Employee rights can be broken down into four primary categories:
Most contemporary employee rights were established through legislation, rather than through collective bargaining, although collective bargaining has also made contributions.
Prior to federal legislation, labor-management relations were regulated at the state level, and often in the courts on a case-by-case common law basis. The earliest labor organizations in the United States were the workers' associations, begun in the late 18th century. Until the middle of the 19th century, state courts generally ruled that it constituted an unlawful conspiracy for workers to organize on the basis of minimum pay rates for members.
An 1842 ruling by the Massachusetts Supreme Court affirmed the right of workers to organize, and other state courts also came to recognize this right. The states continued to vary widely, however, in restrictions on labor unions' activities. Some states recognized the right of workers to strike but not to picket in support of their strike, on the grounds that picketing interfered with employees who wished to work and with employers' operations. Other states that recognized the right to strike and picket often restricted these activities on the basis of the so-called ends/ means test. That is, the right of unions to strike and picket could be curtailed if a court did not approve of the purpose or conduct of the strike. Similarly, product boycotts of employers involved in a labor dispute were occasionally ruled to be unlawful.
Collective bargaining agreements were held to be valid and binding in many states. Yet employers were under no obligation to bargain or enter into collective bargaining agreements. A strike undertaken with the intent to compel an employer to sign a contract could be enjoined by the courts on the grounds that such a strike interfered with the employer's right to enter into a contract solely on a voluntary basis. After the passage of the Sherman Antitrust Act of 1890, the federal courts also acted to curtail strikes and boycotts on the grounds that such activities constituted a conspiracy or combination in restraint of the free flow of trade.
The first comprehensive federal labor law was the Railway Labor Act of 1926. The act recognized the right of railroad workers to organize and engage in collective bargaining and was extended to include airline workers in 1936. The Norris-LaGuardia Act of 1932 declared the unlawfulness of the ends/means test, preventing a judge from enjoining a strike on the basis of the strike's purposes or methods.
A key piece of legislation for the rights of workers was the National Labor Relations Act (NLRA) of 1935, commonly referred to as the Wagner Act. This law was enacted during the Great Depression as part of the Roosevelt administration's New Deal. The act was groundbreaking in a number of respects. It protected the rights of workers to join unions and to engage in collective bargaining. The act also prohibited employers from engaging in what it termed unfair labor practices, including interfering with a worker's right to join a union and engage in union activities. Wagner established procedures by which unionized workers elected their representatives and required employers to bargain in good faith with these representatives. Largely as a result of the Wagner Act, union membership in the United States increased from 4 million in 1935 to 12 million in 1947.
The Wagner Act provided for the establishment of the National Labor Relations Board (NLRB). In a direct response to enormous popular ferment exacerbated by, and often grounded in, the conditions created by the Great Depression, Congress's motive in establishing the NLRB was to circumvent the courts, which had traditionally ruled in favor of employers. Though its powers have been modified since then, the NLRB remains the key government agency mediating labor-management relations in the United States.
The Fair Labor Standards Act of 1938, commonly known as the Wage-Hour Law, established a minimum wage, restricted the use of child labor, and required employers to pay a 50 percent premium for all hours worked in excess of 40 per week.
The Labor Management Relations Act of 1947, commonly referred to as the Taft-Hartley Act, significantly amended the National Labor Relations Act of 1935. Whereas the Wagner Act was pro-labor, Taft-Hartley reflected employers' interests. Mirroring the provisions of Wagner, the Taft-Hartley Act prohibited what it defined as unfair labor practices on the part of unions. Unions were also required to bargain in good faith. Taft-Hartley permitted states to enact what came to be called "right-to-work" laws that prohibited the union shop, in which all workers in a shop were required to be dues-paying union members. Right-to-work laws made it more difficult for unions to organize, and they are still opposed by organized labor today.
The National Labor Relations Act was also amended by the Labor Management Reporting and Disclosure Act of 1959, commonly referred to as the Landrum-Griffin Act. Landrum-Griffin established a so-called Bill of Rights for union members, regulating union elections and the disclosure of the financial records of unions, union representatives, and employers. The act also eliminated the so-called "hot cargo" clauses of the original National Labor Relations Act, which prohibited one employer from doing business with others for whom workers were either on strike or nonunionized.
The Postal Reorganization Act of 1970 put postal workers under the jurisdiction of the National Labor Relations Board and gave them the right to engage in collective bargaining. As federal employees, postal workers did not have the right to strike. The Reorganization Act prohibited the union shop for postal workers and, in contrast with the National Labor Relations Act, provided for binding arbitration in cases of otherwise unresolvable labor disputes.
The National Labor Relations Act was modified once again in 1974 by the Health Care Amendments, which covered workers in nonprofit hospitals. Only workers in for-profit hospitals had previously been covered. In 1980, the Religious Belief Exemption established for hospital workers by the Health Care Amendments was extended to include all workers. The Religious Belief Exemption provided that if workers had religious objections, they need not join unions or pay union dues as a condition of employment.
The National Labor Relations Board's jurisdiction is limited to preventing unfair labor practices and administering union elections as provided for in Sections 8 and 9, respectively, of the NLRA. The U.S. Department of Labor and the Equal Employment Opportunity Commission (EEOC) are the other federal agencies that administer labor law. The Department of Labor oversees the Fair Labor Standards Act, the Occupational Safety and Health Act, and parts of the Landrum-Griffin and Employee Retirement Income Security Act of 1974 (ERISA). The EEOC oversees Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.
Collective bargaining has to be undertaken by what the NLRB deems an appropriate bargaining unit. Appropriate units are required to have a distinct community of interest. Thus employees across a firm's plants can bargain collectively if their interests are not at odds with each other. In recent years, the NLRB has tended to look with increasing favor on larger bargaining units. The requirement of a distinct community of interest means that certain types of employees are excluded from the bargaining units of regularly employed workers. Among excluded employees are supervisors and managers, part-time and temporary workers, independent contractors, and family members of employers.
Elections addressing union representation can take place during a strike. The eligibility of workers to vote during a strike depends on a number of factors. Workers striking on the grounds of unfair labor practices can continue voting regardless of how long they have been on strike, and replacements for such strikers are not allowed to vote. Workers striking on economic grounds who are replaced can vote for up to one year after the beginning of a strike, and their replacements are permitted to vote. Laid-off employees are also eligible to vote provided that they are likely to be recalled at some point.
Employers are barred from engaging in a number of practices in the face of unionization efforts. Employers are prohibited from using the threat of reprisal or force to discourage unionization, as well as from promising benefits if workers choose not to unionize. Employers are also barred from hindering the distribution of union literature, from engaging in the interrogation or surveillance of employees' union activities, from using fraudulent documents, from giving a speech to employees on company time within 24 hours of an election, and from otherwise interfering with the NLRB's administration of an election. If employers violate these regulations, the NLRB can call for a new election or, in cases of extreme violation, can compel employers to bargain with the union even if the union lost the election.
Unions that are certified as bargaining agents by the NLRB have the right of exclusive representation. That is, employers are prohibited from dealing with any other employee representatives on issues involving wages, working hours, and other conditions of employment. Employers are prohibited from providing most types of assistance to the union and from dominating unions. Unions dominated by employers are considered company unions, which are prohibited by the Wagner Act. Unionized workers have the right to have a shop steward present at any questioning by the employer that could lead to dismissal. (During the 1980s, however, the NLRB weakened its position on the reinstatement of workers who were dismissed as a result of unlawful questioning). The NLRA prohibits employers from discriminating against workers based on their union activities, whether this discrimination takes the form of firing, denying promotion, assigning less desirable work, or reducing benefits. Employers are also prohibited from discriminating against workers who file charges or provide testimony under the NLRA.
Both employers and union representatives are required to bargain in good faith. To go through the motions of bargaining without the intent to come to an agreement is unlawful "surface bargaining." Items negotiated in contracts are categorized as mandatory or permissive. Mandatory items include wages, working hours, and working conditions, and are the items for which employers and union representatives are required to bargain. Unions can strike based on disagreement over mandatory items only. Employers and union representatives can agree to bargain over permissive items, which include issues not directly related to wages, hours, and working conditions. Unions also have wide-ranging rights to company information relevant to the negotiation process.
The replacement of striking workers is one of most contentious issues in the field of employee rights. A distinction is made between workers striking over an employer's alleged unfair labor practices versus over wages, benefits, and other economic issues. Employers are able to freely replace workers striking over economic issues. Workers striking over unfair labor practices can't be permanently replaced, however, unless they find equivalent employment elsewhere or their jobs are eliminated and they are unqualified to fill remaining openings. Though employers have had the legal right since 1935 to replace workers striking on economic grounds, they rarely chose to do so until the 1980s. The Reagan administration's firing of the air traffic controllers' organization during a strike in 1981 ushered in a decade in which the replacement of striking workers skyrocketed, as businesses sensed that the administration took their side in the battle with labor. Business, both big and small, saw that move as a green light to declare open war on organized labor.
The debate continued into the 1990s. The proposed Workplace Fairness Act would have prohibited employers from hiring permanent replacements for striking workers. The act was blocked for a second time in July 1993 by a Republican filibuster. In March 1995, President Clinton issued an Executive Order whereby businesses that permanently replace striking workers would be prohibited from receiving federal contracts, and possibly have existing contracts terminated. Shortly thereafter, a coalition of business challenged the Executive Order in court. A federal appeals court panel in Washington, D.C. struck down the Executive Order on February 2, 1996, on the grounds that federal labor law preempted the Executive Order.
Civil rights became an important component of employee rights with the passage of the Civil Rights Act of 1964. Employee rights are addressed in Title VII of the act, which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. (The Equal Pay Act of 1963, an amendment to the Fair Labor Standards Act of 1938, was a predecessor to Title VII that established the principle of equal pay for equal work between male and female workers.)
Title VII does not provide criminal penalties for noncompliance, but rather offers a conciliation process that is administered by the Equal Employment Opportunity Commission (EEOC). Along with the Johnson administration's Executive Orders, the Civil Rights Act of 1964 has become the foundation for affirmative rights programs. The Johnson administration also established the Office of Federal Contract Compliance (OFCC), which covers firms contracting with the federal government. The Age Discrimination in Employment Act of 1967 (amended in 1986) provides protection from employment discrimination to older workers.
The EEOC was strengthened by the Equal Employment Opportunity Act of 1972, which enables the agency to file class action suits in addition to its conciliation role. Though affirmative action programs came under attack during the Reagan, Bush, and Clinton administrations, their legality was reaffirmed by the Civil Rights Act of 1991. This act also enables minority and female victims of intentional discrimination to be awarded up to $300,000 in compensatory damages. The Civil Rights Act of 1964, in contrast, had only provided for back pay and restitution. Disabled Americans were extended protection from employment discrimination by the Americans with Disabilities Act of 1990. Challenges to affirmative action remained prevalent in the late 1990s, with several legislative attempts in Congress to eliminate such programs. The California Civil Rights Initiative (popularly known as Proposition 209) succeeded in amending the California constitution to prohibit "preferential" hiring practices, an action that portends similar measures around the country in coming years.
Workers' compensation laws were established the state level between the 1910s and 1940s. These laws vary substantially across states, but have central features in common. Employers are required to pay medical expenses, disability benefits, and compensation for lost working time for all work-related injury and illness. In exchange, workers are prohibited in many circumstances from suing employers for such injury and illness. Along with its attempts to overhaul the health care system in the United States, the Clinton administration sought to transfer the administration of workers' compensation from the states to the federal government.
At the federal level, the key piece of industrial safety legislation is the Occupational Safety and Health Act of 1970. The act established the Occupational Safety and Health Administration (OSHA) and the National Institute of Occupational Safety and Health (NIOSH), which play important roles in protecting the safety rights of employees. OSHA issues safety standards covering industrial accidents and health standards covering the more long-term effects of work hazards. In 1983, OSHA issued the Hazard Communication Standard, which requires that employers identify dangerous materials in the workplace and inform workers of these dangers and train them in their safe use. Critics of OSHA point out flaws in the inspection process and mixed evidence that its rules actually achieve their stated purpose. Others criticize the lack of adequate enforcement, especially in the 1980s, when the OSHA was known to the business press as a "hands off agency.
Since the mid-1970s, legislation has been introduced in the U.S. Congress that requires employers to give workers advance notice of plant closures and large-scale layoffs. Finally passed in the late 1980s as the Worker Adjustment and Retraining Notification Act, the law requires employers to give 60 days to 6 months notice, depending on firm size, before plant closings or mass layoffs.
Under the Clinton administration, the U.S. Department of Labor implemented the Family and Medical Leave Act of 1993 (which took effect in August of that year). The act requires all firms with more than 50 employees to provide up to 12 weeks of unpaid leave in the event of a family emergency.
A large share of labor law focuses on the rights of workers to organize unions and bargain collectively. It has been argued that this focus has become problematic with the dramatic decline in union membership in recent years, from a peak of 35 percent of private nonagricultural workers in 1955 to only 14 percent in 1997. In 1993, the Clinton administration established the Commission on the Future of Worker-Management Relations. This was commonly referred to as the Dunlop Commission after its chairman, John Dunlop, a former secretary of labor under the Ford administration. The main purpose of the commission was to consider reforms to labor law. The last attempt to significantly reform labor law had been in 1978, under the Carter administration. Those reforms narrowly failed passage.
Representatives of employers and workers both argue the need for labor law reform. Employer representatives hold that the overtime premiums established by Fair Labor Standards Act hinder some employers' desire to introduce less regular work schedules and that the Wagner Act's prohibition of company-dominated unions interferes with the introduction of quality control circles and other labor-management cooperation programs. Labor representatives argue that labor law needs to accommodate the rapidly growing number of part-time and temporary workers and to facilitate their participation in collective bargaining. Labor representatives also have lobbied to make union organizing easier and to prohibit the permanent replacement of striking workers.
The Dunlop Commission issued its recommendations in 1995. The commission proposed speeding up the election process that determines whether a workplace can become unionized in an effort to facilitate organizing. The commission also proposed easing restrictions on labor-management committees so that these committees can deal "incidentally" with issues of wages and work schedules.
Ancillary to these issues are more fundamental ones relating to the dynamics of the workplace itself. Points of contention over the last two decades include the grounds for and an employer's enforcement of employee drug-testing and the surveillance of electronic and other forms of communications by employees. The latter promises to be a persistent issue as the workplace becomes more dependent on electronic technology. A 1997 survey by the American Management Association of about 1,000 medium-to-large firms found that 63 percent of companies indeed conduct some form of surveillance of their employees' electronic activities, be it e-mail or computer files.
The general principle these companies appeal to in justifying such measures is that employees' activities on company time and with company resources (computers, electronic mail servers, etc.) is the company's business.
Such assumptions, however, have not gone unchallenged. In Smyth v. Pillsbury (1996), Pillsbury Company fired an employee, Michael Smyth, who had exchanged what he thought to be confidential messages with his supervisor in which he made derogatory and even threatening remarks about other workers. When Smyth sued for invasion of common-law property rights, the U.S. District Court in Pennsylvania ruled that Smyth did not have a legitimate claim to privacy in using a company-wide electronic mail system; that his voluntary discharge of messages into what amounts to an "open" forum negated his reasonable expectation of privacy. As workplaces become more flexible, with employees often working from remote locations on less rigid hours, such issues promise to become increasingly sticky in coming years.
[ David Kucera ]
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Kaufman, Bruce, ed. Government Regulation of the Employment Relationship. Madison, WI: Relations Research Association, 1997.
Ottensmeyer, Edward J. Ethics in the Workplace. New York: McGraw-Hill, 1996.
Wolkinson, Benjamin W. Employment Law: The Workplace Rights of Employees and Employers. Cambridge, MA: Blackwell, 1996.