What is Labor and Employment Law?

Labor and employment law deals with a broad area of law that governs the rights and duties between employers and workers. Many of the governing laws are designed to keep workers safe and ensure they are treated fairly, although laws also protect employers' interests. Employment laws are based on federal and state constitutions, legislation, administrative rules, and court opinions. Select employment relationships may also be governed by contract.

Many of the employment disputes that result in litigation deal with "wage and hour" violations. Federal law establishes baseline rules with respect to these issues, and then states are free to pass laws providing additional protections. For example, federal law requires a minimum wage of $7.25 per hour. A majority of states have approved a higher minimum wage (14 states put new minimum wages into effect on January 1, 2016), and employers in those states must comply. Wage and hour laws also regulate overtime pay. The federal government does not place limits on the number of hours adults may work per week, but after 40 hours, employers must pay additional compensation, unless the employee falls into a category "exempt" from the law. Many disputes revolve around whether an employee is properly classified as "exempt" from the time-and-a-half overtime pay requirement under the Fair Labor Standards Act.

Discrimination in the workplace is another basis for many employment law cases. The Civil Rights Act of 1964 and subsequent legislation such as the Age Discrimination in Employment Act and the Americans with Disabilities Act make it illegal to treat workers differently based on ethnicity, religious beliefs, gender, age, or disability. Many employees seeking to pursue discrimination claims hire attorneys, as they must follow detailed procedures, such as obtaining a Right-To-Sue letter from the Equal Employment Opportunity Commission (EEOC). Employers hire attorneys to defend against these lawsuits and to ensure compliance with appropriate laws before disciplinary action or termination occurs.

Current "hot" issues in labor and employment law include sexual orientation and gender discrimination, race and national origin discrimination, and the exercise of religion in the workplace.Wage and hour disputes and disagreement over whether an individual is properly categorized as an "employee" versus an "independent contractor" are also an important part of an employment lawyer's workload.

What do labor and employment lawyers do?

Attorneys play a role on both the labor and management side of labor relations disputes. Labor and employment attorneys work in private firms;non-profit policy and direct service organizations; and federal, state, local, and international government agencies. Typically, labor and employment lawyers stick to one "side" of representations – working on behalf of employers, employees, or unions – although there are more nuanced situations, such as representing executives or non-competition agreements.

Litigation often constitutes a significant component of employment law practice, and some large law firms have labor and employment attorneys within their general litigation practice group, rather than in a separate group. While many of the laws governing labor and employment law are federal laws and regulations, many states and some localities have enacted their own laws governing employment and compensation. Non-competition clauses in employment contracts may also lead to litigation in state or local courts.

Mediation, negotiation, and arbitration are another set of labor and employment practices. While the roles that attorneys play in alternative dispute resolution may vary, most of the mediation and arbitration work is centered on issues arising under contracts between employees and their employers, whether a collective bargaining agreement with a union or mandatory arbitration clauses in employee handbooks. Labor lawyers may also be involved with organizing efforts when working for or with unions, or to oppose organizing if on the employer-side. Labor and employment lawyers who work for government agencies may spend much of their time engaged in rulemaking and regulatory enforcement, and those in private practice engage in a good deal of advice work.

Labor and employment attorneys may advise their clients on a wide variety of issues, ranging from the legality of performing background checks on potential employees to the elements of a discrimination claim to whether an individual should be treated as an employee or an independent contractor under labor and tax laws. Labor and employment lawyers in private practice might also advise their clients on issues relating to human resources, such as overseeing the discipline or termination of an employee to minimize the risks of unlawful actions.

Wages and Pay

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. Today, the Fair Labor Standards Act of 1938 aims to create a national minimum wage, and a voice at work, especially through collective bargaining to achieve fair wages. A growing body of law also regulates executive pay.

Working time and family care

People in the United States work among the longest hours per week in the industrialized world, and have the least annual leave.

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.[147] There are, however, limited federal rights to unpaid leave for family and medical reasons.

Pensions

In the early 20th century, the possibility of having a "retirement" became real as people lived longer,[160] and believed the elderly should not have to work or rely on charity until they died.[161] The law maintain an income in retirement in three ways (1) through public social security created by the Social Security Act of 1935,[162] (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.

Health and safety

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 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.

Labor unions

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.

While union governance is founded upon freedom of association, the law requires basic standards democracy and accountability to ensure members are truly free in shaping their associations. Fundamentally, all unions are democratic organizations, but they divide between those where members elect delegates, who in turn choose the executive, and those where members directly elect the executive.

Collective bargaining

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 Act of 1914. Under §6,[247] labor rights were declared to be outside of antitrust law, but this did not stop hostile employers and courts suppressing unions.

At any point employers can freely bargain with union representatives and make a collective agreement. A collective agreement will often be long, but 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.

Right to organize

To ensure that employees are effectively able to bargain for a collective agreement, the National Labor Relations Act 1935 created a group of rights 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.

First, 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. It is also unlawful for employers to monitor employees who are organizing.

Collective action

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. Roughly half the states have enacted their own version of the Norris-LaGuardia Act.