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| Boilerpipe Text | The
Statue of Liberty
greeted millions of
people who migrated
to America for
work
, saying "
Give me your tired, your poor, Your huddled masses yearning to breathe free...
" In 2013, in a 155.5 million
working population
, union membership was 35.9% in the public sector, 6.6% in the private sector.
[
1
]
In 2017, unemployment was 4.3%, excluding people in prison. The US ranks 29th in the world
inequality-adjusted
human development index
.
[
2
]
United States labor law
sets the rights and duties for employees,
labor unions
, and
employers
in the US. Labor law's basic aim is to remedy the "
inequality of bargaining power
" between employees and employers, especially employers "organized in the
corporate
or other forms of ownership association".
[
3
]
Over the 20th century, federal law created minimum
social and economic rights
, and encouraged state laws to go beyond the minimum to favor employees.
[
4
]
The
Fair Labor Standards Act of 1938
requires a federal
minimum wage
, currently $7.25 but higher in 29 states and D.C., and discourages working weeks over 40 hours through time-and-a-half
overtime pay
. There are no federal laws, and few state laws, requiring
paid holidays
or
paid family leave
. The
Family and Medical Leave Act of 1993
creates a limited right to 12 weeks of unpaid leave in larger employers. There is no automatic right to an occupational pension beyond federally guaranteed
Social Security
,
[
5
]
but the
Employee Retirement Income Security Act of 1974
requires standards of prudent management and good governance if employers agree to provide pensions, health plans or other benefits. The
Occupational Safety and Health Act of 1970
requires employees have a safe system of work.
A
contract of employment
can always create better terms than statutory minimum rights. But to increase their
bargaining power
to get better terms, employees organize labor unions for
collective bargaining
. The
Clayton Act of 1914
guarantees all people the right to organize,
[
6
]
and the
National Labor Relations Act of 1935
creates rights for most employees to organize without detriment through
unfair labor practices
. Under the
Labor Management Reporting and Disclosure Act of 1959
, labor union governance follows democratic principles. If a majority of employees in a workplace support a union, employing entities have a duty to bargain in
good faith
. Unions can take collective action to defend their interests, including withdrawing their labor on strike. There are not yet general rights to directly participate in enterprise governance, but many employees and unions have experimented with securing influence through pension funds,
[
7
]
and representation on
corporate
boards.
[
8
]
Since the
Civil Rights Act of 1964
, all employing entities and labor unions have a duty to treat employees equally, without discrimination based on "race, color, religion, sex, or national origin".
[
9
]
There are separate rules for sex discrimination in pay under the
Equal Pay Act of 1963
. Additional groups with "protected status" were added by the
Age Discrimination in Employment Act of 1967
and the
Americans with Disabilities Act of 1990
. There is no federal law banning all sexual orientation or
identity
discrimination, but 22 states had passed laws by 2016. These equality laws generally prevent discrimination in hiring and terms of employment, and make discharge because of a protected characteristic unlawful. In 2020, the Supreme Court of the United States ruled in
Bostock v. Clayton County
that discrimination solely on the grounds of sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964. There is no federal law against
unjust discharge
, and most states also have no law with full protection against wrongful
termination of employment
.
[
10
]
Collective agreements
made by labor unions and some individual contracts require that people are only discharged for a "
just cause
". The
Worker Adjustment and Retraining Notification Act of 1988
requires employing entities give 60 days notice if more than 50 or one third of the workforce may lose their jobs. Federal law has aimed to reach
full employment
through
monetary policy
and spending on infrastructure. Trade policy has attempted to put labor rights in international agreements, to ensure open markets in a
global economy
do not undermine
fair
and full employment.
After the
Declaration of Independence
,
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
.
[
11
]
However, laws regulated the rights of people at work and employers from colonial times onward. Before the
Declaration of Independence
in 1776, the
common law
was either uncertain or hostile to labor rights.
[
12
]
Unions were classed as conspiracies, and potentially criminal.
[
13
]
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
,
[
14
]
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.
[
15
]
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.
[
16
]
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
,
[
17
]
and abolished slavery in its own territories, by paying off slave owners in
1833
.
[
18
]
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.
[
19
]
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
.
[
20
]
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".
[
21
]
Even if people were formally free, they remained factually dependent on
property
owners for work, income and basic services.
Labor
is prior to and independent of
capital
. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration ... The prudent, penniless beginner in the world labors for wages awhile, saves a surplus with which to buy tools or land for himself, then labors on his own account another while, and at length hires another new beginner to help him. This is the just and generous and prosperous system which opens the way to all, gives hope to all, and consequent energy and progress and improvement of condition to all. No men living are more worthy to be trusted than those who toil up from
poverty
; none less inclined to take or touch aught which they have not honestly earned. Let them beware of surrendering a
political power
which they already possess, and which if surrendered will surely be used to close the door of advancement against such as they and to fix new disabilities and burdens upon them till all of
liberty
shall be lost.
Like slavery, common law repression of labor unions was slow to be undone.
[
22
]
In 1806,
Commonwealth v. Pullis
held that a
Philadelphia
shoemakers union striking for higher wages was an illegal "conspiracy",
[
23
]
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.
[
24
]
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.
[
25
]
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,
[
26
]
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".
[
27
]
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
,
[
28
]
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.
[
29
]
In notable dissent among the judiciary,
[
30
]
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.
[
31
]
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."
[
32
]
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
.
[
33
]
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".
[
34
]
In his
State of the Union
address of 1944, President
Franklin D. Roosevelt
urged that America develop
Second Bill of Rights
through legislation, including the right to fair employment, an end to unfair competition, to education, health, and social security.
Throughout the early 20th century, states enacted labor rights to advance social and economic progress. But despite the
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.
[
35
]
In this
Lochner era
, the Courts held that employers could force workers to not belong to labor unions,
[
36
]
that a minimum wage for women and children was void,
[
37
]
that states could not ban
employment agencies
charging fees for work,
[
38
]
that workers could not strike in solidarity with colleagues of other firms,
[
39
]
and even that the federal government could not ban child labor.
[
40
]
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.
[
41
]
Critically, the courts held state and federal attempts to create Social Security to be unconstitutional.
[
42
]
Because they were unable to save in safe public pensions, millions of people bought shares in corporations, causing massive growth in the
stock market
.
[
43
]
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.
[
44
]
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
.
[
45
]
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,
[
46
]
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.
[
47
]
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."
[
48
]
President
Lyndon B. Johnson
explains the
Civil Rights Act of 1964
as it was signed, to end discrimination and segregation in voting, education, public services, and employment.
Although the
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.
[
49
]
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
,
[
50
]
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
.
Bernie Sanders
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,
[
51
]
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,
[
52
]
allowing employees to be searched at work,
[
53
]
and eliminating employee rights to sue for medical malpractice in their own health care.
[
54
]
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,
[
55
]
and the United States began to fall behind most other developed countries in labor rights.
[
56
]
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",
[
57
]
specifically referring to "contracting with responsible sources who comply with labor laws".
[
58
]
The Occupational Safety and Health Administration published guidance on 25 August 2016.
[
57
]
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".
[
58
]
: Sec. 3
The order was revoked by President
Donald Trump
on 27 March 2017 under
Executive Order 13782
.
[
59
]
Contract and rights at work
[
edit
]
Eleanor Roosevelt
believed the
Universal Declaration of Human Rights
of 1948 "may well become the international Magna Carta of all". Based on the President's call for a
Second Bill of Rights
in 1944, articles 22–24 elevated rights to "social security", "just and favourable conditions of work", and the "right to rest and leisure" to be as important as the "right to own property".
[
60
]
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,
[
61
]
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
.
Scope of protection
[
edit
]
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.
,
[
62
]
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
,
[
63
]
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.
[
64
]
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.
[
65
]
"
Newsboys
" in
L.A.
were held in the leading case,
NLRB v. Hearst Publications, Inc.
, to be employees with labor rights, not independent contractors, on account of their
unequal bargaining power
.
[
66
]
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.
[
67
]
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
,
[
68
]
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.
,
[
69
]
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".
[
70
]
Similarly, under the
Fair Labor Standards Act of 1938
, in
Christopher v. SmithKline Beecham Corp.
,
[
71
]
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.
,
[
72
]
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
,
[
73
]
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
.
[
74
]
In September 2015, the
California Labor and Workforce Development Agency
held that
Uber
drivers are controlled and sanctioned by the company and are therefore not self-employed.
[
75
]
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
,
[
76
]
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.
[
77
]
In
Local 217, Hotel & Restaurant Employees Union v. MHM Inc
[
78
]
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."
[
79
]
In
South Prairie Const. Co. v. Local No. 627, International Union of Operating Engineers, AFL-CIO
,
[
80
]
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",
[
81
]
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.
[
82
]
Contracts of employment
[
edit
]
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).
[
83
]
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
".
[
84
]
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
.
[
85
]
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.
[
86
]
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
,
[
87
]
and the
Employee Retirement Income Security Act of 1974
,
[
88
]
have been interpreted in a series of contentious judgments by the
US Supreme Court
to "
preempt
" state law enactments.
[
89
]
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.
[
90
]
Where minimum rights do not exist in federal or state statutes, principles of
contract law
, and potentially
torts
, will apply.
Employment contracts are subject to minimum rights in state and federal statute, and those created by
collective agreements
.
[
91
]
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.
[
92
]
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.
[
93
]
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.
[
94
]
Most other state courts have reached the same conclusion, that contracts cannot be altered, except for employees' benefit, without new
consideration
and true agreement.
[
95
]
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.
[
96
]
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".
[
97
]
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.
[
98
]
However others, such as the
California Supreme Court
limit any recovery of damages to contract breaches, but not damages regarding the manner of termination.
[
99
]
By contrast, in the
United Kingdom
the requirement for "
good faith
"
[
100
]
has been found to limit the power of discharge except for fair reasons
[
101
]
(but not to conflict with statute
[
102
]
), in Canada it may limit unjust discharge also for self-employed persons,
[
103
]
and in Germany it can preclude the payment of wages significantly below average.
[
104
]
Finally, it was traditionally thought that arbitration clauses could not displace any employment rights, and therefore limit access to justice in public courts.
[
105
]
However, in
14 Penn Plaza LLC v. Pyett
,
[
106
]
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.
[
107
]
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.
[
108
]
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
".
[
109
]
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".
[
110
]
The
real
federal minimum wage has declined by 46% since February 1968. Lower line is
nominal dollars
. Top line is
inflation-adjusted
.
[
111
]
[
112
]
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.
[
113
]
This ended the "
Lochner
era", and Congress enacted the
Fair Labor Standards Act of 1938
.
[
114
]
Under §202(a) the federal minimum wage aims to ensure a "standard of living necessary for health, efficiency and general well being".
[
115
]
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.
[
116
]
Nobody may pay lower than the minimum wage, but under §218(a) states and municipal governments may enact higher wages.
[
117
]
This is frequently done to reflect local productivity and requirements for decent living in each region.
[
118
]
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.
People have campaigned for a $15 an hour minimum wage, because the
real minimum wage
has fallen by 43% compared to 1968.
[
112
]
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
.
[
119
]
Souter J
, joined by three dissenting justices,
[
120
]
held that no such "sovereign immunity" existed in the
Eleventh Amendment
.
[
121
]
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.
[
122
]
FLSA 1938
§203(s) explicitly exempts establishments whose only employees are close family members.
[
123
]
Under §213 the minimum wage may not be paid to 18 categories of employee, and paying overtime to 30 categories of employee.
[
124
]
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.
[
125
]
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.
[
126
]
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.
[
127
]
Second, because §206(a)(1)(C) says the minimum wage is $7.25 per hour, courts have grappled with which hours count as "working".
[
128
]
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.
[
129
]
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.
[
130
]
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."
[
131
]
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".
[
132
]
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.
[
133
]
Time spent doing unusual cleaning, for instance showering off toxic substances, does count as working time,
[
134
]
and so does time putting on special protective gear.
[
135
]
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.
[
136
]
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.
[
137
]
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.
[
138
]
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,
[
139
]
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.
[
140
]
Tax brackets
Lowest marginal income tax rates
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
Working time and family care
[
edit
]
The
Universal Declaration of Human Rights
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.
[
141
]
People in the United States work among the longest hours per week in the
industrialized world
, and have the least annual leave.
[
142
]
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.
[
143
]
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 1970
[
144
]
three weeks is the bare minimum. The bill did not receive enough votes.
[
145
]
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.
[
146
]
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.
[
116
]
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.
[
147
]
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".
[
148
]
State legislation to limit working time was, however, suppressed by the
US Supreme Court
in
Lochner v. New York
.
[
149
]
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.
[
150
]
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.
[
151
]
The whole
Lochner
era
of jurisprudence was reversed by the
US Supreme Court
in 1937,
[
152
]
but experimentation to improve working time rights, and "
work-life balance
" has not yet recovered.
Because there is no right to education and
child care
for
children under five
, the costs of child care fall on parents. But in 2016, four states had legislated for
paid family leave
.
[
153
]
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.
[
154
]
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.
[
155
]
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.
[
156
]
Child care leave should be taken in one lump, unless agreed otherwise.
[
157
]
Employees must give notice of 30 days to employers if birth or adoption is "foreseeable",
[
158
]
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.
[
159
]
Employers must provide benefits during the unpaid leave.
[
160
]
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.
[
161
]
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."
[
162
]
Employees or the
secretary of labor
can bring enforcement actions,
[
163
]
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.
[
164
]
There is a two-year limit on bringing claims, or three years for willful violations.
[
165
]
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.
[
166
]
In the early 20th century, the possibility of having a "retirement" became real as people lived longer,
[
167
]
and believed the elderly should not have to work or rely on charity until they died.
[
168
]
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,
[
169
]
(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.
[
170
]
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 1947 required joint management of funds by employees and employers.
[
171
]
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.
[
172
]
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)
,
[
173
]
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.
[
174
]
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.
[
175
]
Investment managers, like
Morgan Stanley
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
.
[
176
]
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".
[
177
]
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.
[
178
]
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.
[
179
]
Second, all promises must be funded in advance.
[
180
]
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,
[
181
]
and contributions must
accrue
(i.e. the employee owns contributions) at a proportionate rate.
[
182
]
If employers and pension funds merge, there can be no reduction in benefits,
[
183
]
and if an employee goes bankrupt their creditors cannot take their occupational pension.
[
184
]
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.
[
185
]
In dissent,
Breyer J
and
Souter J
reserved any view on such "highly technical, important matters".
[
186
]
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.
[
187
]
Fourth, as a general principle, employees or beneficiaries cannot suffer any discrimination or detriment for "the attainment of any right" under a plan.
[
188
]
Fifth, managers are bound by responsibilities of competence and loyalty, called "
fiduciary duties
".
[
189
]
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".
[
190
]
Second, they must act with "care, skill and diligence", including "diversifying the investments of the plan" to "minimize the risk of large losses".
[
191
]
Liability for carelessness extends to making misleading statements about benefits,
[
192
]
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.
[
193
]
Third, and codifying fundamental equitable principles, a
fiduciary
must avoid any possibility of a
conflict of interest
.
[
194
]
Fiduciaries must act "solely in the interest of the participants ... for the exclusive purpose of providing benefits" with "reasonable expenses",
[
195
]
and specifically avoiding
self-dealing
with a related "party in interest".
[
196
]
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.
[
197
]
Remedies for these duties have, however, been restricted by the
Supreme Court
to disfavor damages.
[
198
]
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".
[
199
]
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.
[
200
]
It held a case under
Texas
law for damages for denying vesting of benefits was preempted, so the claimant only had
ERISA
remedies.
[
201
]
It struck down a
Washington
law which altered who would receive life insurance designation on death.
[
202
]
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.
[
203
]
But it struck down a
Pennsylvania
statute which prohibited employers becoming subrogated to (potentially more valuable) claims of employees for insurance after accidents.
[
204
]
Yet more recently, the court has shown a greater willingness to prevent laws being preempted,
[
205
]
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.
The
Workplace Democracy Act of 1999
,
[
206
]
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".
[
207
]
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),
[
208
]
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.
[
209
]
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.
[
210
]
Although many local pension funds are not consolidated and have had critical funding notices from the
Department of Labor
,
[
211
]
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.
[
212
]
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.
[
213
]
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.
[
206
]
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.
[
214
]
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.
The
Occupational Safety and Health Act
,
[
215
]
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
Pickering v. Board of Education
, 391 US 563 (1968) 8 to 1, a public school teacher was dismissed for writing a letter to a newspaper that criticized the way the school board was raising money. This violated the
First Amendment
and the
Fourteenth Amendment
Connick v. Myers
, 461 U.S. 138 (1983) 5 to 4, a public attorney employee was not unlawfully dismissed after distributing a questionnaire to other staff on a supervisor's management practices after she was transferred under protest. In dissent, Brennan J held that all the matters were of public concern and should therefore be protected by the
First Amendment
Rankin v. McPherson
, 483 U.S. 378 (1987) 5 to 4, a Texas deputy constable had a First Amendment right to say, after the assassination attempt on
Ronald Reagan
"Shoot, if they go for him again, I hope they get him." Dismissal was unlawful and she had to be reinstated because even extreme comments (except potentially advocating actual murder) against a political figure should be protected. She could not be fired for merely exercising a right in the Constitution.
Waters v. Churchill
, 511 U.S. 661 (1994) 7 to 2, a public hospital nurse stating, outside work at dinner, that the
cross-training
policies of the hospital were flawed, could be dismissed without any violation of the
First Amendment
because it could be seen as interfering with the employer's operations
Garcetti v. Ceballos
, 547 U.S. 410 (2006) 5 to 4, no right against dismissal or protected speech when the speech relates to a matter in one's profession
Employee Polygraph Protection Act
(1988) outlawed the use of lie detectors by private employers except in narrowly prescribed circumstances
Whistleblower Protection Act
(1989)
Huffman v. Office of Personnel Management
, 263 F.3d 1341 (Fed. Cir. 2001)
O'Connor v. Ortega
, 480 U.S. 709 (1987) searches in the workplace
City of Ontario v. Quon
, 130 S.Ct. 2619, (2010) the right of privacy did not extend to employer owned electronic devices so an employee could be dismissed for sending sexually explicit messages from an employer owned pager.
Heffernan v. City of Paterson
, 578 US __ (2016)
Workplace participation
[
edit
]
The
US Supreme Court
's policy of
preemption
since 1953 means federal
collective bargaining
rules cancel state rules, even if state law is more beneficial to employees.
[
49
]
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
".
[
216
]
The central right in
labor law
, beyond minimum standards for pay, hours, pensions, safety or privacy, is to participate and vote in workplace governance.
[
217
]
The American model developed from the
Clayton Antitrust Act of 1914
,
[
218
]
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",
[
219
]
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.
[
220
]
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".
[
221
]
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.
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
.
[
222
]
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.
[
223
]
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".
[
224
]
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.
[
225
]
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.
[
226
]
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
.
[
227
]
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
.
[
228
]
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.
Richard Trumka
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.
[
229
]
Fundamentally, all unions are democratic organizations,
[
230
]
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,
[
231
]
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.
[
232
]
Under § 431, unions should file their constitutions and bylaws with the
secretary of labor
and be accessible by members:
[
233
]
today union constitutions are online. Under § 481 elections must occur at least every 5 years, and local officers every 3 years, by secret ballot.
[
233
]
Additionally, state law may bar union officials who have prior convictions for felonies from holding office.
[
234
]
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.
[
235
]
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
.
[
236
]
Federal courts may review decisions by the Department to proceed with any prosecutions.
[
237
]
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
.
[
238
]
Sharan Burrow
leads the
International Trade Union Confederation
, which represents labor union members worldwide, via each national group including the
AFL–CIO
.
[
239
]
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.
[
240
]
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.
[
241
]
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.
[
242
]
Unions have always been entitled to publicly campaign for members of Congress or presidential candidates that support
labor rights
.
[
243
]
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,
[
244
]
and then in
First National Bank of Boston v. Bellotti
,
[
245
]
that corporations could engage in election spending. In 2010, over four dissenting justices,
Citizens United v. FEC
[
246
]
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.
[
247
]
However, in
Harris v. Quinn
five
US Supreme Court
judges reversed this ruling apparently banning public sector union security agreements,
[
248
]
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.
[
249
]
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.
Collective bargaining
[
edit
]
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,
[
250
]
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
,
[
251
]
and
Coppage v. Kansas
,
[
252
]
the
Supreme Court
, over powerful dissents,
[
253
]
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.
[
254
]
This also prevented the courts from issuing any injunctions or enforcing any agreements in the context of a labor dispute.
[
255
]
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.
[
256
]
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".
[
257
]
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
,
[
258
]
railway and airline
staff,
[
259
]
domestic and
agriculture
workers.
[
260
]
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".
[
261
]
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.
[
262
]
The "independent contractor" category was estimated to remove protection from 8 million workers.
[
263
]
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.
[
264
]
After
1981 air traffic control strike
, when
Ronald Reagan
fired every air traffic controller,
[
265
]
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".
[
266
]
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
",
[
267
]
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),
[
268
]
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".
[
269
]
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.
[
270
]
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.
[
271
]
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.
[
272
]
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).
[
273
]
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.
[
274
]
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.
[
275
]
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.
The proposed
Employee Free Choice Act
, sponsored repeatedly by
Hillary Clinton
,
Bernie Sanders
and Democrat representatives, would require employers to bargain in 90 days or go to arbitration, if a simple majority of employees sign cards supporting the union.
[
276
]
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.
[
277
]
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.
[
278
]
Usually, collective agreements include provisions for sending grievances of employees or disputes to binding
arbitration
, governed by the
Federal Arbitration Act
of 1925.
[
279
]
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."
[
280
]
An arbitrator's award is entitled to judicial enforcement so long as its essence is from the collective agreement.
[
281
]
Courts can decline to enforce an agreement based on
public policy
, but this is different from "general considerations of supposed public interests".
[
282
]
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.
[
283
]
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."
[
284
]
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.
[
285
]
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".
[
286
]
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
,
[
287
]
the
Workplace Democracy Act
of 1999, and the
Employee Free Choice Act
of 2009.
[
288
]
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.
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".
[
289
]
Among many rights and duties relating to unfair labor practices, five main groups of case have emerged.
Unfair labor practices
, 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.
[
290
]
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
.
[
291
]
It is also unlawful for employers to monitor employees who are organizing, for instance by parking outside a union meeting,
[
292
]
or videotaping employees giving out union fliers.
[
293
]
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.
[
294
]
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.
[
295
]
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
.
[
296
]
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.
[
297
]
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.
[
298
]
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.
[
299
]
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.
[
300
]
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.
[
301
]
As
union membership
declined
income inequality
rose, because labor unions have been the main way to participate at work.
[
302
]
The US does not yet require
employee representatives
on
boards of directors
, or elected
work councils
.
[
303
]
The
US Supreme Court
policy of
preemption
, developed from 1953,
[
304
]
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.
[
117
]
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".
[
305
]
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".
[
306
]
This was true, even though the NLRB had not given any ruling on the dispute because its monetary value was too small.
[
307
]
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".
[
308
]
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.
[
309
]
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.
[
310
]
State governments may, however, use their funds to procure corporations to do work that are union or labor friendly.
[
311
]
All workers, like the
Arizona teachers in 2019
, are guaranteed the right to take collective action, including strikes, by
international law
, federal law and most state laws.
[
312
]
The right of labor to take
collective action
, including the
right to strike
, has been fundamental to
common law
,
[
313
]
federal law,
[
314
]
and
international law
for over a century.
[
315
]
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
.'"
[
316
]
During the 19th century, many courts upheld the right to strike, but others issued injunctions to frustrate strikes,
[
317
]
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
.
[
318
]
The Supreme Court persisted in
Loewe v. Lawlor
in imposing damages for strikes under
antitrust law
,
[
228
]
until Congress passed the
Clayton Act of 1914
. Seen as "the
Magna Carta
of America's workers",
[
319
]
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."
[
320
]
The same principles entered the founding documents of the
International Labour Organization
in 1919.
[
321
]
Finally at the end of the
Lochner era
[
322
]
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".
[
323
]
Cesar Chavez
organized the
United Farm Workers
and campaigned for
social justice
under the slogan "
Yes we can
" and "
Sí, se puede
".
[
324
]
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,
[
325
]
police and firefighters, without adequate alternatives to set fair wages.
[
326
]
Workers have the right to take
protected concerted activity
.
[
327
]
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.
[
328
]
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.
[
329
]
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.
[
330
]
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.
[
331
]
This said, employees may peacefully persuade customers to boycott any employer or related employer, for instance by giving out handbills.
[
332
]
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.
[
333
]
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.
[
334
]
2016 Presidential candidate
Bernie Sanders
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,
[
335
]
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.
[
336
]
This decision is widely condemned as a violation of international law.
[
337
]
However the Supreme Court further held in
NLRB v. Fansteel Metallurgical Corp.
that the Labor Board cannot order an employer to rehire striking workers,
[
338
]
and has even held that employers could induce younger employees more senior jobs as a reward for breaking a strike.
[
339
]
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.
[
340
]
On the other hand, the Supreme Court has held there was a right to picket shops that refused to hire African-American workers.
[
341
]
The Supreme Court declared an Alabama law, which fined and imprisoned a picketer, to be unconstitutional.
[
342
]
The Supreme Court held unions could write newspaper publications to advocate for pro-labor political candidates.
[
343
]
It also held a union could distribute political leaflets in non-work areas of the employer's property.
[
344
]
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.
[
345
]
Right to vote at work
[
edit
]
Elizabeth Warren
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,
[
346
]
and more for large corporations.
[
347
]
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
".
[
348
]
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.
[
349
]
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.
[
350
]
Labor law has increasingly converged with
corporate law
,
[
351
]
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.
[
352
]
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.
[
353
]
Also in 1919 both
Procter & Gamble
and the General Ice Delivery Company of Detroit had employee representation on boards.
[
354
]
Board representation for employees spread through the 1920s, many without requiring any
employee stock ownership plan
.
[
355
]
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,
[
356
]
and proponents of codetermination as "
industrial democracy
".
[
357
]
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.
[
358
]
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.
[
359
]
Congressional division prevented federal reform, but labor unions and state legislatures have experimented.
... while there are many contributing causes to unrest ... one cause ... is fundamental. That is the necessary conflict—the contrast between our political
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.
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.
[
360
]
Because of
unequal bargaining power
, but also because of historic caution among American labor unions about taking on management,
[
361
]
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
.
[
362
]
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.
[
363
]
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.
[
364
]
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.
[
365
]
The
United Steel Workers
secured board representation in five corporations in 1993.
[
366
]
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.
[
367
]
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.
[
368
]
Powered by a
solar farm
,
[
369
]
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.
[
370
]
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,
[
371
]
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".
[
372
]
This was designed to enable free work councils, genuinely independent from management, but not dominated work councils or so called "
company unions
".
[
373
]
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.
[
374
]
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
.
[
375
]
In 1992, the
National Labor Relations Board
in its
Electromation, Inc
,
[
376
]
and
EI du Pont de Nemours
,
[
377
]
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.
[
378
]
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
.
[
379
]
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
.
Equality and discrimination
[
edit
]
The world's first general equality law, the
Civil Rights Act of 1964
, 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",
[
380
]
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
".
[
381
]
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."
[
382
]
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.
[
383
]
The law has not, however, succeeded in eliminating the disparities in income by
race
, health, age or socio-economic background.
Constitutional rights
[
edit
]
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
,
[
384
]
reserve the vote to white, property owning men,
[
385
]
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,
[
386
]
while the
Civil Rights Act of 1866
,
[
387
]
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.
[
388
]
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".
[
389
]
A constitutional right to equality, based on the
Equal Protection Clauses
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,
[
390
]
Barack Obama
won election for President.
By 1944, the position had changed. In
Steele v. Louisville & Nashville Railway Co.
,
[
391
]
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.
[
392
]
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,
[
393
]
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.
[
394
]
But while the
US Supreme Court
has failed, against dissent, to recognize a constitutional principle of equality,
[
395
]
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.
[
396
]
Today legislation bans discrimination, that is unrelated to an employee's ability to do a job, based on sex, race,
[
397
]
ethnicity, national origin, age and disability.
[
398
]
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.
[
399
]
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.
[
400
]
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",
[
401
]
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,
[
402
]
and is prohibited in general by the landmark
Civil Rights Act of 1964
.
[
403
]
Rosie the Riveter
symbolized women factory workers in World War II. The
Equal Pay Act of 1963
banned pay discrimination within workplaces.
[
404
]
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
."
[
405
]
Segregation
in employment is equally unlawful.
[
406
]
The same basic rules apply for people
over 40 years old
,
[
407
]
and for people with
disabilities
.
[
408
]
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.
[
409
]
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.
[
410
]
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.
[
411
]
Souter J
in dissent, pointed out the majority's approach was "inexplicable in forgiving employers who present false evidence in court".
[
412
]
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."
[
413
]
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.
[
414
]
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".
[
415
]
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.
[
416
]
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. ...
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.
[
417
]
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.
[
418
]
Standard principles of agency and vicariously liability apply, so an employer is responsible for the actions of its agents,
[
419
]
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.
[
420
]
In addition, an employing entity may not retaliate against an employee for asserting his or her rights under the
Civil Rights Act of 1964
,
[
421
]
or the
Age Discrimination in Employment Act of 1967
.
[
422
]
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.
[
423
]
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.
[
424
]
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.
[
425
]
This is all seen as necessary to make equal rights effective.
Equal impact and remedies
[
edit
]
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.
[
426
]
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.
[
427
]
It is not necessary to show any intention to discriminate, just a discriminatory effect. Since amendments by the
Civil Rights Act of 1991
,
[
428
]
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.
[
429
]
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.
[
430
]
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.
[
431
]
The
Paycheck Fairness Act
, repeatedly proposed by Democrats such as
Hillary Clinton
, would prevent employer defenses to sex discrimination that are related to gender. It has been rejected by
Republicans
in the
United States Congress
.
Both
disparate treatment
and disparate impact claims may be brought by an individual, or if there is a "pattern or practice" by the
Equal Employment Opportunity Commission
, the
attorney general
,
[
432
]
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".
[
433
]
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,
[
434
]
so long as there is sufficiently specific presentation of issues of law and fact to certify the action.
[
435
]
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).
[
436
]
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).
[
437
]
In
County of Washington v. Gunther
[
438
]
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).
[
439
]
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.
[
440
]
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
§1608
OFCCP
Regulations, 41 CFR §60 based on Executive Order 11246, 3 CFR 339
Franklin Delano Roosevelt
, 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)
Albertsons, 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
Free movement and immigration
[
edit
]
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
§1324b
and
§1324a
"unlawful employment of aliens"
Illegal immigration to the United States
Comprehensive Immigration Reform Act of 2007
President Franklin D. Roosevelt
brought
unemployment
down from over 20% to under 2%, with the
New Deal
's investment in jobs during the
Great Depression
.
Job security laws in the United States are the weakest in the developed world, as there are no federal statutory rights yet.
[
441
]
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.
[
442
]
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.
[
443
]
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 Montana
[
444
]
) protects all employees yet. There are now a growing number of proposals to do this.
[
445
]
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,
[
446
]
the empirical evidence suggests that job insecurity hampers innovation, reduces productivity, worsens economic recessions,
[
447
]
deprives employees of liberty and pay,
[
448
]
and creates a culture of fear.
[
449
]
US unemployment has historically been extremely volatile, as Republican presidents have consistently increased post-war unemployment, while Democratic presidents have reduced it.
[
450
]
In its conduct of
monetary policy
, it is the duty of the
Federal Reserve
to achieve "maximum employment",
[
451
]
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.
[
452
]
Termination and cause
[
edit
]
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."
[
453
]
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.
[
454
]
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.
[
444
]
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.
[
455
]
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.
[
456
]
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
.
[
457
]
Most countries treat job security as a fundamental right,
[
458
]
as well as necessary to prevent irrational job losses, to reduce unemployment, and to promote innovation.
[
447
]
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,
[
446
]
although the empirical credibility of this argument is doubted by a majority of scholars.
[
459
]
The slogan "you're fired!" was popularized by
Donald Trump
'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,
[
460
]
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.
[
461
]
In the late 19th century, employment at will was popularized by academic writers as an inflexible legal presumption,
[
462
]
and state courts began to adopt it, even though many had presumed that contract termination usually required notice and justifications.
[
463
]
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".
[
443
]
However, the employer's discretion to terminate could not violate any statutory prohibition, including termination for union membership,
[
464
]
discriminatory termination based on a protected characteristic (e.g. race, gender, age or disability),
[
465
]
and bringing claims for occupational health and safety,
[
466
]
fair labor standards,
[
467
]
retirement income,
[
468
]
family and medical leave,
[
469
]
and under a series of other specific Acts.
[
470
]
Many state courts also added at least four "
public policy
" exceptions,
[
471
]
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.
[
472
]
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.
[
473
]
Third, an employee cannot be discharged for exercising any statutory right, such as refusing to take a lie detector test or filing litigation.
[
474
]
Fourth, employees will be wrongfully discharged if they legitimately
blow the whistle
on unlawful employer conduct, such as violating food labelling laws,
[
475
]
or reporting unlawful standards in a nursing home.
[
476
]
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.
[
477
]
Some states interpret the general duty of
good faith
in contracts to cover discharges,
[
478
]
so that an employee cannot, for example, be terminated just before a bonus is due to be paid.
[
479
]
However the vast majority of Americans remain unprotected against most arbitrary, irrational or malicious conduct by employers.
[
480
]
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,
[
481
]
and job-related misconduct where the employer consistently enforces a rule,
[
482
]
but not actions outside of the job.
[
483
]
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.
[
484
]
If a written contract does not promise "just cause" protection against termination, statements in a handbook can still be enforceable,
[
485
]
and oral agreements can override the written contract.
[
486
]
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.
[
456
]
Most developed countries regard information and consultation in the event of any economic change as a fundamental right.
[
487
]
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.
[
488
]
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,
[
489
]
and immunity from the social consequences for the laid off workforce.
American workers do not yet have a right to vote on employer layoff decisions, even though the US government helped draft laws for other countries to have elected work councils.
[
490
]
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.
[
491
]
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.
[
492
]
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.
[
493
]
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.
[
494
]
Second, an employer may argue that business circumstances were unforeseen.
[
495
]
Third, an employer can argue it had reasonable grounds for believing its failure was not a violation of the act.
[
496
]
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.
[
497
]
States such as Massachusetts, Connecticut and Maine have statutes with slightly but 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.
[
498
]
Outside limited defenses in
corporate law
,
[
499
]
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.
[
500
]
The majority held there must be "substantial continuity of identity" of the business for the good faith bargaining duty to continue.
The right to
full employment
or the "
right to work
" in a fair paying job is a universal human right in
international law
,
[
501
]
partly inspired by the experience of the
New Deal
in the 1930s.
[
502
]
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,
[
503
]
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".
[
504
]
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.
[
505
]
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.
Unemployment
since World War I has been lower under Democratic presidents and higher under Republican presidents. The high rate of
incarceration
raised real unemployment by around 1.5% since 1980.
[
506
]
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".
[
507
]
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".
[
508
]
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."
[
509
]
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".
[
510
]
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.
[
511
]
It includes "policy priorities" of the "development of energy sources and supplies, transportation, and environmental improvement".
[
512
]
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.
The
Works Progress Administration
from 1935 to 1943
[
513
]
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."
[
514
]
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.
[
515
]
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).
[
516
]
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,
[
517
]
and the US unemployment rate follows which political party is in the White House.
[
518
]
... my friends, after this
war
, there will be a great
unemployment
problem. The munition plants will be closed and useless, and millions of munitions workers will be thrown out upon the market... First they ignore you. Then they ridicule you. And then they attack you and want to burn you. And then they build monuments to you. And that is what is going to happen to the
Amalgamated Clothing Workers of America
. And I say, courage to the strikers, and courage to the delegates, because great times are coming, stressful days are here, and I hope your hearts will be strong, and I hope you will be one hundred per cent union when it comes!
—
Nicholas Klein
,
Biennial Convention of the Amalgamated Clothing Workers of America
(
1918
)
If despite fiscal and monetary policy people are unemployed, the Social Security Act of 1935 creates
unemployment insurance
.
[
519
]
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.
[
520
]
Employees cannot get benefits if they are laid off for misconduct,
[
521
]
and for participation in strikes,
[
522
]
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.
[
523
]
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.
[
524
]
Trade and international law
[
edit
]
[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 ...
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
Eugene V. Debs
, founder of the
American Railway Union
and five-time presidential candidate, was jailed twice for organizing the
Pullman Strike
and denouncing
World War I
. His life story is told in a documentary by Bernie Sanders.
[
525
]
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
.
Labor law in individual states
[
edit
]
In 1959, California added the Division of Fair Employment Practices to the
California Department of Industrial Relations
. The Fair Employment and Housing Act
[
526
]
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:
[
527
]
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.
[
528
]
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.
[
529
]
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.
[
530
]
Laws restricting unions
[
edit
]
Right-to-work states
Statewide Right-to-work law
Local Right-to-work laws
No Right-to-work law
As of 2019
, twenty-six states plus
Guam
prevent trade unions from signing collective agreements with employers requiring employees pay fees to the union when they are not members (frequently called "right-to-work" laws by their political proponents).
In 2010, the organization "
Save Our Secret Ballot
" pushed four states: Arizona, South Carolina, South Dakota, and Utah to pass constitutional amendments to ban
card check
.
Enforcement of rights
[
edit
]
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
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
^
See
International Labour Organization
,
Recent US Labor Market Data
(
2013
)
^
UN,
Human Development Report
(2025)
Table 3
^
National Labor Relations Act of 1935
,
29 USC
§151
. J. R. Commons and J. B. Andrews,
Principles of Labor Legislation
(Harper 1916) ch 1, The basis of labor law, 9, "where bargaining power on the one side is power to withhold access to physical
property
and the necessaries of life, and on the other side is only power to withhold labor by doing without those necessaries, then equality of rights may signify inequality of bargaining power."
^
Most statutes explicitly encourage this, including the
FLSA 1938
, the
Civil Rights Act of 1964
, and the
Family and Medical Leave Act of 1993
. "
Federal preemption
" rules have, however, restricted experimentation in key areas. These include the
National Labor Relations Act 1935
, as the
US Supreme Court
developed a doctrine not found in the act, and
Employee Retirement Income Security Act of 1974
.
^
42 USC
§§301–306
Archived
January 26, 2022, at the
Wayback Machine
on federally funded state programs and
§§401–434
Archived
April 16, 2021, at the
Wayback Machine
on federal old age, survivors and disability insurance benefits.
^
15 USC §17
Archived
April 14, 2021, at the
Wayback Machine
, "The labor of a human being
is not a commodity
or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws."
^
D Webber,
The Rise of the Working Class Shareholders: Labor's Last Best Weapon
(
2018
)
^
E McGaughey, 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019)
42
Seattle University Law Review
697
^
CRA 1964
§703(a)(1),
42 USC
§2000e-2(a)
Archived
January 19, 2022, at the
Wayback Machine
, "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."
^
cf
International Labour Organization
,
Termination of Employment Convention, 1982
setting out general principles on fair reasons for discharge of workers.
^
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)
102
Columbia Law Review
1527
argues that collective labor right "ossified" with the
Labor Management Reporting and Disclosure Act of 1959
, after which there was a "longstanding political impasse at the national level". E. McGaughey, 'Fascism-Lite in America (or the Social Ideal of Donald Trump)' (2018)
7(1) British Journal of American Legal Studies
, 14, argues that since 1976, "No modern judiciary had engaged in a more sustained assault on democracy and human rights. In particular, its attack on labor and democratic society made inequality soar."
^
See JV Orth,
Combination and conspiracy: a legal history of trade unionism, 1721–1906
(1992)
^
R v Journeymen-Taylors of Cambridge
(1721) 8 Mod 10, 88 ER 9
^
C Tomlins, 'Reconsidering Indentured Servitude: European Migration and the Early American Labor Force, 1600–1775' (2001)
42 Labor History 5
^
(1772)
98 ER 499
^
AW Blumrosen, 'The Profound Influence in America of Lord Mansfield's Decision in Somerset v Stuart' (2007)
13
Texas Wesleyan Law Review
645
^
Slave Trade Act 1807
^
The
Slavery Abolition Act 1833
distributed around £20 million, around $3 billion in 2017 dollars. See the
UCL Legacies of British Slave-ownership
page.
^
60 US 393
(1857)
^
See also
J. R. Commons
,
Principles of Labor Legislation
(1916)
ch II, 38–40
^
Civil Rights Cases
,
109 US 3
(1883)
^
S Perlman,
A History of Trade Unionism in the United States
(1922)
^
3 Doc Hist 59 (1806)
^
45 Mass. 111, 4 Metcalf 111 (1842)
^
See EE Witte, 'Early American Labor Cases' (1926)
35 Yale Law Journal 829
, employers brought at least three successful claims against their employees before 1863, and fifteen up to 1880 for "conspiracy". See also FB Sayre, 'Criminal Conspiracy' (1922)
35
Harvard Law Review
393
. W.. Holt, 'Labor Conspiracy Cases in the United States, 1805–1842: Bias and Legitimation in Common Law Adjudication' (1984)
22
Osgoode Hall Law Journal
591
. 'Tortious Interference with Contractual Relations in the Nineteenth Century' (1980) 93
Harvard Law Review
1510.
^
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.
^
See U.S. Congress, Senate,
Final Report and Testimony Submitted to Congress by the Commission on Industrial Relations
(Government Printing Office, 1916)
64th Cong., 1st sess., S. Doc. 415, 2, 1526–1529
^
See TW Hazlett, 'The Legislative History of the Sherman Act Re-examined' (1992)
30 Economic Inquiry 263
, 266 and H Hovenkamp, 'Labor Conspiracies in American Law, 1880–1930' (1988)
66
Texas Law Review
919
^
64 Fed 724 (CC Ill 1894),
158
U.S.
564
(1895) imposed an injunction on the striking workers of the Pullman Company, leading to
Eugene Debs
being imprisoned. See the
Documentary by Bernie Sanders
(1979)
^
See also
Oklahoma v. Coyle
, 1913 OK CR 42, 8 Okl.Cr. 686, 130 P. 316 per
Henry Marshall Furman
^
167 Mass. 92 (1896) See also
Plant v. Woods
, 176 Mass 492, 57 NE 1011 (1900)
^
198
US
45
(1905)
^
208
U.S.
274
(1908)
^
Now 15 USC §17
^
On the "science" of management that developed, see
FW Taylor
,
The Principles of Scientific Management
(
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 (
Government Printing Office 1915
)
^
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.
^
Adkins v. Children's Hospital
, 261 US 525 (1923)
^
Adams v. Tanner
, 244 US 590 (1917)
^
Duplex Printing Press Co. v. Deering
, 254 US 443 (1921)
^
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.
^
See
Debs v. United States
, 249 US 211 (1919)
^
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.
^
See GC Means, 'The Separation of Ownership and Control in American Industry' (1931)
46(1) The Quarterly Journal of Economics 68
and
LD Brandeis
,
Other People's Money and How the Bankers Use It
(1914)
^
See
FD Roosevelt
,
Campaign Address on Progressive Government at the Commonwealth Club in San Francisco, California
(
1932
) written by
AA Berle
.
^
A.L.A. Schechter Poultry Corp. v. United States
, 295 US 495 (1935)
^
300 US 379 (1937)
^
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.
^
Franklin Delano Roosevelt,
Eleventh State of the Union Address
(
1944
)
^
a
b
See
San Diego Building Trades Council v. Garmon
359 US 236 (1959) but contrast
Chamber of Commerce v. Brown
,
522 US 60
(2008) where
Breyer J
and
Ginsburg J
dissented.
^
Brown v. Board of Education of Topeka
, 347 US 483 (1954)
^
See
2016 Democratic Party Platform
(
July 21, 2016
Archived
November 10, 2016, at the
Wayback Machine
)
^
NLRB v. Yeshiva University
,
444 US 672
, (1980),
NLRB v. Catholic Bishop of Chicago
, 440 US 490 (1979) 5 to 4 on the National Labor Relations Act of 1935, and
Hoffman Plastic Compounds, Inc. v. NLRB
, 535 US 137 (2002) 5 to 4 under the NLRA of 1935
^
Brown v. Hotel and Restaurant Employees
, 468 US 491 (1984) 5 to 4 on the NLRA of 1935
^
Mertens v. Hewitt Associates
, 508 US 248 (1993) 5 to 4 under
ERISA 1974
.
^
e.g. the
Dunlop Report of 1994
,
Workplace Democracy Act
of 1999,
Employee Free Choice Act
,
Paycheck Fairness Act
,
Equality Act of 2015
^
See Z. Adams, L. Bishop and S. Deakin,
CBR Labour Regulation Index (Dataset of 117 Countries)
(Cambridge,
Centre for Business Research
2016
) 761, United States of America
^
a
b
Guidance for Executive Order 13673, "Fair Pay and Safe Workplaces"; Final Guidance
, accessed 10 October 2022
^
a
b
Executive Order 13673
, accessed 6 November 2022
^
Executive Order 13782
, accessed 6 November 2022
^
UDHR 1948
art 17
^
See
Lochner v. New York
198 US 45
(1905)
^
322
U.S.
111
(1944)
^
331
U.S.
704
(1947)
^
See also
Goldberg v. Whitaker House Cooperative, Inc
,
366 US 28
(1961), on homeworkers making 'knitted, crocheted, and embroidered goods of all kinds.'
^
Nationwide Mutual Insurance Co. v. Darden
,
503
U.S.
318
(1992) employee under
ERISA
, rejecting two-prongs of the Fourth Circuit's substitute test, based on expectations and reliance.
^
322
U.S.
111
(1944), confirmed in
United States v. Silk
,
331
U.S.
704
(1947) and
Nationwide Mutual Insurance Co. v. Darden
,
503
U.S.
318
(1992)
^
Restatement of the Law of Agency, Second
§220 and
Community for Creative Non-Violence v. Reid
, 490 US 730 (1989)
^
444
U.S.
672
(1980)
^
532
U.S.
706
(2001)
^
cf
Clackamas Gastroenterology Associates v. Wells
,
538
U.S.
440
(2003) a majority of the Supreme Court held four physician shareholders could potentially be "employees" under the
Americans with Disabilities Act of 1990
.
Ginsburg J
, joined by
Breyer J
dissenting on reasoning, held it was clear that they were.
^
567 US __
(2012)
^
350 S.E.2d 83
(1986)
^
535
U.S.
137
(2002)
^
See
International Labour Organization
,
Freedom of Association and Protection of the Right to Organise Convention, 1948
C087
and
Right to Organize and Collective Bargaining Convention, 1949
C098
^
Hern, Alex (September 11, 2015).
"Uber driver declared employee as the company loses another ruling"
.
The Guardian
.
^
413 F.2d 310
(1969)
^
See also,
Zheng v. Liberty Apparel Co
, 335 F3d 61 (2003) Second Circuit, Cabranes J finding joint employment.
^
976 F.2d 805
(1992)
^
Advance Electric
, 268 NLRB 1001 (1984)
^
425 US 800
(1976)
^
Local No International Union of Operating Engineers v. National Labor Relations Board
,
518 F.2d 1040
(1975)
^
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
.
^
If there is no contract (written, oral, or by conduct) a
quantum meruit
claim for
restitution
can be available.
^
See
F Kessler
, 'Contracts of Adhesion—Some Thoughts About Freedom of Contract' (1943)
43(5)
Columbia Law Review
629
^
National Labor Relations Act 1935
§1,
29 USC §151
Archived
April 16, 2021, at the
Wayback Machine
, "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."
^
Fair Labor Standards Act 1938
,
29 USC §202
^
e.g.
Gade v. National Solid Wastes Management Association
,
505 US 88
(1992) holding 5 to 4 that
OSHA 1970
preempted
Illinois
state law that improved training and handling hazardous waste materials.
^
e.g.
Ingersoll-Rand Co. v. McClendon
,
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.
^
See generally
B. I. Sachs
, 'Despite Preemption: Making Labor Law in Cities and States' (2011)
124
Harvard Law Review
1153
^
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."
^
JI Case Co v. National Labor Relations Board
321 US 322
(1944)
^
321 US 322
(1944)
^
See
McLain v. Great American Insurance Co
, 208 Cal. App. 3d 1476 (1989) holding the
parol evidence rule
will rarely apply to employment.
^
662 A2d 89 (1995)
^
e.g.
Demasse v. ITT Corp
, 984 P2d 1138 (1999) in the
Arizona Supreme Court
^
999 P2d 71
(2000)
^
See
Kirke La Shelle Company v. The Paul Armstrong Company et al
263 NY 79 (1933) and see
Restatement (Second) of Contracts
§205
^
Stark v. Circle K Corp
, 230 Mont 468,
751 P2d 162
(1988)
^
See
Foley v. Interactive Data Corp
,
765 P2d 373
(1988)
^
This is also referred to as "mutual trust and confidence". See
Eastwood v. Magnox Electric plc
[2004]
UKHL 35
, per Lord Steyn
^
See
Wilson v. Racher
[1974] ICR 428
^
Johnson v. Unisys Limited
[2001]
UKHL 13
^
Bhasin v. Hrynew
[2014]
SCR 494
^
Bürgerliches Gesetzbuch
§138
. See also
Italian Constitution
, art 36
^
e.g.
Alexander v. Gardner-Denver Co.
,
415
U.S.
36
(1974) state policy favoring arbitration, but arbitrator decision can be reviewed de novo on employment rights.
^
556
U.S.
247
(2009)
^
See also
AT&T Mobility LLC v. Concepcion
,
563
U.S.
333
(2011) 5 to 4, binding arbitration can be imposed in class action cases for employment and consumer rights
^
On economic and political theory, see
J. S. Mill
,
Principles of Political Economy
(1848)
Book V, ch XI, §§9–11
and generally
Shelley v. Kraemer
,
334 US 1
(1948)
^
Massachusetts Bay Colony Records
(1641) vol I, 223. See also
J. R. Commons
,
History of Labor in the United States
(Macmillan 1918)
vol I, ch II, 50
^
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
,
269 US 530
(1925) wage laws for young people struck down,
Brandeis J
dissenting and
Holmes J
objecting.
^
Congressional Research Service
(March 2, 2023).
"State Minimum Wages: An Overview"
.
Chart on page 3.
^
a
b
FRED Graph
. Using
U.S. Department of Labor
data.
Federal Minimum Hourly Wage for Nonfarm Workers for the United States
.
Inflation adjusted
(by
FRED
) via the
Consumer Price Index for All Urban Consumers: All Items in U.S. City Average (CPIAUCSL)
. Run cursor over graph to see nominal and real minimum wage by month.
^
300 US 379
(1937)
^
United States v. Darby Lumber Co
,
312 US 100
(1941) dismissed a challenge to the
FLSA 1938
being constitutional.
^
FLSA 1938
,
29 USC §202(a)
^
a
b
"[USC02] 29 USC 207: Maximum hours"
.
uscode.house.gov
.
^
a
b
29 USC §218(a)
.
^
See the
California Labor Code
§1182.12
, requiring a $10 per hour wage from 2016.
New York Consolidated Laws
LAB art 19
, requires $9 per hour from 2016. Lawsuits from business groups have mostly been rejected, e.g. in
New Mexicans for Free Enterprise v. Santa Fe
, 138 NM 785 (2005) the City of Santa Fe enacted a minimum wage ordinance, above the federal and state wages. Businesses challenged it as being beyond the City's powers. Fry J held that the ordinance was lawful and constitutional.
^
527 US 706
(1999)
^
Souter J,
Stevens J
,
Ginsburg J
,
Breyer J
dissented.
^
This brought the effective position back to
National League of Cities v. Usery
,
426
US
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
,
469
US
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.
^
See today
FLSA 1938
,
29 USC §203(r)–(s)
. Previously,
Walling v. Jacksonville Paper Co.
,
317 US 564
(1943). See also
AB Kirschbaum Co v. Walling
316 US 517 (1942), workers building for firms that would not do interstate commerce were not covered, and
Borden Co v. Borella
325 US 679 (1945)
^
FLSA 1938
,
29 USC §203(s)(2)
^
29 USC §213
n.b. the statute does not make clear what justifications there are for any exemptions.
^
519 US 452
(1997)
^
See
Adams v. United States
, 44 Fed Claims 772 (1999) and
Erichs v. Venator Group
, Inc 128 F Supp 2d 1255 (ND Cal 2001)
^
551
U.S.
158
(2007)
^
Under 29 USC §211(c) employers must keep payroll records for evidence of working time.
^
Jewell Ridge Coal Corp. v. United Mine Workers of America
325 US 161
(1945) time traveling to work through the coal mine did count as working because it (1) required physical and mental exertion that was (2) controlled and required by the employer (3) for the employer's benefit. See also,
Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123
,
321 US 590
(1944) travel to work, once underground, was working time.
^
328 US 680
(1946)
^
328 US 680
(1946) per
Murphy J
. See also
Morillion v. Royal Packing Co
,
22 Cal 4th 575
(2000) the
California Supreme Court
held an employer must pay for hours traveling on company vehicles.
^
323
U.S.
126
(1944)
^
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.
^
Steiner v. Mitchell
350 US 247 (1956)
^
IBP, Inc. v. Alvarez
, 546 US 21 (2005)
Stevens J
for a unanimous court.
^
323 US 37 (1944)
Murphy J
holding that higher afternoon wages did not count as "premium" pay that could be ignored.
^
529 US 576
(2000)
^
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.
^
15 USC §1672
^
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.
^
See R Ray, M Sanes and J Schmitt, 'No Vacation Nation Revisited' (Washington DC 2013)
Center for Economic and Policy Research
1, "the average worker in the private sector in the United States receives only about ten days of paid vacation and about six paid holidays per year".
^
See the
Organisation for Economic Co-operation and Development
, '
Average annual hours actually worked per worker
' (Retrieved August 9, 2016) showing 1790 hours per year in the US, 1674 hours in the UK, and 1371 in Germany. OECD, 'Society at a glance 2009: OECD social indicators' (
2009
[
permanent dead link
]
) 39, Figure 2.17
^
See
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.
^
Holidays with Pay Convention 1970
(no 132)
^
See
HB 2238
^
See the
Working Time Directive 2003
art 7
^
FLSA 1938
,
29 USC §213
^
See FT de Vyver, 'The Five-Day Week' (1930) 33(2) Current History 223. Rybczynski,
Waiting for the Weekend
(1991) 142
^
198 US 45
(1905)
^
Robertson, James L. (2019).
Heroes, Rascals, and the Law: Constitutional encounters in Mississippi History
. Jackson, Ms: University Press of Mississippi.
ISBN
9781496819949
. p. 258.
^
Robertson, pp. 262 ff.
^
West Coast Hotel Co. v. Parrish
, 300 US 379 (1937)
^
California
,
New Jersey
,
Rhode Island
and
New York
^
On the economic effects of rules, see J Frieson, 'The Response of Wages to Protective Labor Legislation: Evidence from Canada' (1996)
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)
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).
^
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."
^
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.
^
29 USC §2612(a)(2) and 29 USC §2612(f) mothers and fathers must share time if they work for the same employer.
^
29 USC §2612(e)
^
29 USC §2612(e)(2)
^
29 USC §2614(c). If an employee quits, the employer is enabled to recoup costs.
^
535 US 81
(2002)
^
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.
^
29 USC §2617, and see
Frizzell v. Southwest Motor Freight
, 154 F3d 641 (6th Circuit 1998)
^
29 USC §2617(a)(1)(A)(iii)
^
See
Moore v. Payless Shoe Source
(8th Circuit 1998)
^
e.g. D. Paquette, 'The enormous ambition of Hillary Clinton's child-care plan' (May 12, 2016)
The Washington Post
^
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)
^
See
J. R. Commons
and J. B. Andrews,
Principles of Labor Legislation
(1920)
423–438
^
See
42 USC
ch 7
^
See L Conant,
A Critical Analysis of Industrial Pension Systems
(1922) and M. W. Latimer,
Trade Union Pension Systems
(1932)
^
See
LMRA 1947
,
29 USC
§186(c)(5)(B)
^
This followed Carnegie's attendance the
Commission on Industrial Relations
in 1916 to explain labor unrest. See W. Greenough,
It's My Retirement Money – Take Good Care of It: The TIAA-CREF Story
(Irwin 1990) 11–37, and E. McGaughey, 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019)
42
Seattle University Law Review
697
^
26 USC
§401(k)
^
On the theory behind
automatic enrolment
, see
R Thaler
and S Benartzi, 'Save more tomorrow: Using Behavioral Economics to Increase Employee Savings' (2004) 112(1) Journal of Political Economy 164 and E McGaughey, 'Behavioural economics and labour law' (2014)
LSE Legal Studies Working Paper No. 20/2014
^
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.
^
680 F2d 263
(1982)
^
ERISA 1974
,
29 USC
§§1022–1133
^
Rhorer v. Raytheon Engineers and Constructors, Inc
181 F3d 364
(5th 1999) a plan beneficiary can enforce terms in the summary plan description, even if the underlying document conflicts.
^
ERISA 1974
,
29 USC
§1052
^
ERISA 1974,
29 USC
§1081–1102
Archived
June 23, 2018, at the
Wayback Machine
, containing detailed rules.
^
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.
^
ERISA 1974
,
29 USC
§1054
^
ERISA 1974
,
29 USC
§1058
^
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)
^
517 US 882
(1996)
^
cf
Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd
[1991] 1 WLR 589 and
Equitable Life Assurance Society v. Hyman
[2000]
UKHL 39
^
490 US 714
(1989)
^
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.
^
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)
^
29 USC
§1104(a)(1)(D)
^
29 USC
§1104(a)(1)(B)–(C)
^
Varity Corp. v. Howe
516 US 489 (1996)
^
United States Department of Labor
,
Interpretive bulletin relating to written statements of investment policy, including proxy voting policy or guidelines
(1994)
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."
^
See
Meinhard v. Salmon
, 164 NE 545 (NY 1928) and
Keech v. Sandford
[1726]
EWHC Ch J76
^
29 USC
§1104(a)(1)(A)
^
29 USC
§1106
^
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."
^
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)
^
29 USC
§1144
^
Shaw v. Delta Air Lines, Inc
,
463 US 85
(1983) per
Blackmun J
^
Ingersoll-Rand Co. v. McClendon
, 498 US 133 (1990)
^
Egelhoff v. Egelhoff
, 532 US 141 (2001)
^
Metropolitan Life Insurance Co. v. Massachusetts
471 US 724 (1985)
^
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.
^
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.
^
a
b
See
HR 1277
, Title III, §301
^
See earlier,
LD Brandeis
,
Other People's Money and How the Bankers Use It
(
1914
) and JS Taub, 'Able but Not Willing: The Failure of Mutual Fund Advisers to Advocate for Shareholders' Rights' (2009) 34(3) The Journal of Corporation Law 843, 876
^
ERISA 1974
,
29 USC §1102
^
29 USC
§1105(d)
^
29 USC
§302(c)(5)(B)
^
See
US Department of Labor
,
Critical, Endangered and WRERA Status Notices
' (Retrieved August 11, 2016)
^
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.
^
See, sponsored by
Peter Visclosky
, Joint Trusteeship Bill of 1989
HR 2664
[
permanent dead link
]
. See further R Cook, 'The Case for Joint Trusteeship of Pension Plans' (2002) WorkingUSA 25. Most recently, the Employees' Pension Security Act of 2008 (
HR 5754
Archived
January 20, 2025, at the
Wayback Machine
) §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.'
^
This inserted a new Securities Exchange Act of 1934 §6(b)(10)
^
Text of the
Occupational Safety and Health Act
^
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
^
Archibald Cox
, D. C. Bok,
Matthew W. Finkin
and R. A. Gorman,
Labor Law: Cases and Materials
(2011)
^
15 USC
§17
Archived
April 14, 2021, at the
Wayback Machine
^
NLRA 1935
,
29 USC
§151
^
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
,
522 US 60
(2008)
Breyer J
and
Ginsburg J
dissented.
^
BI Sachs
, 'Revitalizing labor law' (2010)
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)
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.'
^
See
NAACP v. Alabama
,
357 US 449
(1958) referring to the "constitutionally protected right of association".
^
J. R. Commons
,
History of Labor in the United States
(Macmillan 1918)
vol I, ch 1, 25
^
JB Commons,
A Documentary History of American Industrial Society
(1910)
^
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
.
^
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.
^
In re Debs
, 64 Fed 724 (CC Ill 1894), 158 U.S. 564 (1895)
^
a
b
208 US 274 (1908)
^
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."
^
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)
^
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.
^
29 USC
§ 411
^
a
b
29 USC
§ 481
^
De Veau v. Braisted
,
363
U.S.
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
,
468
US
491
(1984) 4 to 3, New Jersey could impose a requirement that all union officials in a casino had no association with organized crime, consistently with
NLRA 1935
§ 7. The dissent argued that the requirement was disproportionate because it applied penalties to the whole union rather than the officials.
^
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."
^
Trbovich v. United Mine Workers
,
404
U.S.
528
(1972) See also
Hall v. Cole
,
412
U.S.
1
(1973) holding that if plaintiffs are successful, they can be awarded fees.
^
Dunlop v. Bachowski
,
421
U.S.
560
(1975)
^
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
^
See the
ITUC
,
Constitution
(2006)
^
29 USC
§ 158(a)(3)
^
29 USC
§ 164(b)
^
367
US
740
(1961), states that "a union may constitutionally compel contributions from dissenting nonmembers in an agency shop only for the costs of performing the union's statutory duties as exclusive bargaining agent." See also
Lincoln Fed Labor Union 19129 v. Northwestern Iron & Metal Co
,
335
US
525
(1949).
Communications Workers of America v. Beck
,
487
US
735
(1988) 5 to 3 that unions could have an agreement with employers that fees be collected to pay for the union's activities, but only up to the point that it was necessary to cover its costs.
Locke v. Karass
, 129 S Ct 798 (2008) legitimate costs included the Maine State Employees Association's costs for in national arbitration litigation.
^
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.
^
Buckley v. Valeo
, 424 US 1 (1976)
^
435 US 765 (1978)
^
558 US 310 (2010)
^
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.
^
573 US __ (2014)
^
578 US __ (2016)
^
"[USC02] 15 USC 17: Antitrust laws not applicable to labor organizations"
.
uscode.house.gov
.
^
208 US 161
(1908)
^
236 US 1 (1915)
^
In
Adair
, from
Holmes J
and
McKenna J
, and in
Coppage
from Holmes J,
Day J
and
Hughes J
^
29 USC
§§101–115
. This was approved and applied by
New Negro Alliance v. Sanitary Grocery Co.
,
303 US 552
(1938)
^
29 USC
§104
^
This reenacted labor provisions from the
National Industrial Recovery Act of 1933
, after
A.L.A. Schechter Poultry Corp. v. United States
,
295 US 495
(1935) struck it down.
^
NLRA 1935
,
29 USC
§157
, "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
^
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
.
^
29 USC
§152(2)
^
29 USC
§158(3)
^
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
.
^
563 F3d 492
(DC 2009)
^
R Eisenbrey and L Mishel, 'Supervisor in Name Only: Union Rights of Eight Million Workers at Stake in Labor Board Ruling' (2006)
Economic Policy Institute Issue Brief #225
^
See
Bureau of Labor Statistics
, '
Union Members – 2015
' (January 28, 2016) recording 14.8m union members, 16.4m people covered by collective bargaining or union representation. Union membership was 7.4% in private sector, but 39% in the public sector. In the five largest states, California has 15.9% union membership,
Texas
4.5%, Florida 6.8%,
New York
24.7% (the highest in the country), and
Illinois
15.2%. See further OECD,
Trade Union Density
(
1999–2013
)
^
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
^
NLRA 1935
,
29 USC §158(d)
. See
NLRB v. Borg-Warner Corp
356 US 342
(1958) Burton J held an employer refused to bargain unlawfully by insisting on a clause requiring a pre-strike ballot of employees. Harlan J dissented. See also
First National Maintenance Corp. v. NLRB
452 US 666
(1981) holding there was no mandatory duty to bargain over First National Maintenance Corp's "decision to terminate its Greenpark Care Center operation and to discharge the workers". Brennan J, joined by Marshall J, dissented saying the majority "states that "bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business."... I cannot agree with this test, because it takes into account only the interests of management; it fails to consider the legitimate employment interests of the workers and their union."
^
29 USC
§153
^
29 USC
§159(b)
.
^
29 USC
§159(a)
^
BI Sachs
, 'Revitalizing labor law' (2010) 31(2)
BJELL 335
–6
^
National Labor Relations Board
,
Seventy Fourth Annual Report
Archived
December 21, 2016, at the
Wayback Machine
(2009) 152
^
321 US 332 (1944)
^
323 US 248 (1944)
^
306 US 332 (1939) 5 to 2
^
560 US 674 (2010)
^
H.R. 1409,
S. 560
.
^
29 USC
§185
and see
Textile Workers Union of America v. Lincoln Mills
353 US 448 (1957) holding federal law is to be applied to promote national uniformity and carry out policies in the national labor laws.
^
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.
^
9 USC
§§1 ff
^
363 US 574
(1960) See also
United Steelworkers v. American Manufacturing Co.
363 US 564
(1960) construction or interpretation of an agreement is for the arbitrator, not the court to decide, and the court must order arbitration even if a claim made seems frivolous.
^
United Steelworkers v. Enterprise Wheel & Car Corp.
363 US 593
(1960)
^
United Paperworkers v. Misco, Inc.
484 US 29 (1987)
^
415 US 36
(1974)
^
556
U.S.
247
(2009) joined by
Roberts CJ
,
Scalia J
,
Kennedy J
and
Alito J
^
See also
AT&T Mobility LLC v. Concepcion
,
563
U.S.
333
(2011) another 5 to 4 decision on consumers.
^
S.987 and H.R.1873
^
HR 8410, 95th Cong (1977) S 1883, 95th Cong (1977)
^
HR 1409. S 560.
^
307 US 496 (1939)
^
29 USC
§158
^
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."
^
Filler Products, Inc. v. NLRB
376 F2d 369 (4th 1967)
^
e.g.
Sunbelt Manufacturing Inc, AFL-CIO
, 308 NLRB 780 (1992)
^
373 US 221
(1963)
^
380 US 263
(1965)
^
Marquez v. Screen Actors Guild Inc.
, 525 US 33 (1998)
^
420 US 251 (1975)
^
Epilepsy Foundation of North-east Ohio v. NLRB
(DC 2001)
^
440 US 301 (1979) Stevens, White, Brennan, Marshall J dissented.
^
502 US 527 (1992)
^
473 US 95 (1985) Blackmun, Brennan, Marshall, Stevens J dissented.
^
Sources: E McGaughey, 'Do corporations increase inequality?' (2015)
TLI Think! Paper 32/2016
, 29.
Bureau of Labor Statistics
, Series D 940–945 and
Thomas Piketty
(2014) Technical Appendices, Table S9.2
^
See further RL Hogler and GJ Grenier,
Employee Participation and Labor Law in the American Workplace
(1992)
^
See
A Cox
and MJ Seidman, 'Federalism and Labor Relations' (1950)
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)
67
Harvard Law Review
1297
argued for a 'rule of total federal preemption' for 'uniformity'.
A Cox
, 'Labor Law Preemption Revisited' (1972)
85
Harvard Law Review
1337
.
^
346 US 485
(1953) per Jackson J
^
359 US 236
(1959)
^
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. ... "
^
427 US 132
(1976)
^
475 US 608
(1986)
Rehnquist J
dissented.
^
522 US 60
(2008)
^
Building & Construction Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc.
507 US 218
(1993)
^
B Gernigo, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998)
137 International Labour Review 441
. In US federal law, see the
National Labor Relations Act of 1935
, 29 USC §163.
^
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
^
Clayton Antitrust Act of 1914
§6 and
National Labor Relations Act of 1935
§163.
^
B Gernigon, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998)
137 International Labour Review 441
Archived
February 24, 2021, at the
Wayback Machine
^
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.'
^
See EE Witte, 'Early American Labor Cases' (1926)
35 Yale Law Journal 829
, employers brought at least three successful claims against their employees before 1863, and fifteen up to 1880 for "conspiracy". See also F. B. Sayre, 'Criminal Conspiracy' (1922)
35
Harvard Law Review
393
. W. Holt, 'Labor Conspiracy Cases in the United States, 1805-1842: Bias and Legitimation in Common Law Adjudication' (1984)
22
Osgoode Hall Law Journal
591
. 'Tortious Interference with Contractual Relations in the Nineteenth Century' (1980) 93
Harvard Law Review
1510.
^
In re Debs
, 64 Fed 724 (CC Ill 1894), 158 US 564 (1895)
^
See
Samuel Gompers
, 'Labor and the War: the Movement for Universal Peace Must Assume the Aggressive' (October 1914)
XXI(1) American Federationist 849, 860
.
^
United States v. Hutcheson
312 US 219 (1941) per Justice Frankfurter
^
See the
Versailles Treaty 1919
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.
^
e.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.
^
NLRA 1935
29 USC
§§157 and 163
^
See '
Cesar Chavez Explains Boycotts
' and '
Cesar Chavez speaking at UCLA 10/11/1972
'.
^
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
.
^
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."
^
NLRA 1935
29 USC
§157
. n.b.
NLRB v. City Disposal Systems, Inc
465 US 822 (1984) one man, Brown, without the union was allowed to refuse to work on unsafe machinery, pursuant to a collective agreement. He was protected even without the union also taking action.
^
NLRB v. Insurance Agents' International Union
,
361 US 477, 495-496
(1960) interpreting
NLRA 1935
, 29 USC §158(b)(3)
^
NLRA 1935
29 USC
§158(b)(4)(B)
^
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).
^
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
.
^
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.
^
NLRA 1935
29 USC §158(d)
^
National Labor Relations Board v. Columbian Enameling & Stamping Co.
, 306 U.S. 292 (1939) 5 to 2, Reed J and Black J dissented.
^
e.g. under the
European Convention on Human Rights
1950 article 11, the no detriment rule for union membership is seen in
Wilson and Palmer v United Kingdom
[2002] ECHR 552. In the UK, the
Trade Union and Labour Relations (Consolidation) Act 1992
s 238A
protects employees on strike from unfair dismissal for 12 weeks at least.
^
304 US 333
(1938)
^
See
International Labour Organization
,
Complaint Against the Government of the United States Presented by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO)
(
1991
) [92] 'The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests. The Committee considers that this basic right is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally. The Committee considers that, if a strike is otherwise legal, the use of labour drawn from outside the undertaking to replace strikers for an indeterminate period entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights.' P Weiler, 'A Principled Re-Shaping of Labor Law for the Twenty-First Century' [2001]
University of Pennsylvania Journal of Labor and Employment Law 201
,
Mackay
is 'the worst contribution that the U.S. Supreme Court has made to the current shape of labor law in this country.'
^
NLRB v. Fansteel Metallurgical Corp.
306 US 240
(1939) Reed J and Black J dissented.
^
Trans World Airlines, Inc v. Flight Attendants
489 US 426
(1989) Brennan J, Marshall J, Blackmun J dissented.
^
NLRB v. Electrical Workers
346 US 464 (1953)
^
New Negro Alliance v. Sanitary Grocery Co.
, 303 US 552 (1938)
^
Thornhill v. Alabama
, 310 US 88 (1940)
^
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
.
^
Eastex, Inc. v. NLRB
437 US 556 (1978)
^
e.g.
Clean Slate for Worker Power: Building a Just Economy and Democracy
(2019) Labor and Worklife Program, Harvard Law School.
^
See the
Reward Work Act, S.2605
, sponsored by
Tammy Baldwin
,
Elizabeth Warren
,
Brian Schatz
, joined by
Kirsten Gillibrand
^
The Sanders "
Corporate Accountability and Democracy
" plan proposes 45% of boards to be elected by workers for companies with over $100 million in revenue, while Warren's
Accountable Capitalism Act
would require 40% on large federal corporations.
^
See Bernie Sanders, "
Corporate Accountability and Democracy: Shareholder Democracy
".
J. R. Commons
,
Industrial Government
(1921)
ch 6
, L. D. Brandeis,
Other People's Money and How the Bankers Use It
(1914).
^
See E. McGaughey, 'Corporate Law Should Embrace Putting Workers On Boards: The Evidence Is Behind Them' (17 September 2018)
Harvard Law School Forum on Corporate Governance and Financial Regulation
and 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019)
42
Seattle University Law Review
697
. R. L. Hogler and G. J. Grenier,
Employee Participation and Labor Law in the American Workplace
(1992)
^
See D. Webber,
The Rise of the Working Class Shareholder: Labor's Last Best Weapon
(2018) and the section above on "
Pensions
".
^
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.'
^
See the
Reward Work Act, S.2605
, sponsored by
Tammy Baldwin
,
Elizabeth Warren
,
Brian Schatz
, joined by
Kirsten Gillibrand
. In the House,
HR 6096
was sponsored by
Keith Ellison
and
Ro Khanna
.
^
Massachusetts Laws, General Laws, Part I Administration of the Government, Title XII Corporations,
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)
35
Harvard Law Review
910
, 915, mentioning the
Dennison Manufacturing Co
at
Framingham
.
^
NM Clark,
Common Sense in Labor Management
(1919)
ch II, 29–30
^
See
W. O. Douglas
and C. M. Shanks,
Cases and Materials on the Law of Management of Business Units
(Callaghan 1931)
ch 1(7) 130
and
J. R. Commons
,
Industrial Government
(1921)
ch 6
^
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.
^
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
^
See further,
www.worker-participation.eu
, E McGaughey, 'Votes at Work in Britain: Shareholder Monopolisation and the 'Single Channel' (2018)
15(1) Industrial Law Journal 76
and 'The Codetermination Bargains: The History of German Corporate and Labour Law' (2016)
23(1) Columbia Journal of European Law 135
.
^
Dunlop Commission on the Future of Worker-Management Relations: Final Report
(
1994
)
^
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
^
e.g. RA Dahl, 'Power to the Workers?' (November 19, 1970)
New York Review of Books
20
^
See B Hamer, 'Serving Two Masters: Union Representation on Corporate Boards of Directors' (1981)
81(3)
Columbia Law Review
639
, 640 and 'Labor Unions in the Boardroom: An Antitrust Dilemma' (1982)
92(1)
Yale Law Journal
106
^
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 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)
^
J. D. Blackburn, 'Worker Participation on Corporate Directorates: Is America Ready for Industrial Democracy?' (1980–1981) 18
Houston Law Review
349
^
'The Unions Step on Board' (October 27, 1993) Financial Times
^
P. J. Purcell, 'The Enron Bankruptcy and Employer Stock in Retirement Plans' (March 11, 2002)
CRS Report for Congress
and JH Langbein, SJ Stabile and BA Wolk,
Pension and Employee Benefit Law
(4th edn Foundation 2006) 640–641
^
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
^
See E Schelzig, '
Volkswagen powers up 33-acre solar park in Tenn.
' (January 23, 2013) USA Today
^
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.
^
NICB, Works Council Manual (1920) Supplemental to Research Report No 21, 25, Appendix, Model Article II(1)
^
NLRA 1935
§158(a)(2)
^
See further
NLRB v. Newport News Shipbuilding Co.
308 US 241 (1939)
^
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.
^
See
San Diego Building Trades Council v. Garmon
359 US 236
(1959) holding that state laws are only preempted for bargaining, rather than outcomes (like setting minimum wages, pension rights, health and safety, or workplace representation) which are protected by "§7 of the National Labor Relations Act, or constitute an unfair labor practice under §8 ... When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted."
^
309 NLRB No 163, 142 LRRM 1001 (1992)
^
311 NLRB No 88, 143 LRRM 1121 (1993)
^
US Department of Labor and US Department of Commerce, Commission on the Future of Worker-Management Relations: Final Report (1994) 22, 27, 30–31.
^
J Ramsey, '
VW Chattanooga plant union votes to approve collective bargaining
' (December 6, 2015) autoblog.com and NE Boudette, '
Volkswagen Reverses Course on Union at Tennessee Plant
' (April 25, 2016) NY Times
^
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
. ...
^
See the
Universal Declaration of Human Rights
of 1948 and the
Second Bill of Rights of 1944
.
^
Civil Rights Act of 1964
§703(a)(1),
42 USC
§2000e-2(a)
Archived
January 19, 2022, at the
Wayback Machine
, "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."
^
Civil Rights Act of 1964
,
42 USC
§2000e-2(j)
Archived
January 19, 2022, at the
Wayback Machine
^
See
Dred Scott v. Sandford
,
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)
^
On the end of this, see
Harper v. Virginia Board of Elections
,
383 US 663
(1966) and contrast
Yick Wo v. Hopkins
118 US 356
, 370 (1886) referring to 'the political franchise of voting' as a 'fundamental political right, because [it is] preservative of all rights.'
^
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".
^
42 USC
§1981(a)
^
109 US 3
(1883)
^
See also
Plessy v. Ferguson
,
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)
^
See the
Civil Rights Cases
109 US 3
(1883) where the majority struck down the
Civil Rights Act of 1875
^
323 US 192
(1944)
^
421 US 454
(1975)
^
See
Washington v. Davis
426 US 229
(1976) holding that a prima facie case of unconstitutionality would be established by evidence of intent. It was not enough that verbal tests had a disparate impact. Brennan J and Marshall J dissented.
^
414 US 632
(1974)
^
See
Massachusetts Board of Retirement v. Murgia
,
427 US 307
(1976) and
Regents of the University of California v. Bakke
438 US 265
(1978). Contrast
Kücükdeveci v. Swedex GmbH & Co KG
(2010)
C-555/07
affirming a constitutional equality principle in
EU law
and
Matadeen v. Pointu
[1998]
UKPC 9
, per
Lord Hoffmann
discussing the principle of equality as it is potentially seen in Commonwealth jurisdictions.
^
California Fed Savings and Loan Ass v. Guerra
479 US 272
(1987) holding the
California Fair Employment and Housing Act of 1959
§12945(b)(2) was not preempted.
^
e.g.
Saint Francis College v. al-Khazraji
, 481 US 604 (1987) an Arabic man was protected from race discrimination under
CRA 1964
^
Contrast the
International Labour Organization
Discrimination Convention 1958
c 111
, art 1(1)(b) applying to "such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation".
^
29 USC
§206(d)(1)
, "No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for
equal work
on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a
seniority system
; (ii) a
merit system
; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee." §206(d)(2) expressly prevents any discrimination caused by labor unions also.
^
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).
^
FLSA 1938
, 29 USC §203(r)
^
After the Supreme Court held by 6 to 3 in
Geduldig v. Aiello
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
,
556
U.S.
701 (2009) 7 to 2, holding that maternity leave taken before the
Pregnancy Discrimination Act
1978 did not need to count as time worked that will contribute to pension earnings.
^
CRA 1964
,
42 USC
§2000e-2
^
cf
ILO
Equal Remuneration Convention 1951
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".
^
CRA 1964
,
42 USC
§2000e-2(a)(1)
Archived
January 19, 2022, at the
Wayback Machine
^
CRA 1964
,
42 USC
§2000e-2(a)(2)
Archived
January 19, 2022, at the
Wayback Machine
^
ADEA 1967
,
29 USC
§§623 and 631
^
ADA 1990
,
42 USC
§12112(a)–(b)
^
CRA 1964
,
42 USC
§2000e(b). See
Walters v. Metropolitan Educational Enterprises, Inc
519 US 202 (1997)
^
450 US 248 (1981) and see previously
McDonnell Douglas Corp. v. Green
, 411 US 792 (1973)
^
509 US 502
(1993)
^
Contrast
O'Connor v. Consolidated Coin Caterers Corporation
517 US 308 (1996) on age discrimination
^
CRA 1965, 42 USC §2000e-2(e)
^
433 US 321
(1977)
^
517 FSupp 292
(ND Tex 1981)
^
472 US 400
(1985)
^
477 US 57
(1986)
^
510 US 17
(1993) reversing the Sixth Circuit.
^
Burlington Industries Inc v. Ellerth
524 US 742
(1998) relying on Restatement of Torts §219
^
524 US 775
(1998) n.b.
Oncale v. Sundowner Offshore Services, Inc.
,
523 US 75
(1998) sexual harassment was possible between members of the same sex.
^
CRA 1964
,
42 USC
§2000e-3
^
Gomez-Perez v. Potter
, 553 US 474 (2008) 6 to 3.
^
493 US 182
(1990)
^
519 US 337 (1997)
^
Burlington Northern & Santa Fe (BNSF) Railway Co. v. White
, 548 US 53 (2006)
^
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.
^
401 US 424
(1971)
^
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".
^
CRA 1964
,
42 USC
§2000e–2(k)(1)(A)
^
557
U.S.
557
(2009)
Kennedy J
giving the first judgment.
^
557
U.S.
({{{5}}}
2009
)
557
(dissent)
Ginsburg J
, joined by
Stevens J
,
Souter J
and
Breyer J
^
42 USC
§§2000e-5
to
2000e-6
^
Federal Rules of Civil Procedure
Rule 23
^
e.g.
International Brotherhood of Teamsters v. US
431 US 324
(1977)
^
See
General Telephone Co of Southwest v. Falcon
457 US 147
(1982)
^
29 USC §206(d)(1).
^
This exempts (i) a bona fide seniority system (ii) merit systems (iii) systems measuring earnings by quantity or quality of production.
^
452 US 161
(1981)
^
See also
Schultz v. Wheaton Glass Co
, 421 F.2d 259 (3rd Cir 1970)
^
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.
^
See Centre for Business Research,
Labour Regulation Index (Dataset of 117 Countries)
(
2016
) 763-4
^
See LE Blades, 'Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power' (1967)
67(8)
Columbia Law Review
1404
, 1411-12. Contrast the
Delaware General Corporation Law
§141(k) where a corporation can require a "classified board" where directors can only be removed "with cause". This happens frequently, e.g.
Campbell v. Loew's, Inc.
, 36 Del Ch 563, 134 A 2d 852 (Ch 1957) referring to
Auer v. Dressel
, 306 NY 427, 118 NE 2d 590, 593 (1954)
^
a
b
Cusano v. NLRB
190 F 2d 898 (1951) citing
NLRB v. Condenser Corp
, 128 F.2d 67, 75 (3rd Cir 1942) stating "poor reason". See further
Payne v. Western & Atlantic Railroad
, 81 Tennessee 507 (1884)
^
a
b
Montana Code Annotated 2015
Title 39 ch 2 part 9, §4
^
e.g.
Bernie Sanders
presidential campaign,
Workplace Democracy Plan
(
2019
). Mike Siegel Congress campaign in Texas 2020,
Dignity for Workers by Protecting and Growing Union Membership
Archived
March 22, 2020, at the
Wayback Machine
^
a
b
e.g. R Epstein, 'In Defense of the Contract at Will' (1984) 57
University of Chicago Law Review
947
^
a
b
e.g. V. V. Acharya and R. P. Baghai, 'Labor Laws and Innovation' (2013) 56(4)
Journal of Law and Economics
997 and V. V. Acharya, R. P. Baghai, K. V. Subramanian, 'Wrongful Discharge Laws and Innovation' (2014)
27(1) Review of Financial Studies 301
^
e.g. L. E. Blades, 'Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power' (1967)
67(8)
Columbia Law Review
1404
. C. L. Estlund, 'How Wrong Are Employees About Their Rights, and Why Does It Matter?' (2002)
77
NYU Law Review
6
^
e.g. L Ryan, 'Ten Ways Employment At Will Is Bad For Business' (
October 3, 2016
) Forbes.
^
See
chart
below. E McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2022)
51(3) Industrial Law Journal 511
^
Federal Reserve Act of 1913
, 12 USC §225a
^
M Kalecki, 'Political aspects of full employment' (1943)
14(4) Political Quarterly 322
^
5 USC
§7513(a)
^
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)
^
e.g. in
UK labour law
, see the
Employment Rights Act 1996
ss 94 ff
.
^
a
b
ILO
,
Termination of Employment Convention, 1982
arts 4-13
^
See the
German Civil Code
or
Bürgerliches Gesetzbuch 1900
§622 (notice before dismissal) and the
Work Constitution Act 1972
or Betriebsverfassungsgesetz 1972 (worker participation).
^
e.g.
Charter of Fundamental Rights of the European Union
art 30
^
e.g. WB MacLeod and V Nakavachara, 'Can Wrongful Discharge Law Enhance Employment?' (2007)
117 Economic Journal F218
, I Marinescu, 'Job Security Legislation and Job Duration: Evidence from the United Kingdom' (2009)
27(3) Journal of Labor Economics 465
. On OECD studies, see E McGaughey, 'OECD Employment Protection Legislation Indicators and Reform' (2019)
ssrn.com
^
cf
Bernie Sanders
presidential campaign,
Workplace Democracy Plan
(
2019
). Mike Siegel Congress campaign in Texas 2020,
Dignity for Workers by Protecting and Growing Union Membership
Archived
March 22, 2020, at the
Wayback Machine
^
California Civil Code
(1872)
§1999
^
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.'
^
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)
9(1) American Economic Review 132
and AS Erofones, 'Contracts. Termination of Employment at Weekly Salary' (1927)
40(4) Harvard LR 646
^
National Labor Relations Act of 1935
§8(a)(3) preventing union discrimination
^
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
.
^
Occupational Safety and Health Act of 1970
, 29 USC §§651-678
^
Fair Labor Standards Act of 1938
, 29 USC §§20-219
^
ERISA 1974
, 29 USC §§1140-41
^
Family and Medical Leave Act
, 29 USC §2615
^
Vietnam Era Veterans' Readjustment Assistance Act
, 38 USC §2021(a)(A)(i).
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
^
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'.
^
Ivy v. Army Times Pub Co
428 A.2d 831 (DC App 1981) declining to perjure at employer's request.
^
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.
^
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
^
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.
^
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.
^
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..."
^
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'
^
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.
^
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.
^
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.
^
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.
^
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.
^
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.
^
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)
^
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.
^
cf
Charter of Fundamental Rights of the European Union 2000
art 27
^
Control Council Law No 22
(
10 April 1946
) art V. Today see the
Work Constitution Act 1972
or Betriebsverfassungsgesetz 1972 (worker participation).
^
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.
^
See the
Control Council Law No 22
(
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).
^
WARN Act 1988
§2101(a)(2)-(3)
. §2101(a)(1), the 100 employee threshold excludes part-time employees.
^
WARN Act 1988
§2102(a)
^
WARN Act 1988
§§2101(a)(6) and 2101(b)(2)
^
WARN Act 1988
§2102(b)
^
WARN Act 1988
§2102(b)(2)
and see
Local Union 7107, United Mine Workers v. Clinchfield Coal Co
124 F3d 639 (4th Cir 1997) cancellation of major contract in unforeseeable circumstances.
^
WARN Act 1988
§2104(a)(4)
. See
Kildea v. Electro-Wire Products, Inc.
60 F. Supp. 2d 710 (6th Cir 1998) not giving notice to employees on a reasonable misunderstanding that they were not entitled to it counts as good faith.
^
WARN Act 1988
§2104(a)(1)-(3)
^
See
E. Appelbaum
and R Batt,
Private Equity at Work – When Wall Street Manages Main Street
(2014)
^
Unocal Corp. v. Mesa Petroleum Co.
493 A 2d 946 (Del 1985)
^
417
US
249
(1974)
^
Universal Declaration of Human Rights
art 23(1)
and
International Covenant on Economic, Social and Cultural Rights 1966
art 6
^
See also
Franklin D. Roosevelt
, '
Second Bill of Rights
', in
State of the Union Address
(January 11, 1944)
^
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
^
239 US 33
(1915) per
Justice Hughes
. cf
Massachusetts Board of Retirement v. Murgia
427 US 307
(1976) holding that an age limit of 50 years old for police in Massachusetts was constitutional.
^
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
.
^
E McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2022)
51(3) Industrial Law Journal 511
^
Employment Act of 1946
,
15 USC §1021
^
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.
^
Board of Regents of State Colleges v. Roth
408 US 564, 588
(1972) per
Justice Marshall
dissenting.
^
15 USC §3116
^
15 USC
§1022a
.
^
15 USC
§1022c
.
^
Emergency Relief Appropriation Act of 1935
^
Amended by the
Federal Reserve Reform Act of 1977
, 12 USC §225a
^
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."
^
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
^
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.
^
E. McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2018)
Centre for Business Research, University of Cambridge, Working Paper no. 496
, part 2(1)
^
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.
^
e.g.
Millner v. Enck
709 A 2d 417 (Pa Super 1998)
^
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)
^
Ohio Bureau of Employment Services v. Hodary
, 431 US 471 (1977)
^
Internal Revenue Code
§3304(a)(5)
^
Brazee v. Michigan
,
241
US
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
^
Bernie Sanders
and
Jane Sanders
,
Eugene V. Debs Documentary
(1979)
^
The
Fair Employment and Housing Act
^
Details of law
Archived
January 16, 2006, at the
Wayback Machine
from the DFEH website
^
Barnes & Thornburg LLP (October 12, 2011).
"California Enacts 22 New Employment Laws Impacting All Companies Doing Business in the State"
. The National Law Review.
^
New Jersey, Legislature (April 16, 1945).
"L.1945 c.168-174. AN Act concerning civil rights, and amending sections 10 :1-3, 10 :1-6 and 10 :1-8 of the Revised Statutes"
.
NJ State Library
. Retrieved
November 15,
2021
.
^
The
New Jersey Law Against Discrimination
Books
John R. Commons
,
Principles of Labor Legislation
(1916)
John R. Commons
,
History of Labor in the United States
(Macmillan 1918)
vol I
and
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,
'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
Labor laws of Federal and State legislatures on law.cornell.edu
Synopses of US Employment Law Cases
Typical benefits of a union contract
Federal employment discrimination law office |
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## Contents
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- [(Top)](https://en.wikipedia.org/wiki/United_States_labor_law)
- [1 History](https://en.wikipedia.org/wiki/United_States_labor_law#History)
- [2 Contract and rights at work](https://en.wikipedia.org/wiki/United_States_labor_law#Contract_and_rights_at_work)
Toggle Contract and rights at work subsection
- [2\.1 Scope of protection](https://en.wikipedia.org/wiki/United_States_labor_law#Scope_of_protection)
- [2\.2 Contracts of employment](https://en.wikipedia.org/wiki/United_States_labor_law#Contracts_of_employment)
- [2\.3 Wages and pay](https://en.wikipedia.org/wiki/United_States_labor_law#Wages_and_pay)
- [2\.4 Working time and family care](https://en.wikipedia.org/wiki/United_States_labor_law#Working_time_and_family_care)
- [2\.5 Pensions](https://en.wikipedia.org/wiki/United_States_labor_law#Pensions)
- [2\.6 Health and safety](https://en.wikipedia.org/wiki/United_States_labor_law#Health_and_safety)
- [2\.7 Civil liberties](https://en.wikipedia.org/wiki/United_States_labor_law#Civil_liberties)
- [3 Workplace participation](https://en.wikipedia.org/wiki/United_States_labor_law#Workplace_participation)
Toggle Workplace participation subsection
- [3\.1 Labor unions](https://en.wikipedia.org/wiki/United_States_labor_law#Labor_unions)
- [3\.2 Collective bargaining](https://en.wikipedia.org/wiki/United_States_labor_law#Collective_bargaining)
- [3\.3 Right to organize](https://en.wikipedia.org/wiki/United_States_labor_law#Right_to_organize)
- [3\.4 Collective action](https://en.wikipedia.org/wiki/United_States_labor_law#Collective_action)
- [3\.5 Right to vote at work](https://en.wikipedia.org/wiki/United_States_labor_law#Right_to_vote_at_work)
- [4 Equality and discrimination](https://en.wikipedia.org/wiki/United_States_labor_law#Equality_and_discrimination)
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- [4\.1 Constitutional rights](https://en.wikipedia.org/wiki/United_States_labor_law#Constitutional_rights)
- [4\.2 Equal treatment](https://en.wikipedia.org/wiki/United_States_labor_law#Equal_treatment)
- [4\.3 Equal impact and remedies](https://en.wikipedia.org/wiki/United_States_labor_law#Equal_impact_and_remedies)
- [4\.4 Affirmative action](https://en.wikipedia.org/wiki/United_States_labor_law#Affirmative_action)
- [4\.5 Free movement and immigration](https://en.wikipedia.org/wiki/United_States_labor_law#Free_movement_and_immigration)
- [5 Job security](https://en.wikipedia.org/wiki/United_States_labor_law#Job_security)
Toggle Job security subsection
- [5\.1 Termination and cause](https://en.wikipedia.org/wiki/United_States_labor_law#Termination_and_cause)
- [5\.2 Economic layoffs](https://en.wikipedia.org/wiki/United_States_labor_law#Economic_layoffs)
- [5\.3 Full employment](https://en.wikipedia.org/wiki/United_States_labor_law#Full_employment)
- [5\.4 Trade and international law](https://en.wikipedia.org/wiki/United_States_labor_law#Trade_and_international_law)
- [6 Labor law in individual states](https://en.wikipedia.org/wiki/United_States_labor_law#Labor_law_in_individual_states)
Toggle Labor law in individual states subsection
- [6\.1 California](https://en.wikipedia.org/wiki/United_States_labor_law#California)
- [6\.2 New Jersey](https://en.wikipedia.org/wiki/United_States_labor_law#New_Jersey)
- [6\.3 Laws restricting unions](https://en.wikipedia.org/wiki/United_States_labor_law#Laws_restricting_unions)
- [7 Enforcement of rights](https://en.wikipedia.org/wiki/United_States_labor_law#Enforcement_of_rights)
- [8 See also](https://en.wikipedia.org/wiki/United_States_labor_law#See_also)
- [9 Notes](https://en.wikipedia.org/wiki/United_States_labor_law#Notes)
- [10 References](https://en.wikipedia.org/wiki/United_States_labor_law#References)
- [11 External links](https://en.wikipedia.org/wiki/United_States_labor_law#External_links)
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# United States labor law
10 languages
- [العربية](https://ar.wikipedia.org/wiki/%D9%82%D8%A7%D9%86%D9%88%D9%86_%D8%A7%D9%84%D8%B9%D9%85%D9%84_%D9%81%D9%8A_%D8%A7%D9%84%D9%88%D9%84%D8%A7%D9%8A%D8%A7%D8%AA_%D8%A7%D9%84%D9%85%D8%AA%D8%AD%D8%AF%D8%A9 "قانون العمل في الولايات المتحدة – Arabic")
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From Wikipedia, the free encyclopedia
US laws on fair pay and conditions, unions, democracy, equality and security at work
[](https://en.wikipedia.org/wiki/File:Statue_of_liberty,_sunset.jpg)
The [Statue of Liberty](https://en.wikipedia.org/wiki/Statue_of_Liberty "Statue of Liberty") greeted millions of [people who migrated](https://en.wikipedia.org/wiki/History_of_immigration_to_the_United_States "History of immigration to the United States") to America for [work](https://en.wikipedia.org/wiki/Employment "Employment"), saying "[Give me your tired, your poor, Your huddled masses yearning to breathe free...](https://en.wikipedia.org/wiki/The_New_Colossus "The New Colossus")" In 2013, in a 155.5 million [working population](https://en.wikipedia.org/wiki/Working_population "Working population"), union membership was 35.9% in the public sector, 6.6% in the private sector.[\[1\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-1) In 2017, unemployment was 4.3%, excluding people in prison. The US ranks 29th in the world [inequality-adjusted](https://en.wikipedia.org/wiki/Economic_inequality "Economic inequality") [human development index](https://en.wikipedia.org/wiki/List_of_countries_by_inequality-adjusted_HDI "List of countries by inequality-adjusted HDI").[\[2\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-2)
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| [Labor force](https://en.wikipedia.org/wiki/Labor_force_in_the_United_States "Labor force in the United States") **[Labor Law]()** [Child labor](https://en.wikipedia.org/wiki/Child_labor_laws_in_the_United_States "Child labor laws in the United States") [Labor unions](https://en.wikipedia.org/wiki/Labor_unions_in_the_United_States "Labor unions in the United States") [Minimum wage](https://en.wikipedia.org/wiki/Minimum_wage_in_the_United_States "Minimum wage in the United States") [Right-to-work law](https://en.wikipedia.org/wiki/Right-to-work_law "Right-to-work law") **Employment** [Unemployment](https://en.wikipedia.org/wiki/Unemployment_in_the_United_States "Unemployment in the United States") [Causes](https://en.wikipedia.org/wiki/Causes_of_unemployment_in_the_United_States "Causes of unemployment in the United States") |
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**United States labor law** sets the rights and duties for employees, [labor unions](https://en.wikipedia.org/wiki/Labor_unions_in_the_United_States "Labor unions in the United States"), and [employers](https://en.wikipedia.org/wiki/Employer "Employer") in the US. Labor law's basic aim is to remedy the "[inequality of bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power")" between employees and employers, especially employers "organized in the [corporate](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") or other forms of ownership association".[\[3\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-3) Over the 20th century, federal law created minimum [social and economic rights](https://en.wikipedia.org/wiki/Social_and_economic_rights "Social and economic rights"), and encouraged state laws to go beyond the minimum to favor employees.[\[4\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-4) The [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") requires a federal [minimum wage](https://en.wikipedia.org/wiki/Minimum_wage "Minimum wage"), currently \$7.25 but higher in 29 states and D.C., and discourages working weeks over 40 hours through time-and-a-half [overtime pay](https://en.wikipedia.org/wiki/Overtime_pay "Overtime pay"). There are no federal laws, and few state laws, requiring [paid holidays](https://en.wikipedia.org/wiki/Paid_holidays "Paid holidays") or [paid family leave](https://en.wikipedia.org/wiki/Paid_family_leave "Paid family leave"). The [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "Family and Medical Leave Act of 1993") creates a limited right to 12 weeks of unpaid leave in larger employers. There is no automatic right to an occupational pension beyond federally guaranteed [Social Security](https://en.wikipedia.org/wiki/Social_Security_\(United_States\) "Social Security (United States)"),[\[5\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-5) but the [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974") requires standards of prudent management and good governance if employers agree to provide pensions, health plans or other benefits. The [Occupational Safety and Health Act of 1970](https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act_of_1970 "Occupational Safety and Health Act of 1970") requires employees have a safe system of work.
A [contract of employment](https://en.wikipedia.org/wiki/Contract_of_employment "Contract of employment") can always create better terms than statutory minimum rights. But to increase their [bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") to get better terms, employees organize labor unions for [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"). The [Clayton Act of 1914](https://en.wikipedia.org/wiki/Clayton_Act_of_1914 "Clayton Act of 1914") guarantees all people the right to organize,[\[6\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-6) and the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") creates rights for most employees to organize without detriment through [unfair labor practices](https://en.wikipedia.org/wiki/Unfair_labor_practices "Unfair labor practices"). Under the [Labor Management Reporting and Disclosure Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disclosure_Act_of_1959 "Labor Management Reporting and Disclosure Act of 1959"), labor union governance follows democratic principles. If a majority of employees in a workplace support a union, employing entities have a duty to bargain in [good faith](https://en.wikipedia.org/wiki/Good_faith "Good faith"). Unions can take collective action to defend their interests, including withdrawing their labor on strike. There are not yet general rights to directly participate in enterprise governance, but many employees and unions have experimented with securing influence through pension funds,[\[7\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-7) and representation on [corporate](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") boards.[\[8\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-8)
Since the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), all employing entities and labor unions have a duty to treat employees equally, without discrimination based on "race, color, religion, sex, or national origin".[\[9\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-9) There are separate rules for sex discrimination in pay under the [Equal Pay Act of 1963](https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963 "Equal Pay Act of 1963"). Additional groups with "protected status" were added by the [Age Discrimination in Employment Act of 1967](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967") and the [Americans with Disabilities Act of 1990](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990"). There is no federal law banning all sexual orientation or [identity](https://en.wikipedia.org/wiki/Sexual_identity "Sexual identity") discrimination, but 22 states had passed laws by 2016. These equality laws generally prevent discrimination in hiring and terms of employment, and make discharge because of a protected characteristic unlawful. In 2020, the Supreme Court of the United States ruled in *[Bostock v. Clayton County](https://en.wikipedia.org/wiki/Bostock_v._Clayton_County "Bostock v. Clayton County")* that discrimination solely on the grounds of sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964. There is no federal law against [unjust discharge](https://en.wikipedia.org/wiki/Unfair_dismissal "Unfair dismissal"), and most states also have no law with full protection against wrongful [termination of employment](https://en.wikipedia.org/wiki/Termination_of_employment "Termination of employment").[\[10\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-10) [Collective agreements](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements") made by labor unions and some individual contracts require that people are only discharged for a "[just cause](https://en.wikipedia.org/wiki/Just_cause_\(employment_law\) "Just cause (employment law)")". The [Worker Adjustment and Retraining Notification Act of 1988](https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act_of_1988 "Worker Adjustment and Retraining Notification Act of 1988") requires employing entities give 60 days notice if more than 50 or one third of the workforce may lose their jobs. Federal law has aimed to reach [full employment](https://en.wikipedia.org/wiki/Full_employment "Full employment") through [monetary policy](https://en.wikipedia.org/wiki/Monetary_policy "Monetary policy") and spending on infrastructure. Trade policy has attempted to put labor rights in international agreements, to ensure open markets in a [global economy](https://en.wikipedia.org/wiki/Global_economy "Global economy") do not undermine [fair](https://en.wikipedia.org/wiki/Fair_trade "Fair trade") and full employment.
## History
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=1 "Edit section: History")\]
Main articles: [History of labor law in the United States](https://en.wikipedia.org/wiki/History_of_labor_law_in_the_United_States "History of labor law in the United States") and [Labor history of the United States](https://en.wikipedia.org/wiki/Labor_history_of_the_United_States "Labor history of the United States")
[](https://en.wikipedia.org/wiki/File:US_Slave_Free_1789-1861.gif)
After the [Declaration of Independence](https://en.wikipedia.org/wiki/United_States_Declaration_of_Independence "United States Declaration of Independence"), [slavery in the US](https://en.wikipedia.org/wiki/Slavery_in_the_US "Slavery in the US") was progressively abolished in the north, but only finished by the [13th Amendment](https://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution "Thirteenth Amendment to the United States Constitution") in 1865 near the end of the [American Civil War](https://en.wikipedia.org/wiki/American_Civil_War "American Civil War").
Modern US labor law mostly comes from statutes passed between [1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") and [1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974"), and changing interpretations of the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court").[\[11\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-11) However, laws regulated the rights of people at work and employers from colonial times onward. Before the [Declaration of Independence](https://en.wikipedia.org/wiki/United_States_Declaration_of_Independence "United States Declaration of Independence") in 1776, the [common law](https://en.wikipedia.org/wiki/Common_law "Common law") was either uncertain or hostile to labor rights.[\[12\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-12) Unions were classed as conspiracies, and potentially criminal.[\[13\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-13) It tolerated [slavery](https://en.wikipedia.org/wiki/Slavery_in_the_colonial_United_States "Slavery in the colonial United States") and [indentured servitude](https://en.wikipedia.org/wiki/Indentured_servitude_in_the_Americas "Indentured servitude in the Americas"). From the [Pequot War](https://en.wikipedia.org/wiki/Pequot_War "Pequot War") in [Connecticut](https://en.wikipedia.org/wiki/Connecticut "Connecticut") from 1636 onwards, [Native Americans](https://en.wikipedia.org/wiki/Indigenous_peoples_of_the_Americas "Indigenous peoples of the Americas") [were enslaved](https://en.wikipedia.org/wiki/Slavery_among_Native_Americans_in_the_United_States "Slavery among Native Americans in the United States") by European settlers. More than half of the European immigrants arrived as prisoners, or in [indentured servitude](https://en.wikipedia.org/wiki/Indentured_servitude "Indentured servitude"),[\[14\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-14) where they were not free to leave their employers until a [debt bond](https://en.wikipedia.org/wiki/Debt_bondage "Debt bondage") had been repaid. Until its abolition, the [Atlantic slave trade](https://en.wikipedia.org/wiki/Atlantic_slave_trade "Atlantic slave trade") brought millions of Africans to do forced labor in the Americas.
However, in 1772, the English [Court of King's Bench](https://en.wikipedia.org/wiki/Court_of_King%27s_Bench_\(England\) "Court of King's Bench (England)") held in *[Somerset v Stewart](https://en.wikipedia.org/wiki/Somerset_v_Stewart "Somerset v Stewart")* that slavery was to be presumed unlawful at common law.[\[15\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-15) [Charles Stewart](https://en.wikipedia.org/wiki/Charles_Stewart_\(customs_official\) "Charles Stewart (customs official)") from [Boston](https://en.wikipedia.org/wiki/Boston "Boston"), [Massachusetts](https://en.wikipedia.org/wiki/Massachusetts "Massachusetts") had bought [James Somerset](https://en.wikipedia.org/wiki/James_Somerset "James Somerset") as a slave and taken him to [England](https://en.wikipedia.org/wiki/England "England"). With the help of [abolitionists](https://en.wikipedia.org/wiki/Abolitionists "Abolitionists"), Somerset escaped and sued for a writ of *[habeas corpus](https://en.wikipedia.org/wiki/Habeas_corpus "Habeas corpus")* (that "holding his body" had been unlawful). [Lord Mansfield](https://en.wikipedia.org/wiki/Lord_Mansfield "Lord Mansfield"), after declaring he should "[let justice be done whatever be the consequence](https://en.wikipedia.org/wiki/Let_justice_be_done_whatever_be_the_consequence "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](https://en.wikipedia.org/wiki/American_Revolution "American Revolution") in 1776.[\[16\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-16) The [1790 United States census](https://en.wikipedia.org/wiki/1790_United_States_census "1790 United States census") recorded 694,280 slaves (17.8 per cent) of a total 3,893,635 population. After independence, the [British Empire](https://en.wikipedia.org/wiki/British_Empire "British Empire") halted the [Atlantic slave trade](https://en.wikipedia.org/wiki/Atlantic_slave_trade "Atlantic slave trade") in [1807](https://en.wikipedia.org/wiki/Slave_Trade_Act_1807 "Slave Trade Act 1807"),[\[17\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-17) and abolished slavery in its own territories, by paying off slave owners in [1833](https://en.wikipedia.org/wiki/Slavery_Abolition_Act_1833 "Slavery Abolition Act 1833").[\[18\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-18) In the US, northern states progressively abolished slavery. However, southern states did not. In *[Dred Scott v. Sandford](https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford "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.[\[19\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-19) The [American Civil War](https://en.wikipedia.org/wiki/American_Civil_War "American Civil War") was the result. [President Lincoln](https://en.wikipedia.org/wiki/President_Lincoln "President Lincoln")'s [Emancipation Proclamation](https://en.wikipedia.org/wiki/Emancipation_Proclamation "Emancipation Proclamation") in 1863 made abolition of slavery a war aim, and the [Thirteenth Amendment](https://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution "Thirteenth Amendment to the United States Constitution") 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](https://en.wikipedia.org/wiki/Peonage_Act_of_1867 "Peonage Act of 1867").[\[20\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-20) In 1868, the [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") ensured equal access to justice, and the [Fifteenth Amendment](https://en.wikipedia.org/wiki/Fifteenth_Amendment_to_the_United_States_Constitution "Fifteenth Amendment to the United States Constitution") required that everyone would have the right to vote. The [Civil Rights Act of 1875](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1875 "Civil Rights Act of 1875") was also meant to ensure equality in access to housing and transport, but in the *[Civil Rights Cases](https://en.wikipedia.org/wiki/Civil_Rights_Cases "Civil Rights Cases")*, the Supreme Court found it was "unconstitutional", ensuring that racial segregation would continue. In dissent, [Harlan J](https://en.wikipedia.org/wiki/Harlan_J "Harlan J") said the majority was leaving people "practically at the mercy of corporations".[\[21\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-21) Even if people were formally free, they remained factually dependent on [property](https://en.wikipedia.org/wiki/Property "Property") owners for work, income and basic services.
> [Labor](https://en.wikipedia.org/wiki/Contract_labour "Contract labour") is prior to and independent of [capital](https://en.wikipedia.org/wiki/Capital_\(economics\) "Capital (economics)"). 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](https://en.wikipedia.org/wiki/Poverty "Poverty"); none less inclined to take or touch aught which they have not honestly earned. Let them beware of surrendering a [political power](https://en.wikipedia.org/wiki/Democracy "Democracy") 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](https://en.wikipedia.org/wiki/Liberty "Liberty") shall be lost.
—[Abraham Lincoln](https://en.wikipedia.org/wiki/Abraham_Lincoln "Abraham Lincoln"), *First Annual Message* ([1861](https://millercenter.org/the-presidency/presidential-speeches/december-3-1861-first-annual-message))
Like slavery, common law repression of labor unions was slow to be undone.[\[22\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-22) In 1806, *[Commonwealth v. Pullis](https://en.wikipedia.org/wiki/Commonwealth_v._Pullis "Commonwealth v. Pullis")* held that a [Philadelphia](https://en.wikipedia.org/wiki/Philadelphia "Philadelphia") shoemakers union striking for higher wages was an illegal "conspiracy",[\[23\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-23) even though [corporations](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law")—combinations of employers—were lawful. Unions still formed and acted. The first federation of unions, the [National Trades Union](https://en.wikipedia.org/wiki/National_Trades_Union "National Trades Union") was established in 1834 to achieve a [10 hour working day](https://en.wikipedia.org/wiki/Eight-hour_day#United_States "Eight-hour day"), but it did not survive the soaring unemployment from the financial [Panic of 1837](https://en.wikipedia.org/wiki/Panic_of_1837 "Panic of 1837"). In 1842, *[Commonwealth v. Hunt](https://en.wikipedia.org/wiki/Commonwealth_v._Hunt "Commonwealth v. Hunt")*, held that *Pullis* was wrong, after the Boston Journeymen Bootmakers' Society struck for higher wages.[\[24\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-24) 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](https://en.wikipedia.org/wiki/Massachusetts_Supreme_Judicial_Court "Massachusetts Supreme Judicial Court"), [Shaw CJ](https://en.wikipedia.org/wiki/Chief_Justice_Shaw "Chief Justice Shaw") 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.[\[25\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-25) In 1869 an organisation called the [Knights of Labor](https://en.wikipedia.org/wiki/Knights_of_Labor "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,[\[26\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-26) yet it supported the [Alien Contract Labor Law](https://en.wikipedia.org/wiki/Alien_Contract_Labor_Law "Alien Contract Labor Law") of 1885 which suppressed workers migrating to the US under a contract of employment.
Industrial conflicts on [railroads](https://en.wikipedia.org/wiki/Railroads_in_the_United_States "Railroads in the United States") and [telegraphs](https://en.wikipedia.org/wiki/Telegraphs "Telegraphs") from 1883 led to the foundation of the [American Federation of Labor](https://en.wikipedia.org/wiki/American_Federation_of_Labor "American Federation of Labor") in 1886, with the simple aim of improving workers wages, housing and job security "here and now".[\[27\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-27) 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](https://en.wikipedia.org/wiki/Sherman_Antitrust_Act_of_1890 "Sherman Antitrust Act of 1890"), which was intended to sanction business cartels acting in [restraint of trade](https://en.wikipedia.org/wiki/Restraint_of_trade "Restraint of trade"),[\[28\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-28) was applied to labor unions. In 1895, the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") in *[In re Debs](https://en.wikipedia.org/wiki/In_re_Debs "In re Debs")* affirmed an injunction, based on the Sherman Act, against the striking workers of the [Pullman Company](https://en.wikipedia.org/wiki/Pullman_Company "Pullman Company"). The strike leader [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs") was put in prison.[\[29\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-29) In notable dissent among the judiciary,[\[30\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-30) [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J") argued in *[Vegelahn v. Guntner](https://en.wikipedia.org/wiki/Vegelahn_v._Guntner "Vegelahn v. Guntner")* that any union taking [collective action](https://en.wikipedia.org/wiki/Collective_action "Collective action") in [good faith](https://en.wikipedia.org/wiki/Good_faith "Good faith") was lawful: even if strikes caused economic loss, this was equally legitimate as economic loss from corporations competing with one another.[\[31\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-31) [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J") was elevated to the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court"), but was again in a minority on labor rights. In 1905, *[Lochner v. New York](https://en.wikipedia.org/wiki/Lochner_v._New_York "Lochner v. New York")* held that [New York](https://en.wikipedia.org/wiki/New_York_\(state\) "New York (state)") limiting bakers' working day to 60 hours a week violated employers' [freedom of contract](https://en.wikipedia.org/wiki/Freedom_of_contract "Freedom of contract"). The Supreme Court majority supposedly unearthed this "right" in the [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution"), that no State should "deprive any person of life, liberty, or property, without due process of law."[\[32\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-32) With [Harlan J](https://en.wikipedia.org/wiki/Harlan_J "Harlan J"), [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J") dissented, arguing that the "[constitution](https://en.wikipedia.org/wiki/United_States_Constitution "United States 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](https://en.wikipedia.org/wiki/Loewe_v._Lawlor "Loewe v. Lawlor")*, holding that triple damages were payable by a striking union to its employers under the [Sherman Act of 1890](https://en.wikipedia.org/wiki/Sherman_Act_of_1890 "Sherman Act of 1890").[\[33\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-33) This line of cases was finally quashed by the [Clayton Act of 1914](https://en.wikipedia.org/wiki/Clayton_Act_of_1914 "Clayton Act of 1914") §6. This removed labor from [antitrust law](https://en.wikipedia.org/wiki/United_States_antitrust_law "United States antitrust law"), affirming that the "[labor of a human being is not a commodity](https://en.wikipedia.org/wiki/Labour_is_not_a_commodity "Labour 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".[\[34\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-34)
In his [State of the Union](https://en.wikipedia.org/wiki/State_of_the_Union "State of the Union") address of 1944, President [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt") urged that America develop [Second Bill of Rights](https://en.wikipedia.org/wiki/Second_Bill_of_Rights "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](https://en.wikipedia.org/wiki/Clayton_Act "Clayton Act"), and abuses of employers documented by the *[Commission on Industrial Relations](https://en.wikipedia.org/wiki/Commission_on_Industrial_Relations "Commission on Industrial Relations")* from 1915, the Supreme Court struck labor rights down as unconstitutional, leaving management powers virtually unaccountable.[\[35\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-35) In this *[Lochner era](https://en.wikipedia.org/wiki/Lochner_era "Lochner era")*, the Courts held that employers could force workers to not belong to labor unions,[\[36\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-36) that a minimum wage for women and children was void,[\[37\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-37) that states could not ban [employment agencies](https://en.wikipedia.org/wiki/Employment_agencies "Employment agencies") charging fees for work,[\[38\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-38) that workers could not strike in solidarity with colleagues of other firms,[\[39\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-39) and even that the federal government could not ban child labor.[\[40\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-40) It also imprisoned socialist activists, who opposed the fighting in [World War I](https://en.wikipedia.org/wiki/World_War_I "World War I"), meaning that [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs") ran as the Socialist Party's candidate for [president](https://en.wikipedia.org/wiki/President_of_the_United_States "President of the United States") in [1920](https://en.wikipedia.org/wiki/1920_United_States_presidential_election "1920 United States presidential election") from prison.[\[41\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-41) Critically, the courts held state and federal attempts to create Social Security to be unconstitutional.[\[42\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-42) Because they were unable to save in safe public pensions, millions of people bought shares in corporations, causing massive growth in the [stock market](https://en.wikipedia.org/wiki/Stock_market "Stock market").[\[43\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-43) Because the Supreme Court precluded regulation for good information on what people were buying, [corporate promoters](https://en.wikipedia.org/wiki/Corporate_promoters "Corporate promoters") tricked people into paying more than stocks were really worth. The [Wall Street Crash of 1929](https://en.wikipedia.org/wiki/Wall_Street_Crash_of_1929 "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](https://en.wikipedia.org/wiki/Great_Depression "Great Depression").
This led to the election of [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt") for president in 1932, who promised a "[New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal")". Government committed to create [full employment](https://en.wikipedia.org/wiki/Full_employment "Full employment") and a system of [social and economic rights](https://en.wikipedia.org/wiki/Social_and_economic_rights "Social and economic rights") enshrined in federal law.[\[44\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-44) But despite the [Democratic Party](https://en.wikipedia.org/wiki/Democratic_Party_\(United_States\) "Democratic Party (United States)")'s overwhelming electoral victory, the Supreme Court continued to strike down legislation, particularly the [National Industrial Recovery Act of 1933](https://en.wikipedia.org/wiki/National_Industrial_Recovery_Act_of_1933 "National Industrial Recovery Act of 1933"), which regulated enterprise in an attempt to ensure fair wages and prevent [unfair competition](https://en.wikipedia.org/wiki/Unfair_competition "Unfair competition").[\[45\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-45) Finally, after Roosevelt's [second overwhelming victory](https://en.wikipedia.org/wiki/1936_United_States_presidential_election "1936 United States presidential election") in 1936, and Roosevelt's threat to create more judicial positions if his laws were not upheld, one Supreme Court judge [switched positions](https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine "The switch in time that saved nine"). In *[West Coast Hotel Co. v. Parrish](https://en.wikipedia.org/wiki/West_Coast_Hotel_Co._v._Parrish "West Coast Hotel Co. v. Parrish")* the Supreme Court found that [minimum wage](https://en.wikipedia.org/wiki/Minimum_wage "Minimum wage") legislation was constitutional,[\[46\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-46) letting the [New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal") go on. In labor law, the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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](https://en.wikipedia.org/wiki/Solidarity_action "Solidarity action") with employees of other firms. The [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") created the right to a minimum wage, and time-and-a-half [overtime](https://en.wikipedia.org/wiki/Overtime "Overtime") pay if employers asked people to work over 40 hours a week. The [Social Security Act of 1935](https://en.wikipedia.org/wiki/Social_Security_Act_of_1935 "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](https://en.wikipedia.org/wiki/Securities_Act_of_1933 "Securities Act of 1933") and the [Securities Exchange Act of 1934](https://en.wikipedia.org/wiki/Securities_Exchange_Act_of_1934 "Securities Exchange Act of 1934") ensured buyers of securities on the [stock market](https://en.wikipedia.org/wiki/Stock_market "Stock market") had good information. The [Davis–Bacon Act of 1931](https://en.wikipedia.org/wiki/Davis%E2%80%93Bacon_Act_of_1931 "Davis–Bacon Act of 1931") and [Walsh–Healey Public Contracts Act of 1936](https://en.wikipedia.org/wiki/Walsh%E2%80%93Healey_Public_Contracts_Act_of_1936 "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.[\[47\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-47) To reach [full employment](https://en.wikipedia.org/wiki/Full_employment "Full employment") and out of depression, the [Emergency Relief Appropriation Act of 1935](https://en.wikipedia.org/wiki/Emergency_Relief_Appropriation_Act_of_1935 "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](https://en.wikipedia.org/wiki/World_War_II "World War II") began. In 1944, his health waning, Roosevelt urged Congress to work towards a "[Second Bill of Rights](https://en.wikipedia.org/wiki/Second_Bill_of_Rights "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](https://en.wikipedia.org/wiki/Fascism "Fascism") here at home."[\[48\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-48)
President [Lyndon B. Johnson](https://en.wikipedia.org/wiki/Lyndon_B._Johnson "Lyndon B. Johnson") explains the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "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](https://en.wikipedia.org/wiki/New_Deal "New Deal") had created a minimum safety net of labor rights, and aimed to enable [fair pay](https://en.wikipedia.org/wiki/Fair_pay "Fair pay") through [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"), a Republican dominated Congress revolted when Roosevelt died. Against the veto of [President Truman](https://en.wikipedia.org/wiki/President_Truman "President Truman"), the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947 limited the right of labor unions to take [solidarity action](https://en.wikipedia.org/wiki/Solidarity_action "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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") not only created minimum standards, but stopped or "[preempted](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption")" states enabling better union rights, even though there was no such provision in the statute.[\[49\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto4-49) Labor unions became extensively regulated by the [Labor Management Reporting and Disclosure Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disclosure_Act_of_1959 "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](https://en.wikipedia.org/wiki/Job_security "Job security") rights remained vulnerable to unemployment. As well as the crisis triggered by *[Brown v. Board of Education](https://en.wikipedia.org/wiki/Brown_v._Board_of_Education "Brown v. Board of Education")*,[\[50\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-50) and the need to dismantle segregation, job losses in agriculture, particularly among [African Americans](https://en.wikipedia.org/wiki/African_Americans "African Americans") was a major reason for the [civil rights movement](https://en.wikipedia.org/wiki/Civil_rights_movement "Civil rights movement"), culminating in the [March on Washington for Jobs and Freedom](https://en.wikipedia.org/wiki/March_on_Washington_for_Jobs_and_Freedom "March on Washington for Jobs and Freedom") led by [Martin Luther King Jr.](https://en.wikipedia.org/wiki/Martin_Luther_King_Jr. "Martin Luther King Jr.") Although Roosevelt's [Executive Order 8802](https://en.wikipedia.org/wiki/Executive_Order_8802 "Executive Order 8802") of 1941 had prohibited [racial discrimination](https://en.wikipedia.org/wiki/Racial_discrimination "Racial discrimination") in the national defense industry, people still suffered discrimination because of their [skin color](https://en.wikipedia.org/wiki/Skin_color "Skin color") across other workplaces. Also, despite the increasing numbers of women in work, sex discrimination was endemic. The government of [John F. Kennedy](https://en.wikipedia.org/wiki/John_F._Kennedy "John F. Kennedy") introduced the [Equal Pay Act of 1963](https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963 "Equal Pay Act of 1963"), requiring equal pay for women and men. [Lyndon B. Johnson](https://en.wikipedia.org/wiki/Lyndon_B._Johnson "Lyndon B. Johnson") introduced the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "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](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967"), the [Pregnancy Discrimination Act](https://en.wikipedia.org/wiki/Pregnancy_Discrimination_Act "Pregnancy Discrimination Act") of 1978, and the [Americans with Disabilities Act of 1990](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990"), now overseen by the [Equal Employment Opportunity Commission](https://en.wikipedia.org/wiki/Equal_Employment_Opportunity_Commission "Equal Employment Opportunity Commission").
[Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") became the most successful [Democratic Socialist](https://en.wikipedia.org/wiki/Democratic_Socialist "Democratic Socialist") presidential candidate since [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs"), winning 22 states and 43.1% of votes in the [2016 Democratic primary](https://en.wikipedia.org/wiki/Democratic_Party_presidential_primaries,_2016 "Democratic Party presidential primaries, 2016"). He co-authored the 2016 Democratic platform,[\[51\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-51) before [Hillary Clinton](https://en.wikipedia.org/wiki/Hillary_Clinton "Hillary Clinton") lost the [electoral college](https://en.wikipedia.org/wiki/United_States_electoral_college "United States electoral college") to [Donald Trump](https://en.wikipedia.org/wiki/Donald_Trump "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](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974") created rights to well regulated [occupational pensions](https://en.wikipedia.org/wiki/Occupational_pensions "Occupational pensions"), although only where an employer had already promised to provide one: this usually depended on [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining") by unions. But in 1976, the Supreme Court in *[Buckley v. Valeo](https://en.wikipedia.org/wiki/Buckley_v._Valeo "Buckley v. Valeo")* held anyone could spend unlimited amounts of money on political campaigns, as a part of the [First Amendment](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") right to "[freedom of speech](https://en.wikipedia.org/wiki/Freedom_of_speech "Freedom of speech")". After the Republican [President Reagan](https://en.wikipedia.org/wiki/President_Reagan "President Reagan") took office in 1981, he dismissed all [air traffic control staff](https://en.wikipedia.org/wiki/Professional_Air_Traffic_Controllers_Organization_\(1968\) "Professional Air Traffic Controllers Organization (1968)") who went on strike, and replaced the [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "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,[\[52\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-52) allowing employees to be searched at work,[\[53\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-53) and eliminating employee rights to sue for medical malpractice in their own health care.[\[54\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-54) Only limited statutory changes were made. The [Immigration Reform and Control Act of 1986](https://en.wikipedia.org/wiki/Immigration_Reform_and_Control_Act_of_1986 "Immigration Reform and Control Act of 1986") criminalized large numbers of migrants. The [Worker Adjustment and Retraining Notification Act of 1988](https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act_of_1988 "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](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "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](https://en.wikipedia.org/wiki/Small_Business_Job_Protection_Act_of_1996 "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,[\[55\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-55) and the United States began to fall behind most other developed countries in labor rights.[\[56\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-56)
In relation to [federal government contracting](https://en.wikipedia.org/wiki/Government_procurement_in_the_United_States "Government procurement in the United States"), Executive Order 13673, entitled *Fair Pay and Safe Workplaces*, was issued by President [Barack Obama](https://en.wikipedia.org/wiki/Barack_Obama "Barack Obama") on 31 July 2014. It contained "new requirements designed to increase efficiency and cost savings in the Federal contracting process",[\[57\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-g13673-57) specifically referring to "contracting with responsible sources who comply with labor laws".[\[58\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-e13673-58) The Occupational Safety and Health Administration published guidance on 25 August 2016.[\[57\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-g13673-57) 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](https://en.wikipedia.org/wiki/Contracting_officer "Contracting officer") 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".[\[58\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-e13673-58): Sec. 3 The order was revoked by President [Donald Trump](https://en.wikipedia.org/wiki/Donald_Trump "Donald Trump") on 27 March 2017 under [Executive Order 13782](https://en.wikipedia.org/wiki/Executive_Order_13782 "Executive Order 13782").[\[59\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-59)
## Contract and rights at work
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=2 "Edit section: Contract and rights at work")\]
See also: [UK labour law](https://en.wikipedia.org/wiki/UK_labour_law "UK labour law"), [Canadian labour law](https://en.wikipedia.org/wiki/Canadian_labour_law "Canadian labour law"), [Australian labour law](https://en.wikipedia.org/wiki/Australian_labour_law "Australian labour law"), [European labour law](https://en.wikipedia.org/wiki/European_labour_law "European labour law"), [German labour law](https://en.wikipedia.org/wiki/German_labour_law "German labour law"), [French labour law](https://en.wikipedia.org/wiki/French_labour_law "French labour law"), [Indian labour law](https://en.wikipedia.org/wiki/Indian_labour_law "Indian labour law"), and [South African labour law](https://en.wikipedia.org/wiki/South_African_labour_law "South African labour law")
[](https://en.wikipedia.org/wiki/File:Eleanor_Roosevelt_UDHR.jpg)
[Eleanor Roosevelt](https://en.wikipedia.org/wiki/Eleanor_Roosevelt "Eleanor Roosevelt") believed the [Universal Declaration of Human Rights](https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights "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](https://en.wikipedia.org/wiki/Second_Bill_of_Rights "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".[\[60\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-60)
[Contracts](https://en.wikipedia.org/wiki/US_contract_law "US contract law") between employees and employers (mostly [corporations](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law")) usually begin an employment relationship, but are often not enough for a decent livelihood. Because individuals [lack bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of 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](https://en.wikipedia.org/wiki/Freedom_of_contract "Freedom of contract") on any terms,[\[61\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-61) 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](https://en.wikipedia.org/wiki/Economic_and_social_rights "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](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") created a minimum wage (now \$7.25 at federal level, higher in 28 states) and [overtime pay](https://en.wikipedia.org/wiki/Overtime_pay "Overtime pay") of one and a half times. Second, the [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "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](https://en.wikipedia.org/wiki/Occupational_pension "Occupational pension") or other benefits, the [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974") ensures employers guarantee those benefits if they are promised. Fourth, the [Occupational Safety and Health Act 1970](https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act_1970 "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](https://en.wikipedia.org/wiki/Laboratories_of_democracy "Laboratories of democracy") in social and economic rights, where they have not been constrained by the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court").
### Scope of protection
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=3 "Edit section: Scope of protection")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_worker_scope "Template:Slist worker scope") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_worker_scope "Template talk:Slist worker scope") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_worker_scope "Special:EditPage/Template:Slist worker scope")Workplace protection cases |
|---|
| *[United States v. Silk](https://en.wikipedia.org/wiki/United_States_v._Silk "United States v. Silk")*, 331 U.S. 704 (1947) |
| *[NLRB v. Hearst Publications](https://en.wikipedia.org/wiki/NLRB_v._Hearst_Publications "NLRB v. Hearst Publications")*, 322 U.S. 111 (1944) |
| *[Golden State Bottling Co Inc v. NLRB](https://en.wikipedia.org/w/index.php?title=Golden_State_Bottling_Co_Inc_v._NLRB&action=edit&redlink=1 "Golden State Bottling Co Inc v. NLRB (page does not exist)")*, 414 U.S. 168 (1973) |
| *[South Prairie Co v. Local No 627 IUOE](https://en.wikipedia.org/wiki/South_Prairie_Const._Co._v._Local_No._627,_International_Union_of_Operating_Engineers,_AFL-CIO "South Prairie Const. Co. v. Local No. 627, International Union of Operating Engineers, AFL-CIO")*, 425 U.S. 800 (1976) |
| *[NLRB v. Yeshiva University](https://en.wikipedia.org/wiki/NLRB_v._Yeshiva_University "NLRB v. Yeshiva University")*, 444 U.S. 672 (1980) |
| *[Lemmerman v. A.T. Williams Oil Co.](https://en.wikipedia.org/wiki/Lemmerman_v._A.T._Williams_Oil_Co. "Lemmerman v. A.T. Williams Oil Co.")*, 350 SE 2d 83 (1986) |
| *[Community for Creative Non-Violence v. Reid](https://en.wikipedia.org/wiki/Community_for_Creative_Non-Violence_v._Reid "Community for Creative Non-Violence v. Reid")*, 490 U.S. 730 (1989) |
| *[Nationwide Mut. Ins. Co. v. Darden](https://en.wikipedia.org/wiki/Nationwide_Mut._Ins._Co._v._Darden "Nationwide Mut. Ins. Co. v. Darden")*, 503 U.S. 318 (1992) |
| *[Castillo v. Case Farms of Ohio](https://en.wikipedia.org/wiki/Castillo_v._Case_Farms_of_Ohio "Castillo v. Case Farms of Ohio")*, 96 F Supp. 2d 578 (1999) |
| *[Clackamas Gastroenterology Ass v. Wells](https://en.wikipedia.org/w/index.php?title=Clackamas_Gastroenterology_Ass_v._Wells&action=edit&redlink=1 "Clackamas Gastroenterology Ass v. Wells (page does not exist)")*, 538 U.S. 440 (2003) |
| *[Christopher v. SmithKline Beecham Corp](https://en.wikipedia.org/wiki/Christopher_v._SmithKline_Beecham_Corp. "Christopher v. SmithKline Beecham Corp.")*, 567 U.S. 142 (2012) |
| See [U.S. labor law](https://en.wikipedia.org/wiki/U.S._labor_law "U.S. labor law") and [inequality of bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") |
See also: [Work (human activity) § Workers](https://en.wikipedia.org/wiki/Work_\(human_activity\)#Workers "Work (human activity)"), [Employee](https://en.wikipedia.org/wiki/Employee "Employee"), and [Inequality of bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power")
[Common law](https://en.wikipedia.org/wiki/Common_law "Common law"), state and federal statutes usually confer labor rights on "employees", but not people who are autonomous and have sufficient [bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") to be "independent contractors". In 1994, the *[Dunlop Commission on the Future of Worker-Management Relations: Final Report](https://en.wikipedia.org/wiki/Dunlop_Commission_on_the_Future_of_Worker-Management_Relations:_Final_Report "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.](https://en.wikipedia.org/wiki/NLRB_v._Hearst_Publications,_Inc. "NLRB v. Hearst Publications, Inc.")*,[\[62\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-62) 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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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](https://en.wikipedia.org/wiki/Good_faith "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](https://en.wikipedia.org/wiki/Restatement_of_the_Law_of_Agency,_Second "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](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "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](https://en.wikipedia.org/wiki/NLRA "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](https://en.wikipedia.org/wiki/United_States_v._Silk "United States v. Silk")*,[\[63\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-63) 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](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality 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.[\[64\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-64) 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](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938"), [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974"), [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "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](https://en.wikipedia.org/wiki/Restatement_of_Agency "Restatement of Agency") must be considered, though none is necessarily decisive.[\[65\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-65)
[](https://en.wikipedia.org/wiki/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)
"[Newsboys](https://en.wikipedia.org/wiki/Newspaper_hawker "Newspaper hawker")" in [L.A.](https://en.wikipedia.org/wiki/Los_Angeles "Los Angeles") were held in the leading case, *[NLRB v. Hearst Publications, Inc.](https://en.wikipedia.org/wiki/NLRB_v._Hearst_Publications,_Inc. "NLRB v. Hearst Publications, Inc.")*, to be employees with labor rights, not independent contractors, on account of their [unequal bargaining power](https://en.wikipedia.org/wiki/Unequal_bargaining_power "Unequal bargaining power").[\[66\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-66)
[Common law](https://en.wikipedia.org/wiki/Common_law "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.[\[67\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-67) 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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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](https://en.wikipedia.org/wiki/NLRB_v._Yeshiva_University "NLRB v. Yeshiva University")*,[\[68\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-68) a 5 to 4 majority of the Supreme Court held that full time professors in a [university](https://en.wikipedia.org/wiki/Yeshiva_University "Yeshiva 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.](https://en.wikipedia.org/wiki/NLRB_v._Kentucky_River_Community_Care,_Inc. "NLRB v. Kentucky River Community Care, Inc.")*,[\[69\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-69) 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](https://en.wikipedia.org/wiki/Stevens_J "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".[\[70\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-70) Similarly, under the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938"), in *[Christopher v. SmithKline Beecham Corp.](https://en.wikipedia.org/wiki/Christopher_v._SmithKline_Beecham_Corp. "Christopher v. SmithKline Beecham Corp.")*,[\[71\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-71) the Supreme Court held 5 to 4 that a traveling medical salesman for [GSK](https://en.wikipedia.org/wiki/GlaxoSmithKline "GlaxoSmithKline") 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://en.wikipedia.org/wiki/Lemmerman_v._A.T._Williams_Oil_Co. "Lemmerman v. A.T. Williams Oil Co.")*,[\[72\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-72) 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](https://en.wikipedia.org/wiki/Hoffman_Plastic_Compounds,_Inc._v._NLRB "Hoffman Plastic Compounds, Inc. v. NLRB")*,[\[73\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-73) 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](https://en.wikipedia.org/wiki/Freedom_of_association "Freedom of association").[\[74\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-74)
[](https://en.wikipedia.org/wiki/File:UberTaxiProtestChicago.jpg)
In September 2015, the [California Labor and Workforce Development Agency](https://en.wikipedia.org/wiki/California_Labor_and_Workforce_Development_Agency "California Labor and Workforce Development Agency") held that [Uber](https://en.wikipedia.org/wiki/Uber "Uber") drivers are controlled and sanctioned by the company and are therefore not self-employed.[\[75\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-75)
Common law tests were often important for determining who was, not just an employee, but the relevant employers who had "[vicarious liability](https://en.wikipedia.org/wiki/Vicarious_liability "Vicarious liability")". Potentially there can be multiple, joint-employers could who share responsibility, although responsibility in [tort law](https://en.wikipedia.org/wiki/US_tort_law "US tort law") can exist regardless of an employment relationship. In *[Ruiz v. Shell Oil Co](https://en.wikipedia.org/wiki/Ruiz_v._Shell_Oil_Co "Ruiz v. Shell Oil Co")*,[\[76\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-76) the [Fifth Circuit](https://en.wikipedia.org/wiki/Fifth_Circuit "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.[\[77\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-77) In *[Local 217, Hotel & Restaurant Employees Union v. MHM Inc](https://en.wikipedia.org/wiki/Local_217,_Hotel_%26_Restaurant_Employees_Union_v._MHM_Inc "Local 217, Hotel & Restaurant Employees Union v. MHM Inc")*[\[78\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-78) the question arose under the [Worker Adjustment and Retraining Notification Act of 1988](https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act_of_1988 "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](https://en.wikipedia.org/wiki/Second_Circuit "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](https://en.wikipedia.org/wiki/NLRA "NLRA"). Under the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "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](https://en.wikipedia.org/wiki/NLRB "NLRB") has found an enterprise to be an employer if it has "substantially identical management, business purpose, operation, equipment, customers and supervision."[\[79\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-79) In *[South Prairie Const. Co. v. Local No. 627, International Union of Operating Engineers, AFL-CIO](https://en.wikipedia.org/wiki/South_Prairie_Const._Co._v._Local_No._627,_International_Union_of_Operating_Engineers,_AFL-CIO "South Prairie Const. Co. v. Local No. 627, International Union of Operating Engineers, AFL-CIO")*,[\[80\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-80) 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",[\[81\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-81) but that further determination of the relevant bargaining unit should have been remitted to the [NLRB](https://en.wikipedia.org/wiki/NLRB "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.[\[82\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-82)
### Contracts of employment
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=4 "Edit section: Contracts of employment")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_employment_contract "Template:Slist employment contract") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_employment_contract "Template talk:Slist employment contract") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_employment_contract "Special:EditPage/Template:Slist employment contract")Employment contract cases |
|---|
| *[JI Case Co v National Labor Relations Board](https://en.wikipedia.org/wiki/JI_Case_Co_v_National_Labor_Relations_Board "JI Case Co v National Labor Relations Board")*, 321 US 322 (1944) |
| *[Torosyan v Boehringer Ingelheim Pharma, Inc](https://en.wikipedia.org/wiki/Torosyan_v_Boehringer_Ingelheim_Pharma,_Inc "Torosyan v Boehringer Ingelheim Pharma, Inc")*, 662 A2d 89 (1995) |
| *[Demasse v ITT Corp](https://en.wikipedia.org/w/index.php?title=Demasse_v_ITT_Corp&action=edit&redlink=1 "Demasse v ITT Corp (page does not exist)")*, 984 P2d 1138 (1999) |
| *[Asmus v Pacific Bell](https://en.wikipedia.org/wiki/Asmus_v_Pacific_Bell "Asmus v Pacific Bell")*, 999 P2d 71 (2000) |
| *[Stark v Circle K Corp](https://en.wikipedia.org/w/index.php?title=Stark_v_Circle_K_Corp&action=edit&redlink=1 "Stark v Circle K Corp (page does not exist)")*, 751 P2d 162 (1988) |
| *[Foley v Interactive Data Corp](https://en.wikipedia.org/w/index.php?title=Foley_v_Interactive_Data_Corp&action=edit&redlink=1 "Foley v Interactive Data Corp (page does not exist)")*, 765 P2d 373 (1988) |
| *[Alexander v Gardner-Denver Co](https://en.wikipedia.org/wiki/Alexander_v_Gardner-Denver_Co "Alexander v Gardner-Denver Co")*, 415 US 36 (1974) |
| *[14 Penn Plaza LLC v Pyett](https://en.wikipedia.org/wiki/14_Penn_Plaza_LLC_v_Pyett "14 Penn Plaza LLC v Pyett")*, 556 US 247 (2009) |
| See [US labor law](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [inequality of bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") |
See also: [United States contract law](https://en.wikipedia.org/wiki/United_States_contract_law "United States contract law")
When people start work, there will almost always be a [contract of employment](https://en.wikipedia.org/wiki/Contract_of_employment "Contract of employment") that governs the relationship of employee and the employing entity (usually a [corporation](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"), but occasionally a human being).[\[83\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-83) A "contract" is an agreement enforceable in law. Very often it can be written down, or signed, but an [oral agreement](https://en.wikipedia.org/wiki/Oral_agreement "Oral agreement") is also a fully enforceable contract. Because employees have [unequal bargaining power](https://en.wikipedia.org/wiki/Unequal_bargaining_power "Unequal bargaining power") compared to almost all employing entities, most employment contracts are "[standard form](https://en.wikipedia.org/wiki/Standard_form_contracts "Standard form contracts")".[\[84\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-84) Most terms and conditions are photocopied or reproduced for many people. Genuine [negotiation](https://en.wikipedia.org/wiki/Negotiation "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](https://en.wikipedia.org/wiki/Collective_bargaining "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](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements").[\[85\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-85) The federal right to a minimum wage, and increased [overtime](https://en.wikipedia.org/wiki/Overtime "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.[\[86\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-86) These and other rights, including [family leave](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_1993 "Family and Medical Leave Act 1993"), rights against [discrimination](https://en.wikipedia.org/wiki/Civil_Rights_Act_1964 "Civil Rights Act 1964"), or basic [job security](https://en.wikipedia.org/wiki/Job_security "Job security") standards, were designed by the [United States Congress](https://en.wikipedia.org/wiki/United_States_Congress "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](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act "National Labor Relations Act") of 1935, the [Occupational Safety and Health Act of 1970](https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act_of_1970 "Occupational Safety and Health Act of 1970"),[\[87\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-87) and the [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974"),[\[88\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-88) have been interpreted in a series of contentious judgments by the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") to "[preempt](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption")" state law enactments.[\[89\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-89) 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.[\[90\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-90) Where minimum rights do not exist in federal or state statutes, principles of [contract law](https://en.wikipedia.org/wiki/US_contract_law "US contract law"), and potentially [torts](https://en.wikipedia.org/wiki/US_tort_law "US tort law"), will apply.
[](https://en.wikipedia.org/wiki/File:Ecrivains_consult_-_Texte_4_mains.jpg)
Employment contracts are subject to minimum rights in state and federal statute, and those created by [collective agreements](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements").[\[91\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-91)
Aside from terms in oral or written agreements, terms can be incorporated by reference. Two main sources are [collective agreements](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements") and company handbooks. In *[JI Case Co v. National Labor Relations Board](https://en.wikipedia.org/wiki/JI_Case_Co_v._National_Labor_Relations_Board "JI Case Co v. National Labor Relations Board")* an employing corporation argued it should not have to bargain in [good faith](https://en.wikipedia.org/wiki/Good_faith "Good faith") with a labor union, and did not commit an [unfair labor practice](https://en.wikipedia.org/wiki/Unfair_labor_practice "Unfair labor practice") by refusing, because it had recently signed individual contracts with its employees.[\[92\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-92) The [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") held unanimously that the "very purpose" of collective bargaining and the [National Labor Relations Act 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_1935 "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.[\[93\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-93) For example, in *[Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc.](https://en.wikipedia.org/wiki/Torosyan_v._Boehringer_Ingelheim_Pharmaceuticals,_Inc. "Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc.")* the [Supreme Court of Connecticut](https://en.wikipedia.org/wiki/Supreme_Court_of_Connecticut "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.[\[94\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-94) Most other state courts have reached the same conclusion, that contracts cannot be altered, except for employees' benefit, without new [consideration](https://en.wikipedia.org/wiki/Consideration "Consideration") and true agreement.[\[95\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-95) By contrast, a slight majority on the [California Supreme Court](https://en.wikipedia.org/wiki/California_Supreme_Court "California Supreme Court"), appointed by Republican governors, held in *[Asmus v. Pacific Bell](https://en.wikipedia.org/wiki/Asmus_v._Pacific_Bell "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.[\[96\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-96) 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](https://en.wikipedia.org/wiki/Good_faith_\(law\) "Good faith (law)") 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".[\[97\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-97) The term of [good faith](https://en.wikipedia.org/wiki/Good_faith_\(law\) "Good faith (law)") persists throughout the employment relationship. It has not yet been used extensively by state courts, compared to other jurisdictions. The [Montana Supreme Court](https://en.wikipedia.org/wiki/Montana_Supreme_Court "Montana Supreme Court") has recognized that extensive and even punitive damages could be available for breach of an employee's reasonable expectations.[\[98\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-98) However others, such as the [California Supreme Court](https://en.wikipedia.org/wiki/California_Supreme_Court "California Supreme Court") limit any recovery of damages to contract breaches, but not damages regarding the manner of termination.[\[99\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-99) By contrast, in the [United Kingdom](https://en.wikipedia.org/wiki/UK_labour_law "UK labour law") the requirement for "[good faith](https://en.wikipedia.org/wiki/Good_faith_\(law\) "Good faith (law)")"[\[100\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-100) has been found to limit the power of discharge except for fair reasons[\[101\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-101) (but not to conflict with statute[\[102\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-102)), in Canada it may limit unjust discharge also for self-employed persons,[\[103\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-103) and in Germany it can preclude the payment of wages significantly below average.[\[104\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-104)
Finally, it was traditionally thought that arbitration clauses could not displace any employment rights, and therefore limit access to justice in public courts.[\[105\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-105) However, in *[14 Penn Plaza LLC v. Pyett](https://en.wikipedia.org/wiki/14_Penn_Plaza_LLC_v._Pyett "14 Penn Plaza LLC v. Pyett")*,[\[106\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-106) in a 5 to 4 decision under the [Federal Arbitration Act](https://en.wikipedia.org/wiki/Federal_Arbitration_Act "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.[\[107\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-107)
### Wages and pay
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=5 "Edit section: Wages and pay")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_wage "Template:Slist wage") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_wage "Template talk:Slist wage") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_wage "Special:EditPage/Template:Slist wage")Wage regulation sources |
|---|
| *[West Coast Hotel Co v Parrish](https://en.wikipedia.org/wiki/West_Coast_Hotel_Co_v_Parrish "West Coast Hotel Co v Parrish")*, 300 US 379 (1937) |
| [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §§201-211 |
| [ILO](https://en.wikipedia.org/wiki/ILO "ILO") [Minimum Wage Fixing Convention 1970](https://en.wikipedia.org/wiki/Minimum_Wage_Fixing_Convention_1970 "Minimum Wage Fixing Convention 1970") (no 131) |
| *[Walling v Jacksonville Paper Co](https://en.wikipedia.org/w/index.php?title=Walling_v_Jacksonville_Paper_Co&action=edit&redlink=1 "Walling v Jacksonville Paper Co (page does not exist)")*, 317 US 564 (1943) |
| *[Auer v Robbins](https://en.wikipedia.org/wiki/Auer_v_Robbins "Auer v Robbins")*, |
| *[Long Island Care at Home Ltd v Coke](https://en.wikipedia.org/wiki/Long_Island_Care_at_Home_Ltd_v_Coke "Long Island Care at Home Ltd v Coke")*, |
| *[Jewell Ridge Coal Corp v UMW](https://en.wikipedia.org/wiki/Jewell_Ridge_Coal_Corp_v_UMW "Jewell Ridge Coal Corp v UMW")*, |
| *[Anderson v Mount Clemens Pottery Co](https://en.wikipedia.org/wiki/Anderson_v_Mount_Clemens_Pottery_Co "Anderson v Mount Clemens Pottery Co")*, |
| *[Armour & Co v Wantock](https://en.wikipedia.org/wiki/Armour_%26_Co_v_Wantock "Armour & Co v Wantock")*, 323 US 126 (1944) |
| *[Steiner v Mitchell](https://en.wikipedia.org/w/index.php?title=Steiner_v_Mitchell&action=edit&redlink=1 "Steiner v Mitchell (page does not exist)")*, 350 US 247 (1956) |
| [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §§203-207 |
| *[Walling v Helmerich and Payne Inc](https://en.wikipedia.org/wiki/Walling_v_Helmerich_and_Payne_Inc "Walling v Helmerich and Payne Inc")*, 323 US 37 (1944) |
| *[Christensen v Harris County](https://en.wikipedia.org/wiki/Christensen_v_Harris_County "Christensen v Harris County")*, |
| [Portal to Portal Act of 1947](https://en.wikipedia.org/wiki/Portal_to_Portal_Act_of_1947 "Portal to Portal Act of 1947"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §§251-262 |
| [Consumer Credit Protection Act of 1968](https://en.wikipedia.org/wiki/Consumer_Credit_Protection_Act_of_1968 "Consumer Credit Protection Act of 1968"), [15 USC](https://en.wikipedia.org/wiki/15_USC "15 USC") §§1671-1675 |
| *[Skidmore v Swift & Co](https://en.wikipedia.org/wiki/Skidmore_v_Swift_%26_Co "Skidmore v Swift & Co")*, |
| See [US labor law](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") |
Main articles: [Fair Labor Standards Act](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act "Fair Labor Standards Act"), [Minimum wage in the US](https://en.wikipedia.org/wiki/Minimum_wage_in_the_US "Minimum wage in the US"), [List of U.S. minimum wages](https://en.wikipedia.org/wiki/List_of_U.S._minimum_wages "List of U.S. minimum wages"), [Executive pay in the US](https://en.wikipedia.org/wiki/Executive_pay_in_the_US "Executive pay in the US"), and [Income tax in the US](https://en.wikipedia.org/wiki/Income_tax_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.[\[108\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-108) Today, the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "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](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") also regulates [executive pay](https://en.wikipedia.org/wiki/Executive_pay "Executive pay"), although a system of "[maximum wage](https://en.wikipedia.org/wiki/Maximum_wage "Maximum wage")" regulation, for instance by the former [Stabilization Act of 1942](https://en.wikipedia.org/wiki/Stabilization_Act_of_1942 "Stabilization Act of 1942"), is not currently in force. Historically, the law actually suppressed [wages](https://en.wikipedia.org/wiki/Wage_regulation "Wage regulation"), not of the highly paid, by ordinary workers. For example, in 1641 the [Massachusetts Bay Colony](https://en.wikipedia.org/wiki/Massachusetts_Bay_Colony "Massachusetts Bay Colony") [legislature](https://en.wikipedia.org/wiki/Massachusetts_General_Court "Massachusetts General Court") (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](https://en.wikipedia.org/wiki/Commonwealth_\(U.S._state\) "Commonwealth (U.S. state)")".[\[109\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-109) In the early 20th century, democratic opinion demanded everyone had a [minimum wage](https://en.wikipedia.org/wiki/Minimum_wage "Minimum wage"), and could bargain for fair wages beyond the minimum. But when states tried to introduce new laws, the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") held them unconstitutional. A right to [freedom of contract](https://en.wikipedia.org/wiki/Freedom_of_contract "Freedom of contract"), argued a majority, could be construed from the [Fifth](https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution "Fifth Amendment to the United States Constitution") and [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution")'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](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") of choice with their employer".[\[110\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-110)
[](https://en.wikipedia.org/wiki/File:Timeline_of_federal_minimum_hourly_wage_for_the_United_States_\(including_inflation-adjusted\)._Congressional_Research_Service.gif)
The [real](https://en.wikipedia.org/wiki/Real_versus_nominal_value_\(economics\) "Real versus nominal value (economics)") federal minimum wage has declined by 46% since February 1968. Lower line is [nominal dollars](https://en.wikipedia.org/wiki/Real_versus_nominal_value_\(economics\) "Real versus nominal value (economics)"). Top line is [inflation-adjusted](https://en.wikipedia.org/wiki/Inflation-adjusted "Inflation-adjusted").[\[111\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-CRS-2023-111)[\[112\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-FRED-graph-112)
After the [Wall Street Crash](https://en.wikipedia.org/wiki/Wall_Street_Crash "Wall Street Crash"), and the [New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal") with the election of [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt"), the majority in the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") was changed. In *[West Coast Hotel Co. v. Parrish](https://en.wikipedia.org/wiki/West_Coast_Hotel_Co._v._Parrish "West Coast Hotel Co. v. Parrish")* [Hughes CJ](https://en.wikipedia.org/wiki/Hughes_CJ "Hughes CJ") held (over four dissenters still arguing for [Freedom of Contract](https://en.wikipedia.org/wiki/Freedom_of_Contract "Freedom of Contract")) that a [Washington](https://en.wikipedia.org/wiki/Washington_\(state\) "Washington (state)") law setting minimum wages for women was constitutional because the state legislatures should be enabled to adopt legislation in the public interest.[\[113\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-113) This ended the "*[Lochner](https://en.wikipedia.org/wiki/Lochner_v._New_York "Lochner v. New York")* era", and Congress enacted the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938").[\[114\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-114) Under §202(a) the federal minimum wage aims to ensure a "standard of living necessary for health, efficiency and general well being".[\[115\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-115) Under §207(a)(1), most employees (but with many exceptions) working over 40 hours a week must receive 50 per cent more [overtime](https://en.wikipedia.org/wiki/Overtime "Overtime") pay on their hourly wage.[\[116\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto5-116) Nobody may pay lower than the minimum wage, but under §218(a) states and municipal governments may enact higher wages.[\[117\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto-117) This is frequently done to reflect local productivity and requirements for decent living in each region.[\[118\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-118) However the federal minimum wage has no automatic mechanism to update with inflation. Because the [Republican Party](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") has opposed raising wages, the federal [real minimum wage](https://en.wikipedia.org/wiki/Real_wages "Real wages") is over 33 per cent lower today than in 1968, among the lowest in the industrialized world.
[](https://en.wikipedia.org/wiki/File:Fight_for_$15_on_4-15_\(17160512642\).jpg)
People have campaigned for a \$15 an hour minimum wage, because the [real minimum wage](https://en.wikipedia.org/wiki/Real_wage "Real wage") has fallen by 43% compared to 1968.[\[112\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-FRED-graph-112) In "[tipped](https://en.wikipedia.org/wiki/Gratuity "Gratuity")" 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](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") judges held in *[Alden v. Maine](https://en.wikipedia.org/wiki/Alden_v._Maine "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](https://en.wikipedia.org/wiki/Eleventh_Amendment_to_the_United_States_Constitution "Eleventh Amendment to the United States Constitution").[\[119\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-119) [Souter J](https://en.wikipedia.org/wiki/Souter_J "Souter J"), joined by three dissenting justices,[\[120\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-120) held that no such "sovereign immunity" existed in the [Eleventh Amendment](https://en.wikipedia.org/wiki/Eleventh_Amendment_to_the_United_States_Constitution "Eleventh Amendment to the United States Constitution").[\[121\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-121) [Twenty-eight states](https://en.wikipedia.org/wiki/Minimum_wage_in_the_United_States "Minimum wage in the United States"), however, did have minimum wage laws higher than the federal level in 2016. Further, because the [US Constitution](https://en.wikipedia.org/wiki/US_Constitution "US Constitution"), [article one](https://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution "Article One of the United States Constitution"), [section 8, clause 3](https://en.wikipedia.org/wiki/Commerce_Clause "Commerce Clause") only allows the federal government to "regulate [Commerce](https://en.wikipedia.org/wiki/Commerce_Clause "Commerce Clause") ... 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.[\[122\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-122) [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938") §203(s) explicitly exempts establishments whose only employees are close family members.[\[123\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-123) Under §213 the minimum wage may not be paid to 18 categories of employee, and paying overtime to 30 categories of employee.[\[124\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-124) This include under §213(a)(1) employees of "*bona fide* executive, administrative, or professional capacity". In *[Auer v. Robbins](https://en.wikipedia.org/wiki/Auer_v._Robbins "Auer v. Robbins")* police sergeants and lieutenants at the [St Louis](https://en.wikipedia.org/wiki/St_Louis "St Louis") Police Department, [Missouri](https://en.wikipedia.org/wiki/Missouri "Missouri") claimed they should not be classed as executives or professional employees, and should get overtime pay.[\[125\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-125) [Scalia J](https://en.wikipedia.org/wiki/Scalia_J "Scalia J") held that, following [Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States 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.[\[126\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-126) 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](https://en.wikipedia.org/wiki/Long_Island_Care_at_Home,_Ltd._v._Coke "Long Island Care at Home, Ltd. v. Coke")*, a corporation claimed exemption, although [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") for a unanimous court agreed with the [Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor") that it was only intended for carers in private homes.[\[127\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-127)
Second, because §206(a)(1)(C) says the minimum wage is \$7.25 per hour, courts have grappled with which hours count as "working".[\[128\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-128) 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.[\[129\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-129) For example, in, *[Anderson v. Mt. Clemens Pottery Co.](https://en.wikipedia.org/wiki/Anderson_v._Mt._Clemens_Pottery_Co. "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.[\[130\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-130) According to [Murphy J](https://en.wikipedia.org/wiki/Murphy_J "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."[\[131\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-131) In *[Armour & Co. v. Wantock](https://en.wikipedia.org/wiki/Armour_%26_Co._v._Wantock "Armour & Co. v. Wantock")* [firefighters](https://en.wikipedia.org/wiki/Firefighters "Firefighters") claimed they should be fully paid while on call at their station for fires. The [Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US 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".[\[132\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-132) By contrast, in 1992 the [Sixth Circuit](https://en.wikipedia.org/wiki/Sixth_Circuit "Sixth Circuit") controversially held that needing to be infrequently available by phone or pager, where movement was not restricted, was not working time.[\[133\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-133) Time spent doing unusual cleaning, for instance showering off toxic substances, does count as working time,[\[134\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-134) and so does time putting on special protective gear.[\[135\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-135) Under §207(e) pay for overtime should be one and a half times the regular pay. In *[Walling v. Helmerich & Payne, Inc.](https://en.wikipedia.org/wiki/Walling_v._Helmerich_%26_Payne,_Inc. "Walling v. Helmerich & Payne, Inc.")*, the [Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US 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.[\[136\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-136) However, in *[Christensen v. Harris County](https://en.wikipedia.org/wiki/Christensen_v._Harris_County "Christensen v. Harris County")* six [Supreme Court](https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States "Supreme Court of the United States") judges held that police in [Harris County, Texas](https://en.wikipedia.org/wiki/Harris_County,_Texas "Harris County, Texas"), could be forced to use up their accumulated "compensatory time" (allowing time off with full pay) before claiming overtime.[\[137\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-137) Writing for the dissent, [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "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.[\[138\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-138) Third, §203(m) allows employers to deduct sums from wages for food or housing that is "customarily furnished" for employees. The [secretary of labor](https://en.wikipedia.org/wiki/Secretary_of_labor "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](https://en.wikipedia.org/wiki/FLSA_1938 "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](https://en.wikipedia.org/wiki/Consumer_Credit_Protection_Act_of_1968 "Consumer Credit Protection Act of 1968") limits deductions or "garnishments" by employers to 25 per cent of wages,[\[139\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-139) though many states are considerably more protective. Finally, under the [Portal to Portal Act of 1947](https://en.wikipedia.org/wiki/Portal_to_Portal_Act_of_1947 "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.[\[140\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-140)
[](https://en.wikipedia.org/wiki/File:Historical_Income_Tax_Rates_and_brackets.png)
Top [marginal](https://en.wikipedia.org/wiki/Marginal_income_tax_rate "Marginal income tax rate") income tax rates
- [Tax brackets](https://en.wikipedia.org/wiki/Tax_bracket "Tax bracket")
Lowest marginal income tax rates
- [Income tax in the United States](https://en.wikipedia.org/wiki/Income_tax_in_the_United_States "Income tax in the United States")
- [Legal history of income tax in the United States](https://en.wikipedia.org/wiki/Legal_history_of_income_tax_in_the_United_States "Legal history of income tax in the United States")
- [State income tax](https://en.wikipedia.org/wiki/State_income_tax "State income tax")
- [Payroll tax](https://en.wikipedia.org/wiki/Payroll_tax "Payroll tax"), [Federal Insurance Contributions Act](https://en.wikipedia.org/wiki/Federal_Insurance_Contributions_Act "Federal Insurance Contributions Act") tax
### Working time and family care
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=6 "Edit section: Working time and family care")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_time "Template:Slist time") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_time "Template talk:Slist time") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_time "Special:EditPage/Template:Slist time")Working time law sources |
|---|
| [ILO](https://en.wikipedia.org/wiki/ILO "ILO") [Holidays with Pay Convention 1970](https://en.wikipedia.org/wiki/Holidays_with_Pay_Convention_1970 "Holidays with Pay Convention 1970") (no 132) |
| [5 USC](https://en.wikipedia.org/wiki/5_USC "5 USC") §§6103-6304 |
| [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §207 |
| *[Lochner v New York](https://en.wikipedia.org/wiki/Lochner_v_New_York "Lochner v New York")*, 300 US 379 (1905) |
| *[West Coast Hotel Co v Parrish](https://en.wikipedia.org/wiki/West_Coast_Hotel_Co_v_Parrish "West Coast Hotel Co v Parrish")*, 300 US 379 (1937) |
| [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "Family and Medical Leave Act of 1993"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §2601 |
| *[Ragsdale v Wolverine World Wide, Inc](https://en.wikipedia.org/wiki/Ragsdale_v_Wolverine_World_Wide,_Inc "Ragsdale v Wolverine World Wide, Inc")*, 535 US 81 (2002) |
| See [US labor law](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") |
Main articles: [Public holidays in the United States](https://en.wikipedia.org/wiki/Public_holidays_in_the_United_States "Public holidays in the United States"), [Maternity leave in the United States](https://en.wikipedia.org/wiki/Maternity_leave_in_the_United_States "Maternity leave in the United States"), and [Work–family balance in the United States](https://en.wikipedia.org/wiki/Work%E2%80%93family_balance_in_the_United_States "Work–family balance in the United States")
[](https://en.wikipedia.org/wiki/File:Clock_200_Fifth_Av_jeh.JPG)
The [Universal Declaration of Human Rights](https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights "Universal Declaration of Human Rights") 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](https://en.wikipedia.org/wiki/Paid_annual_leave "Paid annual leave"): Americans have the least in the developed world.[\[141\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-141)
People in the United States work among the longest hours per week in the [industrialized world](https://en.wikipedia.org/wiki/Industrialized_world "Industrialized world"), and have the least annual leave.[\[142\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-142) The [Universal Declaration of Human Rights](https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights "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](https://en.wikipedia.org/wiki/List_of_minimum_annual_leave_by_country "List of minimum annual leave by country")." However, there is no general federal or state legislation requiring paid annual leave. Title 5 of the [United States Code](https://en.wikipedia.org/wiki/United_States_Code "United States Code") §6103 specifies ten [public holidays](https://en.wikipedia.org/wiki/Public_holidays_in_the_United_States "Public holidays in the United States") for federal government employees, and provides that holidays will be paid.[\[143\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-143) 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](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements") and individual employment contracts. State law proposals have been made to introduce paid annual leave. A 2014 [Washington](https://en.wikipedia.org/wiki/Washington_\(state\) "Washington (state)") Bill from [United States House of Representatives](https://en.wikipedia.org/wiki/United_States_House_of_Representatives "United States House of Representatives") member [Gael Tarleton](https://en.wikipedia.org/wiki/Gael_Tarleton "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](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") [Holidays with Pay Convention 1970](https://en.wikipedia.org/wiki/Holidays_with_Pay_Convention_1970 "Holidays with Pay Convention 1970")[\[144\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-144) three weeks is the bare minimum. The bill did not receive enough votes.[\[145\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-145) By contrast, employees in all [European Union](https://en.wikipedia.org/wiki/European_Union "European Union") countries have the right to at least 4 weeks (i.e. 28 days) of paid annual leave each year.[\[146\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-146) 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](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "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](https://en.wikipedia.org/wiki/Time_and_a_half "Time and a half") pay must be given to employees working more than 40 hours in a week.[\[116\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto5-116) 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.[\[147\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-147) 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".[\[148\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-148) State legislation to limit working time was, however, suppressed by the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") in *[Lochner v. New York](https://en.wikipedia.org/wiki/Lochner_v._New_York "Lochner v. New York")*.[\[149\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-149) The [New York State Legislature](https://en.wikipedia.org/wiki/New_York_State_Legislature "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](https://en.wikipedia.org/wiki/Utica,_New_York "Utica, New York"), Mr Lochner claimed that the law violated the [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") on "[due process](https://en.wikipedia.org/wiki/Due_process "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.[\[150\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-150) 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.[\[151\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-151) The whole [*Lochner* era](https://en.wikipedia.org/wiki/Lochner_era "Lochner era") of jurisprudence was reversed by the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") in 1937,[\[152\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-152) but experimentation to improve working time rights, and "[work-life balance](https://en.wikipedia.org/wiki/Work%E2%80%93life_balance_in_the_United_States "Work–life balance in the United States")" has not yet recovered.
[](https://en.wikipedia.org/wiki/File:Childcare_Development_Center-Crestwood_High_School_cheerleaders_120815-F-PG936-400.jpg)
Because there is no right to education and [child care](https://en.wikipedia.org/wiki/Child_care "Child care") for [children under five](https://en.wikipedia.org/wiki/Pre-kindergarten "Pre-kindergarten"), the costs of child care fall on parents. But in 2016, four states had legislated for [paid family leave](https://en.wikipedia.org/wiki/Paid_family_leave "Paid family leave").[\[153\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-153)
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](https://en.wikipedia.org/wiki/Parental_leave "Parental 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](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") will often get none.[\[154\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-154) There are, however, limited federal rights to unpaid leave for family and medical reasons. The [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "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.[\[155\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-155) 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.[\[156\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-156) Child care leave should be taken in one lump, unless agreed otherwise.[\[157\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-157) Employees must give notice of 30 days to employers if birth or adoption is "foreseeable",[\[158\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-158) 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.[\[159\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-159) Employers must provide benefits during the unpaid leave.[\[160\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-160) Under §2652(b) states are empowered to provide "greater family or medical leave rights". In 2016 California, [New Jersey](https://en.wikipedia.org/wiki/New_Jersey "New Jersey"), [Rhode Island](https://en.wikipedia.org/wiki/Rhode_Island "Rhode Island") and [New York](https://en.wikipedia.org/wiki/New_York_\(state\) "New York (state)") 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](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") in *[Ragsdale v. Wolverine World Wide, Inc.](https://en.wikipedia.org/wiki/Ragsdale_v._Wolverine_World_Wide,_Inc. "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.[\[161\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-161) 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."[\[162\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-162) Employees or the [secretary of labor](https://en.wikipedia.org/wiki/Secretary_of_labor "Secretary of labor") can bring enforcement actions,[\[163\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-163) 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.[\[164\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-164) There is a two-year limit on bringing claims, or three years for willful violations.[\[165\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-165) Despite the lack of rights to leave, there is no right to free [child care](https://en.wikipedia.org/wiki/Child_care "Child care") or [day care](https://en.wikipedia.org/wiki/Day_care "Day care"). This has encouraged several proposals to create a public system of free child care, or for the government to subsize parents' costs.[\[166\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-166)
### Pensions
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=7 "Edit section: Pensions")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_pensions "Template:Slist pensions") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_pensions "Template talk:Slist pensions") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_pensions "Special:EditPage/Template:Slist pensions")Pension sources |
|---|
| [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974") §1003(a) |
| [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") §§1022-1133 and 1052-9 |
| *[Guidry v Sheet Metal Workers Pension Fund](https://en.wikipedia.org/w/index.php?title=Guidry_v_Sheet_Metal_Workers_Pension_Fund&action=edit&redlink=1 "Guidry v Sheet Metal Workers Pension Fund (page does not exist)")* 493 US 365 (1990) |
| *[Lockheed Corp v Spink](https://en.wikipedia.org/wiki/Lockheed_Corp_v_Spink "Lockheed Corp v Spink")* 517 US 882 (1996) |
| *[Mead Corp v Tilley](https://en.wikipedia.org/wiki/Mead_Corp_v_Tilley "Mead Corp v Tilley")* 490 US 714 (1989) |
| [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") §§1081-1102 and 1140 |
| *[Peacock v Thomas](https://en.wikipedia.org/w/index.php?title=Peacock_v_Thomas&action=edit&redlink=1 "Peacock v Thomas (page does not exist)")* 516 US 349 (1996) |
| [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") §§1102-1132 |
| *[Donovan v Bierwirth](https://en.wikipedia.org/wiki/Donovan_v_Bierwirth "Donovan v Bierwirth")* 680 F2d 263 (1982) |
| *[Varity Corp v Howe](https://en.wikipedia.org/w/index.php?title=Varity_Corp_v_Howe&action=edit&redlink=1 "Varity Corp v Howe (page does not exist)")* 516 US 489 (1996) |
| *[Local 144, Nursing Home Pension v Demisay](https://en.wikipedia.org/w/index.php?title=Local_144,_Nursing_Home_Pension_v_Demisay&action=edit&redlink=1 "Local 144, Nursing Home Pension v Demisay (page does not exist)")* 508 US 581 (1992) |
| [Labor Management Reporting and Disc Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disc_Act_of_1959 "Labor Management Reporting and Disc Act of 1959") §§401-531 |
| [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") §1144 |
| *[Shaw v Delta Air Lines, Inc](https://en.wikipedia.org/w/index.php?title=Shaw_v_Delta_Air_Lines,_Inc&action=edit&redlink=1 "Shaw v Delta Air Lines, Inc (page does not exist)")* 463 US 85 (1983) |
| *[Metropolitan Life Insurance Co v Massachusetts](https://en.wikipedia.org/w/index.php?title=Metropolitan_Life_Insurance_Co_v_Massachusetts&action=edit&redlink=1 "Metropolitan Life Insurance Co v Massachusetts (page does not exist)")* 471 US 724 (1985) |
| *[FMC Corp v Holliday](https://en.wikipedia.org/w/index.php?title=FMC_Corp_v_Holliday&action=edit&redlink=1 "FMC Corp v Holliday (page does not exist)")* 498 US 52 (1990) |
| *[Ingersoll-Rand Co v McClendon](https://en.wikipedia.org/wiki/Ingersoll-Rand_Co_v_McClendon "Ingersoll-Rand Co v McClendon")* 498 US 133 (1990) |
| *[Egelhoff v Egelhoff](https://en.wikipedia.org/wiki/Egelhoff_v_Egelhoff "Egelhoff v Egelhoff")* 532 US 141 (2001) |
| *[Rush Prudential HMO, Inc. v Moran](https://en.wikipedia.org/wiki/Rush_Prudential_HMO,_Inc._v_Moran "Rush Prudential HMO, Inc. v Moran")* 536 US 355 (2002) |
| [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") §§1102-3 and [LMRA 1947](https://en.wikipedia.org/wiki/LMRA_1947 "LMRA 1947") §186(c)(5)(B) |
| *[NLRB v Amax Coal Co](https://en.wikipedia.org/w/index.php?title=NLRB_v_Amax_Coal_Co&action=edit&redlink=1 "NLRB v Amax Coal Co (page does not exist)")* 453 US 322 (1981) |
| See [US labor law](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [pensions](https://en.wikipedia.org/wiki/Pensions_in_the_United_States "Pensions in the United States") |
Main articles: [Pensions in the United States](https://en.wikipedia.org/wiki/Pensions_in_the_United_States "Pensions in the United States"), [List of largest pension schemes in the US](https://en.wikipedia.org/wiki/List_of_largest_pension_schemes_in_the_US "List of largest pension schemes in the US"), and [Investment manager](https://en.wikipedia.org/wiki/Investment_manager "Investment manager")
In the early 20th century, the possibility of having a "retirement" became real as people lived longer,[\[167\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-167) and believed the elderly should not have to work or rely on charity until they died.[\[168\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-168) The law maintains an income in retirement in three ways (1) through a public [social security](https://en.wikipedia.org/wiki/Social_security "Social security") program created by the Social Security Act of 1935,[\[169\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-169) (2) occupational pensions managed through the employment relationship, and (3) private pensions or [life insurance](https://en.wikipedia.org/wiki/Life_insurance "Life insurance") that individuals buy themselves. At work, most [occupational pension](https://en.wikipedia.org/wiki/Occupational_pension "Occupational pension") schemes originally resulted from [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining") during the 1920s and 1930s.[\[170\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-170) 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](https://en.wikipedia.org/wiki/Collective_agreement "Collective agreement") became known as "[Taft–Hartley plans](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_plan "Taft–Hartley plan")" after the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947 required joint management of funds by employees and employers.[\[171\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-171) Many employers also voluntarily choose to provide pensions. For example, the pension for professors, now called [TIAA](https://en.wikipedia.org/wiki/TIAA "TIAA"), was established on the initiative of [Andrew Carnegie](https://en.wikipedia.org/wiki/Andrew_Carnegie "Andrew Carnegie") in 1918 with the express requirement for participants to have voting rights for the plan trustees.[\[172\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-172) These could be collective and [defined benefit](https://en.wikipedia.org/wiki/Defined_benefit "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)](https://en.wikipedia.org/wiki/401\(k\) "401(k)")" plans. These are named after the [Internal Revenue Code](https://en.wikipedia.org/wiki/Internal_Revenue_Code "Internal Revenue Code") §[401(k)](https://en.wikipedia.org/wiki/401\(k\) "401(k)"),[\[173\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-173) 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](https://en.wikipedia.org/wiki/Tax_deferral "Tax deferral") rule applies to all pensions. But unlike a "[defined benefit](https://en.wikipedia.org/wiki/Defined_benefit "Defined benefit")" plan, a [401(k)](https://en.wikipedia.org/wiki/401\(k\) "401(k)") only contains whatever the employer and employee [contribute](https://en.wikipedia.org/wiki/Defined_contribution_plan "Defined contribution plan"). 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](https://en.wikipedia.org/wiki/Pension_Protection_Act_of_2006 "Pension Protection Act of 2006") §902 codified a model for employers to [automatically enroll](https://en.wikipedia.org/wiki/Automatic_enrolment "Automatic enrolment") their employees in a pension, with a right to opt out.[\[174\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-174) However, there is no right to an occupational pension. The [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "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.[\[175\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-175)
[](https://en.wikipedia.org/wiki/File:The_Morgan_Stanley_Building_\(WTM_by_official-ly_cool_112\).jpg)
Investment managers, like [Morgan Stanley](https://en.wikipedia.org/wiki/Morgan_Stanley "Morgan Stanley") and all pension trustees, are [fiduciaries](https://en.wikipedia.org/wiki/Fiduciaries "Fiduciaries"). This means they must avoid [conflicts of interest](https://en.wikipedia.org/wiki/Conflicts_of_interest "Conflicts of interest"). During a takeover bid, *[Donovan v. Bierwirth](https://en.wikipedia.org/wiki/Donovan_v._Bierwirth "Donovan v. Bierwirth")* held trustees must take advice or not vote on corporate stocks if in doubt about [conflicts](https://en.wikipedia.org/wiki/Conflict_of_interest "Conflict of interest").[\[176\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-176)
Five main rights for beneficiaries in [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") include information, [funding](https://en.wikipedia.org/wiki/Funding "Funding"), [vesting](https://en.wikipedia.org/wiki/Vesting "Vesting"), [anti-discrimination](https://en.wikipedia.org/wiki/Anti-discrimination "Anti-discrimination"), and [fiduciary duties](https://en.wikipedia.org/wiki/Fiduciary_duties "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](https://en.wikipedia.org/wiki/Secretary_of_labor "Secretary of labor"), and if beneficiaries make claims any refusal must be justified with a "full and fair review".[\[177\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-177) 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.[\[178\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-178) 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.[\[179\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-179) Second, all promises must be funded in advance.[\[180\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-180) The [Pension Benefit Guaranty Corporation](https://en.wikipedia.org/wiki/Pension_Benefit_Guaranty_Corporation "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](https://en.wikipedia.org/wiki/Vesting "Vesting")") after 5 years,[\[181\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-181) and contributions must [accrue](https://en.wikipedia.org/wiki/Accrue "Accrue") (i.e. the employee owns contributions) at a proportionate rate.[\[182\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-182) If employers and pension funds merge, there can be no reduction in benefits,[\[183\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-183) and if an employee goes bankrupt their creditors cannot take their occupational pension.[\[184\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-184) However, the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") has enabled benefits to be withdrawn by employers simply amending plans. In *[Lockheed Corp. v. Spink](https://en.wikipedia.org/wiki/Lockheed_Corp._v._Spink "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](https://en.wikipedia.org/wiki/Fiduciary_duties "Fiduciary duties") to preserve what an employee had originally been promised.[\[185\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-185) In dissent, [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") and [Souter J](https://en.wikipedia.org/wiki/Souter_J "Souter J") reserved any view on such "highly technical, important matters".[\[186\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-186) Steps to terminate a plan depend on whether it is individual, or multi-employer, and *[Mead Corp. v. Tilley](https://en.wikipedia.org/wiki/Mead_Corp._v._Tilley "Mead Corp. v. Tilley")* a majority of the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") held that employers could recoup excess benefits paid into pension plans after [PBGC](https://en.wikipedia.org/wiki/PBGC "PBGC") conditions are fulfilled. [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J"), dissenting, contended that all contingent and future liabilities must be satisfied.[\[187\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-187) Fourth, as a general principle, employees or beneficiaries cannot suffer any discrimination or detriment for "the attainment of any right" under a plan.[\[188\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-188) Fifth, managers are bound by responsibilities of competence and loyalty, called "[fiduciary duties](https://en.wikipedia.org/wiki/Fiduciary_duties "Fiduciary duties")".[\[189\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-189) Under §1102, a [fiduciary](https://en.wikipedia.org/wiki/Fiduciary "Fiduciary") is anyone who administers a plan, its trustees, and investment managers who are delegated control. Under §1104, [fiduciaries](https://en.wikipedia.org/wiki/Fiduciaries "Fiduciaries") must follow a "[prudent](https://en.wikipedia.org/wiki/Prudent_person "Prudent person")" person standard, involving three main components. First, a fiduciary must act "in accordance with the documents and instruments governing the plan".[\[190\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-190) Second, they must act with "care, skill and diligence", including "diversifying the investments of the plan" to "minimize the risk of large losses".[\[191\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-191) Liability for carelessness extends to making misleading statements about benefits,[\[192\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-192) and have been interpreted by the [Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor") to involve a duty to vote on proxies when [corporate stocks](https://en.wikipedia.org/wiki/Corporate_stocks "Corporate stocks") are purchased, and publicizing a statement of investment policy.[\[193\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-193) Third, and codifying fundamental equitable principles, a [fiduciary](https://en.wikipedia.org/wiki/Fiduciary "Fiduciary") must avoid any possibility of a [conflict of interest](https://en.wikipedia.org/wiki/Conflict_of_interest "Conflict of interest").[\[194\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-194) Fiduciaries must act "solely in the interest of the participants ... for the exclusive purpose of providing benefits" with "reasonable expenses",[\[195\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-195) and specifically avoiding [self-dealing](https://en.wikipedia.org/wiki/Self-dealing "Self-dealing") with a related "party in interest".[\[196\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-196) For example, in *[Donovan v. Bierwirth](https://en.wikipedia.org/wiki/Donovan_v._Bierwirth "Donovan v. Bierwirth")*, the [Second Circuit](https://en.wikipedia.org/wiki/Second_Circuit "Second Circuit") held that trustees of a pension which owned shares in the employees' company as a [takeover](https://en.wikipedia.org/wiki/Takeover "Takeover") bid was launched, because they faced a potential [conflict of interest](https://en.wikipedia.org/wiki/Conflict_of_interest "Conflict of interest"), had to get independent legal advice on how to vote, or possibly abstain.[\[197\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-197) Remedies for these duties have, however, been restricted by the [Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") to disfavor damages.[\[198\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-198) In these fields, according to §1144, [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") will "supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan".[\[199\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-199) ERISA did not, therefore, follow the model of the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") or the [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "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](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") to strike down a [New York](https://en.wikipedia.org/wiki/New_York_\(state\) "New York (state)") that required giving benefits to pregnant employees in [ERISA](https://en.wikipedia.org/wiki/ERISA "ERISA") plans.[\[200\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-200) It held a case under [Texas](https://en.wikipedia.org/wiki/Texas "Texas") law for damages for denying vesting of benefits was preempted, so the claimant only had [ERISA](https://en.wikipedia.org/wiki/ERISA "ERISA") remedies.[\[201\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-201) It struck down a [Washington](https://en.wikipedia.org/wiki/Washington_\(state\) "Washington (state)") law which altered who would receive life insurance designation on death.[\[202\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-202) However, under §1144(b)(2)(A) this does not affect 'any law of any State which regulates insurance, banking, or [securities](https://en.wikipedia.org/wiki/Securities "Securities").' So, the Supreme Court has also held valid a [Massachusetts](https://en.wikipedia.org/wiki/Massachusetts "Massachusetts") law requiring mental health to be covered by employer group health policies.[\[203\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-203) But it struck down a [Pennsylvania](https://en.wikipedia.org/wiki/Pennsylvania "Pennsylvania") statute which prohibited employers becoming subrogated to (potentially more valuable) claims of employees for insurance after accidents.[\[204\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-204) Yet more recently, the court has shown a greater willingness to prevent laws being preempted,[\[205\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-205) 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.
[](https://en.wikipedia.org/wiki/File:Bernie_Sanders_in_East_Los_Angeles_\(27211671695\).jpg)
The [Workplace Democracy Act of 1999](https://en.wikipedia.org/wiki/Workplace_Democracy_Act_of_1999 "Workplace Democracy Act of 1999"),[\[206\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto1-206) proposed by [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "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](https://en.wikipedia.org/wiki/Corporate_stocks "Corporate stocks"). Currently [investment managers](https://en.wikipedia.org/wiki/Investment_managers "Investment managers") control most voting rights in the economy using "other people's money".[\[207\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-207)
The most important rights that [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") did not cover were who controls investments and [securities](https://en.wikipedia.org/wiki/Securities "Securities") that beneficiaries' retirement savings buy. The largest form of retirement fund has become the [401(k)](https://en.wikipedia.org/wiki/401\(k\) "401(k)"). This is often an individual account that an employer sets up, and an [investment management](https://en.wikipedia.org/wiki/Investment_management "Investment management") firm, such as [Vanguard](https://en.wikipedia.org/wiki/The_Vanguard_Group "The Vanguard Group"), [Fidelity](https://en.wikipedia.org/wiki/Fidelity_Investments "Fidelity Investments"), [Morgan Stanley](https://en.wikipedia.org/wiki/Morgan_Stanley "Morgan Stanley") or [BlackRock](https://en.wikipedia.org/wiki/BlackRock "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](https://en.wikipedia.org/wiki/Institutional_Shareholder_Services "Institutional Shareholder Services") or [Glass Lewis](https://en.wikipedia.org/wiki/Glass_Lewis "Glass Lewis"). Under [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") §1102(a),[\[208\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-208) 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](https://en.wikipedia.org/wiki/Fiduciaries "Fiduciaries") or [trustees](https://en.wikipedia.org/wiki/Trustees "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.[\[209\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-209) These investment managers buy a range of assets, particularly [corporate stocks](https://en.wikipedia.org/wiki/Corporate_stocks "Corporate stocks") which have voting rights, as well as [government bonds](https://en.wikipedia.org/wiki/Government_bonds "Government bonds"), [corporate bonds](https://en.wikipedia.org/wiki/Corporate_bonds "Corporate bonds"), [commodities](https://en.wikipedia.org/wiki/Commodities "Commodities"), real estate or [derivatives](https://en.wikipedia.org/wiki/Derivative_\(finance\) "Derivative (finance)"). 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](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_plan "Taft–Hartley plan"), and [state public pension plans](https://en.wikipedia.org/wiki/Public_employee_pension_plans_in_the_United_States "Public employee pension plans in the United States"). Under the amended [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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.[\[210\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-210) Although many local pension funds are not consolidated and have had critical funding notices from the [Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor"),[\[211\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-211) more funds with employee representation ensure that corporate voting rights are cast according to the preferences of their members. [State public pensions](https://en.wikipedia.org/wiki/Public_employee_pension_plans_in_the_United_States "Public employee pension plans in the United States") are often larger, and have greater [bargaining power](https://en.wikipedia.org/wiki/Bargaining_power "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.[\[212\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-212) For example, the [California Government Code](https://en.wikipedia.org/wiki/California_Government_Code "California Government Code") §20090 requires that its public employee pension fund, [CalPERS](https://en.wikipedia.org/wiki/CalPERS "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](https://en.wikipedia.org/wiki/Investment_manager "Investment manager") voting. Furthermore, no general legislation requires voting rights for employees in pension funds, despite several proposals.[\[213\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-213) For example, the [Workplace Democracy Act of 1999](https://en.wikipedia.org/wiki/Workplace_Democracy_Act_of_1999 "Workplace Democracy Act of 1999"), sponsored by [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") then in the [US House of Representatives](https://en.wikipedia.org/wiki/US_House_of_Representatives "US House of Representatives"), would have required all single employer pension plans to have trustees appointed equally by employers and employee representatives.[\[206\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto1-206) There is, furthermore, currently no legislation to stop investment managers voting with other people's money as the [Dodd–Frank Act](https://en.wikipedia.org/wiki/Dodd%E2%80%93Frank_Act "Dodd–Frank Act") of 2010 §957 banned [broker-dealers](https://en.wikipedia.org/wiki/Broker-dealer "Broker-dealer") voting on significant issues without instructions.[\[214\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-214) This means votes in the largest [corporations](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") that people's retirement savings buy are overwhelmingly exercised by investment managers, whose interests potentially conflict with the interests of beneficiaries' on [labor rights](https://en.wikipedia.org/wiki/Labor_rights "Labor rights"), [fair pay](https://en.wikipedia.org/wiki/Fair_pay "Fair pay"), [job security](https://en.wikipedia.org/wiki/Job_security "Job security"), or pension policy.
### Health and safety
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=8 "Edit section: Health and safety")\]
Main articles: [Occupational Safety and Health Act 1970](https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act_1970 "Occupational Safety and Health Act 1970"), [US tort law](https://en.wikipedia.org/wiki/US_tort_law "US tort law"), and [Affordable Care Act](https://en.wikipedia.org/wiki/Affordable_Care_Act "Affordable Care Act")
The [Occupational Safety and Health Act](https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act "Occupational Safety and Health Act"),[\[215\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-215) signed into law in 1970 by President [Richard Nixon](https://en.wikipedia.org/wiki/Richard_Nixon "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](https://en.wikipedia.org/wiki/Benzene "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](https://en.wikipedia.org/wiki/Child_labor_laws_in_the_United_States "Child labor laws in the United States")
### Civil liberties
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=9 "Edit section: Civil liberties")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_work_liberties "Template:Slist work liberties") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_work_liberties "Template talk:Slist work liberties") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_work_liberties "Special:EditPage/Template:Slist work liberties")Liberty at work cases |
|---|
| [First Amendment](https://en.wikipedia.org/wiki/First_Amendment "First Amendment") and [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") |
| *[Pickering v Board of Education](https://en.wikipedia.org/wiki/Pickering_v_Board_of_Education "Pickering v Board of Education")* |
| *[Connick v Myers](https://en.wikipedia.org/wiki/Connick_v_Myers "Connick v Myers")* |
| *[Rankin v McPherson](https://en.wikipedia.org/wiki/Rankin_v_McPherson "Rankin v McPherson")* |
| *[O'Connor v Ortega](https://en.wikipedia.org/wiki/O%27Connor_v_Ortega "O'Connor v Ortega")* |
| *[Waters v Churchill](https://en.wikipedia.org/wiki/Waters_v_Churchill "Waters v Churchill")* |
| [Whistleblower Protection Act of 1989](https://en.wikipedia.org/wiki/Whistleblower_Protection_Act_of_1989 "Whistleblower Protection Act of 1989") |
| *[Huffman v Office of Personnel Management](https://en.wikipedia.org/wiki/Huffman_v_Office_of_Personnel_Management "Huffman v Office of Personnel Management")*, 263 F3d 1341 (2001) |
| *[City of San Diego, California v Roe](https://en.wikipedia.org/w/index.php?title=City_of_San_Diego,_California_v_Roe&action=edit&redlink=1 "City of San Diego, California v Roe (page does not exist)")* |
| *[Garcetti v Ceballos](https://en.wikipedia.org/wiki/Garcetti_v_Ceballos "Garcetti v Ceballos")* |
| *[Ontario v Quon](https://en.wikipedia.org/wiki/Ontario_v_Quon "Ontario v Quon")* |
| See [US labor law](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [civil liberties](https://en.wikipedia.org/wiki/Civil_liberties "Civil liberties") |
- *[Pickering v. Board of Education](https://en.wikipedia.org/wiki/Pickering_v._Board_of_Education "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](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") and the [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution")
- *[Connick v. Myers](https://en.wikipedia.org/wiki/Connick_v._Myers "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](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution")
- *[Rankin v. McPherson](https://en.wikipedia.org/wiki/Rankin_v._McPherson "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](https://en.wikipedia.org/wiki/Ronald_Reagan "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](https://en.wikipedia.org/wiki/Waters_v._Churchill "Waters v. Churchill")*, 511 U.S. 661 (1994) 7 to 2, a public hospital nurse stating, outside work at dinner, that the [cross-training](https://en.wikipedia.org/wiki/Cross-training_\(business\) "Cross-training (business)") policies of the hospital were flawed, could be dismissed without any violation of the [First Amendment](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") because it could be seen as interfering with the employer's operations
- *[Garcetti v. Ceballos](https://en.wikipedia.org/wiki/Garcetti_v._Ceballos "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](https://en.wikipedia.org/wiki/Employee_Polygraph_Protection_Act "Employee Polygraph Protection Act") (1988) outlawed the use of lie detectors by private employers except in narrowly prescribed circumstances
- [Whistleblower Protection Act](https://en.wikipedia.org/wiki/Whistleblower_Protection_Act "Whistleblower Protection Act") (1989)
- *[Huffman v. Office of Personnel Management](https://en.wikipedia.org/wiki/Huffman_v._Office_of_Personnel_Management "Huffman v. Office of Personnel Management")*, 263 F.3d 1341 (Fed. Cir. 2001)
- *[O'Connor v. Ortega](https://en.wikipedia.org/wiki/O%27Connor_v._Ortega "O'Connor v. Ortega")*, 480 U.S. 709 (1987) searches in the workplace
- *[City of Ontario v. Quon](https://en.wikipedia.org/wiki/City_of_Ontario_v._Quon "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](https://en.wikipedia.org/wiki/Heffernan_v._City_of_Paterson "Heffernan v. City of Paterson")*, 578 US \_\_ (2016)
## Workplace participation
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=10 "Edit section: Workplace participation")\]
See also: [Collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"), [US corporate law](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"), [Codetermination](https://en.wikipedia.org/wiki/Codetermination "Codetermination"), and [Work council](https://en.wikipedia.org/wiki/Work_council "Work council")
[](https://en.wikipedia.org/wiki/File:Oblique_facade_3,_US_Supreme_Court.jpg)
The [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court")'s policy of [preemption](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption") since 1953 means federal [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining") rules cancel state rules, even if state law is more beneficial to employees.[\[49\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto4-49) Despite preemption, many unions, [corporations](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"), and states have experimented with direct participation rights, to get a "[fair day's wage for a fair day's work](https://en.wikipedia.org/wiki/Fair_day%27s_wage_for_a_fair_day%27s_work "Fair day's wage for a fair day's work")".[\[216\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-216)
The central right in [labor law](https://en.wikipedia.org/wiki/Labor_law "Labor law"), beyond minimum standards for pay, hours, pensions, safety or privacy, is to participate and vote in workplace governance.[\[217\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-217) The American model developed from the [Clayton Antitrust Act of 1914](https://en.wikipedia.org/wiki/Clayton_Antitrust_Act_of_1914 "Clayton Antitrust Act of 1914"),[\[218\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-218) which declared the "labor of a [human being](https://en.wikipedia.org/wiki/Human_being "Human being") is not a [commodity](https://en.wikipedia.org/wiki/Commodity "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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") changed the basic model, which remained through the 20th century. Reflecting the "[inequality of bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") between employees ... and employers who are organized in the [corporate](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") or other forms of ownership association",[\[219\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-219) the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") codified basic rights of employees to organize a [union](https://en.wikipedia.org/wiki/Labor_union "Labor union"), requires employers to bargain in [good faith](https://en.wikipedia.org/wiki/Good_faith "Good faith") (at least on paper) after a union has majority support, binds employers to [collective agreements](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements"), and protects the right to take [collective action](https://en.wikipedia.org/wiki/Collective_action "Collective action") including a strike. Union membership, collective bargaining, and standards of living all increased rapidly until Congress forced through the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "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](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") chose to develop a doctrine that the rules in the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") preempted any other state rules if an activity was "arguably subject" to its rights and duties.[\[220\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-220) While states were inhibited from acting as "[laboratories of democracy](https://en.wikipedia.org/wiki/Laboratories_of_democracy "Laboratories of democracy")", and particularly as unions were targeted from 1980 and membership fell, the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") has been criticized as a "failed statute" as US labor law "ossified".[\[221\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-221) 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](https://en.wikipedia.org/wiki/Codetermine "Codetermine") directors of corporate boards, and elect [work councils](https://en.wikipedia.org/wiki/Work_councils "Work councils") with binding rights on workplace issues.
### Labor unions
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=11 "Edit section: Labor unions")\]
| [v](https://en.wikipedia.org/wiki/Template:Sourcelist_unions "Template:Sourcelist unions") [t](https://en.wikipedia.org/wiki/Template_talk:Sourcelist_unions "Template talk:Sourcelist unions") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Sourcelist_unions "Special:EditPage/Template:Sourcelist unions")Sources on labor unions |
|---|
| [First Amendment to the US Constitution](https://en.wikipedia.org/wiki/First_Amendment_to_the_US_Constitution "First Amendment to the US Constitution") |
| [ILO](https://en.wikipedia.org/wiki/ILO "ILO") [Freedom of Association Convention 1948](https://en.wikipedia.org/wiki/Freedom_of_Association_Convention_1948 "Freedom of Association Convention 1948") (c 87) |
| [Labor Management Reporting and Disclosure Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disclosure_Act_of_1959 "Labor Management Reporting and Disclosure Act of 1959") |
| *[Trbovich v. United Mine Workers](https://en.wikipedia.org/wiki/Trbovich_v._United_Mine_Workers "Trbovich v. United Mine Workers")*, 404 U.S. 528 (1972) |
| *[Dunlop v. Bachowski](https://en.wikipedia.org/wiki/Dunlop_v._Bachowski "Dunlop v. Bachowski")*, 421 U.S. 560 (1975) |
| *[De Veau v. Braisted](https://en.wikipedia.org/wiki/De_Veau_v._Braisted "De Veau v. Braisted")*, 363 U.S. 144 (1960) |
| *[Brown v. Hotel and Rest. Employees](https://en.wikipedia.org/wiki/Brown_v._Hotel_and_Rest._Employees "Brown v. Hotel and Rest. Employees")*, 468 U.S. 491 (1984) |
| *[Machinists v. Street](https://en.wikipedia.org/wiki/Machinists_v._Street "Machinists v. Street")*, 367 U.S. 740 (1961) |
| *[CWA v. Beck](https://en.wikipedia.org/wiki/CWA_v._Beck "CWA v. Beck")*, 487 U.S. 735 (1988) |
| *[Locke v. Karass](https://en.wikipedia.org/wiki/Locke_v._Karass "Locke v. Karass")*, 555 U.S. 207 (2009) |
| *[Abood v. Detroit Board of Education](https://en.wikipedia.org/wiki/Abood_v._Detroit_Board_of_Education "Abood v. Detroit Board of Education")*, 431 U.S. 209 (1977) |
| *[Davenport v. Washington Education Ass'n](https://en.wikipedia.org/wiki/Davenport_v._Washington_Education_Ass%27n "Davenport v. Washington Education Ass'n")*, 551 U.S. 177 (2007) |
| *[Janus v. AFSCME](https://en.wikipedia.org/wiki/Janus_v._AFSCME "Janus v. AFSCME")* , 585 U.S. \_\_\_ (2018) |
| See [US labor](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [unions](https://en.wikipedia.org/wiki/Trade_unions_in_the_United_States "Trade unions in the United States") |
Main articles: [Labor unions in the US](https://en.wikipedia.org/wiki/Labor_unions_in_the_US "Labor unions in the US") and [List of labor unions in the US](https://en.wikipedia.org/wiki/List_of_labor_unions_in_the_US "List of labor unions in the US")
[Freedom of association](https://en.wikipedia.org/wiki/Freedom_of_association "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](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution").[\[222\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-222) In early [colonial history](https://en.wikipedia.org/wiki/Colonial_history_of_the_United_States "Colonial history of the United States"), 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](https://en.wikipedia.org/wiki/Savannah,_Georgia "Savannah, Georgia"), [Georgia](https://en.wikipedia.org/wiki/Georgia_\(U.S._state\) "Georgia (U.S. state)") in 1746.[\[223\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-223) After the [American Revolution](https://en.wikipedia.org/wiki/American_Revolution "American Revolution"), however, courts departed from repressive elements of [English common law](https://en.wikipedia.org/wiki/English_common_law "English common law"). The first reported case, *[Commonwealth v. Pullis](https://en.wikipedia.org/wiki/Commonwealth_v._Pullis "Commonwealth v. Pullis")* in 1806 did find shoemakers in [Philadelphia](https://en.wikipedia.org/wiki/Philadelphia "Philadelphia") guilty of "a combination to raise their wages".[\[224\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-224) Nevertheless, unions continued, and the first federation of trade unions was formed in 1834, the [National Trades' Union](https://en.wikipedia.org/wiki/National_Trades%27_Union "National Trades' Union"), with the primary aim of a 10-hour working day.[\[225\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-225) In 1842 the [Supreme Court of Massachusetts](https://en.wikipedia.org/wiki/Supreme_Court_of_Massachusetts "Supreme Court of Massachusetts") held in *[Commonwealth v. Hunt](https://en.wikipedia.org/wiki/Commonwealth_v._Hunt "Commonwealth v. Hunt")* that a strike by the Boston Journeymen Bootmakers' Society for higher wages was lawful.[\[226\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-226) [Chief Justice Shaw](https://en.wikipedia.org/wiki/Chief_Justice_Shaw "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](https://en.wikipedia.org/wiki/Slavery "Slavery") by [Abraham Lincoln](https://en.wikipedia.org/wiki/Abraham_Lincoln "Abraham Lincoln")'s [Emancipation Proclamation](https://en.wikipedia.org/wiki/Emancipation_Proclamation "Emancipation Proclamation") during the [American Civil War](https://en.wikipedia.org/wiki/American_Civil_War "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](https://en.wikipedia.org/wiki/Sherman_Act_of_1890 "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](https://en.wikipedia.org/wiki/Pullman_Company "Pullman Company"), and imprisoned the leader, and future presidential candidate, [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs").[\[227\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-227) The court also enabled unions to be sued for triple damages in *[Loewe v. Lawlor](https://en.wikipedia.org/wiki/Loewe_v._Lawlor "Loewe v. Lawlor")*, a case involving a [hat maker](https://en.wikipedia.org/wiki/Hat_maker "Hat maker") union in [Danbury, Connecticut](https://en.wikipedia.org/wiki/Danbury,_Connecticut "Danbury, Connecticut").[\[228\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto3-228) The president and [United States Congress](https://en.wikipedia.org/wiki/United_States_Congress "United States Congress") responded by passing the [Clayton Act of 1914](https://en.wikipedia.org/wiki/Clayton_Act_of_1914 "Clayton Act of 1914") to take labor out of [antitrust law](https://en.wikipedia.org/wiki/Antitrust_law "Antitrust law"). Then, after the [Great Depression](https://en.wikipedia.org/wiki/Great_Depression "Great Depression") passed the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947 regulated how members can join a union, and the [Labor Management Reporting and Disclosure Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disclosure_Act_of_1959 "Labor Management Reporting and Disclosure Act of 1959") created a "bill of rights" for union members.
[](https://en.wikipedia.org/wiki/File:Richard_Trumka_2008.jpg)
[Richard Trumka](https://en.wikipedia.org/wiki/Richard_Trumka "Richard Trumka") was the late president of the [AFL–CIO](https://en.wikipedia.org/wiki/AFL%E2%80%93CIO "AFL–CIO"), a federation of unions, with 12.5m members. The [Change to Win Federation](https://en.wikipedia.org/wiki/Change_to_Win_Federation "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](https://en.wikipedia.org/wiki/Freedom_of_association "Freedom of association"), the law requires basic standards of democracy and accountability to ensure members are truly free in shaping their associations.[\[229\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-229) Fundamentally, all unions are democratic organizations,[\[230\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-230) 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](https://en.wikipedia.org/wiki/McClellan_Committee "McClellan Committee") of the [US Senate](https://en.wikipedia.org/wiki/US_Senate "US Senate") found evidence of two rival [Teamsters Union](https://en.wikipedia.org/wiki/Teamsters_Union "Teamsters Union") executives, [Jimmy Hoffa](https://en.wikipedia.org/wiki/Jimmy_Hoffa "Jimmy Hoffa") and [Dave Beck](https://en.wikipedia.org/wiki/Dave_Beck "Dave Beck"), falsifying delegate vote counts and stealing union funds,[\[231\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-231) Congress passed the [Labor Management Reporting and Disclosure Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disclosure_Act_of_1959 "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.[\[232\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-232) Under § 431, unions should file their constitutions and bylaws with the [secretary of labor](https://en.wikipedia.org/wiki/Secretary_of_labor "Secretary of labor") and be accessible by members:[\[233\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto2-233) today union constitutions are online. Under § 481 elections must occur at least every 5 years, and local officers every 3 years, by secret ballot.[\[233\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto2-233) Additionally, state law may bar union officials who have prior convictions for felonies from holding office.[\[234\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-234) As a response to the Hoffa and Beck scandals, there is also an express [fiduciary duty](https://en.wikipedia.org/wiki/Fiduciary_duty "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](https://en.wikipedia.org/wiki/Embezzlement "Embezzlement"). These rules, however, restated most of what was already the law, and codified principles of governance that unions already undertook.[\[235\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-235) 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](https://en.wikipedia.org/wiki/US_Department_of_Labor "US Department of Labor").[\[236\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-236) Federal courts may review decisions by the Department to proceed with any prosecutions.[\[237\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-237) 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](https://en.wikipedia.org/wiki/Financial_institutions "Financial institutions").[\[238\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-238)
[](https://en.wikipedia.org/wiki/File:Sharan_Burrow_World_Economic_Forum_2013.jpg)
[Sharan Burrow](https://en.wikipedia.org/wiki/Sharan_Burrow "Sharan Burrow") leads the [International Trade Union Confederation](https://en.wikipedia.org/wiki/International_Trade_Union_Confederation "International Trade Union Confederation"), which represents labor union members worldwide, via each national group including the [AFL–CIO](https://en.wikipedia.org/wiki/AFL%E2%80%93CIO "AFL–CIO").[\[239\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-239)
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](https://en.wikipedia.org/wiki/Collective_agreements "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](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"). However, after the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947, the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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.[\[240\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-240) But § 164(b) was added to codify a right of states to pass so called "[right to work laws](https://en.wikipedia.org/wiki/Right_to_work_law "Right to work law")" that prohibit unions making collective agreements to register all workers as union members, or collect fees for the service of collective bargaining.[\[241\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-241) Over time, as more states with [Republican](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") governments passed laws restricting union membership agreements, there has been a significant decline of [union density](https://en.wikipedia.org/wiki/Union_density "Union density"). Unions have not, however, yet experimented with agreements to [automatically enroll](https://en.wikipedia.org/wiki/Automatically_enroll "Automatically enroll") employees in unions with a right to opt out. In *[International Ass'n of Machinists v. Street](https://en.wikipedia.org/wiki/International_Ass%27n_of_Machinists_v._Street "International Ass'n of Machinists v. Street")*, a majority of the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court"), against three dissenting justices, held that the [First Amendment](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") 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.[\[242\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-242) Unions have always been entitled to publicly campaign for members of Congress or presidential candidates that support [labor rights](https://en.wikipedia.org/wiki/Labor_rights "Labor rights").[\[243\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-243) But the urgency of political spending was raised when in 1976 *[Buckley v. Valeo](https://en.wikipedia.org/wiki/Buckley_v._Valeo "Buckley v. Valeo")* decided, over powerful dissents of [White J](https://en.wikipedia.org/wiki/White_J "White J") and [Marshall J](https://en.wikipedia.org/wiki/Thurgood_Marshall "Thurgood Marshall"), that candidates could spend unlimited money on their own political campaign,[\[244\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-244) and then in *[First National Bank of Boston v. Bellotti](https://en.wikipedia.org/wiki/First_National_Bank_of_Boston_v._Bellotti "First National Bank of Boston v. Bellotti")*,[\[245\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-245) that corporations could engage in election spending. In 2010, over four dissenting justices, *[Citizens United v. FEC](https://en.wikipedia.org/wiki/Citizens_United_v._FEC "Citizens United v. FEC")*[\[246\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-246) 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](https://en.wikipedia.org/wiki/Federal_Election_Campaign_Act_of_1971 "Federal Election Campaign Act of 1971") had intended to do. A unanimous court held in *[Abood v. Detroit Board of Education](https://en.wikipedia.org/wiki/Abood_v._Detroit_Board_of_Education "Abood v. Detroit Board of Education")* that [union security agreements](https://en.wikipedia.org/wiki/Union_security_agreements "Union security agreements") to collect fees from non-members were also allowed in the public sector.[\[247\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-247) However, in *[Harris v. Quinn](https://en.wikipedia.org/wiki/Harris_v._Quinn "Harris v. Quinn")* five [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") judges reversed this ruling apparently banning public sector union security agreements,[\[248\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-248) and were about to do the same for all unions in *[Friedrichs v. California Teachers Association](https://en.wikipedia.org/wiki/Friedrichs_v._California_Teachers_Association "Friedrichs v. California Teachers Association")* until [Scalia J](https://en.wikipedia.org/wiki/Scalia_J "Scalia J") died, halting an anti-labor majority on the Supreme Court.[\[249\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-249) In 2018, *[Janus v. AFSCME](https://en.wikipedia.org/wiki/Janus_v._AFSCME "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](https://en.wikipedia.org/wiki/2016_US_Presidential_election "2016 US Presidential election"), for the future of the labor movement, and democratic life.
### Collective bargaining
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=12 "Edit section: Collective bargaining")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_collective_bargain "Template:Slist collective bargain") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_collective_bargain "Template talk:Slist collective bargain") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_collective_bargain "Special:EditPage/Template:Slist collective bargain")Collective bargain sources |
|---|
| [First Amendment](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") |
| [ILO](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") [Right to Organise and Collective Bargaining Convention, 1949](https://en.wikipedia.org/wiki/Right_to_Organise_and_Collective_Bargaining_Convention,_1949 "Right to Organise and Collective Bargaining Convention, 1949") c 98 |
| [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §§157-159 and 185 |
| *[NLRB v. Borg-Warner Corp.](https://en.wikipedia.org/wiki/NLRB_v._Borg-Warner_Corp. "NLRB v. Borg-Warner Corp.")* 356 US 342 (1958) |
| *[First National Maintenance Corp. v. NLRB](https://en.wikipedia.org/w/index.php?title=First_National_Maintenance_Corp._v._NLRB&action=edit&redlink=1 "First National Maintenance Corp. v. NLRB (page does not exist)")* 452 US 666 (1981) |
| *[JI Case Co v. National Labor Relations Board](https://en.wikipedia.org/wiki/JI_Case_Co_v._National_Labor_Relations_Board "JI Case Co v. National Labor Relations Board")* 321 US 332 (1944) |
| *[Wallace Corp. v. NLRB](https://en.wikipedia.org/wiki/Wallace_Corp._v._NLRB "Wallace Corp. v. NLRB")* 323 US 248 (1944) |
| *[NLRB v. Sands Manufacturing Co.](https://en.wikipedia.org/wiki/NLRB_v._Sands_Manufacturing_Co. "NLRB v. Sands Manufacturing Co.")* 306 US 332 (1939) |
| *[New Process Steel, L.P. v. NLRB](https://en.wikipedia.org/wiki/New_Process_Steel,_L.P._v._NLRB "New Process Steel, L.P. v. NLRB")* 560 US 674 (2010) |
| *[United Steelworkers v. American Manufact. Co.](https://en.wikipedia.org/w/index.php?title=United_Steelworkers_v._American_Manufact._Co.&action=edit&redlink=1 "United Steelworkers v. American Manufact. Co. (page does not exist)")* 363 US 564 (1960) |
| *[United Steelworkers v. Warrior & Gulf Nav. Co.](https://en.wikipedia.org/w/index.php?title=United_Steelworkers_v._Warrior_%26_Gulf_Nav._Co.&action=edit&redlink=1 "United Steelworkers v. Warrior & Gulf Nav. Co. (page does not exist)")* 363 US 574 (1960) |
| *[United Paperworkers v. Misco, Inc.](https://en.wikipedia.org/w/index.php?title=United_Paperworkers_v._Misco,_Inc.&action=edit&redlink=1 "United Paperworkers v. Misco, Inc. (page does not exist)")* 484 US 29 (1987) |
| See [United States labor law]() and [unions](https://en.wikipedia.org/wiki/Labor_unions_in_the_United_States "Labor unions in the United States") |
Main articles: [Collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"), [Arbitration in the US](https://en.wikipedia.org/wiki/Arbitration_in_the_US "Arbitration in the US"), [National Labor Relations Act 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_1935 "National Labor Relations Act 1935"), [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act"), [Federal Service Labor-Management Relations Statute](https://en.wikipedia.org/wiki/Federal_Service_Labor-Management_Relations_Statute "Federal Service Labor-Management Relations Statute"), and [Railway Labor Act](https://en.wikipedia.org/wiki/Railway_Labor_Act "Railway Labor Act")
Since the [Industrial Revolution](https://en.wikipedia.org/wiki/Industrial_Revolution "Industrial Revolution"), collective bargaining has been the main way to get [fair pay](https://en.wikipedia.org/wiki/Fair_pay "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](https://en.wikipedia.org/wiki/Clayton_Antitrust_Act_of_1914 "Clayton Antitrust Act of 1914"). Under §6,[\[250\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-250) labor rights were declared to be outside of [antitrust law](https://en.wikipedia.org/wiki/Antitrust_law "Antitrust law"), but this did not stop hostile employers and courts suppressing unions. In *[Adair v. United States](https://en.wikipedia.org/wiki/Adair_v._United_States "Adair v. United States")*,[\[251\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-251) and *[Coppage v. Kansas](https://en.wikipedia.org/wiki/Coppage_v._Kansas "Coppage v. Kansas")*,[\[252\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-252) the [Supreme Court](https://en.wikipedia.org/wiki/United_States_Supreme_Court "United States Supreme Court"), over powerful dissents,[\[253\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-253) asserted the Constitution empowered employers to require employees to sign [contracts](https://en.wikipedia.org/wiki/Yellow-dog_contract "Yellow-dog contract") promising they would not join a union. These "[yellow-dog contracts](https://en.wikipedia.org/wiki/Yellow-dog_contract "Yellow-dog contract")" were offered to employees on a "[take it or leave it](https://en.wikipedia.org/wiki/Hobson%27s_choice "Hobson's choice")" basis, and effectively stopped unionization. They lasted until the [Great Depression](https://en.wikipedia.org/wiki/Great_Depression "Great Depression") when the [Norris–La Guardia Act](https://en.wikipedia.org/wiki/Norris%E2%80%93La_Guardia_Act "Norris–La Guardia Act") of 1932 banned them.[\[254\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-254) This also prevented the courts from issuing any injunctions or enforcing any agreements in the context of a labor dispute.[\[255\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-255) After the [landslide election](https://en.wikipedia.org/wiki/1932_United_States_presidential_election "1932 United States presidential election") of [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt"), the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") was drafted to create positive rights for collective bargaining in most of the private sector.[\[256\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-256) 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".[\[257\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-257) The act was meant to increase [bargaining power](https://en.wikipedia.org/wiki/Bargaining_power "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](https://en.wikipedia.org/wiki/Federal_Labor_Relations_Act_of_1978 "Federal Labor Relations Act of 1978"),[\[258\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-258) [railway and airline](https://en.wikipedia.org/wiki/Railway_Labor_Act "Railway Labor Act") staff,[\[259\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-259) domestic and [agriculture](https://en.wikipedia.org/wiki/Agriculture_in_the_United_States "Agriculture in the United States") workers.[\[260\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-260) These groups depend on special federal statutes like the [Railway Labor Act](https://en.wikipedia.org/wiki/Railway_Labor_Act "Railway Labor Act") or state law rules, like the [California Agricultural Labor Relations Act of 1975](https://en.wikipedia.org/wiki/California_Agricultural_Labor_Relations_Act_of_1975 "California Agricultural Labor Relations Act of 1975"). In 1979, five [Supreme Court](https://en.wikipedia.org/wiki/United_States_Supreme_Court "United States Supreme Court") judges, over four forceful dissents, also introduced an exception for church operated schools, apparently because of "serious [First Amendment](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") questions".[\[261\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-261) 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](https://en.wikipedia.org/wiki/FedEx_Home_Delivery_v._NLRB "FedEx Home Delivery v. NLRB")* the [DC Circuit](https://en.wikipedia.org/wiki/United_States_Circuit_Court_of_the_District_of_Columbia "United States Circuit Court of the District of Columbia"), adopting submissions of [FedEx](https://en.wikipedia.org/wiki/FedEx "FedEx")'s lawyer [Ted Cruz](https://en.wikipedia.org/wiki/Ted_Cruz "Ted Cruz"), held that post truck drivers were independent contractors because they took on "entrepreneurial opportunity". [Garland J](https://en.wikipedia.org/wiki/Merrick_Garland "Merrick Garland") dissented, arguing the majority had departed from common law tests.[\[262\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-262) The "independent contractor" category was estimated to remove protection from 8 million workers.[\[263\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-263) While many states have higher rates, the US has an 11.1 per cent [unionization rate](https://en.wikipedia.org/wiki/Unionization_rate "Unionization rate") and 12.3 per cent rate of [coverage by collective agreement](https://en.wikipedia.org/wiki/Coverage_by_collective_agreement "Coverage by collective agreement"). This is the lowest in the industrialized world.[\[264\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-264)
[](https://en.wikipedia.org/wiki/File:NLRB_picketing_2007.jpg)
After [1981 air traffic control strike](https://en.wikipedia.org/wiki/Professional_Air_Traffic_Controllers_Organization_\(1968\) "Professional Air Traffic Controllers Organization (1968)"), when [Ronald Reagan](https://en.wikipedia.org/wiki/Ronald_Reagan "Ronald Reagan") fired every air traffic controller,[\[265\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-265) the [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "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](https://en.wikipedia.org/wiki/United_States_Senate "United States Senate") refused to make appointments.
At any point employers can freely bargain with union representatives and make a [collective agreement](https://en.wikipedia.org/wiki/Collective_agreement "Collective agreement"). Under [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") §158(d) the mandatory subjects of collective bargaining include "wages, hours, and other terms and conditions of employment".[\[266\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-266) A collective agreement will typically aim to get rights including a [fair day's wage for a fair day's work](https://en.wikipedia.org/wiki/Fair_day%27s_wage_for_a_fair_day%27s_work "Fair day's wage for a fair day's work"), reasonable notice and severance pay before any necessary [layoffs](https://en.wikipedia.org/wiki/Layoff "Layoff"), [just cause](https://en.wikipedia.org/wiki/Just_cause_\(employment_law\) "Just cause (employment law)") for any job termination, and [arbitration](https://en.wikipedia.org/wiki/Arbitration_in_the_United_States "Arbitration in the United States") to resolve disputes. It could also extend to any subject by mutual agreement. A union can encourage an employing entity through [collective action](https://en.wikipedia.org/wiki/Collective_action "Collective action") to sign a deal, without using the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") procedure. But, if an employing entity refuses to deal with a union, and a union wishes, the [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board") (NLRB) may oversee a legal process up to the conclusion of a legally binding [collective agreement](https://en.wikipedia.org/wiki/Collective_agreement "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](https://en.wikipedia.org/wiki/United_States_Senate "United States Senate")",[\[267\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-267) and play a central role in promoting collective bargaining. First, the NLRB will determine an appropriate "[bargaining unit](https://en.wikipedia.org/wiki/Bargaining_unit "Bargaining unit")" of employees with employers (e.g., offices in a city, or state, or whole economic sector),[\[268\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-268) The NLRB favors "[enterprise bargaining](https://en.wikipedia.org/wiki/Enterprise_bargaining "Enterprise bargaining")" over "[sectoral collective bargaining](https://en.wikipedia.org/wiki/Sectoral_collective_bargaining "Sectoral collective bargaining")", which means US unions have traditionally been smaller with less [bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of 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".[\[269\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-269) 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.[\[270\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-270) During this time, managers may attempt to persuade or coerce employees using high-pressure tactics or [unfair labor practices](https://en.wikipedia.org/wiki/Unfair_labor_practices "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](https://en.wikipedia.org/wiki/NLRB "NLRB") to decide upon complaints of unfair labor practices had grown to 483 days in 2009 when its last annual report was written.[\[271\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-271) 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](https://en.wikipedia.org/wiki/Good_faith "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](https://en.wikipedia.org/wiki/JI_Case_Co_v._National_Labor_Relations_Board "JI Case Co v. National Labor Relations Board")* the [Supreme Court](https://en.wikipedia.org/wiki/United_States_Supreme_Court "United States Supreme Court") held an employer could not refuse to bargain on the basis that individual contracts were already in place.[\[272\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-272) Crucially, in *[Wallace Corp. v. NLRB](https://en.wikipedia.org/wiki/Wallace_Corp._v._NLRB "Wallace Corp. v. NLRB")* the Supreme Court also held that an employer only bargaining with a [company union](https://en.wikipedia.org/wiki/Company_union "Company union"), which it dominated, was an [unfair labor practice](https://en.wikipedia.org/wiki/Unfair_labor_practice "Unfair labor practice"). The employer should have recognized the truly [independent union](https://en.wikipedia.org/wiki/Independent_union "Independent union") affiliated to the [Congress of Industrial Organizations](https://en.wikipedia.org/wiki/Congress_of_Industrial_Organizations "Congress of Industrial Organizations") (CIO).[\[273\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-273) However, in *[NLRB v. Sands Manufacturing Co.](https://en.wikipedia.org/wiki/NLRB_v._Sands_Manufacturing_Co. "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.[\[274\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-274) Moreover, after 2007 President [George W. Bush](https://en.wikipedia.org/wiki/George_W._Bush "George W. Bush") and the [Senate](https://en.wikipedia.org/wiki/United_States_Senate "United States 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](https://en.wikipedia.org/wiki/New_Process_Steel,_L.P._v._NLRB "New Process Steel, L.P. v. NLRB")* that rules made by two remaining members were ineffective.[\[275\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-275) While appointments were made in 2013, agreement was not reached on one vacant seat. Increasingly it has been made politically unfeasible for the [NLRB](https://en.wikipedia.org/wiki/NLRB "NLRB") to act to promote collective bargaining.
[](https://en.wikipedia.org/wiki/File:Bernie_Sanders_%26_Hillary_Clinton_\(28205920271\).jpg)
The proposed [Employee Free Choice Act](https://en.wikipedia.org/wiki/Employee_Free_Choice_Act "Employee Free Choice Act"), sponsored repeatedly by [Hillary Clinton](https://en.wikipedia.org/wiki/Hillary_Clinton "Hillary Clinton"), [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "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.[\[276\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-276) It has been blocked by [Republicans](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") in [Congress](https://en.wikipedia.org/wiki/United_States_Congress "United States Congress").
Once collective agreements have been signed, they are legally enforceable, often through [arbitration](https://en.wikipedia.org/wiki/Arbitration_in_the_United_States "Arbitration in the United States"), and ultimately in federal court.[\[277\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-277) 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.[\[278\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-278) Usually, collective agreements include provisions for sending grievances of employees or disputes to binding [arbitration](https://en.wikipedia.org/wiki/Arbitration "Arbitration"), governed by the [Federal Arbitration Act](https://en.wikipedia.org/wiki/Federal_Arbitration_Act "Federal Arbitration Act") of 1925.[\[279\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-279) For example, in *[United Steelworkers v. Warrior & Gulf Navigation Co](https://en.wikipedia.org/wiki/United_Steelworkers_v._Warrior_%26_Gulf_Navigation_Co "United Steelworkers v. Warrior & Gulf Navigation Co")* a group of employees at a steel transportation works in [Chickasaw, Alabama](https://en.wikipedia.org/wiki/Chickasaw,_Alabama "Chickasaw, Alabama"), requested the corporation go to [arbitration](https://en.wikipedia.org/wiki/Arbitration "Arbitration") over layoffs and outsourcing of 19 staff on lower pay to do the same jobs. The [United Steelworkers](https://en.wikipedia.org/wiki/United_Steelworkers "United Steelworkers") had a collective agreement which contained a provision for arbitration. [Douglas J](https://en.wikipedia.org/wiki/Douglas_J "Douglas J") held that any doubts about whether the agreement allowed the issue to go to arbitration "should be resolved in favor of coverage."[\[280\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-280) An arbitrator's award is entitled to judicial enforcement so long as its essence is from the collective agreement.[\[281\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-281) Courts can decline to enforce an agreement based on [public policy](https://en.wikipedia.org/wiki/Public_policy "Public policy"), but this is different from "general considerations of supposed public interests".[\[282\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-282) But while federal policy had encouraged arbitration where unions and employers had made agreements, the [Supreme Court](https://en.wikipedia.org/wiki/United_States_Supreme_Court "United States Supreme Court") drew a clear distinction for arbitration over individual statutory rights. In *[Alexander v. Gardner-Denver Co.](https://en.wikipedia.org/wiki/Alexander_v._Gardner-Denver_Co. "Alexander v. Gardner-Denver Co.")* an employee claimed he was unjustly terminated, and suffered unlawful [race discrimination](https://en.wikipedia.org/wiki/Race_discrimination "Race discrimination") under the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "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.[\[283\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-283) But then, in 2009 in *[14 Penn Plaza LLC v. Pyett](https://en.wikipedia.org/wiki/14_Penn_Plaza_LLC_v._Pyett "14 Penn Plaza LLC v. Pyett")* [Thomas J](https://en.wikipedia.org/wiki/Thomas_J "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](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") and those agreed to by a union representative."[\[284\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-284) 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](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967"), and instead potentially be heard only by arbitrators their employer selected. [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J") and [Souter J](https://en.wikipedia.org/wiki/Souter_J "Souter J"), joined by [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J"), [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") dissented, pointing out that rights cannot be waived even by collective bargaining.[\[285\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-285) An [Arbitration Fairness Act of 2011](https://en.wikipedia.org/wiki/Arbitration_Fairness_Act_of_2011 "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".[\[286\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-286) It remains unclear why [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") §1, recognizing workers' "[inequality of bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "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](https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States "Supreme Court of the United States")'s interpretations, major proposed reforms have included the [Labor Reform Act of 1977](https://en.wikipedia.org/wiki/Labor_Reform_Act_of_1977 "Labor Reform Act of 1977"),[\[287\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-287) the [Workplace Democracy Act](https://en.wikipedia.org/wiki/Workplace_Democracy_Act "Workplace Democracy Act") of 1999, and the [Employee Free Choice Act](https://en.wikipedia.org/wiki/Employee_Free_Choice_Act "Employee Free Choice Act") of 2009.[\[288\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-288) All focus on speeding the election procedure for union recognition, speeding hearings for [unfair labor practices](https://en.wikipedia.org/wiki/Unfair_labor_practices "Unfair labor practices"), and improving remedies within the existing structure of labor relations.
### Right to organize
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=13 "Edit section: Right to organize")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_organize "Template:Slist organize") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_organize "Template talk:Slist organize") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_organize "Special:EditPage/Template:Slist organize")Right to organize sources |
|---|
| [ILO](https://en.wikipedia.org/wiki/ILO "ILO") [Freedom of Association Convention 1948](https://en.wikipedia.org/wiki/Freedom_of_Association_Convention_1948 "Freedom of Association Convention 1948") [c 87](http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312232:NO) |
| [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §158 |
| *[Lechmere, Inc. v. NLRB](https://en.wikipedia.org/wiki/Lechmere,_Inc._v._NLRB "Lechmere, Inc. v. NLRB")*, [502](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_502 "List of United States Supreme Court cases, volume 502") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [527](https://supreme.justia.com/cases/federal/us/502/527/) (1992) |
| *[Hague v. CIO](https://en.wikipedia.org/wiki/Hague_v._CIO "Hague v. CIO")*, [307](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_307 "List of United States Supreme Court cases, volume 307") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [496](https://supreme.justia.com/cases/federal/us/307/496/) (1939) |
| *[Hoffman Plastic Compounds, Inc. v. NLRB](https://en.wikipedia.org/wiki/Hoffman_Plastic_Compounds,_Inc._v._NLRB "Hoffman Plastic Compounds, Inc. v. NLRB")*, [535](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_535 "List of United States Supreme Court cases, volume 535") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [137](https://supreme.justia.com/cases/federal/us/535/137/) (2002) |
| *[NLRB v. J Weingarten, Inc](https://en.wikipedia.org/w/index.php?title=NLRB_v._J_Weingarten,_Inc&action=edit&redlink=1 "NLRB v. J Weingarten, Inc (page does not exist)")*, [420](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_420 "List of United States Supreme Court cases, volume 420") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [251](https://supreme.justia.com/cases/federal/us/420/251/) (1975) |
| *[Garner v. Teamsters Local 776](https://en.wikipedia.org/wiki/Garner_v._Teamsters_Local_776 "Garner v. Teamsters Local 776")* [346 US 485](http://www.worldlii.org/us/cases/federal/USSC/1953/113.html) (1953) |
| *[San Diego Building Unions v. Garmon](https://en.wikipedia.org/w/index.php?title=San_Diego_Building_Unions_v._Garmon&action=edit&redlink=1 "San Diego Building Unions v. Garmon (page does not exist)")* [359 US 236](http://www.worldlii.org/us/cases/federal/USSC/1959/66.html) |
| *[Machinists v. Wisconsin ERC](https://en.wikipedia.org/wiki/Machinists_v._Wisconsin_Employment_Relations_Commission "Machinists v. Wisconsin Employment Relations Commission")* [427 US 132](http://www.worldlii.org/us/cases/federal/USSC/1976/140.html) (1976) |
| *[Golden State Transit Corp v. Los Angeles](https://en.wikipedia.org/w/index.php?title=Golden_State_Transit_Corp_v._Los_Angeles&action=edit&redlink=1 "Golden State Transit Corp v. Los Angeles (page does not exist)")* [475 US 608](http://www.worldlii.org/us/cases/federal/USSC/1986/62.html) (1986) |
| *[Chamber of Commerce v. Brown](https://en.wikipedia.org/wiki/Chamber_of_Commerce_v._Brown "Chamber of Commerce v. Brown")* [522 US 60](http://www.worldlii.org/us/cases/federal/USSC/2008/22.html) (2008) |
| *[Building Trades Council v. ABC Inc.](https://en.wikipedia.org/w/index.php?title=Building_Trades_Council_v._ABC_Inc.&action=edit&redlink=1 "Building Trades Council v. ABC Inc. (page does not exist)")* [507 US 218](http://www.worldlii.org/us/cases/federal/USSC/1993/27.html) (1993) |
| See [US labor law](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [unions](https://en.wikipedia.org/wiki/Trade_unions_in_the_United_States "Trade unions in the United States") |
Main articles: [Freedom of association](https://en.wikipedia.org/wiki/Freedom_of_association "Freedom of association"), [Unfair labor practice](https://en.wikipedia.org/wiki/Unfair_labor_practice "Unfair labor practice"), and [Federal preemption](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption")
To ensure that employees are effectively able to bargain for a collective agreement, the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") created a group of rights in §158 to stall "[unfair labor practices](https://en.wikipedia.org/wiki/Unfair_labor_practices "Unfair labor practices")" by employers. These were considerably amended by the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947, where the [US Congress](https://en.wikipedia.org/wiki/US_Congress "US Congress") over the veto of President [Harry S. Truman](https://en.wikipedia.org/wiki/Harry_S._Truman "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](https://en.wikipedia.org/wiki/Litigation "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](https://en.wikipedia.org/wiki/Hague_v._Committee_for_Industrial_Organization "Hague v. Committee for Industrial Organization")* held the [New Jersey](https://en.wikipedia.org/wiki/New_Jersey "New Jersey") mayor violated the [First Amendment](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") when trying to shut down [CIO](https://en.wikipedia.org/wiki/Congress_of_Industrial_Organizations "Congress of Industrial Organizations") meetings because he thought they were "communist".[\[289\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-289) Among many rights and duties relating to unfair labor practices, five main groups of case have emerged.
[](https://en.wikipedia.org/wiki/File:Weltec_stopwork_meeting,_19_March_2009_\(3367324864\).jpg)
[Unfair labor practices](https://en.wikipedia.org/wiki/Unfair_labor_practices "Unfair labor practices"), made unlawful by the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §153, prohibit employers discriminating against people who organize a union and [vote](https://en.wikipedia.org/wiki/Vote "Vote") to get a [voice at work](https://en.wikipedia.org/wiki/Voice_at_work "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.[\[290\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-290) For example, in one of the first cases, *[NLRB v. Jones & Laughlin Steel Corp](https://en.wikipedia.org/wiki/NLRB_v._Jones_%26_Laughlin_Steel_Corp "NLRB v. Jones & Laughlin Steel Corp")*, the US Supreme Court held that the [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "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](https://en.wikipedia.org/wiki/Aliquippa "Aliquippa"), [Pennsylvania](https://en.wikipedia.org/wiki/Pennsylvania "Pennsylvania").[\[291\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-291) It is also unlawful for employers to monitor employees who are organizing, for instance by parking outside a union meeting,[\[292\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-292) or videotaping employees giving out union fliers.[\[293\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-293) This can include giving people incentives or bribes to not join a union. So in *[NLRB v. Erie Resistor Corp](https://en.wikipedia.org/w/index.php?title=NLRB_v._Erie_Resistor_Corp&action=edit&redlink=1 "NLRB v. Erie Resistor Corp (page does not exist)")* the Supreme Court held it was unlawful to give 20 years extra seniority to employees who crossed a [picket line](https://en.wikipedia.org/wiki/Picket_line "Picket line") while the union had called a strike.[\[294\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-294) Second, and by contrast, the Supreme Court had decided in *[Textile Workers Union of America v. Darlington Manufacturing Co Inc](https://en.wikipedia.org/wiki/Textile_Workers_Union_of_America_v._Darlington_Manufacturing_Co_Inc "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.[\[295\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-295) 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](https://en.wikipedia.org/wiki/Duty_of_fair_representation "Duty of fair representation").[\[296\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-296) In *[NLRB v. J. Weingarten, Inc.](https://en.wikipedia.org/wiki/NLRB_v._J._Weingarten,_Inc. "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.[\[297\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-297) Although the [NLRB](https://en.wikipedia.org/wiki/NLRB "NLRB") has changed its position with different political appointees, the [DC Circuit](https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_District_of_Columbia_Circuit "United States Court of Appeals for the District of Columbia Circuit") has held the same right goes that non-union workers were equally entitled to be accompanied.[\[298\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-298) 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](https://en.wikipedia.org/wiki/Detroit_Edison_Co_v._NLRB "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.[\[299\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-299) Also, in *[Lechmere, Inc. v. National Labor Relations Board](https://en.wikipedia.org/wiki/Lechmere,_Inc._v._National_Labor_Relations_Board "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.[\[300\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-300) 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](https://en.wikipedia.org/wiki/Pattern_Makers_League_of_North_America_v._NLRB "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.[\[301\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-301)
[](https://en.wikipedia.org/wiki/File:United_States_union_membership_and_inequality,_top_1%25_income_share,_1910_to_2010.png)
As [union membership](https://en.wikipedia.org/wiki/Union_membership_rate "Union membership rate") declined [income inequality](https://en.wikipedia.org/wiki/Income_inequality "Income inequality") rose, because labor unions have been the main way to participate at work.[\[302\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-302) The US does not yet require [employee representatives](https://en.wikipedia.org/wiki/Codetermination "Codetermination") on [boards of directors](https://en.wikipedia.org/wiki/Boards_of_directors "Boards of directors"), or elected [work councils](https://en.wikipedia.org/wiki/Work_councils "Work councils").[\[303\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-303)
The [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") policy of [preemption](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption"), developed from 1953,[\[304\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-304) means that states cannot legislate where the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") does operate. The NLRA 1935 contains no clause requiring [preemption](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption") as is found, for example, in the [Fair Labor Standards Act 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_1938 "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.[\[117\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto-117) The first major case, *[Garner v. Teamsters Local 776](https://en.wikipedia.org/wiki/Garner_v._Teamsters_Local_776 "Garner v. Teamsters Local 776")*, decided a [Pennsylvania](https://en.wikipedia.org/wiki/Pennsylvania "Pennsylvania") statute was preempted from providing superior remedies or processing claims quicker than the [NLRB](https://en.wikipedia.org/wiki/NLRB "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".[\[305\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-305) In *[San Diego Building Trades Council v. Garmon](https://en.wikipedia.org/wiki/San_Diego_Building_Trades_Council_v._Garmon "San Diego Building Trades Council v. Garmon")*, the [Supreme Court](https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States "Supreme Court of the United States") held that the [California Supreme Court](https://en.wikipedia.org/wiki/California_Supreme_Court "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".[\[306\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-306) This was true, even though the NLRB had not given any ruling on the dispute because its monetary value was too small.[\[307\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-307) This reasoning was extended in *[Lodge 76, International Association of Machinists v Wisconsin Employment Relations Commission](https://en.wikipedia.org/wiki/Lodge_76,_International_Association_of_Machinists_v_Wisconsin_Employment_Relations_Commission "Lodge 76, International Association of Machinists v Wisconsin Employment Relations Commission")*, where a [Wisconsin](https://en.wikipedia.org/wiki/Wisconsin "Wisconsin") Employment Relations Commission sought to hold a union liable for an unfair labor practice, by refusing to work overtime. [Brennan J](https://en.wikipedia.org/wiki/Brennan_J "Brennan J") held that such matters were to be left to "be controlled by the free play of economic forces".[\[308\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-308) 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](https://en.wikipedia.org/wiki/Golden_State_Transit_Corp._v._City_of_Los_Angeles "Golden State Transit Corp. v. City of Los Angeles")* a majority of the [Supreme Court](https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States "Supreme Court of the United States") held that Los Angeles was not entitled to refuse to renew a taxi company's franchise license because the [Teamsters Union](https://en.wikipedia.org/wiki/Teamsters_Union "Teamsters Union") had pressured it not to until a dispute was resolved.[\[309\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-309) Most recently in *[Chamber of Commerce v. Brown](https://en.wikipedia.org/wiki/Chamber_of_Commerce_v._Brown "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](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") and [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J") dissented because the law was simply neutral to the bargaining process.[\[310\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-310) State governments may, however, use their funds to procure corporations to do work that are union or labor friendly.[\[311\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-311)
### Collective action
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=14 "Edit section: Collective action")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_strike "Template:Slist strike") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_strike "Template talk:Slist strike") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_strike "Special:EditPage/Template:Slist strike")Collective action sources |
|---|
| *[Vegelahn v Guntner](https://en.wikipedia.org/wiki/Vegelahn_v_Guntner "Vegelahn v Guntner")*, 167 Mass 92 (1896) |
| [Clayton Act of 1914](https://en.wikipedia.org/wiki/Clayton_Act_of_1914 "Clayton Act of 1914") 15 USC §17 |
| *[Truax v Corrigan](https://en.wikipedia.org/w/index.php?title=Truax_v_Corrigan&action=edit&redlink=1 "Truax v Corrigan (page does not exist)")* 257 US 312 (1921) |
| [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §§157-158 |
| *[New Negro Alliance v Sanitary Grocery Co](https://en.wikipedia.org/wiki/New_Negro_Alliance_v_Sanitary_Grocery_Co "New Negro Alliance v Sanitary Grocery Co")* 303 US 552 (1938) |
| *[NLRB v Mackay Radio & Telegraph Co](https://en.wikipedia.org/wiki/NLRB_v_Mackay_Radio_%26_Telegraph_Co "NLRB v Mackay Radio & Telegraph Co")* 304 US 333 (1938) |
| *[NLRB v Fansteel Metallurgical Corp](https://en.wikipedia.org/wiki/NLRB_v_Fansteel_Metallurgical_Corp "NLRB v Fansteel Metallurgical Corp")* 306 US 240 (1939) |
| *[NLRB v Columbian Enameling & Stamping Co](https://en.wikipedia.org/wiki/NLRB_v_Columbian_Enameling_%26_Stamping_Co "NLRB v Columbian Enameling & Stamping Co")* 306 US 292 (1939) |
| *[Thornhill v Alabama](https://en.wikipedia.org/wiki/Thornhill_v_Alabama "Thornhill v Alabama")* 310 US 88 (1940) |
| *[US v Congress of Industrial Organizations](https://en.wikipedia.org/wiki/US_v_Congress_of_Industrial_Organizations "US v Congress of Industrial Organizations")* 335 US 106 (1948) |
| *[NLRB v Electrical Workers](https://en.wikipedia.org/w/index.php?title=NLRB_v_Electrical_Workers&action=edit&redlink=1 "NLRB v Electrical Workers (page does not exist)")* 346 US 464 (1953) |
| *[NLRB v Truck Drivers Local 449](https://en.wikipedia.org/wiki/NLRB_v_Truck_Drivers_Local_449 "NLRB v Truck Drivers Local 449")* 353 US 87 (1957) |
| *[Eastex, Inc v NLRB](https://en.wikipedia.org/w/index.php?title=Eastex,_Inc_v_NLRB&action=edit&redlink=1 "Eastex, Inc v NLRB (page does not exist)")* 437 US 556 (1978) |
| *[NLRB v City Disposal Systems, Inc](https://en.wikipedia.org/w/index.php?title=NLRB_v_City_Disposal_Systems,_Inc&action=edit&redlink=1 "NLRB v City Disposal Systems, Inc (page does not exist)")* 465 US 822 (1984) |
| *[Trans World Airlines, Inc v Flight Attendants](https://en.wikipedia.org/w/index.php?title=Trans_World_Airlines,_Inc_v_Flight_Attendants&action=edit&redlink=1 "Trans World Airlines, Inc v Flight Attendants (page does not exist)")* 489 US 426 (1989) |
| See [US labor law](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [unions](https://en.wikipedia.org/wiki/Trade_unions_in_the_United_States "Trade unions in the United States") |
Main articles: [Strike action](https://en.wikipedia.org/wiki/Strike_action "Strike action") and [Collective action](https://en.wikipedia.org/wiki/Collective_action "Collective action")
[](https://en.wikipedia.org/wiki/File:-RedForEd_\(41008219574\).jpg)
All workers, like the [Arizona teachers in 2019](https://en.wikipedia.org/wiki/2018%E2%80%9319_education_workers%27_strikes_in_the_United_States "2018–19 education workers' strikes in the United States"), are guaranteed the right to take collective action, including strikes, by [international law](https://en.wikipedia.org/wiki/International_law "International law"), federal law and most state laws.[\[312\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-312)
The right of labor to take [collective action](https://en.wikipedia.org/wiki/Collective_action "Collective action"), including the [right to strike](https://en.wikipedia.org/wiki/Right_to_strike "Right to strike"), has been fundamental to [common law](https://en.wikipedia.org/wiki/Commonwealth_v._Hunt "Commonwealth v. Hunt"),[\[313\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-313) federal law,[\[314\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-314) and [international law](https://en.wikipedia.org/wiki/International_labour_law "International labour law") for over a century.[\[315\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-315) As New York teacher unions argued in the 1960s, "If you can't call a strike you don't have real [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"), you have 'collective [begging](https://en.wikipedia.org/wiki/Begging "Begging").'"[\[316\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-316) During the 19th century, many courts upheld the right to strike, but others issued injunctions to frustrate strikes,[\[317\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-317) and when the [Sherman Antitrust Act](https://en.wikipedia.org/wiki/Sherman_Antitrust_Act "Sherman Antitrust Act") of 1890 was passed to prohibit business combinations in [restraint of trade](https://en.wikipedia.org/wiki/Restraint_of_trade "Restraint of trade"), it was first used against labor unions. This resulted in [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs"), [American Railway Union](https://en.wikipedia.org/wiki/American_Railway_Union "American Railway Union") leader and future [Socialist](https://en.wikipedia.org/wiki/Socialist "Socialist") Presidential candidate, being imprisoned for taking part in the [Pullman Strike](https://en.wikipedia.org/wiki/Pullman_Strike "Pullman Strike").[\[318\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-318) The Supreme Court persisted in *[Loewe v. Lawlor](https://en.wikipedia.org/wiki/Loewe_v._Lawlor "Loewe v. Lawlor")* in imposing damages for strikes under [antitrust law](https://en.wikipedia.org/wiki/Antitrust_law "Antitrust law"),[\[228\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto3-228) until Congress passed the [Clayton Act of 1914](https://en.wikipedia.org/wiki/Clayton_Act_of_1914 "Clayton Act of 1914"). Seen as "the [Magna Carta](https://en.wikipedia.org/wiki/Magna_Carta "Magna Carta") of America's workers",[\[319\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-319) this proclaimed that all collective action by workers was outside antitrust law under the [Commerce Clause](https://en.wikipedia.org/wiki/Commerce_Clause "Commerce Clause"), because "[labor is not a commodity](https://en.wikipedia.org/wiki/Labor_is_not_a_commodity "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."[\[320\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-320) The same principles entered the founding documents of the [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") in 1919.[\[321\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-321) Finally at the end of the *[Lochner era](https://en.wikipedia.org/wiki/Lochner_era "Lochner era")*[\[322\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-322) the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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".[\[323\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-323)
[](https://en.wikipedia.org/wiki/File:Cesar_Chavez_Day.jpg)
[Cesar Chavez](https://en.wikipedia.org/wiki/Cesar_Chavez "Cesar Chavez") organized the [United Farm Workers](https://en.wikipedia.org/wiki/United_Farm_Workers "United Farm Workers") and campaigned for [social justice](https://en.wikipedia.org/wiki/Social_justice "Social justice") under the slogan "[Yes we can](https://en.wikipedia.org/wiki/Yes_We_Can_\(slogan\) "Yes We Can (slogan)")" and "[Sí, se puede](https://en.wikipedia.org/wiki/S%C3%AD,_se_puede "Sí, se puede")".[\[324\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-324)
Although federal law guarantees the [right to strike](https://en.wikipedia.org/wiki/Right_to_strike "Right to strike"), American [labor unions](https://en.wikipedia.org/wiki/Labor_unions "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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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,[\[325\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-325) police and firefighters, without adequate alternatives to set fair wages.[\[326\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-326) Workers have the right to take [protected concerted activity](https://en.wikipedia.org/wiki/Protected_concerted_activity "Protected concerted activity").[\[327\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-327) But *[NLRB v. Insurance Agents' International Union](https://en.wikipedia.org/w/index.php?title=NLRB_v._Insurance_Agents%27_International_Union&action=edit&redlink=1 "NLRB v. Insurance Agents' International Union (page does not exist)")* 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.[\[328\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-328) 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.[\[329\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-329) This prohibition on [solidarity action](https://en.wikipedia.org/wiki/Solidarity_action "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.[\[330\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-330) However the same standards are not applied to employers: in *[NLRB v. Truck Drivers Local 449](https://en.wikipedia.org/wiki/NLRB_v._Truck_Drivers_Local_449 "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.[\[331\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-331) This said, employees may peacefully persuade customers to boycott any employer or related employer, for instance by giving out handbills.[\[332\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-332) Third, a union is bound to act in [good faith](https://en.wikipedia.org/wiki/Good_faith "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.[\[333\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-333) 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](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board")'s attempts to mediate was held to be insubstantial.[\[334\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-334)
2016 Presidential candidate [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") joined the [Communication Workers Union](https://en.wikipedia.org/wiki/Communication_Workers_of_America "Communication Workers of America") strike against [Verizon](https://en.wikipedia.org/wiki/Verizon "Verizon"). American workers face serious obstacles to strike action, falling below [international labor law](https://en.wikipedia.org/wiki/International_labor_law "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,[\[335\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-335) but the Supreme Court held in *[NLRB v. Mackay Radio & Telegraph Co.](https://en.wikipedia.org/wiki/NLRB_v._Mackay_Radio_%26_Telegraph_Co. "NLRB v. Mackay Radio & Telegraph Co.")* that employees on strike could be replaced by [strikebreakers](https://en.wikipedia.org/wiki/Strikebreakers "Strikebreakers"), and it was not an unfair labor practice for the employer to refuse to discharge the strikebreakers after the dispute was over.[\[336\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-336) This decision is widely condemned as a violation of international law.[\[337\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-337) However the Supreme Court further held in *[NLRB v. Fansteel Metallurgical Corp.](https://en.wikipedia.org/wiki/NLRB_v._Fansteel_Metallurgical_Corp. "NLRB v. Fansteel Metallurgical Corp.")* that the Labor Board cannot order an employer to rehire striking workers,[\[338\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-338) and has even held that employers could induce younger employees more senior jobs as a reward for breaking a strike.[\[339\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-339) Fifth, the Supreme Court has not consistently upheld the right to free speech and peaceful picketing. In *[NLRB v. Electrical Workers](https://en.wikipedia.org/w/index.php?title=NLRB_v._Electrical_Workers&action=edit&redlink=1 "NLRB v. Electrical Workers (page does not exist)")* 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.[\[340\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-340) On the other hand, the Supreme Court has held there was a right to picket shops that refused to hire African-American workers.[\[341\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-341) The Supreme Court declared an Alabama law, which fined and imprisoned a picketer, to be unconstitutional.[\[342\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-342) The Supreme Court held unions could write newspaper publications to advocate for pro-labor political candidates.[\[343\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-343) It also held a union could distribute political leaflets in non-work areas of the employer's property.[\[344\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-344) 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.[\[345\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-345)
### Right to vote at work
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=15 "Edit section: Right to vote at work")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_participation "Template:Slist participation") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_participation "Template talk:Slist participation") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_participation "Special:EditPage/Template:Slist participation")Workplace votes sources |
|---|
| [Delaware General Corporation Law](https://en.wikipedia.org/wiki/Delaware_General_Corporation_Law "Delaware General Corporation Law") §141(a) |
| [General Laws of Massachusetts](https://en.wikipedia.org/wiki/General_Laws_of_Massachusetts "General Laws of Massachusetts") Part I, Title XII, ch 156, §23 |
| [Dodd-Frank Act of 2010](https://en.wikipedia.org/wiki/Dodd-Frank_Act_of_2010 "Dodd-Frank Act of 2010") §971 |
| [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §8(a)(2) |
| *[NLRB v Newport News Shipbuilding Co](https://en.wikipedia.org/w/index.php?title=NLRB_v_Newport_News_Shipbuilding_Co&action=edit&redlink=1 "NLRB v Newport News Shipbuilding Co (page does not exist)")* 308 US 241 (1939) |
| [Control Council Law No 22](https://en.wikipedia.org/wiki/Control_Council_Law_No_22 "Control Council Law No 22") (1946) |
| *[Electromation Inc](https://en.wikipedia.org/wiki/Electromation_Inc "Electromation Inc")* 309 NLRB No 163 (1992) |
| *[EI du Pont de Nemours](https://en.wikipedia.org/wiki/EI_du_Pont_de_Nemours "EI du Pont de Nemours")* 311 NLRB No 88 (1993) |
| *[Dunlop Report](https://en.wikipedia.org/wiki/Dunlop_Report "Dunlop Report")* (1994) |
| [Reward Work Act of 2018](https://en.wikipedia.org/wiki/Reward_Work_Act_of_2018 "Reward Work Act of 2018") |
| See [US labor law](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [codetermination](https://en.wikipedia.org/wiki/Codetermination "Codetermination") |
See also: [Economic democracy](https://en.wikipedia.org/wiki/Economic_democracy "Economic democracy"), [US corporate law](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"), [Codetermination](https://en.wikipedia.org/wiki/Codetermination "Codetermination"), and [Work council](https://en.wikipedia.org/wiki/Work_council "Work council")
[](https://en.wikipedia.org/wiki/File:Bernie_Sanders_and_Elizabeth_Warren.jpg)
[Elizabeth Warren](https://en.wikipedia.org/wiki/Elizabeth_Warren "Elizabeth Warren") and [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") co-sponsored the [Reward Work Act](https://en.wikipedia.org/wiki/Reward_Work_Act "Reward Work Act"), introduced by [Tammy Baldwin](https://en.wikipedia.org/wiki/Tammy_Baldwin "Tammy Baldwin"), for at least one third of listed company boards to be elected by employees,[\[346\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-346) and more for large corporations.[\[347\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-347) In 1980 the [United Auto Workers](https://en.wikipedia.org/wiki/United_Auto_Workers "United Auto Workers") [collectively agreed](https://en.wikipedia.org/wiki/Collectively_agreed "Collectively agreed") [Chrysler Corp](https://en.wikipedia.org/wiki/Chrysler_Corp "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](https://en.wikipedia.org/wiki/Other_People%27s_Money_and_How_the_Bankers_Use_It "Other People's Money and How the Bankers Use It")".[\[348\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-348)
While [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining") was stalled by [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") [preemption](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption") policy, a dysfunctional [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board"), and falling [union membership rate](https://en.wikipedia.org/wiki/Union_membership_rate "Union membership rate") since the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947, employees have demanded direct voting rights at work: for corporate [boards of directors](https://en.wikipedia.org/wiki/Boards_of_directors "Boards of directors"), and in [work councils](https://en.wikipedia.org/wiki/Work_councils "Work councils") that bind management.[\[349\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-349) This has become an important complement to both strengthening [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"), and securing the votes in labor's capital on [pension](https://en.wikipedia.org/wiki/Pension "Pension") boards, which buy and vote on [corporate stocks](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"), and control employers.[\[350\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-350) Labor law has increasingly converged with [corporate law](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"),[\[351\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-351) and in 2018 the first federal law, the [Reward Work Act](https://en.wikipedia.org/wiki/Reward_Work_Act "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.[\[352\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-352) In 1919, under the Republican governor [Calvin Coolidge](https://en.wikipedia.org/wiki/Calvin_Coolidge "Calvin Coolidge"), [Massachusetts](https://en.wikipedia.org/wiki/Massachusetts "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.[\[353\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-353) Also in 1919 both [Procter & Gamble](https://en.wikipedia.org/wiki/Procter_%26_Gamble "Procter & Gamble") and the General Ice Delivery Company of Detroit had employee representation on boards.[\[354\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-354) Board representation for employees spread through the 1920s, many without requiring any [employee stock ownership plan](https://en.wikipedia.org/wiki/Employee_stock_ownership_plan "Employee stock ownership plan").[\[355\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-355) 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,[\[356\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-356) and proponents of codetermination as "[industrial democracy](https://en.wikipedia.org/wiki/Industrial_democracy "Industrial democracy")".[\[357\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-357) Today, these methods are seen as complements, not alternatives. A majority of countries in the [Organisation for Economic Co-operation and Development](https://en.wikipedia.org/wiki/Organisation_for_Economic_Co-operation_and_Development "Organisation for Economic Co-operation and Development") have laws requiring direct participation rights.[\[358\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-358) In 1994, the *[Dunlop Commission on the Future of Worker-Management Relations: Final Report](https://en.wikipedia.org/wiki/Dunlop_Commission_on_the_Future_of_Worker-Management_Relations:_Final_Report "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.[\[359\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-359) Congressional division prevented federal reform, but labor unions and state legislatures have experimented.
> ... while there are many contributing causes to unrest ... one cause ... is fundamental. That is the necessary conflict—the contrast between our political [liberty](https://en.wikipedia.org/wiki/Liberty "Liberty") and our industrial [absolutism](https://en.wikipedia.org/wiki/Autocracy "Autocracy"). 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](https://en.wikipedia.org/wiki/Vote "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](https://en.wikipedia.org/wiki/Autocracy "Autocracy"). ... The [social justice](https://en.wikipedia.org/wiki/Social_justice "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](https://en.wikipedia.org/wiki/Industrial_democracy "Industrial democracy") as well as political democracy.
—[Louis Brandeis](https://en.wikipedia.org/wiki/Louis_Brandeis "Louis Brandeis"), Testimony to [Commission on Industrial Relations](https://en.wikipedia.org/wiki/Commission_on_Industrial_Relations "Commission on Industrial Relations") (1916) vol 8, 7659–7660
[Corporations](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") are chartered under state law, the larger mostly in [Delaware](https://en.wikipedia.org/wiki/Delaware_General_Corporation_Law "Delaware General Corporation Law"), but leave investors free to organize voting rights and board representation as they choose.[\[360\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-360) Because of [unequal bargaining power](https://en.wikipedia.org/wiki/Unequal_bargaining_power "Unequal bargaining power"), but also because of historic caution among American labor unions about taking on management,[\[361\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-361) 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](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements"), as it historically occurred in Germany or other countries, or through employees demanding further representation through [employee stock ownership plans](https://en.wikipedia.org/wiki/Employee_stock_ownership_plans "Employee stock ownership plans"), but they aimed for voice independent from capital risks that could not be [diversified](https://en.wikipedia.org/wiki/Diversification_\(finance\) "Diversification (finance)"). By 1980, workers had attempted to secure board representation at corporations including [United Airlines](https://en.wikipedia.org/wiki/United_Airlines "United Airlines"), the [General Tire and Rubber Company](https://en.wikipedia.org/wiki/General_Tire_and_Rubber_Company "General Tire and Rubber Company"), and the [Providence and Worcester Railroad](https://en.wikipedia.org/wiki/Providence_and_Worcester_Railroad "Providence and Worcester Railroad").[\[362\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-362) However, in 1974 the [Securities and Exchange Commission](https://en.wikipedia.org/wiki/Securities_and_Exchange_Commission "Securities and Exchange Commission"), run by appointees of [Richard Nixon](https://en.wikipedia.org/wiki/Richard_Nixon "Richard Nixon"), had rejected that employees who held shares in [AT\&T](https://en.wikipedia.org/wiki/AT%26T "AT&T") were entitled to make shareholder proposals to include employee representatives on the board of directors.[\[363\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-363) This position was eventually reversed expressly by the [Dodd–Frank Act](https://en.wikipedia.org/wiki/Dodd%E2%80%93Frank_Act "Dodd–Frank Act") of 2010 §971, which subject to rules by the [Securities and Exchange Commission](https://en.wikipedia.org/wiki/Securities_and_Exchange_Commission "Securities and Exchange Commission") entitles shareholders to put forward nominations for the board.[\[364\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-364) Instead of pursuing board seats through shareholder resolutions the [United Auto Workers](https://en.wikipedia.org/wiki/United_Auto_Workers "United Auto Workers"), for example, successfully sought board representation by collective agreement at [Chrysler](https://en.wikipedia.org/wiki/Chrysler "Chrysler") in 1980.[\[365\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-365) The [United Steel Workers](https://en.wikipedia.org/wiki/United_Steel_Workers "United Steel Workers") secured board representation in five corporations in 1993.[\[366\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-366) Some representation plans were linked to [employee stock ownership plans](https://en.wikipedia.org/wiki/Employee_stock_ownership_plans "Employee stock ownership plans"), and were open to abuse. At the energy company, [Enron](https://en.wikipedia.org/wiki/Enron "Enron"), workers were encouraged by management to invest an average of 62.5 per cent of their retirement savings from [401(k)](https://en.wikipedia.org/wiki/401\(k\) "401(k)") plans in Enron stock against basic principles of prudent, [diversified investment](https://en.wikipedia.org/wiki/Diversification_\(finance\) "Diversification (finance)"), and had no board representation. When Enron collapsed in 2003, employees lost a majority of their pension savings.[\[367\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-367) 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](https://en.wikipedia.org/wiki/Worker_director "Worker director"), though often linked to corporate stock.[\[368\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-368)
[](https://en.wikipedia.org/wiki/File:Chattanooga_Phoenix_Solar_AG.jpg)
Powered by a [solar farm](https://en.wikipedia.org/wiki/Solar_farm "Solar farm"),[\[369\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-369) the [Volkswagen](https://en.wikipedia.org/wiki/Volkswagen_Chattanooga_Assembly_Plant "Volkswagen Chattanooga Assembly Plant") plant at [Chattanooga, Tennessee](https://en.wikipedia.org/wiki/Chattanooga,_Tennessee "Chattanooga, Tennessee"), has debated introducing [work councils](https://en.wikipedia.org/wiki/Work_councils "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](https://en.wikipedia.org/wiki/Work_councils "Work councils"). After the [National War Labor Board](https://en.wikipedia.org/wiki/National_War_Labor_Board_\(1918%E2%80%931919\) "National War Labor Board (1918–1919)") was established by the [Woodrow Wilson](https://en.wikipedia.org/wiki/Woodrow_Wilson "Woodrow Wilson") administration, firms established work councils with some rights throughout the 1920s.[\[370\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-370) 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,[\[371\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-371) which from the workforce perspective defeated the object. As the US presidency changed to the [Republican party](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") 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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §158(a)(2) ensured it was an [unfair labor practice](https://en.wikipedia.org/wiki/Unfair_labor_practice "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".[\[372\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-372) This was designed to enable free work councils, genuinely independent from management, but not dominated work councils or so called "[company unions](https://en.wikipedia.org/wiki/Company_union "Company union")".[\[373\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-373) For example, a [work council](https://en.wikipedia.org/wiki/Work_council "Work council") law was passed by the US government in [Allied-occupied Germany](https://en.wikipedia.org/wiki/Allied-occupied_Germany "Allied-occupied Germany") called [Control Council Law, No 22](https://en.wikipedia.org/wiki/Control_Council_Law,_No_22 "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](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements"), regulating health and safety, rules for engagements, dismissals and grievances, proposals for improving work methods, and organizing social and welfare facilities.[\[374\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-374) 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](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption") by the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935").[\[375\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-375) In 1992, the [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board") in its *[Electromation, Inc](https://en.wikipedia.org/wiki/Electromation,_Inc "Electromation, Inc")*,[\[376\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-376) and *[EI du Pont de Nemours](https://en.wikipedia.org/wiki/EI_du_Pont_de_Nemours "EI du Pont de Nemours")*,[\[377\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-377) decisions confirmed that while management dominated councils were unlawful, genuine and independent work councils would not be. The [Dunlop Report](https://en.wikipedia.org/wiki/Dunlop_Report "Dunlop Report") in 1994 produced an inconclusive discussion that favored experimentation with work councils.[\[378\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-378) A [Republican](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") Congress did propose a [Teamwork for Employees and Managers Act of 1995](https://en.wikipedia.org/wiki/Teamwork_for_Employees_and_Managers_Act_of_1995 "Teamwork for Employees and Managers Act of 1995") to repeal §158(a)(2), but this was vetoed by President [Bill Clinton](https://en.wikipedia.org/wiki/Bill_Clinton "Bill Clinton") as it would have enabled management dominated unions and councils. In 2014, workers at the [Volkswagen Chattanooga Assembly Plant](https://en.wikipedia.org/wiki/Volkswagen_Chattanooga_Assembly_Plant "Volkswagen Chattanooga Assembly Plant"), in [Chattanooga, Tennessee](https://en.wikipedia.org/wiki/Chattanooga,_Tennessee "Chattanooga, Tennessee"), sought to establish a [work council](https://en.wikipedia.org/wiki/Work_council "Work council"). This was initially supported by management, but its stance changed in 2016, after the [United Auto Workers](https://en.wikipedia.org/wiki/United_Auto_Workers "United Auto Workers") succeeded in winning a ballot for traditional representation in an exclusive [bargaining unit](https://en.wikipedia.org/wiki/Bargaining_unit "Bargaining unit").[\[379\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-379) As it stands, employees have no widespread right to vote in American workplaces, which has increased the gap between [political democracy](https://en.wikipedia.org/wiki/Political_democracy "Political democracy") and traditional labor law goals of [workplace](https://en.wikipedia.org/wiki/Workplace_democracy "Workplace democracy") and [economic democracy](https://en.wikipedia.org/wiki/Economic_democracy "Economic democracy").
## Equality and discrimination
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=16 "Edit section: Equality and discrimination")\]
See also: [US employment discrimination law](https://en.wikipedia.org/wiki/US_employment_discrimination_law "US employment discrimination law"), [European labour law](https://en.wikipedia.org/wiki/European_labour_law "European labour law"), and [UK employment discrimination law](https://en.wikipedia.org/wiki/UK_employment_discrimination_law "UK employment discrimination law")
[](https://en.wikipedia.org/wiki/File:Martin_Luther_King_Jr._addresses_a_crowd_from_the_steps_of_the_Lincoln_Memorial,_USMC-09611.jpg)
The world's first general equality law, the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), followed the [March on Washington for Jobs and Freedom](https://en.wikipedia.org/wiki/March_on_Washington_for_Jobs_and_Freedom "March on Washington for Jobs and Freedom") in 1963. The head of the movement, [Martin Luther King Jr.](https://en.wikipedia.org/wiki/Martin_Luther_King_Jr. "Martin Luther King Jr.") told America, "[I have a dream](https://en.wikipedia.org/wiki/I_have_a_dream "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](https://en.wikipedia.org/wiki/US_Declaration_of_Independence "US Declaration of Independence") in 1776 proclaimed that "all men are created equal",[\[380\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-380) the [Constitution](https://en.wikipedia.org/wiki/US_constitution "US constitution") was progressively amended, and legislation was written, to spread equal rights to all people. While the [right to vote](https://en.wikipedia.org/wiki/Right_to_vote "Right to vote") was needed for true political participation, the "[right to work](https://en.wikipedia.org/wiki/Right_to_work "Right to work")" and "free choice of employment" came to be seen as necessary for "[Life, Liberty and the pursuit of Happiness](https://en.wikipedia.org/wiki/Life,_Liberty_and_the_pursuit_of_Happiness "Life, Liberty and the pursuit of Happiness")".[\[381\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-381) After state laws experimented, President [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt")'s [Executive Order 8802](https://en.wikipedia.org/wiki/Executive_Order_8802 "Executive Order 8802") in 1941 set up the [Fair Employment Practice Committee](https://en.wikipedia.org/wiki/Fair_Employment_Practice_Committee "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](https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963 "Equal Pay Act of 1963"), to limit discrimination by employers between men and women, and the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), to stop discrimination based on "[race](https://en.wikipedia.org/wiki/Racism_in_the_United_States "Racism in the United States"), color, [religion](https://en.wikipedia.org/wiki/Religious_discrimination_in_the_United_States "Religious discrimination in the United States"), sex, or national origin."[\[382\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-382) In the following years, more "protected characteristics" were added by state and federal acts. The [Age Discrimination in Employment Act of 1967](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967") protects people over age 40. The [Americans with Disabilities Act of 1990](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990") requires "reasonable accommodation" to [include](https://en.wikipedia.org/wiki/Social_inclusion "Social inclusion") people with disabilities in the workforce. Twenty two state Acts protect people based on [sexual orientation](https://en.wikipedia.org/wiki/LGBT_employment_discrimination_in_the_United_States "LGBT employment discrimination in the United States") in public and private employment, but [proposed federal laws](https://en.wikipedia.org/wiki/Equality_Act_of_2015 "Equality Act of 2015") have been blocked by [Republican](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") opposition. There can be no detriment to [union members](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935"), or people who have [served in the military](https://en.wikipedia.org/wiki/Uniformed_Services_Employment_and_Reemployment_Rights_Act "Uniformed Services Employment and Reemployment Rights Act"). 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](https://en.wikipedia.org/wiki/Disparate_treatment "Disparate treatment") by employing entities, no [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") of formally neutral measures, and enables employers to voluntarily take [affirmative action](https://en.wikipedia.org/wiki/Affirmative_action "Affirmative action") favoring under-represented people in their workforce.[\[383\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-383) The law has not, however, succeeded in eliminating the disparities in income by [race](https://en.wikipedia.org/wiki/Racial_inequality_in_the_United_States "Racial inequality in the United States"), health, age or socio-economic background.
### Constitutional rights
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=17 "Edit section: Constitutional rights")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_constitutional_equality "Template:Slist constitutional equality") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_constitutional_equality "Template talk:Slist constitutional equality") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_constitutional_equality "Special:EditPage/Template:Slist constitutional equality")Equality sources |
|---|
| [Fifth](https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution "Fifth Amendment to the United States Constitution") and [Fourteenth Amendment to the United States Constitution](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") |
| [Civil Rights Act of 1866](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866 "Civil Rights Act of 1866"), 42 USC §1981(a) |
| *[Steele v. Louisville & Nashville Railway Co.](https://en.wikipedia.org/wiki/Steele_v._Louisville_%26_Nashville_Railway_Co. "Steele v. Louisville & Nashville Railway Co.")* 323 US 192 (1944) |
| *[Johnson v. Railway Express Agency](https://en.wikipedia.org/wiki/Johnson_v._Railway_Express_Agency "Johnson v. Railway Express Agency")* 421 US 454 (1975) |
| *[California Federal Savings and Loan Association v. Guerra](https://en.wikipedia.org/wiki/California_Federal_Savings_and_Loan_Association_v._Guerra "California Federal Savings and Loan Association v. Guerra")* 479 US 272 (1987) |
| [ILO](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") [Equal Remuneration Convention](https://en.wikipedia.org/wiki/Equal_Remuneration_Convention "Equal Remuneration Convention") 1951 |
| ILO [Discrimination Convention 1958](https://en.wikipedia.org/wiki/Discrimination_\(Employment_and_Occupation\)_Convention "Discrimination (Employment and Occupation) Convention") |
| See [United States labor law]() and [Civil rights movement](https://en.wikipedia.org/wiki/Civil_rights_movement "Civil rights movement") |
See also: [Equal opportunity](https://en.wikipedia.org/wiki/Equal_opportunity "Equal opportunity") and [Discrimination](https://en.wikipedia.org/wiki/Discrimination "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](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court"), leaving the law inconsistent and full of exceptions. Originally, the [US Constitution](https://en.wikipedia.org/wiki/US_Constitution "US Constitution") entrenched gender, race and wealth inequality by enabling states to maintain [slavery](https://en.wikipedia.org/wiki/Slavery_in_the_United_States "Slavery in the United States"),[\[384\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-384) reserve the vote to white, property owning men,[\[385\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-385) and enabling employers to refuse employment to anyone. After the [Emancipation Proclamation](https://en.wikipedia.org/wiki/Emancipation_Proclamation "Emancipation Proclamation") in the [American Civil War](https://en.wikipedia.org/wiki/American_Civil_War "American Civil War"), the [Thirteenth](https://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution "Thirteenth Amendment to the United States Constitution"), [Fourteenth](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") and [Fifteenth](https://en.wikipedia.org/wiki/Fifteenth_Amendment_to_the_United_States_Constitution "Fifteenth Amendment to the United States Constitution") Amendments attempted to enshrined equal civil rights for everyone,[\[386\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-386) while the [Civil Rights Act of 1866](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866 "Civil Rights Act of 1866"),[\[387\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-387) and [1875](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1875 "Civil Rights Act of 1875") spelled out that everyone had the right to make contracts, hold [property](https://en.wikipedia.org/wiki/Property "Property") and access accommodation, transport and entertainment without discrimination. However, in 1883 the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") in the *[Civil Rights Cases](https://en.wikipedia.org/wiki/Civil_Rights_Cases "Civil Rights Cases")* put an end to development by declaring that [Congress](https://en.wikipedia.org/wiki/US_Congress "US Congress") was not allowed to regulate the actions of private individuals rather than public bodies.[\[388\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-388) In his dissent, [Harlan J](https://en.wikipedia.org/wiki/Harlan_J "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".[\[389\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-389)
[](https://en.wikipedia.org/wiki/File:Boy_feeling_Barack_Obama%27s_hair.jpg)
A constitutional right to equality, based on the [Equal Protection Clauses](https://en.wikipedia.org/wiki/Equal_Protection_Clause "Equal Protection Clause") of the Fifth and Fourteenth Amendments has been disputed. 125 years after [Harlan J](https://en.wikipedia.org/wiki/Harlan_J "Harlan J") wrote his famous dissent that all social institutions should be bound to equal rights,[\[390\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-390) [Barack Obama](https://en.wikipedia.org/wiki/Barack_Obama "Barack Obama") won election for President.
By 1944, the position had changed. In *[Steele v. Louisville & Nashville Railway Co.](https://en.wikipedia.org/wiki/Steele_v._Louisville_%26_Nashville_Railway_Co. "Steele v. Louisville & Nashville Railway Co.")*,[\[391\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-391) a Supreme Court majority held a labor union had a [duty of fair representation](https://en.wikipedia.org/wiki/Duty_of_fair_representation "Duty of fair representation") and may not discriminate against members based on race under the [Railway Labor Act](https://en.wikipedia.org/wiki/Railway_Labor_Act "Railway Labor Act") of 1926 (or the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935"). [Murphy J](https://en.wikipedia.org/wiki/Murphy_J "Murphy J") would have also based the duty on a [right to equality](https://en.wikipedia.org/wiki/Right_to_equality "Right to equality") in the [Fifth Amendment](https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution "Fifth Amendment to the United States Constitution")). Subsequently, *[Johnson v. Railway Express Agency](https://en.wikipedia.org/wiki/Johnson_v._Railway_Express_Agency "Johnson v. Railway Express Agency")* admitted that the old [Enforcement Act of 1870](https://en.wikipedia.org/wiki/Enforcement_Act_of_1870 "Enforcement Act of 1870") provided a remedy against private parties.[\[392\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-392) 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](https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution "Fifth Amendment to the United States Constitution") or [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") if discrimination is shown to be intentional,[\[393\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-393) or if it irrationally discriminates against one group. For example, in *[Cleveland Board of Education v. LaFleur](https://en.wikipedia.org/wiki/Cleveland_Board_of_Education_v._LaFleur "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](https://en.wikipedia.org/wiki/Due_Process_Clause "Due Process Clause"), because it could not plausibly be shown that after child birth women could never perform a job.[\[394\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-394) But while the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") has failed, against dissent, to recognize a constitutional principle of equality,[\[395\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-395) 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.[\[396\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-396)
### Equal treatment
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=18 "Edit section: Equal treatment")\]
| [v](https://en.wikipedia.org/wiki/Template:Slist_employment_equality "Template:Slist employment equality") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_employment_equality "Template talk:Slist employment equality") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_employment_equality "Special:EditPage/Template:Slist employment equality")Equal treatment |
|---|
| [Equal Pay Act of 1963](https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963 "Equal Pay Act of 1963"), [29 U.S.C.](https://en.wikipedia.org/wiki/Title_29_of_the_United_States_Code "Title 29 of the United States Code") [§ 206(d)](https://www.law.cornell.edu/uscode/text/29/206#d) |
| *[Corning Glass Works v. Brennan](https://en.wikipedia.org/wiki/Corning_Glass_Works_v._Brennan "Corning Glass Works v. Brennan")* [417](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_417 "List of United States Supreme Court cases, volume 417") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [188](https://supreme.justia.com/cases/federal/us/417/188/) (1974) |
| [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), [42 U.S.C.](https://en.wikipedia.org/wiki/Title_42_of_the_United_States_Code "Title 42 of the United States Code") [§ 2000e-2](https://www.law.cornell.edu/uscode/text/42/2000e-2) |
| [Age Discrimination in Employment Act of 1967](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967"), [29 U.S.C.](https://en.wikipedia.org/wiki/Title_29_of_the_United_States_Code "Title 29 of the United States Code") [§ 621](https://www.law.cornell.edu/uscode/text/29/621)\-634 |
| *[Texas Department of Community Affairs v. Burdine](https://en.wikipedia.org/wiki/Texas_Department_of_Community_Affairs_v._Burdine "Texas Department of Community Affairs v. Burdine")*, [450](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_450 "List of United States Supreme Court cases, volume 450") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [248](https://supreme.justia.com/cases/federal/us/450/248/) (1981) |
| *[St. Mary's Honor Center v. Hicks](https://en.wikipedia.org/wiki/St._Mary%27s_Honor_Center_v._Hicks "St. Mary's Honor Center v. Hicks")*, [509](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_509 "List of United States Supreme Court cases, volume 509") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [502](https://supreme.justia.com/cases/federal/us/509/502/) (1993) |
| [Federal Rules of Civil Procedure](https://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure "Federal Rules of Civil Procedure") Rule [23](https://www.federalrulesofcivilprocedure.org/rule_23) |
| *[International Brotherhood of Teamsters v. United States](https://en.wikipedia.org/w/index.php?title=International_Brotherhood_of_Teamsters_v._United_States&action=edit&redlink=1 "International Brotherhood of Teamsters v. United States (page does not exist)")*, [431](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_431 "List of United States Supreme Court cases, volume 431") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [324](https://supreme.justia.com/cases/federal/us/431/324/) (1977) |
| *[General Telephone Co. of Southwest v. Falcon](https://en.wikipedia.org/w/index.php?title=General_Telephone_Co._of_Southwest_v._Falcon&action=edit&redlink=1 "General Telephone Co. of Southwest v. Falcon (page does not exist)")*, [457](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_457 "List of United States Supreme Court cases, volume 457") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [147](https://supreme.justia.com/cases/federal/us/457/147/) (1982) |
| *[Meritor Savings Bank v. Vinson](https://en.wikipedia.org/wiki/Meritor_Savings_Bank_v._Vinson "Meritor Savings Bank v. Vinson")*, [477](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_477 "List of United States Supreme Court cases, volume 477") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [57](https://supreme.justia.com/cases/federal/us/477/57/) (1986) |
| *[Harris v. Forklift Systems, Inc.](https://en.wikipedia.org/wiki/Harris_v._Forklift_Systems,_Inc. "Harris v. Forklift Systems, Inc.")*, [510](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_510 "List of United States Supreme Court cases, volume 510") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [17](https://supreme.justia.com/cases/federal/us/510/17/) (1993) |
| *[Faragher v. City of Boca Raton](https://en.wikipedia.org/wiki/Faragher_v._City_of_Boca_Raton "Faragher v. City of Boca Raton")*, [524](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_524 "List of United States Supreme Court cases, volume 524") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [775](https://supreme.justia.com/cases/federal/us/524/775/) (1998) |
| See [United States labor law]() and [Civil rights movement](https://en.wikipedia.org/wiki/Civil_rights_movement "Civil rights movement") |
See also: [Disparate treatment](https://en.wikipedia.org/wiki/Disparate_treatment "Disparate treatment"), [Bona fide occupational qualification](https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification "Bona fide occupational qualification"), [Harassment](https://en.wikipedia.org/wiki/Harassment "Harassment"), [US workplace sexual harassment](https://en.wikipedia.org/wiki/US_workplace_sexual_harassment "US workplace sexual harassment"), and [Retaliation (law)](https://en.wikipedia.org/wiki/Retaliation_\(law\) "Retaliation (law)")
Today legislation bans discrimination, that is unrelated to an employee's ability to do a job, based on sex, race,[\[397\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-397) ethnicity, national origin, age and disability.[\[398\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-398) The [Equal Pay Act of 1963](https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963 "Equal Pay Act of 1963") banned gender pay discrimination, amending the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "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.[\[399\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-399) For example, in *[Corning Glass Works v. Brennan](https://en.wikipedia.org/wiki/Corning_Glass_Works_v._Brennan "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.[\[400\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-400) One drawback is the equal pay provisions are subject to multiple exemptions for groups of employees found in the [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938") itself. Another is that equal pay rules only operate within workers of an "enterprise",[\[401\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-401) so that it has no effect upon high paying enterprises being more male dominated, nor [child care](https://en.wikipedia.org/wiki/Child_care "Child care") being unequally shared between men and women that affects long-term career progression. Sex discrimination includes discrimination based on pregnancy,[\[402\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-402) and is prohibited in general by the landmark [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964").[\[403\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-403)
[](https://en.wikipedia.org/wiki/File:We_Can_Do_It!_NARA_535413_-_Restoration_2.jpg)
[Rosie the Riveter](https://en.wikipedia.org/wiki/Rosie_the_Riveter "Rosie the Riveter") symbolized women factory workers in World War II. The [Equal Pay Act of 1963](https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963 "Equal Pay Act of 1963") banned pay discrimination within workplaces.[\[404\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-404)
Beyond gender equality on the specific issue of pay, the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "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](https://en.wikipedia.org/wiki/Civil_Rights_Commission "Civil Rights Commission"), and requires equality in federally funded agencies. [Title VII of the Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Title_VII_of_the_Civil_Rights_Act_of_1964 "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](https://en.wikipedia.org/wiki/Race_\(human_categorization\) "Race (human categorization)"), color, religion, sex, or [national origin](https://en.wikipedia.org/wiki/National_origin "National origin")."[\[405\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-405) [Segregation](https://en.wikipedia.org/wiki/Racial_segregation "Racial segregation") in employment is equally unlawful.[\[406\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-406) The same basic rules apply for people [over 40 years old](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967"),[\[407\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-407) and for people with [disabilities](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990").[\[408\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-408) 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.[\[409\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-409) Within these limits, people can bring claims against [disparate treatment](https://en.wikipedia.org/wiki/Disparate_treatment "Disparate treatment"). In *[Texas Department of Community Affairs v. Burdine](https://en.wikipedia.org/wiki/Texas_Department_of_Community_Affairs_v._Burdine "Texas Department of Community Affairs v. Burdine")* the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "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.[\[410\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-410) However, in 1993, this position was altered in *[St. Mary's Honor Center v. Hicks](https://en.wikipedia.org/wiki/St._Mary%27s_Honor_Center_v._Hicks "St. Mary's Honor Center v. Hicks")* where [Scalia J](https://en.wikipedia.org/wiki/Scalia_J "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.[\[411\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-411) [Souter J](https://en.wikipedia.org/wiki/Souter_J "Souter J") in dissent, pointed out the majority's approach was "inexplicable in forgiving employers who present false evidence in court".[\[412\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-412)
Disparate treatment can be justified under [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964") §2000e-2(e) if an employer shows selecting someone reflects by "religion, sex, or national origin is a [bona fide occupational qualification](https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification "Bona fide occupational qualification") reasonably necessary to the normal operation of that particular business or enterprise."[\[413\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-413) Race is not included. For example, in *[Dothard v. Rawlinson](https://en.wikipedia.org/wiki/Dothard_v._Rawlinson "Dothard v. Rawlinson")* the state of [Alabama](https://en.wikipedia.org/wiki/Alabama "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](https://en.wikipedia.org/wiki/Pound_\(mass\) "Pound (mass)")), 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](https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification "Bona fide occupational qualification"), because there was a heightened risk of sexual assault, although [Stewart J](https://en.wikipedia.org/wiki/Stewart_J "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](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") on women and were not justified by business necessity.[\[414\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-414) By contrast, in *[Wilson v. Southwest Airlines Co.](https://en.wikipedia.org/wiki/Wilson_v._Southwest_Airlines_Co. "Wilson v. Southwest Airlines Co.")*, a [Texas](https://en.wikipedia.org/wiki/Texas "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".[\[415\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-415) Under the [ADEA 1967](https://en.wikipedia.org/wiki/ADEA_1967 "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](https://en.wikipedia.org/w/index.php?title=Western_Air_Lines,_Inc_v._Criswell&action=edit&redlink=1 "Western Air Lines, Inc v. Criswell (page does not exist)")* the Supreme Court held that airlines could require pilots to retire at age 60, because the [Federal Aviation Administration](https://en.wikipedia.org/wiki/Federal_Aviation_Administration "Federal Aviation Administration") required this. It could not, however, refuse to employ flight engineers over 60 because there was no comparable FAA rule.[\[416\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-416)
> 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](https://en.wikipedia.org/wiki/Humanitarianism "Humanitarianism") will prevail and [equality](https://en.wikipedia.org/wiki/Equal_opportunity "Equal opportunity") will be exacted. They are shocked that action organizations, sit-ins, [civil disobedience](https://en.wikipedia.org/wiki/Civil_disobedience "Civil disobedience"), and protests are becoming our everyday tools, just as strikes, demonstrations and union organization became yours to insure that [bargaining power](https://en.wikipedia.org/wiki/Bargaining_power "Bargaining power") genuinely existed on both sides of the table. ...
—[Martin Luther King Jr.](https://en.wikipedia.org/wiki/Martin_Luther_King_Jr. "Martin Luther King Jr."), *Speech to the Fourth Constitutional Convention [AFL–CIO](https://en.wikipedia.org/wiki/AFL%E2%80%93CIO "AFL–CIO") Miami, Florida* (11 December 1961)
In addition to prohibitions on discriminatory treatment, [harassment](https://en.wikipedia.org/wiki/Sexual_harassment_in_the_workplace_in_the_United_States "Sexual harassment in the workplace in the United States"), and detriment in retaliation for asserting rights, is prohibited. In a particularly obscene case, *[Meritor Savings Bank v. Vinson](https://en.wikipedia.org/wiki/Meritor_Savings_Bank_v._Vinson "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](https://en.wikipedia.org/wiki/42_USC "42 USC") §2000e.[\[417\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-417) But also if employees or managers create a "hostile or offensive working environment", this counts as discrimination. In *[Harris v. Forklift Systems, Inc.](https://en.wikipedia.org/wiki/Harris_v._Forklift_Systems,_Inc. "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.[\[418\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-418) Standard principles of agency and vicariously liability apply, so an employer is responsible for the actions of its agents,[\[419\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-419) But according to *[Faragher v. City of Boca Raton](https://en.wikipedia.org/wiki/Faragher_v._City_of_Boca_Raton "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.[\[420\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-420) In addition, an employing entity may not retaliate against an employee for asserting his or her rights under the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"),[\[421\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-421) or the [Age Discrimination in Employment Act of 1967](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967").[\[422\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-422) In *[University of Pennsylvania v. Equal Employment Opportunity Commission](https://en.wikipedia.org/wiki/University_of_Pennsylvania_v._Equal_Employment_Opportunity_Commission "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](https://en.wikipedia.org/wiki/United_States_Equal_Employment_Opportunity_Commission "United States Equal Employment Opportunity Commission") to investigate the claim.[\[423\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-423) Furthermore, in *[Robinson v. Shell Oil Co.](https://en.wikipedia.org/wiki/Robinson_v._Shell_Oil_Co. "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.[\[424\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-424) 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.[\[425\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-425) This is all seen as necessary to make equal rights effective.
### Equal impact and remedies
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=19 "Edit section: Equal impact and remedies")\]
See also: [Disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact")
| [v](https://en.wikipedia.org/wiki/Template:Slist_equal_impact "Template:Slist equal impact") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_equal_impact "Template talk:Slist equal impact") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_equal_impact "Special:EditPage/Template:Slist equal impact")Disparate impact |
|---|
| *[Griggs v. Duke Power Co.](https://en.wikipedia.org/wiki/Griggs_v._Duke_Power_Co. "Griggs v. Duke Power Co.")*, 401 US 424 (1971) |
| [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), 42 USC §2000e-2(k)-6 |
| *[Ricci v. DeStefano](https://en.wikipedia.org/wiki/Ricci_v._DeStefano "Ricci v. DeStefano")*, 557 US 557 (2009) |
| *[Dothard v. Rawlinson](https://en.wikipedia.org/wiki/Dothard_v._Rawlinson "Dothard v. Rawlinson")*, 433 US 321 (1977) |
| [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), Title VII, §703(h) |
| *[Schultz v. Wheaton Glass Co.](https://en.wikipedia.org/wiki/Schultz_v._Wheaton_Glass_Co. "Schultz v. Wheaton Glass Co.")*, 421 F2d 259 (3rd Cir 1970) |
| *[County of Washington v. Gunther](https://en.wikipedia.org/wiki/County_of_Washington_v._Gunther "County of Washington v. Gunther")*, 452 US 161 (1981) |
| See [United States labor law]() and [Civil rights movement](https://en.wikipedia.org/wiki/Civil_rights_movement "Civil rights movement") |
In addition to [disparate treatment](https://en.wikipedia.org/wiki/Disparate_treatment "Disparate treatment"), employing entities may not use practices having an unjustified [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") on protected groups. In *[Griggs v. Duke Power Co.](https://en.wikipedia.org/wiki/Griggs_v._Duke_Power_Co. "Griggs v. Duke Power Co.")*, a power company on the [Dan River](https://en.wikipedia.org/wiki/Dan_River_\(Virginia\) "Dan River (Virginia)"), [North Carolina](https://en.wikipedia.org/wiki/North_Carolina "North Carolina"), required a [high school diploma](https://en.wikipedia.org/wiki/High_school_diploma "High school diploma") for staff to transfer to higher paying non-manual jobs. Because of [racial segregation](https://en.wikipedia.org/wiki/Racial_segregation_in_the_United_States "Racial segregation in the United States") in states like North Carolina, fewer [black employees](https://en.wikipedia.org/wiki/Black_people "Black people") than [white employees](https://en.wikipedia.org/wiki/White_people "White people") had diplomas.[\[426\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-426) The court found a diploma was wholly unnecessary to perform the tasks in higher paying non-manual jobs. [Burger CJ](https://en.wikipedia.org/wiki/Burger_CJ "Burger CJ"), for a unanimous [Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court"), held the "[Act](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964") 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](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") followed "business necessity" that was "related to [job performance](https://en.wikipedia.org/wiki/Job_performance "Job performance")" but otherwise such practices would be prohibited.[\[427\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-427) It is not necessary to show any intention to discriminate, just a discriminatory effect. Since amendments by the [Civil Rights Act of 1991](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1991 "Civil Rights Act of 1991"),[\[428\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-428) if [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "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.[\[429\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-429) On the other hand, in *[Ricci v. DeStefano](https://en.wikipedia.org/wiki/Ricci_v._DeStefano "Ricci v. DeStefano")* five Supreme Court judges held the [City of New Haven](https://en.wikipedia.org/wiki/City_of_New_Haven "City of New Haven") had acted unlawfully by discarding test results for [firefighters](https://en.wikipedia.org/wiki/Firefighters "Firefighters"), which it concluded could have had an unjustified [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") by race.[\[430\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-430) In a further concurrence, [Scalia J](https://en.wikipedia.org/wiki/Scalia_J "Scalia J") said "resolution of this dispute merely postpones the [evil](https://en.wikipedia.org/wiki/Evil "Evil") day" when a [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") might be found [unconstitutional](https://en.wikipedia.org/wiki/Unconstitutional "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](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J") pointed out that [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") theory advances equality, and in no way requires behavior that is not geared to identifying people with skills necessary for jobs.[\[431\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-431)
[](https://en.wikipedia.org/wiki/File:Secretary_Clinton_Smiles_With_South_African_Minister_Maite_Nkoana-Mashabane.jpg)
The [Paycheck Fairness Act](https://en.wikipedia.org/wiki/Paycheck_Fairness_Act "Paycheck Fairness Act"), repeatedly proposed by Democrats such as [Hillary Clinton](https://en.wikipedia.org/wiki/Hillary_Clinton "Hillary Clinton"), would prevent employer defenses to sex discrimination that are related to gender. It has been rejected by [Republicans](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") in the [United States Congress](https://en.wikipedia.org/wiki/United_States_Congress "United States Congress").
Both [disparate treatment](https://en.wikipedia.org/wiki/Disparate_treatment "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](https://en.wikipedia.org/wiki/Equal_Employment_Opportunity_Commission "Equal Employment Opportunity Commission"), the [attorney general](https://en.wikipedia.org/wiki/United_States_Attorney_General "United States Attorney General"),[\[432\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-432) and by [class action](https://en.wikipedia.org/wiki/Class_action "Class action"). Under the [Federal Rules of Civil Procedure](https://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure "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".[\[433\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-433) 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,[\[434\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-434) so long as there is sufficiently specific presentation of issues of law and fact to certify the action.[\[435\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-435)
A significant practical problem for disparate impact claims is the "[Bennett Amendment](https://en.wikipedia.org/wiki/Bennett_Amendment "Bennett Amendment")" in the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "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](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") § 206(d)(1).[\[436\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-436) 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](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964") §703(h).[\[437\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-437) In *[County of Washington v. Gunther](https://en.wikipedia.org/wiki/County_of_Washington_v._Gunther "County of Washington v. Gunther")*[\[438\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-438) 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](https://en.wikipedia.org/wiki/Rehnquist_J "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).[\[439\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-439) 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](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"). Given that a significant [gender pay gap](https://en.wikipedia.org/wiki/Gender_pay_gap "Gender pay gap") remains, it is not clear why any discrepancy or less favorable treatment, should remain at all.[\[440\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-440)
### Affirmative action
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=20 "Edit section: Affirmative action")\]
Main articles: [Affirmative action in the US](https://en.wikipedia.org/wiki/Affirmative_action_in_the_US "Affirmative action in the US"), [Board diversity](https://en.wikipedia.org/wiki/Board_diversity "Board diversity"), [Disability in the US](https://en.wikipedia.org/wiki/Disability_in_the_US "Disability in the US"), [Reasonable accommodation](https://en.wikipedia.org/wiki/Reasonable_accommodation "Reasonable accommodation"), and [Positive action](https://en.wikipedia.org/wiki/Positive_action "Positive action")
| [v](https://en.wikipedia.org/wiki/Template:Slist_affirmative_action "Template:Slist affirmative action") [t](https://en.wikipedia.org/wiki/Template_talk:Slist_affirmative_action "Template talk:Slist affirmative action") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Slist_affirmative_action "Special:EditPage/Template:Slist affirmative action")Affirmative action sources |
|---|
| [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") §2000e-(j) |
| *[United Steelworkers v. Weber](https://en.wikipedia.org/wiki/United_Steelworkers_v._Weber "United Steelworkers v. Weber")*, 443 US 193 (1979) |
| *[Bushey v. New York State Civil Service Comm](https://en.wikipedia.org/w/index.php?title=Bushey_v._New_York_State_Civil_Service_Comm&action=edit&redlink=1 "Bushey v. New York State Civil Service Comm (page does not exist)")*, 733 F2d 220 (1984) |
| *[Johnson v. Transportation Agency, Santa Clara](https://en.wikipedia.org/w/index.php?title=Johnson_v._Transportation_Agency,_Santa_Clara&action=edit&redlink=1 "Johnson v. Transportation Agency, Santa Clara (page does not exist)")* 480 US 616 (1987) |
| *[Wygant v. Jackson Board of Education](https://en.wikipedia.org/wiki/Wygant_v._Jackson_Board_of_Education "Wygant v. Jackson Board of Education")* 476 US 267 (1986) |
| *[United States v. Paradise](https://en.wikipedia.org/w/index.php?title=United_States_v._Paradise&action=edit&redlink=1 "United States v. Paradise (page does not exist)")* 480 US 149 (1987) |
| *[City of Richmond v. J.A. Croson Co.](https://en.wikipedia.org/wiki/City_of_Richmond_v._J.A._Croson_Co. "City of Richmond v. J.A. Croson Co.")*, 488 US 469 (1989) |
| *[Adarand Constructors, Inc. v. Peña](https://en.wikipedia.org/wiki/Adarand_Constructors,_Inc._v._Pe%C3%B1a "Adarand Constructors, Inc. v. Peña")*, 515 US 200 (1995) |
| *[Morton v. Mancari](https://en.wikipedia.org/wiki/Morton_v._Mancari "Morton v. Mancari")* 417 US 535 (1974) |
| [EEOC](https://en.wikipedia.org/wiki/Equal_Employment_Opportunity_Commission "Equal Employment Opportunity Commission"), *[Guidelines on Affirmative Action](https://en.wikipedia.org/w/index.php?title=Guidelines_on_Affirmative_Action&action=edit&redlink=1 "Guidelines on Affirmative Action (page does not exist)")* (2009) 29 CFR |
| [OFCCP](https://en.wikipedia.org/wiki/Office_of_Federal_Contract_Compliance_Programs "Office of Federal Contract Compliance Programs") Regulations, 41 CFR §60 |
| See [United States labor law]() and [Civil rights movement](https://en.wikipedia.org/wiki/Civil_rights_movement "Civil rights movement") |
- [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") §2000e-(j)
- *[United Steelworkers v. Weber](https://en.wikipedia.org/wiki/United_Steelworkers_v._Weber "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](https://en.wikipedia.org/wiki/Bushey_v._New_York_State_Civil_Service_Commission "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](https://en.wikipedia.org/wiki/Johnson_v._Transportation_Agency "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](https://en.wikipedia.org/w/index.php?title=Local_No._93,_International_Association_of_Firefighters_v._City_of_Cleveland&action=edit&redlink=1 "Local No. 93, International Association of Firefighters v. City of Cleveland (page does not exist)")* 478 US 501 (1986) a consent decree giving preference in promotions to black fireman in [Cleveland](https://en.wikipedia.org/wiki/Cleveland "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](https://en.wikipedia.org/w/index.php?title=Local_28,_Sheet_Metal_Workers%27_International_Association_v._EEOC&action=edit&redlink=1 "Local 28, Sheet Metal Workers' International Association v. EEOC (page does not exist)")* 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](https://en.wikipedia.org/wiki/Wygant_v._Jackson_Board_of_Education "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](https://en.wikipedia.org/wiki/Thurgood_Marshall "Thurgood Marshall"), joined by Brennan J, Blackmun J, Stevens J dissented
- *[US v. Paradise](https://en.wikipedia.org/w/index.php?title=US_v._Paradise&action=edit&redlink=1 "US v. Paradise (page does not exist)")* 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.](https://en.wikipedia.org/wiki/City_of_Richmond_v._J.A._Croson_Co. "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](https://en.wikipedia.org/wiki/Strict_scrutiny "Strict scrutiny"), or more difficult to justify than other remedies for discrimination.
- *[Adarand Constructors, Inc. v. Peña](https://en.wikipedia.org/wiki/Adarand_Constructors,_Inc._v._Pe%C3%B1a "Adarand Constructors, Inc. v. Peña")*, 515 US 200 (1995) federal agency contracts and subcontracts
- *[Piscataway School Board v. Taxman](https://en.wikipedia.org/wiki/Piscataway_School_Board_v._Taxman "Piscataway School Board v. Taxman")*, 91 F3d 1547 (3d Cir. 1996) case dropped, on affirmative action
- *[Morton v. Mancari](https://en.wikipedia.org/wiki/Morton_v._Mancari "Morton v. Mancari")* 417 US 535 (1974) held preference of Native Americans in the [Bureau of Indian Affairs](https://en.wikipedia.org/wiki/Bureau_of_Indian_Affairs "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](https://en.wikipedia.org/wiki/United_States_Equal_Employment_Opportunity_Commission "United States Equal Employment Opportunity Commission"), *[Guidelines on Affirmative Action](https://en.wikipedia.org/w/index.php?title=Guidelines_on_Affirmative_Action&action=edit&redlink=1 "Guidelines on Affirmative Action (page does not exist)")* (2009) 29 CFR [§1608](https://www.gpo.gov/fdsys/pkg/CFR-2014-title29-vol4/xml/CFR-2014-title29-vol4-part1608.xml)
- [OFCCP](https://en.wikipedia.org/wiki/OFCCP "OFCCP") Regulations, 41 CFR §60 based on Executive Order 11246, 3 CFR 339
[](https://en.wikipedia.org/wiki/File:Rooseveltinwheelchair.jpg)
[Franklin Delano Roosevelt](https://en.wikipedia.org/wiki/Franklin_Delano_Roosevelt "Franklin Delano Roosevelt"), suffering from [polio](https://en.wikipedia.org/wiki/Polio "Polio"), required a [wheelchair](https://en.wikipedia.org/wiki/Wheelchair "Wheelchair") through his [Presidency](https://en.wikipedia.org/wiki/Presidency "Presidency").
- [Veterans' Preference Act of 1944](https://en.wikipedia.org/wiki/Veterans%27_Preference_Act_of_1944 "Veterans' Preference Act of 1944")
- [Rehabilitation Act of 1973](https://en.wikipedia.org/wiki/Rehabilitation_Act_of_1973 "Rehabilitation Act of 1973"), 29 USC §§705, 791–794e
- *[Borkowski v. Valley Central School District](https://en.wikipedia.org/w/index.php?title=Borkowski_v._Valley_Central_School_District&action=edit&redlink=1 "Borkowski v. Valley Central School District (page does not exist)")* 63 F3d 131 (2nd 1995) burden of proof
- *[Vande Zande v. Wisconsin Department of Administration](https://en.wikipedia.org/w/index.php?title=Vande_Zande_v._Wisconsin_Department_of_Administration&action=edit&redlink=1 "Vande Zande v. Wisconsin Department of Administration (page does not exist)")* 44 F3d 538 (7th 1995)
- *[Southeastern Community College v. Davis](https://en.wikipedia.org/wiki/Southeastern_Community_College_v._Davis "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](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990"), 42 USC §§12101–12213
- *[Cleveland v. Policy Management Systems Corp](https://en.wikipedia.org/w/index.php?title=Cleveland_v._Policy_Management_Systems_Corp&action=edit&redlink=1 "Cleveland v. Policy Management Systems Corp (page does not exist)")* 562 US 795 (1999)
- *[Sutton v. United Airline, Inc](https://en.wikipedia.org/w/index.php?title=Sutton_v._United_Airline,_Inc&action=edit&redlink=1 "Sutton v. United Airline, Inc (page does not exist)")* 527 US 471 (1999)
- *[Albertsons, Inc. v. Kirkingburg](https://en.wikipedia.org/w/index.php?title=Albertsons,_Inc._v._Kirkingburg&action=edit&redlink=1 "Albertsons, Inc. v. Kirkingburg (page does not exist)")* 527 US 555 (1999)
- *[Murphy v. United Parcel Service](https://en.wikipedia.org/w/index.php?title=Murphy_v._United_Parcel_Service&action=edit&redlink=1 "Murphy v. United Parcel Service (page does not exist)")* 527 US 516 (1999)
- *[Toyota Motor Manufacturing, Kentucky, Inc. v. Williams](https://en.wikipedia.org/wiki/Toyota_Motor_Manufacturing,_Kentucky,_Inc._v._Williams "Toyota Motor Manufacturing, Kentucky, Inc. v. Williams")* 534 US 184 (2002)
- *[US Airways Inc v. Barnett](https://en.wikipedia.org/w/index.php?title=US_Airways_Inc_v._Barnett&action=edit&redlink=1 "US Airways Inc v. Barnett (page does not exist)")* 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](https://en.wikipedia.org/wiki/New_York_City_Transit_Authority_v._Beazer "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](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "Family and Medical Leave Act of 1993"), [Equality Act of 2015](https://en.wikipedia.org/wiki/Equality_Act_of_2015 "Equality Act of 2015")
### Free movement and immigration
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=21 "Edit section: Free movement and immigration")\]
Main articles: [Freedom of movement under United States law](https://en.wikipedia.org/wiki/Freedom_of_movement_under_United_States_law "Freedom of movement under United States law"), [Immigration law](https://en.wikipedia.org/wiki/Immigration_law "Immigration law"), and [Immigration to the United States](https://en.wikipedia.org/wiki/Immigration_to_the_United_States "Immigration to the United States")
- *[Corfield v. Coryell](https://en.wikipedia.org/wiki/Corfield_v._Coryell "Corfield v. Coryell")*, 6 Fed. Cas. 546 (1823)
- *[Paul v. Virginia](https://en.wikipedia.org/wiki/Paul_v._Virginia "Paul v. Virginia")*, 75 U.S. 168 (1869)
- *[Hoffman Plastic Compounds, Inc. v. NLRB](https://en.wikipedia.org/wiki/Hoffman_Plastic_Compounds,_Inc._v._NLRB "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](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") for helping in union organizing.
- [History of immigration to the United States](https://en.wikipedia.org/wiki/History_of_immigration_to_the_United_States "History of immigration to the United States")
- [Immigration Reform and Control Act of 1986](https://en.wikipedia.org/wiki/Immigration_Reform_and_Control_Act_of_1986 "Immigration Reform and Control Act of 1986"), [8 USC](https://en.wikipedia.org/wiki/8_USC "8 USC") [§1324b](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) and [§1324a](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) "unlawful employment of aliens"
- [Illegal immigration to the United States](https://en.wikipedia.org/wiki/Illegal_immigration_to_the_United_States "Illegal immigration to the United States")
- [Comprehensive Immigration Reform Act of 2007](https://en.wikipedia.org/wiki/Comprehensive_Immigration_Reform_Act_of_2007 "Comprehensive Immigration Reform Act of 2007")
## Job security
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=22 "Edit section: Job security")\]
Main articles: [Job security](https://en.wikipedia.org/wiki/Job_security "Job security") and [Full employment](https://en.wikipedia.org/wiki/Full_employment "Full employment")
[](https://en.wikipedia.org/wiki/File:FDR_Fireside_Chat_December_24,_1943.jpg)
[President Franklin D. Roosevelt](https://en.wikipedia.org/wiki/President_Franklin_D._Roosevelt "President Franklin D. Roosevelt") brought [unemployment](https://en.wikipedia.org/wiki/Unemployment_in_the_United_States "Unemployment in the United States") down from over 20% to under 2%, with the [New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal")'s investment in jobs during the [Great Depression](https://en.wikipedia.org/wiki/Great_Depression_in_the_United_States "Great Depression in the United States").
Job security laws in the United States are the weakest in the developed world, as there are no federal statutory rights yet.[\[441\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-441) Any employment contract can require job security, but employees other than corporate executives or managers rarely have the [bargaining power](https://en.wikipedia.org/wiki/Unequal_bargaining_power "Unequal bargaining power") to contract for job security.[\[442\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-442) Collective agreements often aim to ensure that employees can only be terminated for a "[just cause](https://en.wikipedia.org/wiki/Just_cause_\(employment_law\) "Just cause (employment law)")", 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](https://en.wikipedia.org/wiki/At_will_employment "At will employment")" by the employer: for a "good reason, a bad reason, or no reason at all", so long as no statutory rule is violated.[\[443\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-Payne_v._Western_1884-443) 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](https://en.wikipedia.org/wiki/Lloyd%E2%80%93La_Follette_Act_of_1912 "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 Montana[\[444\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-Title_39_ch_2_part_9,_%C2%A74-444)) protects all employees yet. There are now a growing number of proposals to do this.[\[445\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-445) 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](https://en.wikipedia.org/wiki/Severance_pay "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](https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act_of_1988 "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,[\[446\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-R_Epstein_1984-446) the empirical evidence suggests that job insecurity hampers innovation, reduces productivity, worsens economic recessions,[\[447\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-academic.oup.com-447) deprives employees of liberty and pay,[\[448\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-448) and creates a culture of fear.[\[449\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-449) US unemployment has historically been extremely volatile, as Republican presidents have consistently increased post-war unemployment, while Democratic presidents have reduced it.[\[450\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-450) In its conduct of [monetary policy](https://en.wikipedia.org/wiki/Monetary_policy "Monetary policy"), it is the duty of the [Federal Reserve](https://en.wikipedia.org/wiki/Federal_Reserve "Federal Reserve") to achieve "maximum employment",[\[451\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-451) although in reality Federal Reserve chairs prioritize the reducing of inflation. [Underemployment](https://en.wikipedia.org/wiki/Underemployment "Underemployment") from growing insecurity of working hours has risen. Government may also use [fiscal policy](https://en.wikipedia.org/wiki/Fiscal_policy "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.[\[452\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-452)
### Termination and cause
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=23 "Edit section: Termination and cause")\]
| [v](https://en.wikipedia.org/wiki/Template:Caselist "Template:Caselist") [t](https://en.wikipedia.org/wiki/Template_talk:Caselist "Template talk:Caselist") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Caselist "Special:EditPage/Template:Caselist")Termination and cause sources |
|---|
| [ILO](https://en.wikipedia.org/wiki/ILO "ILO"), [Termination of Employment Convention, 1982](https://en.wikipedia.org/wiki/Termination_of_Employment_Convention,_1982 "Termination of Employment Convention, 1982") |
| [Lloyd-La Follette Act of 1912](https://en.wikipedia.org/wiki/Lloyd-La_Follette_Act_of_1912 "Lloyd-La Follette Act of 1912"), 5 USC §7513(a) |
| [Montana Code Annotated 2015](https://en.wikipedia.org/w/index.php?title=Montana_Code_Annotated_2015&action=edit&redlink=1 "Montana Code Annotated 2015 (page does not exist)") [Title 39 ch 2 part 9, §4](https://leg.mt.gov/bills/mca/39/2/39-2-904.htm) |
| *[McKennon v Nashville Banner](https://en.wikipedia.org/w/index.php?title=McKennon_v_Nashville_Banner&action=edit&redlink=1 "McKennon v Nashville Banner (page does not exist)")*, 513 US 352 (1995) |
| [Restatement (Second) of Contracts 1981](https://en.wikipedia.org/wiki/Restatement_\(Second\)_of_Contracts_1981 "Restatement (Second) of Contracts 1981") §205 |
| [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") 28 USC §158(a)(3) |
| [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964") 42 USC §2000e-2(a) |
| [California Labor Code](https://en.wikipedia.org/wiki/California_Labor_Code "California Labor Code") §§2922-2928 |
| [Restatement (Second) of Agency 1958](https://en.wikipedia.org/wiki/Restatement_\(Second\)_of_Agency_1958 "Restatement (Second) of Agency 1958") §422 |
| *[Schipani v Ford Motor Co](https://en.wikipedia.org/w/index.php?title=Schipani_v_Ford_Motor_Co&action=edit&redlink=1 "Schipani v Ford Motor Co (page does not exist)")* 102 Mich 606 (1981) |
| *[Torosyan v Boehringer Ingelheim Pharmaceuticals, Inc](https://en.wikipedia.org/wiki/Torosyan_v_Boehringer_Ingelheim_Pharmaceuticals,_Inc "Torosyan v Boehringer Ingelheim Pharmaceuticals, Inc")* 662 A2d 89 (1995) |
| See [US labor law](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [unions](https://en.wikipedia.org/wiki/Trade_unions_in_the_United_States "Trade unions in the United States") |
See also: [Wrongful termination](https://en.wikipedia.org/wiki/Wrongful_termination "Wrongful termination"), [Unfair dismissal](https://en.wikipedia.org/wiki/Unfair_dismissal "Unfair dismissal"), [At-will employment](https://en.wikipedia.org/wiki/At-will_employment "At-will employment"), and [Termination of employment](https://en.wikipedia.org/wiki/Termination_of_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](https://en.wikipedia.org/wiki/Lloyd%E2%80%93La_Follette_Act_of_1912 "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."[\[453\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-453) 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.[\[454\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-454) Third, since 1987, [Montana](https://en.wikipedia.org/wiki/Montana "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.[\[444\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-Title_39_ch_2_part_9,_%C2%A74-444) 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.[\[455\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-455) The standard in the [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") [Termination of Employment Convention, 1982](https://en.wikipedia.org/wiki/Termination_of_Employment_Convention,_1982 "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](https://en.wikipedia.org/wiki/Severance_allowance "Severance allowance") if the termination is for economic reasons.[\[456\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-arts_4-13-456) Some countries such as Germany also require that elected [work councils](https://en.wikipedia.org/wiki/Work_councils "Work councils") have the power to veto or delay terminations, to neutralize the employer's potential [conflicts of interest](https://en.wikipedia.org/wiki/Conflicts_of_interest "Conflicts of interest").[\[457\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-457) Most countries treat job security as a fundamental right,[\[458\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-458) as well as necessary to prevent irrational job losses, to reduce unemployment, and to promote innovation.[\[447\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-academic.oup.com-447) 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,[\[446\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-R_Epstein_1984-446) although the empirical credibility of this argument is doubted by a majority of scholars.[\[459\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-459)
[](https://en.wikipedia.org/wiki/File:Donald-trump-secim-840x420.jpg)
The slogan "you're fired!" was popularized by [Donald Trump](https://en.wikipedia.org/wiki/Donald_Trump "Donald Trump")'s TV show, *[The Apprentice](https://en.wikipedia.org/wiki/The_Apprentice_\(American_TV_series\) "The Apprentice (American TV series)")* before he became president. This reflects the "[at-will employment](https://en.wikipedia.org/wiki/At-will_employment "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,[\[460\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-460) the default rule is known as "[at-will employment](https://en.wikipedia.org/wiki/At-will_employment "At-will employment")". For example, in 1872, the [California Civil Code](https://en.wikipedia.org/wiki/California_Civil_Code "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.[\[461\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-461) In the late 19th century, employment at will was popularized by academic writers as an inflexible legal presumption,[\[462\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-462) and state courts began to adopt it, even though many had presumed that contract termination usually required notice and justifications.[\[463\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-463) 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".[\[443\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-Payne_v._Western_1884-443) However, the employer's discretion to terminate could not violate any statutory prohibition, including termination for union membership,[\[464\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-464) discriminatory termination based on a protected characteristic (e.g. race, gender, age or disability),[\[465\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-465) and bringing claims for occupational health and safety,[\[466\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-466) fair labor standards,[\[467\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-467) retirement income,[\[468\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-468) family and medical leave,[\[469\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-469) and under a series of other specific Acts.[\[470\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-470) Many state courts also added at least four "[public policy](https://en.wikipedia.org/wiki/Public_policy "Public policy")" exceptions,[\[471\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-471) 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.[\[472\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-472) 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.[\[473\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-473) Third, an employee cannot be discharged for exercising any statutory right, such as refusing to take a lie detector test or filing litigation.[\[474\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-474) Fourth, employees will be wrongfully discharged if they legitimately [blow the whistle](https://en.wikipedia.org/wiki/Whistleblowing "Whistleblowing") on unlawful employer conduct, such as violating food labelling laws,[\[475\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-475) or reporting unlawful standards in a nursing home.[\[476\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-476) 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.[\[477\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-477) Some states interpret the general duty of [good faith](https://en.wikipedia.org/wiki/Good_faith "Good faith") in contracts to cover discharges,[\[478\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-478) so that an employee cannot, for example, be terminated just before a bonus is due to be paid.[\[479\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-479) However the vast majority of Americans remain unprotected against most arbitrary, irrational or malicious conduct by employers.[\[480\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-480)
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,[\[481\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-481) and job-related misconduct where the employer consistently enforces a rule,[\[482\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-482) but not actions outside of the job.[\[483\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-483) 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.[\[484\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-484) If a written contract does not promise "just cause" protection against termination, statements in a handbook can still be enforceable,[\[485\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-485) and oral agreements can override the written contract.[\[486\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-486)
### Economic layoffs
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=24 "Edit section: Economic layoffs")\]
| [v](https://en.wikipedia.org/wiki/Template:Caselist "Template:Caselist") [t](https://en.wikipedia.org/wiki/Template_talk:Caselist "Template talk:Caselist") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Caselist "Special:EditPage/Template:Caselist")Economic layoff sources |
|---|
| [ILO](https://en.wikipedia.org/wiki/ILO "ILO"), [Termination of Employment Convention, 1982](https://en.wikipedia.org/wiki/Termination_of_Employment_Convention,_1982 "Termination of Employment Convention, 1982") |
| [Control Council Law No 22](https://en.wikipedia.org/wiki/Control_Council_Law_No_22 "Control Council Law No 22") ([10 April 1946](https://en.wikisource.org/wiki/Control_Council_Law_No_22_\(10_April_1946\)_Works_Councils#Articles_IV)) |
| [WARN Act of 1988](https://en.wikipedia.org/wiki/WARN_Act_of_1988 "WARN Act of 1988"), 29 USC §§2101-2109 |
| *[Howard Johnson Co v Detroit Local Joint Executive Board](https://en.wikipedia.org/wiki/Howard_Johnson_Co_v_Detroit_Local_Joint_Executive_Board "Howard Johnson Co v Detroit Local Joint Executive Board")*, [417](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_417 "List of United States Supreme Court cases, volume 417") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [249](https://supreme.justia.com/cases/federal/us/417/249/) (1974) |
| See [US labor law](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [unions](https://en.wikipedia.org/wiki/Trade_unions_in_the_United_States "Trade unions in the United States") |
Main articles: [Layoff](https://en.wikipedia.org/wiki/Layoff "Layoff") and [Worker Adjustment and Retraining Notification Act](https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act "Worker Adjustment and Retraining Notification Act")
Many job terminations in America are economic [layoffs](https://en.wikipedia.org/wiki/Layoffs "Layoffs"), where employers believe that employees are redundant. In most countries, economic layoffs are separately regulated because of the [conflicts of interest](https://en.wikipedia.org/wiki/Conflicts_of_interest "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](https://en.wikipedia.org/wiki/ILO "ILO") [Termination of Employment Convention, 1982](https://en.wikipedia.org/wiki/Termination_of_Employment_Convention,_1982 "Termination of Employment Convention, 1982") requires a [severance allowance](https://en.wikipedia.org/wiki/Severance_allowance "Severance allowance") if the termination is for economic reasons, as well as consultation with worker representatives about ways to avoid layoffs.[\[456\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-arts_4-13-456) Most developed countries regard information and consultation in the event of any economic change as a fundamental right.[\[487\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-487) The United States government also helped write [Control Council Law No 22](https://en.wikipedia.org/wiki/Control_Council_Law_No_22 "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.[\[488\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-488) However, there are no state or federal laws requiring severance pay or [employee participation](https://aluminum-tick-bf5.notion.site/Relearn-Engine-1f25ccc8a18d809dae0be9e3b13b8f17?pvs=73) in layoff decisions. Where employment contracts or collective agreements contain "just cause" provisions, these have been interpreted to give employers broad discretion,[\[489\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-489) and immunity from the social consequences for the laid off workforce.
[](https://en.wikipedia.org/wiki/File:De_Blasio_Protests_the_Layoffs_of_500_LICH_Nurses_and_Health_Care_Workers_\(10542698924\).jpg)
American workers do not yet have a right to vote on employer layoff decisions, even though the US government helped draft laws for other countries to have elected work councils.[\[490\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-490)
The only statutory right for employees is for extreme cases of mass layoffs under the [Worker Adjustment and Retraining Notification Act of 1988](https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act_of_1988 "Worker Adjustment and Retraining Notification Act of 1988"). The [WARN Act](https://en.wikipedia.org/wiki/WARN_Act "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.[\[491\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-491) 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.[\[492\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-492) 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.[\[493\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-493) 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.[\[494\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-494) Second, an employer may argue that business circumstances were unforeseen.[\[495\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-495) Third, an employer can argue it had reasonable grounds for believing its failure was not a violation of the act.[\[496\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-496) 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.[\[497\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-497) States such as Massachusetts, Connecticut and Maine have statutes with slightly but 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.[\[498\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-498) Outside limited defenses in [corporate law](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"),[\[499\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-499) 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](https://en.wikipedia.org/wiki/Howard_Johnson_Co._v._Detroit_Local_Joint_Executive_Board "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.[\[500\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-500) The majority held there must be "substantial continuity of identity" of the business for the good faith bargaining duty to continue.
### Full employment
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=25 "Edit section: Full employment")\]
| [v](https://en.wikipedia.org/wiki/Template:Caselist "Template:Caselist") [t](https://en.wikipedia.org/wiki/Template_talk:Caselist "Template talk:Caselist") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Caselist "Special:EditPage/Template:Caselist")Unemployment sources |
|---|
| [Universal Declaration of Human Rights 1948](https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights_1948 "Universal Declaration of Human Rights 1948") [art 23(1)](https://en.wikisource.org/wiki/Universal_Declaration_of_Human_Rights#Article_23) |
| [International Covenant on Economic, Social and Cultural Rights 1966](https://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights_1966 "International Covenant on Economic, Social and Cultural Rights 1966") [art 6](https://en.wikisource.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights#Article_6) |
| [ILO](https://en.wikipedia.org/wiki/ILO "ILO"), [Employment Policy Convention, 1964](https://en.wikipedia.org/wiki/Employment_Policy_Convention,_1964 "Employment Policy Convention, 1964") |
| *[Truax v Raich](https://en.wikipedia.org/wiki/Truax_v_Raich "Truax v Raich")*, 239 U.S. 33 (1915) |
| *[Board of Regents of State Colleges v Roth](https://en.wikipedia.org/wiki/Board_of_Regents_of_State_Colleges_v_Roth "Board of Regents of State Colleges v Roth")* [408 U.S. 564](http://www.worldlii.org/us/cases/federal/USSC/1972/168.html) (1972) |
| *[Massachusetts Board of Retirement v Murgia](https://en.wikipedia.org/wiki/Massachusetts_Board_of_Retirement_v_Murgia "Massachusetts Board of Retirement v Murgia")* 427 U.S. 307 (1976) |
| [Emergency Relief Appropriation Act of 1935](https://en.wikipedia.org/wiki/Emergency_Relief_Appropriation_Act_of_1935 "Emergency Relief Appropriation Act of 1935") |
| [Employment Act of 1946](https://en.wikipedia.org/wiki/Employment_Act_of_1946 "Employment Act of 1946"), 15 U.S.C. §1021 |
| [Humphrey-Hawkins Full Employment Act of 1978](https://en.wikipedia.org/wiki/Humphrey-Hawkins_Full_Employment_Act_of_1978 "Humphrey-Hawkins Full Employment Act of 1978"), 15 U.S.C. §3116 |
| [Federal Reserve Act 1913](https://en.wikipedia.org/wiki/Federal_Reserve_Act_1913 "Federal Reserve Act 1913"), 12 U.S.C. §225a |
| [Social Security Act of 1935](https://en.wikipedia.org/wiki/Social_Security_Act_of_1935 "Social Security Act of 1935"), 42 U.S.C. §§501-4, 1101-5 |
| *[Ohio Bureau of Emp. Services v Hodary](https://en.wikipedia.org/w/index.php?title=Ohio_Bureau_of_Employment_Services_v_Hodary&action=edit&redlink=1 "Ohio Bureau of Employment Services v Hodary (page does not exist)")*, 431 U.S. 471 (1977) |
| [Internal Revenue Code](https://en.wikipedia.org/wiki/Internal_Revenue_Code "Internal Revenue Code") §3304(a)(5) |
| [ILO](https://en.wikipedia.org/wiki/ILO "ILO"), [Private Employment Agencies Convention, 1997](https://en.wikipedia.org/wiki/Private_Employment_Agencies_Convention,_1997 "Private Employment Agencies Convention, 1997") |
| *[Brazee v Michigan](https://en.wikipedia.org/w/index.php?title=Brazee_v_Michigan&action=edit&redlink=1 "Brazee v Michigan (page does not exist)")*, [241](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_241 "List of United States Supreme Court cases, volume 241") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [340](https://supreme.justia.com/cases/federal/us/241/340/) (1916) |
| *[Adams v Tanner](https://en.wikipedia.org/wiki/Adams_v_Tanner "Adams v Tanner")*, 244 U.S. 590 (1917) |
| See [US labor law](https://en.wikipedia.org/wiki/US_labor_law "US labor law") and [unions](https://en.wikipedia.org/wiki/Trade_unions_in_the_United_States "Trade unions in the United States") |
Main articles: [Unemployment in the United States](https://en.wikipedia.org/wiki/Unemployment_in_the_United_States "Unemployment in the United States"), [Job guarantee](https://en.wikipedia.org/wiki/Job_guarantee "Job guarantee"), and [Full employment](https://en.wikipedia.org/wiki/Full_employment "Full employment")
The right to [full employment](https://en.wikipedia.org/wiki/Full_employment "Full employment") or the "[right to work](https://en.wikipedia.org/wiki/Right_to_work "Right to work")" in a fair paying job is a universal human right in [international law](https://en.wikipedia.org/wiki/International_law "International law"),[\[501\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-501) partly inspired by the experience of the [New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal") in the 1930s.[\[502\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-502) [Unemployment](https://en.wikipedia.org/wiki/Unemployment "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](https://en.wikipedia.org/wiki/Bargaining_power "Bargaining power") tends to be higher and pay tends to rise, but high unemployment tends to reduce worker power and pay,[\[503\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-503) 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](https://en.wikipedia.org/wiki/Truax_v._Raich "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".[\[504\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-504) During the [New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal") with unemployment having reached 20% after the [Wall Street Crash of 1929](https://en.wikipedia.org/wiki/Wall_Street_Crash_of_1929 "Wall Street Crash of 1929"), the [Emergency Relief Appropriation Act of 1935](https://en.wikipedia.org/wiki/Emergency_Relief_Appropriation_Act_of_1935 "Emergency Relief Appropriation Act of 1935") empowered the President to create the [Works Progress Administration](https://en.wikipedia.org/wiki/Works_Progress_Administration "Works Progress Administration"), which aimed to directly employ people on fair wages.[\[505\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-505) By 1938, the [WPA](https://en.wikipedia.org/wiki/Works_Progress_Administration "Works Progress Administration") employed 3.33 million people, and built streets, bridges and buildings across the country. Also created by the 1935 Act, the [Rural Electrification Administration](https://en.wikipedia.org/wiki/Rural_Electrification_Administration "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.
[](https://en.wikipedia.org/wiki/File:United_States_unemployment_with_incarceration_1892-2016.png)
[Unemployment](https://en.wikipedia.org/wiki/Unemployment "Unemployment") since World War I has been lower under Democratic presidents and higher under Republican presidents. The high rate of [incarceration](https://en.wikipedia.org/wiki/Incarceration_in_the_United_States "Incarceration in the United States") raised real unemployment by around 1.5% since 1980.[\[506\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-506)
After World War II, the [Employment Act of 1946](https://en.wikipedia.org/wiki/Employment_Act_of_1946 "Employment Act of 1946") declared a policy of Congress to "promote full employment and production, increased real income... and reasonable price stability".[\[507\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-507) 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".[\[508\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-508) By the 1970s, there was a growing opinion that the [Equal Protection Clause](https://en.wikipedia.org/wiki/Equal_Protection_Clause "Equal Protection Clause") itself in the [14th Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") should also mean, according to [Justice Marshall](https://en.wikipedia.org/wiki/Thurgood_Marshall "Thurgood Marshall") in *[Board of Regents of State Colleges v. Roth](https://en.wikipedia.org/wiki/Board_of_Regents_of_State_Colleges_v._Roth "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."[\[509\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-509) The [Humphrey–Hawkins Full Employment Act](https://en.wikipedia.org/wiki/Humphrey%E2%80%93Hawkins_Full_Employment_Act "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".[\[510\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-510) 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.[\[511\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-511) It includes "policy priorities" of the "development of energy sources and supplies, transportation, and environmental improvement".[\[512\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-512) These powers of a [job guarantee](https://en.wikipedia.org/wiki/Job_guarantee "Job guarantee"), full employment, and environmental improvement have not yet been used. During the [2008 financial crisis](https://en.wikipedia.org/wiki/2008_financial_crisis "2008 financial crisis"), the [American Recovery and Reinvestment Act of 2009](https://en.wikipedia.org/wiki/American_Recovery_and_Reinvestment_Act_of_2009 "American Recovery and Reinvestment Act of 2009") was passed to enable more spending, but not a job guarantee.
[](https://en.wikipedia.org/wiki/File:WPA-Work-Pays-America-Poster.jpg)
The [Works Progress Administration](https://en.wikipedia.org/wiki/Works_Progress_Administration "Works Progress Administration") from 1935 to 1943[\[513\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-513) created 8.5m jobs spending \$1.3bn a year to get out of the [Great Depression](https://en.wikipedia.org/wiki/Great_Depression "Great Depression").
While the laws for a federal or state [job guarantee](https://en.wikipedia.org/wiki/Job_guarantee "Job guarantee") have not yet been used, the [Federal Reserve Act](https://en.wikipedia.org/wiki/Federal_Reserve_Act "Federal Reserve Act") 1913 does require that the Board of Governors of the [Federal Reserve System](https://en.wikipedia.org/wiki/Federal_Reserve_System "Federal Reserve System") should use its powers "to promote effectively the goals of [maximum employment](https://en.wikipedia.org/wiki/Maximum_employment "Maximum employment"), stable prices, and moderate long-term interest rates."[\[514\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-514) 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.[\[515\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-515) However, the Federal Reserve became dominated by a theory of a [natural rate of unemployment](https://en.wikipedia.org/wiki/Natural_rate_of_unemployment "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](https://en.wikipedia.org/wiki/Milton_Friedman "Milton Friedman") that central banks should use monetary policy only to control inflation, according to the [non-accelerating inflation rate of unemployment](https://en.wikipedia.org/wiki/Non-accelerating_inflation_rate_of_unemployment "Non-accelerating inflation rate of unemployment") (NAIRU).[\[516\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-516) 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,[\[517\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-517) and the US unemployment rate follows which political party is in the White House.[\[518\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-518)
> ... my friends, after this [war](https://en.wikipedia.org/wiki/World_War_I "World War I"), there will be a great [unemployment](https://en.wikipedia.org/wiki/Unemployment_in_the_United_States "Unemployment in the United States") 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](https://en.wikipedia.org/wiki/Amalgamated_Clothing_Workers_of_America "Amalgamated Clothing Workers of America"). And I say, courage to the strikers, and courage to the delegates, because great times are coming, stressful days are here, and I hope your hearts will be strong, and I hope you will be one hundred per cent union when it comes\!
—[Nicholas Klein](https://en.wikipedia.org/wiki/Nicholas_Klein "Nicholas Klein"), *Biennial Convention of the Amalgamated Clothing Workers of America* ([1918](https://en.wikisource.org/wiki/And_Then_They_Build_Monuments_to_You))
If despite fiscal and monetary policy people are unemployed, the Social Security Act of 1935 creates [unemployment insurance](https://en.wikipedia.org/wiki/Unemployment_insurance "Unemployment insurance").[\[519\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-519) 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.[\[520\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-520) Employees cannot get benefits if they are laid off for misconduct,[\[521\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-521) and for participation in strikes,[\[522\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-522) 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.[\[523\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-523) 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.[\[524\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-524)
### Trade and international law
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=26 "Edit section: Trade and international law")\]
Main articles: [International labor law](https://en.wikipedia.org/wiki/International_labor_law "International labor law") and [International trade law](https://en.wikipedia.org/wiki/International_trade_law "International trade law")
> \[The [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") ...\] has for its object the establishment of [universal peace](https://en.wikipedia.org/wiki/Universal_peace "Universal peace"), and such a peace can be established only if it is based upon [social justice](https://en.wikipedia.org/wiki/Social_justice "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](https://en.wikipedia.org/wiki/Working_time "Working time") and week, the regulation of the labor supply, the prevention of unemployment, the provision of an adequate [living wage](https://en.wikipedia.org/wiki/Living_wage "Living wage"), the protection of the worker against sickness, disease and injury arising out of his employment, the protection of [children](https://en.wikipedia.org/wiki/Child_labor "Child labor"), 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](https://en.wikipedia.org/wiki/Freedom_of_association "Freedom of association"), the organization of vocational and technical education ...
—[Versailles Treaty of 1919](https://en.wikipedia.org/wiki/Versailles_Treaty_of_1919 "Versailles Treaty of 1919") Part XIII
- [US Constitution](https://en.wikipedia.org/wiki/US_Constitution "US Constitution"), [Article I, Section 8, Clause 3](https://en.wikipedia.org/wiki/Article_I,_Section_8,_Clause_3 "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](https://en.wikipedia.org/wiki/Article_IV,_Section_2,_Clause_1 "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](https://en.wikipedia.org/wiki/Freedom_of_movement_under_United_States_law "Freedom of movement under United States law")
- *[Gibbons v. Ogden](https://en.wikipedia.org/wiki/Gibbons_v._Ogden "Gibbons v. Ogden")*, 22 US 1 (1824) and *[Paul v. Virginia](https://en.wikipedia.org/wiki/Paul_v._Virginia "Paul v. Virginia")*, 75 US 168 (1869)
- [Interstate Commerce Act of 1887](https://en.wikipedia.org/wiki/Interstate_Commerce_Act_of_1887 "Interstate Commerce Act of 1887") and [Federal Trade Commission Act of 1914](https://en.wikipedia.org/wiki/Federal_Trade_Commission_Act_of_1914 "Federal Trade Commission Act of 1914")
- [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") and [international labor standards](https://en.wikipedia.org/wiki/International_labor_standards "International labor standards")
- [Bargaining power](https://en.wikipedia.org/wiki/Bargaining_power "Bargaining power"), [race to the bottom](https://en.wikipedia.org/wiki/Race_to_the_bottom "Race to the bottom"), [foreign direct investment](https://en.wikipedia.org/wiki/Foreign_direct_investment "Foreign direct investment"), [human development](https://en.wikipedia.org/wiki/Human_development_\(humanity\) "Human development (humanity)"), [technological change](https://en.wikipedia.org/wiki/Technological_change "Technological change"), [global workforce](https://en.wikipedia.org/wiki/Global_workforce "Global workforce"), immigration
- [Tariff Act of 1890](https://en.wikipedia.org/wiki/Tariff_Act_of_1890 "Tariff Act of 1890"), [Smoot–Hawley Tariff Act of 1930](https://en.wikipedia.org/wiki/Smoot%E2%80%93Hawley_Tariff_Act_of_1930 "Smoot–Hawley Tariff Act of 1930"), [Great Depression](https://en.wikipedia.org/wiki/Great_Depression "Great Depression")
- [United States free trade agreements](https://en.wikipedia.org/wiki/United_States_free_trade_agreements "United States free trade agreements"), [United States International Trade Commission](https://en.wikipedia.org/wiki/United_States_International_Trade_Commission "United States International Trade Commission"), [19 USC](https://en.wikipedia.org/wiki/19_USC "19 USC")
[](https://en.wikipedia.org/wiki/File:1904socialist.jpg)
[Eugene V. Debs](https://en.wikipedia.org/wiki/Eugene_V._Debs "Eugene V. Debs"), founder of the [American Railway Union](https://en.wikipedia.org/wiki/American_Railway_Union "American Railway Union") and five-time presidential candidate, was jailed twice for organizing the [Pullman Strike](https://en.wikipedia.org/wiki/Pullman_Strike "Pullman Strike") and denouncing [World War I](https://en.wikipedia.org/wiki/World_War_I "World War I"). His life story is told in a documentary by Bernie Sanders.[\[525\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-525)
- [Trade Act of 1974](https://en.wikipedia.org/wiki/Trade_Act_of_1974 "Trade Act of 1974"), [Trade Agreements Act of 1979](https://en.wikipedia.org/wiki/Trade_Agreements_Act_of_1979 "Trade Agreements Act of 1979"), [Trade Act of 2002](https://en.wikipedia.org/wiki/Trade_Act_of_2002 "Trade Act of 2002"), [Trade Preferences Extension Act of 2015](https://en.wikipedia.org/wiki/Trade_Preferences_Extension_Act_of_2015 "Trade Preferences Extension Act of 2015") and [Fast track (trade)](https://en.wikipedia.org/wiki/Fast_track_\(trade\) "Fast track (trade)")
- [North American Free Trade Agreement](https://en.wikipedia.org/wiki/North_American_Free_Trade_Agreement "North American Free Trade Agreement"), 19 USC ch 21, §3301
- [World Trade Organization](https://en.wikipedia.org/wiki/World_Trade_Organization "World Trade Organization") and [Uruguay Round Agreements Act of 1994](https://en.wikipedia.org/wiki/Uruguay_Round_Agreements_Act_of_1994 "Uruguay Round Agreements Act of 1994")
- [Permanent normal trade relations](https://en.wikipedia.org/wiki/Permanent_normal_trade_relations "Permanent normal trade relations")
- [Trans-Pacific Partnership](https://en.wikipedia.org/wiki/Trans-Pacific_Partnership "Trans-Pacific Partnership") and [Transatlantic Trade and Investment Partnership](https://en.wikipedia.org/wiki/Transatlantic_Trade_and_Investment_Partnership "Transatlantic Trade and Investment Partnership")
- Three potential views are:
- (1) expansion of trade is good because it increases the scope for [division of labor](https://en.wikipedia.org/wiki/Division_of_labor "Division of labor") and expanding markets. So, all customs, taxes, and equivalent restrictions against [market access](https://en.wikipedia.org/wiki/Market_access "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](https://en.wikipedia.org/wiki/Human_development_\(humanity\) "Human development (humanity)") and the workers' rate of [productivity](https://en.wikipedia.org/wiki/Productivity "Productivity").
## Labor law in individual states
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=27 "Edit section: Labor law in individual states")\]
### California
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=28 "Edit section: California")\]
Main articles: [California Labor Code](https://en.wikipedia.org/wiki/California_Labor_Code "California Labor Code") and [California Department of Fair Employment and Housing](https://en.wikipedia.org/wiki/California_Department_of_Fair_Employment_and_Housing "California Department of Fair Employment and Housing")
In 1959, California added the Division of Fair Employment Practices to the [California Department of Industrial Relations](https://en.wikipedia.org/wiki/California_Department_of_Industrial_Relations "California Department of Industrial Relations"). The Fair Employment and Housing Act[\[526\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-526) of 1980 gave the division its own [Department of Fair Employment and Housing](https://en.wikipedia.org/wiki/Department_of_Fair_Employment_and_Housing "Department of Fair Employment and Housing"), with the stated purpose of protecting citizens against [harassment](https://en.wikipedia.org/wiki/Harassment "Harassment") and [employment discrimination](https://en.wikipedia.org/wiki/Employment_discrimination "Employment discrimination") on the basis of:[\[527\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-527) 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](https://en.wikipedia.org/wiki/Sexual_orientation "Sexual orientation") was not specifically included in the original law but precedent was established based on [case law](https://en.wikipedia.org/wiki/Case_law "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.[\[528\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-528)
The state also has its own labor law covering agricultural workers, the [California Agricultural Labor Relations Act](https://en.wikipedia.org/wiki/California_Agricultural_Labor_Relations_Act "California Agricultural Labor Relations Act").
### New Jersey
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=29 "Edit section: New Jersey")\]
In 1945, New Jersey enacted the first statewide civil rights act in the entire nation. with the purpose of protecting citizens against [harassment](https://en.wikipedia.org/wiki/Harassment "Harassment") and [employment discrimination](https://en.wikipedia.org/wiki/Employment_discrimination "Employment discrimination") on the basis of: race, creed, color, national origin, nationality, or ancestry.[\[529\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-529) 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.[\[530\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-530)
### Laws restricting unions
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=30 "Edit section: Laws restricting unions")\]
Main article: [Right-to-work law](https://en.wikipedia.org/wiki/Right-to-work_law "Right-to-work law")
[](https://en.wikipedia.org/wiki/File:Right_to_Work_states.svg)
[Right-to-work states](https://en.wikipedia.org/wiki/Right-to-work_law "Right-to-work law")
Statewide Right-to-work law
Local Right-to-work laws
No Right-to-work law
As of 2019[\[update\]](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit), twenty-six states plus [Guam](https://en.wikipedia.org/wiki/Guam "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](https://en.wikipedia.org/wiki/Save_Our_Secret_Ballot "Save Our Secret Ballot")" pushed four states: Arizona, South Carolina, South Dakota, and Utah to pass constitutional amendments to ban [card check](https://en.wikipedia.org/wiki/Card_check "Card check").
## Enforcement of rights
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=31 "Edit section: Enforcement of rights")\]
- [United States Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor")
- [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board")
- *[Ford Motor Co. v. NLRB](https://en.wikipedia.org/wiki/Ford_Motor_Co._v._NLRB "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](https://en.wikipedia.org/wiki/In_re_NLRB "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](https://en.wikipedia.org/wiki/Equal_Employment_Opportunity_Commission "Equal Employment Opportunity Commission")
- *[Elgin v. Department of Treasury](https://en.wikipedia.org/wiki/Elgin_v._Department_of_Treasury "Elgin v. Department of Treasury")*, 567 U.S. \_\_\_ (2012) 6 to 3, under the [Civil Service Reform Act of 1978](https://en.wikipedia.org/wiki/Civil_Service_Reform_Act_of_1978 "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](https://en.wikipedia.org/wiki/Merit_Systems_Protection_Board "Merit Systems Protection Board").
- *[United Mine Workers of America v. Gibbs](https://en.wikipedia.org/wiki/United_Mine_Workers_of_America_v._Gibbs "United Mine Workers of America v. Gibbs")*, 383 U.S. 715 (1966) state and federal jurisdiction in labor disputes
## See also
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=32 "Edit section: See also")\]
- [](https://en.wikipedia.org/wiki/File:Syndicalism.svg)[Organized labour portal](https://en.wikipedia.org/wiki/Portal:Organized_labour "Portal:Organized labour")
- [Labor law](https://en.wikipedia.org/wiki/Labor_law "Labor law")
- [European labour law](https://en.wikipedia.org/wiki/European_labour_law "European labour law")
- [UK labour law](https://en.wikipedia.org/wiki/UK_labour_law "UK labour law")
- [Right to sit in the United States](https://en.wikipedia.org/wiki/Right_to_sit_in_the_United_States "Right to sit in the United States")
- [Social law](https://en.wikipedia.org/wiki/Social_law "Social law")
- [Child labor laws in the United States](https://en.wikipedia.org/wiki/Child_labor_laws_in_the_United_States "Child labor laws in the United States")
Organizations
- [American Rights at Work](https://en.wikipedia.org/wiki/American_Rights_at_Work "American Rights at Work"), a charity supporting union rights
- [Congress of Industrial Organizations](https://en.wikipedia.org/wiki/Congress_of_Industrial_Organizations "Congress of Industrial Organizations")
- [International Society for Labor Law and Social Security](https://en.wikipedia.org/wiki/International_Society_for_Labor_Law_and_Social_Security "International Society for Labor Law and Social Security")
- [National Labor Federation](https://en.wikipedia.org/wiki/National_Labor_Federation "National Labor Federation"), an organization supporting workers outside the protection of federal labor laws
- [United States Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor"), includes a list of [labor legislation](https://en.wikipedia.org/wiki/Labor_legislation "Labor legislation")
## Notes
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=33 "Edit section: Notes")\]
1. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-1)** See [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization"), *Recent US Labor Market Data* ([2013](http://www.ilo.org/washington/ilo-and-the-united-states/spot-light-on-the-us-labor-market/recent-us-labor-market-data/lang--en/index.htm))
2. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-2)** UN, *Human Development Report* (2025) [Table 3](http://hdr.undp.org/en/composite/IHDI)
3. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-3)** [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§151](https://www.law.cornell.edu/uscode/text/29/151). J. R. Commons and J. B. Andrews, *Principles of Labor Legislation* (Harper 1916) ch 1, The basis of labor law, 9, "where bargaining power on the one side is power to withhold access to physical [property](https://en.wikipedia.org/wiki/Property "Property") and the necessaries of life, and on the other side is only power to withhold labor by doing without those necessaries, then equality of rights may signify inequality of bargaining power."
4. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-4)** Most statutes explicitly encourage this, including the [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), and the [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "Family and Medical Leave Act of 1993"). "[Federal preemption](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption")" rules have, however, restricted experimentation in key areas. These include the [National Labor Relations Act 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_1935 "National Labor Relations Act 1935"), as the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") developed a doctrine not found in the act, and [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974").
5. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-5)** [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§§301–306](http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter7/subchapter1&edition=prelim) [Archived](https://web.archive.org/web/20220126122253/http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter7/subchapter1&edition=prelim) January 26, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine") on federally funded state programs and [§§401–434](http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter7/subchapter2&edition=prelim) [Archived](https://web.archive.org/web/20210416222552/https://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter7/subchapter1&edition=prelim) April 16, 2021, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine") on federal old age, survivors and disability insurance benefits.
6. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-6)** [15 USC §17](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim) [Archived](https://web.archive.org/web/20210414021534/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim) April 14, 2021, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"), "The labor of a human being [is not a commodity](https://en.wikipedia.org/wiki/Labour_is_not_a_commodity "Labour is not a commodity") or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws."
7. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-7)** D Webber, *The Rise of the Working Class Shareholders: Labor's Last Best Weapon* ([2018](http://www.hup.harvard.edu/catalog.php?isbn=9780674972131))
8. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-8)** E McGaughey, 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019) [42 *Seattle University Law Review* 697](https://digitalcommons.law.seattleu.edu/sulr/vol42/iss2/18/)
9. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-9)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964") §703(a)(1), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2(a)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) [Archived](https://web.archive.org/web/20220119024348/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) January 19, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"), "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."
10. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-10)** cf [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization"), [Termination of Employment Convention, 1982](https://en.wikipedia.org/wiki/Termination_of_Employment_Convention,_1982 "Termination of Employment Convention, 1982") setting out general principles on fair reasons for discharge of workers.
11. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-11)** The [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") to the last major statute [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974"). [C. L. Estlund](https://en.wikipedia.org/wiki/C._L._Estlund "C. L. Estlund"), 'The Ossification of American Labor Law' (2002) [102 *Columbia Law Review* 1527](https://www.jstor.org/stable/1123792) argues that collective labor right "ossified" with the [Labor Management Reporting and Disclosure Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disclosure_Act_of_1959 "Labor Management Reporting and Disclosure Act of 1959"), after which there was a "longstanding political impasse at the national level". E. McGaughey, 'Fascism-Lite in America (or the Social Ideal of Donald Trump)' (2018) [7(1) British Journal of American Legal Studies](https://ssrn.com/abstract=3024584), 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."
12. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-12)** See JV Orth, *Combination and conspiracy: a legal history of trade unionism, 1721–1906* (1992)
13. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-13)** *[R v Journeymen-Taylors of Cambridge](https://en.wikipedia.org/wiki/R_v_Journeymen-Taylors_of_Cambridge "R v Journeymen-Taylors of Cambridge")* (1721) 8 Mod 10, 88 ER 9
14. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-14)** C Tomlins, 'Reconsidering Indentured Servitude: European Migration and the Early American Labor Force, 1600–1775' (2001) [42 Labor History 5](http://www.tandfonline.com/doi/abs/10.1080/00236560123269?journalCode=clah20)
15. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-15)** (1772) [98 ER 499](http://www.commonlii.org/int/cases/EngR/1772/57.pdf)
16. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-16)** AW Blumrosen, 'The Profound Influence in America of Lord Mansfield's Decision in Somerset v Stuart' (2007) [13 *Texas Wesleyan Law Review* 645](http://heinonline.org/HOL/LandingPage?handle=hein.journals/twlr13&div=28&id=&page=)
17. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-17)** [Slave Trade Act 1807](https://en.wikipedia.org/wiki/Slave_Trade_Act_1807 "Slave Trade Act 1807")
18. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-18)** The [Slavery Abolition Act 1833](https://en.wikipedia.org/wiki/Slavery_Abolition_Act_1833 "Slavery Abolition Act 1833") distributed around £20 million, around \$3 billion in 2017 dollars. See the [UCL Legacies of British Slave-ownership](https://www.ucl.ac.uk/lbs/) page.
19. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-19)** [60 US 393](http://www.worldlii.org/us/cases/federal/USSC/1856/9.html) (1857)
20. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-20)** See also [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons"), *[Principles of Labor Legislation](https://en.wikipedia.org/wiki/Principles_of_Labor_Legislation "Principles of Labor Legislation")* (1916) [ch II, 38–40](https://archive.org/stream/cu31924020748095#page/n55/mode/2up/search/cambridge)
21. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-21)** *[Civil Rights Cases](https://en.wikipedia.org/wiki/Civil_Rights_Cases "Civil Rights Cases")*, [109 US 3](http://www.worldlii.org/us/cases/federal/USSC/1883/182.html) (1883)
22. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-22)** S Perlman, *A History of Trade Unionism in the United States* (1922)
23. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-23)** 3 Doc Hist 59 (1806)
24. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-24)** 45 Mass. 111, 4 Metcalf 111 (1842)
25. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-25)** See EE Witte, 'Early American Labor Cases' (1926) [35 Yale Law Journal 829](https://www.jstor.org/stable/789460), employers brought at least three successful claims against their employees before 1863, and fifteen up to 1880 for "conspiracy". See also FB Sayre, 'Criminal Conspiracy' (1922) [35 *Harvard Law Review* 393](https://www.jstor.org/stable/1328648). W.. Holt, 'Labor Conspiracy Cases in the United States, 1805–1842: Bias and Legitimation in Common Law Adjudication' (1984) [22 *Osgoode Hall Law Journal* 591](http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1913&context=ohlj). 'Tortious Interference with Contractual Relations in the Nineteenth Century' (1980) 93 *Harvard Law Review* 1510.
26. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-26)** 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.
27. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-27)** See U.S. Congress, Senate, *[Final Report and Testimony Submitted to Congress by the Commission on Industrial Relations](https://en.wikipedia.org/wiki/Final_Report_and_Testimony_Submitted_to_Congress_by_the_Commission_on_Industrial_Relations "Final Report and Testimony Submitted to Congress by the Commission on Industrial Relations")* (Government Printing Office, 1916) [64th Cong., 1st sess., S. Doc. 415, 2, 1526–1529](http://historymatters.gmu.edu/d/5757/)
28. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-28)** See TW Hazlett, 'The Legislative History of the Sherman Act Re-examined' (1992) [30 Economic Inquiry 263](https://www.proquest.com/docview/1297279202?pq-origsite=gscholar), 266 and H Hovenkamp, 'Labor Conspiracies in American Law, 1880–1930' (1988) [66 *Texas Law Review* 919](http://heinonline.org/HOL/Page?handle=hein.journals/tlr66&div=45&g_sent=1&collection=journals)
29. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-29)** 64 Fed 724 (CC Ill 1894), [158](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_158 "List of United States Supreme Court cases, volume 158") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [564](https://supreme.justia.com/cases/federal/us/158/564/) (1895) imposed an injunction on the striking workers of the Pullman Company, leading to [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs") being imprisoned. See the [Documentary by Bernie Sanders](https://www.youtube.com/watch?v=w82pFvUq3o8&t=323s) (1979)
30. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-30)** See also *[Oklahoma v. Coyle](https://en.wikipedia.org/w/index.php?title=Oklahoma_v._Coyle&action=edit&redlink=1 "Oklahoma v. Coyle (page does not exist)")*, 1913 OK CR 42, 8 Okl.Cr. 686, 130 P. 316 per [Henry Marshall Furman](https://en.wikipedia.org/wiki/Henry_Marshall_Furman "Henry Marshall Furman")
31. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-31)** 167 Mass. 92 (1896) See also *[Plant v. Woods](https://en.wikipedia.org/w/index.php?title=Plant_v._Woods&action=edit&redlink=1 "Plant v. Woods (page does not exist)")*, 176 Mass 492, 57 NE 1011 (1900)
32. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-32)** [198](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_198 "List of United States Supreme Court cases, volume 198") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [45](https://supreme.justia.com/cases/federal/us/198/45/) (1905)
33. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-33)** [208](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_208 "List of United States Supreme Court cases, volume 208") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [274](https://supreme.justia.com/cases/federal/us/208/274/) (1908)
34. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-34)** Now 15 USC §17
35. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-35)** On the "science" of management that developed, see [FW Taylor](https://en.wikipedia.org/wiki/FW_Taylor "FW Taylor"), *[The Principles of Scientific Management](https://en.wikipedia.org/wiki/The_Principles_of_Scientific_Management "The Principles of Scientific Management")* ([1911](https://archive.org/stream/principlesofscie00taylrich#page/n5/mode/2up)). Contrast [LD Brandeis](https://en.wikipedia.org/wiki/LD_Brandeis "LD Brandeis"), 'The Fundamental Cause of Industrial Unrest' (1916) vol 8, 7659–7660 from the [US Commission on Industrial Relations](https://en.wikipedia.org/wiki/US_Commission_on_Industrial_Relations "US Commission on Industrial Relations"), Final Report and Testimony ([Government Printing Office 1915](https://archive.org/details/finalreportofcom00unitiala))
36. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-36)** *[Adair v. United States](https://en.wikipedia.org/wiki/Adair_v._United_States "Adair v. United States")* 208 US 161 (1908) on [yellow-dog contracts](https://en.wikipedia.org/wiki/Yellow-dog_contracts "Yellow-dog contracts") being banned in the [Erdman Act of 1898](https://en.wikipedia.org/wiki/Erdman_Act_of_1898 "Erdman Act of 1898") §10 for railroads, not reversed until the [Norris-LaGuardia Act](https://en.wikipedia.org/wiki/Norris-LaGuardia_Act "Norris-LaGuardia Act"). Also *[Coppage v. Kansas](https://en.wikipedia.org/wiki/Coppage_v._Kansas "Coppage v. Kansas")* 236 US 1 (1915) [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J"), Hughes J and Day J dissenting.
37. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-37)** *[Adkins v. Children's Hospital](https://en.wikipedia.org/wiki/Adkins_v._Children%27s_Hospital "Adkins v. Children's Hospital")*, 261 US 525 (1923)
38. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-38)** *[Adams v. Tanner](https://en.wikipedia.org/wiki/Adams_v._Tanner "Adams v. Tanner")*, 244 US 590 (1917)
39. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-39)** *[Duplex Printing Press Co. v. Deering](https://en.wikipedia.org/wiki/Duplex_Printing_Press_Co._v._Deering "Duplex Printing Press Co. v. Deering")*, 254 US 443 (1921)
40. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-40)** *[Hammer v. Dagenhart](https://en.wikipedia.org/wiki/Hammer_v._Dagenhart "Hammer v. Dagenhart")*, 247 US 251 (1918) on the [Keating-Owen Act of 1916](https://en.wikipedia.org/wiki/Keating-Owen_Act_of_1916 "Keating-Owen Act of 1916"). *[Bailey v. Drexel Furniture Co.](https://en.wikipedia.org/wiki/Bailey_v._Drexel_Furniture_Co. "Bailey v. Drexel Furniture Co.")*, 259 US 20 (1922) on federal tax.
41. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-41)** See *[Debs v. United States](https://en.wikipedia.org/wiki/Debs_v._United_States "Debs v. United States")*, 249 US 211 (1919)
42. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-42)** *[State Board of Control v. Buckstegge](https://en.wikipedia.org/w/index.php?title=State_Board_of_Control_v._Buckstegge&action=edit&redlink=1 "State Board of Control v. Buckstegge (page does not exist)")*, 158 Pac 837, 842 (1916) Arizona Supreme Court striking down a new state pension law. *[Railroad Retirement Board v. Alton Railroad Co.](https://en.wikipedia.org/wiki/Railroad_Retirement_Board_v._Alton_Railroad_Co. "Railroad Retirement Board v. Alton Railroad Co.")*, 295 US 330 (1935) striking down a compulsory contributory pension scheme for rail workers.
43. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-43)** See GC Means, 'The Separation of Ownership and Control in American Industry' (1931) [46(1) The Quarterly Journal of Economics 68](https://www.jstor.org/stable/1883922) and [LD Brandeis](https://en.wikipedia.org/wiki/LD_Brandeis "LD Brandeis"), *[Other People's Money and How the Bankers Use It](https://en.wikipedia.org/wiki/Other_People%27s_Money_and_How_the_Bankers_Use_It "Other People's Money and How the Bankers Use It")* (1914)
44. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-44)** See [FD Roosevelt](https://en.wikipedia.org/wiki/FD_Roosevelt "FD Roosevelt"), *Campaign Address on Progressive Government at the Commonwealth Club in San Francisco, California* ([1932](https://en.wikisource.org/wiki/Campaign_Address_on_Progressive_Government_at_the_Commonwealth_Club_in_San_Francisco,_California)) written by [AA Berle](https://en.wikipedia.org/wiki/AA_Berle "AA Berle").
45. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-45)** *[A.L.A. Schechter Poultry Corp. v. United States](https://en.wikipedia.org/wiki/A.L.A._Schechter_Poultry_Corp._v._United_States "A.L.A. Schechter Poultry Corp. v. United States")*, 295 US 495 (1935)
46. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-46)** 300 US 379 (1937)
47. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-47)** See also [Copeland "Anti-kickback" Act of 1934](https://en.wikipedia.org/wiki/Copeland_%22Anti-kickback%22_Act_of_1934 "Copeland \"Anti-kickback\" Act of 1934"), 18 USC §874 and [McNamara–O'Hara Service Contract Act of 1965](https://en.wikipedia.org/wiki/McNamara%E2%80%93O%27Hara_Service_Contract_Act_of_1965 "McNamara–O'Hara Service Contract Act of 1965") wage rates to be paid as prevail in the locality.
48. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-48)** Franklin Delano Roosevelt, *Eleventh State of the Union Address* ([1944](https://en.wikisource.org/wiki/Franklin_Delano_Roosevelt%27s_Eleventh_State_of_the_Union_Address))
49. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto4_49-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto4_49-1) See *[San Diego Building Trades Council v. Garmon](https://en.wikipedia.org/wiki/San_Diego_Building_Trades_Council_v._Garmon "San Diego Building Trades Council v. Garmon")* 359 US 236 (1959) but contrast *[Chamber of Commerce v. Brown](https://en.wikipedia.org/wiki/Chamber_of_Commerce_v._Brown "Chamber of Commerce v. Brown")*, [522 US 60](http://www.worldlii.org/us/cases/federal/USSC/2008/22.html) (2008) where [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") and [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J") dissented.
50. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-50)** *[Brown v. Board of Education of Topeka](https://en.wikipedia.org/wiki/Brown_v._Board_of_Education_of_Topeka "Brown v. Board of Education of Topeka")*, 347 US 483 (1954)
51. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-51)** See *2016 Democratic Party Platform* ([July 21, 2016](https://www.demconvention.com/wp-content/uploads/2016/07/Democratic-Party-Platform-7.21.16-no-lines.pdf) [Archived](https://web.archive.org/web/20161110225904/https://www.demconvention.com/wp-content/uploads/2016/07/Democratic-Party-Platform-7.21.16-no-lines.pdf) November 10, 2016, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"))
52. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-52)** *[NLRB v. Yeshiva University](https://en.wikipedia.org/wiki/NLRB_v._Yeshiva_University "NLRB v. Yeshiva University")*, [444 US 672](http://www.worldlii.org/us/cases/federal/USSC/1980/24.html), (1980), *[NLRB v. Catholic Bishop of Chicago](https://en.wikipedia.org/wiki/NLRB_v._Catholic_Bishop_of_Chicago "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](https://en.wikipedia.org/wiki/Hoffman_Plastic_Compounds,_Inc._v._NLRB "Hoffman Plastic Compounds, Inc. v. NLRB")*, 535 US 137 (2002) 5 to 4 under the NLRA of 1935
53. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-53)** *[Brown v. Hotel and Restaurant Employees](https://en.wikipedia.org/wiki/Brown_v._Hotel_and_Restaurant_Employees "Brown v. Hotel and Restaurant Employees")*, 468 US 491 (1984) 5 to 4 on the NLRA of 1935
54. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-54)** *[Mertens v. Hewitt Associates](https://en.wikipedia.org/wiki/Mertens_v._Hewitt_Associates "Mertens v. Hewitt Associates")*, 508 US 248 (1993) 5 to 4 under [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974").
55. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-55)** e.g. the [Dunlop Report of 1994](https://en.wikipedia.org/wiki/Dunlop_Report_of_1994 "Dunlop Report of 1994"), [Workplace Democracy Act](https://en.wikipedia.org/wiki/Workplace_Democracy_Act "Workplace Democracy Act") of 1999, [Employee Free Choice Act](https://en.wikipedia.org/wiki/Employee_Free_Choice_Act "Employee Free Choice Act"), [Paycheck Fairness Act](https://en.wikipedia.org/wiki/Paycheck_Fairness_Act "Paycheck Fairness Act"), [Equality Act of 2015](https://en.wikipedia.org/wiki/Equality_Act_of_2015 "Equality Act of 2015")
56. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-56)** See Z. Adams, L. Bishop and S. Deakin, *CBR Labour Regulation Index (Dataset of 117 Countries)* (Cambridge, [Centre for Business Research](https://en.wikipedia.org/wiki/Centre_for_Business_Research "Centre for Business Research") [2016](https://www.repository.cam.ac.uk/bitstream/handle/1810/256566/cbr-lri-117-countries-codebook-and-methodology.pdf?sequence=1&isAllowed=y)) 761, United States of America
57. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-g13673_57-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-g13673_57-1) [Guidance for Executive Order 13673, "Fair Pay and Safe Workplaces"; Final Guidance](https://www.osha.gov/laws-regs/federalregister/2016-08-25-0), accessed 10 October 2022
58. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-e13673_58-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-e13673_58-1) [Executive Order 13673](https://en.wikisource.org/wiki/Executive_Order_13673), accessed 6 November 2022
59. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-59)** [Executive Order 13782](https://en.wikisource.org/wiki/Executive_Order_13782), accessed 6 November 2022
60. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-60)** [UDHR 1948](https://en.wikipedia.org/wiki/UDHR_1948 "UDHR 1948") [art 17](https://en.wikisource.org/wiki/Universal_Declaration_of_Human_Rights)
61. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-61)** See *[Lochner v. New York](https://en.wikipedia.org/wiki/Lochner_v._New_York "Lochner v. New York")* [198 US 45](http://www.worldlii.org/us/cases/federal/USSC/1905/100.html) (1905)
62. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-62)** [322](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_322 "List of United States Supreme Court cases, volume 322") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [111](https://supreme.justia.com/cases/federal/us/322/111/) (1944)
63. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-63)** [331](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_331 "List of United States Supreme Court cases, volume 331") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [704](https://supreme.justia.com/cases/federal/us/331/704/) (1947)
64. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-64)** See also *[Goldberg v. Whitaker House Cooperative, Inc](https://en.wikipedia.org/w/index.php?title=Goldberg_v._Whitaker_House_Cooperative,_Inc&action=edit&redlink=1 "Goldberg v. Whitaker House Cooperative, Inc (page does not exist)")*, [366 US 28](http://www.worldlii.org/us/cases/federal/USSC/1961/71.html) (1961), on homeworkers making 'knitted, crocheted, and embroidered goods of all kinds.'
65. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-65)** *[Nationwide Mutual Insurance Co. v. Darden](https://en.wikipedia.org/wiki/Nationwide_Mutual_Insurance_Co._v._Darden "Nationwide Mutual Insurance Co. v. Darden")*, [503](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_503 "List of United States Supreme Court cases, volume 503") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [318](https://supreme.justia.com/cases/federal/us/503/318/) (1992) employee under [ERISA](https://en.wikipedia.org/wiki/ERISA "ERISA"), rejecting two-prongs of the Fourth Circuit's substitute test, based on expectations and reliance.
66. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-66)** [322](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_322 "List of United States Supreme Court cases, volume 322") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [111](https://supreme.justia.com/cases/federal/us/322/111/) (1944), confirmed in *[United States v. Silk](https://en.wikipedia.org/wiki/United_States_v._Silk "United States v. Silk")*, [331](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_331 "List of United States Supreme Court cases, volume 331") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [704](https://supreme.justia.com/cases/federal/us/331/704/) (1947) and *[Nationwide Mutual Insurance Co. v. Darden](https://en.wikipedia.org/wiki/Nationwide_Mutual_Insurance_Co._v._Darden "Nationwide Mutual Insurance Co. v. Darden")*, [503](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_503 "List of United States Supreme Court cases, volume 503") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [318](https://supreme.justia.com/cases/federal/us/503/318/) (1992)
67. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-67)** [Restatement of the Law of Agency, Second](https://en.wikipedia.org/wiki/Restatement_of_the_Law_of_Agency,_Second "Restatement of the Law of Agency, Second") §220 and *[Community for Creative Non-Violence v. Reid](https://en.wikipedia.org/wiki/Community_for_Creative_Non-Violence_v._Reid "Community for Creative Non-Violence v. Reid")*, 490 US 730 (1989)
68. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-68)** [444](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_444 "List of United States Supreme Court cases, volume 444") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [672](https://supreme.justia.com/cases/federal/us/444/672/) (1980)
69. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-69)** [532](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_532 "List of United States Supreme Court cases, volume 532") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [706](https://supreme.justia.com/cases/federal/us/532/706/) (2001)
70. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-70)** cf *[Clackamas Gastroenterology Associates v. Wells](https://en.wikipedia.org/w/index.php?title=Clackamas_Gastroenterology_Associates_v._Wells&action=edit&redlink=1 "Clackamas Gastroenterology Associates v. Wells (page does not exist)")*, [538](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_538 "List of United States Supreme Court cases, volume 538") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [440](https://supreme.justia.com/cases/federal/us/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](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990"). [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J"), joined by [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") dissenting on reasoning, held it was clear that they were.
71. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-71)** [567 US \_\_](https://www.law.cornell.edu/supremecourt/text/11-204) (2012)
72. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-72)** [350 S.E.2d 83](https://web.archive.org/web/20191111222802/https://casetext.com/case/lemmerman-v-williams-oil-co) (1986)
73. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-73)** [535](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_535 "List of United States Supreme Court cases, volume 535") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [137](https://supreme.justia.com/cases/federal/us/535/137/) (2002)
74. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-74)** See [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization"), [Freedom of Association and Protection of the Right to Organise Convention, 1948](https://en.wikipedia.org/wiki/Freedom_of_Association_and_Protection_of_the_Right_to_Organise_Convention,_1948 "Freedom of Association and Protection of the Right to Organise Convention, 1948") [C087](http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312232) and [Right to Organize and Collective Bargaining Convention, 1949](https://en.wikipedia.org/wiki/Right_to_Organize_and_Collective_Bargaining_Convention,_1949 "Right to Organize and Collective Bargaining Convention, 1949") [C098](http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312243:NO)
75. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-75)**
Hern, Alex (September 11, 2015). ["Uber driver declared employee as the company loses another ruling"](https://www.theguardian.com/technology/2015/sep/11/uber-driver-employee-ruling). *[The Guardian](https://en.wikipedia.org/wiki/The_Guardian "The Guardian")*.
76. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-76)** [413 F.2d 310](http://www.worldlii.org/us/cases/federal/USCA5/1969/758.html) (1969)
77. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-77)** See also, *[Zheng v. Liberty Apparel Co](https://en.wikipedia.org/w/index.php?title=Zheng_v._Liberty_Apparel_Co&action=edit&redlink=1 "Zheng v. Liberty Apparel Co (page does not exist)")*, 335 F3d 61 (2003) Second Circuit, Cabranes J finding joint employment.
78. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-78)** [976 F.2d 805](http://www.worldlii.org/us/cases/federal/USCA2/1992/908.html) (1992)
79. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-79)** *[Advance Electric](https://en.wikipedia.org/w/index.php?title=Advance_Electric&action=edit&redlink=1 "Advance Electric (page does not exist)")*, 268 NLRB 1001 (1984)
80. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-80)** [425 US 800](http://www.worldlii.org/us/cases/federal/USSC/1976/88.html) (1976)
81. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-81)** *[Local No International Union of Operating Engineers v. National Labor Relations Board](https://en.wikipedia.org/w/index.php?title=Local_No_International_Union_of_Operating_Engineers_v._National_Labor_Relations_Board&action=edit&redlink=1 "Local No International Union of Operating Engineers v. National Labor Relations Board (page does not exist)")*, [518 F.2d 1040](http://www.worldlii.org/us/cases/federal/USCADC/1975/366.html) (1975)
82. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-82)** e.g. *[Castillo v. Case Farms of Ohio](https://en.wikipedia.org/wiki/Castillo_v._Case_Farms_of_Ohio "Castillo v. Case Farms of Ohio")*, 96 F Supp. 2d 578 (1999) an employer who used an [employment agency](https://en.wikipedia.org/wiki/Employment_agency "Employment agency") called "American Temp Corps", was responsible for how [migrant farm workers](https://en.wikipedia.org/wiki/Migrant_farm_workers "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](https://en.wikipedia.org/wiki/Migrant_and_Seasonal_Agricultural_Workers_Protection_Act_of_1983 "Migrant and Seasonal Agricultural Workers Protection Act of 1983").
83. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-83)** If there is no contract (written, oral, or by conduct) a *[quantum meruit](https://en.wikipedia.org/wiki/Quantum_meruit "Quantum meruit")* claim for [restitution](https://en.wikipedia.org/wiki/Restitution "Restitution") can be available.
84. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-84)** See [F Kessler](https://en.wikipedia.org/wiki/F_Kessler "F Kessler"), 'Contracts of Adhesion—Some Thoughts About Freedom of Contract' (1943) [43(5) *Columbia Law Review* 629](https://www.jstor.org/stable/1117230)
85. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-85)** [National Labor Relations Act 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_1935 "National Labor Relations Act 1935") §1, [29 USC §151](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section151&num=0&edition=prelim) [Archived](https://web.archive.org/web/20210416174806/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section151&num=0&edition=prelim) April 16, 2021, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"), "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."
86. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-86)** [Fair Labor Standards Act 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_1938 "Fair Labor Standards Act 1938"), [29 USC §202](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section202&num=0&edition=prelim)
87. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-87)** e.g. *[Gade v. National Solid Wastes Management Association](https://en.wikipedia.org/wiki/Gade_v._National_Solid_Wastes_Management_Association "Gade v. National Solid Wastes Management Association")*, [505 US 88](http://www.worldlii.org/us/cases/federal/USSC/1992/86.html) (1992) holding 5 to 4 that [OSHA 1970](https://en.wikipedia.org/wiki/OSHA_1970 "OSHA 1970") preempted [Illinois](https://en.wikipedia.org/wiki/Illinois "Illinois") state law that improved training and handling hazardous waste materials.
88. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-88)** e.g. *[Ingersoll-Rand Co. v. McClendon](https://en.wikipedia.org/wiki/Ingersoll-Rand_Co._v._McClendon "Ingersoll-Rand Co. v. McClendon")*, [498 US 133](http://www.worldlii.org/us/cases/federal/USSC/1990/159.html) (1990) holding 6 to 3 that [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") precluded a [Texas](https://en.wikipedia.org/wiki/Texas "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.
89. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-89)** See generally [B. I. Sachs](https://en.wikipedia.org/wiki/B._I._Sachs "B. I. Sachs"), 'Despite Preemption: Making Labor Law in Cities and States' (2011) [124 *Harvard Law Review* 1153](https://ssrn.com/abstract=1788911)
90. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-90)** cf *[New State Ice Co. v. Liebmann](https://en.wikipedia.org/wiki/New_State_Ice_Co._v._Liebmann "New State Ice Co. v. Liebmann")*, 285 US 262 (1932) per [Brandeis J](https://en.wikipedia.org/wiki/Brandeis_J "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."
91. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-91)** *[JI Case Co v. National Labor Relations Board](https://en.wikipedia.org/wiki/JI_Case_Co_v._National_Labor_Relations_Board "JI Case Co v. National Labor Relations Board")* [321 US 322](http://www.worldlii.org/us/cases/federal/USSC/1944/39.html) (1944)
92. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-92)** [321 US 322](http://www.worldlii.org/us/cases/federal/USSC/1944/39.html) (1944)
93. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-93)** See *[McLain v. Great American Insurance Co](https://en.wikipedia.org/w/index.php?title=McLain_v._Great_American_Insurance_Co&action=edit&redlink=1 "McLain v. Great American Insurance Co (page does not exist)")*, 208 Cal. App. 3d 1476 (1989) holding the [parol evidence rule](https://en.wikipedia.org/wiki/Parol_evidence_rule "Parol evidence rule") will rarely apply to employment.
94. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-94)** 662 A2d 89 (1995)
95. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-95)** e.g. *[Demasse v. ITT Corp](https://en.wikipedia.org/w/index.php?title=Demasse_v._ITT_Corp&action=edit&redlink=1 "Demasse v. ITT Corp (page does not exist)")*, 984 P2d 1138 (1999) in the [Arizona Supreme Court](https://en.wikipedia.org/wiki/Arizona_Supreme_Court "Arizona Supreme Court")
96. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-96)** [999 P2d 71](https://scholar.google.com/scholar_case?q=Asmus+v+Pacific+Bell&hl=en&as_sdt=2006&case=5124554271174185010&scilh=0) (2000)
97. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-97)** See *[Kirke La Shelle Company v. The Paul Armstrong Company et al](https://en.wikipedia.org/w/index.php?title=Kirke_La_Shelle_Company_v._The_Paul_Armstrong_Company_et_al&action=edit&redlink=1 "Kirke La Shelle Company v. The Paul Armstrong Company et al (page does not exist)")* 263 NY 79 (1933) and see [Restatement (Second) of Contracts](https://en.wikipedia.org/wiki/Restatement_\(Second\)_of_Contracts "Restatement (Second) of Contracts") §205
98. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-98)** *[Stark v. Circle K Corp](https://en.wikipedia.org/w/index.php?title=Stark_v._Circle_K_Corp&action=edit&redlink=1 "Stark v. Circle K Corp (page does not exist)")*, 230 Mont 468, [751 P2d 162](https://web.archive.org/web/20160820165514/https://casetext.com/case/stark-v-circle-k-corporation) (1988)
99. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-99)** See *[Foley v. Interactive Data Corp](https://en.wikipedia.org/w/index.php?title=Foley_v._Interactive_Data_Corp&action=edit&redlink=1 "Foley v. Interactive Data Corp (page does not exist)")*, [765 P2d 373](http://scocal.stanford.edu/opinion/foley-v-interactive-data-corp-28525) (1988)
100. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-100)** This is also referred to as "mutual trust and confidence". See *[Eastwood v. Magnox Electric plc](https://en.wikipedia.org/w/index.php?title=Eastwood_v._Magnox_Electric_plc&action=edit&redlink=1 "Eastwood v. Magnox Electric plc (page does not exist)")* \[2004\] [UKHL 35](http://www.bailii.org/uk/cases/UKHL/2004/35.html), per Lord Steyn
101. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-101)** See *[Wilson v. Racher](https://en.wikipedia.org/w/index.php?title=Wilson_v._Racher&action=edit&redlink=1 "Wilson v. Racher (page does not exist)")* \[1974\] ICR 428
102. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-102)** *[Johnson v. Unisys Limited](https://en.wikipedia.org/w/index.php?title=Johnson_v._Unisys_Limited&action=edit&redlink=1 "Johnson v. Unisys Limited (page does not exist)")* \[2001\] [UKHL 13](http://www.bailii.org/uk/cases/UKHL/2001/13.html)
103. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-103)** *[Bhasin v. Hrynew](https://en.wikipedia.org/wiki/Bhasin_v._Hrynew "Bhasin v. Hrynew")* \[2014\] [SCR 494](http://www.canlii.org/en/ca/scc/doc/2014/2014scc71/2014scc71.html)
104. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-104)** [Bürgerliches Gesetzbuch](https://en.wikipedia.org/wiki/B%C3%BCrgerliches_Gesetzbuch "Bürgerliches Gesetzbuch") [§138](http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0417). See also [Italian Constitution](https://en.wikipedia.org/wiki/Italian_Constitution "Italian Constitution"), art 36
105. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-105)** e.g. *[Alexander v. Gardner-Denver Co.](https://en.wikipedia.org/wiki/Alexander_v._Gardner-Denver_Co. "Alexander v. Gardner-Denver Co.")*, [415](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_415 "List of United States Supreme Court cases, volume 415") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [36](https://supreme.justia.com/cases/federal/us/415/36/) (1974) state policy favoring arbitration, but arbitrator decision can be reviewed de novo on employment rights.
106. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-106)** [556](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_556 "List of United States Supreme Court cases, volume 556") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [247](https://supreme.justia.com/cases/federal/us/556/247/) (2009)
107. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-107)** See also *[AT\&T Mobility LLC v. Concepcion](https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepcion "AT&T Mobility LLC v. Concepcion")*, [563](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_563 "List of United States Supreme Court cases, volume 563") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [333](https://supreme.justia.com/cases/federal/us/563/333/) (2011) 5 to 4, binding arbitration can be imposed in class action cases for employment and consumer rights
108. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-108)** On economic and political theory, see [J. S. Mill](https://en.wikipedia.org/wiki/J._S._Mill "J. S. Mill"), *[Principles of Political Economy](https://en.wikipedia.org/wiki/Principles_of_Political_Economy "Principles of Political Economy")* (1848) [Book V, ch XI, §§9–11](http://oll.libertyfund.org/titles/101#Mill_0199_1672) and generally *[Shelley v. Kraemer](https://en.wikipedia.org/wiki/Shelley_v._Kraemer "Shelley v. Kraemer")*, [334 US 1](http://www.worldlii.org/us/cases/federal/USSC/1948/63.html) (1948)
109. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-109)** *Massachusetts Bay Colony Records* (1641) vol I, 223. See also [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons"), *History of Labor in the United States* (Macmillan 1918) [vol I, ch II, 50](https://archive.org/stream/historyoflabouri01commuoft#page/50/mode/2up)
110. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-110)** *[Adkins v. Children's Hospital](https://en.wikipedia.org/wiki/Adkins_v._Children%27s_Hospital "Adkins v. Children's Hospital")*, \[www.worldlii.org/us/cases/federal/USSC/1923/78.html 261 US 525\] (1923) per [Taft CJ](https://en.wikipedia.org/wiki/Taft_CJ "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://en.wikipedia.org/w/index.php?title=Murphy_v._Sardell&action=edit&redlink=1 "Murphy v. Sardell (page does not exist)")*, [269 US 530](https://web.archive.org/web/20160821095450/https://casetext.com/case/murphy-v-sardell) (1925) wage laws for young people struck down, [Brandeis J](https://en.wikipedia.org/wiki/Brandeis_J "Brandeis J") dissenting and [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J") objecting.
111. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-CRS-2023_111-0)**
[Congressional Research Service](https://en.wikipedia.org/wiki/Congressional_Research_Service "Congressional Research Service") (March 2, 2023). ["State Minimum Wages: An Overview"](https://crsreports.congress.gov/product/pdf/R/R43792).
Chart on page 3.
112. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-FRED-graph_112-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-FRED-graph_112-1) [FRED Graph](https://fred.stlouisfed.org/graph/?graph_id=529071). Using [U.S. Department of Labor](https://en.wikipedia.org/wiki/U.S._Department_of_Labor "U.S. Department of Labor") data. [Federal Minimum Hourly Wage for Nonfarm Workers for the United States](https://fred.stlouisfed.org/series/FEDMINNFRWG). [Inflation adjusted](https://en.wikipedia.org/wiki/Inflation_adjusted "Inflation adjusted") (by [FRED](https://en.wikipedia.org/wiki/Federal_Reserve_Economic_Data "Federal Reserve Economic Data")) via the [Consumer Price Index for All Urban Consumers: All Items in U.S. City Average (CPIAUCSL)](https://fred.stlouisfed.org/series/CPIAUCSL). Run cursor over graph to see nominal and real minimum wage by month.
113. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-113)** [300 US 379](http://www.worldlii.org/us/cases/federal/USSC/1937/73.html) (1937)
114. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-114)** *[United States v. Darby Lumber Co](https://en.wikipedia.org/wiki/United_States_v._Darby_Lumber_Co "United States v. Darby Lumber Co")*, [312 US 100](http://www.worldlii.org/us/cases/federal/USSC/1941/49.html) (1941) dismissed a challenge to the [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938") being constitutional.
115. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-115)** [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), [29 USC §202(a)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section202&num=0&edition=prelim)
116. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto5_116-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto5_116-1)
["\[USC02\] 29 USC 207: Maximum hours"](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section207&num=0&edition=prelim). *uscode.house.gov*.
117. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto_117-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto_117-1) [29 USC §218(a)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section218&num=0&edition=prelim).
118. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-118)** See the [California Labor Code](https://en.wikipedia.org/wiki/California_Labor_Code "California Labor Code") [§1182.12](http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=LAB&division=2.&title=&part=4.&chapter=1.&article=), requiring a \$10 per hour wage from 2016. [New York Consolidated Laws](https://en.wikipedia.org/wiki/New_York_Consolidated_Laws "New York Consolidated Laws") [LAB art 19](http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO:), 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](https://en.wikipedia.org/w/index.php?title=New_Mexicans_for_Free_Enterprise_v._Santa_Fe&action=edit&redlink=1 "New Mexicans for Free Enterprise v. Santa Fe (page does not exist)")*, 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.
119. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-119)** [527 US 706](http://www.worldlii.org/us/cases/federal/USSC/1999/62.html) (1999)
120. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-120)** Souter J, [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J"), [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J"), [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") dissented.
121. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-121)** This brought the effective position back to *[National League of Cities v. Usery](https://en.wikipedia.org/wiki/National_League_of_Cities_v._Usery "National League of Cities v. Usery")*, [426](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_426 "List of United States Supreme Court cases, volume 426") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [833](https://supreme.justia.com/cases/federal/us/426/833/) (1976) where 5 judges to 4, held the [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "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](https://en.wikipedia.org/w/index.php?title=Garcia_v._San_Antonio_Metro_Transit_Authority&action=edit&redlink=1 "Garcia v. San Antonio Metro Transit Authority (page does not exist)")*, [469](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_469 "List of United States Supreme Court cases, volume 469") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [528](https://supreme.justia.com/cases/federal/us/469/528/) (1985) 5 judges to 4 upheld extension of the [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "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.
122. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-122)** See today [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), [29 USC §203(r)–(s)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section203&num=0&edition=prelim). Previously, *[Walling v. Jacksonville Paper Co.](https://en.wikipedia.org/w/index.php?title=Walling_v._Jacksonville_Paper_Co.&action=edit&redlink=1 "Walling v. Jacksonville Paper Co. (page does not exist)")*, [317 US 564](http://www.worldlii.org/us/cases/federal/USSC/1943/25.html) (1943). See also *[AB Kirschbaum Co v. Walling](https://en.wikipedia.org/w/index.php?title=AB_Kirschbaum_Co_v._Walling&action=edit&redlink=1 "AB Kirschbaum Co v. Walling (page does not exist)")* 316 US 517 (1942), workers building for firms that would not do interstate commerce were not covered, and *[Borden Co v. Borella](https://en.wikipedia.org/w/index.php?title=Borden_Co_v._Borella&action=edit&redlink=1 "Borden Co v. Borella (page does not exist)")* 325 US 679 (1945)
123. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-123)** [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), [29 USC §203(s)(2)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section203&num=0&edition=prelim)
124. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-124)** [29 USC §213](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section213&num=0&edition=prelim) n.b. the statute does not make clear what justifications there are for any exemptions.
125. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-125)** [519 US 452](http://www.worldlii.org/us/cases/federal/USSC/1997/13.html) (1997)
126. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-126)** See *[Adams v. United States](https://en.wikipedia.org/wiki/Adams_v._United_States "Adams v. United States")*, 44 Fed Claims 772 (1999) and *[Erichs v. Venator Group](https://en.wikipedia.org/w/index.php?title=Erichs_v._Venator_Group&action=edit&redlink=1 "Erichs v. Venator Group (page does not exist)")*, Inc 128 F Supp 2d 1255 (ND Cal 2001)
127. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-127)** [551](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_551 "List of United States Supreme Court cases, volume 551") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [158](https://supreme.justia.com/cases/federal/us/551/158/) (2007)
128. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-128)** Under 29 USC §211(c) employers must keep payroll records for evidence of working time.
129. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-129)** *[Jewell Ridge Coal Corp. v. United Mine Workers of America](https://en.wikipedia.org/wiki/Jewell_Ridge_Coal_Corp._v._United_Mine_Workers_of_America "Jewell Ridge Coal Corp. v. United Mine Workers of America")* [325 US 161](http://www.worldlii.org/us/cases/federal/USSC/1945/88.html) (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](https://en.wikipedia.org/wiki/Tennessee_Coal,_Iron_%26_Railroad_Co._v._Muscoda_Local_No._123 "Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123")*, [321 US 590](http://www.worldlii.org/us/cases/federal/USSC/1944/97.html) (1944) travel to work, once underground, was working time.
130. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-130)** [328 US 680](http://www.worldlii.org/us/cases/federal/USSC/1946/110.html) (1946)
131. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-131)** [328 US 680](http://www.worldlii.org/us/cases/federal/USSC/1946/110.html) (1946) per [Murphy J](https://en.wikipedia.org/wiki/Murphy_J "Murphy J"). See also *[Morillion v. Royal Packing Co](https://en.wikipedia.org/w/index.php?title=Morillion_v._Royal_Packing_Co&action=edit&redlink=1 "Morillion v. Royal Packing Co (page does not exist)")*, [22 Cal 4th 575](http://law.justia.com/cases/california/supreme-court/4th/22/575.html) (2000) the [California Supreme Court](https://en.wikipedia.org/wiki/California_Supreme_Court "California Supreme Court") held an employer must pay for hours traveling on company vehicles.
132. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-132)** [323](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_323 "List of United States Supreme Court cases, volume 323") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [126](https://supreme.justia.com/cases/federal/us/323/126/) (1944)
133. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-133)** See *[Martin v. Onion Turnpike Commission](https://en.wikipedia.org/w/index.php?title=Martin_v._Onion_Turnpike_Commission&action=edit&redlink=1 "Martin v. Onion Turnpike Commission (page does not exist)")* 968 F2d 606 (6th 1992) See also *[Merrill v. Exxon Corp](https://en.wikipedia.org/w/index.php?title=Merrill_v._Exxon_Corp&action=edit&redlink=1 "Merrill v. Exxon Corp (page does not exist)")*, 387 FSupp 458 (SD Tex 1974) while pep meetings are working, but Department of Labor approved standard apprenticeship mandatory training was not working time.
134. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-134)** *[Steiner v. Mitchell](https://en.wikipedia.org/w/index.php?title=Steiner_v._Mitchell&action=edit&redlink=1 "Steiner v. Mitchell (page does not exist)")* 350 US 247 (1956)
135. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-135)** *[IBP, Inc. v. Alvarez](https://en.wikipedia.org/wiki/IBP,_Inc._v._Alvarez "IBP, Inc. v. Alvarez")*, 546 US 21 (2005) [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J") for a unanimous court.
136. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-136)** 323 US 37 (1944) [Murphy J](https://en.wikipedia.org/wiki/Murphy_J "Murphy J") holding that higher afternoon wages did not count as "premium" pay that could be ignored.
137. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-137)** [529 US 576](http://www.worldlii.org/us/cases/federal/USSC/2000/38.html) (2000)
138. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-138)** See also *[Skidmore v. Swift & Co](https://en.wikipedia.org/wiki/Skidmore_v._Swift_%26_Co "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.
139. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-139)** 15 USC §1672
140. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-140)** 29 USC §254. See *[McLaughlin v. Richland Shoe Co](https://en.wikipedia.org/w/index.php?title=McLaughlin_v._Richland_Shoe_Co&action=edit&redlink=1 "McLaughlin v. Richland Shoe Co (page does not exist)")*, 468 US 128 (1988) Stevens J, 'willful' means reckless disregard for whether conduct was forbidden by the state. [Brennan J](https://en.wikipedia.org/wiki/Brennan_J "Brennan J") and [Blackmun J](https://en.wikipedia.org/wiki/Blackmun_J "Blackmun J") dissented.
141. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-141)** See R Ray, M Sanes and J Schmitt, 'No Vacation Nation Revisited' (Washington DC 2013) [Center for Economic and Policy Research](http://cepr.net/documents/publications/no-vacation-update-2013-05.pdf) 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".
142. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-142)** See the [Organisation for Economic Co-operation and Development](https://en.wikipedia.org/wiki/Organisation_for_Economic_Co-operation_and_Development "Organisation for Economic Co-operation and Development"), '[Average annual hours actually worked per worker](https://stats.oecd.org/Index.aspx?DataSetCode=ANHRS)' (Retrieved August 9, 2016) showing 1790 hours per year in the US, 1674 hours in the UK, and 1371 in Germany. OECD, 'Society at a glance 2009: OECD social indicators' ([2009](http://www.oecd-ilibrary.org/docserver/download/8109011e.pdf?expires=1470785242&id=id&accname=guest&checksum=B69779C632870268573116DC6B5D56A1)\[*[permanent dead link](https://en.wikipedia.org/wiki/Wikipedia:Link_rot "Wikipedia:Link rot")*\]) 39, Figure 2.17
143. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-143)** See [5 USC §6303](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section6303&num=0&edition=prelim). These are (1) New Year's Day (2) [Martin Luther King Jr.](https://en.wikipedia.org/wiki/Martin_Luther_King_Jr. "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](https://en.wikipedia.org/wiki/Thanksgiving_Day "Thanksgiving Day") (10) Christmas Day.
144. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-144)** [Holidays with Pay Convention 1970](https://en.wikipedia.org/wiki/Holidays_with_Pay_Convention_1970 "Holidays with Pay Convention 1970") (no 132)
145. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-145)** See [HB 2238](http://apps.leg.wa.gov/billinfo/summary.aspx?bill=2238&year=2013)
146. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-146)** See the [Working Time Directive 2003](https://en.wikipedia.org/wiki/Working_Time_Directive_2003 "Working Time Directive 2003") art 7
147. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-147)** [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), [29 USC §213](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section213&num=0&edition=prelim)
148. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-148)** See FT de Vyver, 'The Five-Day Week' (1930) 33(2) Current History 223. Rybczynski, *Waiting for the Weekend* (1991) 142
149. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-149)** [198 US 45](http://www.worldlii.org/us/cases/federal/USSC/1905/100.html) (1905)
150. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-150)**
Robertson, James L. (2019). *Heroes, Rascals, and the Law: Constitutional encounters in Mississippi History*. Jackson, Ms: University Press of Mississippi.
[ISBN](https://en.wikipedia.org/wiki/ISBN_\(identifier\) "ISBN (identifier)")
[9781496819949](https://en.wikipedia.org/wiki/Special:BookSources/9781496819949 "Special:BookSources/9781496819949")
. p. 258.
151. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-151)** Robertson, pp. 262 ff.
152. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-152)** *[West Coast Hotel Co. v. Parrish](https://en.wikipedia.org/wiki/West_Coast_Hotel_Co._v._Parrish "West Coast Hotel Co. v. Parrish")*, 300 US 379 (1937)
153. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-153)** [California](https://en.wikipedia.org/wiki/California "California"), [New Jersey](https://en.wikipedia.org/wiki/New_Jersey "New Jersey"), [Rhode Island](https://en.wikipedia.org/wiki/Rhode_Island "Rhode Island") and [New York](https://en.wikipedia.org/wiki/New_York_\(state\) "New York (state)")
154. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-154)** On the economic effects of rules, see J Frieson, 'The Response of Wages to Protective Labor Legislation: Evidence from Canada' (1996) [49(2) ILR Review 243](http://ilr.sagepub.com/content/49/2/243.short) (showing [empirical evidence](https://en.wikipedia.org/wiki/Empirical_evidence "Empirical evidence") that wages do not fall in unionized workplaces where workers have sufficient [bargaining power](https://en.wikipedia.org/wiki/Bargaining_power "Bargaining power")). Contrast [L Summers](https://en.wikipedia.org/wiki/L_Summers "L Summers"), 'Some simple economics of mandated benefits' (1989) [79(2) American Economic Review 177](https://www.jstor.org/stable/1827753) ([theorizing](https://en.wikipedia.org/wiki/Theory "Theory") (without evidence) that pay will fall to compensate for the cost of any mandated benefit, such as family and medical leave).
155. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-155)** 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."
156. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-156)** 29 USC §2512(a)(2) and on adoption, see *[Kelley v. Crosfield Catalysts](https://en.wikipedia.org/w/index.php?title=Kelley_v._Crosfield_Catalysts&action=edit&redlink=1 "Kelley v. Crosfield Catalysts (page does not exist)")* 135 F2d 1202 (7th Circuit 1998) The same rules for federal employees were codified in 5 USC §§6381–6387.
157. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-157)** 29 USC §2612(a)(2) and 29 USC §2612(f) mothers and fathers must share time if they work for the same employer.
158. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-158)** 29 USC §2612(e)
159. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-159)** 29 USC §2612(e)(2)
160. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-160)** 29 USC §2614(c). If an employee quits, the employer is enabled to recoup costs.
161. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-161)** [535 US 81](http://www.worldlii.org/us/cases/federal/USSC/2002/557.html) (2002)
162. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-162)** 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.
163. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-163)** 29 USC §2617, and see *[Frizzell v. Southwest Motor Freight](https://en.wikipedia.org/w/index.php?title=Frizzell_v._Southwest_Motor_Freight&action=edit&redlink=1 "Frizzell v. Southwest Motor Freight (page does not exist)")*, 154 F3d 641 (6th Circuit 1998)
164. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-164)** 29 USC §2617(a)(1)(A)(iii)
165. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-165)** See *[Moore v. Payless Shoe Source](https://en.wikipedia.org/w/index.php?title=Moore_v._Payless_Shoe_Source&action=edit&redlink=1 "Moore v. Payless Shoe Source (page does not exist)")* (8th Circuit 1998)
166. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-166)** e.g. D. Paquette, 'The enormous ambition of Hillary Clinton's child-care plan' (May 12, 2016) [The Washington Post](https://www.washingtonpost.com/news/wonk/wp/2016/05/12/the-enormous-ambition-of-hillary-clintons-child-care-plan/)
167. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-167)** 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)
168. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-168)** See [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons") and J. B. Andrews, *[Principles of Labor Legislation](https://en.wikipedia.org/wiki/Principles_of_Labor_Legislation "Principles of Labor Legislation")* (1920) [423–438](https://archive.org/stream/principlesoflabo00commrich#page/422/mode/2up)
169. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-169)** See [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") ch 7
170. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-170)** See L Conant, *A Critical Analysis of Industrial Pension Systems* (1922) and M. W. Latimer, *Trade Union Pension Systems* (1932)
171. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-171)** See [LMRA 1947](https://en.wikipedia.org/wiki/LMRA_1947 "LMRA 1947"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§186(c)(5)(B)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section186&num=0&edition=prelim)
172. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-172)** This followed Carnegie's attendance the [Commission on Industrial Relations](https://en.wikipedia.org/wiki/Commission_on_Industrial_Relations "Commission on Industrial Relations") in 1916 to explain labor unrest. See W. Greenough, *It's My Retirement Money – Take Good Care of It: The TIAA-CREF Story* (Irwin 1990) 11–37, and E. McGaughey, 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019) [42 *Seattle University Law Review* 697](https://digitalcommons.law.seattleu.edu/sulr/vol42/iss2/18/)
173. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-173)** [26 USC](https://en.wikipedia.org/wiki/26_USC "26 USC") [§401(k)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title26-section401&num=0&edition=prelim)
174. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-174)** On the theory behind [automatic enrolment](https://en.wikipedia.org/wiki/Automatic_enrolment "Automatic enrolment"), see [R Thaler](https://en.wikipedia.org/wiki/Richard_Thaler "Richard Thaler") and S Benartzi, 'Save more tomorrow: Using Behavioral Economics to Increase Employee Savings' (2004) 112(1) Journal of Political Economy 164 and E McGaughey, 'Behavioural economics and labour law' (2014) [LSE Legal Studies Working Paper No. 20/2014](https://ssrn.com/abstract=2460685)
175. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-175)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), 29 USC §1003(a). This could include any [Voluntary Employee Beneficiary Association](https://en.wikipedia.org/wiki/Voluntary_Employee_Beneficiary_Association "Voluntary Employee Beneficiary Association"), such as for child care cover, sick leave, fringe benefits or extra unemployment insurance.
176. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-176)** [680 F2d 263](http://www.worldlii.org/us/cases/federal/USCA2/1982/447.html) (1982)
177. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-177)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §§1022–1133
178. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-178)** *[Rhorer v. Raytheon Engineers and Constructors, Inc](https://en.wikipedia.org/w/index.php?title=Rhorer_v._Raytheon_Engineers_and_Constructors,_Inc&action=edit&redlink=1 "Rhorer v. Raytheon Engineers and Constructors, Inc (page does not exist)")* [181 F3d 364](http://www.worldlii.org/us/cases/federal/USCA5/1999/1081.html) (5th 1999) a plan beneficiary can enforce terms in the summary plan description, even if the underlying document conflicts.
179. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-179)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §1052
180. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-180)** ERISA 1974, [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1081–1102](http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter18/subchapter1/node551/part3&edition=prelim) [Archived](https://web.archive.org/web/20180623113242/http://uscode.house.gov/view.xhtml?path=%2Fprelim%40title29%2Fchapter18%2Fsubchapter1%2Fnode551%2Fpart3&edition=prelim) June 23, 2018, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"), containing detailed rules.
181. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-181)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC](https://en.wikipedia.org/wiki/29_USC "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.
182. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-182)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §1054
183. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-183)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §1058
184. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-184)** *[Patterson v. Shumate](https://en.wikipedia.org/w/index.php?title=Patterson_v._Shumate&action=edit&redlink=1 "Patterson v. Shumate (page does not exist)")*, 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](https://en.wikipedia.org/w/index.php?title=Guidry_v._Sheet_Metal_Workers_National_Pension_Fund&action=edit&redlink=1 "Guidry v. Sheet Metal Workers National Pension Fund (page does not exist)")*, 493 US 365 (1990)
185. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-185)** [517 US 882](http://www.worldlii.org/us/cases/federal/USSC/1996/52.html) (1996)
186. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-186)** cf *[Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd](https://en.wikipedia.org/wiki/Imperial_Group_Pension_Trust_Ltd_v_Imperial_Tobacco_Ltd "Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd")* \[1991\] 1 WLR 589 and *[Equitable Life Assurance Society v. Hyman](https://en.wikipedia.org/w/index.php?title=Equitable_Life_Assurance_Society_v._Hyman&action=edit&redlink=1 "Equitable Life Assurance Society v. Hyman (page does not exist)")* \[2000\] [UKHL 39](http://www.bailii.org/uk/cases/UKHL/2000/39.html)
187. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-187)** [490 US 714](http://www.worldlii.org/us/cases/federal/USSC/1989/103.html) (1989)
188. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-188)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §1140, however see the highly controversial case *[McGann v. H\&H Music Co](https://en.wikipedia.org/w/index.php?title=McGann_v._H%26H_Music_Co&action=edit&redlink=1 "McGann v. H&H Music Co (page does not exist)")* (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.
189. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-189)** 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](https://en.wikipedia.org/wiki/Fiduciary "Fiduciary")" in law, and bound by special duties. The core duty is to avoid any possibility of a [conflict of interest](https://en.wikipedia.org/wiki/Conflict_of_interest "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](https://en.wikipedia.org/wiki/Negligent "Negligent")) and the duty to follow the terms of one's assignment. Discussed further in *[Peacock v. Thomas](https://en.wikipedia.org/w/index.php?title=Peacock_v._Thomas&action=edit&redlink=1 "Peacock v. Thomas (page does not exist)")* 516 US 349 (1996)
190. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-190)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1104(a)(1)(D)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1104&num=0&edition=prelim)
191. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-191)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1104(a)(1)(B)–(C)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1104&num=0&edition=prelim)
192. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-192)** *[Varity Corp. v. Howe](https://en.wikipedia.org/w/index.php?title=Varity_Corp._v._Howe&action=edit&redlink=1 "Varity Corp. v. Howe (page does not exist)")* 516 US 489 (1996)
193. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-193)** [United States Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor"), *Interpretive bulletin relating to written statements of investment policy, including proxy voting policy or guidelines* (1994) [29 CFR 2509.94–2](https://web.archive.org/web/20000819021217/http://www.dol.gov/dol/allcfr/Title_29/Part_2509/29CFR2509.94-2.htm), "The fiduciary duties described at [ERISA](https://en.wikipedia.org/wiki/ERISA "ERISA") Sec. 404(a)(1)(A) and (B), require that, in voting [proxies](https://en.wikipedia.org/wiki/Proxy_voting "Proxy voting"), 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](https://en.wikipedia.org/wiki/Fiduciary "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."
194. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-194)** See *[Meinhard v. Salmon](https://en.wikipedia.org/wiki/Meinhard_v._Salmon "Meinhard v. Salmon")*, 164 NE 545 (NY 1928) and *[Keech v. Sandford](https://en.wikipedia.org/wiki/Keech_v._Sandford "Keech v. Sandford")* \[1726\] [EWHC Ch J76](http://www.bailii.org/ew/cases/EWHC/1726/J76.html)
195. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-195)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1104(a)(1)(A)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1104&num=0&edition=prelim)
196. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-196)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1106](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1106&num=0&edition=prelim)
197. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-197)** [680 F2d 263](http://www.worldlii.org/us/cases/federal/USCA2/1982/447.html) (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."
198. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-198)** e.g. *[Local 144, Nursing Home Pension Fund v. Demisay](https://en.wikipedia.org/w/index.php?title=Local_144,_Nursing_Home_Pension_Fund_v._Demisay&action=edit&redlink=1 "Local 144, Nursing Home Pension Fund v. Demisay (page does not exist)")*, 508 US 581 (1992) and *[Great-West Life & Annuity Insurance Co v. Knudson](https://en.wikipedia.org/w/index.php?title=Great-West_Life_%26_Annuity_Insurance_Co_v._Knudson&action=edit&redlink=1 "Great-West Life & Annuity Insurance Co v. Knudson (page does not exist)")* 534 US 204 (2002)
199. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-199)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1144](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1144&num=0&edition=prelim)
200. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-200)** *[Shaw v. Delta Air Lines, Inc](https://en.wikipedia.org/w/index.php?title=Shaw_v._Delta_Air_Lines,_Inc&action=edit&redlink=1 "Shaw v. Delta Air Lines, Inc (page does not exist)")*, [463 US 85](https://supreme.justia.com/cases/federal/us/463/85/case.html) (1983) per [Blackmun J](https://en.wikipedia.org/wiki/Blackmun_J "Blackmun J")
201. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-201)** *[Ingersoll-Rand Co. v. McClendon](https://en.wikipedia.org/wiki/Ingersoll-Rand_Co._v._McClendon "Ingersoll-Rand Co. v. McClendon")*, 498 US 133 (1990)
202. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-202)** *[Egelhoff v. Egelhoff](https://en.wikipedia.org/wiki/Egelhoff_v._Egelhoff "Egelhoff v. Egelhoff")*, 532 US 141 (2001)
203. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-203)** *[Metropolitan Life Insurance Co. v. Massachusetts](https://en.wikipedia.org/w/index.php?title=Metropolitan_Life_Insurance_Co._v._Massachusetts&action=edit&redlink=1 "Metropolitan Life Insurance Co. v. Massachusetts (page does not exist)")* 471 US 724 (1985)
204. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-204)** *[FMC Corp. v. Holliday](https://en.wikipedia.org/w/index.php?title=FMC_Corp._v._Holliday&action=edit&redlink=1 "FMC Corp. v. Holliday (page does not exist)")* 498 US 52 (1990) per [O'Connor J](https://en.wikipedia.org/wiki/O%27Connor_J "O'Connor J"). [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J") dissented. See also *[District of Columbia v. Greater Washington Board of Trade](https://en.wikipedia.org/w/index.php?title=District_of_Columbia_v._Greater_Washington_Board_of_Trade&action=edit&redlink=1 "District of Columbia v. Greater Washington Board of Trade (page does not exist)")*, 506 US 125 (1992) Stevens J dissented.
205. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-205)** *[Rush Prudential HMO, Inc. v. Moran](https://en.wikipedia.org/wiki/Rush_Prudential_HMO,_Inc._v._Moran "Rush Prudential HMO, Inc. v. Moran")*, 536 US 355 (2002) Souter J, 5 to 4, held an [Illinois](https://en.wikipedia.org/wiki/Illinois "Illinois") statute requiring 'independent medical review' of a denial of a claim for treatment under an [HMO](https://en.wikipedia.org/wiki/HMO "HMO") contract was not preempted because it was insurance regulation.
206. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto1_206-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto1_206-1) See [HR 1277](https://www.govtrack.us/congress/bills/106/hr1277/text), Title III, §301
207. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-207)** See earlier, [LD Brandeis](https://en.wikipedia.org/wiki/LD_Brandeis "LD Brandeis"), *[Other People's Money and How the Bankers Use It](https://en.wikipedia.org/wiki/Other_People%27s_Money_and_How_the_Bankers_Use_It "Other People's Money and How the Bankers Use It")* ([1914](http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/other-peoples-money-by-louis-d.-brandeis)) 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
208. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-208)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC §1102](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1102&num=0&edition=prelim)
209. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-209)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1105(d)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1105&num=0&edition=prelim)
210. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-210)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §302(c)(5)(B)
211. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-211)** See [US Department of Labor](https://en.wikipedia.org/wiki/US_Department_of_Labor "US Department of Labor"), [Critical, Endangered and WRERA Status Notices](https://web.archive.org/web/20080922014722/http://www.dol.gov/ebsa/criticalstatusnotices.html)' (Retrieved August 11, 2016)
212. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-212)** 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](https://en.wikipedia.org/w/index.php?title=Uniform_Management_of_Public_Employee_Retirement_Systems_Act_of_1997&action=edit&redlink=1 "Uniform Management of Public Employee Retirement Systems Act of 1997 (page does not exist)") §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.
213. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-213)** See, sponsored by [Peter Visclosky](https://en.wikipedia.org/wiki/Peter_Visclosky "Peter Visclosky"), Joint Trusteeship Bill of 1989 [HR 2664](http://thomas.loc.gov/cgi-bin/query/z?c101:H.R.2664.IH:)\[*[permanent dead link](https://en.wikipedia.org/wiki/Wikipedia:Link_rot "Wikipedia:Link rot")*\]. See further R Cook, 'The Case for Joint Trusteeship of Pension Plans' (2002) WorkingUSA 25. Most recently, the Employees' Pension Security Act of 2008 ([HR 5754](http://www.opencongress.org/bill/110-h5754/text) [Archived](https://web.archive.org/web/20250120203225/http://www.opencongress.org/bill/110-h5754/text) January 20, 2025, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")) §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.'
214. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-214)** This inserted a new Securities Exchange Act of 1934 §6(b)(10)
215. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-215)** Text of the [Occupational Safety and Health Act](http://finduslaw.com/occupational_safety_and_health_act_osha_29_u_s_code_chapter_15)
216. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-216)** See [E. Appelbaum](https://en.wikipedia.org/wiki/E._Appelbaum "E. Appelbaum") and LW Hunter, 'Union Participation in Strategic Decisions of Corporations' in [Richard B. Freeman](https://en.wikipedia.org/wiki/Richard_B._Freeman "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
217. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-217)** [Archibald Cox](https://en.wikipedia.org/wiki/Archibald_Cox "Archibald Cox"), D. C. Bok, [Matthew W. Finkin](https://en.wikipedia.org/wiki/Matthew_W._Finkin "Matthew W. Finkin") and R. A. Gorman, *Labor Law: Cases and Materials* (2011)
218. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-218)** [15 USC](https://en.wikipedia.org/wiki/15_USC "15 USC") [§17](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim) [Archived](https://web.archive.org/web/20210414021534/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim) April 14, 2021, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
219. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-219)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§151](https://www.law.cornell.edu/uscode/text/29/151)
220. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-220)** See *[San Diego Building Trades Council v. Garmon](https://en.wikipedia.org/wiki/San_Diego_Building_Trades_Council_v._Garmon "San Diego Building Trades Council v. Garmon")* 359 US 236 (1959) and previously *[Garner v. Teamsters Local 776](https://en.wikipedia.org/wiki/Garner_v._Teamsters_Local_776 "Garner v. Teamsters Local 776")*, 346 US 485, 490 (1953) and most recently *[Chamber of Commerce v. Brown](https://en.wikipedia.org/wiki/Chamber_of_Commerce_v._Brown "Chamber of Commerce v. Brown")*, [522 US 60](http://www.worldlii.org/us/cases/federal/USSC/2008/22.html) (2008) [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") and [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J") dissented.
221. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-221)** [BI Sachs](https://en.wikipedia.org/wiki/BI_Sachs "BI Sachs"), 'Revitalizing labor law' (2010) [31(2) Berkeley Journal of Employment and Labor Law 333](https://www.jstor.org/stable/43551790) and [CL Estlund](https://en.wikipedia.org/wiki/CL_Estlund "CL Estlund"), 'The Ossification of American Labor Law' (2002) 102 Columbia LR 1527. See further [BI Sachs](https://en.wikipedia.org/wiki/BI_Sachs "BI Sachs"), 'Despite Preemption: Making Labor Law in Cities and States' (2011) [1224 *Harvard Law Review* 1153](https://dash.harvard.edu/bitstream/handle/1/10875747/vol124_sachs.pdf?sequence=1), 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](https://en.wikipedia.org/wiki/NLRB "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](https://en.wikipedia.org/wiki/Good_faith "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.'
222. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-222)** See *[NAACP v. Alabama](https://en.wikipedia.org/wiki/NAACP_v._Alabama "NAACP v. Alabama")*, [357 US 449](http://www.worldlii.org/us/cases/federal/USSC/1958/150.html) (1958) referring to the "constitutionally protected right of association".
223. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-223)** [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons"), *History of Labor in the United States* (Macmillan 1918) [vol I, ch 1, 25](https://archive.org/stream/historyoflabouri01commuoft#page/24/mode/2up)
224. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-224)** JB Commons, *A Documentary History of American Industrial Society* (1910)
225. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-225)** [Archibald Cox](https://en.wikipedia.org/wiki/Archibald_Cox "Archibald Cox"), D. C. Bok, [Matthew W. Finkin](https://en.wikipedia.org/wiki/Matthew_W._Finkin "Matthew W. Finkin") and R. A. Gorman, *Labor Law: Cases and Materials* (2006) 11. The federation collapsed during the [Panic of 1837](https://en.wikipedia.org/wiki/Panic_of_1837 "Panic of 1837").
226. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-226)** 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.
227. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-227)** *[In re Debs](https://en.wikipedia.org/wiki/In_re_Debs "In re Debs")*, 64 Fed 724 (CC Ill 1894), 158 U.S. 564 (1895)
228. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto3_228-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto3_228-1) 208 US 274 (1908)
229. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-229)** cf [ILO](https://en.wikipedia.org/wiki/ILO "ILO") [Freedom of Association Convention 1948](https://en.wikipedia.org/wiki/Freedom_of_Association_Convention_1948 "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."
230. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-230)** See historically TW Glocker, *The Government of American Trade Unions* (1913) ch XI, and [American Civil Liberties Union](https://en.wikipedia.org/wiki/American_Civil_Liberties_Union "American Civil Liberties Union"), *Democracy in Trade Unions: A survey, with a program of action* (1943)
231. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-231)** See the [McClellan Committee](https://en.wikipedia.org/wiki/McClellan_Committee "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](https://en.wikipedia.org/wiki/Robert_F._Kennedy "Robert F. Kennedy")'s *[The Enemy Within](https://en.wikipedia.org/wiki/The_Enemy_Within_\(Kennedy_book\) "The Enemy Within (Kennedy book)")* (1960) 190–212. At the [Bakery and Confectionery Workers](https://en.wikipedia.org/wiki/Bakery,_Confectionery,_Tobacco_Workers_and_Grain_Millers_International_Union "Bakery, Confectionery, Tobacco Workers and Grain Millers International Union"), the president had doubled his salary. At the [Allied Trades Unions](https://en.wikipedia.org/w/index.php?title=Allied_Trades_Unions&action=edit&redlink=1 "Allied Trades Unions (page does not exist)") the vice president made a self-dealing transaction. At the [International Union of Operating Engineers](https://en.wikipedia.org/wiki/International_Union_of_Operating_Engineers "International Union of Operating Engineers") officials had extorted money from employers. At the [United Textile Workers Union](https://en.wikipedia.org/wiki/United_Textile_Workers_of_America "United Textile Workers of America"), the president and treasurer bought second homes.
232. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-232)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§ 411](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section411&num=0&edition=prelim)
233. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto2_233-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto2_233-1) [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§ 481](http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter11/subchapter5&edition=prelim)
234. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-234)** *[De Veau v. Braisted](https://en.wikipedia.org/wiki/De_Veau_v._Braisted "De Veau v. Braisted")*, [363](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_363 "List of United States Supreme Court cases, volume 363") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [144](https://supreme.justia.com/cases/federal/us/363/144/) (1960) 5 to 3, the dissenting judges argued that state law could introduce no additional requirement to those in the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"). See also *[Brown v. Hotel and Restaurant Employees](https://en.wikipedia.org/wiki/Brown_v._Hotel_and_Restaurant_Employees "Brown v. Hotel and Restaurant Employees")*, [468](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_468 "List of United States Supreme Court cases, volume 468") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [491](https://supreme.justia.com/cases/federal/us/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](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") § 7. The dissent argued that the requirement was disproportionate because it applied penalties to the whole union rather than the officials.
235. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-235)** 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."
236. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-236)** *[Trbovich v. United Mine Workers](https://en.wikipedia.org/wiki/Trbovich_v._United_Mine_Workers "Trbovich v. United Mine Workers")*, [404](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_404 "List of United States Supreme Court cases, volume 404") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [528](https://supreme.justia.com/cases/federal/us/404/528/) (1972) See also *[Hall v. Cole](https://en.wikipedia.org/w/index.php?title=Hall_v._Cole&action=edit&redlink=1 "Hall v. Cole (page does not exist)")*, [412](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_412 "List of United States Supreme Court cases, volume 412") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [1](https://supreme.justia.com/cases/federal/us/412/1/) (1973) holding that if plaintiffs are successful, they can be awarded fees.
237. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-237)** *[Dunlop v. Bachowski](https://en.wikipedia.org/wiki/Dunlop_v._Bachowski "Dunlop v. Bachowski")*, [421](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_421 "List of United States Supreme Court cases, volume 421") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [560](https://supreme.justia.com/cases/federal/us/421/560/) (1975)
238. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-238)** 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
239. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-239)** See the [ITUC](https://en.wikipedia.org/wiki/ITUC "ITUC"), *[Constitution](http://www.ituc-csi.org/IMG/pdf/Const-ENG-W.pdf)* (2006)
240. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-240)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§ 158(a)(3)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section158&num=0&edition=prelim)
241. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-241)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§ 164(b)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section164&num=0&edition=prelim)
242. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-242)** [367](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_367 "List of United States Supreme Court cases, volume 367") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [740](https://supreme.justia.com/cases/federal/us/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](https://en.wikipedia.org/w/index.php?title=Lincoln_Fed_Labor_Union_19129_v._Northwestern_Iron_%26_Metal_Co&action=edit&redlink=1 "Lincoln Fed Labor Union 19129 v. Northwestern Iron & Metal Co (page does not exist)")*, [335](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_335 "List of United States Supreme Court cases, volume 335") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [525](https://supreme.justia.com/cases/federal/us/335/525/) (1949). *[Communications Workers of America v. Beck](https://en.wikipedia.org/wiki/Communications_Workers_of_America_v._Beck "Communications Workers of America v. Beck")*, [487](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_487 "List of United States Supreme Court cases, volume 487") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [735](https://supreme.justia.com/cases/federal/us/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](https://en.wikipedia.org/wiki/Locke_v._Karass "Locke v. Karass")*, 129 S Ct 798 (2008) legitimate costs included the Maine State Employees Association's costs for in national arbitration litigation.
243. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-243)** *[United States v. Congress of Industrial Organizations](https://en.wikipedia.org/wiki/United_States_v._Congress_of_Industrial_Organizations "United States v. Congress of Industrial Organizations")*, 335 U.S. 106 (1948) there was no violation of the [Federal Corrupt Practices Act 1910](https://en.wikipedia.org/wiki/Federal_Corrupt_Practices_Act_1910 "Federal Corrupt Practices Act 1910") in a union publicly advocating for particular Congress members to be elected.
244. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-244)** *[Buckley v. Valeo](https://en.wikipedia.org/wiki/Buckley_v._Valeo "Buckley v. Valeo")*, 424 US 1 (1976)
245. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-245)** 435 US 765 (1978)
246. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-246)** 558 US 310 (2010)
247. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-247)** 431 US 209 (1977) See further *[Lehnert v. Ferris Faculty Association](https://en.wikipedia.org/wiki/Lehnert_v._Ferris_Faculty_Association "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](https://en.wikipedia.org/wiki/Davenport_v._Washington_Education_Association "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.
248. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-248)** 573 US \_\_ (2014)
249. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-249)** 578 US \_\_ (2016)
250. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-250)**
["\[USC02\] 15 USC 17: Antitrust laws not applicable to labor organizations"](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim). *uscode.house.gov*.
251. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-251)** [208 US 161](http://www.worldlii.org/us/cases/federal/USSC/1908/23.html) (1908)
252. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-252)** 236 US 1 (1915)
253. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-253)** In *Adair*, from [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J") and [McKenna J](https://en.wikipedia.org/wiki/McKenna_J "McKenna J"), and in *Coppage* from Holmes J, [Day J](https://en.wikipedia.org/wiki/Day_J "Day J") and [Hughes J](https://en.wikipedia.org/wiki/Hughes_J "Hughes J")
254. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-254)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§§101–115](http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter6&edition=prelim). This was approved and applied by *[New Negro Alliance v. Sanitary Grocery Co.](https://en.wikipedia.org/wiki/New_Negro_Alliance_v._Sanitary_Grocery_Co. "New Negro Alliance v. Sanitary Grocery Co.")*, [303 US 552](http://www.worldlii.org/us/cases/federal/USSC/1938/101.html) (1938)
255. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-255)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§104](http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter6&edition=prelim)
256. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-256)** This reenacted labor provisions from the [National Industrial Recovery Act of 1933](https://en.wikipedia.org/wiki/National_Industrial_Recovery_Act_of_1933 "National Industrial Recovery Act of 1933"), after *[A.L.A. Schechter Poultry Corp. v. United States](https://en.wikipedia.org/wiki/A.L.A._Schechter_Poultry_Corp._v._United_States "A.L.A. Schechter Poultry Corp. v. United States")*, [295 US 495](http://www.worldlii.org/us/cases/federal/USSC/1935/122.html) (1935) struck it down.
257. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-257)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§157](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section157&num=0&edition=prelim), "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."
258. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-258)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §152(2). See the [Federal Labor Relations Act of 1978](https://en.wikipedia.org/wiki/Federal_Labor_Relations_Act_of_1978 "Federal Labor Relations Act of 1978"). There are special rules for the [United States Department of Homeland Security](https://en.wikipedia.org/wiki/United_States_Department_of_Homeland_Security "United States Department of Homeland Security").
259. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-259)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§152(2)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section152&num=0&edition=prelim)
260. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-260)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §158(3)
261. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-261)** [440 US 490](http://www.worldlii.org/us/cases/federal/USSC/1979/47.html) (1979) [Brennan J](https://en.wikipedia.org/wiki/Brennan_J "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](https://en.wikipedia.org/wiki/White_J "White J"), [Marshall J](https://en.wikipedia.org/wiki/Thurgood_Marshall "Thurgood Marshall"), [Blackmun J](https://en.wikipedia.org/wiki/Blackmun_J "Blackmun J").
262. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-262)** [563 F3d 492](https://scholar.google.com/scholar_case?q=563+F3d+492+\(DC+2009\)&hl=en&as_sdt=2006&case=15820652359117123721&scilh=0) (DC 2009)
263. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-263)** R Eisenbrey and L Mishel, 'Supervisor in Name Only: Union Rights of Eight Million Workers at Stake in Labor Board Ruling' (2006) [Economic Policy Institute Issue Brief \#225](http://www.epi.org/page/-/old/issuebriefs/225/ib225.pdf)
264. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-264)** See [Bureau of Labor Statistics](https://en.wikipedia.org/wiki/Bureau_of_Labor_Statistics "Bureau of Labor Statistics"), '[Union Members – 2015](http://www.bls.gov/news.release/pdf/union2.pdf)' (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](https://en.wikipedia.org/wiki/Texas "Texas") 4.5%, Florida 6.8%, [New York](https://en.wikipedia.org/wiki/New_York_\(state\) "New York (state)") 24.7% (the highest in the country), and [Illinois](https://en.wikipedia.org/wiki/Illinois "Illinois") 15.2%. See further OECD, *Trade Union Density* ([1999–2013](http://www.oecd.org/employment/emp/UnionDensity_Sourcesandmethods.pdf))
265. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-265)** 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
266. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-266)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"), [29 USC §158(d)](https://www.law.cornell.edu/uscode/text/29/158). See *[NLRB v. Borg-Warner Corp](https://en.wikipedia.org/w/index.php?title=NLRB_v._Borg-Warner_Corp&action=edit&redlink=1 "NLRB v. Borg-Warner Corp (page does not exist)")* [356 US 342](http://www.worldlii.org/us/cases/federal/USSC/1958/76.html) (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](https://en.wikipedia.org/w/index.php?title=First_National_Maintenance_Corp._v._NLRB&action=edit&redlink=1 "First National Maintenance Corp. v. NLRB (page does not exist)")* [452 US 666](http://www.worldlii.org/us/cases/federal/USSC/1981/155.html) (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."
267. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-267)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§153](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section153&num=0&edition=prelim)
268. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-268)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§159(b)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section159&num=0&edition=prelim).
269. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-269)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§159(a)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section159&num=0&edition=prelim)
270. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-270)** [BI Sachs](https://en.wikipedia.org/wiki/BI_Sachs "BI Sachs"), 'Revitalizing labor law' (2010) 31(2) [BJELL 335](https://www.jstor.org/stable/43551790)–6
271. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-271)** [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board"), *[Seventy Fourth Annual Report](https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1677/nlrb2009.pdf) [Archived](https://web.archive.org/web/20161221111028/https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1677/nlrb2009.pdf) December 21, 2016, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")* (2009) 152
272. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-272)** 321 US 332 (1944)
273. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-273)** 323 US 248 (1944)
274. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-274)** 306 US 332 (1939) 5 to 2
275. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-275)** 560 US 674 (2010)
276. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-276)** H.R. 1409, [S. 560](https://www.congress.gov/bill/111th-congress/senate-bill/560/text).
277. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-277)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§185](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section185&num=0&edition=prelim) and see *[Textile Workers Union of America v. Lincoln Mills](https://en.wikipedia.org/w/index.php?title=Textile_Workers_Union_of_America_v._Lincoln_Mills&action=edit&redlink=1 "Textile Workers Union of America v. Lincoln Mills (page does not exist)")* 353 US 448 (1957) holding federal law is to be applied to promote national uniformity and carry out policies in the national labor laws.
278. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-278)** *[Charles Dowd Box Co v. Courtney](https://en.wikipedia.org/w/index.php?title=Charles_Dowd_Box_Co_v._Courtney&action=edit&redlink=1 "Charles Dowd Box Co v. Courtney (page does not exist)")*, 368 US 502 (1962) Also *[Avco Corporation v. Machinists, Aero Lodge 735](https://en.wikipedia.org/w/index.php?title=Avco_Corporation_v._Machinists,_Aero_Lodge_735&action=edit&redlink=1 "Avco Corporation v. Machinists, Aero Lodge 735 (page does not exist)")*, 390 US 557 (1968) suits to enforce collective agreements may be removed from state court to federal court.
279. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-279)** [9 USC](https://en.wikipedia.org/wiki/9_USC "9 USC") [§§1 ff](http://uscode.house.gov/view.xhtml?path=/prelim@title9/chapter1&edition=prelim)
280. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-280)** [363 US 574](http://www.worldlii.org/us/cases/federal/USSC/1960/109.html) (1960) See also *[United Steelworkers v. American Manufacturing Co.](https://en.wikipedia.org/w/index.php?title=United_Steelworkers_v._American_Manufacturing_Co.&action=edit&redlink=1 "United Steelworkers v. American Manufacturing Co. (page does not exist)")* [363 US 564](http://www.worldlii.org/us/cases/federal/USSC/1960/107.html) (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.
281. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-281)** *[United Steelworkers v. Enterprise Wheel & Car Corp.](https://en.wikipedia.org/w/index.php?title=United_Steelworkers_v._Enterprise_Wheel_%26_Car_Corp.&action=edit&redlink=1 "United Steelworkers v. Enterprise Wheel & Car Corp. (page does not exist)")* [363 US 593](http://www.worldlii.org/us/cases/federal/USSC/1960/108.html) (1960)
282. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-282)** *[United Paperworkers v. Misco, Inc.](https://en.wikipedia.org/w/index.php?title=United_Paperworkers_v._Misco,_Inc.&action=edit&redlink=1 "United Paperworkers v. Misco, Inc. (page does not exist)")* 484 US 29 (1987)
283. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-283)** [415 US 36](http://www.worldlii.org/us/cases/federal/USSC/1974/19.html) (1974)
284. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-284)** [556](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_556 "List of United States Supreme Court cases, volume 556") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [247](https://supreme.justia.com/cases/federal/us/556/247/) (2009) joined by [Roberts CJ](https://en.wikipedia.org/wiki/Roberts_CJ "Roberts CJ"), [Scalia J](https://en.wikipedia.org/wiki/Scalia_J "Scalia J"), [Kennedy J](https://en.wikipedia.org/wiki/Kennedy_J "Kennedy J") and [Alito J](https://en.wikipedia.org/wiki/Alito_J "Alito J")
285. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-285)** See also *[AT\&T Mobility LLC v. Concepcion](https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepcion "AT&T Mobility LLC v. Concepcion")*, [563](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_563 "List of United States Supreme Court cases, volume 563") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [333](https://supreme.justia.com/cases/federal/us/563/333/) (2011) another 5 to 4 decision on consumers.
286. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-286)** S.987 and H.R.1873
287. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-287)** HR 8410, 95th Cong (1977) S 1883, 95th Cong (1977)
288. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-288)** HR 1409. S 560.
289. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-289)** 307 US 496 (1939)
290. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-290)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§158](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section158&num=0&edition=prelim)
291. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-291)** [301 US 1](http://www.worldlii.org/us/cases/federal/USSC/1937/80.html) (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."
292. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-292)** *[Filler Products, Inc. v. NLRB](https://en.wikipedia.org/w/index.php?title=Filler_Products,_Inc._v._NLRB&action=edit&redlink=1 "Filler Products, Inc. v. NLRB (page does not exist)")* 376 F2d 369 (4th 1967)
293. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-293)** e.g. *[Sunbelt Manufacturing Inc, AFL-CIO](https://en.wikipedia.org/w/index.php?title=Sunbelt_Manufacturing_Inc,_AFL-CIO&action=edit&redlink=1 "Sunbelt Manufacturing Inc, AFL-CIO (page does not exist)")*, 308 NLRB 780 (1992)
294. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-294)** [373 US 221](http://www.worldlii.org/us/cases/federal/USSC/1963/94.html) (1963)
295. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-295)** [380 US 263](http://www.worldlii.org/us/cases/federal/USSC/1965/60.html) (1965)
296. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-296)** *[Marquez v. Screen Actors Guild Inc.](https://en.wikipedia.org/wiki/Marquez_v._Screen_Actors_Guild_Inc. "Marquez v. Screen Actors Guild Inc.")*, 525 US 33 (1998)
297. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-297)** 420 US 251 (1975)
298. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-298)** *[Epilepsy Foundation of North-east Ohio v. NLRB](https://en.wikipedia.org/w/index.php?title=Epilepsy_Foundation_of_North-east_Ohio_v._NLRB&action=edit&redlink=1 "Epilepsy Foundation of North-east Ohio v. NLRB (page does not exist)")* (DC 2001)
299. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-299)** 440 US 301 (1979) Stevens, White, Brennan, Marshall J dissented.
300. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-300)** 502 US 527 (1992)
301. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-301)** 473 US 95 (1985) Blackmun, Brennan, Marshall, Stevens J dissented.
302. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-302)** Sources: E McGaughey, 'Do corporations increase inequality?' (2015) [TLI Think! Paper 32/2016](https://ssrn.com/abstract=2697188), 29. [Bureau of Labor Statistics](https://en.wikipedia.org/wiki/Bureau_of_Labor_Statistics "Bureau of Labor Statistics"), Series D 940–945 and [Thomas Piketty](https://en.wikipedia.org/wiki/Thomas_Piketty "Thomas Piketty") (2014) Technical Appendices, Table S9.2
303. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-303)** See further RL Hogler and GJ Grenier, *Employee Participation and Labor Law in the American Workplace* (1992)
304. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-304)** See [A Cox](https://en.wikipedia.org/wiki/A_Cox "A Cox") and MJ Seidman, 'Federalism and Labor Relations' (1950) [64 *Harvard Law Review* 211](https://www.jstor.org/stable/1336175) called for 'an integrated public labor policy' and warned 'enforcement of ... state regulation will thwart the development of federal policy.' [A Cox](https://en.wikipedia.org/wiki/A_Cox "A Cox"), Federalism in the Law of Labor Relations (1954) [67 *Harvard Law Review* 1297](https://www.jstor.org/stable/1336794) argued for a 'rule of total federal preemption' for 'uniformity'. [A Cox](https://en.wikipedia.org/wiki/A_Cox "A Cox"), 'Labor Law Preemption Revisited' (1972) [85 *Harvard Law Review* 1337](https://www.jstor.org/stable/1340014).
305. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-305)** [346 US 485](http://www.worldlii.org/us/cases/federal/USSC/1953/113.html) (1953) per Jackson J
306. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-306)** [359 US 236](http://www.worldlii.org/us/cases/federal/USSC/1959/66.html) (1959)
307. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-307)** [359 US 236](http://www.worldlii.org/us/cases/federal/USSC/1959/66.html) (1959) as [Frankfurter J](https://en.wikipedia.org/wiki/Frankfurter_J "Frankfurter J") put it, "because the amount of interstate commerce involved did not meet the Board's monetary standards in taking jurisdiction. ... "
308. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-308)** [427 US 132](http://www.worldlii.org/us/cases/federal/USSC/1976/140.html) (1976)
309. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-309)** [475 US 608](http://www.worldlii.org/us/cases/federal/USSC/1986/62.html) (1986) [Rehnquist J](https://en.wikipedia.org/wiki/Rehnquist_J "Rehnquist J") dissented.
310. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-310)** [522 US 60](http://www.worldlii.org/us/cases/federal/USSC/2008/22.html) (2008)
311. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-311)** *[Building & Construction Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc.](https://en.wikipedia.org/wiki/Building_%26_Construction_Trades_Council_v._Associated_Builders_%26_Contractors_of_Massachusetts/Rhode_Island,_Inc. "Building & Construction Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc.")* [507 US 218](http://www.worldlii.org/us/cases/federal/USSC/1993/27.html) (1993)
312. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-312)** B Gernigo, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) [137 International Labour Review 441](http://www.rhap.org.za/wp-content/uploads/2014/05/ILO-Manual-on-Right-to-Strike.pdf). In US federal law, see the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935"), 29 USC §163.
313. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-313)** *[Commonwealth v. Hunt](https://en.wikipedia.org/wiki/Commonwealth_v._Hunt "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](https://en.wikipedia.org/wiki/Shaw_CJ "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](https://en.wikipedia.org/wiki/R_v_Journeymen-Taylors_of_Cambridge "R v Journeymen-Taylors of Cambridge")* (1721) 88 ER 9
314. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-314)** [Clayton Antitrust Act of 1914](https://en.wikipedia.org/wiki/Clayton_Antitrust_Act_of_1914 "Clayton Antitrust Act of 1914") §6 and [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §163.
315. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-315)** B Gernigon, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) [137 International Labour Review 441](http://www.rhap.org.za/wp-content/uploads/2014/05/ILO-Manual-on-Right-to-Strike.pdf) [Archived](https://web.archive.org/web/20210224190954/http://www.rhap.org.za/wp-content/uploads/2014/05/ILO-Manual-on-Right-to-Strike.pdf) February 24, 2021, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
316. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-316)** 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.'
317. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-317)** See EE Witte, 'Early American Labor Cases' (1926) [35 Yale Law Journal 829](https://www.jstor.org/stable/789460), employers brought at least three successful claims against their employees before 1863, and fifteen up to 1880 for "conspiracy". See also F. B. Sayre, 'Criminal Conspiracy' (1922) [35 *Harvard Law Review* 393](https://www.jstor.org/stable/1328648). W. Holt, 'Labor Conspiracy Cases in the United States, 1805-1842: Bias and Legitimation in Common Law Adjudication' (1984) [22 *Osgoode Hall Law Journal* 591](http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1913&context=ohlj). 'Tortious Interference with Contractual Relations in the Nineteenth Century' (1980) 93 *Harvard Law Review* 1510.
318. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-318)** *[In re Debs](https://en.wikipedia.org/wiki/In_re_Debs "In re Debs")*, 64 Fed 724 (CC Ill 1894), 158 US 564 (1895)
319. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-319)** See [Samuel Gompers](https://en.wikipedia.org/wiki/Samuel_Gompers "Samuel Gompers"), 'Labor and the War: the Movement for Universal Peace Must Assume the Aggressive' (October 1914) [XXI(1) American Federationist 849, 860](https://babel.hathitrust.org/cgi/pt?id=mdp.39015034112782;view=1up;seq=874).
320. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-320)** *[United States v. Hutcheson](https://en.wikipedia.org/w/index.php?title=United_States_v._Hutcheson&action=edit&redlink=1 "United States v. Hutcheson (page does not exist)")* 312 US 219 (1941) per Justice Frankfurter
321. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-321)** See the [Versailles Treaty 1919](https://en.wikipedia.org/wiki/Versailles_Treaty_1919 "Versailles Treaty 1919") [art 427](https://en.wikisource.org/wiki/Constitution_of_the_International_Labour_Office#Article_427). The right to strike is now embedded in core Conventions of [international labor law](https://en.wikipedia.org/wiki/International_labor_law "International labor law"), ILO [Freedom of Association and Protection of the Right to Organise Convention](https://en.wikipedia.org/wiki/Freedom_of_Association_and_Protection_of_the_Right_to_Organise_Convention "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.
322. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-322)** e.g. *[Coppage v. Kansas](https://en.wikipedia.org/wiki/Coppage_v._Kansas "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](https://en.wikipedia.org/wiki/Yellow-dog_contract "Yellow-dog contract")"). *[Duplex Printing Press Co. v. Deering](https://en.wikipedia.org/wiki/Duplex_Printing_Press_Co._v._Deering "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](https://en.wikipedia.org/w/index.php?title=Truax_v._Corrigan&action=edit&redlink=1 "Truax v. Corrigan (page does not exist)")* [257 US 312](https://en.wikisource.org/wiki/Truax_v._Corrigan/Dissent_Brandeis "wikisource:Truax v. Corrigan/Dissent Brandeis") (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](https://en.wikipedia.org/wiki/Norris-La_Guardia_Anti-Injunction_Act_of_1932 "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.
323. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-323)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") 29 USC [§§157 and 163](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter7&edition=prelim)
324. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-324)** See '[Cesar Chavez Explains Boycotts](https://www.youtube.com/watch?v=gLqDu5yZj0M)' and '[Cesar Chavez speaking at UCLA 10/11/1972](https://www.youtube.com/watch?v=UlLs_fVBWzM)'.
325. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-325)** e.g. in West Virginia, Kentucky, and Oklahoma it has been illegal for teachers to strike - a prohibition that violates [international law](https://en.wikipedia.org/wiki/International_law "International law") - and teachers went on strike, and won anyway. See the [2018–19 education workers' strikes in the United States](https://en.wikipedia.org/wiki/2018%E2%80%9319_education_workers%27_strikes_in_the_United_States "2018–19 education workers' strikes in the United States").
326. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-326)** Notably [Calvin Coolidge](https://en.wikipedia.org/wiki/Calvin_Coolidge "Calvin Coolidge"), then [Governor of Massachusetts](https://en.wikipedia.org/wiki/Governor_of_Massachusetts "Governor of Massachusetts") said in the [Boston Police Strike](https://en.wikipedia.org/wiki/Boston_Police_Strike "Boston Police Strike") of 1919: "There is no right to strike against the public safety, anywhere, anytime."
327. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-327)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") 29 USC [§157](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter7&edition=prelim). n.b. *[NLRB v. City Disposal Systems, Inc](https://en.wikipedia.org/w/index.php?title=NLRB_v._City_Disposal_Systems,_Inc&action=edit&redlink=1 "NLRB v. City Disposal Systems, Inc (page does not exist)")* 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.
328. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-328)** *[NLRB v. Insurance Agents' International Union](https://en.wikipedia.org/w/index.php?title=NLRB_v._Insurance_Agents%27_International_Union&action=edit&redlink=1 "NLRB v. Insurance Agents' International Union (page does not exist)")*, [361 US 477, 495-496](http://www.worldlii.org/us/cases/federal/USSC/1960/23.html) (1960) interpreting [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"), 29 USC §158(b)(3)
329. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-329)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") 29 USC [§158(b)(4)(B)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter7&edition=prelim)
330. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-330)** See *[National Woodword Manufacturers Association v. NLRB](https://en.wikipedia.org/w/index.php?title=National_Woodword_Manufacturers_Association_v._NLRB&action=edit&redlink=1 "National Woodword Manufacturers Association v. NLRB (page does not exist)")* 386 US 612 (1967) on "hot cargo" agreements under 29 USC §158(e) and work preservation under §158(b)(4)(ii)(A)-(B).
331. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-331)** *[NLRB v. Truck Drivers Local 449](https://en.wikipedia.org/wiki/NLRB_v._Truck_Drivers_Local_449 "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](https://en.wikipedia.org/wiki/Whipsaw_strike "Whipsaw strike").
332. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-332)** *[Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council](https://en.wikipedia.org/w/index.php?title=Edward_J._DeBartolo_Corp._v._Florida_Gulf_Coast_Building_%26_Construction_Trades_Council&action=edit&redlink=1 "Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council (page does not exist)")* 485 US 568 (1988) urging a secondary boycott cannot be an unfair labor practice.
333. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-333)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") 29 USC §158(d)
334. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-334)** *[National Labor Relations Board v. Columbian Enameling & Stamping Co.](https://en.wikipedia.org/wiki/National_Labor_Relations_Board_v._Columbian_Enameling_%26_Stamping_Co. "National Labor Relations Board v. Columbian Enameling & Stamping Co.")*, 306 U.S. 292 (1939) 5 to 2, Reed J and Black J dissented.
335. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-335)** e.g. under the [European Convention on Human Rights](https://en.wikipedia.org/wiki/European_Convention_on_Human_Rights "European Convention on Human Rights") 1950 article 11, the no detriment rule for union membership is seen in *[Wilson and Palmer v United Kingdom](https://en.wikipedia.org/wiki/Wilson_and_Palmer_v_United_Kingdom "Wilson and Palmer v United Kingdom")* \[2002\] ECHR 552. In the UK, the [Trade Union and Labour Relations (Consolidation) Act 1992](https://en.wikipedia.org/wiki/Trade_Union_and_Labour_Relations_\(Consolidation\)_Act_1992 "Trade Union and Labour Relations (Consolidation) Act 1992") [s 238A](http://www.legislation.gov.uk/ukpga/1992/52/part/V/crossheading/loss-of-unfair-dismissal-protection) protects employees on strike from unfair dismissal for 12 weeks at least.
336. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-336)** [304 US 333](http://www.worldlii.org/us/cases/federal/USSC/1938/131.html) (1938)
337. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-337)** See [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization"), *Complaint Against the Government of the United States Presented by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO)* ([1991](http://white.lim.ilo.org/spanish/260ameri/oitreg/activid/proyectos/actrav/sindi/english/casos/usa/usa199101.html)) \[92\] 'The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests. The Committee considers that this basic right is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally. The Committee considers that, if a strike is otherwise legal, the use of labour drawn from outside the undertaking to replace strikers for an indeterminate period entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights.' P Weiler, 'A Principled Re-Shaping of Labor Law for the Twenty-First Century' \[2001\] [University of Pennsylvania Journal of Labor and Employment Law 201](https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1073&context=jbl), *Mackay* is 'the worst contribution that the U.S. Supreme Court has made to the current shape of labor law in this country.'
338. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-338)** *[NLRB v. Fansteel Metallurgical Corp.](https://en.wikipedia.org/wiki/NLRB_v._Fansteel_Metallurgical_Corp. "NLRB v. Fansteel Metallurgical Corp.")* [306 US 240](http://www.worldlii.org/us/cases/federal/USSC/1939/46.html) (1939) Reed J and Black J dissented.
339. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-339)** *[Trans World Airlines, Inc v. Flight Attendants](https://en.wikipedia.org/w/index.php?title=Trans_World_Airlines,_Inc_v._Flight_Attendants&action=edit&redlink=1 "Trans World Airlines, Inc v. Flight Attendants (page does not exist)")* [489 US 426](http://www.worldlii.org/us/cases/federal/USSC/1989/34.html) (1989) Brennan J, Marshall J, Blackmun J dissented.
340. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-340)** *[NLRB v. Electrical Workers](https://en.wikipedia.org/w/index.php?title=NLRB_v._Electrical_Workers&action=edit&redlink=1 "NLRB v. Electrical Workers (page does not exist)")* 346 US 464 (1953)
341. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-341)** *[New Negro Alliance v. Sanitary Grocery Co.](https://en.wikipedia.org/wiki/New_Negro_Alliance_v._Sanitary_Grocery_Co. "New Negro Alliance v. Sanitary Grocery Co.")*, 303 US 552 (1938)
342. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-342)** *[Thornhill v. Alabama](https://en.wikipedia.org/wiki/Thornhill_v._Alabama "Thornhill v. Alabama")*, 310 US 88 (1940)
343. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-343)** *[United States v. Congress of Industrial Organizations](https://en.wikipedia.org/wiki/United_States_v._Congress_of_Industrial_Organizations "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](https://en.wikipedia.org/wiki/Federal_Corrupt_Practices_Act "Federal Corrupt Practices Act") as amended by the [Labor Management Relations Act](https://en.wikipedia.org/wiki/Labor_Management_Relations_Act "Labor Management Relations Act").
344. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-344)** *[Eastex, Inc. v. NLRB](https://en.wikipedia.org/w/index.php?title=Eastex,_Inc._v._NLRB&action=edit&redlink=1 "Eastex, Inc. v. NLRB (page does not exist)")* 437 US 556 (1978)
345. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-345)** e.g. *[Clean Slate for Worker Power: Building a Just Economy and Democracy](https://assets.website-files.com/5ddc262b91f2a95f326520bd/5e3096b9feb8524936752fe0_CleanSlate_SinglePages_ForWeb_noemptyspace.pdf)* (2019) Labor and Worklife Program, Harvard Law School.
346. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-346)** See the [Reward Work Act, S.2605](https://www.congress.gov/bill/115th-congress/senate-bill/2605/text), sponsored by [Tammy Baldwin](https://en.wikipedia.org/wiki/Tammy_Baldwin "Tammy Baldwin"), [Elizabeth Warren](https://en.wikipedia.org/wiki/Elizabeth_Warren "Elizabeth Warren"), [Brian Schatz](https://en.wikipedia.org/wiki/Brian_Schatz "Brian Schatz"), joined by [Kirsten Gillibrand](https://en.wikipedia.org/wiki/Kirsten_Gillibrand "Kirsten Gillibrand")
347. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-347)** The Sanders "[Corporate Accountability and Democracy](https://berniesanders.com/issues/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](https://en.wikipedia.org/wiki/Accountable_Capitalism_Act "Accountable Capitalism Act") would require 40% on large federal corporations.
348. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-348)** See Bernie Sanders, "[Corporate Accountability and Democracy: Shareholder Democracy](https://berniesanders.com/issues/corporate-accountability-and-democracy/)". [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons"), *Industrial Government* (1921) [ch 6](https://archive.org/stream/industrialgovern00comm#page/n13/mode/2up), L. D. Brandeis, *[Other People's Money and How the Bankers Use It](https://en.wikipedia.org/wiki/Other_People%27s_Money_and_How_the_Bankers_Use_It "Other People's Money and How the Bankers Use It")* (1914).
349. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-349)** See E. McGaughey, 'Corporate Law Should Embrace Putting Workers On Boards: The Evidence Is Behind Them' (17 September 2018) [Harvard Law School Forum on Corporate Governance and Financial Regulation](https://corpgov.law.harvard.edu/2018/09/17/corporate-law-should-embrace-putting-workers-on-boards-the-evidence-is-behind-them/) and 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019) [42 *Seattle University Law Review* 697](https://digitalcommons.law.seattleu.edu/sulr/vol42/iss2/18/). R. L. Hogler and G. J. Grenier, *Employee Participation and Labor Law in the American Workplace* (1992)
350. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-350)** See D. Webber, *The Rise of the Working Class Shareholder: Labor's Last Best Weapon* (2018) and the section above on "[Pensions](https://en.wikipedia.org/wiki/United_States_labor_law#Pensions)".
351. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-351)** See the popular text by the former Dean of [Harvard Law School](https://en.wikipedia.org/wiki/Harvard_Law_School "Harvard Law School"), [R. C. Clark](https://en.wikipedia.org/w/index.php?title=R._C._Clark&action=edit&redlink=1 "R. C. Clark (page does not exist)"), *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.'
352. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-352)** See the [Reward Work Act, S.2605](https://www.congress.gov/bill/115th-congress/senate-bill/2605/text), sponsored by [Tammy Baldwin](https://en.wikipedia.org/wiki/Tammy_Baldwin "Tammy Baldwin"), [Elizabeth Warren](https://en.wikipedia.org/wiki/Elizabeth_Warren "Elizabeth Warren"), [Brian Schatz](https://en.wikipedia.org/wiki/Brian_Schatz "Brian Schatz"), joined by [Kirsten Gillibrand](https://en.wikipedia.org/wiki/Kirsten_Gillibrand "Kirsten Gillibrand"). In the House, [HR 6096](https://www.govtrack.us/congress/bills/115/hr6096) was sponsored by [Keith Ellison](https://en.wikipedia.org/wiki/Keith_Ellison "Keith Ellison") and [Ro Khanna](https://en.wikipedia.org/wiki/Ro_Khanna "Ro Khanna").
353. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-353)** Massachusetts Laws, General Laws, Part I Administration of the Government, Title XII Corporations, [ch 156 Business Corporations, §23](https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXII/Chapter156/Section23). 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) [35 *Harvard Law Review* 910](https://www.jstor.org/stable/1329012), 915, mentioning the [Dennison Manufacturing Co](https://en.wikipedia.org/wiki/Dennison_Manufacturing_Co "Dennison Manufacturing Co") at [Framingham](https://en.wikipedia.org/wiki/Framingham "Framingham").
354. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-354)** NM Clark, *Common Sense in Labor Management* (1919) [ch II, 29–30](https://archive.org/stream/commonsenseinlab00claruoft#page/28)
355. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-355)** See [W. O. Douglas](https://en.wikipedia.org/wiki/W._O._Douglas "W. O. Douglas") and C. M. Shanks, *Cases and Materials on the Law of Management of Business Units* (Callaghan 1931) [ch 1(7) 130](https://babel.hathitrust.org/cgi/pt?id=wu.89098553043;view=1up;seq=154) and [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons"), *Industrial Government* (1921) [ch 6](https://archive.org/stream/industrialgovern00comm#page/n13/mode/2up)
356. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-356)** See generally [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "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.
357. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-357)** See [Commission on Industrial Relations](https://en.wikipedia.org/wiki/Commission_on_Industrial_Relations "Commission on Industrial Relations"), *Final Report and Testimony* (1915) vol 1, 92 ff, and [L. D. Brandeis](https://en.wikipedia.org/w/index.php?title=L._D._Brandeis&action=edit&redlink=1 "L. D. Brandeis (page does not exist)"), *The Fundamental Cause of Industrial Unrest* (1916) vol 8, 7672 and [Sidney Webb](https://en.wikipedia.org/wiki/Sidney_Webb "Sidney Webb") and [Beatrice Webb](https://en.wikipedia.org/wiki/Beatrice_Webb "Beatrice Webb"), *The History of Trade Unionism* (1920) Appendix VIII
358. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-358)** See further, [www.worker-participation.eu](http://www.worker-participation.eu/), E McGaughey, 'Votes at Work in Britain: Shareholder Monopolisation and the 'Single Channel' (2018) [15(1) Industrial Law Journal 76](https://ssrn.com/abstract=2432068) and 'The Codetermination Bargains: The History of German Corporate and Labour Law' (2016) [23(1) Columbia Journal of European Law 135](https://ssrn.com/abstract=2579932).
359. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-359)** *[Dunlop Commission on the Future of Worker-Management Relations: Final Report](https://en.wikipedia.org/wiki/Dunlop_Commission_on_the_Future_of_Worker-Management_Relations:_Final_Report "Dunlop Commission on the Future of Worker-Management Relations: Final Report")* ([1994](https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1004&context=key_workplace))
360. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-360)** n.b. The [New Jersey](https://en.wikipedia.org/wiki/New_Jersey "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
361. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-361)** e.g. RA Dahl, 'Power to the Workers?' (November 19, 1970) [New York Review of Books](http://www.nybooks.com/articles/1970/11/19/power-to-the-workers/) 20
362. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-362)** See B Hamer, 'Serving Two Masters: Union Representation on Corporate Boards of Directors' (1981) [81(3) *Columbia Law Review* 639](https://www.jstor.org/stable/1122261), 640 and 'Labor Unions in the Boardroom: An Antitrust Dilemma' (1982) [92(1) *Yale Law Journal* 106](http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1115&context=facpubs)
363. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-363)** 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
364. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-364)** This was stalled by litigation in *[Business Roundtable v. SEC](https://en.wikipedia.org/w/index.php?title=Business_Roundtable_v._SEC&action=edit&redlink=1 "Business Roundtable v. SEC (page does not exist)")*, 647 F3d 1144 (DC Cir 2011). See D Webber, *The Rise of the Working Class Shareholder: Labor's Last Best Weapon* (2018)
365. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-365)** J. D. Blackburn, 'Worker Participation on Corporate Directorates: Is America Ready for Industrial Democracy?' (1980–1981) 18 *Houston Law Review* 349
366. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-366)** 'The Unions Step on Board' (October 27, 1993) Financial Times
367. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-367)** P. J. Purcell, 'The Enron Bankruptcy and Employer Stock in Retirement Plans' (March 11, 2002) [CRS Report for Congress](https://fpc.state.gov/documents/organization/9102.pdf) and JH Langbein, SJ Stabile and BA Wolk, *Pension and Employee Benefit Law* (4th edn Foundation 2006) 640–641
368. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-368)** See RB McKersie, 'Union-Nominated Directors: A New Voice in Corporate Governance' (April 1, 1999) MIT Working Paper. Further discussion in [E. Appelbaum](https://en.wikipedia.org/wiki/E._Appelbaum "E. Appelbaum") and LW Hunter, 'Union Participation in Strategic Decisions of Corporations' (2003) NBER Working Paper 9590
369. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-369)** See E Schelzig, '[Volkswagen powers up 33-acre solar park in Tenn.](https://www.usatoday.com/story/money/business/2013/01/23/tenn-volkswagen-plant-solar/1858937/)' (January 23, 2013) USA Today
370. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-370)** [National Industrial Conference Board](https://en.wikipedia.org/wiki/National_Industrial_Conference_Board "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.
371. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-371)** NICB, Works Council Manual (1920) Supplemental to Research Report No 21, 25, Appendix, Model Article II(1)
372. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-372)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") §158(a)(2)
373. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-373)** See further *[NLRB v. Newport News Shipbuilding Co.](https://en.wikipedia.org/w/index.php?title=NLRB_v._Newport_News_Shipbuilding_Co.&action=edit&redlink=1 "NLRB v. Newport News Shipbuilding Co. (page does not exist)")* 308 US 241 (1939)
374. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-374)** [Control Council Law No 22 Works Councils](https://en.wikisource.org/wiki/Control_Council_Law_No_22_\(10_April_1946\)_Works_Councils) (April 10, 1946) in Official Gazette of the Control Council for Germany (1945–1946) 43 (R498) arts III–V.
375. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-375)** See *[San Diego Building Trades Council v. Garmon](https://en.wikipedia.org/wiki/San_Diego_Building_Trades_Council_v._Garmon "San Diego Building Trades Council v. Garmon")* [359 US 236](http://www.worldlii.org/us/cases/federal/USSC/1959/66.html) (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."
376. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-376)** 309 NLRB No 163, 142 LRRM 1001 (1992)
377. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-377)** 311 NLRB No 88, 143 LRRM 1121 (1993)
378. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-378)** US Department of Labor and US Department of Commerce, Commission on the Future of Worker-Management Relations: Final Report (1994) 22, 27, 30–31.
379. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-379)** J Ramsey, '[VW Chattanooga plant union votes to approve collective bargaining](http://www.autoblog.com/2015/12/06/vw-chattanooga-unionize-workforce/)' (December 6, 2015) autoblog.com and NE Boudette, '[Volkswagen Reverses Course on Union at Tennessee Plant](https://www.nytimes.com/2016/04/26/business/volkswagen-reverses-courseon-union-at-tennessee-plant.html?_r=0)' (April 25, 2016) NY Times
380. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-380)** [US Declaration of Independence](https://en.wikipedia.org/wiki/US_Declaration_of_Independence "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](https://en.wikipedia.org/wiki/Consent_of_the_governed "Consent of the governed"). ...
381. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-381)** See the [Universal Declaration of Human Rights](https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights "Universal Declaration of Human Rights") of 1948 and the [Second Bill of Rights of 1944](https://en.wikipedia.org/wiki/Second_Bill_of_Rights_of_1944 "Second Bill of Rights of 1944").
382. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-382)** [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964") §703(a)(1), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2(a)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) [Archived](https://web.archive.org/web/20220119024348/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) January 19, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"), "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."
383. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-383)** [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2(j)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) [Archived](https://web.archive.org/web/20220119024348/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) January 19, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
384. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-384)** See *[Dred Scott v. Sandford](https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford "Dred Scott v. Sandford")*, [60 US 393](http://www.worldlii.org/us/cases/federal/USSC/1856/9.html) (1857). [US Constitution](https://en.wikipedia.org/wiki/US_Constitution "US Constitution") [Article IV, Section 2](https://en.wikipedia.org/wiki/Fugitive_Slave_Clause "Fugitive Slave Clause"), "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](https://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1793 "Fugitive Slave Act of 1793"), limited by *[Prigg v. Pennsylvania](https://en.wikipedia.org/wiki/Prigg_v._Pennsylvania "Prigg v. Pennsylvania")*, 41 US 539 (1842), restored by the [Fugitive Slave Act of 1850](https://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1850 "Fugitive Slave Act of 1850") and entrenched by *[Ableman v. Booth](https://en.wikipedia.org/wiki/Ableman_v._Booth "Ableman v. Booth")*, 62 US 506 (1859)
385. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-385)** On the end of this, see *[Harper v. Virginia Board of Elections](https://en.wikipedia.org/wiki/Harper_v._Virginia_Board_of_Elections "Harper v. Virginia Board of Elections")*, [383 US 663](http://www.worldlii.org/us/cases/federal/USSC/1966/58.html) (1966) and contrast *[Yick Wo v. Hopkins](https://en.wikipedia.org/wiki/Yick_Wo_v._Hopkins "Yick Wo v. Hopkins")* [118 US 356](http://www.worldlii.org/us/cases/federal/USSC/1886/197.html), 370 (1886) referring to 'the political franchise of voting' as a 'fundamental political right, because \[it is\] preservative of all rights.'
386. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-386)** Contrast the *[Slaughter-House Cases](https://en.wikipedia.org/wiki/Slaughter-House_Cases "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](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution")'s [clause](https://en.wikipedia.org/wiki/Privileges_or_Immunities_Clause "Privileges or Immunities Clause") that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".
387. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-387)** [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") §1981(a)
388. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-388)** [109 US 3](http://www.worldlii.org/us/cases/federal/USSC/1883/182.html) (1883)
389. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-389)** See also *[Plessy v. Ferguson](https://en.wikipedia.org/wiki/Plessy_v._Ferguson "Plessy v. Ferguson")*, [163 US 537](http://www.worldlii.org/us/cases/federal/USSC/1896/151.html) (1896) holding that state laws segregating black from white people in public places (or "[Jim Crow laws](https://en.wikipedia.org/wiki/Jim_Crow_laws "Jim Crow laws")"), such as [Louisiana](https://en.wikipedia.org/wiki/Louisiana "Louisiana")'s [Separate Car Act](https://en.wikipedia.org/wiki/Separate_Car_Act "Separate Car Act") of 1890, were constitutional. [Harlan J](https://en.wikipedia.org/wiki/Harlan_J "Harlan J") dissented. See also *[Lochner v. New York](https://en.wikipedia.org/wiki/Lochner_v._New_York "Lochner v. New York")* 198 US 45 (1905)
390. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-390)** See the *[Civil Rights Cases](https://en.wikipedia.org/wiki/Civil_Rights_Cases "Civil Rights Cases")* [109 US 3](http://www.worldlii.org/us/cases/federal/USSC/1883/182.html) (1883) where the majority struck down the [Civil Rights Act of 1875](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1875 "Civil Rights Act of 1875")
391. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-391)** [323 US 192](http://www.worldlii.org/us/cases/federal/USSC/1944/136.html) (1944)
392. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-392)** [421 US 454](http://www.worldlii.org/us/cases/federal/USSC/1975/90.html) (1975)
393. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-393)** See *[Washington v. Davis](https://en.wikipedia.org/wiki/Washington_v._Davis "Washington v. Davis")* [426 US 229](http://www.worldlii.org/us/cases/federal/USSC/1976/107.html) (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.
394. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-394)** [414 US 632](http://www.worldlii.org/us/cases/federal/USSC/1974/13.html) (1974)
395. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-395)** See *[Massachusetts Board of Retirement v. Murgia](https://en.wikipedia.org/wiki/Massachusetts_Board_of_Retirement_v._Murgia "Massachusetts Board of Retirement v. Murgia")*, [427 US 307](http://www.worldlii.org/us/cases/federal/USSC/1976/141.html) (1976) and *[Regents of the University of California v. Bakke](https://en.wikipedia.org/wiki/Regents_of_the_University_of_California_v._Bakke "Regents of the University of California v. Bakke")* [438 US 265](http://www.worldlii.org/us/cases/federal/USSC/1978/145.html) (1978). Contrast *[Kücükdeveci v. Swedex GmbH & Co KG](https://en.wikipedia.org/w/index.php?title=K%C3%BCc%C3%BCkdeveci_v._Swedex_GmbH_%26_Co_KG&action=edit&redlink=1 "Kücükdeveci v. Swedex GmbH & Co KG (page does not exist)")* (2010) [C-555/07](http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007J0555:EN:NOT) affirming a constitutional equality principle in [EU law](https://en.wikipedia.org/wiki/EU_law "EU law") and *[Matadeen v. Pointu](https://en.wikipedia.org/w/index.php?title=Matadeen_v._Pointu&action=edit&redlink=1 "Matadeen v. Pointu (page does not exist)")* \[1998\] [UKPC 9](http://www.bailii.org/uk/cases/UKPC/1998/9.html), per [Lord Hoffmann](https://en.wikipedia.org/wiki/Lord_Hoffmann "Lord Hoffmann") discussing the principle of equality as it is potentially seen in Commonwealth jurisdictions.
396. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-396)** *[California Fed Savings and Loan Ass v. Guerra](https://en.wikipedia.org/w/index.php?title=California_Fed_Savings_and_Loan_Ass_v._Guerra&action=edit&redlink=1 "California Fed Savings and Loan Ass v. Guerra (page does not exist)")* [479 US 272](http://www.worldlii.org/us/cases/federal/USSC/1987/3.html) (1987) holding the [California Fair Employment and Housing Act of 1959](https://en.wikipedia.org/wiki/California_Fair_Employment_and_Housing_Act_of_1959 "California Fair Employment and Housing Act of 1959") §12945(b)(2) was not preempted.
397. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-397)** e.g. *[Saint Francis College v. al-Khazraji](https://en.wikipedia.org/wiki/Saint_Francis_College_v._al-Khazraji "Saint Francis College v. al-Khazraji")*, 481 US 604 (1987) an Arabic man was protected from race discrimination under [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964")
398. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-398)** Contrast the [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") [Discrimination Convention 1958](https://en.wikipedia.org/wiki/Discrimination_Convention_1958 "Discrimination Convention 1958") [c 111](http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C111), 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".
399. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-399)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§206(d)(1)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section206&num=0&edition=prelim), "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](https://en.wikipedia.org/w/index.php?title=Equal_work&action=edit&redlink=1 "Equal work (page does not exist)") 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](https://en.wikipedia.org/w/index.php?title=Seniority_system&action=edit&redlink=1 "Seniority system (page does not exist)"); (ii) a [merit system](https://en.wikipedia.org/wiki/Merit_system "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.
400. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-400)** [417 US 188](http://www.worldlii.org/us/cases/federal/USSC/1974/114.html) (1974) See also *[Schultz v. Wheaton Glass Co.](https://en.wikipedia.org/wiki/Schultz_v._Wheaton_Glass_Co. "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](https://en.wikipedia.org/wiki/County_of_Washington_v._Gunther "County of Washington v. Gunther")*, 452 US 161 (1980).
401. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-401)** [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), 29 USC §203(r)
402. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-402)** After the Supreme Court held by 6 to 3 in *[Geduldig v. Aiello](https://en.wikipedia.org/wiki/Geduldig_v._Aiello "Geduldig v. Aiello")* [417 US 484](http://www.worldlii.org/us/cases/federal/USSC/1974/129.html) (1974) that pregnancy was not included in the concept of sex, Congress reversed the decision by the [Pregnancy Discrimination Act](https://en.wikipedia.org/wiki/Pregnancy_Discrimination_Act "Pregnancy Discrimination Act") of 1978. But see *[AT\&T Corporation v. Hulteen](https://en.wikipedia.org/wiki/AT%26T_Corporation_v._Hulteen "AT&T Corporation v. Hulteen")*, [556](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_556 "List of United States Supreme Court cases, volume 556") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") 701 (2009) 7 to 2, holding that maternity leave taken before the [Pregnancy Discrimination Act](https://en.wikipedia.org/wiki/Pregnancy_Discrimination_Act "Pregnancy Discrimination Act") 1978 did not need to count as time worked that will contribute to pension earnings.
403. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-403)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2](http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter21/subchapter6&edition=prelim)
404. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-404)** cf [ILO](https://en.wikipedia.org/wiki/ILO "ILO") [Equal Remuneration Convention 1951](https://en.wikipedia.org/wiki/Equal_Remuneration_Convention_1951 "Equal Remuneration Convention 1951") [c 100](http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C100), 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](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements") between employers and workers".
405. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-405)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2(a)(1)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) [Archived](https://web.archive.org/web/20220119024348/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) January 19, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
406. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-406)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2(a)(2)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) [Archived](https://web.archive.org/web/20220119024348/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) January 19, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
407. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-407)** [ADEA 1967](https://en.wikipedia.org/wiki/ADEA_1967 "ADEA 1967"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§§623 and 631](http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter14&edition=prelim)
408. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-408)** [ADA 1990](https://en.wikipedia.org/wiki/ADA_1990 "ADA 1990"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§12112(a)–(b)](http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter126/subchapter1&edition=prelim)
409. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-409)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") §2000e(b). See *[Walters v. Metropolitan Educational Enterprises, Inc](https://en.wikipedia.org/w/index.php?title=Walters_v._Metropolitan_Educational_Enterprises,_Inc&action=edit&redlink=1 "Walters v. Metropolitan Educational Enterprises, Inc (page does not exist)")* 519 US 202 (1997)
410. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-410)** 450 US 248 (1981) and see previously *[McDonnell Douglas Corp. v. Green](https://en.wikipedia.org/wiki/McDonnell_Douglas_Corp._v._Green "McDonnell Douglas Corp. v. Green")*, 411 US 792 (1973)
411. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-411)** [509 US 502](http://www.worldlii.org/us/cases/federal/USSC/1993/94.html) (1993)
412. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-412)** Contrast *[O'Connor v. Consolidated Coin Caterers Corporation](https://en.wikipedia.org/w/index.php?title=O%27Connor_v._Consolidated_Coin_Caterers_Corporation&action=edit&redlink=1 "O'Connor v. Consolidated Coin Caterers Corporation (page does not exist)")* 517 US 308 (1996) on age discrimination
413. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-413)** CRA 1965, 42 USC §2000e-2(e)
414. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-414)** [433 US 321](http://www.worldlii.org/us/cases/federal/USSC/1977/143.html) (1977)
415. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-415)** [517 FSupp 292](https://en.wikisource.org/wiki/Wilson_v._Southwest_Airlines_Co./Opinion_of_the_Court) (ND Tex 1981)
416. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-416)** [472 US 400](http://www.worldlii.org/us/cases/federal/USSC/1985/161.html) (1985)
417. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-417)** [477 US 57](http://www.worldlii.org/us/cases/federal/USSC/1986/139.html) (1986)
418. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-418)** [510 US 17](https://www.law.cornell.edu/supct/html/92-1168.ZO.html) (1993) reversing the Sixth Circuit.
419. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-419)** *[Burlington Industries Inc v. Ellerth](https://en.wikipedia.org/w/index.php?title=Burlington_Industries_Inc_v._Ellerth&action=edit&redlink=1 "Burlington Industries Inc v. Ellerth (page does not exist)")* [524 US 742](http://www.worldlii.org/us/cases/federal/USSC/1998/83.html) (1998) relying on Restatement of Torts §219
420. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-420)** [524 US 775](http://www.worldlii.org/us/cases/federal/USSC/1998/84.html) (1998) n.b. *[Oncale v. Sundowner Offshore Services, Inc.](https://en.wikipedia.org/wiki/Oncale_v._Sundowner_Offshore_Services,_Inc. "Oncale v. Sundowner Offshore Services, Inc.")*, [523 US 75](http://www.worldlii.org/us/cases/federal/USSC/1998/21.html) (1998) sexual harassment was possible between members of the same sex.
421. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-421)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") §2000e-3
422. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-422)** *[Gomez-Perez v. Potter](https://en.wikipedia.org/wiki/Gomez-Perez_v._Potter "Gomez-Perez v. Potter")*, 553 US 474 (2008) 6 to 3.
423. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-423)** [493 US 182](http://www.worldlii.org/us/cases/federal/USSC/1990/4.html) (1990)
424. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-424)** 519 US 337 (1997)
425. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-425)** *[Burlington Northern & Santa Fe (BNSF) Railway Co. v. White](https://en.wikipedia.org/wiki/Burlington_Northern_%26_Santa_Fe_\(BNSF\)_Railway_Co._v._White "Burlington Northern & Santa Fe (BNSF) Railway Co. v. White")*, 548 US 53 (2006)
426. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-426)** At the time, only 34% of white men and 12% of black men had high school diplomas: [U.S. Bureau of the Census](https://en.wikipedia.org/wiki/U.S._Bureau_of_the_Census "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.
427. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-427)** [401 US 424](http://www.worldlii.org/us/cases/federal/USSC/1971/46.html) (1971)
428. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-428)** This overturned *[Wards Cove Packing Co, Inc v. Atonio](https://en.wikipedia.org/w/index.php?title=Wards_Cove_Packing_Co,_Inc_v._Atonio&action=edit&redlink=1 "Wards Cove Packing Co, Inc v. Atonio (page does not exist)")* 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".
429. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-429)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") §2000e–2(k)(1)(A)
430. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-430)** [557](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_557 "List of United States Supreme Court cases, volume 557") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [557](https://supreme.justia.com/cases/federal/us/557/557/) (2009) [Kennedy J](https://en.wikipedia.org/wiki/Kennedy_J "Kennedy J") giving the first judgment.
431. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-431)** [557](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_557 "List of United States Supreme Court cases, volume 557") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") ({{{5}}} [2009](https://en.wikipedia.org/wiki/Reporter_of_Decisions_of_the_Supreme_Court_of_the_United_States "Reporter of Decisions of the Supreme Court of the United States")) [557](https://supreme.justia.com/cases/federal/us/557/557/) (dissent) [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J"), joined by [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J"), [Souter J](https://en.wikipedia.org/wiki/Souter_J "Souter J") and [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J")
432. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-432)** [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§§2000e-5](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-5&num=0&edition=prelim) to [2000e-6](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-6&num=0&edition=prelim)
433. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-433)** [Federal Rules of Civil Procedure](https://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure "Federal Rules of Civil Procedure") [Rule 23](https://www.federalrulesofcivilprocedure.org/frcp/title-iv-parties/rule-23-class-actions/)
434. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-434)** e.g. *[International Brotherhood of Teamsters v. US](https://en.wikipedia.org/w/index.php?title=International_Brotherhood_of_Teamsters_v._US&action=edit&redlink=1 "International Brotherhood of Teamsters v. US (page does not exist)")* [431 US 324](http://www.worldlii.org/us/cases/federal/USSC/1977/90.html) (1977)
435. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-435)** See *[General Telephone Co of Southwest v. Falcon](https://en.wikipedia.org/w/index.php?title=General_Telephone_Co_of_Southwest_v._Falcon&action=edit&redlink=1 "General Telephone Co of Southwest v. Falcon (page does not exist)")* [457 US 147](http://www.worldlii.org/us/cases/federal/USSC/1982/117.html) (1982)
436. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-436)** 29 USC §206(d)(1).
437. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-437)** This exempts (i) a bona fide seniority system (ii) merit systems (iii) systems measuring earnings by quantity or quality of production.
438. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-438)** [452 US 161](http://www.worldlii.org/us/cases/federal/USSC/1981/126.html) (1981)
439. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-439)** See also *[Schultz v. Wheaton Glass Co](https://en.wikipedia.org/w/index.php?title=Schultz_v._Wheaton_Glass_Co&action=edit&redlink=1 "Schultz v. Wheaton Glass Co (page does not exist)")*, 421 F.2d 259 (3rd Cir 1970)
440. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-440)** Similar problems are evident in the UK's [Equality Act 2010](https://en.wikipedia.org/wiki/Equality_Act_2010 "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.
441. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-441)** See Centre for Business Research, *Labour Regulation Index (Dataset of 117 Countries)* ([2016](https://www.repository.cam.ac.uk/bitstream/handle/1810/256566/cbr-lri-117-countries-codebook-and-methodology.pdf?sequence=1)) 763-4
442. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-442)** See LE Blades, 'Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power' (1967) [67(8) *Columbia Law Review* 1404](https://www.jstor.org/stable/1120937), 1411-12. Contrast the [Delaware General Corporation Law](https://en.wikipedia.org/wiki/Delaware_General_Corporation_Law "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.](https://en.wikipedia.org/w/index.php?title=Campbell_v._Loew%27s,_Inc.&action=edit&redlink=1 "Campbell v. Loew's, Inc. (page does not exist)")*, 36 Del Ch 563, 134 A 2d 852 (Ch 1957) referring to *[Auer v. Dressel](https://en.wikipedia.org/w/index.php?title=Auer_v._Dressel&action=edit&redlink=1 "Auer v. Dressel (page does not exist)")*, 306 NY 427, 118 NE 2d 590, 593 (1954)
443. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-Payne_v._Western_1884_443-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-Payne_v._Western_1884_443-1) *[Cusano v. NLRB](https://en.wikipedia.org/w/index.php?title=Cusano_v._NLRB&action=edit&redlink=1 "Cusano v. NLRB (page does not exist)")* 190 F 2d 898 (1951) citing *[NLRB v. Condenser Corp](https://en.wikipedia.org/w/index.php?title=NLRB_v._Condenser_Corp&action=edit&redlink=1 "NLRB v. Condenser Corp (page does not exist)")*, 128 F.2d 67, 75 (3rd Cir 1942) stating "poor reason". See further *[Payne v. Western & Atlantic Railroad](https://en.wikipedia.org/w/index.php?title=Payne_v._Western_%26_Atlantic_Railroad&action=edit&redlink=1 "Payne v. Western & Atlantic Railroad (page does not exist)")*, 81 Tennessee 507 (1884)
444. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-Title_39_ch_2_part_9,_%C2%A74_444-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-Title_39_ch_2_part_9,_%C2%A74_444-1) Montana Code Annotated 2015 [Title 39 ch 2 part 9, §4](http://leg.mt.gov/bills/mca/title_0390/chapter_0020/part_0090/section_0040/0390-0020-0090-0040.html)
445. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-445)** e.g. [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") presidential campaign, *Workplace Democracy Plan* ([2019](https://berniesanders.com/issues/workplace-democracy/)). Mike Siegel Congress campaign in Texas 2020, [Dignity for Workers by Protecting and Growing Union Membership](https://siegelfortexas.org/labor-rights/) [Archived](https://web.archive.org/web/20200322194605/https://siegelfortexas.org/labor-rights/) March 22, 2020, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
446. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-R_Epstein_1984_446-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-R_Epstein_1984_446-1) e.g. R Epstein, 'In Defense of the Contract at Will' (1984) 57 *University of Chicago Law Review* 947
447. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-academic.oup.com_447-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-academic.oup.com_447-1) e.g. V. V. Acharya and R. P. Baghai, 'Labor Laws and Innovation' (2013) 56(4) *Journal of Law and Economics* 997 and V. V. Acharya, R. P. Baghai, K. V. Subramanian, 'Wrongful Discharge Laws and Innovation' (2014) [27(1) Review of Financial Studies 301](https://academic.oup.com/rfs/article-abstract/27/1/301/1573179)
448. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-448)** e.g. L. E. Blades, 'Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power' (1967) [67(8) *Columbia Law Review* 1404](https://www.jstor.org/stable/1120937). C. L. Estlund, 'How Wrong Are Employees About Their Rights, and Why Does It Matter?' (2002) [77 *NYU Law Review* 6](https://heinonline.org/HOL/LandingPage?handle=hein.journals/nylr77&div=11&id=&page=)
449. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-449)** e.g. L Ryan, 'Ten Ways Employment At Will Is Bad For Business' ([October 3, 2016](https://www.forbes.com/sites/lizryan/2016/10/03/ten-ways-employment-at-will-is-bad-for-business/#27c5492e157b)) Forbes.
450. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-450)** See [chart](https://en.wikipedia.org/wiki/File:United_States_unemployment_with_incarceration_1892-2016.png "File:United States unemployment with incarceration 1892-2016.png") below. E McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2022) [51(3) Industrial Law Journal 511](https://osf.io/preprints/lawarxiv/udbj8)
451. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-451)** [Federal Reserve Act of 1913](https://en.wikipedia.org/wiki/Federal_Reserve_Act_of_1913 "Federal Reserve Act of 1913"), 12 USC §225a
452. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-452)** M Kalecki, 'Political aspects of full employment' (1943) [14(4) Political Quarterly 322](http://pluto.mscc.huji.ac.il/~mshalev/ppe/Kalecki_FullEmployment.pdf)
453. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-453)** 5 USC [§7513(a)](https://uscode.house.gov/view.xhtml?path=/prelim@title5/part3/subpartF/chapter75/subchapter2&edition=prelim)
454. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-454)** *[Campbell v. Loew's, Inc.](https://en.wikipedia.org/w/index.php?title=Campbell_v._Loew%27s,_Inc.&action=edit&redlink=1 "Campbell v. Loew's, Inc. (page does not exist)")*, 36 Del Ch 563, 134 A 2d 852 (Ch 1957) referring to *[Auer v. Dressel](https://en.wikipedia.org/w/index.php?title=Auer_v._Dressel&action=edit&redlink=1 "Auer v. Dressel (page does not exist)")*, 306 NY 427, 118 NE 2d 590, 593 (1954)
455. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-455)** e.g. in [UK labour law](https://en.wikipedia.org/wiki/UK_labour_law "UK labour law"), see the [Employment Rights Act 1996](https://en.wikipedia.org/wiki/Employment_Rights_Act_1996 "Employment Rights Act 1996") [ss 94 ff](http://www.legislation.gov.uk/ukpga/1996/18/part/X).
456. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-arts_4-13_456-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-arts_4-13_456-1) [ILO](https://en.wikipedia.org/wiki/ILO "ILO"), [Termination of Employment Convention, 1982](https://en.wikipedia.org/wiki/Termination_of_Employment_Convention,_1982 "Termination of Employment Convention, 1982") [arts 4-13](http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C158)
457. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-457)** See the [German Civil Code](https://en.wikipedia.org/wiki/German_Civil_Code "German Civil Code") or [Bürgerliches Gesetzbuch 1900](https://en.wikipedia.org/wiki/B%C3%BCrgerliches_Gesetzbuch_1900 "Bürgerliches Gesetzbuch 1900") §622 (notice before dismissal) and the [Work Constitution Act 1972](https://en.wikipedia.org/wiki/Work_Constitution_Act_1972 "Work Constitution Act 1972") or Betriebsverfassungsgesetz 1972 (worker participation).
458. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-458)** e.g. [Charter of Fundamental Rights of the European Union](https://en.wikipedia.org/wiki/Charter_of_Fundamental_Rights_of_the_European_Union "Charter of Fundamental Rights of the European Union") [art 30](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)
459. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-459)** e.g. WB MacLeod and V Nakavachara, 'Can Wrongful Discharge Law Enhance Employment?' (2007) [117 Economic Journal F218](https://academic.oup.com/ej/article-abstract/117/521/F218/5086529), I Marinescu, 'Job Security Legislation and Job Duration: Evidence from the United Kingdom' (2009) [27(3) Journal of Labor Economics 465](https://www.journals.uchicago.edu/doi/abs/10.1086/603643). On OECD studies, see E McGaughey, 'OECD Employment Protection Legislation Indicators and Reform' (2019) [ssrn.com](https://ssrn.com/abstract=3434922)
460. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-460)** cf [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") presidential campaign, *Workplace Democracy Plan* ([2019](https://berniesanders.com/issues/workplace-democracy/)). Mike Siegel Congress campaign in Texas 2020, [Dignity for Workers by Protecting and Growing Union Membership](https://siegelfortexas.org/labor-rights/) [Archived](https://web.archive.org/web/20200322194605/https://siegelfortexas.org/labor-rights/) March 22, 2020, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
461. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-461)** [California Civil Code](https://en.wikipedia.org/wiki/California_Civil_Code "California Civil Code") (1872) [§1999](https://archive.org/details/16950100/page/427/mode/2up)
462. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-462)** 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.'
463. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-463)** In New York, *[Adams v. Fitzpatrick](https://en.wikipedia.org/w/index.php?title=Adams_v._Fitzpatrick&action=edit&redlink=1 "Adams v. Fitzpatrick (page does not exist)")* 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](https://en.wikipedia.org/w/index.php?title=Martin_v._New_York_Life_Insurance_Co&action=edit&redlink=1 "Martin v. New York Life Insurance Co (page does not exist)")* 148 NY 117 (NY 1895) the [New York Supreme Court](https://en.wikipedia.org/wiki/New_York_Supreme_Court "New York Supreme Court") held the at will doctrine was 'correctly stated by Mr Wood.' Also *[Adair v. United States](https://en.wikipedia.org/wiki/Adair_v._United_States "Adair v. United States")*, 208 US 161 (1908) the minority dissenting against the lawfulness of [yellow-dog contracts](https://en.wikipedia.org/wiki/Yellow-dog_contracts "Yellow-dog contracts"), but Harlan J conceding that an employer "was at liberty, in his discretion, to discharge \[an employee\] from service without giving any reason for doing so." Contrast EA Ross, 'A Legal Dismissal Wage' (1919) [9(1) American Economic Review 132](http://www.jstor.org/stable/1813991?seq=2) and AS Erofones, 'Contracts. Termination of Employment at Weekly Salary' (1927) [40(4) Harvard LR 646](http://www.jstor.org/stable/1330455)
464. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-464)** [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §8(a)(3) preventing union discrimination
465. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-465)** [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964") 42 USC §2000e-2(a). [Age Discrimination in Employment Act of 1967](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967"), 29 USC §§621-634. [Americans with Disabilities Act of 1990](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990").
466. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-466)** [Occupational Safety and Health Act of 1970](https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act_of_1970 "Occupational Safety and Health Act of 1970"), 29 USC §§651-678
467. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-467)** [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938"), 29 USC §§20-219
468. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-468)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), 29 USC §§1140-41
469. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-469)** [Family and Medical Leave Act](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act "Family and Medical Leave Act"), 29 USC §2615
470. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-470)** [Vietnam Era Veterans' Readjustment Assistance Act](https://en.wikipedia.org/wiki/Vietnam_Era_Veterans%27_Readjustment_Assistance_Act "Vietnam Era Veterans' Readjustment Assistance Act"), 38 USC §2021(a)(A)(i). [Rehabilitation Act of 1973](https://en.wikipedia.org/wiki/Rehabilitation_Act_of_1973 "Rehabilitation Act of 1973"). [Energy Reorganization Act of 1974](https://en.wikipedia.org/wiki/Energy_Reorganization_Act_of_1974 "Energy Reorganization Act of 1974"), 42 USC §5851. [Clean Air Act of 1963](https://en.wikipedia.org/wiki/Clean_Air_Act_of_1963 "Clean Air Act of 1963"), 42 USC §7622. [Federal Water Pollution Control Act](https://en.wikipedia.org/wiki/Federal_Water_Pollution_Control_Act "Federal Water Pollution Control Act"), 33 USC §1367. [Railroad Safety Act](https://en.wikipedia.org/w/index.php?title=Railroad_Safety_Act&action=edit&redlink=1 "Railroad Safety Act (page does not exist)"), 45 US §441(a). [Consumer Credit Protection Act](https://en.wikipedia.org/wiki/Consumer_Credit_Protection_Act "Consumer Credit Protection Act"), 15 USC §1674. [Judiciary and Judicial Procedure Act](https://en.wikipedia.org/w/index.php?title=Judiciary_and_Judicial_Procedure_Act&action=edit&redlink=1 "Judiciary and Judicial Procedure Act (page does not exist)"), 28 USC §1875
471. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-471)** *[Petermann v. International Brotherhood of Teamsters](https://en.wikipedia.org/w/index.php?title=Petermann_v._International_Brotherhood_of_Teamsters&action=edit&redlink=1 "Petermann v. International Brotherhood of Teamsters (page does not exist)")* 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'.
472. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-472)** *[Ivy v. Army Times Pub Co](https://en.wikipedia.org/w/index.php?title=Ivy_v._Army_Times_Pub_Co&action=edit&redlink=1 "Ivy v. Army Times Pub Co (page does not exist)")* 428 A.2d 831 (DC App 1981) declining to perjure at employer's request.
473. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-473)** e.g. *[Nees v. Hocks](https://en.wikipedia.org/w/index.php?title=Nees_v._Hocks&action=edit&redlink=1 "Nees v. Hocks (page does not exist)")* 536 P2d 512 (Or 1975) refusing to seek to be excused from serving on a jury. *[Daniel v. Carolina Sunrock Corp](https://en.wikipedia.org/w/index.php?title=Daniel_v._Carolina_Sunrock_Corp&action=edit&redlink=1 "Daniel v. Carolina Sunrock Corp (page does not exist)")* 335 NC 233 (NC 1993) responding to a subpoena.
474. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-474)** e.g. *[Perks v. Firestone Tire & Rubber Co](https://en.wikipedia.org/w/index.php?title=Perks_v._Firestone_Tire_%26_Rubber_Co&action=edit&redlink=1 "Perks v. Firestone Tire & Rubber Co (page does not exist)")* 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](https://en.wikipedia.org/w/index.php?title=Tacket_v._Delco_Remy,_Division_of_General_Motors_Corp&action=edit&redlink=1 "Tacket v. Delco Remy, Division of General Motors Corp (page does not exist)")* 937 F.2d 1201 (7th Cir 1992) filing litigation against the employer
475. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-475)** e.g. *[Sheets v. Teddy's Frosted Foods, Inc.](https://en.wikipedia.org/w/index.php?title=Sheets_v._Teddy%27s_Frosted_Foods,_Inc.&action=edit&redlink=1 "Sheets v. Teddy's Frosted Foods, Inc. (page does not exist)")* 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.
476. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-476)** e.g. *[Hausman v. St Croix Care Center, Inc.](https://en.wikipedia.org/w/index.php?title=Hausman_v._St_Croix_Care_Center,_Inc.&action=edit&redlink=1 "Hausman v. St Croix Care Center, Inc. (page does not exist)")*, 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](https://en.wikipedia.org/wiki/Fortunato_v._Office_of_Stephen_M._Silston "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.
477. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-477)** 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..."
478. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-478)** [Restatement (Second) of Contracts 1981](https://en.wikipedia.org/wiki/Restatement_\(Second\)_of_Contracts_1981 "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'
479. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-479)** e.g. *[Fortune v. National Cash Register Co](https://en.wikipedia.org/w/index.php?title=Fortune_v._National_Cash_Register_Co&action=edit&redlink=1 "Fortune v. National Cash Register Co (page does not exist)")*, 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](https://en.wikipedia.org/wiki/Magnan_v._Anaconda_Industries "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.
480. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-480)** e.g. *[Bammert v. Don's Super Valu, Inc.](https://en.wikipedia.org/wiki/Bammert_v._Don%27s_Super_Valu,_Inc. "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](https://en.wikipedia.org/wiki/Brockmeyer_v._Dun_%26_Bradstreet "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.
481. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-481)** e.g. *[Wilking v. County of Ramsey](https://en.wikipedia.org/w/index.php?title=Wilking_v._County_of_Ramsey&action=edit&redlink=1 "Wilking v. County of Ramsey (page does not exist)")* 983 F. Supp. 848 (8th Cir 1998) poor performance claims are more credible if the employer shows it gave a warning about improving.
482. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-482)** e.g. *[Taylor v. Procter & Gamble Dover Wipes](https://en.wikipedia.org/w/index.php?title=Taylor_v._Procter_%26_Gamble_Dover_Wipes&action=edit&redlink=1 "Taylor v. Procter & Gamble Dover Wipes (page does not exist)")* (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](https://en.wikipedia.org/w/index.php?title=Pearson_v._Metro-North_Commuter_Railroad&action=edit&redlink=1 "Pearson v. Metro-North Commuter Railroad (page does not exist)")* 1990 WL 20173 (SDNY 1990) if a rule is not consistently enforced, it cannot be relied on by the employer.
483. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-483)** e.g. *[Eastern Associated Coal Corp. v. Mine Workers](https://en.wikipedia.org/wiki/Eastern_Associated_Coal_Corp._v._Mine_Workers "Eastern Associated Coal Corp. v. Mine Workers")*, 531 US 57 (2000) an employee tested positive for [marijuana](https://en.wikipedia.org/wiki/Marijuana "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.
484. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-484)** e.g. *[Lincoln v. University System of Georgia Board of Regents](https://en.wikipedia.org/w/index.php?title=Lincoln_v._University_System_of_Georgia_Board_of_Regents&action=edit&redlink=1 "Lincoln v. University System of Georgia Board of Regents (page does not exist)")* 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.
485. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-485)** *[Toussaint v. Blue Cross & Blue Shield of Michigan](https://en.wikipedia.org/w/index.php?title=Toussaint_v._Blue_Cross_%26_Blue_Shield_of_Michigan&action=edit&redlink=1 "Toussaint v. Blue Cross & Blue Shield of Michigan (page does not exist)")*, 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.](https://en.wikipedia.org/wiki/Torosyan_v._Boehringer_Ingelheim_Pharmaceuticals,_Inc. "Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc.")*, 662 A2d 89 (1995)
486. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-486)** e.g. *[Schipani v. Ford Motor Co](https://en.wikipedia.org/w/index.php?title=Schipani_v._Ford_Motor_Co&action=edit&redlink=1 "Schipani v. Ford Motor Co (page does not exist)")* 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.
487. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-487)** cf [Charter of Fundamental Rights of the European Union 2000](https://en.wikipedia.org/wiki/Charter_of_Fundamental_Rights_of_the_European_Union_2000 "Charter of Fundamental Rights of the European Union 2000") [art 27](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)
488. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-488)** [Control Council Law No 22](https://en.wikipedia.org/wiki/Control_Council_Law_No_22 "Control Council Law No 22") ([10 April 1946](https://en.wikisource.org/wiki/Control_Council_Law_No_22_\(10_April_1946\)_Works_Councils#Articles_IV)) art V. Today see the [Work Constitution Act 1972](https://en.wikipedia.org/wiki/Work_Constitution_Act_1972 "Work Constitution Act 1972") or Betriebsverfassungsgesetz 1972 (worker participation).
489. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-489)** e.g. *[Telesphere International Inc v. Scollin](https://en.wikipedia.org/w/index.php?title=Telesphere_International_Inc_v._Scollin&action=edit&redlink=1 "Telesphere International Inc v. Scollin (page does not exist)")* 489 So 2d 1152 (Fla App 1986) eliminating a product or service. *[Nixon v. Celotext Corp](https://en.wikipedia.org/w/index.php?title=Nixon_v._Celotext_Corp&action=edit&redlink=1 "Nixon v. Celotext Corp (page does not exist)")* 693 F Supp 547 (WD Mich 1988) consolidating operations.
490. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-490)** See the [Control Council Law No 22](https://en.wikipedia.org/wiki/Control_Council_Law_No_22 "Control Council Law No 22") ([10 April 1946](https://en.wikisource.org/wiki/Control_Council_Law_No_22_\(10_April_1946\)_Works_Councils#Articles_IV)) art V, in post-war Germany, now re-enacted in the [Work Constitution Act 1972](https://en.wikipedia.org/wiki/Work_Constitution_Act_1972 "Work Constitution Act 1972") or Betriebsverfassungsgesetz 1972 (worker participation in layoffs).
491. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-491)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2101(a)(2)-(3)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim). §2101(a)(1), the 100 employee threshold excludes part-time employees.
492. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-492)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2102(a)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim)
493. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-493)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§§2101(a)(6) and 2101(b)(2)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim)
494. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-494)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2102(b)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim)
495. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-495)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2102(b)(2)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim) and see *[Local Union 7107, United Mine Workers v. Clinchfield Coal Co](https://en.wikipedia.org/w/index.php?title=Local_Union_7107,_United_Mine_Workers_v._Clinchfield_Coal_Co&action=edit&redlink=1 "Local Union 7107, United Mine Workers v. Clinchfield Coal Co (page does not exist)")* 124 F3d 639 (4th Cir 1997) cancellation of major contract in unforeseeable circumstances.
496. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-496)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2104(a)(4)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim). See *[Kildea v. Electro-Wire Products, Inc.](https://en.wikipedia.org/w/index.php?title=Kildea_v._Electro-Wire_Products,_Inc.&action=edit&redlink=1 "Kildea v. Electro-Wire Products, Inc. (page does not exist)")* 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.
497. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-497)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2104(a)(1)-(3)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim)
498. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-498)** See [E. Appelbaum](https://en.wikipedia.org/wiki/Eileen_Appelbaum "Eileen Appelbaum") and R Batt, *Private Equity at Work – When Wall Street Manages Main Street* (2014)
499. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-499)** *[Unocal Corp. v. Mesa Petroleum Co.](https://en.wikipedia.org/wiki/Unocal_Corp._v._Mesa_Petroleum_Co. "Unocal Corp. v. Mesa Petroleum Co.")* 493 A 2d 946 (Del 1985)
500. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-500)** [417](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_417 "List of United States Supreme Court cases, volume 417") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [249](https://supreme.justia.com/cases/federal/us/417/249/) (1974)
501. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-501)** [Universal Declaration of Human Rights](https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights "Universal Declaration of Human Rights") [art 23(1)](https://en.wikisource.org/wiki/Universal_Declaration_of_Human_Rights#Article_23) and [International Covenant on Economic, Social and Cultural Rights 1966](https://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights_1966 "International Covenant on Economic, Social and Cultural Rights 1966") [art 6](https://en.wikisource.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights#Article_6)
502. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-502)** See also [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt"), '[Second Bill of Rights](https://en.wikipedia.org/wiki/Second_Bill_of_Rights "Second Bill of Rights")', in *State of the Union Address* (January 11, 1944)
503. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-503)** 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
504. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-504)** [239 US 33](http://www.worldlii.org/us/cases/federal/USSC/1915/229.html) (1915) per [Justice Hughes](https://en.wikipedia.org/wiki/Charles_Evans_Hughes "Charles Evans Hughes"). cf *[Massachusetts Board of Retirement v. Murgia](https://en.wikipedia.org/wiki/Massachusetts_Board_of_Retirement_v._Murgia "Massachusetts Board of Retirement v. Murgia")* [427 US 307](http://www.worldlii.org/us/cases/federal/USSC/1976/141.html) (1976) holding that an age limit of 50 years old for police in Massachusetts was constitutional.
505. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-505)** The [Works Progress Administration](https://en.wikipedia.org/wiki/Works_Progress_Administration "Works Progress Administration") was created by Executive Order 7034, and replaced the [Federal Emergency Relief Administration](https://en.wikipedia.org/wiki/Federal_Emergency_Relief_Administration "Federal Emergency Relief Administration") which was itself created by the [Federal Emergency Relief Act of 1933](https://en.wikipedia.org/wiki/Federal_Emergency_Relief_Act_of_1933 "Federal Emergency Relief Act of 1933").
506. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-506)** E McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2022) [51(3) Industrial Law Journal 511](https://osf.io/preprints/lawarxiv/udbj8)
507. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-507)** [Employment Act of 1946](https://en.wikipedia.org/wiki/Employment_Act_of_1946 "Employment Act of 1946"), [15 USC §1021](https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter21&edition=prelim)
508. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-508)** 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.
509. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-509)** *[Board of Regents of State Colleges v. Roth](https://en.wikipedia.org/wiki/Board_of_Regents_of_State_Colleges_v._Roth "Board of Regents of State Colleges v. Roth")* [408 US 564, 588](http://www.worldlii.org/us/cases/federal/USSC/1972/168.html) (1972) per [Justice Marshall](https://en.wikipedia.org/wiki/Thurgood_Marshall "Thurgood Marshall") dissenting.
510. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-510)** 15 USC §3116
511. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-511)** 15 USC [§1022a](https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter21&edition=prelim).
512. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-512)** 15 USC [§1022c](https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter21&edition=prelim).
513. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-513)** [Emergency Relief Appropriation Act of 1935](https://en.wikipedia.org/wiki/Emergency_Relief_Appropriation_Act_of_1935 "Emergency Relief Appropriation Act of 1935")
514. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-514)** Amended by the [Federal Reserve Reform Act of 1977](https://en.wikipedia.org/wiki/Federal_Reserve_Reform_Act_of_1977 "Federal Reserve Reform Act of 1977"), 12 USC §225a
515. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-515)** See [Marriner Stoddard Eccles](https://en.wikipedia.org/wiki/Marriner_Stoddard_Eccles "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](https://en.wikipedia.org/wiki/J._M._Keynes "J. M. Keynes"), *[The General Theory of Employment, Interest and Money](https://en.wikipedia.org/wiki/The_General_Theory_of_Employment,_Interest_and_Money "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."
516. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-516)** 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
517. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-517)** 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.
518. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-518)** E. McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2018) [Centre for Business Research, University of Cambridge, Working Paper no. 496](https://osf.io/preprints/lawarxiv/udbj8), part 2(1)
519. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-519)** Social Security Act of 1935, 42 USC §§501-4, 1101-5. *[Steward Machine Company v. Davis](https://en.wikipedia.org/wiki/Steward_Machine_Company_v._Davis "Steward Machine Company v. Davis")*, 301 US 548 (1937) held [unemployment benefits](https://en.wikipedia.org/wiki/Unemployment_benefits "Unemployment benefits") to be constitutional.
520. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-520)** e.g. *[Millner v. Enck](https://en.wikipedia.org/w/index.php?title=Millner_v._Enck&action=edit&redlink=1 "Millner v. Enck (page does not exist)")* 709 A 2d 417 (Pa Super 1998)
521. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-521)** e.g. *[Cullison v. Commonwealth Unemployment Compensation Board of Review](https://en.wikipedia.org/w/index.php?title=Cullison_v._Commonwealth_Unemployment_Compensation_Board_of_Review&action=edit&redlink=1 "Cullison v. Commonwealth Unemployment Compensation Board of Review (page does not exist)")* 444 A.2d 1330 (Pa 1982) and *[Employment Division, Department of Human Resources v. Smith](https://en.wikipedia.org/wiki/Employment_Division,_Department_of_Human_Resources_v._Smith "Employment Division, Department of Human Resources v. Smith")*, 494 US 872 (1988)
522. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-522)** *[Ohio Bureau of Employment Services v. Hodary](https://en.wikipedia.org/w/index.php?title=Ohio_Bureau_of_Employment_Services_v._Hodary&action=edit&redlink=1 "Ohio Bureau of Employment Services v. Hodary (page does not exist)")*, 431 US 471 (1977)
523. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-523)** [Internal Revenue Code](https://en.wikipedia.org/wiki/Internal_Revenue_Code "Internal Revenue Code") §3304(a)(5)
524. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-524)** *[Brazee v. Michigan](https://en.wikipedia.org/w/index.php?title=Brazee_v._Michigan&action=edit&redlink=1 "Brazee v. Michigan (page does not exist)")*, [241](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_241 "List of United States Supreme Court cases, volume 241") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [340](https://supreme.justia.com/cases/federal/us/241/340/) (1916). Contrast *[Adams v. Tanner](https://en.wikipedia.org/wiki/Adams_v._Tanner "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](https://en.wikipedia.org/wiki/ILO "ILO"), [Private Employment Agencies Convention, 1997](https://en.wikipedia.org/wiki/Private_Employment_Agencies_Convention,_1997 "Private Employment Agencies Convention, 1997")
525. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-525)** [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") and [Jane Sanders](https://en.wikipedia.org/wiki/Jane_Sanders "Jane Sanders"), [Eugene V. Debs Documentary](https://www.youtube.com/watch?v=oY2mQxm4SNQ) (1979)
526. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-526)** The [Fair Employment and Housing Act](http://finduslaw.com/california_fair_employment_and_housing_act_feha_government_code_12900_12996)
527. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-527)** [Details of law](http://www.dfeh.ca.gov/Statutes/feha.asp) [Archived](https://web.archive.org/web/20060116063230/http://www.dfeh.ca.gov/Statutes/feha.asp) January 16, 2006, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine") from the DFEH website
528. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-528)**
Barnes & Thornburg LLP (October 12, 2011). ["California Enacts 22 New Employment Laws Impacting All Companies Doing Business in the State"](http://www.natlawreview.com/article/california-enacts-22-new-employment-laws-impacting-all-companies-doing-business-state). The National Law Review.
529. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-529)**
New Jersey, Legislature (April 16, 1945). ["L.1945 c.168-174. AN Act concerning civil rights, and amending sections 10 :1-3, 10 :1-6 and 10 :1-8 of the Revised Statutes"](https://dspace.njstatelib.org//handle/10929/56526). *NJ State Library*. Retrieved November 15, 2021.
530. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-530)** The [New Jersey Law Against Discrimination](https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/know-the-law/)
## References
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=34 "Edit section: References")\]
Books
- [John R. Commons](https://en.wikipedia.org/wiki/John_R._Commons "John R. Commons"), *[Principles of Labor Legislation](https://en.wikipedia.org/wiki/Principles_of_Labor_Legislation "Principles of Labor Legislation")* (1916)
- [John R. Commons](https://en.wikipedia.org/wiki/John_R._Commons "John R. Commons"), *History of Labor in the United States* (Macmillan 1918) [vol I](https://archive.org/stream/historyoflabouri01commuoft#page/n7/mode/2up) and [vol II](https://archive.org/stream/historyoflabouri02commuoft#page/n7/mode/2up)
- R. Covington, *Employment Law in a Nutshell* (3rd edn 2009)
[ISBN](https://en.wikipedia.org/wiki/ISBN_\(identifier\) "ISBN (identifier)")
[0314195408](https://en.wikipedia.org/wiki/Special:BookSources/0314195408 "Special:BookSources/0314195408")
- [Archibald Cox](https://en.wikipedia.org/wiki/Archibald_Cox "Archibald Cox"), D. C. Bok, [Matthew W. Finkin](https://en.wikipedia.org/wiki/Matthew_W._Finkin "Matthew W. Finkin") and R. A. Gorman, *Labor Law: Cases and Materials* (2011)
[ISBN](https://en.wikipedia.org/wiki/ISBN_\(identifier\) "ISBN (identifier)")
[1684679818](https://en.wikipedia.org/wiki/Special:BookSources/1684679818 "Special:BookSources/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](https://en.wikipedia.org/wiki/Lance_Liebman "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, ['The Development of the Employment at Will Rule'](https://www.jstor.org/pss/844727) (1976) 20(2) *The American Journal of Legal History* 118
- [Herbert Hovenkamp](https://en.wikipedia.org/wiki/Herbert_Hovenkamp "Herbert Hovenkamp"), 'Labor Conspiracies in American Law, 1880–1930' (1988) 66 *Texas Law Review* 919
- C. W. Summers, 'Democracy in a One-Party State: Perspectives from Landrum-Griffin' (1984) 43 *Maryland Law Review* 93
## External links
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=35 "Edit section: External links")\]
- [Labor laws of Federal and State legislatures on law.cornell.edu](https://topics.law.cornell.edu/wex/table_labor)
- [Synopses of US Employment Law Cases](https://web.archive.org/web/20061211185840/http://hrlawindex.com/)
- [Typical benefits of a union contract](https://web.archive.org/web/20100911111241/http://www.iww.org/en/organize/laborlaw/contract1.shtml)
- [Federal employment discrimination law office](http://pinesfederal.com/)
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| [v](https://en.wikipedia.org/wiki/Template:Economy_of_the_United_States "Template:Economy of the United States") [t](https://en.wikipedia.org/wiki/Template_talk:Economy_of_the_United_States "Template talk:Economy of the United States") [e](https://en.wikipedia.org/wiki/Special:EditPage/Template:Economy_of_the_United_States "Special:EditPage/Template:Economy of the United States")[Economy of the United States](https://en.wikipedia.org/wiki/Economy_of_the_United_States "Economy of the United States") | |
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| [Industries](https://en.wikipedia.org/wiki/Category:Industries_of_the_United_States "Category:Industries of the United States") | [Industry](https://en.wikipedia.org/wiki/Manufacturing_in_the_United_States "Manufacturing in the United States") [History](https://en.wikipedia.org/wiki/Technological_and_industrial_history_of_the_United_States "Technological and industrial history of the United States") [Aquaculture](https://en.wikipedia.org/wiki/Aquaculture_in_the_United_States "Aquaculture in the United States") [Automotive](https://en.wikipedia.org/wiki/Automotive_industry_in_the_United_States "Automotive industry in the United States") [Aviation](https://en.wikipedia.org/wiki/Air_transportation_in_the_United_States "Air transportation in the United States") [Beer](https://en.wikipedia.org/wiki/Beer_in_the_United_States "Beer in the United States") [Biotechnology](https://en.wikipedia.org/wiki/Category:Biotechnology_in_the_United_States "Category:Biotechnology in the United States") [Cement](https://en.wikipedia.org/wiki/Cement_industry_in_the_United_States "Cement industry in the United States") [Coffee](https://en.wikipedia.org/wiki/Coffee_production_in_Hawaii "Coffee production in Hawaii") [Cotton](https://en.wikipedia.org/wiki/Cotton_production_in_the_United_States "Cotton production in the United States") [Electric power](https://en.wikipedia.org/wiki/Electricity_sector_in_the_United_States "Electricity sector in the United States") [Electronics](https://en.wikipedia.org/wiki/Electronics_industry_in_the_United_States "Electronics industry in the United States") [Film](https://en.wikipedia.org/wiki/Cinema_of_the_United_States "Cinema of the United States") [Fishing](https://en.wikipedia.org/wiki/Fishing_industry_in_the_United_States "Fishing industry in the United States") [Gambling](https://en.wikipedia.org/wiki/Gambling_in_the_United_States "Gambling in the United States") [Hedge fund](https://en.wikipedia.org/wiki/Category:Hedge_fund_firms_of_the_United_States "Category:Hedge fund firms of the United States") [Internet](https://en.wikipedia.org/wiki/Internet_in_the_United_States "Internet in the United States") [Media](https://en.wikipedia.org/wiki/Media_of_the_United_States "Media of the United States") [Mining](https://en.wikipedia.org/wiki/Mining_in_the_United_States "Mining in the United States") [Gold mining](https://en.wikipedia.org/wiki/Gold_mining_in_the_United_States "Gold mining in the United States") [Pharmaceuticals](https://en.wikipedia.org/wiki/Category:Pharmaceutical_industry_in_the_United_States "Category:Pharmaceutical industry in the United States") and [Pharmacy](https://en.wikipedia.org/wiki/Pharmacies_in_the_United_States "Pharmacies in the United States") [Publishing](https://en.wikipedia.org/wiki/Category:Publishing_in_the_United_States "Category:Publishing in the United States") [Radio](https://en.wikipedia.org/wiki/Radio_in_the_United_States "Radio in the United States") [Railway](https://en.wikipedia.org/wiki/Rail_transportation_in_the_United_States "Rail transportation in the United States") [Real estate](https://en.wikipedia.org/wiki/Category:Real_estate_in_the_United_States "Category:Real estate in the United States") [Renewable energy](https://en.wikipedia.org/wiki/Renewable_energy_in_the_United_States "Renewable energy in the United States") [Steel](https://en.wikipedia.org/wiki/Steel_industry_in_the_United_States "Steel industry in the United States") [Telecommunications](https://en.wikipedia.org/wiki/Telecommunications_in_the_United_States "Telecommunications in the United States") [Television](https://en.wikipedia.org/wiki/Television_in_the_United_States "Television in the United States") [Digital](https://en.wikipedia.org/wiki/Digital_television_in_the_United_States "Digital television in the United States") [Tourism](https://en.wikipedia.org/wiki/Tourism_in_the_United_States "Tourism in the United States") [Textiles](https://en.wikipedia.org/wiki/Category:Textile_industry_in_the_United_States "Category:Textile industry in the United States") [Video gaming](https://en.wikipedia.org/wiki/Video_games_in_the_United_States "Video games in the United States") [Wine](https://en.wikipedia.org/wiki/Wine_of_the_United_States "Wine of the United States") |
| [Special Economic Zones](https://en.wikipedia.org/wiki/Category:Special_economic_zones_of_the_United_States "Category:Special economic zones of the United States") | [Empowerment Zone](https://en.wikipedia.org/wiki/Empowerment_zone "Empowerment zone") [Opportunity Zone](https://en.wikipedia.org/wiki/Opportunity_zone "Opportunity zone") [Targeted Employment Area](https://en.wikipedia.org/wiki/Targeted_Employment_Area "Targeted Employment Area") [Foreign Trade Zones](https://en.wikipedia.org/wiki/Category:Foreign_trade_zones_of_the_United_States "Category:Foreign trade zones of the United States") [Metropolitan Statistical Area](https://en.wikipedia.org/wiki/Metropolitan_statistical_area "Metropolitan statistical area") |
| [Energy](https://en.wikipedia.org/wiki/Category:Energy_in_the_United_States "Category:Energy in the United States") | [Energy policy](https://en.wikipedia.org/wiki/Energy_policy_of_the_United_States "Energy policy of the United States") [Coal](https://en.wikipedia.org/wiki/Coal_in_the_United_States "Coal in the United States") [Oil](https://en.wikipedia.org/wiki/Petroleum_industry_in_the_United_States "Petroleum industry in the United States") [Oil shale](https://en.wikipedia.org/wiki/Category:Oil_shale_in_the_United_States "Category:Oil shale in the United States") [Oil refineries](https://en.wikipedia.org/wiki/List_of_oil_refineries#United_States "List of oil refineries") [Nuclear](https://en.wikipedia.org/wiki/Nuclear_power_in_the_United_States "Nuclear power in the United States") [Renewable](https://en.wikipedia.org/wiki/Renewable_energy_in_the_United_States "Renewable energy in the United States") [Wind](https://en.wikipedia.org/wiki/Wind_power_in_the_United_States "Wind power in the United States") [Solar](https://en.wikipedia.org/wiki/Solar_power_in_the_United_States "Solar power in the United States") [Geothermal](https://en.wikipedia.org/wiki/Geothermal_power_in_the_United_States "Geothermal power in the United States") |
| [Trade](https://en.wikipedia.org/wiki/Category:Foreign_trade_of_the_United_States "Category:Foreign trade of the United States") and [infrastructure](https://en.wikipedia.org/wiki/Category:Infrastructure_in_the_United_States "Category:Infrastructure in the United States") | [Transportation](https://en.wikipedia.org/wiki/Transportation_in_the_United_States "Transportation in the United States") [Communications](https://en.wikipedia.org/wiki/Communications_in_the_United_States "Communications in the United States") [Postal history](https://en.wikipedia.org/wiki/Postage_stamps_and_postal_history_of_the_United_States "Postage stamps and postal history of the United States") [Tourism](https://en.wikipedia.org/wiki/Tourism_in_the_United_States "Tourism in the United States") [Shipping](https://en.wikipedia.org/wiki/Category:Shipping_in_the_United_States "Category:Shipping in the United States") [Illegal drug trade](https://en.wikipedia.org/wiki/Illegal_drug_trade_in_the_United_States "Illegal drug trade in the United States") [Committee on Foreign Investment in the United States](https://en.wikipedia.org/wiki/Committee_on_Foreign_Investment_in_the_United_States "Committee on Foreign Investment in the United States") [Ports](https://en.wikipedia.org/wiki/Ports_of_the_United_States "Ports of the United States") [Water supply and sanitation](https://en.wikipedia.org/wiki/Water_supply_and_sanitation_in_the_United_States "Water supply and sanitation in the United States") [Exports](https://en.wikipedia.org/wiki/List_of_exports_of_the_United_States "List of exports of the United States") [Trading partners](https://en.wikipedia.org/wiki/List_of_the_largest_trading_partners_of_the_United_States "List of the largest trading partners of the United States") |
| Law and regulations | [Tax system](https://en.wikipedia.org/wiki/Taxation_in_the_United_States "Taxation in the United States") [Labor law]() [Child labor laws](https://en.wikipedia.org/wiki/Child_labor_laws_in_the_United_States "Child labor laws in the United States") [Right-to-work law](https://en.wikipedia.org/wiki/Right-to-work_law "Right-to-work law") [Minimum wage](https://en.wikipedia.org/wiki/Minimum_wage_in_the_United_States "Minimum wage in the United States") [Food safety](https://en.wikipedia.org/wiki/Food_safety_in_the_United_States "Food safety in the United States") |
| [Finance](https://en.wikipedia.org/wiki/Category:Finance_in_the_United_States "Category:Finance in the United States") and [banking](https://en.wikipedia.org/wiki/Category:Banking_in_the_United_States "Category:Banking in the United States") | [Financial services](https://en.wikipedia.org/wiki/Financial_services_in_the_United_States "Financial services in the United States") [Dollar](https://en.wikipedia.org/wiki/United_States_dollar "United States dollar") [Bureau of Engraving and Printing](https://en.wikipedia.org/wiki/Bureau_of_Engraving_and_Printing "Bureau of Engraving and Printing") [Banking](https://en.wikipedia.org/wiki/Banking_in_the_United_States "Banking in the United States") [History](https://en.wikipedia.org/wiki/History_of_banking_in_the_United_States "History of banking in the United States") [Central bank](https://en.wikipedia.org/wiki/Federal_Reserve "Federal Reserve") [Other banks](https://en.wikipedia.org/wiki/List_of_banks_in_the_United_States "List of banks in the United States") [Wall Street](https://en.wikipedia.org/wiki/Wall_Street "Wall Street") [New York Stock Exchange](https://en.wikipedia.org/wiki/New_York_Stock_Exchange "New York Stock Exchange") ([NYSE Composite](https://en.wikipedia.org/wiki/NYSE_Composite "NYSE Composite")) [Nasdaq](https://en.wikipedia.org/wiki/Nasdaq "Nasdaq") ([Nasdaq Composite](https://en.wikipedia.org/wiki/Nasdaq_Composite "Nasdaq Composite")) [Chicago Board of Trade](https://en.wikipedia.org/wiki/Chicago_Board_of_Trade "Chicago Board of Trade") [New York Board of Trade](https://en.wikipedia.org/wiki/New_York_Board_of_Trade "New York Board of Trade") [Intercontinental Exchange](https://en.wikipedia.org/wiki/Intercontinental_Exchange "Intercontinental Exchange") [Accounting](https://en.wikipedia.org/wiki/Category:Accounting_in_the_United_States "Category:Accounting in the United States") |
| [Government institutions](https://en.wikipedia.org/wiki/Category:Economy_of_the_United_States "Category:Economy of the United States") | [Department of the Treasury](https://en.wikipedia.org/wiki/United_States_Department_of_the_Treasury "United States Department of the Treasury") [Department of Commerce](https://en.wikipedia.org/wiki/United_States_Department_of_Commerce "United States Department of Commerce") [Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor") [Office of the United States Trade Representative](https://en.wikipedia.org/wiki/Office_of_the_United_States_Trade_Representative "Office of the United States Trade Representative") [Small Business Administration](https://en.wikipedia.org/wiki/Small_Business_Administration "Small Business Administration") [Internal Revenue Service](https://en.wikipedia.org/wiki/Internal_Revenue_Service "Internal Revenue Service") [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board") [United States Trade and Development Agency](https://en.wikipedia.org/wiki/United_States_Trade_and_Development_Agency "United States Trade and Development Agency") [Customs and Border Protection](https://en.wikipedia.org/wiki/U.S._Customs_and_Border_Protection "U.S. Customs and Border Protection") [Office of the Comptroller of the Currency](https://en.wikipedia.org/wiki/Office_of_the_Comptroller_of_the_Currency "Office of the Comptroller of the Currency") [Consumer Financial Protection Bureau](https://en.wikipedia.org/wiki/Consumer_Financial_Protection_Bureau "Consumer Financial Protection Bureau") [Securities and Exchange Commission](https://en.wikipedia.org/wiki/United_States_Securities_and_Exchange_Commission "United States Securities and Exchange Commission") [Federal Deposit Insurance Corporation](https://en.wikipedia.org/wiki/Federal_Deposit_Insurance_Corporation "Federal Deposit Insurance Corporation") [National Credit Union Administration](https://en.wikipedia.org/wiki/National_Credit_Union_Administration "National Credit Union Administration") [United States International Trade Commission](https://en.wikipedia.org/wiki/United_States_International_Trade_Commission "United States International Trade Commission") [Statistics](https://en.wikipedia.org/wiki/Federal_statistical_system "Federal statistical system") |
| [Development](https://en.wikipedia.org/wiki/Category:Economic_development_in_the_United_States "Category:Economic development in the United States") | [International rankings](https://en.wikipedia.org/wiki/International_rankings_of_the_United_States "International rankings of the United States") [States by GDP](https://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_GDP "List of U.S. states and territories by GDP") [Social welfare](https://en.wikipedia.org/wiki/Social_welfare_in_the_United_States "Social welfare in the United States") [Poverty](https://en.wikipedia.org/wiki/Poverty_in_the_United_States "Poverty in the United States") [Labor force](https://en.wikipedia.org/wiki/Labor_force_in_the_United_States "Labor force in the United States") [Unemployment](https://en.wikipedia.org/wiki/Unemployment_in_the_United_States "Unemployment in the United States") [Causes](https://en.wikipedia.org/wiki/Causes_of_unemployment_in_the_United_States "Causes of unemployment in the United States") [State unemployment rate](https://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_unemployment_rate "List of U.S. states and territories by unemployment rate") [Corruption](https://en.wikipedia.org/wiki/Corruption_in_the_United_States "Corruption in the United States") [Standard of living](https://en.wikipedia.org/wiki/Standard_of_living_in_the_United_States "Standard of living in the United States") [Urbanization](https://en.wikipedia.org/wiki/Urbanization_in_the_United_States "Urbanization in the United States") [Emigration](https://en.wikipedia.org/wiki/Emigration_from_the_United_States "Emigration from the United States") |
| International development | [U.S. International Development Finance Corporation](https://en.wikipedia.org/wiki/U.S._International_Development_Finance_Corporation "U.S. International Development Finance Corporation") [Blue Dot Network](https://en.wikipedia.org/wiki/Blue_Dot_Network "Blue Dot Network") [Partnership for Global Infrastructure and Investment](https://en.wikipedia.org/wiki/Partnership_for_Global_Infrastructure_and_Investment "Partnership for Global Infrastructure and Investment") [Export–Import Bank of the United States](https://en.wikipedia.org/wiki/Export%E2%80%93Import_Bank_of_the_United_States "Export–Import Bank of the United States") |
| Economic initiatives | [AmeriCorps VISTA](https://en.wikipedia.org/wiki/AmeriCorps_VISTA "AmeriCorps VISTA") [Job Corps](https://en.wikipedia.org/wiki/Job_Corps "Job Corps") [Pathways out of Poverty](https://en.wikipedia.org/wiki/Pathways_out_of_Poverty "Pathways out of Poverty") |
| [Events](https://en.wikipedia.org/wiki/Category:Economic_history_of_the_United_States "Category:Economic history of the United States") | [2006–2012 housing bubble](https://en.wikipedia.org/wiki/2000s_United_States_housing_bubble "2000s United States housing bubble") [2008 financial crisis](https://en.wikipedia.org/wiki/2008_financial_crisis "2008 financial crisis") [2008–2010 automotive industry crisis](https://en.wikipedia.org/wiki/2008%E2%80%932010_automotive_industry_crisis "2008–2010 automotive industry crisis") [2008 economic stimulus plan](https://en.wikipedia.org/wiki/Economic_Stimulus_Act_of_2008 "Economic Stimulus Act of 2008") [China–United States trade war](https://en.wikipedia.org/wiki/China%E2%80%93United_States_trade_war "China–United States trade war") [2025–26 United States trade war with Canada and Mexico](https://en.wikipedia.org/wiki/2025%E2%80%9326_United_States_trade_war_with_Canada_and_Mexico "2025–26 United States trade war with Canada and Mexico") |
| [Related topics](https://en.wikipedia.org/wiki/Category:United_States "Category:United States") | [Agriculture](https://en.wikipedia.org/wiki/Agriculture_in_the_United_States "Agriculture in the United States") [Bankruptcy](https://en.wikipedia.org/wiki/Bankruptcy_in_the_United_States "Bankruptcy in the United States") [Companies](https://en.wikipedia.org/wiki/List_of_companies_of_the_United_States_by_state "List of companies of the United States by state") [Largest](https://en.wikipedia.org/wiki/List_of_largest_companies_in_the_United_States_by_revenue "List of largest companies in the United States by revenue") [Top 500](https://en.wikipedia.org/wiki/Fortune_500 "Fortune 500") [SOEs](https://en.wikipedia.org/wiki/State-owned_enterprises_of_the_United_States "State-owned enterprises of the United States") [Demographics](https://en.wikipedia.org/wiki/Demographics_of_the_United_States "Demographics of the United States") [National Standards](https://en.wikipedia.org/wiki/American_National_Standards_Institute "American National Standards Institute") [FCC mark](https://en.wikipedia.org/wiki/FCC_mark "FCC mark") *[Made in USA](https://en.wikipedia.org/wiki/Made_in_USA "Made in USA")* [List of Americans by net worth](https://en.wikipedia.org/wiki/List_of_wealthiest_Americans_by_net_worth "List of wealthiest Americans by net worth") [American economists](https://en.wikipedia.org/wiki/Category:American_economists "Category:American economists") [Science and technology](https://en.wikipedia.org/wiki/Science_and_technology_in_the_United_States "Science and technology in the United States") |
| See also  [Category](https://en.wikipedia.org/wiki/Category:Economy_of_the_United_States "Category:Economy of the United States")  [Outline of the United States](https://en.wikipedia.org/wiki/Outline_of_the_United_States "Outline of the United States") [Economy of North America](https://en.wikipedia.org/wiki/Economy_of_North_America "Economy of North America") | |
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United States labor law
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| Readable Markdown | [](https://en.wikipedia.org/wiki/File:Statue_of_liberty,_sunset.jpg)
The [Statue of Liberty](https://en.wikipedia.org/wiki/Statue_of_Liberty "Statue of Liberty") greeted millions of [people who migrated](https://en.wikipedia.org/wiki/History_of_immigration_to_the_United_States "History of immigration to the United States") to America for [work](https://en.wikipedia.org/wiki/Employment "Employment"), saying "[Give me your tired, your poor, Your huddled masses yearning to breathe free...](https://en.wikipedia.org/wiki/The_New_Colossus "The New Colossus")" In 2013, in a 155.5 million [working population](https://en.wikipedia.org/wiki/Working_population "Working population"), union membership was 35.9% in the public sector, 6.6% in the private sector.[\[1\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-1) In 2017, unemployment was 4.3%, excluding people in prison. The US ranks 29th in the world [inequality-adjusted](https://en.wikipedia.org/wiki/Economic_inequality "Economic inequality") [human development index](https://en.wikipedia.org/wiki/List_of_countries_by_inequality-adjusted_HDI "List of countries by inequality-adjusted HDI").[\[2\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-2)
**United States labor law** sets the rights and duties for employees, [labor unions](https://en.wikipedia.org/wiki/Labor_unions_in_the_United_States "Labor unions in the United States"), and [employers](https://en.wikipedia.org/wiki/Employer "Employer") in the US. Labor law's basic aim is to remedy the "[inequality of bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power")" between employees and employers, especially employers "organized in the [corporate](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") or other forms of ownership association".[\[3\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-3) Over the 20th century, federal law created minimum [social and economic rights](https://en.wikipedia.org/wiki/Social_and_economic_rights "Social and economic rights"), and encouraged state laws to go beyond the minimum to favor employees.[\[4\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-4) The [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") requires a federal [minimum wage](https://en.wikipedia.org/wiki/Minimum_wage "Minimum wage"), currently \$7.25 but higher in 29 states and D.C., and discourages working weeks over 40 hours through time-and-a-half [overtime pay](https://en.wikipedia.org/wiki/Overtime_pay "Overtime pay"). There are no federal laws, and few state laws, requiring [paid holidays](https://en.wikipedia.org/wiki/Paid_holidays "Paid holidays") or [paid family leave](https://en.wikipedia.org/wiki/Paid_family_leave "Paid family leave"). The [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "Family and Medical Leave Act of 1993") creates a limited right to 12 weeks of unpaid leave in larger employers. There is no automatic right to an occupational pension beyond federally guaranteed [Social Security](https://en.wikipedia.org/wiki/Social_Security_\(United_States\) "Social Security (United States)"),[\[5\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-5) but the [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974") requires standards of prudent management and good governance if employers agree to provide pensions, health plans or other benefits. The [Occupational Safety and Health Act of 1970](https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act_of_1970 "Occupational Safety and Health Act of 1970") requires employees have a safe system of work.
A [contract of employment](https://en.wikipedia.org/wiki/Contract_of_employment "Contract of employment") can always create better terms than statutory minimum rights. But to increase their [bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") to get better terms, employees organize labor unions for [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"). The [Clayton Act of 1914](https://en.wikipedia.org/wiki/Clayton_Act_of_1914 "Clayton Act of 1914") guarantees all people the right to organize,[\[6\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-6) and the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") creates rights for most employees to organize without detriment through [unfair labor practices](https://en.wikipedia.org/wiki/Unfair_labor_practices "Unfair labor practices"). Under the [Labor Management Reporting and Disclosure Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disclosure_Act_of_1959 "Labor Management Reporting and Disclosure Act of 1959"), labor union governance follows democratic principles. If a majority of employees in a workplace support a union, employing entities have a duty to bargain in [good faith](https://en.wikipedia.org/wiki/Good_faith "Good faith"). Unions can take collective action to defend their interests, including withdrawing their labor on strike. There are not yet general rights to directly participate in enterprise governance, but many employees and unions have experimented with securing influence through pension funds,[\[7\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-7) and representation on [corporate](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") boards.[\[8\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-8)
Since the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), all employing entities and labor unions have a duty to treat employees equally, without discrimination based on "race, color, religion, sex, or national origin".[\[9\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-9) There are separate rules for sex discrimination in pay under the [Equal Pay Act of 1963](https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963 "Equal Pay Act of 1963"). Additional groups with "protected status" were added by the [Age Discrimination in Employment Act of 1967](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967") and the [Americans with Disabilities Act of 1990](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990"). There is no federal law banning all sexual orientation or [identity](https://en.wikipedia.org/wiki/Sexual_identity "Sexual identity") discrimination, but 22 states had passed laws by 2016. These equality laws generally prevent discrimination in hiring and terms of employment, and make discharge because of a protected characteristic unlawful. In 2020, the Supreme Court of the United States ruled in *[Bostock v. Clayton County](https://en.wikipedia.org/wiki/Bostock_v._Clayton_County "Bostock v. Clayton County")* that discrimination solely on the grounds of sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964. There is no federal law against [unjust discharge](https://en.wikipedia.org/wiki/Unfair_dismissal "Unfair dismissal"), and most states also have no law with full protection against wrongful [termination of employment](https://en.wikipedia.org/wiki/Termination_of_employment "Termination of employment").[\[10\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-10) [Collective agreements](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements") made by labor unions and some individual contracts require that people are only discharged for a "[just cause](https://en.wikipedia.org/wiki/Just_cause_\(employment_law\) "Just cause (employment law)")". The [Worker Adjustment and Retraining Notification Act of 1988](https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act_of_1988 "Worker Adjustment and Retraining Notification Act of 1988") requires employing entities give 60 days notice if more than 50 or one third of the workforce may lose their jobs. Federal law has aimed to reach [full employment](https://en.wikipedia.org/wiki/Full_employment "Full employment") through [monetary policy](https://en.wikipedia.org/wiki/Monetary_policy "Monetary policy") and spending on infrastructure. Trade policy has attempted to put labor rights in international agreements, to ensure open markets in a [global economy](https://en.wikipedia.org/wiki/Global_economy "Global economy") do not undermine [fair](https://en.wikipedia.org/wiki/Fair_trade "Fair trade") and full employment.
[](https://en.wikipedia.org/wiki/File:US_Slave_Free_1789-1861.gif)
After the [Declaration of Independence](https://en.wikipedia.org/wiki/United_States_Declaration_of_Independence "United States Declaration of Independence"), [slavery in the US](https://en.wikipedia.org/wiki/Slavery_in_the_US "Slavery in the US") was progressively abolished in the north, but only finished by the [13th Amendment](https://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution "Thirteenth Amendment to the United States Constitution") in 1865 near the end of the [American Civil War](https://en.wikipedia.org/wiki/American_Civil_War "American Civil War").
Modern US labor law mostly comes from statutes passed between [1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") and [1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974"), and changing interpretations of the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court").[\[11\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-11) However, laws regulated the rights of people at work and employers from colonial times onward. Before the [Declaration of Independence](https://en.wikipedia.org/wiki/United_States_Declaration_of_Independence "United States Declaration of Independence") in 1776, the [common law](https://en.wikipedia.org/wiki/Common_law "Common law") was either uncertain or hostile to labor rights.[\[12\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-12) Unions were classed as conspiracies, and potentially criminal.[\[13\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-13) It tolerated [slavery](https://en.wikipedia.org/wiki/Slavery_in_the_colonial_United_States "Slavery in the colonial United States") and [indentured servitude](https://en.wikipedia.org/wiki/Indentured_servitude_in_the_Americas "Indentured servitude in the Americas"). From the [Pequot War](https://en.wikipedia.org/wiki/Pequot_War "Pequot War") in [Connecticut](https://en.wikipedia.org/wiki/Connecticut "Connecticut") from 1636 onwards, [Native Americans](https://en.wikipedia.org/wiki/Indigenous_peoples_of_the_Americas "Indigenous peoples of the Americas") [were enslaved](https://en.wikipedia.org/wiki/Slavery_among_Native_Americans_in_the_United_States "Slavery among Native Americans in the United States") by European settlers. More than half of the European immigrants arrived as prisoners, or in [indentured servitude](https://en.wikipedia.org/wiki/Indentured_servitude "Indentured servitude"),[\[14\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-14) where they were not free to leave their employers until a [debt bond](https://en.wikipedia.org/wiki/Debt_bondage "Debt bondage") had been repaid. Until its abolition, the [Atlantic slave trade](https://en.wikipedia.org/wiki/Atlantic_slave_trade "Atlantic slave trade") brought millions of Africans to do forced labor in the Americas.
However, in 1772, the English [Court of King's Bench](https://en.wikipedia.org/wiki/Court_of_King%27s_Bench_\(England\) "Court of King's Bench (England)") held in *[Somerset v Stewart](https://en.wikipedia.org/wiki/Somerset_v_Stewart "Somerset v Stewart")* that slavery was to be presumed unlawful at common law.[\[15\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-15) [Charles Stewart](https://en.wikipedia.org/wiki/Charles_Stewart_\(customs_official\) "Charles Stewart (customs official)") from [Boston](https://en.wikipedia.org/wiki/Boston "Boston"), [Massachusetts](https://en.wikipedia.org/wiki/Massachusetts "Massachusetts") had bought [James Somerset](https://en.wikipedia.org/wiki/James_Somerset "James Somerset") as a slave and taken him to [England](https://en.wikipedia.org/wiki/England "England"). With the help of [abolitionists](https://en.wikipedia.org/wiki/Abolitionists "Abolitionists"), Somerset escaped and sued for a writ of *[habeas corpus](https://en.wikipedia.org/wiki/Habeas_corpus "Habeas corpus")* (that "holding his body" had been unlawful). [Lord Mansfield](https://en.wikipedia.org/wiki/Lord_Mansfield "Lord Mansfield"), after declaring he should "[let justice be done whatever be the consequence](https://en.wikipedia.org/wiki/Let_justice_be_done_whatever_be_the_consequence "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](https://en.wikipedia.org/wiki/American_Revolution "American Revolution") in 1776.[\[16\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-16) The [1790 United States census](https://en.wikipedia.org/wiki/1790_United_States_census "1790 United States census") recorded 694,280 slaves (17.8 per cent) of a total 3,893,635 population. After independence, the [British Empire](https://en.wikipedia.org/wiki/British_Empire "British Empire") halted the [Atlantic slave trade](https://en.wikipedia.org/wiki/Atlantic_slave_trade "Atlantic slave trade") in [1807](https://en.wikipedia.org/wiki/Slave_Trade_Act_1807 "Slave Trade Act 1807"),[\[17\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-17) and abolished slavery in its own territories, by paying off slave owners in [1833](https://en.wikipedia.org/wiki/Slavery_Abolition_Act_1833 "Slavery Abolition Act 1833").[\[18\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-18) In the US, northern states progressively abolished slavery. However, southern states did not. In *[Dred Scott v. Sandford](https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford "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.[\[19\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-19) The [American Civil War](https://en.wikipedia.org/wiki/American_Civil_War "American Civil War") was the result. [President Lincoln](https://en.wikipedia.org/wiki/President_Lincoln "President Lincoln")'s [Emancipation Proclamation](https://en.wikipedia.org/wiki/Emancipation_Proclamation "Emancipation Proclamation") in 1863 made abolition of slavery a war aim, and the [Thirteenth Amendment](https://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution "Thirteenth Amendment to the United States Constitution") 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](https://en.wikipedia.org/wiki/Peonage_Act_of_1867 "Peonage Act of 1867").[\[20\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-20) In 1868, the [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") ensured equal access to justice, and the [Fifteenth Amendment](https://en.wikipedia.org/wiki/Fifteenth_Amendment_to_the_United_States_Constitution "Fifteenth Amendment to the United States Constitution") required that everyone would have the right to vote. The [Civil Rights Act of 1875](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1875 "Civil Rights Act of 1875") was also meant to ensure equality in access to housing and transport, but in the *[Civil Rights Cases](https://en.wikipedia.org/wiki/Civil_Rights_Cases "Civil Rights Cases")*, the Supreme Court found it was "unconstitutional", ensuring that racial segregation would continue. In dissent, [Harlan J](https://en.wikipedia.org/wiki/Harlan_J "Harlan J") said the majority was leaving people "practically at the mercy of corporations".[\[21\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-21) Even if people were formally free, they remained factually dependent on [property](https://en.wikipedia.org/wiki/Property "Property") owners for work, income and basic services.
> [Labor](https://en.wikipedia.org/wiki/Contract_labour "Contract labour") is prior to and independent of [capital](https://en.wikipedia.org/wiki/Capital_\(economics\) "Capital (economics)"). 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](https://en.wikipedia.org/wiki/Poverty "Poverty"); none less inclined to take or touch aught which they have not honestly earned. Let them beware of surrendering a [political power](https://en.wikipedia.org/wiki/Democracy "Democracy") 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](https://en.wikipedia.org/wiki/Liberty "Liberty") shall be lost.
Like slavery, common law repression of labor unions was slow to be undone.[\[22\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-22) In 1806, *[Commonwealth v. Pullis](https://en.wikipedia.org/wiki/Commonwealth_v._Pullis "Commonwealth v. Pullis")* held that a [Philadelphia](https://en.wikipedia.org/wiki/Philadelphia "Philadelphia") shoemakers union striking for higher wages was an illegal "conspiracy",[\[23\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-23) even though [corporations](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law")—combinations of employers—were lawful. Unions still formed and acted. The first federation of unions, the [National Trades Union](https://en.wikipedia.org/wiki/National_Trades_Union "National Trades Union") was established in 1834 to achieve a [10 hour working day](https://en.wikipedia.org/wiki/Eight-hour_day#United_States "Eight-hour day"), but it did not survive the soaring unemployment from the financial [Panic of 1837](https://en.wikipedia.org/wiki/Panic_of_1837 "Panic of 1837"). In 1842, *[Commonwealth v. Hunt](https://en.wikipedia.org/wiki/Commonwealth_v._Hunt "Commonwealth v. Hunt")*, held that *Pullis* was wrong, after the Boston Journeymen Bootmakers' Society struck for higher wages.[\[24\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-24) 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](https://en.wikipedia.org/wiki/Massachusetts_Supreme_Judicial_Court "Massachusetts Supreme Judicial Court"), [Shaw CJ](https://en.wikipedia.org/wiki/Chief_Justice_Shaw "Chief Justice Shaw") 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.[\[25\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-25) In 1869 an organisation called the [Knights of Labor](https://en.wikipedia.org/wiki/Knights_of_Labor "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,[\[26\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-26) yet it supported the [Alien Contract Labor Law](https://en.wikipedia.org/wiki/Alien_Contract_Labor_Law "Alien Contract Labor Law") of 1885 which suppressed workers migrating to the US under a contract of employment.
Industrial conflicts on [railroads](https://en.wikipedia.org/wiki/Railroads_in_the_United_States "Railroads in the United States") and [telegraphs](https://en.wikipedia.org/wiki/Telegraphs "Telegraphs") from 1883 led to the foundation of the [American Federation of Labor](https://en.wikipedia.org/wiki/American_Federation_of_Labor "American Federation of Labor") in 1886, with the simple aim of improving workers wages, housing and job security "here and now".[\[27\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-27) 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](https://en.wikipedia.org/wiki/Sherman_Antitrust_Act_of_1890 "Sherman Antitrust Act of 1890"), which was intended to sanction business cartels acting in [restraint of trade](https://en.wikipedia.org/wiki/Restraint_of_trade "Restraint of trade"),[\[28\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-28) was applied to labor unions. In 1895, the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") in *[In re Debs](https://en.wikipedia.org/wiki/In_re_Debs "In re Debs")* affirmed an injunction, based on the Sherman Act, against the striking workers of the [Pullman Company](https://en.wikipedia.org/wiki/Pullman_Company "Pullman Company"). The strike leader [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs") was put in prison.[\[29\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-29) In notable dissent among the judiciary,[\[30\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-30) [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J") argued in *[Vegelahn v. Guntner](https://en.wikipedia.org/wiki/Vegelahn_v._Guntner "Vegelahn v. Guntner")* that any union taking [collective action](https://en.wikipedia.org/wiki/Collective_action "Collective action") in [good faith](https://en.wikipedia.org/wiki/Good_faith "Good faith") was lawful: even if strikes caused economic loss, this was equally legitimate as economic loss from corporations competing with one another.[\[31\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-31) [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J") was elevated to the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court"), but was again in a minority on labor rights. In 1905, *[Lochner v. New York](https://en.wikipedia.org/wiki/Lochner_v._New_York "Lochner v. New York")* held that [New York](https://en.wikipedia.org/wiki/New_York_\(state\) "New York (state)") limiting bakers' working day to 60 hours a week violated employers' [freedom of contract](https://en.wikipedia.org/wiki/Freedom_of_contract "Freedom of contract"). The Supreme Court majority supposedly unearthed this "right" in the [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution"), that no State should "deprive any person of life, liberty, or property, without due process of law."[\[32\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-32) With [Harlan J](https://en.wikipedia.org/wiki/Harlan_J "Harlan J"), [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J") dissented, arguing that the "[constitution](https://en.wikipedia.org/wiki/United_States_Constitution "United States 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](https://en.wikipedia.org/wiki/Loewe_v._Lawlor "Loewe v. Lawlor")*, holding that triple damages were payable by a striking union to its employers under the [Sherman Act of 1890](https://en.wikipedia.org/wiki/Sherman_Act_of_1890 "Sherman Act of 1890").[\[33\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-33) This line of cases was finally quashed by the [Clayton Act of 1914](https://en.wikipedia.org/wiki/Clayton_Act_of_1914 "Clayton Act of 1914") §6. This removed labor from [antitrust law](https://en.wikipedia.org/wiki/United_States_antitrust_law "United States antitrust law"), affirming that the "[labor of a human being is not a commodity](https://en.wikipedia.org/wiki/Labour_is_not_a_commodity "Labour 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".[\[34\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-34)
In his [State of the Union](https://en.wikipedia.org/wiki/State_of_the_Union "State of the Union") address of 1944, President [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt") urged that America develop [Second Bill of Rights](https://en.wikipedia.org/wiki/Second_Bill_of_Rights "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](https://en.wikipedia.org/wiki/Clayton_Act "Clayton Act"), and abuses of employers documented by the *[Commission on Industrial Relations](https://en.wikipedia.org/wiki/Commission_on_Industrial_Relations "Commission on Industrial Relations")* from 1915, the Supreme Court struck labor rights down as unconstitutional, leaving management powers virtually unaccountable.[\[35\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-35) In this *[Lochner era](https://en.wikipedia.org/wiki/Lochner_era "Lochner era")*, the Courts held that employers could force workers to not belong to labor unions,[\[36\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-36) that a minimum wage for women and children was void,[\[37\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-37) that states could not ban [employment agencies](https://en.wikipedia.org/wiki/Employment_agencies "Employment agencies") charging fees for work,[\[38\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-38) that workers could not strike in solidarity with colleagues of other firms,[\[39\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-39) and even that the federal government could not ban child labor.[\[40\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-40) It also imprisoned socialist activists, who opposed the fighting in [World War I](https://en.wikipedia.org/wiki/World_War_I "World War I"), meaning that [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs") ran as the Socialist Party's candidate for [president](https://en.wikipedia.org/wiki/President_of_the_United_States "President of the United States") in [1920](https://en.wikipedia.org/wiki/1920_United_States_presidential_election "1920 United States presidential election") from prison.[\[41\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-41) Critically, the courts held state and federal attempts to create Social Security to be unconstitutional.[\[42\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-42) Because they were unable to save in safe public pensions, millions of people bought shares in corporations, causing massive growth in the [stock market](https://en.wikipedia.org/wiki/Stock_market "Stock market").[\[43\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-43) Because the Supreme Court precluded regulation for good information on what people were buying, [corporate promoters](https://en.wikipedia.org/wiki/Corporate_promoters "Corporate promoters") tricked people into paying more than stocks were really worth. The [Wall Street Crash of 1929](https://en.wikipedia.org/wiki/Wall_Street_Crash_of_1929 "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](https://en.wikipedia.org/wiki/Great_Depression "Great Depression").
This led to the election of [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt") for president in 1932, who promised a "[New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal")". Government committed to create [full employment](https://en.wikipedia.org/wiki/Full_employment "Full employment") and a system of [social and economic rights](https://en.wikipedia.org/wiki/Social_and_economic_rights "Social and economic rights") enshrined in federal law.[\[44\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-44) But despite the [Democratic Party](https://en.wikipedia.org/wiki/Democratic_Party_\(United_States\) "Democratic Party (United States)")'s overwhelming electoral victory, the Supreme Court continued to strike down legislation, particularly the [National Industrial Recovery Act of 1933](https://en.wikipedia.org/wiki/National_Industrial_Recovery_Act_of_1933 "National Industrial Recovery Act of 1933"), which regulated enterprise in an attempt to ensure fair wages and prevent [unfair competition](https://en.wikipedia.org/wiki/Unfair_competition "Unfair competition").[\[45\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-45) Finally, after Roosevelt's [second overwhelming victory](https://en.wikipedia.org/wiki/1936_United_States_presidential_election "1936 United States presidential election") in 1936, and Roosevelt's threat to create more judicial positions if his laws were not upheld, one Supreme Court judge [switched positions](https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine "The switch in time that saved nine"). In *[West Coast Hotel Co. v. Parrish](https://en.wikipedia.org/wiki/West_Coast_Hotel_Co._v._Parrish "West Coast Hotel Co. v. Parrish")* the Supreme Court found that [minimum wage](https://en.wikipedia.org/wiki/Minimum_wage "Minimum wage") legislation was constitutional,[\[46\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-46) letting the [New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal") go on. In labor law, the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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](https://en.wikipedia.org/wiki/Solidarity_action "Solidarity action") with employees of other firms. The [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") created the right to a minimum wage, and time-and-a-half [overtime](https://en.wikipedia.org/wiki/Overtime "Overtime") pay if employers asked people to work over 40 hours a week. The [Social Security Act of 1935](https://en.wikipedia.org/wiki/Social_Security_Act_of_1935 "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](https://en.wikipedia.org/wiki/Securities_Act_of_1933 "Securities Act of 1933") and the [Securities Exchange Act of 1934](https://en.wikipedia.org/wiki/Securities_Exchange_Act_of_1934 "Securities Exchange Act of 1934") ensured buyers of securities on the [stock market](https://en.wikipedia.org/wiki/Stock_market "Stock market") had good information. The [Davis–Bacon Act of 1931](https://en.wikipedia.org/wiki/Davis%E2%80%93Bacon_Act_of_1931 "Davis–Bacon Act of 1931") and [Walsh–Healey Public Contracts Act of 1936](https://en.wikipedia.org/wiki/Walsh%E2%80%93Healey_Public_Contracts_Act_of_1936 "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.[\[47\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-47) To reach [full employment](https://en.wikipedia.org/wiki/Full_employment "Full employment") and out of depression, the [Emergency Relief Appropriation Act of 1935](https://en.wikipedia.org/wiki/Emergency_Relief_Appropriation_Act_of_1935 "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](https://en.wikipedia.org/wiki/World_War_II "World War II") began. In 1944, his health waning, Roosevelt urged Congress to work towards a "[Second Bill of Rights](https://en.wikipedia.org/wiki/Second_Bill_of_Rights "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](https://en.wikipedia.org/wiki/Fascism "Fascism") here at home."[\[48\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-48)
President [Lyndon B. Johnson](https://en.wikipedia.org/wiki/Lyndon_B._Johnson "Lyndon B. Johnson") explains the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "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](https://en.wikipedia.org/wiki/New_Deal "New Deal") had created a minimum safety net of labor rights, and aimed to enable [fair pay](https://en.wikipedia.org/wiki/Fair_pay "Fair pay") through [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"), a Republican dominated Congress revolted when Roosevelt died. Against the veto of [President Truman](https://en.wikipedia.org/wiki/President_Truman "President Truman"), the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947 limited the right of labor unions to take [solidarity action](https://en.wikipedia.org/wiki/Solidarity_action "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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") not only created minimum standards, but stopped or "[preempted](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption")" states enabling better union rights, even though there was no such provision in the statute.[\[49\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto4-49) Labor unions became extensively regulated by the [Labor Management Reporting and Disclosure Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disclosure_Act_of_1959 "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](https://en.wikipedia.org/wiki/Job_security "Job security") rights remained vulnerable to unemployment. As well as the crisis triggered by *[Brown v. Board of Education](https://en.wikipedia.org/wiki/Brown_v._Board_of_Education "Brown v. Board of Education")*,[\[50\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-50) and the need to dismantle segregation, job losses in agriculture, particularly among [African Americans](https://en.wikipedia.org/wiki/African_Americans "African Americans") was a major reason for the [civil rights movement](https://en.wikipedia.org/wiki/Civil_rights_movement "Civil rights movement"), culminating in the [March on Washington for Jobs and Freedom](https://en.wikipedia.org/wiki/March_on_Washington_for_Jobs_and_Freedom "March on Washington for Jobs and Freedom") led by [Martin Luther King Jr.](https://en.wikipedia.org/wiki/Martin_Luther_King_Jr. "Martin Luther King Jr.") Although Roosevelt's [Executive Order 8802](https://en.wikipedia.org/wiki/Executive_Order_8802 "Executive Order 8802") of 1941 had prohibited [racial discrimination](https://en.wikipedia.org/wiki/Racial_discrimination "Racial discrimination") in the national defense industry, people still suffered discrimination because of their [skin color](https://en.wikipedia.org/wiki/Skin_color "Skin color") across other workplaces. Also, despite the increasing numbers of women in work, sex discrimination was endemic. The government of [John F. Kennedy](https://en.wikipedia.org/wiki/John_F._Kennedy "John F. Kennedy") introduced the [Equal Pay Act of 1963](https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963 "Equal Pay Act of 1963"), requiring equal pay for women and men. [Lyndon B. Johnson](https://en.wikipedia.org/wiki/Lyndon_B._Johnson "Lyndon B. Johnson") introduced the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "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](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967"), the [Pregnancy Discrimination Act](https://en.wikipedia.org/wiki/Pregnancy_Discrimination_Act "Pregnancy Discrimination Act") of 1978, and the [Americans with Disabilities Act of 1990](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990"), now overseen by the [Equal Employment Opportunity Commission](https://en.wikipedia.org/wiki/Equal_Employment_Opportunity_Commission "Equal Employment Opportunity Commission").
[Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") became the most successful [Democratic Socialist](https://en.wikipedia.org/wiki/Democratic_Socialist "Democratic Socialist") presidential candidate since [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs"), winning 22 states and 43.1% of votes in the [2016 Democratic primary](https://en.wikipedia.org/wiki/Democratic_Party_presidential_primaries,_2016 "Democratic Party presidential primaries, 2016"). He co-authored the 2016 Democratic platform,[\[51\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-51) before [Hillary Clinton](https://en.wikipedia.org/wiki/Hillary_Clinton "Hillary Clinton") lost the [electoral college](https://en.wikipedia.org/wiki/United_States_electoral_college "United States electoral college") to [Donald Trump](https://en.wikipedia.org/wiki/Donald_Trump "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](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974") created rights to well regulated [occupational pensions](https://en.wikipedia.org/wiki/Occupational_pensions "Occupational pensions"), although only where an employer had already promised to provide one: this usually depended on [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining") by unions. But in 1976, the Supreme Court in *[Buckley v. Valeo](https://en.wikipedia.org/wiki/Buckley_v._Valeo "Buckley v. Valeo")* held anyone could spend unlimited amounts of money on political campaigns, as a part of the [First Amendment](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") right to "[freedom of speech](https://en.wikipedia.org/wiki/Freedom_of_speech "Freedom of speech")". After the Republican [President Reagan](https://en.wikipedia.org/wiki/President_Reagan "President Reagan") took office in 1981, he dismissed all [air traffic control staff](https://en.wikipedia.org/wiki/Professional_Air_Traffic_Controllers_Organization_\(1968\) "Professional Air Traffic Controllers Organization (1968)") who went on strike, and replaced the [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "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,[\[52\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-52) allowing employees to be searched at work,[\[53\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-53) and eliminating employee rights to sue for medical malpractice in their own health care.[\[54\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-54) Only limited statutory changes were made. The [Immigration Reform and Control Act of 1986](https://en.wikipedia.org/wiki/Immigration_Reform_and_Control_Act_of_1986 "Immigration Reform and Control Act of 1986") criminalized large numbers of migrants. The [Worker Adjustment and Retraining Notification Act of 1988](https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act_of_1988 "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](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "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](https://en.wikipedia.org/wiki/Small_Business_Job_Protection_Act_of_1996 "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,[\[55\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-55) and the United States began to fall behind most other developed countries in labor rights.[\[56\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-56)
In relation to [federal government contracting](https://en.wikipedia.org/wiki/Government_procurement_in_the_United_States "Government procurement in the United States"), Executive Order 13673, entitled *Fair Pay and Safe Workplaces*, was issued by President [Barack Obama](https://en.wikipedia.org/wiki/Barack_Obama "Barack Obama") on 31 July 2014. It contained "new requirements designed to increase efficiency and cost savings in the Federal contracting process",[\[57\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-g13673-57) specifically referring to "contracting with responsible sources who comply with labor laws".[\[58\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-e13673-58) The Occupational Safety and Health Administration published guidance on 25 August 2016.[\[57\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-g13673-57) 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](https://en.wikipedia.org/wiki/Contracting_officer "Contracting officer") 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".[\[58\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-e13673-58): Sec. 3 The order was revoked by President [Donald Trump](https://en.wikipedia.org/wiki/Donald_Trump "Donald Trump") on 27 March 2017 under [Executive Order 13782](https://en.wikipedia.org/wiki/Executive_Order_13782 "Executive Order 13782").[\[59\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-59)
## Contract and rights at work
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=2 "Edit section: Contract and rights at work")\]
[](https://en.wikipedia.org/wiki/File:Eleanor_Roosevelt_UDHR.jpg)
[Eleanor Roosevelt](https://en.wikipedia.org/wiki/Eleanor_Roosevelt "Eleanor Roosevelt") believed the [Universal Declaration of Human Rights](https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights "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](https://en.wikipedia.org/wiki/Second_Bill_of_Rights "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".[\[60\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-60)
[Contracts](https://en.wikipedia.org/wiki/US_contract_law "US contract law") between employees and employers (mostly [corporations](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law")) usually begin an employment relationship, but are often not enough for a decent livelihood. Because individuals [lack bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of 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](https://en.wikipedia.org/wiki/Freedom_of_contract "Freedom of contract") on any terms,[\[61\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-61) 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](https://en.wikipedia.org/wiki/Economic_and_social_rights "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](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") created a minimum wage (now \$7.25 at federal level, higher in 28 states) and [overtime pay](https://en.wikipedia.org/wiki/Overtime_pay "Overtime pay") of one and a half times. Second, the [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "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](https://en.wikipedia.org/wiki/Occupational_pension "Occupational pension") or other benefits, the [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974") ensures employers guarantee those benefits if they are promised. Fourth, the [Occupational Safety and Health Act 1970](https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act_1970 "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](https://en.wikipedia.org/wiki/Laboratories_of_democracy "Laboratories of democracy") in social and economic rights, where they have not been constrained by the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court").
### Scope of protection
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=3 "Edit section: Scope of protection")\]
[Common law](https://en.wikipedia.org/wiki/Common_law "Common law"), state and federal statutes usually confer labor rights on "employees", but not people who are autonomous and have sufficient [bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") to be "independent contractors". In 1994, the *[Dunlop Commission on the Future of Worker-Management Relations: Final Report](https://en.wikipedia.org/wiki/Dunlop_Commission_on_the_Future_of_Worker-Management_Relations:_Final_Report "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.](https://en.wikipedia.org/wiki/NLRB_v._Hearst_Publications,_Inc. "NLRB v. Hearst Publications, Inc.")*,[\[62\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-62) 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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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](https://en.wikipedia.org/wiki/Good_faith "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](https://en.wikipedia.org/wiki/Restatement_of_the_Law_of_Agency,_Second "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](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "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](https://en.wikipedia.org/wiki/NLRA "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](https://en.wikipedia.org/wiki/United_States_v._Silk "United States v. Silk")*,[\[63\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-63) 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](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality 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.[\[64\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-64) 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](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938"), [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974"), [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "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](https://en.wikipedia.org/wiki/Restatement_of_Agency "Restatement of Agency") must be considered, though none is necessarily decisive.[\[65\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-65)
[](https://en.wikipedia.org/wiki/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)
"[Newsboys](https://en.wikipedia.org/wiki/Newspaper_hawker "Newspaper hawker")" in [L.A.](https://en.wikipedia.org/wiki/Los_Angeles "Los Angeles") were held in the leading case, *[NLRB v. Hearst Publications, Inc.](https://en.wikipedia.org/wiki/NLRB_v._Hearst_Publications,_Inc. "NLRB v. Hearst Publications, Inc.")*, to be employees with labor rights, not independent contractors, on account of their [unequal bargaining power](https://en.wikipedia.org/wiki/Unequal_bargaining_power "Unequal bargaining power").[\[66\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-66)
[Common law](https://en.wikipedia.org/wiki/Common_law "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.[\[67\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-67) 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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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](https://en.wikipedia.org/wiki/NLRB_v._Yeshiva_University "NLRB v. Yeshiva University")*,[\[68\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-68) a 5 to 4 majority of the Supreme Court held that full time professors in a [university](https://en.wikipedia.org/wiki/Yeshiva_University "Yeshiva 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.](https://en.wikipedia.org/wiki/NLRB_v._Kentucky_River_Community_Care,_Inc. "NLRB v. Kentucky River Community Care, Inc.")*,[\[69\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-69) 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](https://en.wikipedia.org/wiki/Stevens_J "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".[\[70\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-70) Similarly, under the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938"), in *[Christopher v. SmithKline Beecham Corp.](https://en.wikipedia.org/wiki/Christopher_v._SmithKline_Beecham_Corp. "Christopher v. SmithKline Beecham Corp.")*,[\[71\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-71) the Supreme Court held 5 to 4 that a traveling medical salesman for [GSK](https://en.wikipedia.org/wiki/GlaxoSmithKline "GlaxoSmithKline") 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://en.wikipedia.org/wiki/Lemmerman_v._A.T._Williams_Oil_Co. "Lemmerman v. A.T. Williams Oil Co.")*,[\[72\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-72) 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](https://en.wikipedia.org/wiki/Hoffman_Plastic_Compounds,_Inc._v._NLRB "Hoffman Plastic Compounds, Inc. v. NLRB")*,[\[73\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-73) 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](https://en.wikipedia.org/wiki/Freedom_of_association "Freedom of association").[\[74\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-74)
[](https://en.wikipedia.org/wiki/File:UberTaxiProtestChicago.jpg)
In September 2015, the [California Labor and Workforce Development Agency](https://en.wikipedia.org/wiki/California_Labor_and_Workforce_Development_Agency "California Labor and Workforce Development Agency") held that [Uber](https://en.wikipedia.org/wiki/Uber "Uber") drivers are controlled and sanctioned by the company and are therefore not self-employed.[\[75\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-75)
Common law tests were often important for determining who was, not just an employee, but the relevant employers who had "[vicarious liability](https://en.wikipedia.org/wiki/Vicarious_liability "Vicarious liability")". Potentially there can be multiple, joint-employers could who share responsibility, although responsibility in [tort law](https://en.wikipedia.org/wiki/US_tort_law "US tort law") can exist regardless of an employment relationship. In *[Ruiz v. Shell Oil Co](https://en.wikipedia.org/wiki/Ruiz_v._Shell_Oil_Co "Ruiz v. Shell Oil Co")*,[\[76\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-76) the [Fifth Circuit](https://en.wikipedia.org/wiki/Fifth_Circuit "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.[\[77\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-77) In *[Local 217, Hotel & Restaurant Employees Union v. MHM Inc](https://en.wikipedia.org/wiki/Local_217,_Hotel_%26_Restaurant_Employees_Union_v._MHM_Inc "Local 217, Hotel & Restaurant Employees Union v. MHM Inc")*[\[78\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-78) the question arose under the [Worker Adjustment and Retraining Notification Act of 1988](https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act_of_1988 "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](https://en.wikipedia.org/wiki/Second_Circuit "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](https://en.wikipedia.org/wiki/NLRA "NLRA"). Under the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "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](https://en.wikipedia.org/wiki/NLRB "NLRB") has found an enterprise to be an employer if it has "substantially identical management, business purpose, operation, equipment, customers and supervision."[\[79\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-79) In *[South Prairie Const. Co. v. Local No. 627, International Union of Operating Engineers, AFL-CIO](https://en.wikipedia.org/wiki/South_Prairie_Const._Co._v._Local_No._627,_International_Union_of_Operating_Engineers,_AFL-CIO "South Prairie Const. Co. v. Local No. 627, International Union of Operating Engineers, AFL-CIO")*,[\[80\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-80) 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",[\[81\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-81) but that further determination of the relevant bargaining unit should have been remitted to the [NLRB](https://en.wikipedia.org/wiki/NLRB "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.[\[82\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-82)
### Contracts of employment
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=4 "Edit section: Contracts of employment")\]
When people start work, there will almost always be a [contract of employment](https://en.wikipedia.org/wiki/Contract_of_employment "Contract of employment") that governs the relationship of employee and the employing entity (usually a [corporation](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"), but occasionally a human being).[\[83\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-83) A "contract" is an agreement enforceable in law. Very often it can be written down, or signed, but an [oral agreement](https://en.wikipedia.org/wiki/Oral_agreement "Oral agreement") is also a fully enforceable contract. Because employees have [unequal bargaining power](https://en.wikipedia.org/wiki/Unequal_bargaining_power "Unequal bargaining power") compared to almost all employing entities, most employment contracts are "[standard form](https://en.wikipedia.org/wiki/Standard_form_contracts "Standard form contracts")".[\[84\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-84) Most terms and conditions are photocopied or reproduced for many people. Genuine [negotiation](https://en.wikipedia.org/wiki/Negotiation "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](https://en.wikipedia.org/wiki/Collective_bargaining "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](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements").[\[85\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-85) The federal right to a minimum wage, and increased [overtime](https://en.wikipedia.org/wiki/Overtime "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.[\[86\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-86) These and other rights, including [family leave](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_1993 "Family and Medical Leave Act 1993"), rights against [discrimination](https://en.wikipedia.org/wiki/Civil_Rights_Act_1964 "Civil Rights Act 1964"), or basic [job security](https://en.wikipedia.org/wiki/Job_security "Job security") standards, were designed by the [United States Congress](https://en.wikipedia.org/wiki/United_States_Congress "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](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act "National Labor Relations Act") of 1935, the [Occupational Safety and Health Act of 1970](https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act_of_1970 "Occupational Safety and Health Act of 1970"),[\[87\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-87) and the [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974"),[\[88\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-88) have been interpreted in a series of contentious judgments by the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") to "[preempt](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption")" state law enactments.[\[89\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-89) 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.[\[90\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-90) Where minimum rights do not exist in federal or state statutes, principles of [contract law](https://en.wikipedia.org/wiki/US_contract_law "US contract law"), and potentially [torts](https://en.wikipedia.org/wiki/US_tort_law "US tort law"), will apply.
[](https://en.wikipedia.org/wiki/File:Ecrivains_consult_-_Texte_4_mains.jpg)
Employment contracts are subject to minimum rights in state and federal statute, and those created by [collective agreements](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements").[\[91\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-91)
Aside from terms in oral or written agreements, terms can be incorporated by reference. Two main sources are [collective agreements](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements") and company handbooks. In *[JI Case Co v. National Labor Relations Board](https://en.wikipedia.org/wiki/JI_Case_Co_v._National_Labor_Relations_Board "JI Case Co v. National Labor Relations Board")* an employing corporation argued it should not have to bargain in [good faith](https://en.wikipedia.org/wiki/Good_faith "Good faith") with a labor union, and did not commit an [unfair labor practice](https://en.wikipedia.org/wiki/Unfair_labor_practice "Unfair labor practice") by refusing, because it had recently signed individual contracts with its employees.[\[92\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-92) The [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") held unanimously that the "very purpose" of collective bargaining and the [National Labor Relations Act 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_1935 "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.[\[93\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-93) For example, in *[Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc.](https://en.wikipedia.org/wiki/Torosyan_v._Boehringer_Ingelheim_Pharmaceuticals,_Inc. "Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc.")* the [Supreme Court of Connecticut](https://en.wikipedia.org/wiki/Supreme_Court_of_Connecticut "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.[\[94\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-94) Most other state courts have reached the same conclusion, that contracts cannot be altered, except for employees' benefit, without new [consideration](https://en.wikipedia.org/wiki/Consideration "Consideration") and true agreement.[\[95\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-95) By contrast, a slight majority on the [California Supreme Court](https://en.wikipedia.org/wiki/California_Supreme_Court "California Supreme Court"), appointed by Republican governors, held in *[Asmus v. Pacific Bell](https://en.wikipedia.org/wiki/Asmus_v._Pacific_Bell "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.[\[96\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-96) 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](https://en.wikipedia.org/wiki/Good_faith_\(law\) "Good faith (law)") 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".[\[97\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-97) The term of [good faith](https://en.wikipedia.org/wiki/Good_faith_\(law\) "Good faith (law)") persists throughout the employment relationship. It has not yet been used extensively by state courts, compared to other jurisdictions. The [Montana Supreme Court](https://en.wikipedia.org/wiki/Montana_Supreme_Court "Montana Supreme Court") has recognized that extensive and even punitive damages could be available for breach of an employee's reasonable expectations.[\[98\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-98) However others, such as the [California Supreme Court](https://en.wikipedia.org/wiki/California_Supreme_Court "California Supreme Court") limit any recovery of damages to contract breaches, but not damages regarding the manner of termination.[\[99\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-99) By contrast, in the [United Kingdom](https://en.wikipedia.org/wiki/UK_labour_law "UK labour law") the requirement for "[good faith](https://en.wikipedia.org/wiki/Good_faith_\(law\) "Good faith (law)")"[\[100\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-100) has been found to limit the power of discharge except for fair reasons[\[101\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-101) (but not to conflict with statute[\[102\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-102)), in Canada it may limit unjust discharge also for self-employed persons,[\[103\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-103) and in Germany it can preclude the payment of wages significantly below average.[\[104\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-104)
Finally, it was traditionally thought that arbitration clauses could not displace any employment rights, and therefore limit access to justice in public courts.[\[105\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-105) However, in *[14 Penn Plaza LLC v. Pyett](https://en.wikipedia.org/wiki/14_Penn_Plaza_LLC_v._Pyett "14 Penn Plaza LLC v. Pyett")*,[\[106\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-106) in a 5 to 4 decision under the [Federal Arbitration Act](https://en.wikipedia.org/wiki/Federal_Arbitration_Act "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.[\[107\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-107)
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.[\[108\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-108) Today, the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "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](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") also regulates [executive pay](https://en.wikipedia.org/wiki/Executive_pay "Executive pay"), although a system of "[maximum wage](https://en.wikipedia.org/wiki/Maximum_wage "Maximum wage")" regulation, for instance by the former [Stabilization Act of 1942](https://en.wikipedia.org/wiki/Stabilization_Act_of_1942 "Stabilization Act of 1942"), is not currently in force. Historically, the law actually suppressed [wages](https://en.wikipedia.org/wiki/Wage_regulation "Wage regulation"), not of the highly paid, by ordinary workers. For example, in 1641 the [Massachusetts Bay Colony](https://en.wikipedia.org/wiki/Massachusetts_Bay_Colony "Massachusetts Bay Colony") [legislature](https://en.wikipedia.org/wiki/Massachusetts_General_Court "Massachusetts General Court") (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](https://en.wikipedia.org/wiki/Commonwealth_\(U.S._state\) "Commonwealth (U.S. state)")".[\[109\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-109) In the early 20th century, democratic opinion demanded everyone had a [minimum wage](https://en.wikipedia.org/wiki/Minimum_wage "Minimum wage"), and could bargain for fair wages beyond the minimum. But when states tried to introduce new laws, the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") held them unconstitutional. A right to [freedom of contract](https://en.wikipedia.org/wiki/Freedom_of_contract "Freedom of contract"), argued a majority, could be construed from the [Fifth](https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution "Fifth Amendment to the United States Constitution") and [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution")'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](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") of choice with their employer".[\[110\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-110)
[](https://en.wikipedia.org/wiki/File:Timeline_of_federal_minimum_hourly_wage_for_the_United_States_\(including_inflation-adjusted\)._Congressional_Research_Service.gif)
The [real](https://en.wikipedia.org/wiki/Real_versus_nominal_value_\(economics\) "Real versus nominal value (economics)") federal minimum wage has declined by 46% since February 1968. Lower line is [nominal dollars](https://en.wikipedia.org/wiki/Real_versus_nominal_value_\(economics\) "Real versus nominal value (economics)"). Top line is [inflation-adjusted](https://en.wikipedia.org/wiki/Inflation-adjusted "Inflation-adjusted").[\[111\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-CRS-2023-111)[\[112\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-FRED-graph-112)
After the [Wall Street Crash](https://en.wikipedia.org/wiki/Wall_Street_Crash "Wall Street Crash"), and the [New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal") with the election of [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt"), the majority in the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") was changed. In *[West Coast Hotel Co. v. Parrish](https://en.wikipedia.org/wiki/West_Coast_Hotel_Co._v._Parrish "West Coast Hotel Co. v. Parrish")* [Hughes CJ](https://en.wikipedia.org/wiki/Hughes_CJ "Hughes CJ") held (over four dissenters still arguing for [Freedom of Contract](https://en.wikipedia.org/wiki/Freedom_of_Contract "Freedom of Contract")) that a [Washington](https://en.wikipedia.org/wiki/Washington_\(state\) "Washington (state)") law setting minimum wages for women was constitutional because the state legislatures should be enabled to adopt legislation in the public interest.[\[113\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-113) This ended the "*[Lochner](https://en.wikipedia.org/wiki/Lochner_v._New_York "Lochner v. New York")* era", and Congress enacted the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938").[\[114\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-114) Under §202(a) the federal minimum wage aims to ensure a "standard of living necessary for health, efficiency and general well being".[\[115\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-115) Under §207(a)(1), most employees (but with many exceptions) working over 40 hours a week must receive 50 per cent more [overtime](https://en.wikipedia.org/wiki/Overtime "Overtime") pay on their hourly wage.[\[116\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto5-116) Nobody may pay lower than the minimum wage, but under §218(a) states and municipal governments may enact higher wages.[\[117\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto-117) This is frequently done to reflect local productivity and requirements for decent living in each region.[\[118\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-118) However the federal minimum wage has no automatic mechanism to update with inflation. Because the [Republican Party](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") has opposed raising wages, the federal [real minimum wage](https://en.wikipedia.org/wiki/Real_wages "Real wages") is over 33 per cent lower today than in 1968, among the lowest in the industrialized world.
[](https://en.wikipedia.org/wiki/File:Fight_for_$15_on_4-15_\(17160512642\).jpg)
People have campaigned for a \$15 an hour minimum wage, because the [real minimum wage](https://en.wikipedia.org/wiki/Real_wage "Real wage") has fallen by 43% compared to 1968.[\[112\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-FRED-graph-112) In "[tipped](https://en.wikipedia.org/wiki/Gratuity "Gratuity")" 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](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") judges held in *[Alden v. Maine](https://en.wikipedia.org/wiki/Alden_v._Maine "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](https://en.wikipedia.org/wiki/Eleventh_Amendment_to_the_United_States_Constitution "Eleventh Amendment to the United States Constitution").[\[119\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-119) [Souter J](https://en.wikipedia.org/wiki/Souter_J "Souter J"), joined by three dissenting justices,[\[120\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-120) held that no such "sovereign immunity" existed in the [Eleventh Amendment](https://en.wikipedia.org/wiki/Eleventh_Amendment_to_the_United_States_Constitution "Eleventh Amendment to the United States Constitution").[\[121\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-121) [Twenty-eight states](https://en.wikipedia.org/wiki/Minimum_wage_in_the_United_States "Minimum wage in the United States"), however, did have minimum wage laws higher than the federal level in 2016. Further, because the [US Constitution](https://en.wikipedia.org/wiki/US_Constitution "US Constitution"), [article one](https://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution "Article One of the United States Constitution"), [section 8, clause 3](https://en.wikipedia.org/wiki/Commerce_Clause "Commerce Clause") only allows the federal government to "regulate [Commerce](https://en.wikipedia.org/wiki/Commerce_Clause "Commerce Clause") ... 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.[\[122\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-122) [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938") §203(s) explicitly exempts establishments whose only employees are close family members.[\[123\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-123) Under §213 the minimum wage may not be paid to 18 categories of employee, and paying overtime to 30 categories of employee.[\[124\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-124) This include under §213(a)(1) employees of "*bona fide* executive, administrative, or professional capacity". In *[Auer v. Robbins](https://en.wikipedia.org/wiki/Auer_v._Robbins "Auer v. Robbins")* police sergeants and lieutenants at the [St Louis](https://en.wikipedia.org/wiki/St_Louis "St Louis") Police Department, [Missouri](https://en.wikipedia.org/wiki/Missouri "Missouri") claimed they should not be classed as executives or professional employees, and should get overtime pay.[\[125\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-125) [Scalia J](https://en.wikipedia.org/wiki/Scalia_J "Scalia J") held that, following [Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States 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.[\[126\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-126) 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](https://en.wikipedia.org/wiki/Long_Island_Care_at_Home,_Ltd._v._Coke "Long Island Care at Home, Ltd. v. Coke")*, a corporation claimed exemption, although [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") for a unanimous court agreed with the [Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor") that it was only intended for carers in private homes.[\[127\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-127)
Second, because §206(a)(1)(C) says the minimum wage is \$7.25 per hour, courts have grappled with which hours count as "working".[\[128\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-128) 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.[\[129\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-129) For example, in, *[Anderson v. Mt. Clemens Pottery Co.](https://en.wikipedia.org/wiki/Anderson_v._Mt._Clemens_Pottery_Co. "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.[\[130\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-130) According to [Murphy J](https://en.wikipedia.org/wiki/Murphy_J "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."[\[131\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-131) In *[Armour & Co. v. Wantock](https://en.wikipedia.org/wiki/Armour_%26_Co._v._Wantock "Armour & Co. v. Wantock")* [firefighters](https://en.wikipedia.org/wiki/Firefighters "Firefighters") claimed they should be fully paid while on call at their station for fires. The [Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US 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".[\[132\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-132) By contrast, in 1992 the [Sixth Circuit](https://en.wikipedia.org/wiki/Sixth_Circuit "Sixth Circuit") controversially held that needing to be infrequently available by phone or pager, where movement was not restricted, was not working time.[\[133\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-133) Time spent doing unusual cleaning, for instance showering off toxic substances, does count as working time,[\[134\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-134) and so does time putting on special protective gear.[\[135\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-135) Under §207(e) pay for overtime should be one and a half times the regular pay. In *[Walling v. Helmerich & Payne, Inc.](https://en.wikipedia.org/wiki/Walling_v._Helmerich_%26_Payne,_Inc. "Walling v. Helmerich & Payne, Inc.")*, the [Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US 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.[\[136\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-136) However, in *[Christensen v. Harris County](https://en.wikipedia.org/wiki/Christensen_v._Harris_County "Christensen v. Harris County")* six [Supreme Court](https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States "Supreme Court of the United States") judges held that police in [Harris County, Texas](https://en.wikipedia.org/wiki/Harris_County,_Texas "Harris County, Texas"), could be forced to use up their accumulated "compensatory time" (allowing time off with full pay) before claiming overtime.[\[137\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-137) Writing for the dissent, [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "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.[\[138\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-138) Third, §203(m) allows employers to deduct sums from wages for food or housing that is "customarily furnished" for employees. The [secretary of labor](https://en.wikipedia.org/wiki/Secretary_of_labor "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](https://en.wikipedia.org/wiki/FLSA_1938 "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](https://en.wikipedia.org/wiki/Consumer_Credit_Protection_Act_of_1968 "Consumer Credit Protection Act of 1968") limits deductions or "garnishments" by employers to 25 per cent of wages,[\[139\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-139) though many states are considerably more protective. Finally, under the [Portal to Portal Act of 1947](https://en.wikipedia.org/wiki/Portal_to_Portal_Act_of_1947 "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.[\[140\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-140)
[](https://en.wikipedia.org/wiki/File:Historical_Income_Tax_Rates_and_brackets.png)
- [Tax brackets](https://en.wikipedia.org/wiki/Tax_bracket "Tax bracket")
Lowest marginal income tax rates
- [Income tax in the United States](https://en.wikipedia.org/wiki/Income_tax_in_the_United_States "Income tax in the United States")
- [Legal history of income tax in the United States](https://en.wikipedia.org/wiki/Legal_history_of_income_tax_in_the_United_States "Legal history of income tax in the United States")
- [State income tax](https://en.wikipedia.org/wiki/State_income_tax "State income tax")
- [Payroll tax](https://en.wikipedia.org/wiki/Payroll_tax "Payroll tax"), [Federal Insurance Contributions Act](https://en.wikipedia.org/wiki/Federal_Insurance_Contributions_Act "Federal Insurance Contributions Act") tax
### Working time and family care
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=6 "Edit section: Working time and family care")\]
[](https://en.wikipedia.org/wiki/File:Clock_200_Fifth_Av_jeh.JPG)
The [Universal Declaration of Human Rights](https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights "Universal Declaration of Human Rights") 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](https://en.wikipedia.org/wiki/Paid_annual_leave "Paid annual leave"): Americans have the least in the developed world.[\[141\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-141)
People in the United States work among the longest hours per week in the [industrialized world](https://en.wikipedia.org/wiki/Industrialized_world "Industrialized world"), and have the least annual leave.[\[142\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-142) The [Universal Declaration of Human Rights](https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights "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](https://en.wikipedia.org/wiki/List_of_minimum_annual_leave_by_country "List of minimum annual leave by country")." However, there is no general federal or state legislation requiring paid annual leave. Title 5 of the [United States Code](https://en.wikipedia.org/wiki/United_States_Code "United States Code") §6103 specifies ten [public holidays](https://en.wikipedia.org/wiki/Public_holidays_in_the_United_States "Public holidays in the United States") for federal government employees, and provides that holidays will be paid.[\[143\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-143) 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](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements") and individual employment contracts. State law proposals have been made to introduce paid annual leave. A 2014 [Washington](https://en.wikipedia.org/wiki/Washington_\(state\) "Washington (state)") Bill from [United States House of Representatives](https://en.wikipedia.org/wiki/United_States_House_of_Representatives "United States House of Representatives") member [Gael Tarleton](https://en.wikipedia.org/wiki/Gael_Tarleton "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](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") [Holidays with Pay Convention 1970](https://en.wikipedia.org/wiki/Holidays_with_Pay_Convention_1970 "Holidays with Pay Convention 1970")[\[144\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-144) three weeks is the bare minimum. The bill did not receive enough votes.[\[145\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-145) By contrast, employees in all [European Union](https://en.wikipedia.org/wiki/European_Union "European Union") countries have the right to at least 4 weeks (i.e. 28 days) of paid annual leave each year.[\[146\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-146) 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](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "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](https://en.wikipedia.org/wiki/Time_and_a_half "Time and a half") pay must be given to employees working more than 40 hours in a week.[\[116\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto5-116) 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.[\[147\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-147) 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".[\[148\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-148) State legislation to limit working time was, however, suppressed by the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") in *[Lochner v. New York](https://en.wikipedia.org/wiki/Lochner_v._New_York "Lochner v. New York")*.[\[149\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-149) The [New York State Legislature](https://en.wikipedia.org/wiki/New_York_State_Legislature "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](https://en.wikipedia.org/wiki/Utica,_New_York "Utica, New York"), Mr Lochner claimed that the law violated the [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") on "[due process](https://en.wikipedia.org/wiki/Due_process "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.[\[150\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-150) 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.[\[151\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-151) The whole [*Lochner* era](https://en.wikipedia.org/wiki/Lochner_era "Lochner era") of jurisprudence was reversed by the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") in 1937,[\[152\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-152) but experimentation to improve working time rights, and "[work-life balance](https://en.wikipedia.org/wiki/Work%E2%80%93life_balance_in_the_United_States "Work–life balance in the United States")" has not yet recovered.
[](https://en.wikipedia.org/wiki/File:Childcare_Development_Center-Crestwood_High_School_cheerleaders_120815-F-PG936-400.jpg)
Because there is no right to education and [child care](https://en.wikipedia.org/wiki/Child_care "Child care") for [children under five](https://en.wikipedia.org/wiki/Pre-kindergarten "Pre-kindergarten"), the costs of child care fall on parents. But in 2016, four states had legislated for [paid family leave](https://en.wikipedia.org/wiki/Paid_family_leave "Paid family leave").[\[153\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-153)
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](https://en.wikipedia.org/wiki/Parental_leave "Parental 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](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") will often get none.[\[154\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-154) There are, however, limited federal rights to unpaid leave for family and medical reasons. The [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "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.[\[155\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-155) 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.[\[156\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-156) Child care leave should be taken in one lump, unless agreed otherwise.[\[157\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-157) Employees must give notice of 30 days to employers if birth or adoption is "foreseeable",[\[158\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-158) 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.[\[159\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-159) Employers must provide benefits during the unpaid leave.[\[160\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-160) Under §2652(b) states are empowered to provide "greater family or medical leave rights". In 2016 California, [New Jersey](https://en.wikipedia.org/wiki/New_Jersey "New Jersey"), [Rhode Island](https://en.wikipedia.org/wiki/Rhode_Island "Rhode Island") and [New York](https://en.wikipedia.org/wiki/New_York_\(state\) "New York (state)") 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](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") in *[Ragsdale v. Wolverine World Wide, Inc.](https://en.wikipedia.org/wiki/Ragsdale_v._Wolverine_World_Wide,_Inc. "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.[\[161\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-161) 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."[\[162\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-162) Employees or the [secretary of labor](https://en.wikipedia.org/wiki/Secretary_of_labor "Secretary of labor") can bring enforcement actions,[\[163\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-163) 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.[\[164\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-164) There is a two-year limit on bringing claims, or three years for willful violations.[\[165\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-165) Despite the lack of rights to leave, there is no right to free [child care](https://en.wikipedia.org/wiki/Child_care "Child care") or [day care](https://en.wikipedia.org/wiki/Day_care "Day care"). This has encouraged several proposals to create a public system of free child care, or for the government to subsize parents' costs.[\[166\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-166)
In the early 20th century, the possibility of having a "retirement" became real as people lived longer,[\[167\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-167) and believed the elderly should not have to work or rely on charity until they died.[\[168\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-168) The law maintains an income in retirement in three ways (1) through a public [social security](https://en.wikipedia.org/wiki/Social_security "Social security") program created by the Social Security Act of 1935,[\[169\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-169) (2) occupational pensions managed through the employment relationship, and (3) private pensions or [life insurance](https://en.wikipedia.org/wiki/Life_insurance "Life insurance") that individuals buy themselves. At work, most [occupational pension](https://en.wikipedia.org/wiki/Occupational_pension "Occupational pension") schemes originally resulted from [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining") during the 1920s and 1930s.[\[170\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-170) 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](https://en.wikipedia.org/wiki/Collective_agreement "Collective agreement") became known as "[Taft–Hartley plans](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_plan "Taft–Hartley plan")" after the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947 required joint management of funds by employees and employers.[\[171\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-171) Many employers also voluntarily choose to provide pensions. For example, the pension for professors, now called [TIAA](https://en.wikipedia.org/wiki/TIAA "TIAA"), was established on the initiative of [Andrew Carnegie](https://en.wikipedia.org/wiki/Andrew_Carnegie "Andrew Carnegie") in 1918 with the express requirement for participants to have voting rights for the plan trustees.[\[172\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-172) These could be collective and [defined benefit](https://en.wikipedia.org/wiki/Defined_benefit "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)](https://en.wikipedia.org/wiki/401\(k\) "401(k)")" plans. These are named after the [Internal Revenue Code](https://en.wikipedia.org/wiki/Internal_Revenue_Code "Internal Revenue Code") §[401(k)](https://en.wikipedia.org/wiki/401\(k\) "401(k)"),[\[173\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-173) 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](https://en.wikipedia.org/wiki/Tax_deferral "Tax deferral") rule applies to all pensions. But unlike a "[defined benefit](https://en.wikipedia.org/wiki/Defined_benefit "Defined benefit")" plan, a [401(k)](https://en.wikipedia.org/wiki/401\(k\) "401(k)") only contains whatever the employer and employee [contribute](https://en.wikipedia.org/wiki/Defined_contribution_plan "Defined contribution plan"). 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](https://en.wikipedia.org/wiki/Pension_Protection_Act_of_2006 "Pension Protection Act of 2006") §902 codified a model for employers to [automatically enroll](https://en.wikipedia.org/wiki/Automatic_enrolment "Automatic enrolment") their employees in a pension, with a right to opt out.[\[174\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-174) However, there is no right to an occupational pension. The [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "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.[\[175\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-175)
[](https://en.wikipedia.org/wiki/File:The_Morgan_Stanley_Building_\(WTM_by_official-ly_cool_112\).jpg)
Investment managers, like [Morgan Stanley](https://en.wikipedia.org/wiki/Morgan_Stanley "Morgan Stanley") and all pension trustees, are [fiduciaries](https://en.wikipedia.org/wiki/Fiduciaries "Fiduciaries"). This means they must avoid [conflicts of interest](https://en.wikipedia.org/wiki/Conflicts_of_interest "Conflicts of interest"). During a takeover bid, *[Donovan v. Bierwirth](https://en.wikipedia.org/wiki/Donovan_v._Bierwirth "Donovan v. Bierwirth")* held trustees must take advice or not vote on corporate stocks if in doubt about [conflicts](https://en.wikipedia.org/wiki/Conflict_of_interest "Conflict of interest").[\[176\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-176)
Five main rights for beneficiaries in [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") include information, [funding](https://en.wikipedia.org/wiki/Funding "Funding"), [vesting](https://en.wikipedia.org/wiki/Vesting "Vesting"), [anti-discrimination](https://en.wikipedia.org/wiki/Anti-discrimination "Anti-discrimination"), and [fiduciary duties](https://en.wikipedia.org/wiki/Fiduciary_duties "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](https://en.wikipedia.org/wiki/Secretary_of_labor "Secretary of labor"), and if beneficiaries make claims any refusal must be justified with a "full and fair review".[\[177\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-177) 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.[\[178\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-178) 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.[\[179\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-179) Second, all promises must be funded in advance.[\[180\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-180) The [Pension Benefit Guaranty Corporation](https://en.wikipedia.org/wiki/Pension_Benefit_Guaranty_Corporation "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](https://en.wikipedia.org/wiki/Vesting "Vesting")") after 5 years,[\[181\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-181) and contributions must [accrue](https://en.wikipedia.org/wiki/Accrue "Accrue") (i.e. the employee owns contributions) at a proportionate rate.[\[182\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-182) If employers and pension funds merge, there can be no reduction in benefits,[\[183\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-183) and if an employee goes bankrupt their creditors cannot take their occupational pension.[\[184\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-184) However, the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") has enabled benefits to be withdrawn by employers simply amending plans. In *[Lockheed Corp. v. Spink](https://en.wikipedia.org/wiki/Lockheed_Corp._v._Spink "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](https://en.wikipedia.org/wiki/Fiduciary_duties "Fiduciary duties") to preserve what an employee had originally been promised.[\[185\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-185) In dissent, [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") and [Souter J](https://en.wikipedia.org/wiki/Souter_J "Souter J") reserved any view on such "highly technical, important matters".[\[186\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-186) Steps to terminate a plan depend on whether it is individual, or multi-employer, and *[Mead Corp. v. Tilley](https://en.wikipedia.org/wiki/Mead_Corp._v._Tilley "Mead Corp. v. Tilley")* a majority of the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") held that employers could recoup excess benefits paid into pension plans after [PBGC](https://en.wikipedia.org/wiki/PBGC "PBGC") conditions are fulfilled. [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J"), dissenting, contended that all contingent and future liabilities must be satisfied.[\[187\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-187) Fourth, as a general principle, employees or beneficiaries cannot suffer any discrimination or detriment for "the attainment of any right" under a plan.[\[188\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-188) Fifth, managers are bound by responsibilities of competence and loyalty, called "[fiduciary duties](https://en.wikipedia.org/wiki/Fiduciary_duties "Fiduciary duties")".[\[189\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-189) Under §1102, a [fiduciary](https://en.wikipedia.org/wiki/Fiduciary "Fiduciary") is anyone who administers a plan, its trustees, and investment managers who are delegated control. Under §1104, [fiduciaries](https://en.wikipedia.org/wiki/Fiduciaries "Fiduciaries") must follow a "[prudent](https://en.wikipedia.org/wiki/Prudent_person "Prudent person")" person standard, involving three main components. First, a fiduciary must act "in accordance with the documents and instruments governing the plan".[\[190\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-190) Second, they must act with "care, skill and diligence", including "diversifying the investments of the plan" to "minimize the risk of large losses".[\[191\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-191) Liability for carelessness extends to making misleading statements about benefits,[\[192\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-192) and have been interpreted by the [Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor") to involve a duty to vote on proxies when [corporate stocks](https://en.wikipedia.org/wiki/Corporate_stocks "Corporate stocks") are purchased, and publicizing a statement of investment policy.[\[193\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-193) Third, and codifying fundamental equitable principles, a [fiduciary](https://en.wikipedia.org/wiki/Fiduciary "Fiduciary") must avoid any possibility of a [conflict of interest](https://en.wikipedia.org/wiki/Conflict_of_interest "Conflict of interest").[\[194\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-194) Fiduciaries must act "solely in the interest of the participants ... for the exclusive purpose of providing benefits" with "reasonable expenses",[\[195\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-195) and specifically avoiding [self-dealing](https://en.wikipedia.org/wiki/Self-dealing "Self-dealing") with a related "party in interest".[\[196\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-196) For example, in *[Donovan v. Bierwirth](https://en.wikipedia.org/wiki/Donovan_v._Bierwirth "Donovan v. Bierwirth")*, the [Second Circuit](https://en.wikipedia.org/wiki/Second_Circuit "Second Circuit") held that trustees of a pension which owned shares in the employees' company as a [takeover](https://en.wikipedia.org/wiki/Takeover "Takeover") bid was launched, because they faced a potential [conflict of interest](https://en.wikipedia.org/wiki/Conflict_of_interest "Conflict of interest"), had to get independent legal advice on how to vote, or possibly abstain.[\[197\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-197) Remedies for these duties have, however, been restricted by the [Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") to disfavor damages.[\[198\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-198) In these fields, according to §1144, [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") will "supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan".[\[199\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-199) ERISA did not, therefore, follow the model of the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") or the [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "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](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") to strike down a [New York](https://en.wikipedia.org/wiki/New_York_\(state\) "New York (state)") that required giving benefits to pregnant employees in [ERISA](https://en.wikipedia.org/wiki/ERISA "ERISA") plans.[\[200\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-200) It held a case under [Texas](https://en.wikipedia.org/wiki/Texas "Texas") law for damages for denying vesting of benefits was preempted, so the claimant only had [ERISA](https://en.wikipedia.org/wiki/ERISA "ERISA") remedies.[\[201\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-201) It struck down a [Washington](https://en.wikipedia.org/wiki/Washington_\(state\) "Washington (state)") law which altered who would receive life insurance designation on death.[\[202\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-202) However, under §1144(b)(2)(A) this does not affect 'any law of any State which regulates insurance, banking, or [securities](https://en.wikipedia.org/wiki/Securities "Securities").' So, the Supreme Court has also held valid a [Massachusetts](https://en.wikipedia.org/wiki/Massachusetts "Massachusetts") law requiring mental health to be covered by employer group health policies.[\[203\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-203) But it struck down a [Pennsylvania](https://en.wikipedia.org/wiki/Pennsylvania "Pennsylvania") statute which prohibited employers becoming subrogated to (potentially more valuable) claims of employees for insurance after accidents.[\[204\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-204) Yet more recently, the court has shown a greater willingness to prevent laws being preempted,[\[205\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-205) 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.
[](https://en.wikipedia.org/wiki/File:Bernie_Sanders_in_East_Los_Angeles_\(27211671695\).jpg)
The [Workplace Democracy Act of 1999](https://en.wikipedia.org/wiki/Workplace_Democracy_Act_of_1999 "Workplace Democracy Act of 1999"),[\[206\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto1-206) proposed by [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "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](https://en.wikipedia.org/wiki/Corporate_stocks "Corporate stocks"). Currently [investment managers](https://en.wikipedia.org/wiki/Investment_managers "Investment managers") control most voting rights in the economy using "other people's money".[\[207\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-207)
The most important rights that [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") did not cover were who controls investments and [securities](https://en.wikipedia.org/wiki/Securities "Securities") that beneficiaries' retirement savings buy. The largest form of retirement fund has become the [401(k)](https://en.wikipedia.org/wiki/401\(k\) "401(k)"). This is often an individual account that an employer sets up, and an [investment management](https://en.wikipedia.org/wiki/Investment_management "Investment management") firm, such as [Vanguard](https://en.wikipedia.org/wiki/The_Vanguard_Group "The Vanguard Group"), [Fidelity](https://en.wikipedia.org/wiki/Fidelity_Investments "Fidelity Investments"), [Morgan Stanley](https://en.wikipedia.org/wiki/Morgan_Stanley "Morgan Stanley") or [BlackRock](https://en.wikipedia.org/wiki/BlackRock "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](https://en.wikipedia.org/wiki/Institutional_Shareholder_Services "Institutional Shareholder Services") or [Glass Lewis](https://en.wikipedia.org/wiki/Glass_Lewis "Glass Lewis"). Under [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") §1102(a),[\[208\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-208) 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](https://en.wikipedia.org/wiki/Fiduciaries "Fiduciaries") or [trustees](https://en.wikipedia.org/wiki/Trustees "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.[\[209\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-209) These investment managers buy a range of assets, particularly [corporate stocks](https://en.wikipedia.org/wiki/Corporate_stocks "Corporate stocks") which have voting rights, as well as [government bonds](https://en.wikipedia.org/wiki/Government_bonds "Government bonds"), [corporate bonds](https://en.wikipedia.org/wiki/Corporate_bonds "Corporate bonds"), [commodities](https://en.wikipedia.org/wiki/Commodities "Commodities"), real estate or [derivatives](https://en.wikipedia.org/wiki/Derivative_\(finance\) "Derivative (finance)"). 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](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_plan "Taft–Hartley plan"), and [state public pension plans](https://en.wikipedia.org/wiki/Public_employee_pension_plans_in_the_United_States "Public employee pension plans in the United States"). Under the amended [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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.[\[210\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-210) Although many local pension funds are not consolidated and have had critical funding notices from the [Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor"),[\[211\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-211) more funds with employee representation ensure that corporate voting rights are cast according to the preferences of their members. [State public pensions](https://en.wikipedia.org/wiki/Public_employee_pension_plans_in_the_United_States "Public employee pension plans in the United States") are often larger, and have greater [bargaining power](https://en.wikipedia.org/wiki/Bargaining_power "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.[\[212\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-212) For example, the [California Government Code](https://en.wikipedia.org/wiki/California_Government_Code "California Government Code") §20090 requires that its public employee pension fund, [CalPERS](https://en.wikipedia.org/wiki/CalPERS "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](https://en.wikipedia.org/wiki/Investment_manager "Investment manager") voting. Furthermore, no general legislation requires voting rights for employees in pension funds, despite several proposals.[\[213\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-213) For example, the [Workplace Democracy Act of 1999](https://en.wikipedia.org/wiki/Workplace_Democracy_Act_of_1999 "Workplace Democracy Act of 1999"), sponsored by [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") then in the [US House of Representatives](https://en.wikipedia.org/wiki/US_House_of_Representatives "US House of Representatives"), would have required all single employer pension plans to have trustees appointed equally by employers and employee representatives.[\[206\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto1-206) There is, furthermore, currently no legislation to stop investment managers voting with other people's money as the [Dodd–Frank Act](https://en.wikipedia.org/wiki/Dodd%E2%80%93Frank_Act "Dodd–Frank Act") of 2010 §957 banned [broker-dealers](https://en.wikipedia.org/wiki/Broker-dealer "Broker-dealer") voting on significant issues without instructions.[\[214\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-214) This means votes in the largest [corporations](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") that people's retirement savings buy are overwhelmingly exercised by investment managers, whose interests potentially conflict with the interests of beneficiaries' on [labor rights](https://en.wikipedia.org/wiki/Labor_rights "Labor rights"), [fair pay](https://en.wikipedia.org/wiki/Fair_pay "Fair pay"), [job security](https://en.wikipedia.org/wiki/Job_security "Job security"), or pension policy.
The [Occupational Safety and Health Act](https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act "Occupational Safety and Health Act"),[\[215\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-215) signed into law in 1970 by President [Richard Nixon](https://en.wikipedia.org/wiki/Richard_Nixon "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](https://en.wikipedia.org/wiki/Benzene "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](https://en.wikipedia.org/wiki/Child_labor_laws_in_the_United_States "Child labor laws in the United States")
- *[Pickering v. Board of Education](https://en.wikipedia.org/wiki/Pickering_v._Board_of_Education "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](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") and the [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution")
- *[Connick v. Myers](https://en.wikipedia.org/wiki/Connick_v._Myers "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](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution")
- *[Rankin v. McPherson](https://en.wikipedia.org/wiki/Rankin_v._McPherson "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](https://en.wikipedia.org/wiki/Ronald_Reagan "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](https://en.wikipedia.org/wiki/Waters_v._Churchill "Waters v. Churchill")*, 511 U.S. 661 (1994) 7 to 2, a public hospital nurse stating, outside work at dinner, that the [cross-training](https://en.wikipedia.org/wiki/Cross-training_\(business\) "Cross-training (business)") policies of the hospital were flawed, could be dismissed without any violation of the [First Amendment](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") because it could be seen as interfering with the employer's operations
- *[Garcetti v. Ceballos](https://en.wikipedia.org/wiki/Garcetti_v._Ceballos "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](https://en.wikipedia.org/wiki/Employee_Polygraph_Protection_Act "Employee Polygraph Protection Act") (1988) outlawed the use of lie detectors by private employers except in narrowly prescribed circumstances
- [Whistleblower Protection Act](https://en.wikipedia.org/wiki/Whistleblower_Protection_Act "Whistleblower Protection Act") (1989)
- *[Huffman v. Office of Personnel Management](https://en.wikipedia.org/wiki/Huffman_v._Office_of_Personnel_Management "Huffman v. Office of Personnel Management")*, 263 F.3d 1341 (Fed. Cir. 2001)
- *[O'Connor v. Ortega](https://en.wikipedia.org/wiki/O%27Connor_v._Ortega "O'Connor v. Ortega")*, 480 U.S. 709 (1987) searches in the workplace
- *[City of Ontario v. Quon](https://en.wikipedia.org/wiki/City_of_Ontario_v._Quon "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](https://en.wikipedia.org/wiki/Heffernan_v._City_of_Paterson "Heffernan v. City of Paterson")*, 578 US \_\_ (2016)
## Workplace participation
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=10 "Edit section: Workplace participation")\]
[](https://en.wikipedia.org/wiki/File:Oblique_facade_3,_US_Supreme_Court.jpg)
The [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court")'s policy of [preemption](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption") since 1953 means federal [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining") rules cancel state rules, even if state law is more beneficial to employees.[\[49\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto4-49) Despite preemption, many unions, [corporations](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"), and states have experimented with direct participation rights, to get a "[fair day's wage for a fair day's work](https://en.wikipedia.org/wiki/Fair_day%27s_wage_for_a_fair_day%27s_work "Fair day's wage for a fair day's work")".[\[216\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-216)
The central right in [labor law](https://en.wikipedia.org/wiki/Labor_law "Labor law"), beyond minimum standards for pay, hours, pensions, safety or privacy, is to participate and vote in workplace governance.[\[217\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-217) The American model developed from the [Clayton Antitrust Act of 1914](https://en.wikipedia.org/wiki/Clayton_Antitrust_Act_of_1914 "Clayton Antitrust Act of 1914"),[\[218\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-218) which declared the "labor of a [human being](https://en.wikipedia.org/wiki/Human_being "Human being") is not a [commodity](https://en.wikipedia.org/wiki/Commodity "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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") changed the basic model, which remained through the 20th century. Reflecting the "[inequality of bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") between employees ... and employers who are organized in the [corporate](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") or other forms of ownership association",[\[219\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-219) the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") codified basic rights of employees to organize a [union](https://en.wikipedia.org/wiki/Labor_union "Labor union"), requires employers to bargain in [good faith](https://en.wikipedia.org/wiki/Good_faith "Good faith") (at least on paper) after a union has majority support, binds employers to [collective agreements](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements"), and protects the right to take [collective action](https://en.wikipedia.org/wiki/Collective_action "Collective action") including a strike. Union membership, collective bargaining, and standards of living all increased rapidly until Congress forced through the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "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](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") chose to develop a doctrine that the rules in the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") preempted any other state rules if an activity was "arguably subject" to its rights and duties.[\[220\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-220) While states were inhibited from acting as "[laboratories of democracy](https://en.wikipedia.org/wiki/Laboratories_of_democracy "Laboratories of democracy")", and particularly as unions were targeted from 1980 and membership fell, the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") has been criticized as a "failed statute" as US labor law "ossified".[\[221\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-221) 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](https://en.wikipedia.org/wiki/Codetermine "Codetermine") directors of corporate boards, and elect [work councils](https://en.wikipedia.org/wiki/Work_councils "Work councils") with binding rights on workplace issues.
[Freedom of association](https://en.wikipedia.org/wiki/Freedom_of_association "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](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution").[\[222\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-222) In early [colonial history](https://en.wikipedia.org/wiki/Colonial_history_of_the_United_States "Colonial history of the United States"), 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](https://en.wikipedia.org/wiki/Savannah,_Georgia "Savannah, Georgia"), [Georgia](https://en.wikipedia.org/wiki/Georgia_\(U.S._state\) "Georgia (U.S. state)") in 1746.[\[223\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-223) After the [American Revolution](https://en.wikipedia.org/wiki/American_Revolution "American Revolution"), however, courts departed from repressive elements of [English common law](https://en.wikipedia.org/wiki/English_common_law "English common law"). The first reported case, *[Commonwealth v. Pullis](https://en.wikipedia.org/wiki/Commonwealth_v._Pullis "Commonwealth v. Pullis")* in 1806 did find shoemakers in [Philadelphia](https://en.wikipedia.org/wiki/Philadelphia "Philadelphia") guilty of "a combination to raise their wages".[\[224\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-224) Nevertheless, unions continued, and the first federation of trade unions was formed in 1834, the [National Trades' Union](https://en.wikipedia.org/wiki/National_Trades%27_Union "National Trades' Union"), with the primary aim of a 10-hour working day.[\[225\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-225) In 1842 the [Supreme Court of Massachusetts](https://en.wikipedia.org/wiki/Supreme_Court_of_Massachusetts "Supreme Court of Massachusetts") held in *[Commonwealth v. Hunt](https://en.wikipedia.org/wiki/Commonwealth_v._Hunt "Commonwealth v. Hunt")* that a strike by the Boston Journeymen Bootmakers' Society for higher wages was lawful.[\[226\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-226) [Chief Justice Shaw](https://en.wikipedia.org/wiki/Chief_Justice_Shaw "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](https://en.wikipedia.org/wiki/Slavery "Slavery") by [Abraham Lincoln](https://en.wikipedia.org/wiki/Abraham_Lincoln "Abraham Lincoln")'s [Emancipation Proclamation](https://en.wikipedia.org/wiki/Emancipation_Proclamation "Emancipation Proclamation") during the [American Civil War](https://en.wikipedia.org/wiki/American_Civil_War "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](https://en.wikipedia.org/wiki/Sherman_Act_of_1890 "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](https://en.wikipedia.org/wiki/Pullman_Company "Pullman Company"), and imprisoned the leader, and future presidential candidate, [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs").[\[227\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-227) The court also enabled unions to be sued for triple damages in *[Loewe v. Lawlor](https://en.wikipedia.org/wiki/Loewe_v._Lawlor "Loewe v. Lawlor")*, a case involving a [hat maker](https://en.wikipedia.org/wiki/Hat_maker "Hat maker") union in [Danbury, Connecticut](https://en.wikipedia.org/wiki/Danbury,_Connecticut "Danbury, Connecticut").[\[228\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto3-228) The president and [United States Congress](https://en.wikipedia.org/wiki/United_States_Congress "United States Congress") responded by passing the [Clayton Act of 1914](https://en.wikipedia.org/wiki/Clayton_Act_of_1914 "Clayton Act of 1914") to take labor out of [antitrust law](https://en.wikipedia.org/wiki/Antitrust_law "Antitrust law"). Then, after the [Great Depression](https://en.wikipedia.org/wiki/Great_Depression "Great Depression") passed the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947 regulated how members can join a union, and the [Labor Management Reporting and Disclosure Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disclosure_Act_of_1959 "Labor Management Reporting and Disclosure Act of 1959") created a "bill of rights" for union members.
[](https://en.wikipedia.org/wiki/File:Richard_Trumka_2008.jpg)
[Richard Trumka](https://en.wikipedia.org/wiki/Richard_Trumka "Richard Trumka") was the late president of the [AFL–CIO](https://en.wikipedia.org/wiki/AFL%E2%80%93CIO "AFL–CIO"), a federation of unions, with 12.5m members. The [Change to Win Federation](https://en.wikipedia.org/wiki/Change_to_Win_Federation "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](https://en.wikipedia.org/wiki/Freedom_of_association "Freedom of association"), the law requires basic standards of democracy and accountability to ensure members are truly free in shaping their associations.[\[229\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-229) Fundamentally, all unions are democratic organizations,[\[230\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-230) 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](https://en.wikipedia.org/wiki/McClellan_Committee "McClellan Committee") of the [US Senate](https://en.wikipedia.org/wiki/US_Senate "US Senate") found evidence of two rival [Teamsters Union](https://en.wikipedia.org/wiki/Teamsters_Union "Teamsters Union") executives, [Jimmy Hoffa](https://en.wikipedia.org/wiki/Jimmy_Hoffa "Jimmy Hoffa") and [Dave Beck](https://en.wikipedia.org/wiki/Dave_Beck "Dave Beck"), falsifying delegate vote counts and stealing union funds,[\[231\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-231) Congress passed the [Labor Management Reporting and Disclosure Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disclosure_Act_of_1959 "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.[\[232\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-232) Under § 431, unions should file their constitutions and bylaws with the [secretary of labor](https://en.wikipedia.org/wiki/Secretary_of_labor "Secretary of labor") and be accessible by members:[\[233\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto2-233) today union constitutions are online. Under § 481 elections must occur at least every 5 years, and local officers every 3 years, by secret ballot.[\[233\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto2-233) Additionally, state law may bar union officials who have prior convictions for felonies from holding office.[\[234\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-234) As a response to the Hoffa and Beck scandals, there is also an express [fiduciary duty](https://en.wikipedia.org/wiki/Fiduciary_duty "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](https://en.wikipedia.org/wiki/Embezzlement "Embezzlement"). These rules, however, restated most of what was already the law, and codified principles of governance that unions already undertook.[\[235\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-235) 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](https://en.wikipedia.org/wiki/US_Department_of_Labor "US Department of Labor").[\[236\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-236) Federal courts may review decisions by the Department to proceed with any prosecutions.[\[237\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-237) 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](https://en.wikipedia.org/wiki/Financial_institutions "Financial institutions").[\[238\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-238)
[](https://en.wikipedia.org/wiki/File:Sharan_Burrow_World_Economic_Forum_2013.jpg)
[Sharan Burrow](https://en.wikipedia.org/wiki/Sharan_Burrow "Sharan Burrow") leads the [International Trade Union Confederation](https://en.wikipedia.org/wiki/International_Trade_Union_Confederation "International Trade Union Confederation"), which represents labor union members worldwide, via each national group including the [AFL–CIO](https://en.wikipedia.org/wiki/AFL%E2%80%93CIO "AFL–CIO").[\[239\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-239)
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](https://en.wikipedia.org/wiki/Collective_agreements "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](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"). However, after the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947, the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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.[\[240\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-240) But § 164(b) was added to codify a right of states to pass so called "[right to work laws](https://en.wikipedia.org/wiki/Right_to_work_law "Right to work law")" that prohibit unions making collective agreements to register all workers as union members, or collect fees for the service of collective bargaining.[\[241\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-241) Over time, as more states with [Republican](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") governments passed laws restricting union membership agreements, there has been a significant decline of [union density](https://en.wikipedia.org/wiki/Union_density "Union density"). Unions have not, however, yet experimented with agreements to [automatically enroll](https://en.wikipedia.org/wiki/Automatically_enroll "Automatically enroll") employees in unions with a right to opt out. In *[International Ass'n of Machinists v. Street](https://en.wikipedia.org/wiki/International_Ass%27n_of_Machinists_v._Street "International Ass'n of Machinists v. Street")*, a majority of the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court"), against three dissenting justices, held that the [First Amendment](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") 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.[\[242\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-242) Unions have always been entitled to publicly campaign for members of Congress or presidential candidates that support [labor rights](https://en.wikipedia.org/wiki/Labor_rights "Labor rights").[\[243\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-243) But the urgency of political spending was raised when in 1976 *[Buckley v. Valeo](https://en.wikipedia.org/wiki/Buckley_v._Valeo "Buckley v. Valeo")* decided, over powerful dissents of [White J](https://en.wikipedia.org/wiki/White_J "White J") and [Marshall J](https://en.wikipedia.org/wiki/Thurgood_Marshall "Thurgood Marshall"), that candidates could spend unlimited money on their own political campaign,[\[244\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-244) and then in *[First National Bank of Boston v. Bellotti](https://en.wikipedia.org/wiki/First_National_Bank_of_Boston_v._Bellotti "First National Bank of Boston v. Bellotti")*,[\[245\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-245) that corporations could engage in election spending. In 2010, over four dissenting justices, *[Citizens United v. FEC](https://en.wikipedia.org/wiki/Citizens_United_v._FEC "Citizens United v. FEC")*[\[246\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-246) 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](https://en.wikipedia.org/wiki/Federal_Election_Campaign_Act_of_1971 "Federal Election Campaign Act of 1971") had intended to do. A unanimous court held in *[Abood v. Detroit Board of Education](https://en.wikipedia.org/wiki/Abood_v._Detroit_Board_of_Education "Abood v. Detroit Board of Education")* that [union security agreements](https://en.wikipedia.org/wiki/Union_security_agreements "Union security agreements") to collect fees from non-members were also allowed in the public sector.[\[247\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-247) However, in *[Harris v. Quinn](https://en.wikipedia.org/wiki/Harris_v._Quinn "Harris v. Quinn")* five [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") judges reversed this ruling apparently banning public sector union security agreements,[\[248\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-248) and were about to do the same for all unions in *[Friedrichs v. California Teachers Association](https://en.wikipedia.org/wiki/Friedrichs_v._California_Teachers_Association "Friedrichs v. California Teachers Association")* until [Scalia J](https://en.wikipedia.org/wiki/Scalia_J "Scalia J") died, halting an anti-labor majority on the Supreme Court.[\[249\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-249) In 2018, *[Janus v. AFSCME](https://en.wikipedia.org/wiki/Janus_v._AFSCME "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](https://en.wikipedia.org/wiki/2016_US_Presidential_election "2016 US Presidential election"), for the future of the labor movement, and democratic life.
### Collective bargaining
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=12 "Edit section: Collective bargaining")\]
Since the [Industrial Revolution](https://en.wikipedia.org/wiki/Industrial_Revolution "Industrial Revolution"), collective bargaining has been the main way to get [fair pay](https://en.wikipedia.org/wiki/Fair_pay "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](https://en.wikipedia.org/wiki/Clayton_Antitrust_Act_of_1914 "Clayton Antitrust Act of 1914"). Under §6,[\[250\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-250) labor rights were declared to be outside of [antitrust law](https://en.wikipedia.org/wiki/Antitrust_law "Antitrust law"), but this did not stop hostile employers and courts suppressing unions. In *[Adair v. United States](https://en.wikipedia.org/wiki/Adair_v._United_States "Adair v. United States")*,[\[251\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-251) and *[Coppage v. Kansas](https://en.wikipedia.org/wiki/Coppage_v._Kansas "Coppage v. Kansas")*,[\[252\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-252) the [Supreme Court](https://en.wikipedia.org/wiki/United_States_Supreme_Court "United States Supreme Court"), over powerful dissents,[\[253\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-253) asserted the Constitution empowered employers to require employees to sign [contracts](https://en.wikipedia.org/wiki/Yellow-dog_contract "Yellow-dog contract") promising they would not join a union. These "[yellow-dog contracts](https://en.wikipedia.org/wiki/Yellow-dog_contract "Yellow-dog contract")" were offered to employees on a "[take it or leave it](https://en.wikipedia.org/wiki/Hobson%27s_choice "Hobson's choice")" basis, and effectively stopped unionization. They lasted until the [Great Depression](https://en.wikipedia.org/wiki/Great_Depression "Great Depression") when the [Norris–La Guardia Act](https://en.wikipedia.org/wiki/Norris%E2%80%93La_Guardia_Act "Norris–La Guardia Act") of 1932 banned them.[\[254\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-254) This also prevented the courts from issuing any injunctions or enforcing any agreements in the context of a labor dispute.[\[255\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-255) After the [landslide election](https://en.wikipedia.org/wiki/1932_United_States_presidential_election "1932 United States presidential election") of [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt"), the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") was drafted to create positive rights for collective bargaining in most of the private sector.[\[256\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-256) 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".[\[257\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-257) The act was meant to increase [bargaining power](https://en.wikipedia.org/wiki/Bargaining_power "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](https://en.wikipedia.org/wiki/Federal_Labor_Relations_Act_of_1978 "Federal Labor Relations Act of 1978"),[\[258\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-258) [railway and airline](https://en.wikipedia.org/wiki/Railway_Labor_Act "Railway Labor Act") staff,[\[259\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-259) domestic and [agriculture](https://en.wikipedia.org/wiki/Agriculture_in_the_United_States "Agriculture in the United States") workers.[\[260\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-260) These groups depend on special federal statutes like the [Railway Labor Act](https://en.wikipedia.org/wiki/Railway_Labor_Act "Railway Labor Act") or state law rules, like the [California Agricultural Labor Relations Act of 1975](https://en.wikipedia.org/wiki/California_Agricultural_Labor_Relations_Act_of_1975 "California Agricultural Labor Relations Act of 1975"). In 1979, five [Supreme Court](https://en.wikipedia.org/wiki/United_States_Supreme_Court "United States Supreme Court") judges, over four forceful dissents, also introduced an exception for church operated schools, apparently because of "serious [First Amendment](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") questions".[\[261\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-261) 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](https://en.wikipedia.org/wiki/FedEx_Home_Delivery_v._NLRB "FedEx Home Delivery v. NLRB")* the [DC Circuit](https://en.wikipedia.org/wiki/United_States_Circuit_Court_of_the_District_of_Columbia "United States Circuit Court of the District of Columbia"), adopting submissions of [FedEx](https://en.wikipedia.org/wiki/FedEx "FedEx")'s lawyer [Ted Cruz](https://en.wikipedia.org/wiki/Ted_Cruz "Ted Cruz"), held that post truck drivers were independent contractors because they took on "entrepreneurial opportunity". [Garland J](https://en.wikipedia.org/wiki/Merrick_Garland "Merrick Garland") dissented, arguing the majority had departed from common law tests.[\[262\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-262) The "independent contractor" category was estimated to remove protection from 8 million workers.[\[263\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-263) While many states have higher rates, the US has an 11.1 per cent [unionization rate](https://en.wikipedia.org/wiki/Unionization_rate "Unionization rate") and 12.3 per cent rate of [coverage by collective agreement](https://en.wikipedia.org/wiki/Coverage_by_collective_agreement "Coverage by collective agreement"). This is the lowest in the industrialized world.[\[264\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-264)
[](https://en.wikipedia.org/wiki/File:NLRB_picketing_2007.jpg)
After [1981 air traffic control strike](https://en.wikipedia.org/wiki/Professional_Air_Traffic_Controllers_Organization_\(1968\) "Professional Air Traffic Controllers Organization (1968)"), when [Ronald Reagan](https://en.wikipedia.org/wiki/Ronald_Reagan "Ronald Reagan") fired every air traffic controller,[\[265\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-265) the [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "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](https://en.wikipedia.org/wiki/United_States_Senate "United States Senate") refused to make appointments.
At any point employers can freely bargain with union representatives and make a [collective agreement](https://en.wikipedia.org/wiki/Collective_agreement "Collective agreement"). Under [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") §158(d) the mandatory subjects of collective bargaining include "wages, hours, and other terms and conditions of employment".[\[266\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-266) A collective agreement will typically aim to get rights including a [fair day's wage for a fair day's work](https://en.wikipedia.org/wiki/Fair_day%27s_wage_for_a_fair_day%27s_work "Fair day's wage for a fair day's work"), reasonable notice and severance pay before any necessary [layoffs](https://en.wikipedia.org/wiki/Layoff "Layoff"), [just cause](https://en.wikipedia.org/wiki/Just_cause_\(employment_law\) "Just cause (employment law)") for any job termination, and [arbitration](https://en.wikipedia.org/wiki/Arbitration_in_the_United_States "Arbitration in the United States") to resolve disputes. It could also extend to any subject by mutual agreement. A union can encourage an employing entity through [collective action](https://en.wikipedia.org/wiki/Collective_action "Collective action") to sign a deal, without using the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") procedure. But, if an employing entity refuses to deal with a union, and a union wishes, the [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board") (NLRB) may oversee a legal process up to the conclusion of a legally binding [collective agreement](https://en.wikipedia.org/wiki/Collective_agreement "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](https://en.wikipedia.org/wiki/United_States_Senate "United States Senate")",[\[267\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-267) and play a central role in promoting collective bargaining. First, the NLRB will determine an appropriate "[bargaining unit](https://en.wikipedia.org/wiki/Bargaining_unit "Bargaining unit")" of employees with employers (e.g., offices in a city, or state, or whole economic sector),[\[268\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-268) The NLRB favors "[enterprise bargaining](https://en.wikipedia.org/wiki/Enterprise_bargaining "Enterprise bargaining")" over "[sectoral collective bargaining](https://en.wikipedia.org/wiki/Sectoral_collective_bargaining "Sectoral collective bargaining")", which means US unions have traditionally been smaller with less [bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of 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".[\[269\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-269) 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.[\[270\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-270) During this time, managers may attempt to persuade or coerce employees using high-pressure tactics or [unfair labor practices](https://en.wikipedia.org/wiki/Unfair_labor_practices "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](https://en.wikipedia.org/wiki/NLRB "NLRB") to decide upon complaints of unfair labor practices had grown to 483 days in 2009 when its last annual report was written.[\[271\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-271) 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](https://en.wikipedia.org/wiki/Good_faith "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](https://en.wikipedia.org/wiki/JI_Case_Co_v._National_Labor_Relations_Board "JI Case Co v. National Labor Relations Board")* the [Supreme Court](https://en.wikipedia.org/wiki/United_States_Supreme_Court "United States Supreme Court") held an employer could not refuse to bargain on the basis that individual contracts were already in place.[\[272\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-272) Crucially, in *[Wallace Corp. v. NLRB](https://en.wikipedia.org/wiki/Wallace_Corp._v._NLRB "Wallace Corp. v. NLRB")* the Supreme Court also held that an employer only bargaining with a [company union](https://en.wikipedia.org/wiki/Company_union "Company union"), which it dominated, was an [unfair labor practice](https://en.wikipedia.org/wiki/Unfair_labor_practice "Unfair labor practice"). The employer should have recognized the truly [independent union](https://en.wikipedia.org/wiki/Independent_union "Independent union") affiliated to the [Congress of Industrial Organizations](https://en.wikipedia.org/wiki/Congress_of_Industrial_Organizations "Congress of Industrial Organizations") (CIO).[\[273\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-273) However, in *[NLRB v. Sands Manufacturing Co.](https://en.wikipedia.org/wiki/NLRB_v._Sands_Manufacturing_Co. "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.[\[274\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-274) Moreover, after 2007 President [George W. Bush](https://en.wikipedia.org/wiki/George_W._Bush "George W. Bush") and the [Senate](https://en.wikipedia.org/wiki/United_States_Senate "United States 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](https://en.wikipedia.org/wiki/New_Process_Steel,_L.P._v._NLRB "New Process Steel, L.P. v. NLRB")* that rules made by two remaining members were ineffective.[\[275\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-275) While appointments were made in 2013, agreement was not reached on one vacant seat. Increasingly it has been made politically unfeasible for the [NLRB](https://en.wikipedia.org/wiki/NLRB "NLRB") to act to promote collective bargaining.
[](https://en.wikipedia.org/wiki/File:Bernie_Sanders_%26_Hillary_Clinton_\(28205920271\).jpg)
The proposed [Employee Free Choice Act](https://en.wikipedia.org/wiki/Employee_Free_Choice_Act "Employee Free Choice Act"), sponsored repeatedly by [Hillary Clinton](https://en.wikipedia.org/wiki/Hillary_Clinton "Hillary Clinton"), [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "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.[\[276\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-276) It has been blocked by [Republicans](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") in [Congress](https://en.wikipedia.org/wiki/United_States_Congress "United States Congress").
Once collective agreements have been signed, they are legally enforceable, often through [arbitration](https://en.wikipedia.org/wiki/Arbitration_in_the_United_States "Arbitration in the United States"), and ultimately in federal court.[\[277\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-277) 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.[\[278\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-278) Usually, collective agreements include provisions for sending grievances of employees or disputes to binding [arbitration](https://en.wikipedia.org/wiki/Arbitration "Arbitration"), governed by the [Federal Arbitration Act](https://en.wikipedia.org/wiki/Federal_Arbitration_Act "Federal Arbitration Act") of 1925.[\[279\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-279) For example, in *[United Steelworkers v. Warrior & Gulf Navigation Co](https://en.wikipedia.org/wiki/United_Steelworkers_v._Warrior_%26_Gulf_Navigation_Co "United Steelworkers v. Warrior & Gulf Navigation Co")* a group of employees at a steel transportation works in [Chickasaw, Alabama](https://en.wikipedia.org/wiki/Chickasaw,_Alabama "Chickasaw, Alabama"), requested the corporation go to [arbitration](https://en.wikipedia.org/wiki/Arbitration "Arbitration") over layoffs and outsourcing of 19 staff on lower pay to do the same jobs. The [United Steelworkers](https://en.wikipedia.org/wiki/United_Steelworkers "United Steelworkers") had a collective agreement which contained a provision for arbitration. [Douglas J](https://en.wikipedia.org/wiki/Douglas_J "Douglas J") held that any doubts about whether the agreement allowed the issue to go to arbitration "should be resolved in favor of coverage."[\[280\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-280) An arbitrator's award is entitled to judicial enforcement so long as its essence is from the collective agreement.[\[281\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-281) Courts can decline to enforce an agreement based on [public policy](https://en.wikipedia.org/wiki/Public_policy "Public policy"), but this is different from "general considerations of supposed public interests".[\[282\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-282) But while federal policy had encouraged arbitration where unions and employers had made agreements, the [Supreme Court](https://en.wikipedia.org/wiki/United_States_Supreme_Court "United States Supreme Court") drew a clear distinction for arbitration over individual statutory rights. In *[Alexander v. Gardner-Denver Co.](https://en.wikipedia.org/wiki/Alexander_v._Gardner-Denver_Co. "Alexander v. Gardner-Denver Co.")* an employee claimed he was unjustly terminated, and suffered unlawful [race discrimination](https://en.wikipedia.org/wiki/Race_discrimination "Race discrimination") under the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "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.[\[283\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-283) But then, in 2009 in *[14 Penn Plaza LLC v. Pyett](https://en.wikipedia.org/wiki/14_Penn_Plaza_LLC_v._Pyett "14 Penn Plaza LLC v. Pyett")* [Thomas J](https://en.wikipedia.org/wiki/Thomas_J "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](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "Inequality of bargaining power") and those agreed to by a union representative."[\[284\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-284) 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](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967"), and instead potentially be heard only by arbitrators their employer selected. [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J") and [Souter J](https://en.wikipedia.org/wiki/Souter_J "Souter J"), joined by [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J"), [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") dissented, pointing out that rights cannot be waived even by collective bargaining.[\[285\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-285) An [Arbitration Fairness Act of 2011](https://en.wikipedia.org/wiki/Arbitration_Fairness_Act_of_2011 "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".[\[286\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-286) It remains unclear why [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") §1, recognizing workers' "[inequality of bargaining power](https://en.wikipedia.org/wiki/Inequality_of_bargaining_power "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](https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States "Supreme Court of the United States")'s interpretations, major proposed reforms have included the [Labor Reform Act of 1977](https://en.wikipedia.org/wiki/Labor_Reform_Act_of_1977 "Labor Reform Act of 1977"),[\[287\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-287) the [Workplace Democracy Act](https://en.wikipedia.org/wiki/Workplace_Democracy_Act "Workplace Democracy Act") of 1999, and the [Employee Free Choice Act](https://en.wikipedia.org/wiki/Employee_Free_Choice_Act "Employee Free Choice Act") of 2009.[\[288\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-288) All focus on speeding the election procedure for union recognition, speeding hearings for [unfair labor practices](https://en.wikipedia.org/wiki/Unfair_labor_practices "Unfair labor practices"), and improving remedies within the existing structure of labor relations.
To ensure that employees are effectively able to bargain for a collective agreement, the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") created a group of rights in §158 to stall "[unfair labor practices](https://en.wikipedia.org/wiki/Unfair_labor_practices "Unfair labor practices")" by employers. These were considerably amended by the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947, where the [US Congress](https://en.wikipedia.org/wiki/US_Congress "US Congress") over the veto of President [Harry S. Truman](https://en.wikipedia.org/wiki/Harry_S._Truman "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](https://en.wikipedia.org/wiki/Litigation "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](https://en.wikipedia.org/wiki/Hague_v._Committee_for_Industrial_Organization "Hague v. Committee for Industrial Organization")* held the [New Jersey](https://en.wikipedia.org/wiki/New_Jersey "New Jersey") mayor violated the [First Amendment](https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution "First Amendment to the United States Constitution") when trying to shut down [CIO](https://en.wikipedia.org/wiki/Congress_of_Industrial_Organizations "Congress of Industrial Organizations") meetings because he thought they were "communist".[\[289\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-289) Among many rights and duties relating to unfair labor practices, five main groups of case have emerged.
[](https://en.wikipedia.org/wiki/File:Weltec_stopwork_meeting,_19_March_2009_\(3367324864\).jpg)
[Unfair labor practices](https://en.wikipedia.org/wiki/Unfair_labor_practices "Unfair labor practices"), made unlawful by the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §153, prohibit employers discriminating against people who organize a union and [vote](https://en.wikipedia.org/wiki/Vote "Vote") to get a [voice at work](https://en.wikipedia.org/wiki/Voice_at_work "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.[\[290\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-290) For example, in one of the first cases, *[NLRB v. Jones & Laughlin Steel Corp](https://en.wikipedia.org/wiki/NLRB_v._Jones_%26_Laughlin_Steel_Corp "NLRB v. Jones & Laughlin Steel Corp")*, the US Supreme Court held that the [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "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](https://en.wikipedia.org/wiki/Aliquippa "Aliquippa"), [Pennsylvania](https://en.wikipedia.org/wiki/Pennsylvania "Pennsylvania").[\[291\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-291) It is also unlawful for employers to monitor employees who are organizing, for instance by parking outside a union meeting,[\[292\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-292) or videotaping employees giving out union fliers.[\[293\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-293) This can include giving people incentives or bribes to not join a union. So in *[NLRB v. Erie Resistor Corp](https://en.wikipedia.org/w/index.php?title=NLRB_v._Erie_Resistor_Corp&action=edit&redlink=1 "NLRB v. Erie Resistor Corp (page does not exist)")* the Supreme Court held it was unlawful to give 20 years extra seniority to employees who crossed a [picket line](https://en.wikipedia.org/wiki/Picket_line "Picket line") while the union had called a strike.[\[294\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-294) Second, and by contrast, the Supreme Court had decided in *[Textile Workers Union of America v. Darlington Manufacturing Co Inc](https://en.wikipedia.org/wiki/Textile_Workers_Union_of_America_v._Darlington_Manufacturing_Co_Inc "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.[\[295\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-295) 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](https://en.wikipedia.org/wiki/Duty_of_fair_representation "Duty of fair representation").[\[296\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-296) In *[NLRB v. J. Weingarten, Inc.](https://en.wikipedia.org/wiki/NLRB_v._J._Weingarten,_Inc. "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.[\[297\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-297) Although the [NLRB](https://en.wikipedia.org/wiki/NLRB "NLRB") has changed its position with different political appointees, the [DC Circuit](https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_District_of_Columbia_Circuit "United States Court of Appeals for the District of Columbia Circuit") has held the same right goes that non-union workers were equally entitled to be accompanied.[\[298\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-298) 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](https://en.wikipedia.org/wiki/Detroit_Edison_Co_v._NLRB "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.[\[299\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-299) Also, in *[Lechmere, Inc. v. National Labor Relations Board](https://en.wikipedia.org/wiki/Lechmere,_Inc._v._National_Labor_Relations_Board "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.[\[300\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-300) 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](https://en.wikipedia.org/wiki/Pattern_Makers_League_of_North_America_v._NLRB "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.[\[301\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-301)
[](https://en.wikipedia.org/wiki/File:United_States_union_membership_and_inequality,_top_1%25_income_share,_1910_to_2010.png)
As [union membership](https://en.wikipedia.org/wiki/Union_membership_rate "Union membership rate") declined [income inequality](https://en.wikipedia.org/wiki/Income_inequality "Income inequality") rose, because labor unions have been the main way to participate at work.[\[302\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-302) The US does not yet require [employee representatives](https://en.wikipedia.org/wiki/Codetermination "Codetermination") on [boards of directors](https://en.wikipedia.org/wiki/Boards_of_directors "Boards of directors"), or elected [work councils](https://en.wikipedia.org/wiki/Work_councils "Work councils").[\[303\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-303)
The [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") policy of [preemption](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption"), developed from 1953,[\[304\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-304) means that states cannot legislate where the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") does operate. The NLRA 1935 contains no clause requiring [preemption](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption") as is found, for example, in the [Fair Labor Standards Act 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_1938 "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.[\[117\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto-117) The first major case, *[Garner v. Teamsters Local 776](https://en.wikipedia.org/wiki/Garner_v._Teamsters_Local_776 "Garner v. Teamsters Local 776")*, decided a [Pennsylvania](https://en.wikipedia.org/wiki/Pennsylvania "Pennsylvania") statute was preempted from providing superior remedies or processing claims quicker than the [NLRB](https://en.wikipedia.org/wiki/NLRB "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".[\[305\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-305) In *[San Diego Building Trades Council v. Garmon](https://en.wikipedia.org/wiki/San_Diego_Building_Trades_Council_v._Garmon "San Diego Building Trades Council v. Garmon")*, the [Supreme Court](https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States "Supreme Court of the United States") held that the [California Supreme Court](https://en.wikipedia.org/wiki/California_Supreme_Court "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".[\[306\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-306) This was true, even though the NLRB had not given any ruling on the dispute because its monetary value was too small.[\[307\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-307) This reasoning was extended in *[Lodge 76, International Association of Machinists v Wisconsin Employment Relations Commission](https://en.wikipedia.org/wiki/Lodge_76,_International_Association_of_Machinists_v_Wisconsin_Employment_Relations_Commission "Lodge 76, International Association of Machinists v Wisconsin Employment Relations Commission")*, where a [Wisconsin](https://en.wikipedia.org/wiki/Wisconsin "Wisconsin") Employment Relations Commission sought to hold a union liable for an unfair labor practice, by refusing to work overtime. [Brennan J](https://en.wikipedia.org/wiki/Brennan_J "Brennan J") held that such matters were to be left to "be controlled by the free play of economic forces".[\[308\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-308) 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](https://en.wikipedia.org/wiki/Golden_State_Transit_Corp._v._City_of_Los_Angeles "Golden State Transit Corp. v. City of Los Angeles")* a majority of the [Supreme Court](https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States "Supreme Court of the United States") held that Los Angeles was not entitled to refuse to renew a taxi company's franchise license because the [Teamsters Union](https://en.wikipedia.org/wiki/Teamsters_Union "Teamsters Union") had pressured it not to until a dispute was resolved.[\[309\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-309) Most recently in *[Chamber of Commerce v. Brown](https://en.wikipedia.org/wiki/Chamber_of_Commerce_v._Brown "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](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") and [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J") dissented because the law was simply neutral to the bargaining process.[\[310\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-310) State governments may, however, use their funds to procure corporations to do work that are union or labor friendly.[\[311\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-311)
[](https://en.wikipedia.org/wiki/File:-RedForEd_\(41008219574\).jpg)
All workers, like the [Arizona teachers in 2019](https://en.wikipedia.org/wiki/2018%E2%80%9319_education_workers%27_strikes_in_the_United_States "2018–19 education workers' strikes in the United States"), are guaranteed the right to take collective action, including strikes, by [international law](https://en.wikipedia.org/wiki/International_law "International law"), federal law and most state laws.[\[312\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-312)
The right of labor to take [collective action](https://en.wikipedia.org/wiki/Collective_action "Collective action"), including the [right to strike](https://en.wikipedia.org/wiki/Right_to_strike "Right to strike"), has been fundamental to [common law](https://en.wikipedia.org/wiki/Commonwealth_v._Hunt "Commonwealth v. Hunt"),[\[313\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-313) federal law,[\[314\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-314) and [international law](https://en.wikipedia.org/wiki/International_labour_law "International labour law") for over a century.[\[315\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-315) As New York teacher unions argued in the 1960s, "If you can't call a strike you don't have real [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"), you have 'collective [begging](https://en.wikipedia.org/wiki/Begging "Begging").'"[\[316\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-316) During the 19th century, many courts upheld the right to strike, but others issued injunctions to frustrate strikes,[\[317\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-317) and when the [Sherman Antitrust Act](https://en.wikipedia.org/wiki/Sherman_Antitrust_Act "Sherman Antitrust Act") of 1890 was passed to prohibit business combinations in [restraint of trade](https://en.wikipedia.org/wiki/Restraint_of_trade "Restraint of trade"), it was first used against labor unions. This resulted in [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs"), [American Railway Union](https://en.wikipedia.org/wiki/American_Railway_Union "American Railway Union") leader and future [Socialist](https://en.wikipedia.org/wiki/Socialist "Socialist") Presidential candidate, being imprisoned for taking part in the [Pullman Strike](https://en.wikipedia.org/wiki/Pullman_Strike "Pullman Strike").[\[318\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-318) The Supreme Court persisted in *[Loewe v. Lawlor](https://en.wikipedia.org/wiki/Loewe_v._Lawlor "Loewe v. Lawlor")* in imposing damages for strikes under [antitrust law](https://en.wikipedia.org/wiki/Antitrust_law "Antitrust law"),[\[228\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-auto3-228) until Congress passed the [Clayton Act of 1914](https://en.wikipedia.org/wiki/Clayton_Act_of_1914 "Clayton Act of 1914"). Seen as "the [Magna Carta](https://en.wikipedia.org/wiki/Magna_Carta "Magna Carta") of America's workers",[\[319\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-319) this proclaimed that all collective action by workers was outside antitrust law under the [Commerce Clause](https://en.wikipedia.org/wiki/Commerce_Clause "Commerce Clause"), because "[labor is not a commodity](https://en.wikipedia.org/wiki/Labor_is_not_a_commodity "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."[\[320\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-320) The same principles entered the founding documents of the [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") in 1919.[\[321\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-321) Finally at the end of the *[Lochner era](https://en.wikipedia.org/wiki/Lochner_era "Lochner era")*[\[322\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-322) the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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".[\[323\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-323)
[](https://en.wikipedia.org/wiki/File:Cesar_Chavez_Day.jpg)
[Cesar Chavez](https://en.wikipedia.org/wiki/Cesar_Chavez "Cesar Chavez") organized the [United Farm Workers](https://en.wikipedia.org/wiki/United_Farm_Workers "United Farm Workers") and campaigned for [social justice](https://en.wikipedia.org/wiki/Social_justice "Social justice") under the slogan "[Yes we can](https://en.wikipedia.org/wiki/Yes_We_Can_\(slogan\) "Yes We Can (slogan)")" and "[Sí, se puede](https://en.wikipedia.org/wiki/S%C3%AD,_se_puede "Sí, se puede")".[\[324\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-324)
Although federal law guarantees the [right to strike](https://en.wikipedia.org/wiki/Right_to_strike "Right to strike"), American [labor unions](https://en.wikipedia.org/wiki/Labor_unions "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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "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,[\[325\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-325) police and firefighters, without adequate alternatives to set fair wages.[\[326\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-326) Workers have the right to take [protected concerted activity](https://en.wikipedia.org/wiki/Protected_concerted_activity "Protected concerted activity").[\[327\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-327) But *[NLRB v. Insurance Agents' International Union](https://en.wikipedia.org/w/index.php?title=NLRB_v._Insurance_Agents%27_International_Union&action=edit&redlink=1 "NLRB v. Insurance Agents' International Union (page does not exist)")* 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.[\[328\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-328) 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.[\[329\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-329) This prohibition on [solidarity action](https://en.wikipedia.org/wiki/Solidarity_action "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.[\[330\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-330) However the same standards are not applied to employers: in *[NLRB v. Truck Drivers Local 449](https://en.wikipedia.org/wiki/NLRB_v._Truck_Drivers_Local_449 "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.[\[331\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-331) This said, employees may peacefully persuade customers to boycott any employer or related employer, for instance by giving out handbills.[\[332\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-332) Third, a union is bound to act in [good faith](https://en.wikipedia.org/wiki/Good_faith "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.[\[333\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-333) 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](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board")'s attempts to mediate was held to be insubstantial.[\[334\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-334)
2016 Presidential candidate [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") joined the [Communication Workers Union](https://en.wikipedia.org/wiki/Communication_Workers_of_America "Communication Workers of America") strike against [Verizon](https://en.wikipedia.org/wiki/Verizon "Verizon"). American workers face serious obstacles to strike action, falling below [international labor law](https://en.wikipedia.org/wiki/International_labor_law "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,[\[335\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-335) but the Supreme Court held in *[NLRB v. Mackay Radio & Telegraph Co.](https://en.wikipedia.org/wiki/NLRB_v._Mackay_Radio_%26_Telegraph_Co. "NLRB v. Mackay Radio & Telegraph Co.")* that employees on strike could be replaced by [strikebreakers](https://en.wikipedia.org/wiki/Strikebreakers "Strikebreakers"), and it was not an unfair labor practice for the employer to refuse to discharge the strikebreakers after the dispute was over.[\[336\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-336) This decision is widely condemned as a violation of international law.[\[337\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-337) However the Supreme Court further held in *[NLRB v. Fansteel Metallurgical Corp.](https://en.wikipedia.org/wiki/NLRB_v._Fansteel_Metallurgical_Corp. "NLRB v. Fansteel Metallurgical Corp.")* that the Labor Board cannot order an employer to rehire striking workers,[\[338\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-338) and has even held that employers could induce younger employees more senior jobs as a reward for breaking a strike.[\[339\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-339) Fifth, the Supreme Court has not consistently upheld the right to free speech and peaceful picketing. In *[NLRB v. Electrical Workers](https://en.wikipedia.org/w/index.php?title=NLRB_v._Electrical_Workers&action=edit&redlink=1 "NLRB v. Electrical Workers (page does not exist)")* 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.[\[340\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-340) On the other hand, the Supreme Court has held there was a right to picket shops that refused to hire African-American workers.[\[341\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-341) The Supreme Court declared an Alabama law, which fined and imprisoned a picketer, to be unconstitutional.[\[342\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-342) The Supreme Court held unions could write newspaper publications to advocate for pro-labor political candidates.[\[343\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-343) It also held a union could distribute political leaflets in non-work areas of the employer's property.[\[344\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-344) 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.[\[345\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-345)
### Right to vote at work
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=15 "Edit section: Right to vote at work")\]
[](https://en.wikipedia.org/wiki/File:Bernie_Sanders_and_Elizabeth_Warren.jpg)
[Elizabeth Warren](https://en.wikipedia.org/wiki/Elizabeth_Warren "Elizabeth Warren") and [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") co-sponsored the [Reward Work Act](https://en.wikipedia.org/wiki/Reward_Work_Act "Reward Work Act"), introduced by [Tammy Baldwin](https://en.wikipedia.org/wiki/Tammy_Baldwin "Tammy Baldwin"), for at least one third of listed company boards to be elected by employees,[\[346\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-346) and more for large corporations.[\[347\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-347) In 1980 the [United Auto Workers](https://en.wikipedia.org/wiki/United_Auto_Workers "United Auto Workers") [collectively agreed](https://en.wikipedia.org/wiki/Collectively_agreed "Collectively agreed") [Chrysler Corp](https://en.wikipedia.org/wiki/Chrysler_Corp "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](https://en.wikipedia.org/wiki/Other_People%27s_Money_and_How_the_Bankers_Use_It "Other People's Money and How the Bankers Use It")".[\[348\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-348)
While [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining") was stalled by [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") [preemption](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption") policy, a dysfunctional [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board"), and falling [union membership rate](https://en.wikipedia.org/wiki/Union_membership_rate "Union membership rate") since the [Taft–Hartley Act](https://en.wikipedia.org/wiki/Taft%E2%80%93Hartley_Act "Taft–Hartley Act") of 1947, employees have demanded direct voting rights at work: for corporate [boards of directors](https://en.wikipedia.org/wiki/Boards_of_directors "Boards of directors"), and in [work councils](https://en.wikipedia.org/wiki/Work_councils "Work councils") that bind management.[\[349\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-349) This has become an important complement to both strengthening [collective bargaining](https://en.wikipedia.org/wiki/Collective_bargaining "Collective bargaining"), and securing the votes in labor's capital on [pension](https://en.wikipedia.org/wiki/Pension "Pension") boards, which buy and vote on [corporate stocks](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"), and control employers.[\[350\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-350) Labor law has increasingly converged with [corporate law](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"),[\[351\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-351) and in 2018 the first federal law, the [Reward Work Act](https://en.wikipedia.org/wiki/Reward_Work_Act "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.[\[352\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-352) In 1919, under the Republican governor [Calvin Coolidge](https://en.wikipedia.org/wiki/Calvin_Coolidge "Calvin Coolidge"), [Massachusetts](https://en.wikipedia.org/wiki/Massachusetts "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.[\[353\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-353) Also in 1919 both [Procter & Gamble](https://en.wikipedia.org/wiki/Procter_%26_Gamble "Procter & Gamble") and the General Ice Delivery Company of Detroit had employee representation on boards.[\[354\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-354) Board representation for employees spread through the 1920s, many without requiring any [employee stock ownership plan](https://en.wikipedia.org/wiki/Employee_stock_ownership_plan "Employee stock ownership plan").[\[355\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-355) 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,[\[356\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-356) and proponents of codetermination as "[industrial democracy](https://en.wikipedia.org/wiki/Industrial_democracy "Industrial democracy")".[\[357\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-357) Today, these methods are seen as complements, not alternatives. A majority of countries in the [Organisation for Economic Co-operation and Development](https://en.wikipedia.org/wiki/Organisation_for_Economic_Co-operation_and_Development "Organisation for Economic Co-operation and Development") have laws requiring direct participation rights.[\[358\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-358) In 1994, the *[Dunlop Commission on the Future of Worker-Management Relations: Final Report](https://en.wikipedia.org/wiki/Dunlop_Commission_on_the_Future_of_Worker-Management_Relations:_Final_Report "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.[\[359\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-359) Congressional division prevented federal reform, but labor unions and state legislatures have experimented.
> ... while there are many contributing causes to unrest ... one cause ... is fundamental. That is the necessary conflict—the contrast between our political [liberty](https://en.wikipedia.org/wiki/Liberty "Liberty") and our industrial [absolutism](https://en.wikipedia.org/wiki/Autocracy "Autocracy"). 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](https://en.wikipedia.org/wiki/Vote "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](https://en.wikipedia.org/wiki/Autocracy "Autocracy"). ... The [social justice](https://en.wikipedia.org/wiki/Social_justice "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](https://en.wikipedia.org/wiki/Industrial_democracy "Industrial democracy") as well as political democracy.
[Corporations](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law") are chartered under state law, the larger mostly in [Delaware](https://en.wikipedia.org/wiki/Delaware_General_Corporation_Law "Delaware General Corporation Law"), but leave investors free to organize voting rights and board representation as they choose.[\[360\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-360) Because of [unequal bargaining power](https://en.wikipedia.org/wiki/Unequal_bargaining_power "Unequal bargaining power"), but also because of historic caution among American labor unions about taking on management,[\[361\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-361) 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](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements"), as it historically occurred in Germany or other countries, or through employees demanding further representation through [employee stock ownership plans](https://en.wikipedia.org/wiki/Employee_stock_ownership_plans "Employee stock ownership plans"), but they aimed for voice independent from capital risks that could not be [diversified](https://en.wikipedia.org/wiki/Diversification_\(finance\) "Diversification (finance)"). By 1980, workers had attempted to secure board representation at corporations including [United Airlines](https://en.wikipedia.org/wiki/United_Airlines "United Airlines"), the [General Tire and Rubber Company](https://en.wikipedia.org/wiki/General_Tire_and_Rubber_Company "General Tire and Rubber Company"), and the [Providence and Worcester Railroad](https://en.wikipedia.org/wiki/Providence_and_Worcester_Railroad "Providence and Worcester Railroad").[\[362\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-362) However, in 1974 the [Securities and Exchange Commission](https://en.wikipedia.org/wiki/Securities_and_Exchange_Commission "Securities and Exchange Commission"), run by appointees of [Richard Nixon](https://en.wikipedia.org/wiki/Richard_Nixon "Richard Nixon"), had rejected that employees who held shares in [AT\&T](https://en.wikipedia.org/wiki/AT%26T "AT&T") were entitled to make shareholder proposals to include employee representatives on the board of directors.[\[363\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-363) This position was eventually reversed expressly by the [Dodd–Frank Act](https://en.wikipedia.org/wiki/Dodd%E2%80%93Frank_Act "Dodd–Frank Act") of 2010 §971, which subject to rules by the [Securities and Exchange Commission](https://en.wikipedia.org/wiki/Securities_and_Exchange_Commission "Securities and Exchange Commission") entitles shareholders to put forward nominations for the board.[\[364\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-364) Instead of pursuing board seats through shareholder resolutions the [United Auto Workers](https://en.wikipedia.org/wiki/United_Auto_Workers "United Auto Workers"), for example, successfully sought board representation by collective agreement at [Chrysler](https://en.wikipedia.org/wiki/Chrysler "Chrysler") in 1980.[\[365\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-365) The [United Steel Workers](https://en.wikipedia.org/wiki/United_Steel_Workers "United Steel Workers") secured board representation in five corporations in 1993.[\[366\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-366) Some representation plans were linked to [employee stock ownership plans](https://en.wikipedia.org/wiki/Employee_stock_ownership_plans "Employee stock ownership plans"), and were open to abuse. At the energy company, [Enron](https://en.wikipedia.org/wiki/Enron "Enron"), workers were encouraged by management to invest an average of 62.5 per cent of their retirement savings from [401(k)](https://en.wikipedia.org/wiki/401\(k\) "401(k)") plans in Enron stock against basic principles of prudent, [diversified investment](https://en.wikipedia.org/wiki/Diversification_\(finance\) "Diversification (finance)"), and had no board representation. When Enron collapsed in 2003, employees lost a majority of their pension savings.[\[367\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-367) 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](https://en.wikipedia.org/wiki/Worker_director "Worker director"), though often linked to corporate stock.[\[368\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-368)
[](https://en.wikipedia.org/wiki/File:Chattanooga_Phoenix_Solar_AG.jpg)
Powered by a [solar farm](https://en.wikipedia.org/wiki/Solar_farm "Solar farm"),[\[369\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-369) the [Volkswagen](https://en.wikipedia.org/wiki/Volkswagen_Chattanooga_Assembly_Plant "Volkswagen Chattanooga Assembly Plant") plant at [Chattanooga, Tennessee](https://en.wikipedia.org/wiki/Chattanooga,_Tennessee "Chattanooga, Tennessee"), has debated introducing [work councils](https://en.wikipedia.org/wiki/Work_councils "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](https://en.wikipedia.org/wiki/Work_councils "Work councils"). After the [National War Labor Board](https://en.wikipedia.org/wiki/National_War_Labor_Board_\(1918%E2%80%931919\) "National War Labor Board (1918–1919)") was established by the [Woodrow Wilson](https://en.wikipedia.org/wiki/Woodrow_Wilson "Woodrow Wilson") administration, firms established work councils with some rights throughout the 1920s.[\[370\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-370) 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,[\[371\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-371) which from the workforce perspective defeated the object. As the US presidency changed to the [Republican party](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") 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](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §158(a)(2) ensured it was an [unfair labor practice](https://en.wikipedia.org/wiki/Unfair_labor_practice "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".[\[372\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-372) This was designed to enable free work councils, genuinely independent from management, but not dominated work councils or so called "[company unions](https://en.wikipedia.org/wiki/Company_union "Company union")".[\[373\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-373) For example, a [work council](https://en.wikipedia.org/wiki/Work_council "Work council") law was passed by the US government in [Allied-occupied Germany](https://en.wikipedia.org/wiki/Allied-occupied_Germany "Allied-occupied Germany") called [Control Council Law, No 22](https://en.wikipedia.org/wiki/Control_Council_Law,_No_22 "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](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements"), regulating health and safety, rules for engagements, dismissals and grievances, proposals for improving work methods, and organizing social and welfare facilities.[\[374\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-374) 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](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption") by the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935").[\[375\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-375) In 1992, the [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board") in its *[Electromation, Inc](https://en.wikipedia.org/wiki/Electromation,_Inc "Electromation, Inc")*,[\[376\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-376) and *[EI du Pont de Nemours](https://en.wikipedia.org/wiki/EI_du_Pont_de_Nemours "EI du Pont de Nemours")*,[\[377\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-377) decisions confirmed that while management dominated councils were unlawful, genuine and independent work councils would not be. The [Dunlop Report](https://en.wikipedia.org/wiki/Dunlop_Report "Dunlop Report") in 1994 produced an inconclusive discussion that favored experimentation with work councils.[\[378\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-378) A [Republican](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") Congress did propose a [Teamwork for Employees and Managers Act of 1995](https://en.wikipedia.org/wiki/Teamwork_for_Employees_and_Managers_Act_of_1995 "Teamwork for Employees and Managers Act of 1995") to repeal §158(a)(2), but this was vetoed by President [Bill Clinton](https://en.wikipedia.org/wiki/Bill_Clinton "Bill Clinton") as it would have enabled management dominated unions and councils. In 2014, workers at the [Volkswagen Chattanooga Assembly Plant](https://en.wikipedia.org/wiki/Volkswagen_Chattanooga_Assembly_Plant "Volkswagen Chattanooga Assembly Plant"), in [Chattanooga, Tennessee](https://en.wikipedia.org/wiki/Chattanooga,_Tennessee "Chattanooga, Tennessee"), sought to establish a [work council](https://en.wikipedia.org/wiki/Work_council "Work council"). This was initially supported by management, but its stance changed in 2016, after the [United Auto Workers](https://en.wikipedia.org/wiki/United_Auto_Workers "United Auto Workers") succeeded in winning a ballot for traditional representation in an exclusive [bargaining unit](https://en.wikipedia.org/wiki/Bargaining_unit "Bargaining unit").[\[379\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-379) As it stands, employees have no widespread right to vote in American workplaces, which has increased the gap between [political democracy](https://en.wikipedia.org/wiki/Political_democracy "Political democracy") and traditional labor law goals of [workplace](https://en.wikipedia.org/wiki/Workplace_democracy "Workplace democracy") and [economic democracy](https://en.wikipedia.org/wiki/Economic_democracy "Economic democracy").
## Equality and discrimination
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=16 "Edit section: Equality and discrimination")\]
[](https://en.wikipedia.org/wiki/File:Martin_Luther_King_Jr._addresses_a_crowd_from_the_steps_of_the_Lincoln_Memorial,_USMC-09611.jpg)
The world's first general equality law, the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), followed the [March on Washington for Jobs and Freedom](https://en.wikipedia.org/wiki/March_on_Washington_for_Jobs_and_Freedom "March on Washington for Jobs and Freedom") in 1963. The head of the movement, [Martin Luther King Jr.](https://en.wikipedia.org/wiki/Martin_Luther_King_Jr. "Martin Luther King Jr.") told America, "[I have a dream](https://en.wikipedia.org/wiki/I_have_a_dream "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](https://en.wikipedia.org/wiki/US_Declaration_of_Independence "US Declaration of Independence") in 1776 proclaimed that "all men are created equal",[\[380\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-380) the [Constitution](https://en.wikipedia.org/wiki/US_constitution "US constitution") was progressively amended, and legislation was written, to spread equal rights to all people. While the [right to vote](https://en.wikipedia.org/wiki/Right_to_vote "Right to vote") was needed for true political participation, the "[right to work](https://en.wikipedia.org/wiki/Right_to_work "Right to work")" and "free choice of employment" came to be seen as necessary for "[Life, Liberty and the pursuit of Happiness](https://en.wikipedia.org/wiki/Life,_Liberty_and_the_pursuit_of_Happiness "Life, Liberty and the pursuit of Happiness")".[\[381\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-381) After state laws experimented, President [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt")'s [Executive Order 8802](https://en.wikipedia.org/wiki/Executive_Order_8802 "Executive Order 8802") in 1941 set up the [Fair Employment Practice Committee](https://en.wikipedia.org/wiki/Fair_Employment_Practice_Committee "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](https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963 "Equal Pay Act of 1963"), to limit discrimination by employers between men and women, and the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), to stop discrimination based on "[race](https://en.wikipedia.org/wiki/Racism_in_the_United_States "Racism in the United States"), color, [religion](https://en.wikipedia.org/wiki/Religious_discrimination_in_the_United_States "Religious discrimination in the United States"), sex, or national origin."[\[382\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-382) In the following years, more "protected characteristics" were added by state and federal acts. The [Age Discrimination in Employment Act of 1967](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967") protects people over age 40. The [Americans with Disabilities Act of 1990](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990") requires "reasonable accommodation" to [include](https://en.wikipedia.org/wiki/Social_inclusion "Social inclusion") people with disabilities in the workforce. Twenty two state Acts protect people based on [sexual orientation](https://en.wikipedia.org/wiki/LGBT_employment_discrimination_in_the_United_States "LGBT employment discrimination in the United States") in public and private employment, but [proposed federal laws](https://en.wikipedia.org/wiki/Equality_Act_of_2015 "Equality Act of 2015") have been blocked by [Republican](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") opposition. There can be no detriment to [union members](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935"), or people who have [served in the military](https://en.wikipedia.org/wiki/Uniformed_Services_Employment_and_Reemployment_Rights_Act "Uniformed Services Employment and Reemployment Rights Act"). 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](https://en.wikipedia.org/wiki/Disparate_treatment "Disparate treatment") by employing entities, no [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") of formally neutral measures, and enables employers to voluntarily take [affirmative action](https://en.wikipedia.org/wiki/Affirmative_action "Affirmative action") favoring under-represented people in their workforce.[\[383\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-383) The law has not, however, succeeded in eliminating the disparities in income by [race](https://en.wikipedia.org/wiki/Racial_inequality_in_the_United_States "Racial inequality in the United States"), health, age or socio-economic background.
### Constitutional rights
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=17 "Edit section: Constitutional rights")\]
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](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court"), leaving the law inconsistent and full of exceptions. Originally, the [US Constitution](https://en.wikipedia.org/wiki/US_Constitution "US Constitution") entrenched gender, race and wealth inequality by enabling states to maintain [slavery](https://en.wikipedia.org/wiki/Slavery_in_the_United_States "Slavery in the United States"),[\[384\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-384) reserve the vote to white, property owning men,[\[385\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-385) and enabling employers to refuse employment to anyone. After the [Emancipation Proclamation](https://en.wikipedia.org/wiki/Emancipation_Proclamation "Emancipation Proclamation") in the [American Civil War](https://en.wikipedia.org/wiki/American_Civil_War "American Civil War"), the [Thirteenth](https://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution "Thirteenth Amendment to the United States Constitution"), [Fourteenth](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") and [Fifteenth](https://en.wikipedia.org/wiki/Fifteenth_Amendment_to_the_United_States_Constitution "Fifteenth Amendment to the United States Constitution") Amendments attempted to enshrined equal civil rights for everyone,[\[386\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-386) while the [Civil Rights Act of 1866](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866 "Civil Rights Act of 1866"),[\[387\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-387) and [1875](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1875 "Civil Rights Act of 1875") spelled out that everyone had the right to make contracts, hold [property](https://en.wikipedia.org/wiki/Property "Property") and access accommodation, transport and entertainment without discrimination. However, in 1883 the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") in the *[Civil Rights Cases](https://en.wikipedia.org/wiki/Civil_Rights_Cases "Civil Rights Cases")* put an end to development by declaring that [Congress](https://en.wikipedia.org/wiki/US_Congress "US Congress") was not allowed to regulate the actions of private individuals rather than public bodies.[\[388\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-388) In his dissent, [Harlan J](https://en.wikipedia.org/wiki/Harlan_J "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".[\[389\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-389)
[](https://en.wikipedia.org/wiki/File:Boy_feeling_Barack_Obama%27s_hair.jpg)
A constitutional right to equality, based on the [Equal Protection Clauses](https://en.wikipedia.org/wiki/Equal_Protection_Clause "Equal Protection Clause") of the Fifth and Fourteenth Amendments has been disputed. 125 years after [Harlan J](https://en.wikipedia.org/wiki/Harlan_J "Harlan J") wrote his famous dissent that all social institutions should be bound to equal rights,[\[390\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-390) [Barack Obama](https://en.wikipedia.org/wiki/Barack_Obama "Barack Obama") won election for President.
By 1944, the position had changed. In *[Steele v. Louisville & Nashville Railway Co.](https://en.wikipedia.org/wiki/Steele_v._Louisville_%26_Nashville_Railway_Co. "Steele v. Louisville & Nashville Railway Co.")*,[\[391\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-391) a Supreme Court majority held a labor union had a [duty of fair representation](https://en.wikipedia.org/wiki/Duty_of_fair_representation "Duty of fair representation") and may not discriminate against members based on race under the [Railway Labor Act](https://en.wikipedia.org/wiki/Railway_Labor_Act "Railway Labor Act") of 1926 (or the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935"). [Murphy J](https://en.wikipedia.org/wiki/Murphy_J "Murphy J") would have also based the duty on a [right to equality](https://en.wikipedia.org/wiki/Right_to_equality "Right to equality") in the [Fifth Amendment](https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution "Fifth Amendment to the United States Constitution")). Subsequently, *[Johnson v. Railway Express Agency](https://en.wikipedia.org/wiki/Johnson_v._Railway_Express_Agency "Johnson v. Railway Express Agency")* admitted that the old [Enforcement Act of 1870](https://en.wikipedia.org/wiki/Enforcement_Act_of_1870 "Enforcement Act of 1870") provided a remedy against private parties.[\[392\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-392) 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](https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution "Fifth Amendment to the United States Constitution") or [Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") if discrimination is shown to be intentional,[\[393\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-393) or if it irrationally discriminates against one group. For example, in *[Cleveland Board of Education v. LaFleur](https://en.wikipedia.org/wiki/Cleveland_Board_of_Education_v._LaFleur "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](https://en.wikipedia.org/wiki/Due_Process_Clause "Due Process Clause"), because it could not plausibly be shown that after child birth women could never perform a job.[\[394\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-394) But while the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") has failed, against dissent, to recognize a constitutional principle of equality,[\[395\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-395) 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.[\[396\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-396)
Today legislation bans discrimination, that is unrelated to an employee's ability to do a job, based on sex, race,[\[397\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-397) ethnicity, national origin, age and disability.[\[398\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-398) The [Equal Pay Act of 1963](https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963 "Equal Pay Act of 1963") banned gender pay discrimination, amending the [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "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.[\[399\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-399) For example, in *[Corning Glass Works v. Brennan](https://en.wikipedia.org/wiki/Corning_Glass_Works_v._Brennan "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.[\[400\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-400) One drawback is the equal pay provisions are subject to multiple exemptions for groups of employees found in the [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938") itself. Another is that equal pay rules only operate within workers of an "enterprise",[\[401\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-401) so that it has no effect upon high paying enterprises being more male dominated, nor [child care](https://en.wikipedia.org/wiki/Child_care "Child care") being unequally shared between men and women that affects long-term career progression. Sex discrimination includes discrimination based on pregnancy,[\[402\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-402) and is prohibited in general by the landmark [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964").[\[403\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-403)
[](https://en.wikipedia.org/wiki/File:We_Can_Do_It!_NARA_535413_-_Restoration_2.jpg)
[Rosie the Riveter](https://en.wikipedia.org/wiki/Rosie_the_Riveter "Rosie the Riveter") symbolized women factory workers in World War II. The [Equal Pay Act of 1963](https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963 "Equal Pay Act of 1963") banned pay discrimination within workplaces.[\[404\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-404)
Beyond gender equality on the specific issue of pay, the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "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](https://en.wikipedia.org/wiki/Civil_Rights_Commission "Civil Rights Commission"), and requires equality in federally funded agencies. [Title VII of the Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Title_VII_of_the_Civil_Rights_Act_of_1964 "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](https://en.wikipedia.org/wiki/Race_\(human_categorization\) "Race (human categorization)"), color, religion, sex, or [national origin](https://en.wikipedia.org/wiki/National_origin "National origin")."[\[405\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-405) [Segregation](https://en.wikipedia.org/wiki/Racial_segregation "Racial segregation") in employment is equally unlawful.[\[406\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-406) The same basic rules apply for people [over 40 years old](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967"),[\[407\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-407) and for people with [disabilities](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990").[\[408\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-408) 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.[\[409\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-409) Within these limits, people can bring claims against [disparate treatment](https://en.wikipedia.org/wiki/Disparate_treatment "Disparate treatment"). In *[Texas Department of Community Affairs v. Burdine](https://en.wikipedia.org/wiki/Texas_Department_of_Community_Affairs_v._Burdine "Texas Department of Community Affairs v. Burdine")* the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "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.[\[410\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-410) However, in 1993, this position was altered in *[St. Mary's Honor Center v. Hicks](https://en.wikipedia.org/wiki/St._Mary%27s_Honor_Center_v._Hicks "St. Mary's Honor Center v. Hicks")* where [Scalia J](https://en.wikipedia.org/wiki/Scalia_J "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.[\[411\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-411) [Souter J](https://en.wikipedia.org/wiki/Souter_J "Souter J") in dissent, pointed out the majority's approach was "inexplicable in forgiving employers who present false evidence in court".[\[412\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-412)
Disparate treatment can be justified under [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964") §2000e-2(e) if an employer shows selecting someone reflects by "religion, sex, or national origin is a [bona fide occupational qualification](https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification "Bona fide occupational qualification") reasonably necessary to the normal operation of that particular business or enterprise."[\[413\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-413) Race is not included. For example, in *[Dothard v. Rawlinson](https://en.wikipedia.org/wiki/Dothard_v._Rawlinson "Dothard v. Rawlinson")* the state of [Alabama](https://en.wikipedia.org/wiki/Alabama "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](https://en.wikipedia.org/wiki/Pound_\(mass\) "Pound (mass)")), 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](https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification "Bona fide occupational qualification"), because there was a heightened risk of sexual assault, although [Stewart J](https://en.wikipedia.org/wiki/Stewart_J "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](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") on women and were not justified by business necessity.[\[414\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-414) By contrast, in *[Wilson v. Southwest Airlines Co.](https://en.wikipedia.org/wiki/Wilson_v._Southwest_Airlines_Co. "Wilson v. Southwest Airlines Co.")*, a [Texas](https://en.wikipedia.org/wiki/Texas "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".[\[415\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-415) Under the [ADEA 1967](https://en.wikipedia.org/wiki/ADEA_1967 "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](https://en.wikipedia.org/w/index.php?title=Western_Air_Lines,_Inc_v._Criswell&action=edit&redlink=1 "Western Air Lines, Inc v. Criswell (page does not exist)")* the Supreme Court held that airlines could require pilots to retire at age 60, because the [Federal Aviation Administration](https://en.wikipedia.org/wiki/Federal_Aviation_Administration "Federal Aviation Administration") required this. It could not, however, refuse to employ flight engineers over 60 because there was no comparable FAA rule.[\[416\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-416)
> 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](https://en.wikipedia.org/wiki/Humanitarianism "Humanitarianism") will prevail and [equality](https://en.wikipedia.org/wiki/Equal_opportunity "Equal opportunity") will be exacted. They are shocked that action organizations, sit-ins, [civil disobedience](https://en.wikipedia.org/wiki/Civil_disobedience "Civil disobedience"), and protests are becoming our everyday tools, just as strikes, demonstrations and union organization became yours to insure that [bargaining power](https://en.wikipedia.org/wiki/Bargaining_power "Bargaining power") genuinely existed on both sides of the table. ...
In addition to prohibitions on discriminatory treatment, [harassment](https://en.wikipedia.org/wiki/Sexual_harassment_in_the_workplace_in_the_United_States "Sexual harassment in the workplace in the United States"), and detriment in retaliation for asserting rights, is prohibited. In a particularly obscene case, *[Meritor Savings Bank v. Vinson](https://en.wikipedia.org/wiki/Meritor_Savings_Bank_v._Vinson "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](https://en.wikipedia.org/wiki/42_USC "42 USC") §2000e.[\[417\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-417) But also if employees or managers create a "hostile or offensive working environment", this counts as discrimination. In *[Harris v. Forklift Systems, Inc.](https://en.wikipedia.org/wiki/Harris_v._Forklift_Systems,_Inc. "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.[\[418\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-418) Standard principles of agency and vicariously liability apply, so an employer is responsible for the actions of its agents,[\[419\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-419) But according to *[Faragher v. City of Boca Raton](https://en.wikipedia.org/wiki/Faragher_v._City_of_Boca_Raton "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.[\[420\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-420) In addition, an employing entity may not retaliate against an employee for asserting his or her rights under the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"),[\[421\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-421) or the [Age Discrimination in Employment Act of 1967](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967").[\[422\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-422) In *[University of Pennsylvania v. Equal Employment Opportunity Commission](https://en.wikipedia.org/wiki/University_of_Pennsylvania_v._Equal_Employment_Opportunity_Commission "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](https://en.wikipedia.org/wiki/United_States_Equal_Employment_Opportunity_Commission "United States Equal Employment Opportunity Commission") to investigate the claim.[\[423\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-423) Furthermore, in *[Robinson v. Shell Oil Co.](https://en.wikipedia.org/wiki/Robinson_v._Shell_Oil_Co. "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.[\[424\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-424) 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.[\[425\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-425) This is all seen as necessary to make equal rights effective.
### Equal impact and remedies
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=19 "Edit section: Equal impact and remedies")\]
In addition to [disparate treatment](https://en.wikipedia.org/wiki/Disparate_treatment "Disparate treatment"), employing entities may not use practices having an unjustified [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") on protected groups. In *[Griggs v. Duke Power Co.](https://en.wikipedia.org/wiki/Griggs_v._Duke_Power_Co. "Griggs v. Duke Power Co.")*, a power company on the [Dan River](https://en.wikipedia.org/wiki/Dan_River_\(Virginia\) "Dan River (Virginia)"), [North Carolina](https://en.wikipedia.org/wiki/North_Carolina "North Carolina"), required a [high school diploma](https://en.wikipedia.org/wiki/High_school_diploma "High school diploma") for staff to transfer to higher paying non-manual jobs. Because of [racial segregation](https://en.wikipedia.org/wiki/Racial_segregation_in_the_United_States "Racial segregation in the United States") in states like North Carolina, fewer [black employees](https://en.wikipedia.org/wiki/Black_people "Black people") than [white employees](https://en.wikipedia.org/wiki/White_people "White people") had diplomas.[\[426\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-426) The court found a diploma was wholly unnecessary to perform the tasks in higher paying non-manual jobs. [Burger CJ](https://en.wikipedia.org/wiki/Burger_CJ "Burger CJ"), for a unanimous [Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court"), held the "[Act](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964") 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](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") followed "business necessity" that was "related to [job performance](https://en.wikipedia.org/wiki/Job_performance "Job performance")" but otherwise such practices would be prohibited.[\[427\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-427) It is not necessary to show any intention to discriminate, just a discriminatory effect. Since amendments by the [Civil Rights Act of 1991](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1991 "Civil Rights Act of 1991"),[\[428\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-428) if [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "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.[\[429\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-429) On the other hand, in *[Ricci v. DeStefano](https://en.wikipedia.org/wiki/Ricci_v._DeStefano "Ricci v. DeStefano")* five Supreme Court judges held the [City of New Haven](https://en.wikipedia.org/wiki/City_of_New_Haven "City of New Haven") had acted unlawfully by discarding test results for [firefighters](https://en.wikipedia.org/wiki/Firefighters "Firefighters"), which it concluded could have had an unjustified [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") by race.[\[430\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-430) In a further concurrence, [Scalia J](https://en.wikipedia.org/wiki/Scalia_J "Scalia J") said "resolution of this dispute merely postpones the [evil](https://en.wikipedia.org/wiki/Evil "Evil") day" when a [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") might be found [unconstitutional](https://en.wikipedia.org/wiki/Unconstitutional "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](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J") pointed out that [disparate impact](https://en.wikipedia.org/wiki/Disparate_impact "Disparate impact") theory advances equality, and in no way requires behavior that is not geared to identifying people with skills necessary for jobs.[\[431\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-431)
[](https://en.wikipedia.org/wiki/File:Secretary_Clinton_Smiles_With_South_African_Minister_Maite_Nkoana-Mashabane.jpg)
The [Paycheck Fairness Act](https://en.wikipedia.org/wiki/Paycheck_Fairness_Act "Paycheck Fairness Act"), repeatedly proposed by Democrats such as [Hillary Clinton](https://en.wikipedia.org/wiki/Hillary_Clinton "Hillary Clinton"), would prevent employer defenses to sex discrimination that are related to gender. It has been rejected by [Republicans](https://en.wikipedia.org/wiki/Republican_Party_\(United_States\) "Republican Party (United States)") in the [United States Congress](https://en.wikipedia.org/wiki/United_States_Congress "United States Congress").
Both [disparate treatment](https://en.wikipedia.org/wiki/Disparate_treatment "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](https://en.wikipedia.org/wiki/Equal_Employment_Opportunity_Commission "Equal Employment Opportunity Commission"), the [attorney general](https://en.wikipedia.org/wiki/United_States_Attorney_General "United States Attorney General"),[\[432\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-432) and by [class action](https://en.wikipedia.org/wiki/Class_action "Class action"). Under the [Federal Rules of Civil Procedure](https://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure "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".[\[433\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-433) 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,[\[434\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-434) so long as there is sufficiently specific presentation of issues of law and fact to certify the action.[\[435\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-435)
A significant practical problem for disparate impact claims is the "[Bennett Amendment](https://en.wikipedia.org/wiki/Bennett_Amendment "Bennett Amendment")" in the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "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](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938") § 206(d)(1).[\[436\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-436) 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](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964") §703(h).[\[437\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-437) In *[County of Washington v. Gunther](https://en.wikipedia.org/wiki/County_of_Washington_v._Gunther "County of Washington v. Gunther")*[\[438\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-438) 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](https://en.wikipedia.org/wiki/Rehnquist_J "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).[\[439\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-439) 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](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"). Given that a significant [gender pay gap](https://en.wikipedia.org/wiki/Gender_pay_gap "Gender pay gap") remains, it is not clear why any discrepancy or less favorable treatment, should remain at all.[\[440\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-440)
- [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") §2000e-(j)
- *[United Steelworkers v. Weber](https://en.wikipedia.org/wiki/United_Steelworkers_v._Weber "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](https://en.wikipedia.org/wiki/Bushey_v._New_York_State_Civil_Service_Commission "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](https://en.wikipedia.org/wiki/Johnson_v._Transportation_Agency "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](https://en.wikipedia.org/w/index.php?title=Local_No._93,_International_Association_of_Firefighters_v._City_of_Cleveland&action=edit&redlink=1 "Local No. 93, International Association of Firefighters v. City of Cleveland (page does not exist)")* 478 US 501 (1986) a consent decree giving preference in promotions to black fireman in [Cleveland](https://en.wikipedia.org/wiki/Cleveland "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](https://en.wikipedia.org/w/index.php?title=Local_28,_Sheet_Metal_Workers%27_International_Association_v._EEOC&action=edit&redlink=1 "Local 28, Sheet Metal Workers' International Association v. EEOC (page does not exist)")* 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](https://en.wikipedia.org/wiki/Wygant_v._Jackson_Board_of_Education "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](https://en.wikipedia.org/wiki/Thurgood_Marshall "Thurgood Marshall"), joined by Brennan J, Blackmun J, Stevens J dissented
- *[US v. Paradise](https://en.wikipedia.org/w/index.php?title=US_v._Paradise&action=edit&redlink=1 "US v. Paradise (page does not exist)")* 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.](https://en.wikipedia.org/wiki/City_of_Richmond_v._J.A._Croson_Co. "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](https://en.wikipedia.org/wiki/Strict_scrutiny "Strict scrutiny"), or more difficult to justify than other remedies for discrimination.
- *[Adarand Constructors, Inc. v. Peña](https://en.wikipedia.org/wiki/Adarand_Constructors,_Inc._v._Pe%C3%B1a "Adarand Constructors, Inc. v. Peña")*, 515 US 200 (1995) federal agency contracts and subcontracts
- *[Piscataway School Board v. Taxman](https://en.wikipedia.org/wiki/Piscataway_School_Board_v._Taxman "Piscataway School Board v. Taxman")*, 91 F3d 1547 (3d Cir. 1996) case dropped, on affirmative action
- *[Morton v. Mancari](https://en.wikipedia.org/wiki/Morton_v._Mancari "Morton v. Mancari")* 417 US 535 (1974) held preference of Native Americans in the [Bureau of Indian Affairs](https://en.wikipedia.org/wiki/Bureau_of_Indian_Affairs "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](https://en.wikipedia.org/wiki/United_States_Equal_Employment_Opportunity_Commission "United States Equal Employment Opportunity Commission"), *[Guidelines on Affirmative Action](https://en.wikipedia.org/w/index.php?title=Guidelines_on_Affirmative_Action&action=edit&redlink=1 "Guidelines on Affirmative Action (page does not exist)")* (2009) 29 CFR [§1608](https://www.gpo.gov/fdsys/pkg/CFR-2014-title29-vol4/xml/CFR-2014-title29-vol4-part1608.xml)
- [OFCCP](https://en.wikipedia.org/wiki/OFCCP "OFCCP") Regulations, 41 CFR §60 based on Executive Order 11246, 3 CFR 339
[](https://en.wikipedia.org/wiki/File:Rooseveltinwheelchair.jpg)
[Franklin Delano Roosevelt](https://en.wikipedia.org/wiki/Franklin_Delano_Roosevelt "Franklin Delano Roosevelt"), suffering from [polio](https://en.wikipedia.org/wiki/Polio "Polio"), required a [wheelchair](https://en.wikipedia.org/wiki/Wheelchair "Wheelchair") through his [Presidency](https://en.wikipedia.org/wiki/Presidency "Presidency").
- [Veterans' Preference Act of 1944](https://en.wikipedia.org/wiki/Veterans%27_Preference_Act_of_1944 "Veterans' Preference Act of 1944")
- [Rehabilitation Act of 1973](https://en.wikipedia.org/wiki/Rehabilitation_Act_of_1973 "Rehabilitation Act of 1973"), 29 USC §§705, 791–794e
- *[Borkowski v. Valley Central School District](https://en.wikipedia.org/w/index.php?title=Borkowski_v._Valley_Central_School_District&action=edit&redlink=1 "Borkowski v. Valley Central School District (page does not exist)")* 63 F3d 131 (2nd 1995) burden of proof
- *[Vande Zande v. Wisconsin Department of Administration](https://en.wikipedia.org/w/index.php?title=Vande_Zande_v._Wisconsin_Department_of_Administration&action=edit&redlink=1 "Vande Zande v. Wisconsin Department of Administration (page does not exist)")* 44 F3d 538 (7th 1995)
- *[Southeastern Community College v. Davis](https://en.wikipedia.org/wiki/Southeastern_Community_College_v._Davis "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](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990"), 42 USC §§12101–12213
- *[Cleveland v. Policy Management Systems Corp](https://en.wikipedia.org/w/index.php?title=Cleveland_v._Policy_Management_Systems_Corp&action=edit&redlink=1 "Cleveland v. Policy Management Systems Corp (page does not exist)")* 562 US 795 (1999)
- *[Sutton v. United Airline, Inc](https://en.wikipedia.org/w/index.php?title=Sutton_v._United_Airline,_Inc&action=edit&redlink=1 "Sutton v. United Airline, Inc (page does not exist)")* 527 US 471 (1999)
- *[Albertsons, Inc. v. Kirkingburg](https://en.wikipedia.org/w/index.php?title=Albertsons,_Inc._v._Kirkingburg&action=edit&redlink=1 "Albertsons, Inc. v. Kirkingburg (page does not exist)")* 527 US 555 (1999)
- *[Murphy v. United Parcel Service](https://en.wikipedia.org/w/index.php?title=Murphy_v._United_Parcel_Service&action=edit&redlink=1 "Murphy v. United Parcel Service (page does not exist)")* 527 US 516 (1999)
- *[Toyota Motor Manufacturing, Kentucky, Inc. v. Williams](https://en.wikipedia.org/wiki/Toyota_Motor_Manufacturing,_Kentucky,_Inc._v._Williams "Toyota Motor Manufacturing, Kentucky, Inc. v. Williams")* 534 US 184 (2002)
- *[US Airways Inc v. Barnett](https://en.wikipedia.org/w/index.php?title=US_Airways_Inc_v._Barnett&action=edit&redlink=1 "US Airways Inc v. Barnett (page does not exist)")* 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](https://en.wikipedia.org/wiki/New_York_City_Transit_Authority_v._Beazer "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](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "Family and Medical Leave Act of 1993"), [Equality Act of 2015](https://en.wikipedia.org/wiki/Equality_Act_of_2015 "Equality Act of 2015")
### Free movement and immigration
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=21 "Edit section: Free movement and immigration")\]
- *[Corfield v. Coryell](https://en.wikipedia.org/wiki/Corfield_v._Coryell "Corfield v. Coryell")*, 6 Fed. Cas. 546 (1823)
- *[Paul v. Virginia](https://en.wikipedia.org/wiki/Paul_v._Virginia "Paul v. Virginia")*, 75 U.S. 168 (1869)
- *[Hoffman Plastic Compounds, Inc. v. NLRB](https://en.wikipedia.org/wiki/Hoffman_Plastic_Compounds,_Inc._v._NLRB "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](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") for helping in union organizing.
- [History of immigration to the United States](https://en.wikipedia.org/wiki/History_of_immigration_to_the_United_States "History of immigration to the United States")
- [Immigration Reform and Control Act of 1986](https://en.wikipedia.org/wiki/Immigration_Reform_and_Control_Act_of_1986 "Immigration Reform and Control Act of 1986"), [8 USC](https://en.wikipedia.org/wiki/8_USC "8 USC") [§1324b](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) and [§1324a](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) "unlawful employment of aliens"
- [Illegal immigration to the United States](https://en.wikipedia.org/wiki/Illegal_immigration_to_the_United_States "Illegal immigration to the United States")
- [Comprehensive Immigration Reform Act of 2007](https://en.wikipedia.org/wiki/Comprehensive_Immigration_Reform_Act_of_2007 "Comprehensive Immigration Reform Act of 2007")
[](https://en.wikipedia.org/wiki/File:FDR_Fireside_Chat_December_24,_1943.jpg)
[President Franklin D. Roosevelt](https://en.wikipedia.org/wiki/President_Franklin_D._Roosevelt "President Franklin D. Roosevelt") brought [unemployment](https://en.wikipedia.org/wiki/Unemployment_in_the_United_States "Unemployment in the United States") down from over 20% to under 2%, with the [New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal")'s investment in jobs during the [Great Depression](https://en.wikipedia.org/wiki/Great_Depression_in_the_United_States "Great Depression in the United States").
Job security laws in the United States are the weakest in the developed world, as there are no federal statutory rights yet.[\[441\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-441) Any employment contract can require job security, but employees other than corporate executives or managers rarely have the [bargaining power](https://en.wikipedia.org/wiki/Unequal_bargaining_power "Unequal bargaining power") to contract for job security.[\[442\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-442) Collective agreements often aim to ensure that employees can only be terminated for a "[just cause](https://en.wikipedia.org/wiki/Just_cause_\(employment_law\) "Just cause (employment law)")", 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](https://en.wikipedia.org/wiki/At_will_employment "At will employment")" by the employer: for a "good reason, a bad reason, or no reason at all", so long as no statutory rule is violated.[\[443\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-Payne_v._Western_1884-443) 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](https://en.wikipedia.org/wiki/Lloyd%E2%80%93La_Follette_Act_of_1912 "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 Montana[\[444\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-Title_39_ch_2_part_9,_%C2%A74-444)) protects all employees yet. There are now a growing number of proposals to do this.[\[445\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-445) 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](https://en.wikipedia.org/wiki/Severance_pay "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](https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act_of_1988 "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,[\[446\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-R_Epstein_1984-446) the empirical evidence suggests that job insecurity hampers innovation, reduces productivity, worsens economic recessions,[\[447\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-academic.oup.com-447) deprives employees of liberty and pay,[\[448\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-448) and creates a culture of fear.[\[449\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-449) US unemployment has historically been extremely volatile, as Republican presidents have consistently increased post-war unemployment, while Democratic presidents have reduced it.[\[450\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-450) In its conduct of [monetary policy](https://en.wikipedia.org/wiki/Monetary_policy "Monetary policy"), it is the duty of the [Federal Reserve](https://en.wikipedia.org/wiki/Federal_Reserve "Federal Reserve") to achieve "maximum employment",[\[451\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-451) although in reality Federal Reserve chairs prioritize the reducing of inflation. [Underemployment](https://en.wikipedia.org/wiki/Underemployment "Underemployment") from growing insecurity of working hours has risen. Government may also use [fiscal policy](https://en.wikipedia.org/wiki/Fiscal_policy "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.[\[452\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-452)
### Termination and cause
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=23 "Edit section: Termination and cause")\]
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](https://en.wikipedia.org/wiki/Lloyd%E2%80%93La_Follette_Act_of_1912 "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."[\[453\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-453) 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.[\[454\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-454) Third, since 1987, [Montana](https://en.wikipedia.org/wiki/Montana "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.[\[444\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-Title_39_ch_2_part_9,_%C2%A74-444) 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.[\[455\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-455) The standard in the [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") [Termination of Employment Convention, 1982](https://en.wikipedia.org/wiki/Termination_of_Employment_Convention,_1982 "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](https://en.wikipedia.org/wiki/Severance_allowance "Severance allowance") if the termination is for economic reasons.[\[456\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-arts_4-13-456) Some countries such as Germany also require that elected [work councils](https://en.wikipedia.org/wiki/Work_councils "Work councils") have the power to veto or delay terminations, to neutralize the employer's potential [conflicts of interest](https://en.wikipedia.org/wiki/Conflicts_of_interest "Conflicts of interest").[\[457\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-457) Most countries treat job security as a fundamental right,[\[458\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-458) as well as necessary to prevent irrational job losses, to reduce unemployment, and to promote innovation.[\[447\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-academic.oup.com-447) 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,[\[446\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-R_Epstein_1984-446) although the empirical credibility of this argument is doubted by a majority of scholars.[\[459\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-459)
[](https://en.wikipedia.org/wiki/File:Donald-trump-secim-840x420.jpg)
The slogan "you're fired!" was popularized by [Donald Trump](https://en.wikipedia.org/wiki/Donald_Trump "Donald Trump")'s TV show, *[The Apprentice](https://en.wikipedia.org/wiki/The_Apprentice_\(American_TV_series\) "The Apprentice (American TV series)")* before he became president. This reflects the "[at-will employment](https://en.wikipedia.org/wiki/At-will_employment "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,[\[460\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-460) the default rule is known as "[at-will employment](https://en.wikipedia.org/wiki/At-will_employment "At-will employment")". For example, in 1872, the [California Civil Code](https://en.wikipedia.org/wiki/California_Civil_Code "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.[\[461\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-461) In the late 19th century, employment at will was popularized by academic writers as an inflexible legal presumption,[\[462\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-462) and state courts began to adopt it, even though many had presumed that contract termination usually required notice and justifications.[\[463\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-463) 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".[\[443\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-Payne_v._Western_1884-443) However, the employer's discretion to terminate could not violate any statutory prohibition, including termination for union membership,[\[464\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-464) discriminatory termination based on a protected characteristic (e.g. race, gender, age or disability),[\[465\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-465) and bringing claims for occupational health and safety,[\[466\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-466) fair labor standards,[\[467\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-467) retirement income,[\[468\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-468) family and medical leave,[\[469\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-469) and under a series of other specific Acts.[\[470\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-470) Many state courts also added at least four "[public policy](https://en.wikipedia.org/wiki/Public_policy "Public policy")" exceptions,[\[471\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-471) 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.[\[472\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-472) 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.[\[473\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-473) Third, an employee cannot be discharged for exercising any statutory right, such as refusing to take a lie detector test or filing litigation.[\[474\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-474) Fourth, employees will be wrongfully discharged if they legitimately [blow the whistle](https://en.wikipedia.org/wiki/Whistleblowing "Whistleblowing") on unlawful employer conduct, such as violating food labelling laws,[\[475\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-475) or reporting unlawful standards in a nursing home.[\[476\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-476) 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.[\[477\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-477) Some states interpret the general duty of [good faith](https://en.wikipedia.org/wiki/Good_faith "Good faith") in contracts to cover discharges,[\[478\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-478) so that an employee cannot, for example, be terminated just before a bonus is due to be paid.[\[479\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-479) However the vast majority of Americans remain unprotected against most arbitrary, irrational or malicious conduct by employers.[\[480\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-480)
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,[\[481\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-481) and job-related misconduct where the employer consistently enforces a rule,[\[482\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-482) but not actions outside of the job.[\[483\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-483) 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.[\[484\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-484) If a written contract does not promise "just cause" protection against termination, statements in a handbook can still be enforceable,[\[485\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-485) and oral agreements can override the written contract.[\[486\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-486)
Many job terminations in America are economic [layoffs](https://en.wikipedia.org/wiki/Layoffs "Layoffs"), where employers believe that employees are redundant. In most countries, economic layoffs are separately regulated because of the [conflicts of interest](https://en.wikipedia.org/wiki/Conflicts_of_interest "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](https://en.wikipedia.org/wiki/ILO "ILO") [Termination of Employment Convention, 1982](https://en.wikipedia.org/wiki/Termination_of_Employment_Convention,_1982 "Termination of Employment Convention, 1982") requires a [severance allowance](https://en.wikipedia.org/wiki/Severance_allowance "Severance allowance") if the termination is for economic reasons, as well as consultation with worker representatives about ways to avoid layoffs.[\[456\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-arts_4-13-456) Most developed countries regard information and consultation in the event of any economic change as a fundamental right.[\[487\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-487) The United States government also helped write [Control Council Law No 22](https://en.wikipedia.org/wiki/Control_Council_Law_No_22 "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.[\[488\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-488) However, there are no state or federal laws requiring severance pay or [employee participation](https://aluminum-tick-bf5.notion.site/Relearn-Engine-1f25ccc8a18d809dae0be9e3b13b8f17?pvs=73) in layoff decisions. Where employment contracts or collective agreements contain "just cause" provisions, these have been interpreted to give employers broad discretion,[\[489\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-489) and immunity from the social consequences for the laid off workforce.
[](https://en.wikipedia.org/wiki/File:De_Blasio_Protests_the_Layoffs_of_500_LICH_Nurses_and_Health_Care_Workers_\(10542698924\).jpg)
American workers do not yet have a right to vote on employer layoff decisions, even though the US government helped draft laws for other countries to have elected work councils.[\[490\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-490)
The only statutory right for employees is for extreme cases of mass layoffs under the [Worker Adjustment and Retraining Notification Act of 1988](https://en.wikipedia.org/wiki/Worker_Adjustment_and_Retraining_Notification_Act_of_1988 "Worker Adjustment and Retraining Notification Act of 1988"). The [WARN Act](https://en.wikipedia.org/wiki/WARN_Act "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.[\[491\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-491) 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.[\[492\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-492) 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.[\[493\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-493) 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.[\[494\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-494) Second, an employer may argue that business circumstances were unforeseen.[\[495\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-495) Third, an employer can argue it had reasonable grounds for believing its failure was not a violation of the act.[\[496\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-496) 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.[\[497\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-497) States such as Massachusetts, Connecticut and Maine have statutes with slightly but 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.[\[498\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-498) Outside limited defenses in [corporate law](https://en.wikipedia.org/wiki/US_corporate_law "US corporate law"),[\[499\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-499) 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](https://en.wikipedia.org/wiki/Howard_Johnson_Co._v._Detroit_Local_Joint_Executive_Board "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.[\[500\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-500) The majority held there must be "substantial continuity of identity" of the business for the good faith bargaining duty to continue.
The right to [full employment](https://en.wikipedia.org/wiki/Full_employment "Full employment") or the "[right to work](https://en.wikipedia.org/wiki/Right_to_work "Right to work")" in a fair paying job is a universal human right in [international law](https://en.wikipedia.org/wiki/International_law "International law"),[\[501\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-501) partly inspired by the experience of the [New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal") in the 1930s.[\[502\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-502) [Unemployment](https://en.wikipedia.org/wiki/Unemployment "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](https://en.wikipedia.org/wiki/Bargaining_power "Bargaining power") tends to be higher and pay tends to rise, but high unemployment tends to reduce worker power and pay,[\[503\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-503) 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](https://en.wikipedia.org/wiki/Truax_v._Raich "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".[\[504\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-504) During the [New Deal](https://en.wikipedia.org/wiki/New_Deal "New Deal") with unemployment having reached 20% after the [Wall Street Crash of 1929](https://en.wikipedia.org/wiki/Wall_Street_Crash_of_1929 "Wall Street Crash of 1929"), the [Emergency Relief Appropriation Act of 1935](https://en.wikipedia.org/wiki/Emergency_Relief_Appropriation_Act_of_1935 "Emergency Relief Appropriation Act of 1935") empowered the President to create the [Works Progress Administration](https://en.wikipedia.org/wiki/Works_Progress_Administration "Works Progress Administration"), which aimed to directly employ people on fair wages.[\[505\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-505) By 1938, the [WPA](https://en.wikipedia.org/wiki/Works_Progress_Administration "Works Progress Administration") employed 3.33 million people, and built streets, bridges and buildings across the country. Also created by the 1935 Act, the [Rural Electrification Administration](https://en.wikipedia.org/wiki/Rural_Electrification_Administration "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.
[](https://en.wikipedia.org/wiki/File:United_States_unemployment_with_incarceration_1892-2016.png)
[Unemployment](https://en.wikipedia.org/wiki/Unemployment "Unemployment") since World War I has been lower under Democratic presidents and higher under Republican presidents. The high rate of [incarceration](https://en.wikipedia.org/wiki/Incarceration_in_the_United_States "Incarceration in the United States") raised real unemployment by around 1.5% since 1980.[\[506\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-506)
After World War II, the [Employment Act of 1946](https://en.wikipedia.org/wiki/Employment_Act_of_1946 "Employment Act of 1946") declared a policy of Congress to "promote full employment and production, increased real income... and reasonable price stability".[\[507\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-507) 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".[\[508\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-508) By the 1970s, there was a growing opinion that the [Equal Protection Clause](https://en.wikipedia.org/wiki/Equal_Protection_Clause "Equal Protection Clause") itself in the [14th Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution") should also mean, according to [Justice Marshall](https://en.wikipedia.org/wiki/Thurgood_Marshall "Thurgood Marshall") in *[Board of Regents of State Colleges v. Roth](https://en.wikipedia.org/wiki/Board_of_Regents_of_State_Colleges_v._Roth "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."[\[509\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-509) The [Humphrey–Hawkins Full Employment Act](https://en.wikipedia.org/wiki/Humphrey%E2%80%93Hawkins_Full_Employment_Act "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".[\[510\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-510) 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.[\[511\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-511) It includes "policy priorities" of the "development of energy sources and supplies, transportation, and environmental improvement".[\[512\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-512) These powers of a [job guarantee](https://en.wikipedia.org/wiki/Job_guarantee "Job guarantee"), full employment, and environmental improvement have not yet been used. During the [2008 financial crisis](https://en.wikipedia.org/wiki/2008_financial_crisis "2008 financial crisis"), the [American Recovery and Reinvestment Act of 2009](https://en.wikipedia.org/wiki/American_Recovery_and_Reinvestment_Act_of_2009 "American Recovery and Reinvestment Act of 2009") was passed to enable more spending, but not a job guarantee.
[](https://en.wikipedia.org/wiki/File:WPA-Work-Pays-America-Poster.jpg)
The [Works Progress Administration](https://en.wikipedia.org/wiki/Works_Progress_Administration "Works Progress Administration") from 1935 to 1943[\[513\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-513) created 8.5m jobs spending \$1.3bn a year to get out of the [Great Depression](https://en.wikipedia.org/wiki/Great_Depression "Great Depression").
While the laws for a federal or state [job guarantee](https://en.wikipedia.org/wiki/Job_guarantee "Job guarantee") have not yet been used, the [Federal Reserve Act](https://en.wikipedia.org/wiki/Federal_Reserve_Act "Federal Reserve Act") 1913 does require that the Board of Governors of the [Federal Reserve System](https://en.wikipedia.org/wiki/Federal_Reserve_System "Federal Reserve System") should use its powers "to promote effectively the goals of [maximum employment](https://en.wikipedia.org/wiki/Maximum_employment "Maximum employment"), stable prices, and moderate long-term interest rates."[\[514\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-514) 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.[\[515\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-515) However, the Federal Reserve became dominated by a theory of a [natural rate of unemployment](https://en.wikipedia.org/wiki/Natural_rate_of_unemployment "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](https://en.wikipedia.org/wiki/Milton_Friedman "Milton Friedman") that central banks should use monetary policy only to control inflation, according to the [non-accelerating inflation rate of unemployment](https://en.wikipedia.org/wiki/Non-accelerating_inflation_rate_of_unemployment "Non-accelerating inflation rate of unemployment") (NAIRU).[\[516\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-516) 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,[\[517\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-517) and the US unemployment rate follows which political party is in the White House.[\[518\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-518)
> ... my friends, after this [war](https://en.wikipedia.org/wiki/World_War_I "World War I"), there will be a great [unemployment](https://en.wikipedia.org/wiki/Unemployment_in_the_United_States "Unemployment in the United States") 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](https://en.wikipedia.org/wiki/Amalgamated_Clothing_Workers_of_America "Amalgamated Clothing Workers of America"). And I say, courage to the strikers, and courage to the delegates, because great times are coming, stressful days are here, and I hope your hearts will be strong, and I hope you will be one hundred per cent union when it comes\!
—[Nicholas Klein](https://en.wikipedia.org/wiki/Nicholas_Klein "Nicholas Klein"), *Biennial Convention of the Amalgamated Clothing Workers of America* ([1918](https://en.wikisource.org/wiki/And_Then_They_Build_Monuments_to_You))
If despite fiscal and monetary policy people are unemployed, the Social Security Act of 1935 creates [unemployment insurance](https://en.wikipedia.org/wiki/Unemployment_insurance "Unemployment insurance").[\[519\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-519) 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.[\[520\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-520) Employees cannot get benefits if they are laid off for misconduct,[\[521\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-521) and for participation in strikes,[\[522\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-522) 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.[\[523\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-523) 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.[\[524\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-524)
### Trade and international law
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=26 "Edit section: Trade and international law")\]
> \[The [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") ...\] has for its object the establishment of [universal peace](https://en.wikipedia.org/wiki/Universal_peace "Universal peace"), and such a peace can be established only if it is based upon [social justice](https://en.wikipedia.org/wiki/Social_justice "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](https://en.wikipedia.org/wiki/Working_time "Working time") and week, the regulation of the labor supply, the prevention of unemployment, the provision of an adequate [living wage](https://en.wikipedia.org/wiki/Living_wage "Living wage"), the protection of the worker against sickness, disease and injury arising out of his employment, the protection of [children](https://en.wikipedia.org/wiki/Child_labor "Child labor"), 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](https://en.wikipedia.org/wiki/Freedom_of_association "Freedom of association"), the organization of vocational and technical education ...
- [US Constitution](https://en.wikipedia.org/wiki/US_Constitution "US Constitution"), [Article I, Section 8, Clause 3](https://en.wikipedia.org/wiki/Article_I,_Section_8,_Clause_3 "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](https://en.wikipedia.org/wiki/Article_IV,_Section_2,_Clause_1 "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](https://en.wikipedia.org/wiki/Freedom_of_movement_under_United_States_law "Freedom of movement under United States law")
- *[Gibbons v. Ogden](https://en.wikipedia.org/wiki/Gibbons_v._Ogden "Gibbons v. Ogden")*, 22 US 1 (1824) and *[Paul v. Virginia](https://en.wikipedia.org/wiki/Paul_v._Virginia "Paul v. Virginia")*, 75 US 168 (1869)
- [Interstate Commerce Act of 1887](https://en.wikipedia.org/wiki/Interstate_Commerce_Act_of_1887 "Interstate Commerce Act of 1887") and [Federal Trade Commission Act of 1914](https://en.wikipedia.org/wiki/Federal_Trade_Commission_Act_of_1914 "Federal Trade Commission Act of 1914")
- [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") and [international labor standards](https://en.wikipedia.org/wiki/International_labor_standards "International labor standards")
- [Bargaining power](https://en.wikipedia.org/wiki/Bargaining_power "Bargaining power"), [race to the bottom](https://en.wikipedia.org/wiki/Race_to_the_bottom "Race to the bottom"), [foreign direct investment](https://en.wikipedia.org/wiki/Foreign_direct_investment "Foreign direct investment"), [human development](https://en.wikipedia.org/wiki/Human_development_\(humanity\) "Human development (humanity)"), [technological change](https://en.wikipedia.org/wiki/Technological_change "Technological change"), [global workforce](https://en.wikipedia.org/wiki/Global_workforce "Global workforce"), immigration
- [Tariff Act of 1890](https://en.wikipedia.org/wiki/Tariff_Act_of_1890 "Tariff Act of 1890"), [Smoot–Hawley Tariff Act of 1930](https://en.wikipedia.org/wiki/Smoot%E2%80%93Hawley_Tariff_Act_of_1930 "Smoot–Hawley Tariff Act of 1930"), [Great Depression](https://en.wikipedia.org/wiki/Great_Depression "Great Depression")
- [United States free trade agreements](https://en.wikipedia.org/wiki/United_States_free_trade_agreements "United States free trade agreements"), [United States International Trade Commission](https://en.wikipedia.org/wiki/United_States_International_Trade_Commission "United States International Trade Commission"), [19 USC](https://en.wikipedia.org/wiki/19_USC "19 USC")
[](https://en.wikipedia.org/wiki/File:1904socialist.jpg)
[Eugene V. Debs](https://en.wikipedia.org/wiki/Eugene_V._Debs "Eugene V. Debs"), founder of the [American Railway Union](https://en.wikipedia.org/wiki/American_Railway_Union "American Railway Union") and five-time presidential candidate, was jailed twice for organizing the [Pullman Strike](https://en.wikipedia.org/wiki/Pullman_Strike "Pullman Strike") and denouncing [World War I](https://en.wikipedia.org/wiki/World_War_I "World War I"). His life story is told in a documentary by Bernie Sanders.[\[525\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-525)
- [Trade Act of 1974](https://en.wikipedia.org/wiki/Trade_Act_of_1974 "Trade Act of 1974"), [Trade Agreements Act of 1979](https://en.wikipedia.org/wiki/Trade_Agreements_Act_of_1979 "Trade Agreements Act of 1979"), [Trade Act of 2002](https://en.wikipedia.org/wiki/Trade_Act_of_2002 "Trade Act of 2002"), [Trade Preferences Extension Act of 2015](https://en.wikipedia.org/wiki/Trade_Preferences_Extension_Act_of_2015 "Trade Preferences Extension Act of 2015") and [Fast track (trade)](https://en.wikipedia.org/wiki/Fast_track_\(trade\) "Fast track (trade)")
- [North American Free Trade Agreement](https://en.wikipedia.org/wiki/North_American_Free_Trade_Agreement "North American Free Trade Agreement"), 19 USC ch 21, §3301
- [World Trade Organization](https://en.wikipedia.org/wiki/World_Trade_Organization "World Trade Organization") and [Uruguay Round Agreements Act of 1994](https://en.wikipedia.org/wiki/Uruguay_Round_Agreements_Act_of_1994 "Uruguay Round Agreements Act of 1994")
- [Permanent normal trade relations](https://en.wikipedia.org/wiki/Permanent_normal_trade_relations "Permanent normal trade relations")
- [Trans-Pacific Partnership](https://en.wikipedia.org/wiki/Trans-Pacific_Partnership "Trans-Pacific Partnership") and [Transatlantic Trade and Investment Partnership](https://en.wikipedia.org/wiki/Transatlantic_Trade_and_Investment_Partnership "Transatlantic Trade and Investment Partnership")
- Three potential views are:
- (1) expansion of trade is good because it increases the scope for [division of labor](https://en.wikipedia.org/wiki/Division_of_labor "Division of labor") and expanding markets. So, all customs, taxes, and equivalent restrictions against [market access](https://en.wikipedia.org/wiki/Market_access "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](https://en.wikipedia.org/wiki/Human_development_\(humanity\) "Human development (humanity)") and the workers' rate of [productivity](https://en.wikipedia.org/wiki/Productivity "Productivity").
## Labor law in individual states
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=27 "Edit section: Labor law in individual states")\]
In 1959, California added the Division of Fair Employment Practices to the [California Department of Industrial Relations](https://en.wikipedia.org/wiki/California_Department_of_Industrial_Relations "California Department of Industrial Relations"). The Fair Employment and Housing Act[\[526\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-526) of 1980 gave the division its own [Department of Fair Employment and Housing](https://en.wikipedia.org/wiki/Department_of_Fair_Employment_and_Housing "Department of Fair Employment and Housing"), with the stated purpose of protecting citizens against [harassment](https://en.wikipedia.org/wiki/Harassment "Harassment") and [employment discrimination](https://en.wikipedia.org/wiki/Employment_discrimination "Employment discrimination") on the basis of:[\[527\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-527) 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](https://en.wikipedia.org/wiki/Sexual_orientation "Sexual orientation") was not specifically included in the original law but precedent was established based on [case law](https://en.wikipedia.org/wiki/Case_law "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.[\[528\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-528)
The state also has its own labor law covering agricultural workers, the [California Agricultural Labor Relations Act](https://en.wikipedia.org/wiki/California_Agricultural_Labor_Relations_Act "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](https://en.wikipedia.org/wiki/Harassment "Harassment") and [employment discrimination](https://en.wikipedia.org/wiki/Employment_discrimination "Employment discrimination") on the basis of: race, creed, color, national origin, nationality, or ancestry.[\[529\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-529) 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.[\[530\]](https://en.wikipedia.org/wiki/United_States_labor_law#cite_note-530)
### Laws restricting unions
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=30 "Edit section: Laws restricting unions")\]
[](https://en.wikipedia.org/wiki/File:Right_to_Work_states.svg)
[Right-to-work states](https://en.wikipedia.org/wiki/Right-to-work_law "Right-to-work law")
Statewide Right-to-work law
Local Right-to-work laws
No Right-to-work law
As of 2019, twenty-six states plus [Guam](https://en.wikipedia.org/wiki/Guam "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](https://en.wikipedia.org/wiki/Save_Our_Secret_Ballot "Save Our Secret Ballot")" pushed four states: Arizona, South Carolina, South Dakota, and Utah to pass constitutional amendments to ban [card check](https://en.wikipedia.org/wiki/Card_check "Card check").
## Enforcement of rights
\[[edit](https://en.wikipedia.org/w/index.php?title=United_States_labor_law&action=edit§ion=31 "Edit section: Enforcement of rights")\]
- [United States Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor")
- [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board")
- *[Ford Motor Co. v. NLRB](https://en.wikipedia.org/wiki/Ford_Motor_Co._v._NLRB "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](https://en.wikipedia.org/wiki/In_re_NLRB "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](https://en.wikipedia.org/wiki/Equal_Employment_Opportunity_Commission "Equal Employment Opportunity Commission")
- *[Elgin v. Department of Treasury](https://en.wikipedia.org/wiki/Elgin_v._Department_of_Treasury "Elgin v. Department of Treasury")*, 567 U.S. \_\_\_ (2012) 6 to 3, under the [Civil Service Reform Act of 1978](https://en.wikipedia.org/wiki/Civil_Service_Reform_Act_of_1978 "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](https://en.wikipedia.org/wiki/Merit_Systems_Protection_Board "Merit Systems Protection Board").
- *[United Mine Workers of America v. Gibbs](https://en.wikipedia.org/wiki/United_Mine_Workers_of_America_v._Gibbs "United Mine Workers of America v. Gibbs")*, 383 U.S. 715 (1966) state and federal jurisdiction in labor disputes
- [Labor law](https://en.wikipedia.org/wiki/Labor_law "Labor law")
- [European labour law](https://en.wikipedia.org/wiki/European_labour_law "European labour law")
- [UK labour law](https://en.wikipedia.org/wiki/UK_labour_law "UK labour law")
- [Right to sit in the United States](https://en.wikipedia.org/wiki/Right_to_sit_in_the_United_States "Right to sit in the United States")
- [Social law](https://en.wikipedia.org/wiki/Social_law "Social law")
- [Child labor laws in the United States](https://en.wikipedia.org/wiki/Child_labor_laws_in_the_United_States "Child labor laws in the United States")
Organizations
- [American Rights at Work](https://en.wikipedia.org/wiki/American_Rights_at_Work "American Rights at Work"), a charity supporting union rights
- [Congress of Industrial Organizations](https://en.wikipedia.org/wiki/Congress_of_Industrial_Organizations "Congress of Industrial Organizations")
- [International Society for Labor Law and Social Security](https://en.wikipedia.org/wiki/International_Society_for_Labor_Law_and_Social_Security "International Society for Labor Law and Social Security")
- [National Labor Federation](https://en.wikipedia.org/wiki/National_Labor_Federation "National Labor Federation"), an organization supporting workers outside the protection of federal labor laws
- [United States Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor"), includes a list of [labor legislation](https://en.wikipedia.org/wiki/Labor_legislation "Labor legislation")
1. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-1)** See [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization"), *Recent US Labor Market Data* ([2013](http://www.ilo.org/washington/ilo-and-the-united-states/spot-light-on-the-us-labor-market/recent-us-labor-market-data/lang--en/index.htm))
2. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-2)** UN, *Human Development Report* (2025) [Table 3](http://hdr.undp.org/en/composite/IHDI)
3. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-3)** [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§151](https://www.law.cornell.edu/uscode/text/29/151). J. R. Commons and J. B. Andrews, *Principles of Labor Legislation* (Harper 1916) ch 1, The basis of labor law, 9, "where bargaining power on the one side is power to withhold access to physical [property](https://en.wikipedia.org/wiki/Property "Property") and the necessaries of life, and on the other side is only power to withhold labor by doing without those necessaries, then equality of rights may signify inequality of bargaining power."
4. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-4)** Most statutes explicitly encourage this, including the [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), the [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), and the [Family and Medical Leave Act of 1993](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act_of_1993 "Family and Medical Leave Act of 1993"). "[Federal preemption](https://en.wikipedia.org/wiki/Federal_preemption "Federal preemption")" rules have, however, restricted experimentation in key areas. These include the [National Labor Relations Act 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_1935 "National Labor Relations Act 1935"), as the [US Supreme Court](https://en.wikipedia.org/wiki/US_Supreme_Court "US Supreme Court") developed a doctrine not found in the act, and [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974").
5. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-5)** [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§§301–306](http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter7/subchapter1&edition=prelim) [Archived](https://web.archive.org/web/20220126122253/http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter7/subchapter1&edition=prelim) January 26, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine") on federally funded state programs and [§§401–434](http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter7/subchapter2&edition=prelim) [Archived](https://web.archive.org/web/20210416222552/https://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter7/subchapter1&edition=prelim) April 16, 2021, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine") on federal old age, survivors and disability insurance benefits.
6. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-6)** [15 USC §17](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim) [Archived](https://web.archive.org/web/20210414021534/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim) April 14, 2021, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"), "The labor of a human being [is not a commodity](https://en.wikipedia.org/wiki/Labour_is_not_a_commodity "Labour is not a commodity") or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws."
7. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-7)** D Webber, *The Rise of the Working Class Shareholders: Labor's Last Best Weapon* ([2018](http://www.hup.harvard.edu/catalog.php?isbn=9780674972131))
8. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-8)** E McGaughey, 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019) [42 *Seattle University Law Review* 697](https://digitalcommons.law.seattleu.edu/sulr/vol42/iss2/18/)
9. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-9)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964") §703(a)(1), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2(a)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) [Archived](https://web.archive.org/web/20220119024348/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) January 19, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"), "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."
10. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-10)** cf [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization"), [Termination of Employment Convention, 1982](https://en.wikipedia.org/wiki/Termination_of_Employment_Convention,_1982 "Termination of Employment Convention, 1982") setting out general principles on fair reasons for discharge of workers.
11. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-11)** The [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") to the last major statute [Employee Retirement Income Security Act of 1974](https://en.wikipedia.org/wiki/Employee_Retirement_Income_Security_Act_of_1974 "Employee Retirement Income Security Act of 1974"). [C. L. Estlund](https://en.wikipedia.org/wiki/C._L._Estlund "C. L. Estlund"), 'The Ossification of American Labor Law' (2002) [102 *Columbia Law Review* 1527](https://www.jstor.org/stable/1123792) argues that collective labor right "ossified" with the [Labor Management Reporting and Disclosure Act of 1959](https://en.wikipedia.org/wiki/Labor_Management_Reporting_and_Disclosure_Act_of_1959 "Labor Management Reporting and Disclosure Act of 1959"), after which there was a "longstanding political impasse at the national level". E. McGaughey, 'Fascism-Lite in America (or the Social Ideal of Donald Trump)' (2018) [7(1) British Journal of American Legal Studies](https://ssrn.com/abstract=3024584), 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."
12. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-12)** See JV Orth, *Combination and conspiracy: a legal history of trade unionism, 1721–1906* (1992)
13. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-13)** *[R v Journeymen-Taylors of Cambridge](https://en.wikipedia.org/wiki/R_v_Journeymen-Taylors_of_Cambridge "R v Journeymen-Taylors of Cambridge")* (1721) 8 Mod 10, 88 ER 9
14. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-14)** C Tomlins, 'Reconsidering Indentured Servitude: European Migration and the Early American Labor Force, 1600–1775' (2001) [42 Labor History 5](http://www.tandfonline.com/doi/abs/10.1080/00236560123269?journalCode=clah20)
15. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-15)** (1772) [98 ER 499](http://www.commonlii.org/int/cases/EngR/1772/57.pdf)
16. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-16)** AW Blumrosen, 'The Profound Influence in America of Lord Mansfield's Decision in Somerset v Stuart' (2007) [13 *Texas Wesleyan Law Review* 645](http://heinonline.org/HOL/LandingPage?handle=hein.journals/twlr13&div=28&id=&page=)
17. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-17)** [Slave Trade Act 1807](https://en.wikipedia.org/wiki/Slave_Trade_Act_1807 "Slave Trade Act 1807")
18. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-18)** The [Slavery Abolition Act 1833](https://en.wikipedia.org/wiki/Slavery_Abolition_Act_1833 "Slavery Abolition Act 1833") distributed around £20 million, around \$3 billion in 2017 dollars. See the [UCL Legacies of British Slave-ownership](https://www.ucl.ac.uk/lbs/) page.
19. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-19)** [60 US 393](http://www.worldlii.org/us/cases/federal/USSC/1856/9.html) (1857)
20. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-20)** See also [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons"), *[Principles of Labor Legislation](https://en.wikipedia.org/wiki/Principles_of_Labor_Legislation "Principles of Labor Legislation")* (1916) [ch II, 38–40](https://archive.org/stream/cu31924020748095#page/n55/mode/2up/search/cambridge)
21. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-21)** *[Civil Rights Cases](https://en.wikipedia.org/wiki/Civil_Rights_Cases "Civil Rights Cases")*, [109 US 3](http://www.worldlii.org/us/cases/federal/USSC/1883/182.html) (1883)
22. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-22)** S Perlman, *A History of Trade Unionism in the United States* (1922)
23. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-23)** 3 Doc Hist 59 (1806)
24. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-24)** 45 Mass. 111, 4 Metcalf 111 (1842)
25. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-25)** See EE Witte, 'Early American Labor Cases' (1926) [35 Yale Law Journal 829](https://www.jstor.org/stable/789460), employers brought at least three successful claims against their employees before 1863, and fifteen up to 1880 for "conspiracy". See also FB Sayre, 'Criminal Conspiracy' (1922) [35 *Harvard Law Review* 393](https://www.jstor.org/stable/1328648). W.. Holt, 'Labor Conspiracy Cases in the United States, 1805–1842: Bias and Legitimation in Common Law Adjudication' (1984) [22 *Osgoode Hall Law Journal* 591](http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1913&context=ohlj). 'Tortious Interference with Contractual Relations in the Nineteenth Century' (1980) 93 *Harvard Law Review* 1510.
26. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-26)** 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.
27. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-27)** See U.S. Congress, Senate, *[Final Report and Testimony Submitted to Congress by the Commission on Industrial Relations](https://en.wikipedia.org/wiki/Final_Report_and_Testimony_Submitted_to_Congress_by_the_Commission_on_Industrial_Relations "Final Report and Testimony Submitted to Congress by the Commission on Industrial Relations")* (Government Printing Office, 1916) [64th Cong., 1st sess., S. Doc. 415, 2, 1526–1529](http://historymatters.gmu.edu/d/5757/)
28. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-28)** See TW Hazlett, 'The Legislative History of the Sherman Act Re-examined' (1992) [30 Economic Inquiry 263](https://www.proquest.com/docview/1297279202?pq-origsite=gscholar), 266 and H Hovenkamp, 'Labor Conspiracies in American Law, 1880–1930' (1988) [66 *Texas Law Review* 919](http://heinonline.org/HOL/Page?handle=hein.journals/tlr66&div=45&g_sent=1&collection=journals)
29. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-29)** 64 Fed 724 (CC Ill 1894), [158](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_158 "List of United States Supreme Court cases, volume 158") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [564](https://supreme.justia.com/cases/federal/us/158/564/) (1895) imposed an injunction on the striking workers of the Pullman Company, leading to [Eugene Debs](https://en.wikipedia.org/wiki/Eugene_Debs "Eugene Debs") being imprisoned. See the [Documentary by Bernie Sanders](https://www.youtube.com/watch?v=w82pFvUq3o8&t=323s) (1979)
30. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-30)** See also *[Oklahoma v. Coyle](https://en.wikipedia.org/w/index.php?title=Oklahoma_v._Coyle&action=edit&redlink=1 "Oklahoma v. Coyle (page does not exist)")*, 1913 OK CR 42, 8 Okl.Cr. 686, 130 P. 316 per [Henry Marshall Furman](https://en.wikipedia.org/wiki/Henry_Marshall_Furman "Henry Marshall Furman")
31. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-31)** 167 Mass. 92 (1896) See also *[Plant v. Woods](https://en.wikipedia.org/w/index.php?title=Plant_v._Woods&action=edit&redlink=1 "Plant v. Woods (page does not exist)")*, 176 Mass 492, 57 NE 1011 (1900)
32. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-32)** [198](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_198 "List of United States Supreme Court cases, volume 198") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [45](https://supreme.justia.com/cases/federal/us/198/45/) (1905)
33. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-33)** [208](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_208 "List of United States Supreme Court cases, volume 208") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [274](https://supreme.justia.com/cases/federal/us/208/274/) (1908)
34. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-34)** Now 15 USC §17
35. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-35)** On the "science" of management that developed, see [FW Taylor](https://en.wikipedia.org/wiki/FW_Taylor "FW Taylor"), *[The Principles of Scientific Management](https://en.wikipedia.org/wiki/The_Principles_of_Scientific_Management "The Principles of Scientific Management")* ([1911](https://archive.org/stream/principlesofscie00taylrich#page/n5/mode/2up)). Contrast [LD Brandeis](https://en.wikipedia.org/wiki/LD_Brandeis "LD Brandeis"), 'The Fundamental Cause of Industrial Unrest' (1916) vol 8, 7659–7660 from the [US Commission on Industrial Relations](https://en.wikipedia.org/wiki/US_Commission_on_Industrial_Relations "US Commission on Industrial Relations"), Final Report and Testimony ([Government Printing Office 1915](https://archive.org/details/finalreportofcom00unitiala))
36. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-36)** *[Adair v. United States](https://en.wikipedia.org/wiki/Adair_v._United_States "Adair v. United States")* 208 US 161 (1908) on [yellow-dog contracts](https://en.wikipedia.org/wiki/Yellow-dog_contracts "Yellow-dog contracts") being banned in the [Erdman Act of 1898](https://en.wikipedia.org/wiki/Erdman_Act_of_1898 "Erdman Act of 1898") §10 for railroads, not reversed until the [Norris-LaGuardia Act](https://en.wikipedia.org/wiki/Norris-LaGuardia_Act "Norris-LaGuardia Act"). Also *[Coppage v. Kansas](https://en.wikipedia.org/wiki/Coppage_v._Kansas "Coppage v. Kansas")* 236 US 1 (1915) [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J"), Hughes J and Day J dissenting.
37. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-37)** *[Adkins v. Children's Hospital](https://en.wikipedia.org/wiki/Adkins_v._Children%27s_Hospital "Adkins v. Children's Hospital")*, 261 US 525 (1923)
38. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-38)** *[Adams v. Tanner](https://en.wikipedia.org/wiki/Adams_v._Tanner "Adams v. Tanner")*, 244 US 590 (1917)
39. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-39)** *[Duplex Printing Press Co. v. Deering](https://en.wikipedia.org/wiki/Duplex_Printing_Press_Co._v._Deering "Duplex Printing Press Co. v. Deering")*, 254 US 443 (1921)
40. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-40)** *[Hammer v. Dagenhart](https://en.wikipedia.org/wiki/Hammer_v._Dagenhart "Hammer v. Dagenhart")*, 247 US 251 (1918) on the [Keating-Owen Act of 1916](https://en.wikipedia.org/wiki/Keating-Owen_Act_of_1916 "Keating-Owen Act of 1916"). *[Bailey v. Drexel Furniture Co.](https://en.wikipedia.org/wiki/Bailey_v._Drexel_Furniture_Co. "Bailey v. Drexel Furniture Co.")*, 259 US 20 (1922) on federal tax.
41. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-41)** See *[Debs v. United States](https://en.wikipedia.org/wiki/Debs_v._United_States "Debs v. United States")*, 249 US 211 (1919)
42. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-42)** *[State Board of Control v. Buckstegge](https://en.wikipedia.org/w/index.php?title=State_Board_of_Control_v._Buckstegge&action=edit&redlink=1 "State Board of Control v. Buckstegge (page does not exist)")*, 158 Pac 837, 842 (1916) Arizona Supreme Court striking down a new state pension law. *[Railroad Retirement Board v. Alton Railroad Co.](https://en.wikipedia.org/wiki/Railroad_Retirement_Board_v._Alton_Railroad_Co. "Railroad Retirement Board v. Alton Railroad Co.")*, 295 US 330 (1935) striking down a compulsory contributory pension scheme for rail workers.
43. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-43)** See GC Means, 'The Separation of Ownership and Control in American Industry' (1931) [46(1) The Quarterly Journal of Economics 68](https://www.jstor.org/stable/1883922) and [LD Brandeis](https://en.wikipedia.org/wiki/LD_Brandeis "LD Brandeis"), *[Other People's Money and How the Bankers Use It](https://en.wikipedia.org/wiki/Other_People%27s_Money_and_How_the_Bankers_Use_It "Other People's Money and How the Bankers Use It")* (1914)
44. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-44)** See [FD Roosevelt](https://en.wikipedia.org/wiki/FD_Roosevelt "FD Roosevelt"), *Campaign Address on Progressive Government at the Commonwealth Club in San Francisco, California* ([1932](https://en.wikisource.org/wiki/Campaign_Address_on_Progressive_Government_at_the_Commonwealth_Club_in_San_Francisco,_California)) written by [AA Berle](https://en.wikipedia.org/wiki/AA_Berle "AA Berle").
45. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-45)** *[A.L.A. Schechter Poultry Corp. v. United States](https://en.wikipedia.org/wiki/A.L.A._Schechter_Poultry_Corp._v._United_States "A.L.A. Schechter Poultry Corp. v. United States")*, 295 US 495 (1935)
46. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-46)** 300 US 379 (1937)
47. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-47)** See also [Copeland "Anti-kickback" Act of 1934](https://en.wikipedia.org/wiki/Copeland_%22Anti-kickback%22_Act_of_1934 "Copeland \"Anti-kickback\" Act of 1934"), 18 USC §874 and [McNamara–O'Hara Service Contract Act of 1965](https://en.wikipedia.org/wiki/McNamara%E2%80%93O%27Hara_Service_Contract_Act_of_1965 "McNamara–O'Hara Service Contract Act of 1965") wage rates to be paid as prevail in the locality.
48. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-48)** Franklin Delano Roosevelt, *Eleventh State of the Union Address* ([1944](https://en.wikisource.org/wiki/Franklin_Delano_Roosevelt%27s_Eleventh_State_of_the_Union_Address))
49. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto4_49-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto4_49-1) See *[San Diego Building Trades Council v. Garmon](https://en.wikipedia.org/wiki/San_Diego_Building_Trades_Council_v._Garmon "San Diego Building Trades Council v. Garmon")* 359 US 236 (1959) but contrast *[Chamber of Commerce v. Brown](https://en.wikipedia.org/wiki/Chamber_of_Commerce_v._Brown "Chamber of Commerce v. Brown")*, [522 US 60](http://www.worldlii.org/us/cases/federal/USSC/2008/22.html) (2008) where [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") and [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J") dissented.
50. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-50)** *[Brown v. Board of Education of Topeka](https://en.wikipedia.org/wiki/Brown_v._Board_of_Education_of_Topeka "Brown v. Board of Education of Topeka")*, 347 US 483 (1954)
51. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-51)** See *2016 Democratic Party Platform* ([July 21, 2016](https://www.demconvention.com/wp-content/uploads/2016/07/Democratic-Party-Platform-7.21.16-no-lines.pdf) [Archived](https://web.archive.org/web/20161110225904/https://www.demconvention.com/wp-content/uploads/2016/07/Democratic-Party-Platform-7.21.16-no-lines.pdf) November 10, 2016, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"))
52. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-52)** *[NLRB v. Yeshiva University](https://en.wikipedia.org/wiki/NLRB_v._Yeshiva_University "NLRB v. Yeshiva University")*, [444 US 672](http://www.worldlii.org/us/cases/federal/USSC/1980/24.html), (1980), *[NLRB v. Catholic Bishop of Chicago](https://en.wikipedia.org/wiki/NLRB_v._Catholic_Bishop_of_Chicago "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](https://en.wikipedia.org/wiki/Hoffman_Plastic_Compounds,_Inc._v._NLRB "Hoffman Plastic Compounds, Inc. v. NLRB")*, 535 US 137 (2002) 5 to 4 under the NLRA of 1935
53. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-53)** *[Brown v. Hotel and Restaurant Employees](https://en.wikipedia.org/wiki/Brown_v._Hotel_and_Restaurant_Employees "Brown v. Hotel and Restaurant Employees")*, 468 US 491 (1984) 5 to 4 on the NLRA of 1935
54. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-54)** *[Mertens v. Hewitt Associates](https://en.wikipedia.org/wiki/Mertens_v._Hewitt_Associates "Mertens v. Hewitt Associates")*, 508 US 248 (1993) 5 to 4 under [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974").
55. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-55)** e.g. the [Dunlop Report of 1994](https://en.wikipedia.org/wiki/Dunlop_Report_of_1994 "Dunlop Report of 1994"), [Workplace Democracy Act](https://en.wikipedia.org/wiki/Workplace_Democracy_Act "Workplace Democracy Act") of 1999, [Employee Free Choice Act](https://en.wikipedia.org/wiki/Employee_Free_Choice_Act "Employee Free Choice Act"), [Paycheck Fairness Act](https://en.wikipedia.org/wiki/Paycheck_Fairness_Act "Paycheck Fairness Act"), [Equality Act of 2015](https://en.wikipedia.org/wiki/Equality_Act_of_2015 "Equality Act of 2015")
56. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-56)** See Z. Adams, L. Bishop and S. Deakin, *CBR Labour Regulation Index (Dataset of 117 Countries)* (Cambridge, [Centre for Business Research](https://en.wikipedia.org/wiki/Centre_for_Business_Research "Centre for Business Research") [2016](https://www.repository.cam.ac.uk/bitstream/handle/1810/256566/cbr-lri-117-countries-codebook-and-methodology.pdf?sequence=1&isAllowed=y)) 761, United States of America
57. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-g13673_57-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-g13673_57-1) [Guidance for Executive Order 13673, "Fair Pay and Safe Workplaces"; Final Guidance](https://www.osha.gov/laws-regs/federalregister/2016-08-25-0), accessed 10 October 2022
58. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-e13673_58-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-e13673_58-1) [Executive Order 13673](https://en.wikisource.org/wiki/Executive_Order_13673), accessed 6 November 2022
59. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-59)** [Executive Order 13782](https://en.wikisource.org/wiki/Executive_Order_13782), accessed 6 November 2022
60. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-60)** [UDHR 1948](https://en.wikipedia.org/wiki/UDHR_1948 "UDHR 1948") [art 17](https://en.wikisource.org/wiki/Universal_Declaration_of_Human_Rights)
61. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-61)** See *[Lochner v. New York](https://en.wikipedia.org/wiki/Lochner_v._New_York "Lochner v. New York")* [198 US 45](http://www.worldlii.org/us/cases/federal/USSC/1905/100.html) (1905)
62. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-62)** [322](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_322 "List of United States Supreme Court cases, volume 322") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [111](https://supreme.justia.com/cases/federal/us/322/111/) (1944)
63. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-63)** [331](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_331 "List of United States Supreme Court cases, volume 331") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [704](https://supreme.justia.com/cases/federal/us/331/704/) (1947)
64. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-64)** See also *[Goldberg v. Whitaker House Cooperative, Inc](https://en.wikipedia.org/w/index.php?title=Goldberg_v._Whitaker_House_Cooperative,_Inc&action=edit&redlink=1 "Goldberg v. Whitaker House Cooperative, Inc (page does not exist)")*, [366 US 28](http://www.worldlii.org/us/cases/federal/USSC/1961/71.html) (1961), on homeworkers making 'knitted, crocheted, and embroidered goods of all kinds.'
65. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-65)** *[Nationwide Mutual Insurance Co. v. Darden](https://en.wikipedia.org/wiki/Nationwide_Mutual_Insurance_Co._v._Darden "Nationwide Mutual Insurance Co. v. Darden")*, [503](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_503 "List of United States Supreme Court cases, volume 503") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [318](https://supreme.justia.com/cases/federal/us/503/318/) (1992) employee under [ERISA](https://en.wikipedia.org/wiki/ERISA "ERISA"), rejecting two-prongs of the Fourth Circuit's substitute test, based on expectations and reliance.
66. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-66)** [322](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_322 "List of United States Supreme Court cases, volume 322") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [111](https://supreme.justia.com/cases/federal/us/322/111/) (1944), confirmed in *[United States v. Silk](https://en.wikipedia.org/wiki/United_States_v._Silk "United States v. Silk")*, [331](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_331 "List of United States Supreme Court cases, volume 331") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [704](https://supreme.justia.com/cases/federal/us/331/704/) (1947) and *[Nationwide Mutual Insurance Co. v. Darden](https://en.wikipedia.org/wiki/Nationwide_Mutual_Insurance_Co._v._Darden "Nationwide Mutual Insurance Co. v. Darden")*, [503](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_503 "List of United States Supreme Court cases, volume 503") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [318](https://supreme.justia.com/cases/federal/us/503/318/) (1992)
67. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-67)** [Restatement of the Law of Agency, Second](https://en.wikipedia.org/wiki/Restatement_of_the_Law_of_Agency,_Second "Restatement of the Law of Agency, Second") §220 and *[Community for Creative Non-Violence v. Reid](https://en.wikipedia.org/wiki/Community_for_Creative_Non-Violence_v._Reid "Community for Creative Non-Violence v. Reid")*, 490 US 730 (1989)
68. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-68)** [444](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_444 "List of United States Supreme Court cases, volume 444") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [672](https://supreme.justia.com/cases/federal/us/444/672/) (1980)
69. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-69)** [532](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_532 "List of United States Supreme Court cases, volume 532") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [706](https://supreme.justia.com/cases/federal/us/532/706/) (2001)
70. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-70)** cf *[Clackamas Gastroenterology Associates v. Wells](https://en.wikipedia.org/w/index.php?title=Clackamas_Gastroenterology_Associates_v._Wells&action=edit&redlink=1 "Clackamas Gastroenterology Associates v. Wells (page does not exist)")*, [538](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_538 "List of United States Supreme Court cases, volume 538") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [440](https://supreme.justia.com/cases/federal/us/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](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990"). [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J"), joined by [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") dissenting on reasoning, held it was clear that they were.
71. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-71)** [567 US \_\_](https://www.law.cornell.edu/supremecourt/text/11-204) (2012)
72. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-72)** [350 S.E.2d 83](https://web.archive.org/web/20191111222802/https://casetext.com/case/lemmerman-v-williams-oil-co) (1986)
73. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-73)** [535](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_535 "List of United States Supreme Court cases, volume 535") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [137](https://supreme.justia.com/cases/federal/us/535/137/) (2002)
74. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-74)** See [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization"), [Freedom of Association and Protection of the Right to Organise Convention, 1948](https://en.wikipedia.org/wiki/Freedom_of_Association_and_Protection_of_the_Right_to_Organise_Convention,_1948 "Freedom of Association and Protection of the Right to Organise Convention, 1948") [C087](http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312232) and [Right to Organize and Collective Bargaining Convention, 1949](https://en.wikipedia.org/wiki/Right_to_Organize_and_Collective_Bargaining_Convention,_1949 "Right to Organize and Collective Bargaining Convention, 1949") [C098](http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312243:NO)
75. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-75)**
Hern, Alex (September 11, 2015). ["Uber driver declared employee as the company loses another ruling"](https://www.theguardian.com/technology/2015/sep/11/uber-driver-employee-ruling). *[The Guardian](https://en.wikipedia.org/wiki/The_Guardian "The Guardian")*.
76. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-76)** [413 F.2d 310](http://www.worldlii.org/us/cases/federal/USCA5/1969/758.html) (1969)
77. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-77)** See also, *[Zheng v. Liberty Apparel Co](https://en.wikipedia.org/w/index.php?title=Zheng_v._Liberty_Apparel_Co&action=edit&redlink=1 "Zheng v. Liberty Apparel Co (page does not exist)")*, 335 F3d 61 (2003) Second Circuit, Cabranes J finding joint employment.
78. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-78)** [976 F.2d 805](http://www.worldlii.org/us/cases/federal/USCA2/1992/908.html) (1992)
79. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-79)** *[Advance Electric](https://en.wikipedia.org/w/index.php?title=Advance_Electric&action=edit&redlink=1 "Advance Electric (page does not exist)")*, 268 NLRB 1001 (1984)
80. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-80)** [425 US 800](http://www.worldlii.org/us/cases/federal/USSC/1976/88.html) (1976)
81. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-81)** *[Local No International Union of Operating Engineers v. National Labor Relations Board](https://en.wikipedia.org/w/index.php?title=Local_No_International_Union_of_Operating_Engineers_v._National_Labor_Relations_Board&action=edit&redlink=1 "Local No International Union of Operating Engineers v. National Labor Relations Board (page does not exist)")*, [518 F.2d 1040](http://www.worldlii.org/us/cases/federal/USCADC/1975/366.html) (1975)
82. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-82)** e.g. *[Castillo v. Case Farms of Ohio](https://en.wikipedia.org/wiki/Castillo_v._Case_Farms_of_Ohio "Castillo v. Case Farms of Ohio")*, 96 F Supp. 2d 578 (1999) an employer who used an [employment agency](https://en.wikipedia.org/wiki/Employment_agency "Employment agency") called "American Temp Corps", was responsible for how [migrant farm workers](https://en.wikipedia.org/wiki/Migrant_farm_workers "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](https://en.wikipedia.org/wiki/Migrant_and_Seasonal_Agricultural_Workers_Protection_Act_of_1983 "Migrant and Seasonal Agricultural Workers Protection Act of 1983").
83. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-83)** If there is no contract (written, oral, or by conduct) a *[quantum meruit](https://en.wikipedia.org/wiki/Quantum_meruit "Quantum meruit")* claim for [restitution](https://en.wikipedia.org/wiki/Restitution "Restitution") can be available.
84. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-84)** See [F Kessler](https://en.wikipedia.org/wiki/F_Kessler "F Kessler"), 'Contracts of Adhesion—Some Thoughts About Freedom of Contract' (1943) [43(5) *Columbia Law Review* 629](https://www.jstor.org/stable/1117230)
85. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-85)** [National Labor Relations Act 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_1935 "National Labor Relations Act 1935") §1, [29 USC §151](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section151&num=0&edition=prelim) [Archived](https://web.archive.org/web/20210416174806/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section151&num=0&edition=prelim) April 16, 2021, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"), "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."
86. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-86)** [Fair Labor Standards Act 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_1938 "Fair Labor Standards Act 1938"), [29 USC §202](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section202&num=0&edition=prelim)
87. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-87)** e.g. *[Gade v. National Solid Wastes Management Association](https://en.wikipedia.org/wiki/Gade_v._National_Solid_Wastes_Management_Association "Gade v. National Solid Wastes Management Association")*, [505 US 88](http://www.worldlii.org/us/cases/federal/USSC/1992/86.html) (1992) holding 5 to 4 that [OSHA 1970](https://en.wikipedia.org/wiki/OSHA_1970 "OSHA 1970") preempted [Illinois](https://en.wikipedia.org/wiki/Illinois "Illinois") state law that improved training and handling hazardous waste materials.
88. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-88)** e.g. *[Ingersoll-Rand Co. v. McClendon](https://en.wikipedia.org/wiki/Ingersoll-Rand_Co._v._McClendon "Ingersoll-Rand Co. v. McClendon")*, [498 US 133](http://www.worldlii.org/us/cases/federal/USSC/1990/159.html) (1990) holding 6 to 3 that [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974") precluded a [Texas](https://en.wikipedia.org/wiki/Texas "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.
89. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-89)** See generally [B. I. Sachs](https://en.wikipedia.org/wiki/B._I._Sachs "B. I. Sachs"), 'Despite Preemption: Making Labor Law in Cities and States' (2011) [124 *Harvard Law Review* 1153](https://ssrn.com/abstract=1788911)
90. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-90)** cf *[New State Ice Co. v. Liebmann](https://en.wikipedia.org/wiki/New_State_Ice_Co._v._Liebmann "New State Ice Co. v. Liebmann")*, 285 US 262 (1932) per [Brandeis J](https://en.wikipedia.org/wiki/Brandeis_J "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."
91. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-91)** *[JI Case Co v. National Labor Relations Board](https://en.wikipedia.org/wiki/JI_Case_Co_v._National_Labor_Relations_Board "JI Case Co v. National Labor Relations Board")* [321 US 322](http://www.worldlii.org/us/cases/federal/USSC/1944/39.html) (1944)
92. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-92)** [321 US 322](http://www.worldlii.org/us/cases/federal/USSC/1944/39.html) (1944)
93. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-93)** See *[McLain v. Great American Insurance Co](https://en.wikipedia.org/w/index.php?title=McLain_v._Great_American_Insurance_Co&action=edit&redlink=1 "McLain v. Great American Insurance Co (page does not exist)")*, 208 Cal. App. 3d 1476 (1989) holding the [parol evidence rule](https://en.wikipedia.org/wiki/Parol_evidence_rule "Parol evidence rule") will rarely apply to employment.
94. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-94)** 662 A2d 89 (1995)
95. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-95)** e.g. *[Demasse v. ITT Corp](https://en.wikipedia.org/w/index.php?title=Demasse_v._ITT_Corp&action=edit&redlink=1 "Demasse v. ITT Corp (page does not exist)")*, 984 P2d 1138 (1999) in the [Arizona Supreme Court](https://en.wikipedia.org/wiki/Arizona_Supreme_Court "Arizona Supreme Court")
96. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-96)** [999 P2d 71](https://scholar.google.com/scholar_case?q=Asmus+v+Pacific+Bell&hl=en&as_sdt=2006&case=5124554271174185010&scilh=0) (2000)
97. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-97)** See *[Kirke La Shelle Company v. The Paul Armstrong Company et al](https://en.wikipedia.org/w/index.php?title=Kirke_La_Shelle_Company_v._The_Paul_Armstrong_Company_et_al&action=edit&redlink=1 "Kirke La Shelle Company v. The Paul Armstrong Company et al (page does not exist)")* 263 NY 79 (1933) and see [Restatement (Second) of Contracts](https://en.wikipedia.org/wiki/Restatement_\(Second\)_of_Contracts "Restatement (Second) of Contracts") §205
98. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-98)** *[Stark v. Circle K Corp](https://en.wikipedia.org/w/index.php?title=Stark_v._Circle_K_Corp&action=edit&redlink=1 "Stark v. Circle K Corp (page does not exist)")*, 230 Mont 468, [751 P2d 162](https://web.archive.org/web/20160820165514/https://casetext.com/case/stark-v-circle-k-corporation) (1988)
99. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-99)** See *[Foley v. Interactive Data Corp](https://en.wikipedia.org/w/index.php?title=Foley_v._Interactive_Data_Corp&action=edit&redlink=1 "Foley v. Interactive Data Corp (page does not exist)")*, [765 P2d 373](http://scocal.stanford.edu/opinion/foley-v-interactive-data-corp-28525) (1988)
100. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-100)** This is also referred to as "mutual trust and confidence". See *[Eastwood v. Magnox Electric plc](https://en.wikipedia.org/w/index.php?title=Eastwood_v._Magnox_Electric_plc&action=edit&redlink=1 "Eastwood v. Magnox Electric plc (page does not exist)")* \[2004\] [UKHL 35](http://www.bailii.org/uk/cases/UKHL/2004/35.html), per Lord Steyn
101. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-101)** See *[Wilson v. Racher](https://en.wikipedia.org/w/index.php?title=Wilson_v._Racher&action=edit&redlink=1 "Wilson v. Racher (page does not exist)")* \[1974\] ICR 428
102. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-102)** *[Johnson v. Unisys Limited](https://en.wikipedia.org/w/index.php?title=Johnson_v._Unisys_Limited&action=edit&redlink=1 "Johnson v. Unisys Limited (page does not exist)")* \[2001\] [UKHL 13](http://www.bailii.org/uk/cases/UKHL/2001/13.html)
103. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-103)** *[Bhasin v. Hrynew](https://en.wikipedia.org/wiki/Bhasin_v._Hrynew "Bhasin v. Hrynew")* \[2014\] [SCR 494](http://www.canlii.org/en/ca/scc/doc/2014/2014scc71/2014scc71.html)
104. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-104)** [Bürgerliches Gesetzbuch](https://en.wikipedia.org/wiki/B%C3%BCrgerliches_Gesetzbuch "Bürgerliches Gesetzbuch") [§138](http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0417). See also [Italian Constitution](https://en.wikipedia.org/wiki/Italian_Constitution "Italian Constitution"), art 36
105. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-105)** e.g. *[Alexander v. Gardner-Denver Co.](https://en.wikipedia.org/wiki/Alexander_v._Gardner-Denver_Co. "Alexander v. Gardner-Denver Co.")*, [415](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_415 "List of United States Supreme Court cases, volume 415") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [36](https://supreme.justia.com/cases/federal/us/415/36/) (1974) state policy favoring arbitration, but arbitrator decision can be reviewed de novo on employment rights.
106. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-106)** [556](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_556 "List of United States Supreme Court cases, volume 556") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [247](https://supreme.justia.com/cases/federal/us/556/247/) (2009)
107. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-107)** See also *[AT\&T Mobility LLC v. Concepcion](https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepcion "AT&T Mobility LLC v. Concepcion")*, [563](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_563 "List of United States Supreme Court cases, volume 563") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [333](https://supreme.justia.com/cases/federal/us/563/333/) (2011) 5 to 4, binding arbitration can be imposed in class action cases for employment and consumer rights
108. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-108)** On economic and political theory, see [J. S. Mill](https://en.wikipedia.org/wiki/J._S._Mill "J. S. Mill"), *[Principles of Political Economy](https://en.wikipedia.org/wiki/Principles_of_Political_Economy "Principles of Political Economy")* (1848) [Book V, ch XI, §§9–11](http://oll.libertyfund.org/titles/101#Mill_0199_1672) and generally *[Shelley v. Kraemer](https://en.wikipedia.org/wiki/Shelley_v._Kraemer "Shelley v. Kraemer")*, [334 US 1](http://www.worldlii.org/us/cases/federal/USSC/1948/63.html) (1948)
109. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-109)** *Massachusetts Bay Colony Records* (1641) vol I, 223. See also [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons"), *History of Labor in the United States* (Macmillan 1918) [vol I, ch II, 50](https://archive.org/stream/historyoflabouri01commuoft#page/50/mode/2up)
110. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-110)** *[Adkins v. Children's Hospital](https://en.wikipedia.org/wiki/Adkins_v._Children%27s_Hospital "Adkins v. Children's Hospital")*, \[www.worldlii.org/us/cases/federal/USSC/1923/78.html 261 US 525\] (1923) per [Taft CJ](https://en.wikipedia.org/wiki/Taft_CJ "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://en.wikipedia.org/w/index.php?title=Murphy_v._Sardell&action=edit&redlink=1 "Murphy v. Sardell (page does not exist)")*, [269 US 530](https://web.archive.org/web/20160821095450/https://casetext.com/case/murphy-v-sardell) (1925) wage laws for young people struck down, [Brandeis J](https://en.wikipedia.org/wiki/Brandeis_J "Brandeis J") dissenting and [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J") objecting.
111. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-CRS-2023_111-0)**
[Congressional Research Service](https://en.wikipedia.org/wiki/Congressional_Research_Service "Congressional Research Service") (March 2, 2023). ["State Minimum Wages: An Overview"](https://crsreports.congress.gov/product/pdf/R/R43792).
Chart on page 3.
112. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-FRED-graph_112-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-FRED-graph_112-1) [FRED Graph](https://fred.stlouisfed.org/graph/?graph_id=529071). Using [U.S. Department of Labor](https://en.wikipedia.org/wiki/U.S._Department_of_Labor "U.S. Department of Labor") data. [Federal Minimum Hourly Wage for Nonfarm Workers for the United States](https://fred.stlouisfed.org/series/FEDMINNFRWG). [Inflation adjusted](https://en.wikipedia.org/wiki/Inflation_adjusted "Inflation adjusted") (by [FRED](https://en.wikipedia.org/wiki/Federal_Reserve_Economic_Data "Federal Reserve Economic Data")) via the [Consumer Price Index for All Urban Consumers: All Items in U.S. City Average (CPIAUCSL)](https://fred.stlouisfed.org/series/CPIAUCSL). Run cursor over graph to see nominal and real minimum wage by month.
113. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-113)** [300 US 379](http://www.worldlii.org/us/cases/federal/USSC/1937/73.html) (1937)
114. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-114)** *[United States v. Darby Lumber Co](https://en.wikipedia.org/wiki/United_States_v._Darby_Lumber_Co "United States v. Darby Lumber Co")*, [312 US 100](http://www.worldlii.org/us/cases/federal/USSC/1941/49.html) (1941) dismissed a challenge to the [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938") being constitutional.
115. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-115)** [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), [29 USC §202(a)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section202&num=0&edition=prelim)
116. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto5_116-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto5_116-1)
["\[USC02\] 29 USC 207: Maximum hours"](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section207&num=0&edition=prelim). *uscode.house.gov*.
117. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto_117-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto_117-1) [29 USC §218(a)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section218&num=0&edition=prelim).
118. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-118)** See the [California Labor Code](https://en.wikipedia.org/wiki/California_Labor_Code "California Labor Code") [§1182.12](http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=LAB&division=2.&title=&part=4.&chapter=1.&article=), requiring a \$10 per hour wage from 2016. [New York Consolidated Laws](https://en.wikipedia.org/wiki/New_York_Consolidated_Laws "New York Consolidated Laws") [LAB art 19](http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO:), 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](https://en.wikipedia.org/w/index.php?title=New_Mexicans_for_Free_Enterprise_v._Santa_Fe&action=edit&redlink=1 "New Mexicans for Free Enterprise v. Santa Fe (page does not exist)")*, 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.
119. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-119)** [527 US 706](http://www.worldlii.org/us/cases/federal/USSC/1999/62.html) (1999)
120. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-120)** Souter J, [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J"), [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J"), [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") dissented.
121. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-121)** This brought the effective position back to *[National League of Cities v. Usery](https://en.wikipedia.org/wiki/National_League_of_Cities_v._Usery "National League of Cities v. Usery")*, [426](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_426 "List of United States Supreme Court cases, volume 426") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [833](https://supreme.justia.com/cases/federal/us/426/833/) (1976) where 5 judges to 4, held the [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "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](https://en.wikipedia.org/w/index.php?title=Garcia_v._San_Antonio_Metro_Transit_Authority&action=edit&redlink=1 "Garcia v. San Antonio Metro Transit Authority (page does not exist)")*, [469](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_469 "List of United States Supreme Court cases, volume 469") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [528](https://supreme.justia.com/cases/federal/us/469/528/) (1985) 5 judges to 4 upheld extension of the [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "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.
122. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-122)** See today [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), [29 USC §203(r)–(s)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section203&num=0&edition=prelim). Previously, *[Walling v. Jacksonville Paper Co.](https://en.wikipedia.org/w/index.php?title=Walling_v._Jacksonville_Paper_Co.&action=edit&redlink=1 "Walling v. Jacksonville Paper Co. (page does not exist)")*, [317 US 564](http://www.worldlii.org/us/cases/federal/USSC/1943/25.html) (1943). See also *[AB Kirschbaum Co v. Walling](https://en.wikipedia.org/w/index.php?title=AB_Kirschbaum_Co_v._Walling&action=edit&redlink=1 "AB Kirschbaum Co v. Walling (page does not exist)")* 316 US 517 (1942), workers building for firms that would not do interstate commerce were not covered, and *[Borden Co v. Borella](https://en.wikipedia.org/w/index.php?title=Borden_Co_v._Borella&action=edit&redlink=1 "Borden Co v. Borella (page does not exist)")* 325 US 679 (1945)
123. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-123)** [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), [29 USC §203(s)(2)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section203&num=0&edition=prelim)
124. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-124)** [29 USC §213](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section213&num=0&edition=prelim) n.b. the statute does not make clear what justifications there are for any exemptions.
125. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-125)** [519 US 452](http://www.worldlii.org/us/cases/federal/USSC/1997/13.html) (1997)
126. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-126)** See *[Adams v. United States](https://en.wikipedia.org/wiki/Adams_v._United_States "Adams v. United States")*, 44 Fed Claims 772 (1999) and *[Erichs v. Venator Group](https://en.wikipedia.org/w/index.php?title=Erichs_v._Venator_Group&action=edit&redlink=1 "Erichs v. Venator Group (page does not exist)")*, Inc 128 F Supp 2d 1255 (ND Cal 2001)
127. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-127)** [551](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_551 "List of United States Supreme Court cases, volume 551") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [158](https://supreme.justia.com/cases/federal/us/551/158/) (2007)
128. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-128)** Under 29 USC §211(c) employers must keep payroll records for evidence of working time.
129. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-129)** *[Jewell Ridge Coal Corp. v. United Mine Workers of America](https://en.wikipedia.org/wiki/Jewell_Ridge_Coal_Corp._v._United_Mine_Workers_of_America "Jewell Ridge Coal Corp. v. United Mine Workers of America")* [325 US 161](http://www.worldlii.org/us/cases/federal/USSC/1945/88.html) (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](https://en.wikipedia.org/wiki/Tennessee_Coal,_Iron_%26_Railroad_Co._v._Muscoda_Local_No._123 "Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123")*, [321 US 590](http://www.worldlii.org/us/cases/federal/USSC/1944/97.html) (1944) travel to work, once underground, was working time.
130. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-130)** [328 US 680](http://www.worldlii.org/us/cases/federal/USSC/1946/110.html) (1946)
131. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-131)** [328 US 680](http://www.worldlii.org/us/cases/federal/USSC/1946/110.html) (1946) per [Murphy J](https://en.wikipedia.org/wiki/Murphy_J "Murphy J"). See also *[Morillion v. Royal Packing Co](https://en.wikipedia.org/w/index.php?title=Morillion_v._Royal_Packing_Co&action=edit&redlink=1 "Morillion v. Royal Packing Co (page does not exist)")*, [22 Cal 4th 575](http://law.justia.com/cases/california/supreme-court/4th/22/575.html) (2000) the [California Supreme Court](https://en.wikipedia.org/wiki/California_Supreme_Court "California Supreme Court") held an employer must pay for hours traveling on company vehicles.
132. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-132)** [323](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_323 "List of United States Supreme Court cases, volume 323") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [126](https://supreme.justia.com/cases/federal/us/323/126/) (1944)
133. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-133)** See *[Martin v. Onion Turnpike Commission](https://en.wikipedia.org/w/index.php?title=Martin_v._Onion_Turnpike_Commission&action=edit&redlink=1 "Martin v. Onion Turnpike Commission (page does not exist)")* 968 F2d 606 (6th 1992) See also *[Merrill v. Exxon Corp](https://en.wikipedia.org/w/index.php?title=Merrill_v._Exxon_Corp&action=edit&redlink=1 "Merrill v. Exxon Corp (page does not exist)")*, 387 FSupp 458 (SD Tex 1974) while pep meetings are working, but Department of Labor approved standard apprenticeship mandatory training was not working time.
134. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-134)** *[Steiner v. Mitchell](https://en.wikipedia.org/w/index.php?title=Steiner_v._Mitchell&action=edit&redlink=1 "Steiner v. Mitchell (page does not exist)")* 350 US 247 (1956)
135. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-135)** *[IBP, Inc. v. Alvarez](https://en.wikipedia.org/wiki/IBP,_Inc._v._Alvarez "IBP, Inc. v. Alvarez")*, 546 US 21 (2005) [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J") for a unanimous court.
136. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-136)** 323 US 37 (1944) [Murphy J](https://en.wikipedia.org/wiki/Murphy_J "Murphy J") holding that higher afternoon wages did not count as "premium" pay that could be ignored.
137. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-137)** [529 US 576](http://www.worldlii.org/us/cases/federal/USSC/2000/38.html) (2000)
138. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-138)** See also *[Skidmore v. Swift & Co](https://en.wikipedia.org/wiki/Skidmore_v._Swift_%26_Co "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.
139. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-139)** 15 USC §1672
140. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-140)** 29 USC §254. See *[McLaughlin v. Richland Shoe Co](https://en.wikipedia.org/w/index.php?title=McLaughlin_v._Richland_Shoe_Co&action=edit&redlink=1 "McLaughlin v. Richland Shoe Co (page does not exist)")*, 468 US 128 (1988) Stevens J, 'willful' means reckless disregard for whether conduct was forbidden by the state. [Brennan J](https://en.wikipedia.org/wiki/Brennan_J "Brennan J") and [Blackmun J](https://en.wikipedia.org/wiki/Blackmun_J "Blackmun J") dissented.
141. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-141)** See R Ray, M Sanes and J Schmitt, 'No Vacation Nation Revisited' (Washington DC 2013) [Center for Economic and Policy Research](http://cepr.net/documents/publications/no-vacation-update-2013-05.pdf) 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".
142. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-142)** See the [Organisation for Economic Co-operation and Development](https://en.wikipedia.org/wiki/Organisation_for_Economic_Co-operation_and_Development "Organisation for Economic Co-operation and Development"), '[Average annual hours actually worked per worker](https://stats.oecd.org/Index.aspx?DataSetCode=ANHRS)' (Retrieved August 9, 2016) showing 1790 hours per year in the US, 1674 hours in the UK, and 1371 in Germany. OECD, 'Society at a glance 2009: OECD social indicators' ([2009](http://www.oecd-ilibrary.org/docserver/download/8109011e.pdf?expires=1470785242&id=id&accname=guest&checksum=B69779C632870268573116DC6B5D56A1)\[*[permanent dead link](https://en.wikipedia.org/wiki/Wikipedia:Link_rot "Wikipedia:Link rot")*\]) 39, Figure 2.17
143. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-143)** See [5 USC §6303](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section6303&num=0&edition=prelim). These are (1) New Year's Day (2) [Martin Luther King Jr.](https://en.wikipedia.org/wiki/Martin_Luther_King_Jr. "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](https://en.wikipedia.org/wiki/Thanksgiving_Day "Thanksgiving Day") (10) Christmas Day.
144. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-144)** [Holidays with Pay Convention 1970](https://en.wikipedia.org/wiki/Holidays_with_Pay_Convention_1970 "Holidays with Pay Convention 1970") (no 132)
145. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-145)** See [HB 2238](http://apps.leg.wa.gov/billinfo/summary.aspx?bill=2238&year=2013)
146. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-146)** See the [Working Time Directive 2003](https://en.wikipedia.org/wiki/Working_Time_Directive_2003 "Working Time Directive 2003") art 7
147. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-147)** [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), [29 USC §213](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section213&num=0&edition=prelim)
148. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-148)** See FT de Vyver, 'The Five-Day Week' (1930) 33(2) Current History 223. Rybczynski, *Waiting for the Weekend* (1991) 142
149. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-149)** [198 US 45](http://www.worldlii.org/us/cases/federal/USSC/1905/100.html) (1905)
150. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-150)**
Robertson, James L. (2019). *Heroes, Rascals, and the Law: Constitutional encounters in Mississippi History*. Jackson, Ms: University Press of Mississippi. [ISBN](https://en.wikipedia.org/wiki/ISBN_\(identifier\) "ISBN (identifier)")
[9781496819949](https://en.wikipedia.org/wiki/Special:BookSources/9781496819949 "Special:BookSources/9781496819949")
. p. 258.
151. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-151)** Robertson, pp. 262 ff.
152. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-152)** *[West Coast Hotel Co. v. Parrish](https://en.wikipedia.org/wiki/West_Coast_Hotel_Co._v._Parrish "West Coast Hotel Co. v. Parrish")*, 300 US 379 (1937)
153. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-153)** [California](https://en.wikipedia.org/wiki/California "California"), [New Jersey](https://en.wikipedia.org/wiki/New_Jersey "New Jersey"), [Rhode Island](https://en.wikipedia.org/wiki/Rhode_Island "Rhode Island") and [New York](https://en.wikipedia.org/wiki/New_York_\(state\) "New York (state)")
154. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-154)** On the economic effects of rules, see J Frieson, 'The Response of Wages to Protective Labor Legislation: Evidence from Canada' (1996) [49(2) ILR Review 243](http://ilr.sagepub.com/content/49/2/243.short) (showing [empirical evidence](https://en.wikipedia.org/wiki/Empirical_evidence "Empirical evidence") that wages do not fall in unionized workplaces where workers have sufficient [bargaining power](https://en.wikipedia.org/wiki/Bargaining_power "Bargaining power")). Contrast [L Summers](https://en.wikipedia.org/wiki/L_Summers "L Summers"), 'Some simple economics of mandated benefits' (1989) [79(2) American Economic Review 177](https://www.jstor.org/stable/1827753) ([theorizing](https://en.wikipedia.org/wiki/Theory "Theory") (without evidence) that pay will fall to compensate for the cost of any mandated benefit, such as family and medical leave).
155. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-155)** 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."
156. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-156)** 29 USC §2512(a)(2) and on adoption, see *[Kelley v. Crosfield Catalysts](https://en.wikipedia.org/w/index.php?title=Kelley_v._Crosfield_Catalysts&action=edit&redlink=1 "Kelley v. Crosfield Catalysts (page does not exist)")* 135 F2d 1202 (7th Circuit 1998) The same rules for federal employees were codified in 5 USC §§6381–6387.
157. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-157)** 29 USC §2612(a)(2) and 29 USC §2612(f) mothers and fathers must share time if they work for the same employer.
158. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-158)** 29 USC §2612(e)
159. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-159)** 29 USC §2612(e)(2)
160. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-160)** 29 USC §2614(c). If an employee quits, the employer is enabled to recoup costs.
161. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-161)** [535 US 81](http://www.worldlii.org/us/cases/federal/USSC/2002/557.html) (2002)
162. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-162)** 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.
163. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-163)** 29 USC §2617, and see *[Frizzell v. Southwest Motor Freight](https://en.wikipedia.org/w/index.php?title=Frizzell_v._Southwest_Motor_Freight&action=edit&redlink=1 "Frizzell v. Southwest Motor Freight (page does not exist)")*, 154 F3d 641 (6th Circuit 1998)
164. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-164)** 29 USC §2617(a)(1)(A)(iii)
165. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-165)** See *[Moore v. Payless Shoe Source](https://en.wikipedia.org/w/index.php?title=Moore_v._Payless_Shoe_Source&action=edit&redlink=1 "Moore v. Payless Shoe Source (page does not exist)")* (8th Circuit 1998)
166. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-166)** e.g. D. Paquette, 'The enormous ambition of Hillary Clinton's child-care plan' (May 12, 2016) [The Washington Post](https://www.washingtonpost.com/news/wonk/wp/2016/05/12/the-enormous-ambition-of-hillary-clintons-child-care-plan/)
167. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-167)** 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)
168. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-168)** See [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons") and J. B. Andrews, *[Principles of Labor Legislation](https://en.wikipedia.org/wiki/Principles_of_Labor_Legislation "Principles of Labor Legislation")* (1920) [423–438](https://archive.org/stream/principlesoflabo00commrich#page/422/mode/2up)
169. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-169)** See [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") ch 7
170. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-170)** See L Conant, *A Critical Analysis of Industrial Pension Systems* (1922) and M. W. Latimer, *Trade Union Pension Systems* (1932)
171. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-171)** See [LMRA 1947](https://en.wikipedia.org/wiki/LMRA_1947 "LMRA 1947"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§186(c)(5)(B)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section186&num=0&edition=prelim)
172. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-172)** This followed Carnegie's attendance the [Commission on Industrial Relations](https://en.wikipedia.org/wiki/Commission_on_Industrial_Relations "Commission on Industrial Relations") in 1916 to explain labor unrest. See W. Greenough, *It's My Retirement Money – Take Good Care of It: The TIAA-CREF Story* (Irwin 1990) 11–37, and E. McGaughey, 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019) [42 *Seattle University Law Review* 697](https://digitalcommons.law.seattleu.edu/sulr/vol42/iss2/18/)
173. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-173)** [26 USC](https://en.wikipedia.org/wiki/26_USC "26 USC") [§401(k)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title26-section401&num=0&edition=prelim)
174. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-174)** On the theory behind [automatic enrolment](https://en.wikipedia.org/wiki/Automatic_enrolment "Automatic enrolment"), see [R Thaler](https://en.wikipedia.org/wiki/Richard_Thaler "Richard Thaler") and S Benartzi, 'Save more tomorrow: Using Behavioral Economics to Increase Employee Savings' (2004) 112(1) Journal of Political Economy 164 and E McGaughey, 'Behavioural economics and labour law' (2014) [LSE Legal Studies Working Paper No. 20/2014](https://ssrn.com/abstract=2460685)
175. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-175)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), 29 USC §1003(a). This could include any [Voluntary Employee Beneficiary Association](https://en.wikipedia.org/wiki/Voluntary_Employee_Beneficiary_Association "Voluntary Employee Beneficiary Association"), such as for child care cover, sick leave, fringe benefits or extra unemployment insurance.
176. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-176)** [680 F2d 263](http://www.worldlii.org/us/cases/federal/USCA2/1982/447.html) (1982)
177. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-177)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §§1022–1133
178. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-178)** *[Rhorer v. Raytheon Engineers and Constructors, Inc](https://en.wikipedia.org/w/index.php?title=Rhorer_v._Raytheon_Engineers_and_Constructors,_Inc&action=edit&redlink=1 "Rhorer v. Raytheon Engineers and Constructors, Inc (page does not exist)")* [181 F3d 364](http://www.worldlii.org/us/cases/federal/USCA5/1999/1081.html) (5th 1999) a plan beneficiary can enforce terms in the summary plan description, even if the underlying document conflicts.
179. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-179)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §1052
180. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-180)** ERISA 1974, [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1081–1102](http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter18/subchapter1/node551/part3&edition=prelim) [Archived](https://web.archive.org/web/20180623113242/http://uscode.house.gov/view.xhtml?path=%2Fprelim%40title29%2Fchapter18%2Fsubchapter1%2Fnode551%2Fpart3&edition=prelim) June 23, 2018, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"), containing detailed rules.
181. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-181)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC](https://en.wikipedia.org/wiki/29_USC "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.
182. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-182)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §1054
183. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-183)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §1058
184. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-184)** *[Patterson v. Shumate](https://en.wikipedia.org/w/index.php?title=Patterson_v._Shumate&action=edit&redlink=1 "Patterson v. Shumate (page does not exist)")*, 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](https://en.wikipedia.org/w/index.php?title=Guidry_v._Sheet_Metal_Workers_National_Pension_Fund&action=edit&redlink=1 "Guidry v. Sheet Metal Workers National Pension Fund (page does not exist)")*, 493 US 365 (1990)
185. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-185)** [517 US 882](http://www.worldlii.org/us/cases/federal/USSC/1996/52.html) (1996)
186. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-186)** cf *[Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd](https://en.wikipedia.org/wiki/Imperial_Group_Pension_Trust_Ltd_v_Imperial_Tobacco_Ltd "Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd")* \[1991\] 1 WLR 589 and *[Equitable Life Assurance Society v. Hyman](https://en.wikipedia.org/w/index.php?title=Equitable_Life_Assurance_Society_v._Hyman&action=edit&redlink=1 "Equitable Life Assurance Society v. Hyman (page does not exist)")* \[2000\] [UKHL 39](http://www.bailii.org/uk/cases/UKHL/2000/39.html)
187. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-187)** [490 US 714](http://www.worldlii.org/us/cases/federal/USSC/1989/103.html) (1989)
188. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-188)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §1140, however see the highly controversial case *[McGann v. H\&H Music Co](https://en.wikipedia.org/w/index.php?title=McGann_v._H%26H_Music_Co&action=edit&redlink=1 "McGann v. H&H Music Co (page does not exist)")* (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.
189. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-189)** 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](https://en.wikipedia.org/wiki/Fiduciary "Fiduciary")" in law, and bound by special duties. The core duty is to avoid any possibility of a [conflict of interest](https://en.wikipedia.org/wiki/Conflict_of_interest "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](https://en.wikipedia.org/wiki/Negligent "Negligent")) and the duty to follow the terms of one's assignment. Discussed further in *[Peacock v. Thomas](https://en.wikipedia.org/w/index.php?title=Peacock_v._Thomas&action=edit&redlink=1 "Peacock v. Thomas (page does not exist)")* 516 US 349 (1996)
190. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-190)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1104(a)(1)(D)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1104&num=0&edition=prelim)
191. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-191)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1104(a)(1)(B)–(C)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1104&num=0&edition=prelim)
192. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-192)** *[Varity Corp. v. Howe](https://en.wikipedia.org/w/index.php?title=Varity_Corp._v._Howe&action=edit&redlink=1 "Varity Corp. v. Howe (page does not exist)")* 516 US 489 (1996)
193. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-193)** [United States Department of Labor](https://en.wikipedia.org/wiki/United_States_Department_of_Labor "United States Department of Labor"), *Interpretive bulletin relating to written statements of investment policy, including proxy voting policy or guidelines* (1994) [29 CFR 2509.94–2](https://web.archive.org/web/20000819021217/http://www.dol.gov/dol/allcfr/Title_29/Part_2509/29CFR2509.94-2.htm), "The fiduciary duties described at [ERISA](https://en.wikipedia.org/wiki/ERISA "ERISA") Sec. 404(a)(1)(A) and (B), require that, in voting [proxies](https://en.wikipedia.org/wiki/Proxy_voting "Proxy voting"), 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](https://en.wikipedia.org/wiki/Fiduciary "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."
194. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-194)** See *[Meinhard v. Salmon](https://en.wikipedia.org/wiki/Meinhard_v._Salmon "Meinhard v. Salmon")*, 164 NE 545 (NY 1928) and *[Keech v. Sandford](https://en.wikipedia.org/wiki/Keech_v._Sandford "Keech v. Sandford")* \[1726\] [EWHC Ch J76](http://www.bailii.org/ew/cases/EWHC/1726/J76.html)
195. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-195)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1104(a)(1)(A)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1104&num=0&edition=prelim)
196. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-196)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1106](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1106&num=0&edition=prelim)
197. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-197)** [680 F2d 263](http://www.worldlii.org/us/cases/federal/USCA2/1982/447.html) (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."
198. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-198)** e.g. *[Local 144, Nursing Home Pension Fund v. Demisay](https://en.wikipedia.org/w/index.php?title=Local_144,_Nursing_Home_Pension_Fund_v._Demisay&action=edit&redlink=1 "Local 144, Nursing Home Pension Fund v. Demisay (page does not exist)")*, 508 US 581 (1992) and *[Great-West Life & Annuity Insurance Co v. Knudson](https://en.wikipedia.org/w/index.php?title=Great-West_Life_%26_Annuity_Insurance_Co_v._Knudson&action=edit&redlink=1 "Great-West Life & Annuity Insurance Co v. Knudson (page does not exist)")* 534 US 204 (2002)
199. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-199)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1144](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1144&num=0&edition=prelim)
200. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-200)** *[Shaw v. Delta Air Lines, Inc](https://en.wikipedia.org/w/index.php?title=Shaw_v._Delta_Air_Lines,_Inc&action=edit&redlink=1 "Shaw v. Delta Air Lines, Inc (page does not exist)")*, [463 US 85](https://supreme.justia.com/cases/federal/us/463/85/case.html) (1983) per [Blackmun J](https://en.wikipedia.org/wiki/Blackmun_J "Blackmun J")
201. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-201)** *[Ingersoll-Rand Co. v. McClendon](https://en.wikipedia.org/wiki/Ingersoll-Rand_Co._v._McClendon "Ingersoll-Rand Co. v. McClendon")*, 498 US 133 (1990)
202. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-202)** *[Egelhoff v. Egelhoff](https://en.wikipedia.org/wiki/Egelhoff_v._Egelhoff "Egelhoff v. Egelhoff")*, 532 US 141 (2001)
203. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-203)** *[Metropolitan Life Insurance Co. v. Massachusetts](https://en.wikipedia.org/w/index.php?title=Metropolitan_Life_Insurance_Co._v._Massachusetts&action=edit&redlink=1 "Metropolitan Life Insurance Co. v. Massachusetts (page does not exist)")* 471 US 724 (1985)
204. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-204)** *[FMC Corp. v. Holliday](https://en.wikipedia.org/w/index.php?title=FMC_Corp._v._Holliday&action=edit&redlink=1 "FMC Corp. v. Holliday (page does not exist)")* 498 US 52 (1990) per [O'Connor J](https://en.wikipedia.org/wiki/O%27Connor_J "O'Connor J"). [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J") dissented. See also *[District of Columbia v. Greater Washington Board of Trade](https://en.wikipedia.org/w/index.php?title=District_of_Columbia_v._Greater_Washington_Board_of_Trade&action=edit&redlink=1 "District of Columbia v. Greater Washington Board of Trade (page does not exist)")*, 506 US 125 (1992) Stevens J dissented.
205. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-205)** *[Rush Prudential HMO, Inc. v. Moran](https://en.wikipedia.org/wiki/Rush_Prudential_HMO,_Inc._v._Moran "Rush Prudential HMO, Inc. v. Moran")*, 536 US 355 (2002) Souter J, 5 to 4, held an [Illinois](https://en.wikipedia.org/wiki/Illinois "Illinois") statute requiring 'independent medical review' of a denial of a claim for treatment under an [HMO](https://en.wikipedia.org/wiki/HMO "HMO") contract was not preempted because it was insurance regulation.
206. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto1_206-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto1_206-1) See [HR 1277](https://www.govtrack.us/congress/bills/106/hr1277/text), Title III, §301
207. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-207)** See earlier, [LD Brandeis](https://en.wikipedia.org/wiki/LD_Brandeis "LD Brandeis"), *[Other People's Money and How the Bankers Use It](https://en.wikipedia.org/wiki/Other_People%27s_Money_and_How_the_Bankers_Use_It "Other People's Money and How the Bankers Use It")* ([1914](http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/other-peoples-money-by-louis-d.-brandeis)) 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
208. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-208)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), [29 USC §1102](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1102&num=0&edition=prelim)
209. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-209)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§1105(d)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section1105&num=0&edition=prelim)
210. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-210)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §302(c)(5)(B)
211. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-211)** See [US Department of Labor](https://en.wikipedia.org/wiki/US_Department_of_Labor "US Department of Labor"), [Critical, Endangered and WRERA Status Notices](https://web.archive.org/web/20080922014722/http://www.dol.gov/ebsa/criticalstatusnotices.html)' (Retrieved August 11, 2016)
212. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-212)** 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](https://en.wikipedia.org/w/index.php?title=Uniform_Management_of_Public_Employee_Retirement_Systems_Act_of_1997&action=edit&redlink=1 "Uniform Management of Public Employee Retirement Systems Act of 1997 (page does not exist)") §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.
213. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-213)** See, sponsored by [Peter Visclosky](https://en.wikipedia.org/wiki/Peter_Visclosky "Peter Visclosky"), Joint Trusteeship Bill of 1989 [HR 2664](http://thomas.loc.gov/cgi-bin/query/z?c101:H.R.2664.IH:)\[*[permanent dead link](https://en.wikipedia.org/wiki/Wikipedia:Link_rot "Wikipedia:Link rot")*\]. See further R Cook, 'The Case for Joint Trusteeship of Pension Plans' (2002) WorkingUSA 25. Most recently, the Employees' Pension Security Act of 2008 ([HR 5754](http://www.opencongress.org/bill/110-h5754/text) [Archived](https://web.archive.org/web/20250120203225/http://www.opencongress.org/bill/110-h5754/text) January 20, 2025, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")) §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.'
214. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-214)** This inserted a new Securities Exchange Act of 1934 §6(b)(10)
215. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-215)** Text of the [Occupational Safety and Health Act](http://finduslaw.com/occupational_safety_and_health_act_osha_29_u_s_code_chapter_15)
216. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-216)** See [E. Appelbaum](https://en.wikipedia.org/wiki/E._Appelbaum "E. Appelbaum") and LW Hunter, 'Union Participation in Strategic Decisions of Corporations' in [Richard B. Freeman](https://en.wikipedia.org/wiki/Richard_B._Freeman "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
217. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-217)** [Archibald Cox](https://en.wikipedia.org/wiki/Archibald_Cox "Archibald Cox"), D. C. Bok, [Matthew W. Finkin](https://en.wikipedia.org/wiki/Matthew_W._Finkin "Matthew W. Finkin") and R. A. Gorman, *Labor Law: Cases and Materials* (2011)
218. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-218)** [15 USC](https://en.wikipedia.org/wiki/15_USC "15 USC") [§17](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim) [Archived](https://web.archive.org/web/20210414021534/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim) April 14, 2021, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
219. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-219)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§151](https://www.law.cornell.edu/uscode/text/29/151)
220. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-220)** See *[San Diego Building Trades Council v. Garmon](https://en.wikipedia.org/wiki/San_Diego_Building_Trades_Council_v._Garmon "San Diego Building Trades Council v. Garmon")* 359 US 236 (1959) and previously *[Garner v. Teamsters Local 776](https://en.wikipedia.org/wiki/Garner_v._Teamsters_Local_776 "Garner v. Teamsters Local 776")*, 346 US 485, 490 (1953) and most recently *[Chamber of Commerce v. Brown](https://en.wikipedia.org/wiki/Chamber_of_Commerce_v._Brown "Chamber of Commerce v. Brown")*, [522 US 60](http://www.worldlii.org/us/cases/federal/USSC/2008/22.html) (2008) [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J") and [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J") dissented.
221. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-221)** [BI Sachs](https://en.wikipedia.org/wiki/BI_Sachs "BI Sachs"), 'Revitalizing labor law' (2010) [31(2) Berkeley Journal of Employment and Labor Law 333](https://www.jstor.org/stable/43551790) and [CL Estlund](https://en.wikipedia.org/wiki/CL_Estlund "CL Estlund"), 'The Ossification of American Labor Law' (2002) 102 Columbia LR 1527. See further [BI Sachs](https://en.wikipedia.org/wiki/BI_Sachs "BI Sachs"), 'Despite Preemption: Making Labor Law in Cities and States' (2011) [1224 *Harvard Law Review* 1153](https://dash.harvard.edu/bitstream/handle/1/10875747/vol124_sachs.pdf?sequence=1), 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](https://en.wikipedia.org/wiki/NLRB "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](https://en.wikipedia.org/wiki/Good_faith "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.'
222. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-222)** See *[NAACP v. Alabama](https://en.wikipedia.org/wiki/NAACP_v._Alabama "NAACP v. Alabama")*, [357 US 449](http://www.worldlii.org/us/cases/federal/USSC/1958/150.html) (1958) referring to the "constitutionally protected right of association".
223. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-223)** [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons"), *History of Labor in the United States* (Macmillan 1918) [vol I, ch 1, 25](https://archive.org/stream/historyoflabouri01commuoft#page/24/mode/2up)
224. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-224)** JB Commons, *A Documentary History of American Industrial Society* (1910)
225. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-225)** [Archibald Cox](https://en.wikipedia.org/wiki/Archibald_Cox "Archibald Cox"), D. C. Bok, [Matthew W. Finkin](https://en.wikipedia.org/wiki/Matthew_W._Finkin "Matthew W. Finkin") and R. A. Gorman, *Labor Law: Cases and Materials* (2006) 11. The federation collapsed during the [Panic of 1837](https://en.wikipedia.org/wiki/Panic_of_1837 "Panic of 1837").
226. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-226)** 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.
227. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-227)** *[In re Debs](https://en.wikipedia.org/wiki/In_re_Debs "In re Debs")*, 64 Fed 724 (CC Ill 1894), 158 U.S. 564 (1895)
228. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto3_228-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto3_228-1) 208 US 274 (1908)
229. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-229)** cf [ILO](https://en.wikipedia.org/wiki/ILO "ILO") [Freedom of Association Convention 1948](https://en.wikipedia.org/wiki/Freedom_of_Association_Convention_1948 "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."
230. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-230)** See historically TW Glocker, *The Government of American Trade Unions* (1913) ch XI, and [American Civil Liberties Union](https://en.wikipedia.org/wiki/American_Civil_Liberties_Union "American Civil Liberties Union"), *Democracy in Trade Unions: A survey, with a program of action* (1943)
231. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-231)** See the [McClellan Committee](https://en.wikipedia.org/wiki/McClellan_Committee "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](https://en.wikipedia.org/wiki/Robert_F._Kennedy "Robert F. Kennedy")'s *[The Enemy Within](https://en.wikipedia.org/wiki/The_Enemy_Within_\(Kennedy_book\) "The Enemy Within (Kennedy book)")* (1960) 190–212. At the [Bakery and Confectionery Workers](https://en.wikipedia.org/wiki/Bakery,_Confectionery,_Tobacco_Workers_and_Grain_Millers_International_Union "Bakery, Confectionery, Tobacco Workers and Grain Millers International Union"), the president had doubled his salary. At the [Allied Trades Unions](https://en.wikipedia.org/w/index.php?title=Allied_Trades_Unions&action=edit&redlink=1 "Allied Trades Unions (page does not exist)") the vice president made a self-dealing transaction. At the [International Union of Operating Engineers](https://en.wikipedia.org/wiki/International_Union_of_Operating_Engineers "International Union of Operating Engineers") officials had extorted money from employers. At the [United Textile Workers Union](https://en.wikipedia.org/wiki/United_Textile_Workers_of_America "United Textile Workers of America"), the president and treasurer bought second homes.
232. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-232)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§ 411](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section411&num=0&edition=prelim)
233. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto2_233-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-auto2_233-1) [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§ 481](http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter11/subchapter5&edition=prelim)
234. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-234)** *[De Veau v. Braisted](https://en.wikipedia.org/wiki/De_Veau_v._Braisted "De Veau v. Braisted")*, [363](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_363 "List of United States Supreme Court cases, volume 363") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [144](https://supreme.justia.com/cases/federal/us/363/144/) (1960) 5 to 3, the dissenting judges argued that state law could introduce no additional requirement to those in the [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"). See also *[Brown v. Hotel and Restaurant Employees](https://en.wikipedia.org/wiki/Brown_v._Hotel_and_Restaurant_Employees "Brown v. Hotel and Restaurant Employees")*, [468](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_468 "List of United States Supreme Court cases, volume 468") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [491](https://supreme.justia.com/cases/federal/us/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](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") § 7. The dissent argued that the requirement was disproportionate because it applied penalties to the whole union rather than the officials.
235. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-235)** 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."
236. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-236)** *[Trbovich v. United Mine Workers](https://en.wikipedia.org/wiki/Trbovich_v._United_Mine_Workers "Trbovich v. United Mine Workers")*, [404](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_404 "List of United States Supreme Court cases, volume 404") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [528](https://supreme.justia.com/cases/federal/us/404/528/) (1972) See also *[Hall v. Cole](https://en.wikipedia.org/w/index.php?title=Hall_v._Cole&action=edit&redlink=1 "Hall v. Cole (page does not exist)")*, [412](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_412 "List of United States Supreme Court cases, volume 412") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [1](https://supreme.justia.com/cases/federal/us/412/1/) (1973) holding that if plaintiffs are successful, they can be awarded fees.
237. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-237)** *[Dunlop v. Bachowski](https://en.wikipedia.org/wiki/Dunlop_v._Bachowski "Dunlop v. Bachowski")*, [421](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_421 "List of United States Supreme Court cases, volume 421") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [560](https://supreme.justia.com/cases/federal/us/421/560/) (1975)
238. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-238)** 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
239. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-239)** See the [ITUC](https://en.wikipedia.org/wiki/ITUC "ITUC"), *[Constitution](http://www.ituc-csi.org/IMG/pdf/Const-ENG-W.pdf)* (2006)
240. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-240)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§ 158(a)(3)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section158&num=0&edition=prelim)
241. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-241)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§ 164(b)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section164&num=0&edition=prelim)
242. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-242)** [367](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_367 "List of United States Supreme Court cases, volume 367") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [740](https://supreme.justia.com/cases/federal/us/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](https://en.wikipedia.org/w/index.php?title=Lincoln_Fed_Labor_Union_19129_v._Northwestern_Iron_%26_Metal_Co&action=edit&redlink=1 "Lincoln Fed Labor Union 19129 v. Northwestern Iron & Metal Co (page does not exist)")*, [335](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_335 "List of United States Supreme Court cases, volume 335") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [525](https://supreme.justia.com/cases/federal/us/335/525/) (1949). *[Communications Workers of America v. Beck](https://en.wikipedia.org/wiki/Communications_Workers_of_America_v._Beck "Communications Workers of America v. Beck")*, [487](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_487 "List of United States Supreme Court cases, volume 487") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [735](https://supreme.justia.com/cases/federal/us/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](https://en.wikipedia.org/wiki/Locke_v._Karass "Locke v. Karass")*, 129 S Ct 798 (2008) legitimate costs included the Maine State Employees Association's costs for in national arbitration litigation.
243. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-243)** *[United States v. Congress of Industrial Organizations](https://en.wikipedia.org/wiki/United_States_v._Congress_of_Industrial_Organizations "United States v. Congress of Industrial Organizations")*, 335 U.S. 106 (1948) there was no violation of the [Federal Corrupt Practices Act 1910](https://en.wikipedia.org/wiki/Federal_Corrupt_Practices_Act_1910 "Federal Corrupt Practices Act 1910") in a union publicly advocating for particular Congress members to be elected.
244. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-244)** *[Buckley v. Valeo](https://en.wikipedia.org/wiki/Buckley_v._Valeo "Buckley v. Valeo")*, 424 US 1 (1976)
245. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-245)** 435 US 765 (1978)
246. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-246)** 558 US 310 (2010)
247. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-247)** 431 US 209 (1977) See further *[Lehnert v. Ferris Faculty Association](https://en.wikipedia.org/wiki/Lehnert_v._Ferris_Faculty_Association "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](https://en.wikipedia.org/wiki/Davenport_v._Washington_Education_Association "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.
248. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-248)** 573 US \_\_ (2014)
249. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-249)** 578 US \_\_ (2016)
250. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-250)**
["\[USC02\] 15 USC 17: Antitrust laws not applicable to labor organizations"](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section17&num=0&edition=prelim). *uscode.house.gov*.
251. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-251)** [208 US 161](http://www.worldlii.org/us/cases/federal/USSC/1908/23.html) (1908)
252. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-252)** 236 US 1 (1915)
253. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-253)** In *Adair*, from [Holmes J](https://en.wikipedia.org/wiki/Holmes_J "Holmes J") and [McKenna J](https://en.wikipedia.org/wiki/McKenna_J "McKenna J"), and in *Coppage* from Holmes J, [Day J](https://en.wikipedia.org/wiki/Day_J "Day J") and [Hughes J](https://en.wikipedia.org/wiki/Hughes_J "Hughes J")
254. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-254)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§§101–115](http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter6&edition=prelim). This was approved and applied by *[New Negro Alliance v. Sanitary Grocery Co.](https://en.wikipedia.org/wiki/New_Negro_Alliance_v._Sanitary_Grocery_Co. "New Negro Alliance v. Sanitary Grocery Co.")*, [303 US 552](http://www.worldlii.org/us/cases/federal/USSC/1938/101.html) (1938)
255. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-255)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§104](http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter6&edition=prelim)
256. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-256)** This reenacted labor provisions from the [National Industrial Recovery Act of 1933](https://en.wikipedia.org/wiki/National_Industrial_Recovery_Act_of_1933 "National Industrial Recovery Act of 1933"), after *[A.L.A. Schechter Poultry Corp. v. United States](https://en.wikipedia.org/wiki/A.L.A._Schechter_Poultry_Corp._v._United_States "A.L.A. Schechter Poultry Corp. v. United States")*, [295 US 495](http://www.worldlii.org/us/cases/federal/USSC/1935/122.html) (1935) struck it down.
257. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-257)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§157](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section157&num=0&edition=prelim), "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."
258. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-258)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §152(2). See the [Federal Labor Relations Act of 1978](https://en.wikipedia.org/wiki/Federal_Labor_Relations_Act_of_1978 "Federal Labor Relations Act of 1978"). There are special rules for the [United States Department of Homeland Security](https://en.wikipedia.org/wiki/United_States_Department_of_Homeland_Security "United States Department of Homeland Security").
259. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-259)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§152(2)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section152&num=0&edition=prelim)
260. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-260)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") §158(3)
261. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-261)** [440 US 490](http://www.worldlii.org/us/cases/federal/USSC/1979/47.html) (1979) [Brennan J](https://en.wikipedia.org/wiki/Brennan_J "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](https://en.wikipedia.org/wiki/White_J "White J"), [Marshall J](https://en.wikipedia.org/wiki/Thurgood_Marshall "Thurgood Marshall"), [Blackmun J](https://en.wikipedia.org/wiki/Blackmun_J "Blackmun J").
262. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-262)** [563 F3d 492](https://scholar.google.com/scholar_case?q=563+F3d+492+\(DC+2009\)&hl=en&as_sdt=2006&case=15820652359117123721&scilh=0) (DC 2009)
263. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-263)** R Eisenbrey and L Mishel, 'Supervisor in Name Only: Union Rights of Eight Million Workers at Stake in Labor Board Ruling' (2006) [Economic Policy Institute Issue Brief \#225](http://www.epi.org/page/-/old/issuebriefs/225/ib225.pdf)
264. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-264)** See [Bureau of Labor Statistics](https://en.wikipedia.org/wiki/Bureau_of_Labor_Statistics "Bureau of Labor Statistics"), '[Union Members – 2015](http://www.bls.gov/news.release/pdf/union2.pdf)' (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](https://en.wikipedia.org/wiki/Texas "Texas") 4.5%, Florida 6.8%, [New York](https://en.wikipedia.org/wiki/New_York_\(state\) "New York (state)") 24.7% (the highest in the country), and [Illinois](https://en.wikipedia.org/wiki/Illinois "Illinois") 15.2%. See further OECD, *Trade Union Density* ([1999–2013](http://www.oecd.org/employment/emp/UnionDensity_Sourcesandmethods.pdf))
265. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-265)** 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
266. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-266)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"), [29 USC §158(d)](https://www.law.cornell.edu/uscode/text/29/158). See *[NLRB v. Borg-Warner Corp](https://en.wikipedia.org/w/index.php?title=NLRB_v._Borg-Warner_Corp&action=edit&redlink=1 "NLRB v. Borg-Warner Corp (page does not exist)")* [356 US 342](http://www.worldlii.org/us/cases/federal/USSC/1958/76.html) (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](https://en.wikipedia.org/w/index.php?title=First_National_Maintenance_Corp._v._NLRB&action=edit&redlink=1 "First National Maintenance Corp. v. NLRB (page does not exist)")* [452 US 666](http://www.worldlii.org/us/cases/federal/USSC/1981/155.html) (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."
267. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-267)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§153](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section153&num=0&edition=prelim)
268. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-268)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§159(b)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section159&num=0&edition=prelim).
269. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-269)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§159(a)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section159&num=0&edition=prelim)
270. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-270)** [BI Sachs](https://en.wikipedia.org/wiki/BI_Sachs "BI Sachs"), 'Revitalizing labor law' (2010) 31(2) [BJELL 335](https://www.jstor.org/stable/43551790)–6
271. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-271)** [National Labor Relations Board](https://en.wikipedia.org/wiki/National_Labor_Relations_Board "National Labor Relations Board"), *[Seventy Fourth Annual Report](https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1677/nlrb2009.pdf) [Archived](https://web.archive.org/web/20161221111028/https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1677/nlrb2009.pdf) December 21, 2016, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")* (2009) 152
272. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-272)** 321 US 332 (1944)
273. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-273)** 323 US 248 (1944)
274. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-274)** 306 US 332 (1939) 5 to 2
275. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-275)** 560 US 674 (2010)
276. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-276)** H.R. 1409, [S. 560](https://www.congress.gov/bill/111th-congress/senate-bill/560/text).
277. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-277)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§185](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section185&num=0&edition=prelim) and see *[Textile Workers Union of America v. Lincoln Mills](https://en.wikipedia.org/w/index.php?title=Textile_Workers_Union_of_America_v._Lincoln_Mills&action=edit&redlink=1 "Textile Workers Union of America v. Lincoln Mills (page does not exist)")* 353 US 448 (1957) holding federal law is to be applied to promote national uniformity and carry out policies in the national labor laws.
278. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-278)** *[Charles Dowd Box Co v. Courtney](https://en.wikipedia.org/w/index.php?title=Charles_Dowd_Box_Co_v._Courtney&action=edit&redlink=1 "Charles Dowd Box Co v. Courtney (page does not exist)")*, 368 US 502 (1962) Also *[Avco Corporation v. Machinists, Aero Lodge 735](https://en.wikipedia.org/w/index.php?title=Avco_Corporation_v._Machinists,_Aero_Lodge_735&action=edit&redlink=1 "Avco Corporation v. Machinists, Aero Lodge 735 (page does not exist)")*, 390 US 557 (1968) suits to enforce collective agreements may be removed from state court to federal court.
279. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-279)** [9 USC](https://en.wikipedia.org/wiki/9_USC "9 USC") [§§1 ff](http://uscode.house.gov/view.xhtml?path=/prelim@title9/chapter1&edition=prelim)
280. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-280)** [363 US 574](http://www.worldlii.org/us/cases/federal/USSC/1960/109.html) (1960) See also *[United Steelworkers v. American Manufacturing Co.](https://en.wikipedia.org/w/index.php?title=United_Steelworkers_v._American_Manufacturing_Co.&action=edit&redlink=1 "United Steelworkers v. American Manufacturing Co. (page does not exist)")* [363 US 564](http://www.worldlii.org/us/cases/federal/USSC/1960/107.html) (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.
281. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-281)** *[United Steelworkers v. Enterprise Wheel & Car Corp.](https://en.wikipedia.org/w/index.php?title=United_Steelworkers_v._Enterprise_Wheel_%26_Car_Corp.&action=edit&redlink=1 "United Steelworkers v. Enterprise Wheel & Car Corp. (page does not exist)")* [363 US 593](http://www.worldlii.org/us/cases/federal/USSC/1960/108.html) (1960)
282. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-282)** *[United Paperworkers v. Misco, Inc.](https://en.wikipedia.org/w/index.php?title=United_Paperworkers_v._Misco,_Inc.&action=edit&redlink=1 "United Paperworkers v. Misco, Inc. (page does not exist)")* 484 US 29 (1987)
283. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-283)** [415 US 36](http://www.worldlii.org/us/cases/federal/USSC/1974/19.html) (1974)
284. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-284)** [556](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_556 "List of United States Supreme Court cases, volume 556") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [247](https://supreme.justia.com/cases/federal/us/556/247/) (2009) joined by [Roberts CJ](https://en.wikipedia.org/wiki/Roberts_CJ "Roberts CJ"), [Scalia J](https://en.wikipedia.org/wiki/Scalia_J "Scalia J"), [Kennedy J](https://en.wikipedia.org/wiki/Kennedy_J "Kennedy J") and [Alito J](https://en.wikipedia.org/wiki/Alito_J "Alito J")
285. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-285)** See also *[AT\&T Mobility LLC v. Concepcion](https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepcion "AT&T Mobility LLC v. Concepcion")*, [563](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_563 "List of United States Supreme Court cases, volume 563") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [333](https://supreme.justia.com/cases/federal/us/563/333/) (2011) another 5 to 4 decision on consumers.
286. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-286)** S.987 and H.R.1873
287. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-287)** HR 8410, 95th Cong (1977) S 1883, 95th Cong (1977)
288. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-288)** HR 1409. S 560.
289. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-289)** 307 US 496 (1939)
290. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-290)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§158](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section158&num=0&edition=prelim)
291. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-291)** [301 US 1](http://www.worldlii.org/us/cases/federal/USSC/1937/80.html) (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."
292. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-292)** *[Filler Products, Inc. v. NLRB](https://en.wikipedia.org/w/index.php?title=Filler_Products,_Inc._v._NLRB&action=edit&redlink=1 "Filler Products, Inc. v. NLRB (page does not exist)")* 376 F2d 369 (4th 1967)
293. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-293)** e.g. *[Sunbelt Manufacturing Inc, AFL-CIO](https://en.wikipedia.org/w/index.php?title=Sunbelt_Manufacturing_Inc,_AFL-CIO&action=edit&redlink=1 "Sunbelt Manufacturing Inc, AFL-CIO (page does not exist)")*, 308 NLRB 780 (1992)
294. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-294)** [373 US 221](http://www.worldlii.org/us/cases/federal/USSC/1963/94.html) (1963)
295. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-295)** [380 US 263](http://www.worldlii.org/us/cases/federal/USSC/1965/60.html) (1965)
296. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-296)** *[Marquez v. Screen Actors Guild Inc.](https://en.wikipedia.org/wiki/Marquez_v._Screen_Actors_Guild_Inc. "Marquez v. Screen Actors Guild Inc.")*, 525 US 33 (1998)
297. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-297)** 420 US 251 (1975)
298. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-298)** *[Epilepsy Foundation of North-east Ohio v. NLRB](https://en.wikipedia.org/w/index.php?title=Epilepsy_Foundation_of_North-east_Ohio_v._NLRB&action=edit&redlink=1 "Epilepsy Foundation of North-east Ohio v. NLRB (page does not exist)")* (DC 2001)
299. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-299)** 440 US 301 (1979) Stevens, White, Brennan, Marshall J dissented.
300. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-300)** 502 US 527 (1992)
301. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-301)** 473 US 95 (1985) Blackmun, Brennan, Marshall, Stevens J dissented.
302. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-302)** Sources: E McGaughey, 'Do corporations increase inequality?' (2015) [TLI Think! Paper 32/2016](https://ssrn.com/abstract=2697188), 29. [Bureau of Labor Statistics](https://en.wikipedia.org/wiki/Bureau_of_Labor_Statistics "Bureau of Labor Statistics"), Series D 940–945 and [Thomas Piketty](https://en.wikipedia.org/wiki/Thomas_Piketty "Thomas Piketty") (2014) Technical Appendices, Table S9.2
303. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-303)** See further RL Hogler and GJ Grenier, *Employee Participation and Labor Law in the American Workplace* (1992)
304. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-304)** See [A Cox](https://en.wikipedia.org/wiki/A_Cox "A Cox") and MJ Seidman, 'Federalism and Labor Relations' (1950) [64 *Harvard Law Review* 211](https://www.jstor.org/stable/1336175) called for 'an integrated public labor policy' and warned 'enforcement of ... state regulation will thwart the development of federal policy.' [A Cox](https://en.wikipedia.org/wiki/A_Cox "A Cox"), Federalism in the Law of Labor Relations (1954) [67 *Harvard Law Review* 1297](https://www.jstor.org/stable/1336794) argued for a 'rule of total federal preemption' for 'uniformity'. [A Cox](https://en.wikipedia.org/wiki/A_Cox "A Cox"), 'Labor Law Preemption Revisited' (1972) [85 *Harvard Law Review* 1337](https://www.jstor.org/stable/1340014).
305. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-305)** [346 US 485](http://www.worldlii.org/us/cases/federal/USSC/1953/113.html) (1953) per Jackson J
306. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-306)** [359 US 236](http://www.worldlii.org/us/cases/federal/USSC/1959/66.html) (1959)
307. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-307)** [359 US 236](http://www.worldlii.org/us/cases/federal/USSC/1959/66.html) (1959) as [Frankfurter J](https://en.wikipedia.org/wiki/Frankfurter_J "Frankfurter J") put it, "because the amount of interstate commerce involved did not meet the Board's monetary standards in taking jurisdiction. ... "
308. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-308)** [427 US 132](http://www.worldlii.org/us/cases/federal/USSC/1976/140.html) (1976)
309. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-309)** [475 US 608](http://www.worldlii.org/us/cases/federal/USSC/1986/62.html) (1986) [Rehnquist J](https://en.wikipedia.org/wiki/Rehnquist_J "Rehnquist J") dissented.
310. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-310)** [522 US 60](http://www.worldlii.org/us/cases/federal/USSC/2008/22.html) (2008)
311. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-311)** *[Building & Construction Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc.](https://en.wikipedia.org/wiki/Building_%26_Construction_Trades_Council_v._Associated_Builders_%26_Contractors_of_Massachusetts/Rhode_Island,_Inc. "Building & Construction Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc.")* [507 US 218](http://www.worldlii.org/us/cases/federal/USSC/1993/27.html) (1993)
312. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-312)** B Gernigo, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) [137 International Labour Review 441](http://www.rhap.org.za/wp-content/uploads/2014/05/ILO-Manual-on-Right-to-Strike.pdf). In US federal law, see the [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935"), 29 USC §163.
313. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-313)** *[Commonwealth v. Hunt](https://en.wikipedia.org/wiki/Commonwealth_v._Hunt "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](https://en.wikipedia.org/wiki/Shaw_CJ "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](https://en.wikipedia.org/wiki/R_v_Journeymen-Taylors_of_Cambridge "R v Journeymen-Taylors of Cambridge")* (1721) 88 ER 9
314. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-314)** [Clayton Antitrust Act of 1914](https://en.wikipedia.org/wiki/Clayton_Antitrust_Act_of_1914 "Clayton Antitrust Act of 1914") §6 and [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §163.
315. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-315)** B Gernigon, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) [137 International Labour Review 441](http://www.rhap.org.za/wp-content/uploads/2014/05/ILO-Manual-on-Right-to-Strike.pdf) [Archived](https://web.archive.org/web/20210224190954/http://www.rhap.org.za/wp-content/uploads/2014/05/ILO-Manual-on-Right-to-Strike.pdf) February 24, 2021, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
316. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-316)** 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.'
317. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-317)** See EE Witte, 'Early American Labor Cases' (1926) [35 Yale Law Journal 829](https://www.jstor.org/stable/789460), employers brought at least three successful claims against their employees before 1863, and fifteen up to 1880 for "conspiracy". See also F. B. Sayre, 'Criminal Conspiracy' (1922) [35 *Harvard Law Review* 393](https://www.jstor.org/stable/1328648). W. Holt, 'Labor Conspiracy Cases in the United States, 1805-1842: Bias and Legitimation in Common Law Adjudication' (1984) [22 *Osgoode Hall Law Journal* 591](http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1913&context=ohlj). 'Tortious Interference with Contractual Relations in the Nineteenth Century' (1980) 93 *Harvard Law Review* 1510.
318. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-318)** *[In re Debs](https://en.wikipedia.org/wiki/In_re_Debs "In re Debs")*, 64 Fed 724 (CC Ill 1894), 158 US 564 (1895)
319. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-319)** See [Samuel Gompers](https://en.wikipedia.org/wiki/Samuel_Gompers "Samuel Gompers"), 'Labor and the War: the Movement for Universal Peace Must Assume the Aggressive' (October 1914) [XXI(1) American Federationist 849, 860](https://babel.hathitrust.org/cgi/pt?id=mdp.39015034112782;view=1up;seq=874).
320. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-320)** *[United States v. Hutcheson](https://en.wikipedia.org/w/index.php?title=United_States_v._Hutcheson&action=edit&redlink=1 "United States v. Hutcheson (page does not exist)")* 312 US 219 (1941) per Justice Frankfurter
321. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-321)** See the [Versailles Treaty 1919](https://en.wikipedia.org/wiki/Versailles_Treaty_1919 "Versailles Treaty 1919") [art 427](https://en.wikisource.org/wiki/Constitution_of_the_International_Labour_Office#Article_427). The right to strike is now embedded in core Conventions of [international labor law](https://en.wikipedia.org/wiki/International_labor_law "International labor law"), ILO [Freedom of Association and Protection of the Right to Organise Convention](https://en.wikipedia.org/wiki/Freedom_of_Association_and_Protection_of_the_Right_to_Organise_Convention "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.
322. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-322)** e.g. *[Coppage v. Kansas](https://en.wikipedia.org/wiki/Coppage_v._Kansas "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](https://en.wikipedia.org/wiki/Yellow-dog_contract "Yellow-dog contract")"). *[Duplex Printing Press Co. v. Deering](https://en.wikipedia.org/wiki/Duplex_Printing_Press_Co._v._Deering "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](https://en.wikipedia.org/w/index.php?title=Truax_v._Corrigan&action=edit&redlink=1 "Truax v. Corrigan (page does not exist)")* [257 US 312](https://en.wikisource.org/wiki/Truax_v._Corrigan/Dissent_Brandeis "wikisource:Truax v. Corrigan/Dissent Brandeis") (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](https://en.wikipedia.org/wiki/Norris-La_Guardia_Anti-Injunction_Act_of_1932 "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.
323. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-323)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") 29 USC [§§157 and 163](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter7&edition=prelim)
324. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-324)** See '[Cesar Chavez Explains Boycotts](https://www.youtube.com/watch?v=gLqDu5yZj0M)' and '[Cesar Chavez speaking at UCLA 10/11/1972](https://www.youtube.com/watch?v=UlLs_fVBWzM)'.
325. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-325)** e.g. in West Virginia, Kentucky, and Oklahoma it has been illegal for teachers to strike - a prohibition that violates [international law](https://en.wikipedia.org/wiki/International_law "International law") - and teachers went on strike, and won anyway. See the [2018–19 education workers' strikes in the United States](https://en.wikipedia.org/wiki/2018%E2%80%9319_education_workers%27_strikes_in_the_United_States "2018–19 education workers' strikes in the United States").
326. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-326)** Notably [Calvin Coolidge](https://en.wikipedia.org/wiki/Calvin_Coolidge "Calvin Coolidge"), then [Governor of Massachusetts](https://en.wikipedia.org/wiki/Governor_of_Massachusetts "Governor of Massachusetts") said in the [Boston Police Strike](https://en.wikipedia.org/wiki/Boston_Police_Strike "Boston Police Strike") of 1919: "There is no right to strike against the public safety, anywhere, anytime."
327. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-327)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") 29 USC [§157](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter7&edition=prelim). n.b. *[NLRB v. City Disposal Systems, Inc](https://en.wikipedia.org/w/index.php?title=NLRB_v._City_Disposal_Systems,_Inc&action=edit&redlink=1 "NLRB v. City Disposal Systems, Inc (page does not exist)")* 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.
328. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-328)** *[NLRB v. Insurance Agents' International Union](https://en.wikipedia.org/w/index.php?title=NLRB_v._Insurance_Agents%27_International_Union&action=edit&redlink=1 "NLRB v. Insurance Agents' International Union (page does not exist)")*, [361 US 477, 495-496](http://www.worldlii.org/us/cases/federal/USSC/1960/23.html) (1960) interpreting [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935"), 29 USC §158(b)(3)
329. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-329)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") 29 USC [§158(b)(4)(B)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter7&edition=prelim)
330. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-330)** See *[National Woodword Manufacturers Association v. NLRB](https://en.wikipedia.org/w/index.php?title=National_Woodword_Manufacturers_Association_v._NLRB&action=edit&redlink=1 "National Woodword Manufacturers Association v. NLRB (page does not exist)")* 386 US 612 (1967) on "hot cargo" agreements under 29 USC §158(e) and work preservation under §158(b)(4)(ii)(A)-(B).
331. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-331)** *[NLRB v. Truck Drivers Local 449](https://en.wikipedia.org/wiki/NLRB_v._Truck_Drivers_Local_449 "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](https://en.wikipedia.org/wiki/Whipsaw_strike "Whipsaw strike").
332. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-332)** *[Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council](https://en.wikipedia.org/w/index.php?title=Edward_J._DeBartolo_Corp._v._Florida_Gulf_Coast_Building_%26_Construction_Trades_Council&action=edit&redlink=1 "Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council (page does not exist)")* 485 US 568 (1988) urging a secondary boycott cannot be an unfair labor practice.
333. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-333)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") 29 USC §158(d)
334. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-334)** *[National Labor Relations Board v. Columbian Enameling & Stamping Co.](https://en.wikipedia.org/wiki/National_Labor_Relations_Board_v._Columbian_Enameling_%26_Stamping_Co. "National Labor Relations Board v. Columbian Enameling & Stamping Co.")*, 306 U.S. 292 (1939) 5 to 2, Reed J and Black J dissented.
335. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-335)** e.g. under the [European Convention on Human Rights](https://en.wikipedia.org/wiki/European_Convention_on_Human_Rights "European Convention on Human Rights") 1950 article 11, the no detriment rule for union membership is seen in *[Wilson and Palmer v United Kingdom](https://en.wikipedia.org/wiki/Wilson_and_Palmer_v_United_Kingdom "Wilson and Palmer v United Kingdom")* \[2002\] ECHR 552. In the UK, the [Trade Union and Labour Relations (Consolidation) Act 1992](https://en.wikipedia.org/wiki/Trade_Union_and_Labour_Relations_\(Consolidation\)_Act_1992 "Trade Union and Labour Relations (Consolidation) Act 1992") [s 238A](http://www.legislation.gov.uk/ukpga/1992/52/part/V/crossheading/loss-of-unfair-dismissal-protection) protects employees on strike from unfair dismissal for 12 weeks at least.
336. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-336)** [304 US 333](http://www.worldlii.org/us/cases/federal/USSC/1938/131.html) (1938)
337. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-337)** See [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization"), *Complaint Against the Government of the United States Presented by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO)* ([1991](http://white.lim.ilo.org/spanish/260ameri/oitreg/activid/proyectos/actrav/sindi/english/casos/usa/usa199101.html)) \[92\] 'The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests. The Committee considers that this basic right is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally. The Committee considers that, if a strike is otherwise legal, the use of labour drawn from outside the undertaking to replace strikers for an indeterminate period entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights.' P Weiler, 'A Principled Re-Shaping of Labor Law for the Twenty-First Century' \[2001\] [University of Pennsylvania Journal of Labor and Employment Law 201](https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1073&context=jbl), *Mackay* is 'the worst contribution that the U.S. Supreme Court has made to the current shape of labor law in this country.'
338. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-338)** *[NLRB v. Fansteel Metallurgical Corp.](https://en.wikipedia.org/wiki/NLRB_v._Fansteel_Metallurgical_Corp. "NLRB v. Fansteel Metallurgical Corp.")* [306 US 240](http://www.worldlii.org/us/cases/federal/USSC/1939/46.html) (1939) Reed J and Black J dissented.
339. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-339)** *[Trans World Airlines, Inc v. Flight Attendants](https://en.wikipedia.org/w/index.php?title=Trans_World_Airlines,_Inc_v._Flight_Attendants&action=edit&redlink=1 "Trans World Airlines, Inc v. Flight Attendants (page does not exist)")* [489 US 426](http://www.worldlii.org/us/cases/federal/USSC/1989/34.html) (1989) Brennan J, Marshall J, Blackmun J dissented.
340. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-340)** *[NLRB v. Electrical Workers](https://en.wikipedia.org/w/index.php?title=NLRB_v._Electrical_Workers&action=edit&redlink=1 "NLRB v. Electrical Workers (page does not exist)")* 346 US 464 (1953)
341. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-341)** *[New Negro Alliance v. Sanitary Grocery Co.](https://en.wikipedia.org/wiki/New_Negro_Alliance_v._Sanitary_Grocery_Co. "New Negro Alliance v. Sanitary Grocery Co.")*, 303 US 552 (1938)
342. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-342)** *[Thornhill v. Alabama](https://en.wikipedia.org/wiki/Thornhill_v._Alabama "Thornhill v. Alabama")*, 310 US 88 (1940)
343. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-343)** *[United States v. Congress of Industrial Organizations](https://en.wikipedia.org/wiki/United_States_v._Congress_of_Industrial_Organizations "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](https://en.wikipedia.org/wiki/Federal_Corrupt_Practices_Act "Federal Corrupt Practices Act") as amended by the [Labor Management Relations Act](https://en.wikipedia.org/wiki/Labor_Management_Relations_Act "Labor Management Relations Act").
344. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-344)** *[Eastex, Inc. v. NLRB](https://en.wikipedia.org/w/index.php?title=Eastex,_Inc._v._NLRB&action=edit&redlink=1 "Eastex, Inc. v. NLRB (page does not exist)")* 437 US 556 (1978)
345. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-345)** e.g. *[Clean Slate for Worker Power: Building a Just Economy and Democracy](https://assets.website-files.com/5ddc262b91f2a95f326520bd/5e3096b9feb8524936752fe0_CleanSlate_SinglePages_ForWeb_noemptyspace.pdf)* (2019) Labor and Worklife Program, Harvard Law School.
346. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-346)** See the [Reward Work Act, S.2605](https://www.congress.gov/bill/115th-congress/senate-bill/2605/text), sponsored by [Tammy Baldwin](https://en.wikipedia.org/wiki/Tammy_Baldwin "Tammy Baldwin"), [Elizabeth Warren](https://en.wikipedia.org/wiki/Elizabeth_Warren "Elizabeth Warren"), [Brian Schatz](https://en.wikipedia.org/wiki/Brian_Schatz "Brian Schatz"), joined by [Kirsten Gillibrand](https://en.wikipedia.org/wiki/Kirsten_Gillibrand "Kirsten Gillibrand")
347. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-347)** The Sanders "[Corporate Accountability and Democracy](https://berniesanders.com/issues/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](https://en.wikipedia.org/wiki/Accountable_Capitalism_Act "Accountable Capitalism Act") would require 40% on large federal corporations.
348. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-348)** See Bernie Sanders, "[Corporate Accountability and Democracy: Shareholder Democracy](https://berniesanders.com/issues/corporate-accountability-and-democracy/)". [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons"), *Industrial Government* (1921) [ch 6](https://archive.org/stream/industrialgovern00comm#page/n13/mode/2up), L. D. Brandeis, *[Other People's Money and How the Bankers Use It](https://en.wikipedia.org/wiki/Other_People%27s_Money_and_How_the_Bankers_Use_It "Other People's Money and How the Bankers Use It")* (1914).
349. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-349)** See E. McGaughey, 'Corporate Law Should Embrace Putting Workers On Boards: The Evidence Is Behind Them' (17 September 2018) [Harvard Law School Forum on Corporate Governance and Financial Regulation](https://corpgov.law.harvard.edu/2018/09/17/corporate-law-should-embrace-putting-workers-on-boards-the-evidence-is-behind-them/) and 'Democracy in America at Work: The History of Labor's Vote in Corporate Governance' (2019) [42 *Seattle University Law Review* 697](https://digitalcommons.law.seattleu.edu/sulr/vol42/iss2/18/). R. L. Hogler and G. J. Grenier, *Employee Participation and Labor Law in the American Workplace* (1992)
350. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-350)** See D. Webber, *The Rise of the Working Class Shareholder: Labor's Last Best Weapon* (2018) and the section above on "[Pensions](https://en.wikipedia.org/wiki/United_States_labor_law#Pensions)".
351. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-351)** See the popular text by the former Dean of [Harvard Law School](https://en.wikipedia.org/wiki/Harvard_Law_School "Harvard Law School"), [R. C. Clark](https://en.wikipedia.org/w/index.php?title=R._C._Clark&action=edit&redlink=1 "R. C. Clark (page does not exist)"), *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.'
352. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-352)** See the [Reward Work Act, S.2605](https://www.congress.gov/bill/115th-congress/senate-bill/2605/text), sponsored by [Tammy Baldwin](https://en.wikipedia.org/wiki/Tammy_Baldwin "Tammy Baldwin"), [Elizabeth Warren](https://en.wikipedia.org/wiki/Elizabeth_Warren "Elizabeth Warren"), [Brian Schatz](https://en.wikipedia.org/wiki/Brian_Schatz "Brian Schatz"), joined by [Kirsten Gillibrand](https://en.wikipedia.org/wiki/Kirsten_Gillibrand "Kirsten Gillibrand"). In the House, [HR 6096](https://www.govtrack.us/congress/bills/115/hr6096) was sponsored by [Keith Ellison](https://en.wikipedia.org/wiki/Keith_Ellison "Keith Ellison") and [Ro Khanna](https://en.wikipedia.org/wiki/Ro_Khanna "Ro Khanna").
353. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-353)** Massachusetts Laws, General Laws, Part I Administration of the Government, Title XII Corporations, [ch 156 Business Corporations, §23](https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXII/Chapter156/Section23). 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) [35 *Harvard Law Review* 910](https://www.jstor.org/stable/1329012), 915, mentioning the [Dennison Manufacturing Co](https://en.wikipedia.org/wiki/Dennison_Manufacturing_Co "Dennison Manufacturing Co") at [Framingham](https://en.wikipedia.org/wiki/Framingham "Framingham").
354. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-354)** NM Clark, *Common Sense in Labor Management* (1919) [ch II, 29–30](https://archive.org/stream/commonsenseinlab00claruoft#page/28)
355. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-355)** See [W. O. Douglas](https://en.wikipedia.org/wiki/W._O._Douglas "W. O. Douglas") and C. M. Shanks, *Cases and Materials on the Law of Management of Business Units* (Callaghan 1931) [ch 1(7) 130](https://babel.hathitrust.org/cgi/pt?id=wu.89098553043;view=1up;seq=154) and [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "J. R. Commons"), *Industrial Government* (1921) [ch 6](https://archive.org/stream/industrialgovern00comm#page/n13/mode/2up)
356. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-356)** See generally [J. R. Commons](https://en.wikipedia.org/wiki/J._R._Commons "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.
357. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-357)** See [Commission on Industrial Relations](https://en.wikipedia.org/wiki/Commission_on_Industrial_Relations "Commission on Industrial Relations"), *Final Report and Testimony* (1915) vol 1, 92 ff, and [L. D. Brandeis](https://en.wikipedia.org/w/index.php?title=L._D._Brandeis&action=edit&redlink=1 "L. D. Brandeis (page does not exist)"), *The Fundamental Cause of Industrial Unrest* (1916) vol 8, 7672 and [Sidney Webb](https://en.wikipedia.org/wiki/Sidney_Webb "Sidney Webb") and [Beatrice Webb](https://en.wikipedia.org/wiki/Beatrice_Webb "Beatrice Webb"), *The History of Trade Unionism* (1920) Appendix VIII
358. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-358)** See further, [www.worker-participation.eu](http://www.worker-participation.eu/), E McGaughey, 'Votes at Work in Britain: Shareholder Monopolisation and the 'Single Channel' (2018) [15(1) Industrial Law Journal 76](https://ssrn.com/abstract=2432068) and 'The Codetermination Bargains: The History of German Corporate and Labour Law' (2016) [23(1) Columbia Journal of European Law 135](https://ssrn.com/abstract=2579932).
359. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-359)** *[Dunlop Commission on the Future of Worker-Management Relations: Final Report](https://en.wikipedia.org/wiki/Dunlop_Commission_on_the_Future_of_Worker-Management_Relations:_Final_Report "Dunlop Commission on the Future of Worker-Management Relations: Final Report")* ([1994](https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1004&context=key_workplace))
360. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-360)** n.b. The [New Jersey](https://en.wikipedia.org/wiki/New_Jersey "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
361. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-361)** e.g. RA Dahl, 'Power to the Workers?' (November 19, 1970) [New York Review of Books](http://www.nybooks.com/articles/1970/11/19/power-to-the-workers/) 20
362. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-362)** See B Hamer, 'Serving Two Masters: Union Representation on Corporate Boards of Directors' (1981) [81(3) *Columbia Law Review* 639](https://www.jstor.org/stable/1122261), 640 and 'Labor Unions in the Boardroom: An Antitrust Dilemma' (1982) [92(1) *Yale Law Journal* 106](http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1115&context=facpubs)
363. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-363)** 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
364. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-364)** This was stalled by litigation in *[Business Roundtable v. SEC](https://en.wikipedia.org/w/index.php?title=Business_Roundtable_v._SEC&action=edit&redlink=1 "Business Roundtable v. SEC (page does not exist)")*, 647 F3d 1144 (DC Cir 2011). See D Webber, *The Rise of the Working Class Shareholder: Labor's Last Best Weapon* (2018)
365. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-365)** J. D. Blackburn, 'Worker Participation on Corporate Directorates: Is America Ready for Industrial Democracy?' (1980–1981) 18 *Houston Law Review* 349
366. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-366)** 'The Unions Step on Board' (October 27, 1993) Financial Times
367. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-367)** P. J. Purcell, 'The Enron Bankruptcy and Employer Stock in Retirement Plans' (March 11, 2002) [CRS Report for Congress](https://fpc.state.gov/documents/organization/9102.pdf) and JH Langbein, SJ Stabile and BA Wolk, *Pension and Employee Benefit Law* (4th edn Foundation 2006) 640–641
368. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-368)** See RB McKersie, 'Union-Nominated Directors: A New Voice in Corporate Governance' (April 1, 1999) MIT Working Paper. Further discussion in [E. Appelbaum](https://en.wikipedia.org/wiki/E._Appelbaum "E. Appelbaum") and LW Hunter, 'Union Participation in Strategic Decisions of Corporations' (2003) NBER Working Paper 9590
369. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-369)** See E Schelzig, '[Volkswagen powers up 33-acre solar park in Tenn.](https://www.usatoday.com/story/money/business/2013/01/23/tenn-volkswagen-plant-solar/1858937/)' (January 23, 2013) USA Today
370. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-370)** [National Industrial Conference Board](https://en.wikipedia.org/wiki/National_Industrial_Conference_Board "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.
371. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-371)** NICB, Works Council Manual (1920) Supplemental to Research Report No 21, 25, Appendix, Model Article II(1)
372. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-372)** [NLRA 1935](https://en.wikipedia.org/wiki/NLRA_1935 "NLRA 1935") §158(a)(2)
373. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-373)** See further *[NLRB v. Newport News Shipbuilding Co.](https://en.wikipedia.org/w/index.php?title=NLRB_v._Newport_News_Shipbuilding_Co.&action=edit&redlink=1 "NLRB v. Newport News Shipbuilding Co. (page does not exist)")* 308 US 241 (1939)
374. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-374)** [Control Council Law No 22 Works Councils](https://en.wikisource.org/wiki/Control_Council_Law_No_22_\(10_April_1946\)_Works_Councils) (April 10, 1946) in Official Gazette of the Control Council for Germany (1945–1946) 43 (R498) arts III–V.
375. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-375)** See *[San Diego Building Trades Council v. Garmon](https://en.wikipedia.org/wiki/San_Diego_Building_Trades_Council_v._Garmon "San Diego Building Trades Council v. Garmon")* [359 US 236](http://www.worldlii.org/us/cases/federal/USSC/1959/66.html) (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."
376. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-376)** 309 NLRB No 163, 142 LRRM 1001 (1992)
377. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-377)** 311 NLRB No 88, 143 LRRM 1121 (1993)
378. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-378)** US Department of Labor and US Department of Commerce, Commission on the Future of Worker-Management Relations: Final Report (1994) 22, 27, 30–31.
379. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-379)** J Ramsey, '[VW Chattanooga plant union votes to approve collective bargaining](http://www.autoblog.com/2015/12/06/vw-chattanooga-unionize-workforce/)' (December 6, 2015) autoblog.com and NE Boudette, '[Volkswagen Reverses Course on Union at Tennessee Plant](https://www.nytimes.com/2016/04/26/business/volkswagen-reverses-courseon-union-at-tennessee-plant.html?_r=0)' (April 25, 2016) NY Times
380. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-380)** [US Declaration of Independence](https://en.wikipedia.org/wiki/US_Declaration_of_Independence "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](https://en.wikipedia.org/wiki/Consent_of_the_governed "Consent of the governed"). ...
381. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-381)** See the [Universal Declaration of Human Rights](https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights "Universal Declaration of Human Rights") of 1948 and the [Second Bill of Rights of 1944](https://en.wikipedia.org/wiki/Second_Bill_of_Rights_of_1944 "Second Bill of Rights of 1944").
382. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-382)** [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964") §703(a)(1), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2(a)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) [Archived](https://web.archive.org/web/20220119024348/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) January 19, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine"), "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."
383. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-383)** [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2(j)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) [Archived](https://web.archive.org/web/20220119024348/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) January 19, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
384. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-384)** See *[Dred Scott v. Sandford](https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford "Dred Scott v. Sandford")*, [60 US 393](http://www.worldlii.org/us/cases/federal/USSC/1856/9.html) (1857). [US Constitution](https://en.wikipedia.org/wiki/US_Constitution "US Constitution") [Article IV, Section 2](https://en.wikipedia.org/wiki/Fugitive_Slave_Clause "Fugitive Slave Clause"), "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](https://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1793 "Fugitive Slave Act of 1793"), limited by *[Prigg v. Pennsylvania](https://en.wikipedia.org/wiki/Prigg_v._Pennsylvania "Prigg v. Pennsylvania")*, 41 US 539 (1842), restored by the [Fugitive Slave Act of 1850](https://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1850 "Fugitive Slave Act of 1850") and entrenched by *[Ableman v. Booth](https://en.wikipedia.org/wiki/Ableman_v._Booth "Ableman v. Booth")*, 62 US 506 (1859)
385. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-385)** On the end of this, see *[Harper v. Virginia Board of Elections](https://en.wikipedia.org/wiki/Harper_v._Virginia_Board_of_Elections "Harper v. Virginia Board of Elections")*, [383 US 663](http://www.worldlii.org/us/cases/federal/USSC/1966/58.html) (1966) and contrast *[Yick Wo v. Hopkins](https://en.wikipedia.org/wiki/Yick_Wo_v._Hopkins "Yick Wo v. Hopkins")* [118 US 356](http://www.worldlii.org/us/cases/federal/USSC/1886/197.html), 370 (1886) referring to 'the political franchise of voting' as a 'fundamental political right, because \[it is\] preservative of all rights.'
386. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-386)** Contrast the *[Slaughter-House Cases](https://en.wikipedia.org/wiki/Slaughter-House_Cases "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](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution "Fourteenth Amendment to the United States Constitution")'s [clause](https://en.wikipedia.org/wiki/Privileges_or_Immunities_Clause "Privileges or Immunities Clause") that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".
387. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-387)** [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") §1981(a)
388. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-388)** [109 US 3](http://www.worldlii.org/us/cases/federal/USSC/1883/182.html) (1883)
389. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-389)** See also *[Plessy v. Ferguson](https://en.wikipedia.org/wiki/Plessy_v._Ferguson "Plessy v. Ferguson")*, [163 US 537](http://www.worldlii.org/us/cases/federal/USSC/1896/151.html) (1896) holding that state laws segregating black from white people in public places (or "[Jim Crow laws](https://en.wikipedia.org/wiki/Jim_Crow_laws "Jim Crow laws")"), such as [Louisiana](https://en.wikipedia.org/wiki/Louisiana "Louisiana")'s [Separate Car Act](https://en.wikipedia.org/wiki/Separate_Car_Act "Separate Car Act") of 1890, were constitutional. [Harlan J](https://en.wikipedia.org/wiki/Harlan_J "Harlan J") dissented. See also *[Lochner v. New York](https://en.wikipedia.org/wiki/Lochner_v._New_York "Lochner v. New York")* 198 US 45 (1905)
390. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-390)** See the *[Civil Rights Cases](https://en.wikipedia.org/wiki/Civil_Rights_Cases "Civil Rights Cases")* [109 US 3](http://www.worldlii.org/us/cases/federal/USSC/1883/182.html) (1883) where the majority struck down the [Civil Rights Act of 1875](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1875 "Civil Rights Act of 1875")
391. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-391)** [323 US 192](http://www.worldlii.org/us/cases/federal/USSC/1944/136.html) (1944)
392. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-392)** [421 US 454](http://www.worldlii.org/us/cases/federal/USSC/1975/90.html) (1975)
393. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-393)** See *[Washington v. Davis](https://en.wikipedia.org/wiki/Washington_v._Davis "Washington v. Davis")* [426 US 229](http://www.worldlii.org/us/cases/federal/USSC/1976/107.html) (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.
394. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-394)** [414 US 632](http://www.worldlii.org/us/cases/federal/USSC/1974/13.html) (1974)
395. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-395)** See *[Massachusetts Board of Retirement v. Murgia](https://en.wikipedia.org/wiki/Massachusetts_Board_of_Retirement_v._Murgia "Massachusetts Board of Retirement v. Murgia")*, [427 US 307](http://www.worldlii.org/us/cases/federal/USSC/1976/141.html) (1976) and *[Regents of the University of California v. Bakke](https://en.wikipedia.org/wiki/Regents_of_the_University_of_California_v._Bakke "Regents of the University of California v. Bakke")* [438 US 265](http://www.worldlii.org/us/cases/federal/USSC/1978/145.html) (1978). Contrast *[Kücükdeveci v. Swedex GmbH & Co KG](https://en.wikipedia.org/w/index.php?title=K%C3%BCc%C3%BCkdeveci_v._Swedex_GmbH_%26_Co_KG&action=edit&redlink=1 "Kücükdeveci v. Swedex GmbH & Co KG (page does not exist)")* (2010) [C-555/07](http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007J0555:EN:NOT) affirming a constitutional equality principle in [EU law](https://en.wikipedia.org/wiki/EU_law "EU law") and *[Matadeen v. Pointu](https://en.wikipedia.org/w/index.php?title=Matadeen_v._Pointu&action=edit&redlink=1 "Matadeen v. Pointu (page does not exist)")* \[1998\] [UKPC 9](http://www.bailii.org/uk/cases/UKPC/1998/9.html), per [Lord Hoffmann](https://en.wikipedia.org/wiki/Lord_Hoffmann "Lord Hoffmann") discussing the principle of equality as it is potentially seen in Commonwealth jurisdictions.
396. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-396)** *[California Fed Savings and Loan Ass v. Guerra](https://en.wikipedia.org/w/index.php?title=California_Fed_Savings_and_Loan_Ass_v._Guerra&action=edit&redlink=1 "California Fed Savings and Loan Ass v. Guerra (page does not exist)")* [479 US 272](http://www.worldlii.org/us/cases/federal/USSC/1987/3.html) (1987) holding the [California Fair Employment and Housing Act of 1959](https://en.wikipedia.org/wiki/California_Fair_Employment_and_Housing_Act_of_1959 "California Fair Employment and Housing Act of 1959") §12945(b)(2) was not preempted.
397. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-397)** e.g. *[Saint Francis College v. al-Khazraji](https://en.wikipedia.org/wiki/Saint_Francis_College_v._al-Khazraji "Saint Francis College v. al-Khazraji")*, 481 US 604 (1987) an Arabic man was protected from race discrimination under [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964")
398. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-398)** Contrast the [International Labour Organization](https://en.wikipedia.org/wiki/International_Labour_Organization "International Labour Organization") [Discrimination Convention 1958](https://en.wikipedia.org/wiki/Discrimination_Convention_1958 "Discrimination Convention 1958") [c 111](http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C111), 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".
399. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-399)** [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§206(d)(1)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section206&num=0&edition=prelim), "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](https://en.wikipedia.org/w/index.php?title=Equal_work&action=edit&redlink=1 "Equal work (page does not exist)") 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](https://en.wikipedia.org/w/index.php?title=Seniority_system&action=edit&redlink=1 "Seniority system (page does not exist)"); (ii) a [merit system](https://en.wikipedia.org/wiki/Merit_system "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.
400. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-400)** [417 US 188](http://www.worldlii.org/us/cases/federal/USSC/1974/114.html) (1974) See also *[Schultz v. Wheaton Glass Co.](https://en.wikipedia.org/wiki/Schultz_v._Wheaton_Glass_Co. "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](https://en.wikipedia.org/wiki/County_of_Washington_v._Gunther "County of Washington v. Gunther")*, 452 US 161 (1980).
401. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-401)** [FLSA 1938](https://en.wikipedia.org/wiki/FLSA_1938 "FLSA 1938"), 29 USC §203(r)
402. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-402)** After the Supreme Court held by 6 to 3 in *[Geduldig v. Aiello](https://en.wikipedia.org/wiki/Geduldig_v._Aiello "Geduldig v. Aiello")* [417 US 484](http://www.worldlii.org/us/cases/federal/USSC/1974/129.html) (1974) that pregnancy was not included in the concept of sex, Congress reversed the decision by the [Pregnancy Discrimination Act](https://en.wikipedia.org/wiki/Pregnancy_Discrimination_Act "Pregnancy Discrimination Act") of 1978. But see *[AT\&T Corporation v. Hulteen](https://en.wikipedia.org/wiki/AT%26T_Corporation_v._Hulteen "AT&T Corporation v. Hulteen")*, [556](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_556 "List of United States Supreme Court cases, volume 556") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") 701 (2009) 7 to 2, holding that maternity leave taken before the [Pregnancy Discrimination Act](https://en.wikipedia.org/wiki/Pregnancy_Discrimination_Act "Pregnancy Discrimination Act") 1978 did not need to count as time worked that will contribute to pension earnings.
403. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-403)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2](http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter21/subchapter6&edition=prelim)
404. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-404)** cf [ILO](https://en.wikipedia.org/wiki/ILO "ILO") [Equal Remuneration Convention 1951](https://en.wikipedia.org/wiki/Equal_Remuneration_Convention_1951 "Equal Remuneration Convention 1951") [c 100](http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C100), 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](https://en.wikipedia.org/wiki/Collective_agreements "Collective agreements") between employers and workers".
405. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-405)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2(a)(1)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) [Archived](https://web.archive.org/web/20220119024348/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) January 19, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
406. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-406)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§2000e-2(a)(2)](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) [Archived](https://web.archive.org/web/20220119024348/https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim) January 19, 2022, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
407. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-407)** [ADEA 1967](https://en.wikipedia.org/wiki/ADEA_1967 "ADEA 1967"), [29 USC](https://en.wikipedia.org/wiki/29_USC "29 USC") [§§623 and 631](http://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter14&edition=prelim)
408. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-408)** [ADA 1990](https://en.wikipedia.org/wiki/ADA_1990 "ADA 1990"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§12112(a)–(b)](http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter126/subchapter1&edition=prelim)
409. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-409)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") §2000e(b). See *[Walters v. Metropolitan Educational Enterprises, Inc](https://en.wikipedia.org/w/index.php?title=Walters_v._Metropolitan_Educational_Enterprises,_Inc&action=edit&redlink=1 "Walters v. Metropolitan Educational Enterprises, Inc (page does not exist)")* 519 US 202 (1997)
410. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-410)** 450 US 248 (1981) and see previously *[McDonnell Douglas Corp. v. Green](https://en.wikipedia.org/wiki/McDonnell_Douglas_Corp._v._Green "McDonnell Douglas Corp. v. Green")*, 411 US 792 (1973)
411. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-411)** [509 US 502](http://www.worldlii.org/us/cases/federal/USSC/1993/94.html) (1993)
412. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-412)** Contrast *[O'Connor v. Consolidated Coin Caterers Corporation](https://en.wikipedia.org/w/index.php?title=O%27Connor_v._Consolidated_Coin_Caterers_Corporation&action=edit&redlink=1 "O'Connor v. Consolidated Coin Caterers Corporation (page does not exist)")* 517 US 308 (1996) on age discrimination
413. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-413)** CRA 1965, 42 USC §2000e-2(e)
414. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-414)** [433 US 321](http://www.worldlii.org/us/cases/federal/USSC/1977/143.html) (1977)
415. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-415)** [517 FSupp 292](https://en.wikisource.org/wiki/Wilson_v._Southwest_Airlines_Co./Opinion_of_the_Court) (ND Tex 1981)
416. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-416)** [472 US 400](http://www.worldlii.org/us/cases/federal/USSC/1985/161.html) (1985)
417. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-417)** [477 US 57](http://www.worldlii.org/us/cases/federal/USSC/1986/139.html) (1986)
418. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-418)** [510 US 17](https://www.law.cornell.edu/supct/html/92-1168.ZO.html) (1993) reversing the Sixth Circuit.
419. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-419)** *[Burlington Industries Inc v. Ellerth](https://en.wikipedia.org/w/index.php?title=Burlington_Industries_Inc_v._Ellerth&action=edit&redlink=1 "Burlington Industries Inc v. Ellerth (page does not exist)")* [524 US 742](http://www.worldlii.org/us/cases/federal/USSC/1998/83.html) (1998) relying on Restatement of Torts §219
420. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-420)** [524 US 775](http://www.worldlii.org/us/cases/federal/USSC/1998/84.html) (1998) n.b. *[Oncale v. Sundowner Offshore Services, Inc.](https://en.wikipedia.org/wiki/Oncale_v._Sundowner_Offshore_Services,_Inc. "Oncale v. Sundowner Offshore Services, Inc.")*, [523 US 75](http://www.worldlii.org/us/cases/federal/USSC/1998/21.html) (1998) sexual harassment was possible between members of the same sex.
421. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-421)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") §2000e-3
422. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-422)** *[Gomez-Perez v. Potter](https://en.wikipedia.org/wiki/Gomez-Perez_v._Potter "Gomez-Perez v. Potter")*, 553 US 474 (2008) 6 to 3.
423. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-423)** [493 US 182](http://www.worldlii.org/us/cases/federal/USSC/1990/4.html) (1990)
424. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-424)** 519 US 337 (1997)
425. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-425)** *[Burlington Northern & Santa Fe (BNSF) Railway Co. v. White](https://en.wikipedia.org/wiki/Burlington_Northern_%26_Santa_Fe_\(BNSF\)_Railway_Co._v._White "Burlington Northern & Santa Fe (BNSF) Railway Co. v. White")*, 548 US 53 (2006)
426. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-426)** At the time, only 34% of white men and 12% of black men had high school diplomas: [U.S. Bureau of the Census](https://en.wikipedia.org/wiki/U.S._Bureau_of_the_Census "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.
427. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-427)** [401 US 424](http://www.worldlii.org/us/cases/federal/USSC/1971/46.html) (1971)
428. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-428)** This overturned *[Wards Cove Packing Co, Inc v. Atonio](https://en.wikipedia.org/w/index.php?title=Wards_Cove_Packing_Co,_Inc_v._Atonio&action=edit&redlink=1 "Wards Cove Packing Co, Inc v. Atonio (page does not exist)")* 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".
429. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-429)** [CRA 1964](https://en.wikipedia.org/wiki/CRA_1964 "CRA 1964"), [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") §2000e–2(k)(1)(A)
430. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-430)** [557](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_557 "List of United States Supreme Court cases, volume 557") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [557](https://supreme.justia.com/cases/federal/us/557/557/) (2009) [Kennedy J](https://en.wikipedia.org/wiki/Kennedy_J "Kennedy J") giving the first judgment.
431. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-431)** [557](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_557 "List of United States Supreme Court cases, volume 557") [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") ({{{5}}} [2009](https://en.wikipedia.org/wiki/Reporter_of_Decisions_of_the_Supreme_Court_of_the_United_States "Reporter of Decisions of the Supreme Court of the United States")) [557](https://supreme.justia.com/cases/federal/us/557/557/) (dissent) [Ginsburg J](https://en.wikipedia.org/wiki/Ginsburg_J "Ginsburg J"), joined by [Stevens J](https://en.wikipedia.org/wiki/Stevens_J "Stevens J"), [Souter J](https://en.wikipedia.org/wiki/Souter_J "Souter J") and [Breyer J](https://en.wikipedia.org/wiki/Breyer_J "Breyer J")
432. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-432)** [42 USC](https://en.wikipedia.org/wiki/42_USC "42 USC") [§§2000e-5](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-5&num=0&edition=prelim) to [2000e-6](http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-6&num=0&edition=prelim)
433. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-433)** [Federal Rules of Civil Procedure](https://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure "Federal Rules of Civil Procedure") [Rule 23](https://www.federalrulesofcivilprocedure.org/frcp/title-iv-parties/rule-23-class-actions/)
434. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-434)** e.g. *[International Brotherhood of Teamsters v. US](https://en.wikipedia.org/w/index.php?title=International_Brotherhood_of_Teamsters_v._US&action=edit&redlink=1 "International Brotherhood of Teamsters v. US (page does not exist)")* [431 US 324](http://www.worldlii.org/us/cases/federal/USSC/1977/90.html) (1977)
435. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-435)** See *[General Telephone Co of Southwest v. Falcon](https://en.wikipedia.org/w/index.php?title=General_Telephone_Co_of_Southwest_v._Falcon&action=edit&redlink=1 "General Telephone Co of Southwest v. Falcon (page does not exist)")* [457 US 147](http://www.worldlii.org/us/cases/federal/USSC/1982/117.html) (1982)
436. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-436)** 29 USC §206(d)(1).
437. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-437)** This exempts (i) a bona fide seniority system (ii) merit systems (iii) systems measuring earnings by quantity or quality of production.
438. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-438)** [452 US 161](http://www.worldlii.org/us/cases/federal/USSC/1981/126.html) (1981)
439. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-439)** See also *[Schultz v. Wheaton Glass Co](https://en.wikipedia.org/w/index.php?title=Schultz_v._Wheaton_Glass_Co&action=edit&redlink=1 "Schultz v. Wheaton Glass Co (page does not exist)")*, 421 F.2d 259 (3rd Cir 1970)
440. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-440)** Similar problems are evident in the UK's [Equality Act 2010](https://en.wikipedia.org/wiki/Equality_Act_2010 "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.
441. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-441)** See Centre for Business Research, *Labour Regulation Index (Dataset of 117 Countries)* ([2016](https://www.repository.cam.ac.uk/bitstream/handle/1810/256566/cbr-lri-117-countries-codebook-and-methodology.pdf?sequence=1)) 763-4
442. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-442)** See LE Blades, 'Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power' (1967) [67(8) *Columbia Law Review* 1404](https://www.jstor.org/stable/1120937), 1411-12. Contrast the [Delaware General Corporation Law](https://en.wikipedia.org/wiki/Delaware_General_Corporation_Law "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.](https://en.wikipedia.org/w/index.php?title=Campbell_v._Loew%27s,_Inc.&action=edit&redlink=1 "Campbell v. Loew's, Inc. (page does not exist)")*, 36 Del Ch 563, 134 A 2d 852 (Ch 1957) referring to *[Auer v. Dressel](https://en.wikipedia.org/w/index.php?title=Auer_v._Dressel&action=edit&redlink=1 "Auer v. Dressel (page does not exist)")*, 306 NY 427, 118 NE 2d 590, 593 (1954)
443. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-Payne_v._Western_1884_443-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-Payne_v._Western_1884_443-1) *[Cusano v. NLRB](https://en.wikipedia.org/w/index.php?title=Cusano_v._NLRB&action=edit&redlink=1 "Cusano v. NLRB (page does not exist)")* 190 F 2d 898 (1951) citing *[NLRB v. Condenser Corp](https://en.wikipedia.org/w/index.php?title=NLRB_v._Condenser_Corp&action=edit&redlink=1 "NLRB v. Condenser Corp (page does not exist)")*, 128 F.2d 67, 75 (3rd Cir 1942) stating "poor reason". See further *[Payne v. Western & Atlantic Railroad](https://en.wikipedia.org/w/index.php?title=Payne_v._Western_%26_Atlantic_Railroad&action=edit&redlink=1 "Payne v. Western & Atlantic Railroad (page does not exist)")*, 81 Tennessee 507 (1884)
444. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-Title_39_ch_2_part_9,_%C2%A74_444-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-Title_39_ch_2_part_9,_%C2%A74_444-1) Montana Code Annotated 2015 [Title 39 ch 2 part 9, §4](http://leg.mt.gov/bills/mca/title_0390/chapter_0020/part_0090/section_0040/0390-0020-0090-0040.html)
445. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-445)** e.g. [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") presidential campaign, *Workplace Democracy Plan* ([2019](https://berniesanders.com/issues/workplace-democracy/)). Mike Siegel Congress campaign in Texas 2020, [Dignity for Workers by Protecting and Growing Union Membership](https://siegelfortexas.org/labor-rights/) [Archived](https://web.archive.org/web/20200322194605/https://siegelfortexas.org/labor-rights/) March 22, 2020, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
446. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-R_Epstein_1984_446-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-R_Epstein_1984_446-1) e.g. R Epstein, 'In Defense of the Contract at Will' (1984) 57 *University of Chicago Law Review* 947
447. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-academic.oup.com_447-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-academic.oup.com_447-1) e.g. V. V. Acharya and R. P. Baghai, 'Labor Laws and Innovation' (2013) 56(4) *Journal of Law and Economics* 997 and V. V. Acharya, R. P. Baghai, K. V. Subramanian, 'Wrongful Discharge Laws and Innovation' (2014) [27(1) Review of Financial Studies 301](https://academic.oup.com/rfs/article-abstract/27/1/301/1573179)
448. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-448)** e.g. L. E. Blades, 'Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power' (1967) [67(8) *Columbia Law Review* 1404](https://www.jstor.org/stable/1120937). C. L. Estlund, 'How Wrong Are Employees About Their Rights, and Why Does It Matter?' (2002) [77 *NYU Law Review* 6](https://heinonline.org/HOL/LandingPage?handle=hein.journals/nylr77&div=11&id=&page=)
449. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-449)** e.g. L Ryan, 'Ten Ways Employment At Will Is Bad For Business' ([October 3, 2016](https://www.forbes.com/sites/lizryan/2016/10/03/ten-ways-employment-at-will-is-bad-for-business/#27c5492e157b)) Forbes.
450. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-450)** See [chart](https://en.wikipedia.org/wiki/File:United_States_unemployment_with_incarceration_1892-2016.png "File:United States unemployment with incarceration 1892-2016.png") below. E McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2022) [51(3) Industrial Law Journal 511](https://osf.io/preprints/lawarxiv/udbj8)
451. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-451)** [Federal Reserve Act of 1913](https://en.wikipedia.org/wiki/Federal_Reserve_Act_of_1913 "Federal Reserve Act of 1913"), 12 USC §225a
452. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-452)** M Kalecki, 'Political aspects of full employment' (1943) [14(4) Political Quarterly 322](http://pluto.mscc.huji.ac.il/~mshalev/ppe/Kalecki_FullEmployment.pdf)
453. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-453)** 5 USC [§7513(a)](https://uscode.house.gov/view.xhtml?path=/prelim@title5/part3/subpartF/chapter75/subchapter2&edition=prelim)
454. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-454)** *[Campbell v. Loew's, Inc.](https://en.wikipedia.org/w/index.php?title=Campbell_v._Loew%27s,_Inc.&action=edit&redlink=1 "Campbell v. Loew's, Inc. (page does not exist)")*, 36 Del Ch 563, 134 A 2d 852 (Ch 1957) referring to *[Auer v. Dressel](https://en.wikipedia.org/w/index.php?title=Auer_v._Dressel&action=edit&redlink=1 "Auer v. Dressel (page does not exist)")*, 306 NY 427, 118 NE 2d 590, 593 (1954)
455. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-455)** e.g. in [UK labour law](https://en.wikipedia.org/wiki/UK_labour_law "UK labour law"), see the [Employment Rights Act 1996](https://en.wikipedia.org/wiki/Employment_Rights_Act_1996 "Employment Rights Act 1996") [ss 94 ff](http://www.legislation.gov.uk/ukpga/1996/18/part/X).
456. ^ [***a***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-arts_4-13_456-0) [***b***](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-arts_4-13_456-1) [ILO](https://en.wikipedia.org/wiki/ILO "ILO"), [Termination of Employment Convention, 1982](https://en.wikipedia.org/wiki/Termination_of_Employment_Convention,_1982 "Termination of Employment Convention, 1982") [arts 4-13](http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C158)
457. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-457)** See the [German Civil Code](https://en.wikipedia.org/wiki/German_Civil_Code "German Civil Code") or [Bürgerliches Gesetzbuch 1900](https://en.wikipedia.org/wiki/B%C3%BCrgerliches_Gesetzbuch_1900 "Bürgerliches Gesetzbuch 1900") §622 (notice before dismissal) and the [Work Constitution Act 1972](https://en.wikipedia.org/wiki/Work_Constitution_Act_1972 "Work Constitution Act 1972") or Betriebsverfassungsgesetz 1972 (worker participation).
458. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-458)** e.g. [Charter of Fundamental Rights of the European Union](https://en.wikipedia.org/wiki/Charter_of_Fundamental_Rights_of_the_European_Union "Charter of Fundamental Rights of the European Union") [art 30](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)
459. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-459)** e.g. WB MacLeod and V Nakavachara, 'Can Wrongful Discharge Law Enhance Employment?' (2007) [117 Economic Journal F218](https://academic.oup.com/ej/article-abstract/117/521/F218/5086529), I Marinescu, 'Job Security Legislation and Job Duration: Evidence from the United Kingdom' (2009) [27(3) Journal of Labor Economics 465](https://www.journals.uchicago.edu/doi/abs/10.1086/603643). On OECD studies, see E McGaughey, 'OECD Employment Protection Legislation Indicators and Reform' (2019) [ssrn.com](https://ssrn.com/abstract=3434922)
460. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-460)** cf [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") presidential campaign, *Workplace Democracy Plan* ([2019](https://berniesanders.com/issues/workplace-democracy/)). Mike Siegel Congress campaign in Texas 2020, [Dignity for Workers by Protecting and Growing Union Membership](https://siegelfortexas.org/labor-rights/) [Archived](https://web.archive.org/web/20200322194605/https://siegelfortexas.org/labor-rights/) March 22, 2020, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine")
461. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-461)** [California Civil Code](https://en.wikipedia.org/wiki/California_Civil_Code "California Civil Code") (1872) [§1999](https://archive.org/details/16950100/page/427/mode/2up)
462. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-462)** 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.'
463. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-463)** In New York, *[Adams v. Fitzpatrick](https://en.wikipedia.org/w/index.php?title=Adams_v._Fitzpatrick&action=edit&redlink=1 "Adams v. Fitzpatrick (page does not exist)")* 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](https://en.wikipedia.org/w/index.php?title=Martin_v._New_York_Life_Insurance_Co&action=edit&redlink=1 "Martin v. New York Life Insurance Co (page does not exist)")* 148 NY 117 (NY 1895) the [New York Supreme Court](https://en.wikipedia.org/wiki/New_York_Supreme_Court "New York Supreme Court") held the at will doctrine was 'correctly stated by Mr Wood.' Also *[Adair v. United States](https://en.wikipedia.org/wiki/Adair_v._United_States "Adair v. United States")*, 208 US 161 (1908) the minority dissenting against the lawfulness of [yellow-dog contracts](https://en.wikipedia.org/wiki/Yellow-dog_contracts "Yellow-dog contracts"), but Harlan J conceding that an employer "was at liberty, in his discretion, to discharge \[an employee\] from service without giving any reason for doing so." Contrast EA Ross, 'A Legal Dismissal Wage' (1919) [9(1) American Economic Review 132](http://www.jstor.org/stable/1813991?seq=2) and AS Erofones, 'Contracts. Termination of Employment at Weekly Salary' (1927) [40(4) Harvard LR 646](http://www.jstor.org/stable/1330455)
464. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-464)** [National Labor Relations Act of 1935](https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935 "National Labor Relations Act of 1935") §8(a)(3) preventing union discrimination
465. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-465)** [Civil Rights Act of 1964](https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964 "Civil Rights Act of 1964") 42 USC §2000e-2(a). [Age Discrimination in Employment Act of 1967](https://en.wikipedia.org/wiki/Age_Discrimination_in_Employment_Act_of_1967 "Age Discrimination in Employment Act of 1967"), 29 USC §§621-634. [Americans with Disabilities Act of 1990](https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990 "Americans with Disabilities Act of 1990").
466. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-466)** [Occupational Safety and Health Act of 1970](https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act_of_1970 "Occupational Safety and Health Act of 1970"), 29 USC §§651-678
467. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-467)** [Fair Labor Standards Act of 1938](https://en.wikipedia.org/wiki/Fair_Labor_Standards_Act_of_1938 "Fair Labor Standards Act of 1938"), 29 USC §§20-219
468. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-468)** [ERISA 1974](https://en.wikipedia.org/wiki/ERISA_1974 "ERISA 1974"), 29 USC §§1140-41
469. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-469)** [Family and Medical Leave Act](https://en.wikipedia.org/wiki/Family_and_Medical_Leave_Act "Family and Medical Leave Act"), 29 USC §2615
470. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-470)** [Vietnam Era Veterans' Readjustment Assistance Act](https://en.wikipedia.org/wiki/Vietnam_Era_Veterans%27_Readjustment_Assistance_Act "Vietnam Era Veterans' Readjustment Assistance Act"), 38 USC §2021(a)(A)(i). [Rehabilitation Act of 1973](https://en.wikipedia.org/wiki/Rehabilitation_Act_of_1973 "Rehabilitation Act of 1973"). [Energy Reorganization Act of 1974](https://en.wikipedia.org/wiki/Energy_Reorganization_Act_of_1974 "Energy Reorganization Act of 1974"), 42 USC §5851. [Clean Air Act of 1963](https://en.wikipedia.org/wiki/Clean_Air_Act_of_1963 "Clean Air Act of 1963"), 42 USC §7622. [Federal Water Pollution Control Act](https://en.wikipedia.org/wiki/Federal_Water_Pollution_Control_Act "Federal Water Pollution Control Act"), 33 USC §1367. [Railroad Safety Act](https://en.wikipedia.org/w/index.php?title=Railroad_Safety_Act&action=edit&redlink=1 "Railroad Safety Act (page does not exist)"), 45 US §441(a). [Consumer Credit Protection Act](https://en.wikipedia.org/wiki/Consumer_Credit_Protection_Act "Consumer Credit Protection Act"), 15 USC §1674. [Judiciary and Judicial Procedure Act](https://en.wikipedia.org/w/index.php?title=Judiciary_and_Judicial_Procedure_Act&action=edit&redlink=1 "Judiciary and Judicial Procedure Act (page does not exist)"), 28 USC §1875
471. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-471)** *[Petermann v. International Brotherhood of Teamsters](https://en.wikipedia.org/w/index.php?title=Petermann_v._International_Brotherhood_of_Teamsters&action=edit&redlink=1 "Petermann v. International Brotherhood of Teamsters (page does not exist)")* 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'.
472. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-472)** *[Ivy v. Army Times Pub Co](https://en.wikipedia.org/w/index.php?title=Ivy_v._Army_Times_Pub_Co&action=edit&redlink=1 "Ivy v. Army Times Pub Co (page does not exist)")* 428 A.2d 831 (DC App 1981) declining to perjure at employer's request.
473. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-473)** e.g. *[Nees v. Hocks](https://en.wikipedia.org/w/index.php?title=Nees_v._Hocks&action=edit&redlink=1 "Nees v. Hocks (page does not exist)")* 536 P2d 512 (Or 1975) refusing to seek to be excused from serving on a jury. *[Daniel v. Carolina Sunrock Corp](https://en.wikipedia.org/w/index.php?title=Daniel_v._Carolina_Sunrock_Corp&action=edit&redlink=1 "Daniel v. Carolina Sunrock Corp (page does not exist)")* 335 NC 233 (NC 1993) responding to a subpoena.
474. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-474)** e.g. *[Perks v. Firestone Tire & Rubber Co](https://en.wikipedia.org/w/index.php?title=Perks_v._Firestone_Tire_%26_Rubber_Co&action=edit&redlink=1 "Perks v. Firestone Tire & Rubber Co (page does not exist)")* 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](https://en.wikipedia.org/w/index.php?title=Tacket_v._Delco_Remy,_Division_of_General_Motors_Corp&action=edit&redlink=1 "Tacket v. Delco Remy, Division of General Motors Corp (page does not exist)")* 937 F.2d 1201 (7th Cir 1992) filing litigation against the employer
475. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-475)** e.g. *[Sheets v. Teddy's Frosted Foods, Inc.](https://en.wikipedia.org/w/index.php?title=Sheets_v._Teddy%27s_Frosted_Foods,_Inc.&action=edit&redlink=1 "Sheets v. Teddy's Frosted Foods, Inc. (page does not exist)")* 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.
476. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-476)** e.g. *[Hausman v. St Croix Care Center, Inc.](https://en.wikipedia.org/w/index.php?title=Hausman_v._St_Croix_Care_Center,_Inc.&action=edit&redlink=1 "Hausman v. St Croix Care Center, Inc. (page does not exist)")*, 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](https://en.wikipedia.org/wiki/Fortunato_v._Office_of_Stephen_M._Silston "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.
477. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-477)** 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..."
478. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-478)** [Restatement (Second) of Contracts 1981](https://en.wikipedia.org/wiki/Restatement_\(Second\)_of_Contracts_1981 "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'
479. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-479)** e.g. *[Fortune v. National Cash Register Co](https://en.wikipedia.org/w/index.php?title=Fortune_v._National_Cash_Register_Co&action=edit&redlink=1 "Fortune v. National Cash Register Co (page does not exist)")*, 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](https://en.wikipedia.org/wiki/Magnan_v._Anaconda_Industries "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.
480. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-480)** e.g. *[Bammert v. Don's Super Valu, Inc.](https://en.wikipedia.org/wiki/Bammert_v._Don%27s_Super_Valu,_Inc. "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](https://en.wikipedia.org/wiki/Brockmeyer_v._Dun_%26_Bradstreet "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.
481. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-481)** e.g. *[Wilking v. County of Ramsey](https://en.wikipedia.org/w/index.php?title=Wilking_v._County_of_Ramsey&action=edit&redlink=1 "Wilking v. County of Ramsey (page does not exist)")* 983 F. Supp. 848 (8th Cir 1998) poor performance claims are more credible if the employer shows it gave a warning about improving.
482. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-482)** e.g. *[Taylor v. Procter & Gamble Dover Wipes](https://en.wikipedia.org/w/index.php?title=Taylor_v._Procter_%26_Gamble_Dover_Wipes&action=edit&redlink=1 "Taylor v. Procter & Gamble Dover Wipes (page does not exist)")* (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](https://en.wikipedia.org/w/index.php?title=Pearson_v._Metro-North_Commuter_Railroad&action=edit&redlink=1 "Pearson v. Metro-North Commuter Railroad (page does not exist)")* 1990 WL 20173 (SDNY 1990) if a rule is not consistently enforced, it cannot be relied on by the employer.
483. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-483)** e.g. *[Eastern Associated Coal Corp. v. Mine Workers](https://en.wikipedia.org/wiki/Eastern_Associated_Coal_Corp._v._Mine_Workers "Eastern Associated Coal Corp. v. Mine Workers")*, 531 US 57 (2000) an employee tested positive for [marijuana](https://en.wikipedia.org/wiki/Marijuana "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.
484. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-484)** e.g. *[Lincoln v. University System of Georgia Board of Regents](https://en.wikipedia.org/w/index.php?title=Lincoln_v._University_System_of_Georgia_Board_of_Regents&action=edit&redlink=1 "Lincoln v. University System of Georgia Board of Regents (page does not exist)")* 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.
485. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-485)** *[Toussaint v. Blue Cross & Blue Shield of Michigan](https://en.wikipedia.org/w/index.php?title=Toussaint_v._Blue_Cross_%26_Blue_Shield_of_Michigan&action=edit&redlink=1 "Toussaint v. Blue Cross & Blue Shield of Michigan (page does not exist)")*, 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.](https://en.wikipedia.org/wiki/Torosyan_v._Boehringer_Ingelheim_Pharmaceuticals,_Inc. "Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc.")*, 662 A2d 89 (1995)
486. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-486)** e.g. *[Schipani v. Ford Motor Co](https://en.wikipedia.org/w/index.php?title=Schipani_v._Ford_Motor_Co&action=edit&redlink=1 "Schipani v. Ford Motor Co (page does not exist)")* 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.
487. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-487)** cf [Charter of Fundamental Rights of the European Union 2000](https://en.wikipedia.org/wiki/Charter_of_Fundamental_Rights_of_the_European_Union_2000 "Charter of Fundamental Rights of the European Union 2000") [art 27](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)
488. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-488)** [Control Council Law No 22](https://en.wikipedia.org/wiki/Control_Council_Law_No_22 "Control Council Law No 22") ([10 April 1946](https://en.wikisource.org/wiki/Control_Council_Law_No_22_\(10_April_1946\)_Works_Councils#Articles_IV)) art V. Today see the [Work Constitution Act 1972](https://en.wikipedia.org/wiki/Work_Constitution_Act_1972 "Work Constitution Act 1972") or Betriebsverfassungsgesetz 1972 (worker participation).
489. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-489)** e.g. *[Telesphere International Inc v. Scollin](https://en.wikipedia.org/w/index.php?title=Telesphere_International_Inc_v._Scollin&action=edit&redlink=1 "Telesphere International Inc v. Scollin (page does not exist)")* 489 So 2d 1152 (Fla App 1986) eliminating a product or service. *[Nixon v. Celotext Corp](https://en.wikipedia.org/w/index.php?title=Nixon_v._Celotext_Corp&action=edit&redlink=1 "Nixon v. Celotext Corp (page does not exist)")* 693 F Supp 547 (WD Mich 1988) consolidating operations.
490. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-490)** See the [Control Council Law No 22](https://en.wikipedia.org/wiki/Control_Council_Law_No_22 "Control Council Law No 22") ([10 April 1946](https://en.wikisource.org/wiki/Control_Council_Law_No_22_\(10_April_1946\)_Works_Councils#Articles_IV)) art V, in post-war Germany, now re-enacted in the [Work Constitution Act 1972](https://en.wikipedia.org/wiki/Work_Constitution_Act_1972 "Work Constitution Act 1972") or Betriebsverfassungsgesetz 1972 (worker participation in layoffs).
491. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-491)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2101(a)(2)-(3)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim). §2101(a)(1), the 100 employee threshold excludes part-time employees.
492. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-492)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2102(a)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim)
493. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-493)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§§2101(a)(6) and 2101(b)(2)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim)
494. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-494)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2102(b)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim)
495. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-495)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2102(b)(2)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim) and see *[Local Union 7107, United Mine Workers v. Clinchfield Coal Co](https://en.wikipedia.org/w/index.php?title=Local_Union_7107,_United_Mine_Workers_v._Clinchfield_Coal_Co&action=edit&redlink=1 "Local Union 7107, United Mine Workers v. Clinchfield Coal Co (page does not exist)")* 124 F3d 639 (4th Cir 1997) cancellation of major contract in unforeseeable circumstances.
496. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-496)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2104(a)(4)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim). See *[Kildea v. Electro-Wire Products, Inc.](https://en.wikipedia.org/w/index.php?title=Kildea_v._Electro-Wire_Products,_Inc.&action=edit&redlink=1 "Kildea v. Electro-Wire Products, Inc. (page does not exist)")* 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.
497. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-497)** [WARN Act 1988](https://en.wikipedia.org/wiki/WARN_Act_1988 "WARN Act 1988") [§2104(a)(1)-(3)](https://uscode.house.gov/view.xhtml?path=/prelim@title29/chapter23&edition=prelim)
498. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-498)** See [E. Appelbaum](https://en.wikipedia.org/wiki/Eileen_Appelbaum "Eileen Appelbaum") and R Batt, *Private Equity at Work – When Wall Street Manages Main Street* (2014)
499. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-499)** *[Unocal Corp. v. Mesa Petroleum Co.](https://en.wikipedia.org/wiki/Unocal_Corp._v._Mesa_Petroleum_Co. "Unocal Corp. v. Mesa Petroleum Co.")* 493 A 2d 946 (Del 1985)
500. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-500)** [417](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_417 "List of United States Supreme Court cases, volume 417") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [249](https://supreme.justia.com/cases/federal/us/417/249/) (1974)
501. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-501)** [Universal Declaration of Human Rights](https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights "Universal Declaration of Human Rights") [art 23(1)](https://en.wikisource.org/wiki/Universal_Declaration_of_Human_Rights#Article_23) and [International Covenant on Economic, Social and Cultural Rights 1966](https://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights_1966 "International Covenant on Economic, Social and Cultural Rights 1966") [art 6](https://en.wikisource.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights#Article_6)
502. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-502)** See also [Franklin D. Roosevelt](https://en.wikipedia.org/wiki/Franklin_D._Roosevelt "Franklin D. Roosevelt"), '[Second Bill of Rights](https://en.wikipedia.org/wiki/Second_Bill_of_Rights "Second Bill of Rights")', in *State of the Union Address* (January 11, 1944)
503. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-503)** 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
504. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-504)** [239 US 33](http://www.worldlii.org/us/cases/federal/USSC/1915/229.html) (1915) per [Justice Hughes](https://en.wikipedia.org/wiki/Charles_Evans_Hughes "Charles Evans Hughes"). cf *[Massachusetts Board of Retirement v. Murgia](https://en.wikipedia.org/wiki/Massachusetts_Board_of_Retirement_v._Murgia "Massachusetts Board of Retirement v. Murgia")* [427 US 307](http://www.worldlii.org/us/cases/federal/USSC/1976/141.html) (1976) holding that an age limit of 50 years old for police in Massachusetts was constitutional.
505. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-505)** The [Works Progress Administration](https://en.wikipedia.org/wiki/Works_Progress_Administration "Works Progress Administration") was created by Executive Order 7034, and replaced the [Federal Emergency Relief Administration](https://en.wikipedia.org/wiki/Federal_Emergency_Relief_Administration "Federal Emergency Relief Administration") which was itself created by the [Federal Emergency Relief Act of 1933](https://en.wikipedia.org/wiki/Federal_Emergency_Relief_Act_of_1933 "Federal Emergency Relief Act of 1933").
506. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-506)** E McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2022) [51(3) Industrial Law Journal 511](https://osf.io/preprints/lawarxiv/udbj8)
507. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-507)** [Employment Act of 1946](https://en.wikipedia.org/wiki/Employment_Act_of_1946 "Employment Act of 1946"), [15 USC §1021](https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter21&edition=prelim)
508. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-508)** 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.
509. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-509)** *[Board of Regents of State Colleges v. Roth](https://en.wikipedia.org/wiki/Board_of_Regents_of_State_Colleges_v._Roth "Board of Regents of State Colleges v. Roth")* [408 US 564, 588](http://www.worldlii.org/us/cases/federal/USSC/1972/168.html) (1972) per [Justice Marshall](https://en.wikipedia.org/wiki/Thurgood_Marshall "Thurgood Marshall") dissenting.
510. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-510)** 15 USC §3116
511. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-511)** 15 USC [§1022a](https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter21&edition=prelim).
512. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-512)** 15 USC [§1022c](https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter21&edition=prelim).
513. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-513)** [Emergency Relief Appropriation Act of 1935](https://en.wikipedia.org/wiki/Emergency_Relief_Appropriation_Act_of_1935 "Emergency Relief Appropriation Act of 1935")
514. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-514)** Amended by the [Federal Reserve Reform Act of 1977](https://en.wikipedia.org/wiki/Federal_Reserve_Reform_Act_of_1977 "Federal Reserve Reform Act of 1977"), 12 USC §225a
515. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-515)** See [Marriner Stoddard Eccles](https://en.wikipedia.org/wiki/Marriner_Stoddard_Eccles "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](https://en.wikipedia.org/wiki/J._M._Keynes "J. M. Keynes"), *[The General Theory of Employment, Interest and Money](https://en.wikipedia.org/wiki/The_General_Theory_of_Employment,_Interest_and_Money "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."
516. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-516)** 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
517. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-517)** 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.
518. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-518)** E. McGaughey, 'Will Robots Automate Your Job Away? Full Employment, Basic Income, and Economic Democracy' (2018) [Centre for Business Research, University of Cambridge, Working Paper no. 496](https://osf.io/preprints/lawarxiv/udbj8), part 2(1)
519. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-519)** Social Security Act of 1935, 42 USC §§501-4, 1101-5. *[Steward Machine Company v. Davis](https://en.wikipedia.org/wiki/Steward_Machine_Company_v._Davis "Steward Machine Company v. Davis")*, 301 US 548 (1937) held [unemployment benefits](https://en.wikipedia.org/wiki/Unemployment_benefits "Unemployment benefits") to be constitutional.
520. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-520)** e.g. *[Millner v. Enck](https://en.wikipedia.org/w/index.php?title=Millner_v._Enck&action=edit&redlink=1 "Millner v. Enck (page does not exist)")* 709 A 2d 417 (Pa Super 1998)
521. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-521)** e.g. *[Cullison v. Commonwealth Unemployment Compensation Board of Review](https://en.wikipedia.org/w/index.php?title=Cullison_v._Commonwealth_Unemployment_Compensation_Board_of_Review&action=edit&redlink=1 "Cullison v. Commonwealth Unemployment Compensation Board of Review (page does not exist)")* 444 A.2d 1330 (Pa 1982) and *[Employment Division, Department of Human Resources v. Smith](https://en.wikipedia.org/wiki/Employment_Division,_Department_of_Human_Resources_v._Smith "Employment Division, Department of Human Resources v. Smith")*, 494 US 872 (1988)
522. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-522)** *[Ohio Bureau of Employment Services v. Hodary](https://en.wikipedia.org/w/index.php?title=Ohio_Bureau_of_Employment_Services_v._Hodary&action=edit&redlink=1 "Ohio Bureau of Employment Services v. Hodary (page does not exist)")*, 431 US 471 (1977)
523. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-523)** [Internal Revenue Code](https://en.wikipedia.org/wiki/Internal_Revenue_Code "Internal Revenue Code") §3304(a)(5)
524. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-524)** *[Brazee v. Michigan](https://en.wikipedia.org/w/index.php?title=Brazee_v._Michigan&action=edit&redlink=1 "Brazee v. Michigan (page does not exist)")*, [241](https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_241 "List of United States Supreme Court cases, volume 241") [US](https://en.wikipedia.org/wiki/United_States_Reports "United States Reports") [340](https://supreme.justia.com/cases/federal/us/241/340/) (1916). Contrast *[Adams v. Tanner](https://en.wikipedia.org/wiki/Adams_v._Tanner "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](https://en.wikipedia.org/wiki/ILO "ILO"), [Private Employment Agencies Convention, 1997](https://en.wikipedia.org/wiki/Private_Employment_Agencies_Convention,_1997 "Private Employment Agencies Convention, 1997")
525. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-525)** [Bernie Sanders](https://en.wikipedia.org/wiki/Bernie_Sanders "Bernie Sanders") and [Jane Sanders](https://en.wikipedia.org/wiki/Jane_Sanders "Jane Sanders"), [Eugene V. Debs Documentary](https://www.youtube.com/watch?v=oY2mQxm4SNQ) (1979)
526. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-526)** The [Fair Employment and Housing Act](http://finduslaw.com/california_fair_employment_and_housing_act_feha_government_code_12900_12996)
527. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-527)** [Details of law](http://www.dfeh.ca.gov/Statutes/feha.asp) [Archived](https://web.archive.org/web/20060116063230/http://www.dfeh.ca.gov/Statutes/feha.asp) January 16, 2006, at the [Wayback Machine](https://en.wikipedia.org/wiki/Wayback_Machine "Wayback Machine") from the DFEH website
528. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-528)**
Barnes & Thornburg LLP (October 12, 2011). ["California Enacts 22 New Employment Laws Impacting All Companies Doing Business in the State"](http://www.natlawreview.com/article/california-enacts-22-new-employment-laws-impacting-all-companies-doing-business-state). The National Law Review.
529. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-529)**
New Jersey, Legislature (April 16, 1945). ["L.1945 c.168-174. AN Act concerning civil rights, and amending sections 10 :1-3, 10 :1-6 and 10 :1-8 of the Revised Statutes"](https://dspace.njstatelib.org//handle/10929/56526). *NJ State Library*. Retrieved November 15, 2021.
530. **[^](https://en.wikipedia.org/wiki/United_States_labor_law#cite_ref-530)** The [New Jersey Law Against Discrimination](https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/know-the-law/)
Books
- [John R. Commons](https://en.wikipedia.org/wiki/John_R._Commons "John R. Commons"), *[Principles of Labor Legislation](https://en.wikipedia.org/wiki/Principles_of_Labor_Legislation "Principles of Labor Legislation")* (1916)
- [John R. Commons](https://en.wikipedia.org/wiki/John_R._Commons "John R. Commons"), *History of Labor in the United States* (Macmillan 1918) [vol I](https://archive.org/stream/historyoflabouri01commuoft#page/n7/mode/2up) and [vol II](https://archive.org/stream/historyoflabouri02commuoft#page/n7/mode/2up)
- R. Covington, *Employment Law in a Nutshell* (3rd edn 2009) [ISBN](https://en.wikipedia.org/wiki/ISBN_\(identifier\) "ISBN (identifier)")
[0314195408](https://en.wikipedia.org/wiki/Special:BookSources/0314195408 "Special:BookSources/0314195408")
- [Archibald Cox](https://en.wikipedia.org/wiki/Archibald_Cox "Archibald Cox"), D. C. Bok, [Matthew W. Finkin](https://en.wikipedia.org/wiki/Matthew_W._Finkin "Matthew W. Finkin") and R. A. Gorman, *Labor Law: Cases and Materials* (2011) [ISBN](https://en.wikipedia.org/wiki/ISBN_\(identifier\) "ISBN (identifier)")
[1684679818](https://en.wikipedia.org/wiki/Special:BookSources/1684679818 "Special:BookSources/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](https://en.wikipedia.org/wiki/Lance_Liebman "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, ['The Development of the Employment at Will Rule'](https://www.jstor.org/pss/844727) (1976) 20(2) *The American Journal of Legal History* 118
- [Herbert Hovenkamp](https://en.wikipedia.org/wiki/Herbert_Hovenkamp "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
- [Labor laws of Federal and State legislatures on law.cornell.edu](https://topics.law.cornell.edu/wex/table_labor)
- [Synopses of US Employment Law Cases](https://web.archive.org/web/20061211185840/http://hrlawindex.com/)
- [Typical benefits of a union contract](https://web.archive.org/web/20100911111241/http://www.iww.org/en/organize/laborlaw/contract1.shtml)
- [Federal employment discrimination law office](http://pinesfederal.com/) |
| Shard | 152 (laksa) |
| Root Hash | 17790707453426894952 |
| Unparsed URL | org,wikipedia!en,/wiki/United_States_labor_law s443 |