition=prelim §1105(d)] These investment managers buy a range of assets, particularly corporate stocks which have voting rights, as well as government bonds, corporate bonds, commodities, real estate or derivatives. Rights on those assets are in practice monopolized by investment managers, unless pension funds have organized to take voting in house, or to instruct their investment managers. Two main types of pension fund to do this are union organized Taft–Hartley plans, and state public pension plans. Under the amended National Labor Relations Act of 1935 §302(c)(5)(B) a union bargained plan has to be jointly managed by representatives of employers and employees.29 USC §302(c)(5)(B) Although many local pension funds are not consolidated and have had critical funding notices from the Department of Labor,See US Department of Labor, [https://www.dol.gov/ebsa/criticalstatusnotices.html Critical, Endangered and WRERA Status Notices]' (Retrieved August 11, 2016) more funds with employee representation ensure that corporate voting rights are cast according to the preferences of their members. State public pensions are often larger, and have greater bargaining power to use on their members' behalf. State pension schemes invariably disclose the way trustees are selected. In 2005, on average more than a third of trustees were elected by employees or beneficiaries.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. For example, the California Government Code §20090 requires that its public employee pension fund, CalPERS has 13 members on its board, 6 elected by employees and beneficiaries. However, only pension funds of sufficient size have acted to replace investment manager voting. Furthermore, no general legislation requires voting rights for employees in pension funds, despite several proposals.See, sponsored by Peter Visclosky, Joint Trusteeship Bill of 1989 [http://thomas.loc.gov/cgi-bin/query/z?c101:H.R.2664.IH: HR 2664]{{Dead link|date=August 2021 |bot=InternetArchiveBot |fix-attempted=yes }}. See further R Cook, 'The Case for Joint Trusteeship of Pension Plans' (2002) WorkingUSA 25. Most recently, the Employees' Pension Security Act of 2008 ([http://www.opencongress.org/bill/110-h5754/text 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.' For example, the Workplace Democracy Act of 1999, sponsored by Bernie Sanders then in the US House of Representatives, would have required all single employer pension plans to have trustees appointed equally by employers and employee representatives. There is, furthermore, currently no legislation to stop investment managers voting with other people's money as the Dodd–Frank Act of 2010 §957 banned broker-dealers voting on significant issues without instructions.This inserted a new Securities Exchange Act of 1934 §6(b)(10) This means votes in the largest corporations that people's retirement savings buy are overwhelmingly exercised by investment managers, whose interests potentially conflict with the interests of beneficiaries' on labor rights, fair pay, job security, or pension policy.

{{main|Occupational Safety and Health Act 1970|US tort law|Affordable Care Act}}

The Occupational Safety and Health Act,Text of the [http://finduslaw.com/occupational_safety_and_health_act_osha_29_u_s_code_chapter_15 Occupational Safety and Health Act] signed into law in 1970 by President Richard Nixon, creates specific standards for workplace safety. The act has spawned years of litigation by industry groups that have challenged the standards limiting the amount of permitted exposure to chemicals such as benzene. The Act also provides for protection for "whistleblowers" who complain to governmental authorities about unsafe conditions while allowing workers the right to refuse to work under unsafe conditions in certain circumstances. The act allows states to take over the administration of OSHA in their jurisdictions, so long as they adopt state laws at least as protective of workers' rights as under federal law. More than half of the states have done so.

• Child labor laws in the United States

{{Slist work 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)

{{see also|Collective bargaining|US corporate law|Codetermination|Work council}}

File:Oblique facade 3, US Supreme Court.jpg's policy of preemption since 1953 means federal collective bargaining rules cancel state rules, even if state law is more beneficial to employees. Despite preemption, many unions, corporations, and states have experimented with direct participation rights, to get a "fair day's wage for a fair day's work".See 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]]

The central right in labor law, beyond minimum standards for pay, hours, pensions, safety or privacy, is to participate and vote in workplace governance.Archibald Cox, D. C. Bok, Matthew W. Finkin and R. A. Gorman, Labor Law: Cases and Materials (2011) The American model developed from the Clayton Antitrust Act of 1914,15 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim §17] which declared the "labor of a human being is not a commodity or article of commerce" and aimed to take workplace relations out of the reach of courts hostile to collective bargaining. Lacking success, the National Labor Relations Act of 1935 changed the basic model, which remained through the 20th century. Reflecting the "inequality of bargaining power between employees ... and employers who are organized in the corporate or other forms of ownership association",NLRA 1935, 29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section151&num=0&edition=prelim §151] the NLRA 1935 codified basic rights of employees to organize a union, requires employers to bargain in good faith (at least on paper) after a union has majority support, binds employers to collective agreements, and protects the right to take collective action including a strike. Union membership, collective bargaining, and standards of living all increased rapidly until Congress forced through the Taft–Hartley Act of 1947. Its amendments enabled states to pass laws restricting agreements for all employees in a workplace to be unionized, prohibited collective action against associated employers, and introduced a list of unfair labor practices for unions, as well as employers. Since then, the US Supreme Court chose to develop a doctrine that the rules in the NLRA 1935 preempted any other state rules if an activity was "arguably subject" to its rights and duties.See San Diego Building Trades Council v. Garmon 359 US 236 (1959) and previously Garner v. Teamsters Local 776, 346 US 485, 490 (1953) and most recently Chamber of Commerce v. Brown, [http://www.worldlii.org/us/cases/federal/USSC/2008/22.html 522 US 60] (2008) Breyer J and Ginsburg J dissented. While states were inhibited from acting as "laboratories of democracy", and particularly as unions were targeted from 1980 and membership fell, the NLRA 1935 has been criticized as a "failed statute" as US labor law "ossified".BI Sachs, 'Revitalizing labor law' (2010) [https://www.jstor.org/stable/43551790 31(2) Berkeley Journal of Employment and Labor Law 333] and CL Estlund, 'The Ossification of American Labor Law' (2002) 102 Columbia LR 1527. See further BI Sachs, 'Despite Preemption: Making Labor Law in Cities and States' (2011) [https://dash.harvard.edu/bitstream/handle/1/10875747/vol124_sachs.pdf?sequence=1 1224 Harvard Law Review 1153], 1162–1163, 'Scholars have repeatedly noted the central problems. When it comes to the rules of organizing, the regime provides employers with too much latitude to interfere with employees' efforts at self-organization, while offering unions too few rights to communicate with employees about the merits of unionization. The 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.' This has led to more innovative experiments among states, progressive corporations and unions to create direct participation rights, including the right to vote for or codetermine directors of corporate boards, and elect work councils with binding rights on workplace issues.

{{Sourcelist unions}}

{{Main|Labor unions in the US|List of labor unions in the US}}

Freedom of association in labor unions has always been fundamental to the development of democratic society, and is protected by the First Amendment to the Constitution.See NAACP v. Alabama, [http://www.worldlii.org/us/cases/federal/USSC/1958/150.html 357 US 449] (1958) referring to the "constitutionally protected right of association". In early colonial history, labor unions were routinely suppressed by the government. Recorded instances include cart drivers being fined for striking in 1677 in New York City, and carpenters prosecuted as criminals for striking in Savannah, Georgia in 1746.J. R. Commons, History of Labor in the United States (Macmillan 1918) [https://archive.org/stream/historyoflabouri01commuoft#page/24/mode/2up vol I, ch 1, 25] After the American Revolution, however, courts departed from repressive elements of English common law. The first reported case, Commonwealth v. Pullis in 1806 did find shoemakers in Philadelphia guilty of "a combination to raise their wages".JB Commons, A Documentary History of American Industrial Society (1910) Nevertheless, unions continued, and the first federation of trade unions was formed in 1834, the National Trades' Union, with the primary aim of a 10-hour working day.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. In 1842 the Supreme Court of Massachusetts held in Commonwealth v. Hunt that a strike by the Boston Journeymen Bootmakers' Society for higher wages was lawful.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. Chief Justice Shaw held that people "are free to work for whom they please, or not to work, if they so prefer" and "to agree together to exercise their own acknowledged rights". The abolition of slavery by Abraham Lincoln's Emancipation Proclamation during the American Civil War was necessary to create genuine rights to organize, but was not sufficient to ensure freedom of association. Using the Sherman Act of 1890, which was intended to break up business cartels, the Supreme Court imposed an injunction on striking workers of the Pullman Company, and imprisoned the leader, and future presidential candidate, Eugene Debs.In re Debs, 64 Fed 724 (CC Ill 1894), 158 U.S. 564 (1895) The court also enabled unions to be sued for triple damages in Loewe v. Lawlor, a case involving a hat maker union in Danbury, Connecticut.208 US 274 (1908) The president and United States Congress responded by passing the Clayton Act of 1914 to take labor out of 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.

File:Richard Trumka 2008.jpg was the late president of the AFL–CIO, a federation of unions, with 12.5m members. The 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 freedom of association, the law requires basic standards of democracy and accountability to ensure members are truly free in shaping their associations.cf ILO 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." Fundamentally, all unions are democratic organizations,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) but they divide between those where members elect delegates, who in turn choose the executive, and those where members directly elect the executive. In 1957, after the McClellan Committee of the US Senate found evidence of two rival Teamsters Union executives, Jimmy Hoffa and Dave Beck, falsifying delegate vote counts and stealing union funds,See the 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. Congress passed the Labor Management Reporting and Disclosure Act of 1959. Under § 411, every member has the right to vote, attend meetings, speak freely and organize, not have fees raised without a vote, not be deprived of the right to sue, or be suspended unjustly.29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section411&num=0&edition=prelim § 411] Under § 431, unions should file their constitutions and bylaws with the secretary of labor and be accessible by members:29 USC [http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter11/subchapter5&edition=prelim § 481] today union constitutions are online. Under § 481 elections must occur at least every 5 years, and local officers every 3 years, by secret ballot. Additionally, state law may bar union officials who have prior convictions for felonies from holding office.De Veau v. Braisted, {{ussc|363|144|1960}} 5 to 3, the dissenting judges argued that state law could introduce no additional requirement to those in the NLRA 1935. See also Brown v. Hotel and Restaurant Employees, {{ussc|periods=no|468|491|1984}} 4 to 3, New Jersey could impose a requirement that all union officials in a casino had no association with organized crime, consistently with NLRA 1935 § 7. The dissent argued that the requirement was disproportionate because it applied penalties to the whole union rather than the officials. As a response to the Hoffa and Beck scandals, there is also an express fiduciary duty on union officers for members' money, limits on loans to executives, requirements for bonds for handling money, and up to a $10,000 fine or up to 5 years prison for embezzlement. These rules, however, restated most of what was already the law, and codified principles of governance that unions already undertook.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." On the other hand, under § 501(b) to bring a lawsuit, a union member must first make a demand on the executive to correct wrongdoing before any claim can be made to a court, even for misapplication of funds, and potentially wait four months' time. The Supreme Court has held that union members can intervene in enforcement proceedings brought by the US Department of Labor.Trbovich v. United Mine Workers, {{ussc|404|528|1972}} See also Hall v. Cole, {{ussc|412|1|1973}} holding that if plaintiffs are successful, they can be awarded fees. Federal courts may review decisions by the Department to proceed with any prosecutions.Dunlop v. Bachowski, {{ussc|421|560|1975}} The range of rights, and the level of enforcement has meant that labor unions display significantly higher standards of accountability, with fewer scandals, than corporations or financial institutions.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

File:Sharan Burrow World Economic Forum 2013.jpg leads the International Trade Union Confederation, which represents labor union members worldwide, via each national group including the AFL–CIO.See the ITUC, [http://www.ituc-csi.org/IMG/pdf/Const-ENG-W.pdf Constitution] (2006)]]

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 collective agreements with employers that all new workers would have to join the union. This was to prevent employers trying to dilute and divide union support, and ultimately refuse to improve wages and conditions in collective bargaining. However, after the Taft–Hartley Act of 1947, the National Labor Relations Act of 1935 § 158(a)(3) was amended to ban employers from refusing to hire a non-union employee. An employee can be required to join the union (if such a collective agreement is in place) after 30 days.29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section158&num=0&edition=prelim § 158(a)(3)] But § 164(b) was added to codify a right of states to pass so called "right to work laws" that prohibit unions making collective agreements to register all workers as union members, or collect fees for the service of collective bargaining.29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section164&num=0&edition=prelim § 164(b)] Over time, as more states with Republican governments passed laws restricting union membership agreements, there has been a significant decline of union density. Unions have not, however, yet experimented with agreements to automatically enroll employees in unions with a right to opt out. In International Ass'n of Machinists v. Street, a majority of the US Supreme Court, against three dissenting justices, held that the First Amendment precluded making an employee become a union member against their will, but it would be lawful to collect fees to reflect the benefits from collective bargaining: fees could not be used for spending on political activities without the member's consent.{{ussc|periods=no|367|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, {{ussc|periods=no|335|525|1949}}. Communications Workers of America v. Beck, {{ussc|periods=no|487|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. Unions have always been entitled to publicly campaign for members of Congress or presidential candidates that support labor rights.United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948) there was no violation of the Federal Corrupt Practices Act 1910 in a union publicly advocating for particular Congress members to be elected. But the urgency of political spending was raised when in 1976 Buckley v. Valeo decided, over powerful dissents of White J and Marshall J, that candidates could spend unlimited money on their own political campaign,Buckley v. Valeo, 424 US 1 (1976) and then in First National Bank of Boston v. Bellotti,435 US 765 (1978) that corporations could engage in election spending. In 2010, over four dissenting justices, Citizens United v. FEC558 US 310 (2010) held there could be essentially no limits to corporate spending. By contrast, every other democratic country caps spending (usually as well as regulating donations) as the original Federal Election Campaign Act of 1971 had intended to do. A unanimous court held in Abood v. Detroit Board of Education that union security agreements to collect fees from non-members were also allowed in the public sector.431 US 209 (1977) See further Lehnert v. Ferris Faculty Association, 500 US 507 (1991) 5 to 4, the union can require nonmembers to give service fee contributions only for its activities as an exclusive bargaining agent, and not for political activities. Also 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. However, in Harris v. Quinn five US Supreme Court judges reversed this ruling apparently banning public sector union security agreements,573 US __ (2014) and were about to do the same for all unions in Friedrichs v. California Teachers Association until Scalia J died, halting an anti-labor majority on the Supreme Court.578 US __ (2016) In 2018, Janus v. AFSCME the Supreme Court held by 5 to 4 that collecting mandatory union fees from public sector employees violated the First Amendment. The dissenting judges argued that union fees merely paid for benefits of collective bargaining that non-members otherwise received for free. These factors led campaign finance reform to be one of the most important issues in the 2016 US Presidential election, for the future of the labor movement, and democratic life.

{{Slist collective bargain}}

{{main|Collective bargaining|Arbitration in the US|National Labor Relations Act 1935|Taft–Hartley Act|Federal Service Labor-Management Relations Statute|Railway Labor Act}}

Since the Industrial Revolution, collective bargaining has been the main way to get fair pay, improved conditions, and a voice at work. The need for positive rights to organize and bargain was gradually appreciated after the Clayton Antitrust Act of 1914. Under §6,{{Cite web|url=https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim|title=[USC02] 15 USC 17: Antitrust laws not applicable to labor organizations|website=uscode.house.gov}} labor rights were declared to be outside of antitrust law, but this did not stop hostile employers and courts suppressing unions. In Adair v. United States,[http://www.worldlii.org/us/cases/federal/USSC/1908/23.html 208 US 161] (1908) and Coppage v. Kansas,236 US 1 (1915) the Supreme Court, over powerful dissents,In Adair, from Holmes J and McKenna J, and in Coppage from Holmes J, Day J and Hughes J asserted the Constitution empowered employers to require employees to sign contracts promising they would not join a union. These "yellow-dog contracts" were offered to employees on a "take it or leave it" basis, and effectively stopped unionization. They lasted until the Great Depression when the Norris–La Guardia Act of 1932 banned them.29 USC [http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter6&edition=prelim §§101–115]. This was approved and applied by New Negro Alliance v. Sanitary Grocery Co., [http://www.worldlii.org/us/cases/federal/USSC/1938/101.html 303 US 552] (1938) This also prevented the courts from issuing any injunctions or enforcing any agreements in the context of a labor dispute.29 USC [http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter6&edition=prelim §104] After the landslide election of Franklin D. Roosevelt, the National Labor Relations Act of 1935 was drafted to create positive rights for collective bargaining in most of the private sector.This reenacted labor provisions from the National Industrial Recovery Act of 1933, after A.L.A. Schechter Poultry Corp. v. United States, [http://www.worldlii.org/us/cases/federal/USSC/1935/122.html 295 US 495] (1935) struck it down. It aimed to create a system of federal rights so that, under §157, employees would gain the legal "right to self-organization", "to bargain collectively" and use "concerted activities" including strikes for "mutual aid or other protection".NLRA 1935, 29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section157&num=0&edition=prelim §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." The act was meant to increase bargaining power of employees to get better terms in than individual contracts with employing corporations. However §152 excluded many groups of workers, such as state and federal government employees,NLRA 1935, 29 USC §152(2). See the Federal Labor Relations Act of 1978. There are special rules for the United States Department of Homeland Security. railway and airline staff,29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section152&num=0&edition=prelim §152(2)] domestic and agriculture workers.29 USC §158(3) These groups depend on special federal statutes like the Railway Labor Act or state law rules, like the California Agricultural Labor Relations Act of 1975. In 1979, five Supreme Court judges, over four forceful dissents, also introduced an exception for church operated schools, apparently because of "serious First Amendment questions".[http://www.worldlii.org/us/cases/federal/USSC/1979/47.html 440 US 490] (1979) Brennan J for the four dissenting justices said an exception for this employer was not in §152(2), it was twice rejected in 1935 and 1947, it was "invented by the Court for the purpose of deciding this case", and was a "cavalier exercise in statutory interpretation". Joined by White J, Marshall J, Blackmun J. Furthermore, "independent contractors" are excluded, even though many are economically dependent workers. Some courts have attempted to expand the "independent contractor" exception. In 2009, in FedEx Home Delivery v. NLRB the DC Circuit, adopting submissions of FedEx's lawyer Ted Cruz, held that post truck drivers were independent contractors because they took on "entrepreneurial opportunity". Garland J dissented, arguing the majority had departed from common law tests.[https://scholar.google.com/scholar_case?q=563+F3d+492+(DC+2009)&hl=en&as_sdt=2006&case=15820652359117123721&scilh=0 563 F3d 492] (DC 2009) The "independent contractor" category was estimated to remove protection from 8 million workers.R Eisenbrey and L Mishel, 'Supervisor in Name Only: Union Rights of Eight Million Workers at Stake in Labor Board Ruling' (2006) [http://www.epi.org/page/-/old/issuebriefs/225/ib225.pdf Economic Policy Institute Issue Brief #225] While many states have higher rates, the US has an 11.1 per cent unionization rate and 12.3 per cent rate of coverage by collective agreement. This is the lowest in the industrialized world.See Bureau of Labor Statistics, '[http://www.bls.gov/news.release/pdf/union2.pdf 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 ([http://www.oecd.org/employment/emp/UnionDensity_Sourcesandmethods.pdf 1999–2013])

File:NLRB picketing 2007.jpg, when Ronald Reagan fired every air traffic controller,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 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 collective agreement. Under NLRA 1935 §158(d) the mandatory subjects of collective bargaining include "wages, hours, and other terms and conditions of employment".NLRA 1935, [https://www.law.cornell.edu/uscode/text/29/158 29 USC §158(d)]. See NLRB v. Borg-Warner Corp [http://www.worldlii.org/us/cases/federal/USSC/1958/76.html 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 [http://www.worldlii.org/us/cases/federal/USSC/1981/155.html 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." A collective agreement will typically aim to get rights including a fair day's wage for a fair day's work, reasonable notice and severance pay before any necessary layoffs, just cause for any job termination, and arbitration to resolve disputes. It could also extend to any subject by mutual agreement. A union can encourage an employing entity through collective action to sign a deal, without using the NLRA 1935 procedure. But, if an employing entity refuses to deal with a union, and a union wishes, the National Labor Relations Board (NLRB) may oversee a legal process up to the conclusion of a legally binding collective agreement. By law, the NLRB is meant to have five members "appointed by the President by and with the advice and consent of the Senate",29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section153&num=0&edition=prelim §153] and play a central role in promoting collective bargaining. First, the NLRB will determine an appropriate "bargaining unit" of employees with employers (e.g., offices in a city, or state, or whole economic sector),29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section159&num=0&edition=prelim §159(b)]. The NLRB favors "enterprise bargaining" over "sectoral collective bargaining", which means US unions have traditionally been smaller with less bargaining power by international standards. Second, a union with "majority" support of employees in a bargaining unit becomes "the exclusive representatives of all the employees".29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section159&num=0&edition=prelim §159(a)] But to ascertain majority support, the NLRB supervises the fairness of elections among the workforce. It is typical for the NLRB to take six weeks from a petition from workers to an election being held.BI Sachs, 'Revitalizing labor law' (2010) 31(2) [https://www.jstor.org/stable/43551790 BJELL 335]–6 During this time, managers may attempt to persuade or coerce employees using high-pressure tactics or unfair labor practices (e.g. threatening job termination, alleging unions will bankrupt the firm) to vote against recognizing the union. The average time for the NLRB to decide upon complaints of unfair labor practices had grown to 483 days in 2009 when its last annual report was written.National Labor Relations Board, [https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1677/nlrb2009.pdf Seventy Fourth Annual Report] (2009) 152 Third, if a union does win majority support in a bargaining unit election, the employing entity will have an "obligation to bargain collectively". This means meeting union representatives "at reasonable times and confer in good faith with respect to wages, hours, and other terms" to put in a "written contract". The NLRB cannot compel an employer to agree, but it was thought that the NLRB's power to sanction an employer for an "unfair labor practice" if they did not bargain in good faith would be sufficient. For example, in JI Case Co v. National Labor Relations Board the Supreme Court held an employer could not refuse to bargain on the basis that individual contracts were already in place.321 US 332 (1944) Crucially, in Wallace Corp. v. NLRB the Supreme Court also held that an employer only bargaining with a company union, which it dominated, was an unfair labor practice. The employer should have recognized the truly independent union affiliated to the Congress of Industrial Organizations (CIO).323 US 248 (1944) However, in NLRB v. Sands Manufacturing Co. the Supreme Court held an employer did not commit an unfair trade practice by shutting down a water heater plant, while the union was attempting to prevent new employees being paid less.306 US 332 (1939) 5 to 2 Moreover, after 2007 President George W. Bush and the Senate refused to make any appointments to the Board, and it was held by five judges, over four dissents, in New Process Steel, L.P. v. NLRB that rules made by two remaining members were ineffective.560 US 674 (2010) While appointments were made in 2013, agreement was not reached on one vacant seat. Increasingly it has been made politically unfeasible for the NLRB to act to promote collective bargaining.

File:Bernie Sanders & Hillary Clinton (28205920271).jpg, 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.H.R. 1409, [https://www.congress.gov/bill/111th-congress/senate-bill/560/text S. 560]. It has been blocked by Republicans in Congress.]]

Once collective agreements have been signed, they are legally enforceable, often through arbitration, and ultimately in federal court.29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section185&num=0&edition=prelim §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. Federal law must be applied for national uniformity, so state courts must apply federal law when asked to deal with collective agreements or the dispute can be removed to federal court.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. Usually, collective agreements include provisions for sending grievances of employees or disputes to binding arbitration, governed by the Federal Arbitration Act of 1925.9 USC [http://uscode.house.gov/view.xhtml?path=/prelim@title9/chapter1&edition=prelim §§1 ff] For example, in United Steelworkers v. Warrior & Gulf Navigation Co a group of employees at a steel transportation works in Chickasaw, Alabama, requested the corporation go to arbitration over layoffs and outsourcing of 19 staff on lower pay to do the same jobs. The United Steelworkers had a collective agreement which contained a provision for arbitration. Douglas J held that any doubts about whether the agreement allowed the issue to go to arbitration "should be resolved in favor of coverage."[http://www.worldlii.org/us/cases/federal/USSC/1960/109.html 363 US 574] (1960) See also United Steelworkers v. American Manufacturing Co. [http://www.worldlii.org/us/cases/federal/USSC/1960/107.html 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. An arbitrator's award is entitled to judicial enforcement so long as its essence is from the collective agreement.United Steelworkers v. Enterprise Wheel & Car Corp. [http://www.worldlii.org/us/cases/federal/USSC/1960/108.html 363 US 593] (1960) Courts can decline to enforce an agreement based on public policy, but this is different from "general considerations of supposed public interests".United Paperworkers v. Misco, Inc. 484 US 29 (1987) But while federal policy had encouraged arbitration where unions and employers had made agreements, the Supreme Court drew a clear distinction for arbitration over individual statutory rights. In Alexander v. Gardner-Denver Co. an employee claimed he was unjustly terminated, and suffered unlawful race discrimination under the Civil Rights Act of 1964. The Supreme Court held that he was entitled to pursue remedies both through arbitration and the public courts, which could re-evaluate the claim whatever the arbitrator had decided.[http://www.worldlii.org/us/cases/federal/USSC/1974/19.html 415 US 36] (1974) But then, in 2009 in 14 Penn Plaza LLC v. Pyett Thomas J announced with four other judges that apparently "[n]othing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative."{{ussc|=noperiods|556|247|2009}} joined by Roberts CJ, Scalia J, Kennedy J and Alito J This meant that a group of employees were denied the right to go to a public court under the Age Discrimination in Employment Act of 1967, and instead potentially be heard only by arbitrators their employer selected. Stevens J and Souter J, joined by Ginsburg J, Breyer J dissented, pointing out that rights cannot be waived even by collective bargaining.See also AT&T Mobility LLC v. Concepcion, {{ussc|=noperiods|563|333|2011}} another 5 to 4 decision on consumers. An Arbitration Fairness Act of 2011 has been proposed to reverse this, urging that "employees have little or no meaningful choice whether to submit their claims to arbitration".S.987 and H.R.1873 It remains unclear why NLRA 1935 §1, recognizing workers' "inequality of bargaining power" was not considered relevant to ensure that collective bargaining can only improve upon rights, rather than take them away. To address further perceived defects of the NLRA 1935 and the Supreme Court's interpretations, major proposed reforms have included the Labor Reform Act of 1977,HR 8410, 95th Cong (1977) S 1883, 95th Cong (1977) the Workplace Democracy Act of 1999, and the Employee Free Choice Act of 2009.HR 1409. S 560. All focus on speeding the election procedure for union recognition, speeding hearings for unfair labor practices, and improving remedies within the existing structure of labor relations.

{{Slist organize}}

{{main|Freedom of association|Unfair labor practice|Federal preemption}}

To ensure that employees are effectively able to bargain for a collective agreement, the NLRA 1935 created a group of rights in §158 to stall "unfair labor practices" by employers. These were considerably amended by the Taft–Hartley Act of 1947, where the US Congress over the veto of President Harry S. Truman decided to add a list of unfair labor practices for labor unions. This has meant that union organizing in the US may involve substantial levels of 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".307 US 496 (1939) Among many rights and duties relating to unfair labor practices, five main groups of case have emerged.

File:Weltec stopwork meeting, 19 March 2009 (3367324864).jpg, made unlawful by the National Labor Relations Act of 1935 §153, prohibit employers discriminating against people who organize a union and vote to get a 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.29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section158&num=0&edition=prelim §158] For example, in one of the first cases, NLRB v. Jones & Laughlin Steel Corp, the US Supreme Court held that the National Labor Relations Board was entitled to order workers be rehired after they had been dismissed for organizing a union at their plant in Aliquippa, Pennsylvania.[http://www.worldlii.org/us/cases/federal/USSC/1937/80.html 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." It is also unlawful for employers to monitor employees who are organizing, for instance by parking outside a union meeting,Filler Products, Inc. v. NLRB 376 F2d 369 (4th 1967) or videotaping employees giving out union fliers.e.g. Sunbelt Manufacturing Inc, AFL-CIO, 308 NLRB 780 (1992) This can include giving people incentives or bribes to not join a union. So in NLRB v. Erie Resistor Corp the Supreme Court held it was unlawful to give 20 years extra seniority to employees who crossed a picket line while the union had called a strike.[http://www.worldlii.org/us/cases/federal/USSC/1963/94.html 373 US 221] (1963) Second, and by contrast, the Supreme Court had decided in Textile Workers Union of America v. Darlington Manufacturing Co Inc that actually shutting down a recently unionized division of an enterprise was lawful, unless it was proven that the employer was motivated by hostility to the union.[http://www.worldlii.org/us/cases/federal/USSC/1965/60.html 380 US 263] (1965) Third, union members need the right to be represented, in order to carry out basic functions of collective bargaining and settle grievances or disciplinary hearings with management. This entails a duty of fair representation.Marquez v. Screen Actors Guild Inc., 525 US 33 (1998) In NLRB v. J. Weingarten, Inc. the Supreme Court held that an employee in a unionized workplace had the right to a union representative present in a management interview, if it could result in disciplinary action.420 US 251 (1975) Although the NLRB has changed its position with different political appointees, the DC Circuit has held the same right goes that non-union workers were equally entitled to be accompanied.Epilepsy Foundation of North-east Ohio v. NLRB (DC 2001) Fourth, under §158(a)(5) it is an unfair labor practice to refuse to bargain in good faith, and out of this a right has developed for a union to receive information necessary to perform collective bargaining work. However, in Detroit Edison Co v. NLRB the Supreme Court divided 5 to 4 on whether a union was entitled to receive individual testing scores from a program the employer used.440 US 301 (1979) Stevens, White, Brennan, Marshall J dissented. Also, in 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.502 US 527 (1992) 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.473 US 95 (1985) Blackmun, Brennan, Marshall, Stevens J dissented.

File:United States union membership and inequality, top 1% income share, 1910 to 2010.png declined income inequality rose, because labor unions have been the main way to participate at work.Sources: E McGaughey, 'Do corporations increase inequality?' (2015) [https://ssrn.com/abstract=2697188 TLI Think! Paper 32/2016], 29. Bureau of Labor Statistics, Series D 940–945 and Thomas Piketty (2014) Technical Appendices, Table S9.2 The US does not yet require employee representatives on boards of directors, or elected work councils.See further RL Hogler and GJ Grenier, Employee Participation and Labor Law in the American Workplace (1992)]]

The US Supreme Court policy of preemption, developed from 1953,See A Cox and MJ Seidman, 'Federalism and Labor Relations' (1950) [https://www.jstor.org/stable/1336175 64 Harvard Law Review 211] called for 'an integrated public labor policy' and warned 'enforcement of ... state regulation will thwart the development of federal policy.' A Cox, Federalism in the Law of Labor Relations (1954) [https://www.jstor.org/stable/1336794 67 Harvard Law Review 1297] argued for a 'rule of total federal preemption' for 'uniformity'. A Cox, 'Labor Law Preemption Revisited' (1972) [https://www.jstor.org/stable/1340014 85 Harvard Law Review 1337]. means that states cannot legislate where the NLRA 1935 does operate. The NLRA 1935 contains no clause requiring preemption as is found, for example, in the Fair Labor Standards Act 1938 §218(a) where deviations from the minimum wage or maximum hours are preempted, unless they are more beneficial to the employee. The first major case, Garner v. Teamsters Local 776, decided a Pennsylvania statute was preempted from providing superior remedies or processing claims quicker than the NLRB because "the Board was vested with power to entertain petitioners' grievance, to issue its own complaint" and apparent "Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules".[http://www.worldlii.org/us/cases/federal/USSC/1953/113.html 346 US 485] (1953) per Jackson J In San Diego Building Trades Council v. Garmon, the Supreme Court held that the California Supreme Court was not entitled to award remedies against a union for picketing, because if "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".[http://www.worldlii.org/us/cases/federal/USSC/1959/66.html 359 US 236] (1959) This was true, even though the NLRB had not given any ruling on the dispute because its monetary value was too small.[http://www.worldlii.org/us/cases/federal/USSC/1959/66.html 359 US 236] (1959) as Frankfurter J put it, "because the amount of interstate commerce involved did not meet the Board's monetary standards in taking jurisdiction. ... " This reasoning was extended in Lodge 76, International Association of Machinists v Wisconsin Employment Relations Commission, where a Wisconsin Employment Relations Commission sought to hold a union liable for an unfair labor practice, by refusing to work overtime. Brennan J held that such matters were to be left to "be controlled by the free play of economic forces".[http://www.worldlii.org/us/cases/federal/USSC/1976/140.html 427 US 132] (1976) While some of these judgments appeared beneficial to unions against hostile state courts or bodies, supportive actions also began to be held preempted. In Golden State Transit Corp. v. City of Los Angeles a majority of the Supreme Court held that Los Angeles was not entitled to refuse to renew a taxi company's franchise license because the Teamsters Union had pressured it not to until a dispute was resolved.[http://www.worldlii.org/us/cases/federal/USSC/1986/62.html 475 US 608] (1986) Rehnquist J dissented. Most recently in Chamber of Commerce v. Brown seven judges on the Supreme Court held that California was preempted from passing a law prohibiting any recipient of state funds either from using money to promote or deter union organizing efforts. Breyer J and Ginsburg J dissented because the law was simply neutral to the bargaining process.[http://www.worldlii.org/us/cases/federal/USSC/2008/22.html 522 US 60] (2008) State governments may, however, use their funds to procure corporations to do work that are union or labor friendly.Building & Construction Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc. [http://www.worldlii.org/us/cases/federal/USSC/1993/27.html 507 US 218] (1993)

{{Slist strike}}

{{main|Strike action|Collective action}}

File:-RedForEd (41008219574).jpg, are guaranteed the right to take collective action, including strikes, by international law, federal law and most state laws.B Gernigo, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) [http://www.rhap.org.za/wp-content/uploads/2014/05/ILO-Manual-on-Right-to-Strike.pdf 137 International Labour Review 441]. In US federal law, see the National Labor Relations Act of 1935, 29 USC §163.]]

The right of labor to take collective action, including the right to strike, has been fundamental to common law,Commonwealth v. Hunt 45 Mass. 111 (1842) decided that a union called the "Boston Journeymen Bootmakers' Society" was entitled to strike against an employer who hired non-union members. 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 federal law,Clayton Antitrust Act of 1914 §6 and National Labor Relations Act of 1935 §163. and international law for over a century.B Gernigon, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) [http://www.rhap.org.za/wp-content/uploads/2014/05/ILO-Manual-on-Right-to-Strike.pdf 137 International Labour Review 441] As New York teacher unions argued in the 1960s, "If you can't call a strike you don't have real collective bargaining, you have 'collective begging.'"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.' During the 19th century, many courts upheld the right to strike, but others issued injunctions to frustrate strikes,See EE Witte, 'Early American Labor Cases' (1926) [https://www.jstor.org/stable/789460 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) [https://www.jstor.org/stable/1328648 35 Harvard Law Review 393]. W. Holt, 'Labor Conspiracy Cases in the United States, 1805-1842: Bias and Legitimation in Common Law Adjudication' (1984) [http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1913&context=ohlj 22 Osgoode Hall Law Journal 591]. 'Tortious Interference with Contractual Relations in the Nineteenth Century' (1980) 93 Harvard Law Review 1510. and when the Sherman Antitrust Act of 1890 was passed to prohibit business combinations in restraint of trade, it was first used against labor unions. This resulted in Eugene Debs, American Railway Union leader and future Socialist Presidential candidate, being imprisoned for taking part in the Pullman Strike.In re Debs, 64 Fed 724 (CC Ill 1894), 158 US 564 (1895) The Supreme Court persisted in Loewe v. Lawlor in imposing damages for strikes under antitrust law, until Congress passed the Clayton Act of 1914. Seen as "the Magna Carta of America's workers",See Samuel Gompers, 'Labor and the War: the Movement for Universal Peace Must Assume the Aggressive' (October 1914) [https://babel.hathitrust.org/cgi/pt?id=mdp.39015034112782;view=1up;seq=874 XXI(1) American Federationist 849, 860]. this proclaimed that all collective action by workers was outside antitrust law under the Commerce Clause, because "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."United States v. Hutcheson 312 US 219 (1941) per Justice Frankfurter The same principles entered the founding documents of the International Labour Organization in 1919.See the Versailles Treaty 1919 [https://en.wikisource.org/wiki/Constitution_of_the_International_Labour_Office#Article_427 art 427]. The right to strike is now embedded in core Conventions of 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. Finally at the end of the Lochner erae.g. Coppage v. Kansas 236 US 1 (1915) purported to allow employees to sign a contract with their employer promising to not join a union (a "yellow-dog contract"). Duplex Printing Press Co. v. Deering, 254 US 443 (1921) holding that the Clayton Act of 1914 §17 did not enable secondary action. Truax v. Corrigan 257 US 312 (1921) Brandeis J, dissenting, struck down an Arizona law under the 14th amendment that prohibited any injunction against peaceful strikes. The 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. 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".NLRA 1935 29 USC [https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter7&edition=prelim §§157 and 163]

File:Cesar Chavez Day.jpg organized the United Farm Workers and campaigned for social justice under the slogan "Yes we can" and "Sí, se puede".See '[https://www.youtube.com/watch?v=gLqDu5yZj0M Cesar Chavez Explains Boycotts]' and '[https://www.youtube.com/watch?v=UlLs_fVBWzM Cesar Chavez speaking at UCLA 10/11/1972]'.]]

Although federal law guarantees the right to strike, American 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,e.g. in West Virginia, Kentucky, and Oklahoma it has been illegal for teachers to strike - a prohibition that violates international law - and teachers went on strike, and won anyway. See the 2018–19 education workers' strikes in the United States. police and firefighters, without adequate alternatives to set fair wages.Notably Calvin Coolidge, then Governor of Massachusetts said in the Boston Police Strike of 1919: "There is no right to strike against the public safety, anywhere, anytime." Workers have the right to take protected concerted activity.NLRA 1935 29 USC [https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter7&edition=prelim §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. 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.NLRB v. Insurance Agents' International Union, [http://www.worldlii.org/us/cases/federal/USSC/1960/23.html 361 US 477, 495-496] (1960) interpreting NLRA 1935, 29 USC §158(b)(3) 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.NLRA 1935 29 USC [https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter7&edition=prelim §158(b)(4)(B)] 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.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). 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.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. This said, employees may peacefully persuade customers to boycott any employer or related employer, for instance by giving out handbills.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. 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.NLRA 1935 29 USC §158(d) 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.National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292 (1939) 5 to 2, Reed J and Black J dissented.

File:What the Communications Workers Strike is About - Bernie Sanders.webm joined the Communication Workers Union strike against Verizon. American workers face serious obstacles to strike action, falling below 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,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 [http://www.legislation.gov.uk/ukpga/1992/52/part/V/crossheading/loss-of-unfair-dismissal-protection s 238A] protects employees on strike from unfair dismissal for 12 weeks at least. but the Supreme Court held in NLRB v. Mackay Radio & Telegraph Co. that employees on strike could be replaced by strikebreakers, and it was not an unfair labor practice for the employer to refuse to discharge the strikebreakers after the dispute was over.[http://www.worldlii.org/us/cases/federal/USSC/1938/131.html 304 US 333] (1938) This decision is widely condemned as a violation of international law.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) ([http://white.lim.ilo.org/spanish/260ameri/oitreg/activid/proyectos/actrav/sindi/english/casos/usa/usa199101.html 1991]) [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] [https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1073&context=jbl 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.' However the Supreme Court further held in NLRB v. Fansteel Metallurgical Corp. that the Labor Board cannot order an employer to rehire striking workers,NLRB v. Fansteel Metallurgical Corp. [http://www.worldlii.org/us/cases/federal/USSC/1939/46.html 306 US 240] (1939) Reed J and Black J dissented. and has even held that employers could induce younger employees more senior jobs as a reward for breaking a strike.Trans World Airlines, Inc v. Flight Attendants [http://www.worldlii.org/us/cases/federal/USSC/1989/34.html 489 US 426] (1989) Brennan J, Marshall J, Blackmun J dissented. 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.NLRB v. Electrical Workers 346 US 464 (1953) On the other hand, the Supreme Court has held there was a right to picket shops that refused to hire African-American workers.New Negro Alliance v. Sanitary Grocery Co., 303 US 552 (1938) The Supreme Court declared an Alabama law, which fined and imprisoned a picketer, to be unconstitutional.Thornhill v. Alabama, 310 US 88 (1940) The Supreme Court held unions could write newspaper publications to advocate for pro-labor political candidates.United States v. Congress of Industrial Organizations, 335 US 106 (1948) holding that unions advocating members vote for particular Congress candidates did not violate the Federal Corrupt Practices Act as amended by the Labor Management Relations Act. It also held a union could distribute political leaflets in non-work areas of the employer's property.Eastex, Inc. v. NLRB 437 US 556 (1978) 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.e.g. [https://assets.website-files.com/5ddc262b91f2a95f326520bd/5e3096b9feb8524936752fe0_CleanSlate_SinglePages_ForWeb_noemptyspace.pdf Clean Slate for Worker Power: Building a Just Economy and Democracy] (2019) Labor and Worklife Program, Harvard Law School.

{{Slist participation}}

{{see also|Economic democracy|US corporate law|Codetermination|Work council}}

File:Bernie Sanders and Elizabeth Warren.jpg and Bernie Sanders co-sponsored the Reward Work Act, introduced by Tammy Baldwin, for at least one third of listed company boards to be elected by employees,See the [https://www.congress.gov/bill/115th-congress/senate-bill/2605/text Reward Work Act, S.2605], sponsored by Tammy Baldwin, Elizabeth Warren, Brian Schatz, joined by Kirsten Gillibrand and more for large corporations.The Sanders "[https://berniesanders.com/issues/corporate-accountability-and-democracy/ 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. In 1980 the United Auto Workers collectively agreed 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".See Bernie Sanders, "[https://berniesanders.com/issues/corporate-accountability-and-democracy/ Corporate Accountability and Democracy: Shareholder Democracy]". J. R. Commons, Industrial Government (1921) [https://archive.org/stream/industrialgovern00comm#page/n13/mode/2up ch 6], L. D. Brandeis, Other People's Money and How the Bankers Use It (1914).]]

While collective bargaining was stalled by US Supreme Court preemption policy, a dysfunctional National Labor Relations Board, and falling union membership rate since the Taft–Hartley Act of 1947, employees have demanded direct voting rights at work: for corporate boards of directors, and in work councils that bind management.See E. McGaughey, 'Corporate Law Should Embrace Putting Workers On Boards: The Evidence Is Behind Them' (17 September 2018) [https://corpgov.law.harvard.edu/2018/09/17/corporate-law-should-embrace-putting-workers-on-boards-the-evidence-is-behind-them/ 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) [https://digitalcommons.law.seattleu.edu/sulr/vol42/iss2/18/ 42 Seattle University Law Review 697]. R. L. Hogler and G. J. Grenier, Employee Participation and Labor Law in the American Workplace (1992) This has become an important complement to both strengthening collective bargaining, and securing the votes in labor's capital on pension boards, which buy and vote on corporate stocks, and control employers.See D. Webber, The Rise of the Working Class Shareholder: Labor's Last Best Weapon (2018) and the section above on "Pensions". Labor law has increasingly converged with corporate law,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.' and in 2018 the first federal law, the Reward Work Act was proposed by three US senators to enable employees to vote for one third of the directors on boards of listed companies.See the [https://www.congress.gov/bill/115th-congress/senate-bill/2605/text Reward Work Act, S.2605], sponsored by Tammy Baldwin, Elizabeth Warren, Brian Schatz, joined by Kirsten Gillibrand. In the House, [https://www.govtrack.us/congress/bills/115/hr6096 HR 6096] was sponsored by Keith Ellison and Ro Khanna. In 1919, under the Republican governor Calvin Coolidge, Massachusetts became the first state with a right for employees in manufacturing companies to have employee representatives on the board of directors, but only if corporate stockholders voluntarily agreed.Massachusetts Laws, General Laws, Part I Administration of the Government, Title XII Corporations, [https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXII/Chapter156/Section23 ch 156 Business Corporations, §23]. This was originally introduced by An Act to enable manufacturing corporations to provide for the representation of their employees on the board of directors (April 3, 1919) Chap. 0070. cf C. Magruder, 'Labor Copartnership in Industry' (1921) [https://www.jstor.org/stable/1329012 35 Harvard Law Review 910], 915, mentioning the Dennison Manufacturing Co at Framingham. Also in 1919 both Procter & Gamble and the General Ice Delivery Company of Detroit had employee representation on boards.NM Clark, Common Sense in Labor Management (1919) [https://archive.org/stream/commonsenseinlab00claruoft#page/28 ch II, 29–30] Board representation for employees spread through the 1920s, many without requiring any employee stock ownership plan.See W. O. Douglas and C. M. Shanks, Cases and Materials on the Law of Management of Business Units (Callaghan 1931) [https://babel.hathitrust.org/cgi/pt?id=wu.89098553043;view=1up;seq=154 ch 1(7) 130] and J. R. Commons, Industrial Government (1921) [https://archive.org/stream/industrialgovern00comm#page/n13/mode/2up ch 6] In the early 20th century, labor law theory split between those who advocated collective bargaining backed by strike action, those who advocated a greater role for binding arbitration,See generally 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. and proponents of codetermination as "industrial democracy".See Commission on Industrial Relations, Final Report and Testimony (1915) vol 1, 92 ff, and L. D. Brandeis, The Fundamental Cause of Industrial Unrest (1916) vol 8, 7672 and Sidney Webb and Beatrice Webb, The History of Trade Unionism (1920) Appendix VIII Today, these methods are seen as complements, not alternatives. A majority of countries in the Organisation for Economic Co-operation and Development have laws requiring direct participation rights.See further, [http://www.worker-participation.eu www.worker-participation.eu], E McGaughey, 'Votes at Work in Britain: Shareholder Monopolisation and the 'Single Channel' (2018) [https://ssrn.com/abstract=2432068 15(1) Industrial Law Journal 76] and 'The Codetermination Bargains: The History of German Corporate and Labour Law' (2016) [https://ssrn.com/abstract=2579932 23(1) Columbia Journal of European Law 135]. In 1994, the 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.Dunlop Commission on the Future of Worker-Management Relations: Final Report ([http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1004&context=key_workplace 1994]) Congressional division prevented federal reform, but labor unions and state legislatures have experimented.

{{quote box|bgcolor=#c6dbf7|width=26em|salign=right|quote=... while there are many contributing causes to unrest ... one cause ... is fundamental. That is the necessary conflict—the contrast between our political liberty and our industrial absolutism. We are as free politically, perhaps, as free as it is possible for us to be. ... On the other hand, in dealing with industrial problems, the position of the ordinary worker is exactly the reverse. The individual employee has no effective voice or 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.|source= —Louis Brandeis, Testimony to Commission on Industrial Relations (1916) vol 8, 7659–7660}}

Corporations are chartered under state law, the larger mostly in Delaware, but leave investors free to organize voting rights and board representation as they choose.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 Because of unequal bargaining power, but also because of historic caution among American labor unions about taking on management,e.g. RA Dahl, 'Power to the Workers?' (November 19, 1970) [http://www.nybooks.com/articles/1970/11/19/power-to-the-workers/ New York Review of Books] 20 shareholders have come to monopolize voting rights in American corporations. From the 1970s employees and unions sought representation on company boards. This could happen through collective agreements, as it historically occurred in Germany or other countries, or through employees demanding further representation through employee stock ownership plans, but they aimed for voice independent from capital risks that could not be diversified. By 1980, workers had attempted to secure board representation at corporations including United Airlines, the General Tire and Rubber Company, and the Providence and Worcester Railroad.See B Hamer, 'Serving Two Masters: Union Representation on Corporate Boards of Directors' (1981) [https://www.jstor.org/stable/1122261 81(3) Columbia Law Review 639], 640 and 'Labor Unions in the Boardroom: An Antitrust Dilemma' (1982) [http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1115&context=facpubs 92(1) Yale Law Journal 106] However, in 1974 the Securities and Exchange Commission, run by appointees of Richard Nixon, had rejected that employees who held shares in AT&T were entitled to make shareholder proposals to include employee representatives on the board of directors.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 This position was eventually reversed expressly by the Dodd–Frank Act of 2010 §971, which subject to rules by the Securities and Exchange Commission entitles shareholders to put forward nominations for the board.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) Instead of pursuing board seats through shareholder resolutions the United Auto Workers, for example, successfully sought board representation by collective agreement at Chrysler in 1980.J. D. Blackburn, 'Worker Participation on Corporate Directorates: Is America Ready for Industrial Democracy?' (1980–1981) 18 Houston Law Review 349 The United Steel Workers secured board representation in five corporations in 1993.'The Unions Step on Board' (October 27, 1993) Financial Times Some representation plans were linked to employee stock ownership plans, and were open to abuse. At the energy company, Enron, workers were encouraged by management to invest an average of 62.5 per cent of their retirement savings from 401(k) plans in Enron stock against basic principles of prudent, diversified investment, and had no board representation. When Enron collapsed in 2003, employees lost a majority of their pension savings.P. J. Purcell, 'The Enron Bankruptcy and Employer Stock in Retirement Plans' (March 11, 2002) [https://fpc.state.gov/documents/organization/9102.pdf CRS Report for Congress] and JH Langbein, SJ Stabile and BA Wolk, Pension and Employee Benefit Law (4th edn Foundation 2006) 640–641 For this reason, employees and unions have sought representation because they invest their labor in the firm, and do not want undiversifiable capital risk. Empirical research suggests by 1999 there were at least 35 major employee representation plans with worker directors, though often linked to corporate stock.See RB McKersie, 'Union-Nominated Directors: A New Voice in Corporate Governance' (April 1, 1999) MIT Working Paper. Further discussion in E. Appelbaum and LW Hunter, 'Union Participation in Strategic Decisions of Corporations' (2003) NBER Working Paper 9590

File:Chattanooga Phoenix Solar AG.jpg,See E Schelzig, '[https://www.usatoday.com/story/money/business/2013/01/23/tenn-volkswagen-plant-solar/1858937/ Volkswagen powers up 33-acre solar park in Tenn.]' (January 23, 2013) USA Today the Volkswagen plant at Chattanooga, Tennessee, has debated introducing 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 work councils. After the National War Labor Board was established by the Woodrow Wilson administration, firms established work councils with some rights throughout the 1920s.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. Frequently, however, management refused to concede the "right to employ and discharge, the direction of the working forces, and the management of the business" in any way,NICB, Works Council Manual (1920) Supplemental to Research Report No 21, 25, Appendix, Model Article II(1) which from the workforce perspective defeated the object. As the US presidency changed to the Republican party during the 1920s, work "councils" were often instituted by employers that did not have free elections or proceedings, to forestall independent labor unions' right to collective bargaining. For this reason, the National Labor Relations Act of 1935 §158(a)(2) ensured it was an unfair labor practice for an employer "to dominate or interfere with the formation or administration of any labor organization, or contribute financial or other support to it".NLRA 1935 §158(a)(2) This was designed to enable free work councils, genuinely independent from management, but not dominated work councils or so called "company unions".See further NLRB v. Newport News Shipbuilding Co. 308 US 241 (1939) For example, a work council law was passed by the US government in Allied-occupied Germany called Control Council Law, No 22. This empowered German workers to organize work councils if elected by democratic methods, with secret ballots, using participation of free labor unions, with basic functions ranging from how to apply collective agreements, regulating health and safety, rules for engagements, dismissals and grievances, proposals for improving work methods, and organizing social and welfare facilities.[https://en.wikisource.org/wiki/Control_Council_Law_No_22_(10_April_1946)_Works_Councils 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. These rules were subsequently updated and adopted in German law, although American employees themselves did not yet develop a practice of bargaining for work councils, nor did states implement work council rules, even though neither were preempted by the National Labor Relations Act of 1935.See San Diego Building Trades Council v. Garmon [http://www.worldlii.org/us/cases/federal/USSC/1959/66.html 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." In 1992, the National Labor Relations Board in its Electromation, Inc,309 NLRB No 163, 142 LRRM 1001 (1992) and EI du Pont de Nemours,311 NLRB No 88, 143 LRRM 1121 (1993) decisions confirmed that while management dominated councils were unlawful, genuine and independent work councils would not be. The Dunlop Report in 1994 produced an inconclusive discussion that favored experimentation with work councils.US Department of Labor and US Department of Commerce, Commission on the Future of Worker-Management Relations: Final Report (1994) 22, 27, 30–31. A Republican Congress did propose a Teamwork for Employees and Managers Act of 1995 to repeal §158(a)(2), but this was vetoed by President Bill Clinton as it would have enabled management dominated unions and councils. In 2014, workers at the Volkswagen Chattanooga Assembly Plant, in Chattanooga, Tennessee, sought to establish a work council. This was initially supported by management, but its stance changed in 2016, after the United Auto Workers succeeded in winning a ballot for traditional representation in an exclusive bargaining unit.J Ramsey, '[http://www.autoblog.com/2015/12/06/vw-chattanooga-unionize-workforce/ VW Chattanooga plant union votes to approve collective bargaining]' (December 6, 2015) autoblog.com and NE Boudette, '[https://www.nytimes.com/2016/04/26/business/volkswagen-reverses-courseon-union-at-tennessee-plant.html?_r=0 Volkswagen Reverses Course on Union at Tennessee Plant]' (April 25, 2016) NY Times As it stands, employees have no widespread right to vote in American workplaces, which has increased the gap between political democracy and traditional labor law goals of workplace and economic democracy.

{{See also|US employment discrimination law|European labour law|UK employment discrimination law}}

File:Martin Luther King Jr. addresses a crowd from the steps of the Lincoln Memorial, USMC-09611.jpg, followed the March on Washington for Jobs and Freedom in 1963. The head of the movement, Martin Luther King Jr. told America, "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 US Declaration of Independence in 1776 proclaimed that "all men are created equal",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. ... the Constitution was progressively amended, and legislation was written, to spread equal rights to all people. While the right to vote was needed for true political participation, the "right to work" and "free choice of employment" came to be seen as necessary for "Life, Liberty and the pursuit of Happiness".See the Universal Declaration of Human Rights of 1948 and the Second Bill of Rights of 1944. After state laws experimented, President Franklin D. Roosevelt's Executive Order 8802 in 1941 set up the Fair Employment Practice Committee to ban discrimination by "race, creed, color or national origin" in the defense industry. The first comprehensive statutes were the Equal Pay Act of 1963, to limit discrimination by employers between men and women, and the Civil Rights Act of 1964, to stop discrimination based on "race, color, religion, sex, or national origin."Civil Rights Act of 1964 §703(a)(1), 42 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim §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." In the following years, more "protected characteristics" were added by state and federal acts. The Age Discrimination in Employment Act of 1967 protects people over age 40. The Americans with Disabilities Act of 1990 requires "reasonable accommodation" to include people with disabilities in the workforce. Twenty two state Acts protect people based on sexual orientation in public and private employment, but proposed federal laws have been blocked by Republican opposition. There can be no detriment to union members, or people who have 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.Civil Rights Act of 1964, 42 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim §2000e-2(j)] The law has not, however, succeeded in eliminating the disparities in income by race, health, age or socio-economic background.

{{Slist constitutional equality}}

{{see also|Equal opportunity|Discrimination}}

The right to equality in employment in the United States comes from at least six major statutes, and limited jurisprudence of the US Supreme Court, leaving the law inconsistent and full of exceptions. Originally, the US Constitution entrenched gender, race and wealth inequality by enabling states to maintain slavery,See Dred Scott v. Sandford, [http://www.worldlii.org/us/cases/federal/USSC/1856/9.html 60 US 393] (1857). 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) reserve the vote to white, property owning men,On the end of this, see Harper v. Virginia Board of Elections, [http://www.worldlii.org/us/cases/federal/USSC/1966/58.html 383 US 663] (1966) and contrast Yick Wo v. Hopkins [http://www.worldlii.org/us/cases/federal/USSC/1886/197.html 118 US 356], 370 (1886) referring to 'the political franchise of voting' as a 'fundamental political right, because [it is] preservative of all rights.' and enabling employers to refuse employment to anyone. After the Emancipation Proclamation in the American Civil War, the Thirteenth, Fourteenth and Fifteenth Amendments attempted to enshrined equal civil rights for everyone,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". while the Civil Rights Act of 1866,42 USC §1981(a) and 1875 spelled out that everyone had the right to make contracts, hold property and access accommodation, transport and entertainment without discrimination. However, in 1883 the US Supreme Court in the Civil Rights Cases put an end to development by declaring that Congress was not allowed to regulate the actions of private individuals rather than public bodies.[http://www.worldlii.org/us/cases/federal/USSC/1883/182.html 109 US 3] (1883) In his dissent, 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".See also Plessy v. Ferguson, [http://www.worldlii.org/us/cases/federal/USSC/1896/151.html 163 US 537] (1896) holding that state laws segregating black from white people in public places (or "Jim Crow laws"), such as Louisiana's Separate Car Act of 1890, were constitutional. Harlan J dissented. See also Lochner v. New York 198 US 45 (1905)

File:United States President Barack Obama bends down to allow the son of a White House staff member to touch his head.jpgs of the Fifth and Fourteenth Amendments has been disputed. 125 years after Harlan J wrote his famous dissent that all social institutions should be bound to equal rights,See the Civil Rights Cases [http://www.worldlii.org/us/cases/federal/USSC/1883/182.html 109 US 3] (1883) where the majority struck down the Civil Rights Act of 1875 Barack Obama won election for President.]]

By 1944, the position had changed. In Steele v. Louisville & Nashville Railway Co.,[http://www.worldlii.org/us/cases/federal/USSC/1944/136.html 323 US 192] (1944) a Supreme Court majority held a labor union had a duty of fair representation and may not discriminate against members based on race under the Railway Labor Act of 1926 (or the National Labor Relations Act of 1935. Murphy J would have also based the duty on a right to equality in the Fifth Amendment). Subsequently, Johnson v. Railway Express Agency admitted that the old Enforcement Act of 1870 provided a remedy against private parties.[http://www.worldlii.org/us/cases/federal/USSC/1975/90.html 421 US 454] (1975) However, the Courts have not yet accepted a general right of equality, regardless of public or private power. Legislation will usually be found unconstitutional, under the Fifth or Fourteenth Amendment if discrimination is shown to be intentional,See Washington v. Davis [http://www.worldlii.org/us/cases/federal/USSC/1976/107.html 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. or if it irrationally discriminates against one group. For example, in Cleveland Board of Education v. LaFleur the Supreme Court held by a majority of 5 to 2, that a school's requirement for women teachers to take mandatory maternity leave was unconstitutional, against the Due Process Clause, because it could not plausibly be shown that after child birth women could never perform a job.[http://www.worldlii.org/us/cases/federal/USSC/1974/13.html 414 US 632] (1974) But while the US Supreme Court has failed, against dissent, to recognize a constitutional principle of equality,See Massachusetts Board of Retirement v. Murgia, [http://www.worldlii.org/us/cases/federal/USSC/1976/141.html 427 US 307] (1976) and Regents of the University of California v. Bakke [http://www.worldlii.org/us/cases/federal/USSC/1978/145.html 438 US 265] (1978). Contrast Kücükdeveci v. Swedex GmbH & Co KG (2010) [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007J0555:EN:NOT C-555/07] affirming a constitutional equality principle in EU law and Matadeen v. Pointu [1998] [http://www.bailii.org/uk/cases/UKPC/1998/9.html UKPC 9], per Lord Hoffmann discussing the principle of equality as it is potentially seen in Commonwealth jurisdictions. 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.California Fed Savings and Loan Ass v. Guerra [http://www.worldlii.org/us/cases/federal/USSC/1987/3.html 479 US 272] (1987) holding the California Fair Employment and Housing Act of 1959 §12945(b)(2) was not preempted.

{{Slist employment equality}}

{{see also|Disparate treatment|Bona fide occupational qualification|Harassment|US workplace sexual harassment|Retaliation (law)}}

Today legislation bans discrimination, that is unrelated to an employee's ability to do a job, based on sex, race,e.g. Saint Francis College v. al-Khazraji, 481 US 604 (1987) an Arabic man was protected from race discrimination under CRA 1964 ethnicity, national origin, age and disability.Contrast the International Labour Organization Discrimination Convention 1958 [http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C111 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". The Equal Pay Act of 1963 banned gender pay discrimination, amending the Fair Labor Standards Act of 1938. Plaintiffs must show an employing entity pays them less than someone of the opposite sex in an "establishment" for work of "equal skill, effort, or responsibility" under "similar working conditions". Employing entities may raise a defense that pay differences result from a seniority or merit system unrelated to sex.29 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section206&num=0&edition=prelim §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. For example, in Corning Glass Works v. Brennan the Supreme Court held that although women plaintiffs worked at different times in the day, compared to male colleagues, the working conditions were "sufficiently similar" and the claim was allowed.[http://www.worldlii.org/us/cases/federal/USSC/1974/114.html 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). One drawback is the equal pay provisions are subject to multiple exemptions for groups of employees found in the FLSA 1938 itself. Another is that equal pay rules only operate within workers of an "enterprise",FLSA 1938, 29 USC §203(r) 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,After the Supreme Court held by 6 to 3 in Geduldig v. Aiello [http://www.worldlii.org/us/cases/federal/USSC/1974/129.html 417 US 484] (1974) that pregnancy was not included in the concept of sex, Congress reversed the decision by the Pregnancy Discrimination Act of 1978. But see AT&T Corporation v. Hulteen, {{Ussc|556|701|2009|el=no}} 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. and is prohibited in general by the landmark Civil Rights Act of 1964.CRA 1964, 42 USC [http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter21/subchapter6&edition=prelim §2000e-2]

File:We Can Do It! NARA 535413 - Restoration 2.jpg symbolized women factory workers in World War II. The Equal Pay Act of 1963 banned pay discrimination within workplaces.cf ILO Equal Remuneration Convention 1951 [http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C100 c 100], art 2(2) requiring the principle of equal pay through "(a) national laws or regulations; (b) legally established or recognised machinery for wage determination; (c) collective agreements between employers and workers".]]

Beyond gender equality on the specific issue of pay, the Civil Rights Act of 1964 is the general anti-discrimination statute. Titles I to VI protects the equal right to vote, to access public accommodations, public services, schools, it strengthens the Civil Rights Commission, and requires equality in federally funded agencies. Title VII of the Civil Rights Act of 1964 bans discrimination in employment. Under §2000e-2, employers must not refuse to hire, discharge or discriminate "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."CRA 1964, 42 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim §2000e-2(a)(1)] Segregation in employment is equally unlawful.CRA 1964, 42 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim §2000e-2(a)(2)] The same basic rules apply for people over 40 years old,ADEA 1967, 29 USC [http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter14&edition=prelim §§623 and 631] and for people with disabilities.ADA 1990, 42 USC [http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter126/subchapter1&edition=prelim §12112(a)–(b)] Although states may go further, a significant limit to federal law is a duty only falls on private employers of more than 15 staff, or 20 staff for age discrimination.CRA 1964, 42 USC §2000e(b). See Walters v. Metropolitan Educational Enterprises, Inc 519 US 202 (1997) Within these limits, people can bring claims against disparate treatment. In Texas Department of Community Affairs v. Burdine the US Supreme Court held plaintiffs will establish a prima facie case of discrimination for not being hired if they are in a protected group, qualified for a job, but the job is given to someone of a different group. It is then up to an employer to rebut the case, by showing a legitimate reason for not hiring the plaintiff.450 US 248 (1981) and see previously McDonnell Douglas Corp. v. Green, 411 US 792 (1973) However, in 1993, this position was altered in St. Mary's Honor Center v. Hicks where Scalia J held (over the dissent of four justices) that if an employer shows no discriminatory intent, an employee must not only show the reason is a pretext, but show additional evidence that discrimination has taken place.[http://www.worldlii.org/us/cases/federal/USSC/1993/94.html 509 US 502] (1993) Souter J in dissent, pointed out the majority's approach was "inexplicable in forgiving employers who present false evidence in court".Contrast O'Connor v. Consolidated Coin Caterers Corporation 517 US 308 (1996) on age discrimination

Disparate treatment can be justified under CRA 1964 §2000e-2(e) if an employer shows selecting someone reflects by "religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."CRA 1965, 42 USC §2000e-2(e) Race is not included. For example, in Dothard v. Rawlinson the state of Alabama prohibited women from working as prison guards in "contact" jobs, with close proximity to prisoners. It also had minimum height and weight requirements (5"2 and 120 lbs), which it argued were necessary for proper security. Ms Rawlinson claimed both requirements were unlawful discrimination. A majority of 6 to 3 held that the gender restrictions in contact jobs were a bona fide occupational qualification, because there was a heightened risk of sexual assault, although Stewart J suggested the result might have differed if the prisons were better run. A majority held the height and weight restrictions, while neutral, had a disparate impact on women and were not justified by business necessity.[http://www.worldlii.org/us/cases/federal/USSC/1977/143.html 433 US 321] (1977) By contrast, in Wilson v. Southwest Airlines Co., a Texas District Court held an airline was not entitled to require women only to work as cabin attendants (who were further required to be "dressed in high boots and hot-pants") even if it could show a consumer preference. The essence of the business was transporting passengers, rather than its advertising metaphor of "spreading love all over Texas", so that there was no "bona fide occupational requirement".[https://en.wikisource.org/wiki/Wilson_v._Southwest_Airlines_Co./Opinion_of_the_Court 517 FSupp 292] (ND Tex 1981) Under the 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.[http://www.worldlii.org/us/cases/federal/USSC/1985/161.html 472 US 400] (1985)

{{quote box|bgcolor=#c6dbf7|width=20em|salign=right|quote=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. ... |source= —Martin Luther King Jr., Speech to the Fourth Constitutional Convention AFL–CIO Miami, Florida (11 December 1961)}}

In addition to prohibitions on discriminatory treatment, harassment, and detriment in retaliation for asserting rights, is prohibited. In a particularly obscene case, Meritor Savings Bank v. Vinson the Supreme Court unanimously held that a bank manager who coerced a woman employee into having sex with him 40 to 50 times, including rape on multiple occasions, had committed unlawful harassment within the meaning of 42 USC §2000e.[http://www.worldlii.org/us/cases/federal/USSC/1986/139.html 477 US 57] (1986) But also if employees or managers create a "hostile or offensive working environment", this counts as discrimination. In Harris v. Forklift Systems, Inc. the Court held that a "hostile environment" did not have to "seriously affect employees' psychological well-being" to be unlawful. If the environment "would reasonably be perceived, and is perceived, as hostile or abusive" this is enough.[https://www.law.cornell.edu/supct/html/92-1168.ZO.html 510 US 17] (1993) reversing the Sixth Circuit. Standard principles of agency and vicariously liability apply, so an employer is responsible for the actions of its agents,Burlington Industries Inc v. Ellerth [http://www.worldlii.org/us/cases/federal/USSC/1998/83.html 524 US 742] (1998) relying on Restatement of Torts §219 But according to Faragher v. City of Boca Raton an employing entity can avoid vicarious liability if it shows it (a) exercised reasonable care to prevent and promptly correct any harassment and (b) a plaintiff unreasonably failed to take advantage of opportunities to stop it.[http://www.worldlii.org/us/cases/federal/USSC/1998/84.html 524 US 775] (1998) n.b. Oncale v. Sundowner Offshore Services, Inc., [http://www.worldlii.org/us/cases/federal/USSC/1998/21.html 523 US 75] (1998) sexual harassment was possible between members of the same sex. In addition, an employing entity may not retaliate against an employee for asserting his or her rights under the Civil Rights Act of 1964,CRA 1964, 42 USC §2000e-3 or the Age Discrimination in Employment Act of 1967.Gomez-Perez v. Potter, 553 US 474 (2008) 6 to 3. In University of Pennsylvania v. Equal Employment Opportunity Commission, the Supreme Court held that a university was not entitled to refuse to give up peer review assessment documents in order for the EEOC to investigate the claim.[http://www.worldlii.org/us/cases/federal/USSC/1990/4.html 493 US 182] (1990) 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.519 US 337 (1997) 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.Burlington Northern & Santa Fe (BNSF) Railway Co. v. White, 548 US 53 (2006) This is all seen as necessary to make equal rights effective.

{{see also|Disparate impact}}

{{Slist equal impact}}

In addition to disparate treatment, employing entities may not use practices having an unjustified disparate impact on protected groups. In Griggs v. Duke Power Co., a power company on the Dan River, North Carolina, required a high school diploma for staff to transfer to higher paying non-manual jobs. Because of racial segregation in states like North Carolina, fewer black employees than white employees had diplomas.At the time, only 34% of white men and 12% of black men had high school diplomas: 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. The court found a diploma was wholly unnecessary to perform the tasks in higher paying non-manual jobs. Burger CJ, for a unanimous Supreme Court, held the "Act proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation." An employer could show that a practice with disparate impact followed "business necessity" that was "related to job performance" but otherwise such practices would be prohibited.[http://www.worldlii.org/us/cases/federal/USSC/1971/46.html 401 US 424] (1971) It is not necessary to show any intention to discriminate, just a discriminatory effect. Since amendments by the Civil Rights Act of 1991,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". if disparate impact is shown the law requires employers "to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity" and that any non-discriminatory "alternative employment practice" is not feasible.CRA 1964, 42 USC §2000e–2(k)(1)(A) On the other hand, in Ricci v. DeStefano five Supreme Court judges held the City of New Haven had acted unlawfully by discarding test results for firefighters, which it concluded could have had an unjustified disparate impact by race.{{ussc|557|557|2009}} Kennedy J giving the first judgment. In a further concurrence, Scalia J said "resolution of this dispute merely postpones the evil day" when a disparate impact might be found 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.{{ussc|557|557|dissent|2009}} Ginsburg J, joined by Stevens J, Souter J and Breyer J

File:Secretary Clinton Smiles With South African Minister Maite Nkoana-Mashabane.jpg, 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,42 USC [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-5&num=0&edition=prelim §§2000e-5] to [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-6&num=0&edition=prelim 2000e-6] 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".Federal Rules of Civil Procedure [https://www.federalrulesofcivilprocedure.org/frcp/title-iv-parties/rule-23-class-actions/ Rule 23] 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,e.g. International Brotherhood of Teamsters v. US [http://www.worldlii.org/us/cases/federal/USSC/1977/90.html 431 US 324] (1977) so long as there is sufficiently specific presentation of issues of law and fact to certify the action.See General Telephone Co of Southwest v. Falcon [http://www.worldlii.org/us/cases/federal/USSC/1982/117.html 457 US 147] (1982)

A significant practical problem for disparate impact claims is the "Bennett Amendment" in the Civil Rights Act of 1964 §703(h). Though introduced as a supposedly "technical" amendment by a Utah Republican senator, it requires that claims for equal pay between men and women cannot be brought unless they fulfill the requirements of the Fair Labor Standards Act of 1938 § 206(d)(1).29 USC §206(d)(1). This says that employers have a defense to employee claims if unequal pay (purely based on gender) flows from "(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." By contrast, for claims alleging discriminatory pay on grounds of race, age, sexual orientation or other protected characteristics, an employer only has the more restricted defenses available in the CRA 1964 §703(h).This exempts (i) a bona fide seniority system (ii) merit systems (iii) systems measuring earnings by quantity or quality of production. In County of Washington v. Gunther[http://www.worldlii.org/us/cases/federal/USSC/1981/126.html 452 US 161] (1981) the majority of the Supreme Court accepted that this was the correct definition. In principle, this meant that a group of women prison guards, who did less time working with prisoners than men guards, and also did different clerical work, would be able to bring a claim—there was no need to be doing entirely "equal work". However 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).See also Schultz v. Wheaton Glass Co, 421 F.2d 259 (3rd Cir 1970) 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.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.

{{main|Affirmative action in the US|Board diversity|Disability in the US|Reasonable accommodation|Positive action}}

{{Slist affirmative action}}

• Civil Rights Act of 1964, 42 USC §2000e-(j)
• United Steelworkers v. Weber, 443 U.S. 193 (1979) 5 to 3 held that the Civil Rights Act did not prohibit preference being given to under-represented groups as a temporary measure to correct historical disadvantage. Black workers were assured half the places in an on the job training program, pursuant to a collective agreement. Rehnquist J dissented.
• Bushey v. New York State Civil Service Commission, 733 F2d 220 (2nd 1984) the use of a separate grading curve on the New York Civil Service Commission entrance test for minority candidates was legitimate
• Johnson v. Transportation Agency 480 US 616 (1987) 7 to 2, White J and Scalia J dissenting an employer was entitled to give preference to women who possessed qualifications for a job, even if not equally qualified.
• Local No. 93, International Association of Firefighters v. City of Cleveland 478 US 501 (1986) a consent decree giving preference in promotions to black fireman in Cleveland was lawful under Title VII, although a District Court would not be entitled to impose a similar preference.
• Local 28, Sheet Metal Workers' International Association v. EEOC 478 US 421 (1986) a district court could have a goal of minority membership in a union that had a history of race discrimination in the construction industry.
• Wygant v. Jackson Board of Education 476 US 267 (1986) a preference for teachers to be laid off in reverse order of seniority unless this would reduce the percentage of minority teachers was collectively agreed. Held, under strict scrutiny, the preference was unlawful under the Fourteenth Amendment because it was not based on evidence of past discrimination. Marshall J, joined by Brennan J, Blackmun J, Stevens J dissented
• US v. Paradise 480 US 149 (1987) a judicially ordered preference to remedy longstanding discrimination in the Alabama Department of Public Safety hiring and promotion of state troopers was lawful.
• City of Richmond v. J.A. Croson Co., 488 US 469 (1989) 6 to 3, government contracting according to diversity criteria unlawful. Race preference is subject to strict scrutiny, or more difficult to justify than other remedies for discrimination.
• Adarand Constructors, Inc. v. Peña, 515 US 200 (1995) federal agency contracts and subcontracts
• Piscataway School Board v. Taxman, 91 F3d 1547 (3d Cir. 1996) case dropped, on affirmative action
• Morton v. Mancari 417 US 535 (1974) held preference of Native Americans in the Bureau of Indian Affairs was compatible with Title VII and the Fifth Amendment, as it was "reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups."
• EEOC, Guidelines on Affirmative Action (2009) 29 CFR [https://www.gpo.gov/fdsys/pkg/CFR-2014-title29-vol4/xml/CFR-2014-title29-vol4-part1608.xml §1608]
• OFCCP Regulations, 41 CFR §60 based on Executive Order 11246, 3 CFR 339

File:Rooseveltinwheelchair.jpg, suffering from polio, required a wheelchair through his Presidency.]]

• Veterans' Preference Act of 1944
• Rehabilitation Act of 1973, 29 USC §§705, 791–794e
• Borkowski v. Valley Central School District 63 F3d 131 (2nd 1995) burden of proof
• Vande Zande v. Wisconsin Department of Administration 44 F3d 538 (7th 1995)
• Southeastern Community College v. Davis 442 US 397 (1979) a duty of reasonable accommodation did not apparently amount to a duty of affirmative action under §§501–3
• Americans with Disabilities Act of 1990, 42 USC §§12101–12213
• Cleveland v. Policy Management Systems Corp 562 US 795 (1999)
• Sutton v. United Airline, Inc 527 US 471 (1999)
• Albertson's Inc v. Kirkingburg 527 US 555 (1999)
• Murphy v. United Parcel Service 527 US 516 (1999)
• Toyota Motor Manufacturing, Kentucky, Inc. v. Williams 534 US 184 (2002)
• US Airways Inc v. Barnett 535 US 391 (2002) bad back, request for transfer against seniority system. Breyer J saying that (apparently) seniority systems "encourage employees to invest in the employing company, accepting 'less than their value to the firm early in their careers' in return for greater benefits in later years."
• New York City Transit Authority v. Beazer 440 U.S. 568 (1979) Civil Rights Act of 1964, legality of discrimination against methadone users
• Family and Medical Leave Act of 1993, Equality Act of 2015

{{main|Freedom of movement under United States law|Immigration law|Immigration to the United States}}

• Corfield v. Coryell, 6 Fed. Cas. 546 (1823)
• Paul v. Virginia, 75 U.S. 168 (1869)
• Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) 5 to 4, an immigrant worker, who had arrived without permission, denied effective rights under the NLRA 1935 for helping in union organizing.
• History of immigration to the United States
• Immigration Reform and Control Act of 1986, 8 USC [http://uscode.house.gov/view.xhtml?req=(title:8%20section:1324b%20edition:prelim)%20OR%20(granuleid:USC-prelim-title8-section1324b)&f=treesort&edition=prelim&num=0&jumpTo=true §1324b] and [http://uscode.house.gov/view.xhtml?req=(title:8%20section:1324a%20edition:prelim)%20OR%20(granuleid:USC-prelim-title8-section1324a)&f=treesort&num=0&edition=prelim §1324a] "unlawful employment of aliens"
• Illegal immigration to the United States
• Comprehensive Immigration Reform Act of 2007

{{main|Job security|Full employment}}

File:FDR Fireside Chat December 24, 1943.jpg 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.See Centre for Business Research, Labour Regulation Index (Dataset of 117 Countries) ([https://www.repository.cam.ac.uk/bitstream/handle/1810/256566/cbr-lri-117-countries-codebook-and-methodology.pdf?sequence=1 2016]) 763-4 Any employment contract can require job security, but employees other than corporate executives or managers rarely have the bargaining power to contract for job security.See LE Blades, 'Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power' (1967) [https://www.jstor.org/stable/1120937 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) Collective agreements often aim to ensure that employees can only be terminated for a "just cause", but the vast majority of Americans have no protection other than the rules at common law. Most states follow a rule that an employee can be terminated "at will" by the employer: for a "good reason, a bad reason, or no reason at all", so long as no statutory rule is violated.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) Most states have public policy exceptions to ensure that an employee's discharge does not frustrate the purpose of statutory rights. Although the Lloyd–La Follette Act of 1912 required that federal civil servants cannot be dismissed except for a "just cause", no federal or state law (outside MontanaMontana Code Annotated 2015 [http://leg.mt.gov/bills/mca/title_0390/chapter_0020/part_0090/section_0040/0390-0020-0090-0040.html Title 39 ch 2 part 9, §4]) protects all employees yet. There are now a growing number of proposals to do this.e.g. Bernie Sanders presidential campaign, Workplace Democracy Plan ([https://berniesanders.com/issues/workplace-democracy/ 2019]). Mike Siegel Congress campaign in Texas 2020, [https://siegelfortexas.org/labor-rights/ Dignity for Workers by Protecting and Growing Union Membership] {{Webarchive|url=https://web.archive.org/web/20200322194605/https://siegelfortexas.org/labor-rights/ |date=March 22, 2020 }} There are no rights to be given reasonable notice before termination, apart from whatever is stated in a contract or collective agreement, and no requirements for 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,e.g. R Epstein, 'In Defense of the Contract at Will' (1984) 57 University of Chicago Law Review 947 the empirical evidence suggests that job insecurity hampers innovation, reduces productivity, worsens economic recessions,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) [https://academic.oup.com/rfs/article-abstract/27/1/301/1573179 27(1) Review of Financial Studies 301] deprives employees of liberty and pay,e.g. L. E. Blades, 'Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power' (1967) [https://www.jstor.org/stable/1120937 67(8) Columbia Law Review 1404]. C. L. Estlund, 'How Wrong Are Employees About Their Rights, and Why Does It Matter?' (2002) [https://heinonline.org/HOL/LandingPage?handle=hein.journals/nylr77&div=11&id=&page= 77 NYU Law Review 6] and creates a culture of fear.e.g. L Ryan, 'Ten Ways Employment At Will Is Bad For Business' ([https://www.forbes.com/sites/lizryan/2016/10/03/ten-ways-employment-at-will-is-bad-for-business/#27c5492e157b October 3, 2016]) Forbes. US unemployment has historically been extremely volatile, as Republican presidents have consistently increased post-war unemployment, while Democratic presidents have reduced it.See chart below. E McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2022) [https://osf.io/preprints/lawarxiv/udbj8 51(3) Industrial Law Journal 511] In its conduct of monetary policy, it is the duty of the Federal Reserve to achieve "maximum employment",Federal Reserve Act of 1913, 12 USC §225a 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.M Kalecki, 'Political aspects of full employment' (1943) [http://pluto.mscc.huji.ac.il/~mshalev/ppe/Kalecki_FullEmployment.pdf 14(4) Political Quarterly 322]

{{Slist just cause}}

{{see also|Wrongful termination|Unfair dismissal|At-will employment|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 Lloyd–La Follette Act of 1912 Congress codified executive orders giving federal civil servants the right to have their jobs terminated "only for such cause as will promote the efficiency of the service."5 USC [https://uscode.house.gov/view.xhtml?path=/prelim@title5/part3/subpartF/chapter75/subchapter2&edition=prelim §7513(a)] Second, in the mid 20th century, courts in New York developed a rule that corporate directors could only be dismissed for a "just cause", requiring reasons related to the director's conduct, competence, or some economic justification.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) Third, since 1987, Montana has enacted a "wrongful discharge" law, giving employees the right to damages if "discharge was not for good cause and the employee had completed the employer's probationary period of employment", with a standard probation set at 6 months work. However a right to reasons before termination has never been extended to ordinary employees outside Montana. By contrast, almost all other developed countries have legislation requiring just cause in termination.e.g. in UK labour law, see the Employment Rights Act 1996 [http://www.legislation.gov.uk/ukpga/1996/18/part/X ss 94 ff]. The standard in the International Labour Organization Termination of Employment Convention, 1982 requires a "valid reason" for termination of a worker contract based on "capacity or conduct" and prohibits reasons related to union membership, being a worker representative, or a protected characteristic (e.g. race, gender, etc.). It also requires reasonable notice, a fair procedure, and a severance allowance if the termination is for economic reasons.ILO, Termination of Employment Convention, 1982 [http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C158 arts 4-13] Some countries such as Germany also require that elected work councils have the power to veto or delay terminations, to neutralize the employer's potential conflicts of interest.See the German Civil Code or Bürgerliches Gesetzbuch 1900 §622 (notice before dismissal) and the Work Constitution Act 1972 or Betriebsverfassungsgesetz 1972 (worker participation). Most countries treat job security as a fundamental right,e.g. Charter of Fundamental Rights of the European Union [https://en.wikisource.org/wiki/Charter_of_Fundamental_Rights_of_the_European_Union#Article_30_%E2%80%93_Protection_in_the_event_of_unjustified_dismissal art 30] as well as necessary to prevent irrational job losses, to reduce unemployment, and to promote innovation. 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, although the empirical credibility of this argument is doubted by a majority of scholars.e.g. WB MacLeod and V Nakavachara, 'Can Wrongful Discharge Law Enhance Employment?' (2007) [https://academic.oup.com/ej/article-abstract/117/521/F218/5086529 117 Economic Journal F218], I Marinescu, 'Job Security Legislation and Job Duration: Evidence from the United Kingdom' (2009) [https://www.journals.uchicago.edu/doi/abs/10.1086/603643 27(3) Journal of Labor Economics 465]. On OECD studies, see E McGaughey, 'OECD Employment Protection Legislation Indicators and Reform' (2019) [https://ssrn.com/abstract=3434922 ssrn.com]

File:Donald-trump-secim-840x420.jpg's TV show, The Apprentice before he became president. This reflects the "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,cf Bernie Sanders presidential campaign, Workplace Democracy Plan ([https://berniesanders.com/issues/workplace-democracy/ 2019]). Mike Siegel Congress campaign in Texas 2020, [https://siegelfortexas.org/labor-rights/ Dignity for Workers by Protecting and Growing Union Membership] {{Webarchive|url=https://web.archive.org/web/20200322194605/https://siegelfortexas.org/labor-rights/ |date=March 22, 2020 }} 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.California Civil Code (1872) [https://archive.org/details/16950100/page/427/mode/2up §1999] In the late 19th century, employment at will was popularized by academic writers as an inflexible legal presumption,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.' and state courts began to adopt it, even though many had presumed that contract termination usually required notice and justifications.In New York, Adams v. Fitzpatrick 125 NY 124 (NY 1891) 'In this country, at least, if a contract for hiring is at so much per month, it will readily be presumed that the hiring was by the month, even if nothing was said about the term of service.' But subsequently in Martin v. New York Life Insurance Co 148 NY 117 (NY 1895) the New York Supreme Court held the at will doctrine was 'correctly stated by Mr Wood.' Also Adair v. United States, 208 US 161 (1908) the minority dissenting against the lawfulness of 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) [http://www.jstor.org/stable/1813991?seq=2 9(1) American Economic Review 132] and AS Erofones, 'Contracts. Termination of Employment at Weekly Salary' (1927) [http://www.jstor.org/stable/1330455 40(4) Harvard LR 646] 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". However, the employer's discretion to terminate could not violate any statutory prohibition, including termination for union membership,National Labor Relations Act of 1935 §8(a)(3) preventing union discrimination discriminatory termination based on a protected characteristic (e.g. race, gender, age or disability),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. and bringing claims for occupational health and safety,Occupational Safety and Health Act of 1970, 29 USC §§651-678 fair labor standards,Fair Labor Standards Act of 1938, 29 USC §§20-219 retirement income,ERISA 1974, 29 USC §§1140-41 family and medical leave,Family and Medical Leave Act, 29 USC §2615 and under a series of other specific Acts.Vietnam Era Veterans Readjustment Assistance Act, 38 USC §2021(a)(A)(i). Vocational Rehabilitation Act of 1973. Energy Reorganization Act of 1974, 42 USC §5851. Clean Air Act of 1963, 42 USC §7622. Federal Water Pollution Control Act, 33 USC §1367. Railroad Safety Act, 45 US §441(a). Consumer Credit Protection Act, 15 USC §1674. Judiciary and Judicial Procedure Act, 28 USC §1875 Many state courts also added at least four "public policy" exceptions,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'. 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.Ivy v. Army Times Pub Co 428 A.2d 831 (DC App 1981) declining to perjure at employer's request. 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.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. Third, an employee cannot be discharged for exercising any statutory right, such as refusing to take a lie detector test or filing litigation.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 Fourth, employees will be wrongfully discharged if they legitimately blow the whistle on unlawful employer conduct, such as violating food labelling laws,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. or reporting unlawful standards in a nursing home.e.g. Hausman v. St Croix Care Center, Inc., 558 NW2d 893 (Wis App 1996) the Wisconsin Supreme Court noting 'a criminal penalty is no remedy to the terminated employee'. Also 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. 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.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..." Some states interpret the general duty of good faith in contracts to cover discharges,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' so that an employee cannot, for example, be terminated just before a bonus is due to be paid.e.g. Fortune v. National Cash Register Co, 373 Mass 96, 364 NE 2d 1251 (1977) the employee's employment was terminated shortly before a large commission on sales fell due. Held that this breached an obligation to perform the contract in good faith. But contrast 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. However the vast majority of Americans remain unprotected against most arbitrary, irrational or malicious conduct by employers.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.

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,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. and job-related misconduct where the employer consistently enforces a rule,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. but not actions outside of the job.e.g. Eastern Associated Coal Corp. v. Mine Workers, 531 US 57 (2000) an employee tested positive for 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. 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.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. If a written contract does not promise "just cause" protection against termination, statements in a handbook can still be enforceable,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) and oral agreements can override the written contract.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.

{{Slist layoffs}}

{{main|Layoff|Worker Adjustment and Retraining Notification Act}}

Many job terminations in America are economic layoffs, where employers believe that employees are redundant. In most countries, economic layoffs are separately regulated because of the conflicts of interest between workers, management and shareholders, and the risk that workers are discharged to boost profits even if this damages the long-term sustainability of enterprise. The ILO Termination of Employment Convention, 1982 requires a severance allowance if the termination is for economic reasons, as well as consultation with worker representatives about ways to avoid layoffs. Most developed countries regard information and consultation in the event of any economic change as a fundamental right.cf Charter of Fundamental Rights of the European Union 2000 [https://en.wikisource.org/wiki/Charter_of_Fundamental_Rights_of_the_European_Union#Article_27_%E2%80%93_Workers'_right_to_information_and_consultation_within_the_undertaking art 27] 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.Control Council Law No 22 ([https://en.wikisource.org/wiki/Control_Council_Law_No_22_(10_April_1946)_Works_Councils#Articles_IV 10 April 1946]) art V. Today see the Work Constitution Act 1972 or Betriebsverfassungsgesetz 1972 (worker participation). 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,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. and immunity from the social consequences for the laid off workforce.

File:De Blasio Protests the Layoffs of 500 LICH Nurses and Health Care Workers (10542698924).jpg ([https://en.wikisource.org/wiki/Control_Council_Law_No_22_(10_April_1946)_Works_Councils#Articles_IV 10 April 1946]) art V, in post-war Germany, now re-enacted in the Work Constitution Act 1972 or Betriebsverfassungsgesetz 1972 (worker participation in layoffs).]]

The only statutory right for employees is for extreme cases of mass layoffs under the Worker Adjustment and Retraining Notification Act of 1988. 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.WARN Act 1988 [https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim §2101(a)(2)-(3)]. §2101(a)(1), the 100 employee threshold excludes part-time employees. 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.WARN Act 1988 [https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim §2102(a)] 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.WARN Act 1988 [https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim §§2101(a)(6) and 2101(b)(2)] 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.WARN Act 1988 [https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim §2102(b)] Second, an employer may argue that business circumstances were unforeseen.WARN Act 1988 [https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim §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. Third, an employer can argue it had reasonable grounds for believing its failure was not a violation of the act.WARN Act 1988 [https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim §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. 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.WARN Act 1988 [https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim §2104(a)(1)-(3)] 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.See E. Appelbaum and R Batt, Private Equity at Work – When Wall Street Manages Main Street (2014) Outside limited defenses in corporate law,Unocal Corp. v. Mesa Petroleum Co. 493 A 2d 946 (Del 1985) 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.{{ussc|periods=no|417|249|1974}} The majority held there must be "substantial continuity of identity" of the business for the good faith bargaining duty to continue.

{{Slist unemployment}}

{{main|Unemployment in the United States|Job guarantee|Full employment}}

The right to full employment or the "right to work" in a fair paying job is a universal human right in international law,Universal Declaration of Human Rights [https://en.wikisource.org/wiki/Universal_Declaration_of_Human_Rights#Article_23 art 23(1)] and International Covenant on Economic, Social and Cultural Rights 1966 [https://en.wikisource.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights#Article_6 art 6] partly inspired by the experience of the New Deal in the 1930s.See also Franklin D. Roosevelt, 'Second Bill of Rights', in State of the Union Address (January 11, 1944) Unemployment has, however, remained politically divisive because it affects the distribution of wealth and power. When there is full employment under 2%, and everyone can easily find new jobs, worker bargaining power tends to be higher and pay tends to rise, but high unemployment tends to reduce worker power and pay,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 and may increase shareholder profit. It was long acknowledged that the law should ensure nobody is denied a job by unreasonable restrictions by the state or private parties, and the Supreme Court said in Truax v. Raich that "the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity".[http://www.worldlii.org/us/cases/federal/USSC/1915/229.html 239 US 33] (1915) per Justice Hughes. cf Massachusetts Board of Retirement v. Murgia [http://www.worldlii.org/us/cases/federal/USSC/1976/141.html 427 US 307] (1976) holding that an age limit of 50 years old for police in Massachusetts was constitutional. During the New Deal with unemployment having reached 20% after the Wall Street Crash of 1929, the Emergency Relief Appropriation Act of 1935 empowered the President to create the Works Progress Administration, which aimed to directly employ people on fair wages.The Works Progress Administration was created by Executive Order 7034, and replaced the Federal Emergency Relief Administration which was itself created by the Federal Emergency Relief Act of 1933. By 1938, the WPA employed 3.33 million people, and built streets, bridges and buildings across the country. Also created by the 1935 Act, the 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.

File:United States unemployment with incarceration 1892-2016.png 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.E McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2022) [https://osf.io/preprints/lawarxiv/udbj8 51(3) Industrial Law Journal 511]]]

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".Employment Act of 1946, [https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter21&edition=prelim 15 USC §1021] 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".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. 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."Board of Regents of State Colleges v. Roth [http://www.worldlii.org/us/cases/federal/USSC/1972/168.html 408 US 564, 588] (1972) per Justice Marshall dissenting. 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".15 USC §3116 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.15 USC [https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter21&edition=prelim §1022a]. It includes "policy priorities" of the "development of energy sources and supplies, transportation, and environmental improvement".15 USC [https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter21&edition=prelim §1022c]. These powers of a job guarantee, full employment, and environmental improvement have not yet been used. During the 2008 financial crisis, the American Recovery and Reinvestment Act of 2009 was passed to enable more spending, but not a job guarantee.

File:WPA-Work-Pays-America-Poster.jpg from 1935 to 1943Emergency Relief Appropriation Act of 1935 created 8.5m jobs spending $1.3bn a year to get out of the Great Depression.]]

While the laws for a federal or state job guarantee have not yet been used, the Federal Reserve Act 1913 does require that the Board of Governors of the Federal Reserve System should use its powers "to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates."Amended by the Federal Reserve Reform Act of 1977, 12 USC §225a During the Great Depression it was understood that inequality in the distribution of wealth had contributed to the lack of employment, and that Federal lending policy and bank regulation should pursue a range of objectives.See Marriner Stoddard Eccles, Beckoning Frontiers: Public and Personal Recollections (1951) "As mass production has to be accompanied by mass consumption, mass consumption, in turn, implies a distribution of wealth ... to provide men with buying power. ... Instead of achieving that kind of distribution, a giant suction pump had by 1929–30 drawn into a few hands an increasing portion of currently produced wealth. ... The other fellows could stay in the game only by borrowing. When their credit ran out, the game stopped." Also 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." However, the Federal Reserve became dominated by a theory of a natural rate of unemployment, taking the view that attempts to achieve full employment would accelerate inflation to an uncontrollably high. Instead it was said by theorists such as Milton Friedman that central banks should use monetary policy only to control inflation, according to the non-accelerating inflation rate of unemployment (NAIRU).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 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,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. and the US unemployment rate follows which political party is in the White House.E. McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2018) [https://osf.io/preprints/lawarxiv/udbj8 Centre for Business Research, University of Cambridge, Working Paper no. 496], part 2(1)

{{quote box|bgcolor=#c6dbf7|width=26em|salign=right|quote= ... 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!|source= —Nicholas Klein, Biennial Convention of the Amalgamated Clothing Workers of America ([https://en.wikisource.org/wiki/And_Then_They_Build_Monuments_to_You 1918])}}

If despite fiscal and monetary policy people are unemployed, the Social Security Act of 1935 creates unemployment insurance.Social Security Act of 1935, 42 USC §§501-4, 1101-5. Steward Machine Company v. Davis, 301 US 548 (1937) held unemployment benefits to be constitutional. 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.e.g. Millner v. Enck 709 A 2d 417 (Pa Super 1998) Employees cannot get benefits if they are laid off for misconduct,e.g. Cullison v. Commonwealth Unemployment Compensation Board of Review 444 A.2d 1330 (Pa 1982) and Employment Division, Department of Human Resources v. Smith, 494 US 872 (1988) and for participation in strikes,Ohio Bureau of Employment Services v. Hodary, 431 US 471 (1977) 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.Internal Revenue Code §3304(a)(5) 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.Brazee v. Michigan, {{ussc|periods=no|241|340|1916}}. Contrast Adams v. Tanner, 244 US 590 (1917) where over strong dissent the majority held that a ban on private employment agencies was unconstitutional. See now the ILO, Private Employment Agencies Convention, 1997

{{main|International labor law|International trade law}}

{{quote box|bgcolor=#c6dbf7|width=22em|salign=right|quote=[The International Labour Organization ...] has for its object the establishment of universal peace, and such a peace can be established only if it is based upon social justice ... conditions of labor exist involving such injustice, hardship, and privation to large numbers of people ... and an improvement of those conditions is urgently required: as, for example, by ... a maximum working day and week, the regulation of the labor supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment, the protection of 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 ...|source= —Versailles Treaty of 1919 Part XIII}}

• US Constitution, Article I, Section 8, Clause 3, Congress has the power: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Article IV, Section 2, Clause 1, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
• Freedom of movement under United States law
• Gibbons v. Ogden, 22 US 1 (1824) and Paul v. Virginia, 75 US 168 (1869)
• Interstate Commerce Act of 1887 and Federal Trade Commission Act of 1914
• International Labour Organization and international labor standards
• Bargaining power, race to the bottom, foreign direct investment, human development, technological change, global workforce, immigration
• Tariff Act of 1890, Smoot–Hawley Tariff Act of 1930, Great Depression
• United States free trade agreements, United States International Trade Commission, 19 USC

File:1904socialist.jpg, 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.Bernie Sanders and Jane Sanders, [https://www.youtube.com/watch?v=oY2mQxm4SNQ Eugene V. Debs Documentary] (1979)]]

• Trade Act of 1974, Trade Agreements Act of 1979, Trade Act of 2002, Trade Preferences Extension Act of 2015 and Fast track (trade)
• North American Free Trade Agreement, 19 USC ch 21, §3301
• World Trade Organization and Uruguay Round Agreements Act of 1994
• Permanent normal trade relations
• Trans-Pacific Partnership and Transatlantic Trade and Investment Partnership
• Three potential views are:
• (1) expansion of trade is good because it increases the scope for division of labor and expanding markets. So, all customs, taxes, and equivalent restrictions against market access should be dismantled
• (2) free trade is bad because it exacerbates labor's inequality of bargaining power against global capital. Trade should be limited and regulated by systems of taxes and tariffs according to the state of other countries' development
• (3) trade, without barriers to movement of capital, goods and services, improves living standards if labor standards are improved in all countries. This (a) discourages emigration from poorer countries: as people's lives improve they may not want to leave (b) requires standards are improved at a rate to ensure stability in capital and labor flows (c) in turn requires that standard should not enable workers to be paid less than is necessary for human development and the workers' rate of productivity.

{{Main|California Labor Code|California Department of Fair Employment and Housing}}

In 1959, California added the Division of Fair Employment Practices to the California Department of Industrial Relations. The Fair Employment and Housing ActThe [http://finduslaw.com/california_fair_employment_and_housing_act_feha_government_code_12900_12996 Fair Employment and Housing Act] of 1980 gave the division its own Department of Fair Employment and Housing, with the stated purpose of protecting citizens against harassment and employment discrimination on the basis of:[http://www.dfeh.ca.gov/Statutes/feha.asp Details of law] from the DFEH website 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.{{cite news |url=http://www.natlawreview.com/article/california-enacts-22-new-employment-laws-impacting-all-companies-doing-business-state|author=Barnes & Thornburg LLP|title=California Enacts 22 New Employment Laws Impacting All Companies Doing Business in the State |publisher=The National Law Review |date=October 12, 2011 }}

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

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.{{Cite web|last=New Jersey|first=Legislature|date=April 16, 1945|title=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.|url=https://dspace.njstatelib.org//handle/10929/56526|access-date=2021-11-15|website=NJ State Library}} 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.The [https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/know-the-law/ New Jersey Law Against Discrimination]

{{main|Right-to-work law}}

File:Right to Work states.svg{{legend|#008080|Statewide Right-to-work law}}{{legend|#40e0d0|Local Right-to-work laws}}{{legend|#d3d3d3|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.

• United States Department of Labor
• National Labor Relations Board
• Ford Motor Co. v. NLRB, 305 U.S. 364 (1939) the right of the NLRB to withdraw its submissions to the Court were at the court's discretion
• In re NLRB, 304 U.S. 486 (1938) to enforce an order, the NLRB must file a petition and transcript with the courts
• Equal Employment Opportunity Commission
• Elgin v. Department of Treasury, 567 U.S. ___ (2012) 6 to 3, under the Civil Service Reform Act of 1978 federal employees have no recourse to the federal courts over wrongful discharge cases, but must instead go to the Merit Systems Protection Board.
• United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966) state and federal jurisdiction in labor disputes

{{Portal|Organized labour}}

• Labor law
• European labour law
• UK labour law
• Right to sit in the United States
• Social law
• Child labor laws in the United States

;Organizations

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

{{Reflist|2}}

;Books

• John R. Commons, Principles of Labor Legislation (1916)
• John R. Commons, History of Labor in the United States (Macmillan 1918) [https://archive.org/stream/historyoflabouri01commuoft#page/n7/mode/2up vol I] and [https://archive.org/stream/historyoflabouri02commuoft#page/n7/mode/2up vol II]
• R. Covington, Employment Law in a Nutshell (3rd edn 2009) {{isbn|0314195408}}
• Archibald Cox, D. C. Bok, Matthew W. Finkin and R. A. Gorman, Labor Law: Cases and Materials (2011) {{isbn|1684679818}}
• K. G. Dau-Schmidt, M. H. Malin, R. L. Corrada and C. D. R. Camron, Labor Law in the Contemporary Workplace (4th edn 2009)
• M. A. Rothstein and Lance Liebman, Employment Law Cases and Materials (7th edn Foundation 2011)
• G. Rutherglen, Employment Discrimination Law: Visions of Equality in Theory and Doctrine (3rd edn 2010)

;Articles

• J. M. Feinman, [https://www.jstor.org/pss/844727 '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

• [http://topics.law.cornell.edu/wex/table_labor Labor laws of Federal and State legislatures on law.cornell.edu]
• [https://web.archive.org/web/20061211185840/http://hrlawindex.com/ Synopses of US Employment Law Cases]
• [https://web.archive.org/web/20100911111241/http://www.iww.org/en/organize/laborlaw/contract1.shtml Typical benefits of a union contract]
• [http://PinesFederal.com Federal employment discrimination law office]

{{Law of the United States}}

Category:Articles containing video clips