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