Unit 2

Federal Labor Statutes & Employment Law

1. When we viewed the film Red Metal, The Copper County Strike of

1913, the topic of paternal benevolence came up in the context of

how employers in the mining industry took care of their employees

(provided housing and medical care, etc.). After watching the movie

Harlan County, USA, decide, based on the living arrangements of the

miners in Harlan County, whether you think this was a practice that

was beneficial or not to the miners and their families. Use references

to the movie to support your assertion.

2. In the movie Harlan County USA, the union leaders

claimed that one particular labor issue was of paramount

importance to them – that is, that they put this issue first

and above all others. At the end of the movie, when the

labor dispute was eventually resolved, what, if at all, was

the resolution on this particular issue?

3. When viewing and listening to the tactics used and

positions taken by both the local and national union,

which type of strategy & why would you say they each

used (i.e., uplift unionism, revolutionary unionism,

business unionism, or predatory unionism)?

Some of the early union bosses in the movie can be described as

practicing predatory unionism (where the primary goal of the

union is to enhance itself at the expense of the workers it

represents) while the local union was more focused on business

unionism (representation of employees’ immediate interests,

primarily the regulation of wages, hours, and terms and

conditions of employment).

4. Was there any one thing from

the movie that left an impression

on you, surprised you, or

changed how you felt about

labor relations? If yes, then what

was it and why did it have that

impact?

In the 1920’s, immigration declined slightly and competition

for unskilled jobs decreased. Early union leaders had been

prosecuted for sedition (conduct to incite people to rebel

against the government) and with Bolsheviks taking control

in Russia, business leaders here in the US began to fear a

similar “labor uprising” here if unions got too strong. As a

result, employers started instituting “yellow-dog” contracts –

forcing employees to agree not to join a union under

penalty of termination. These were seen as restricting of

individual rights and were often coercive.

In the 1930’s, attempts to organize industrial unions were largely unsuccessful. Then came the Depression and public policy toward unions shifted radically. Before passage of the Railway Labor Act in 1926, no laws facilitated organizing or bargaining. After decades of violence, court battles, injunctions, arrests, fines, and other business-disrupting conduct, Congress finally weighed-in on the contentious relationship between labor and employers. From the mid 1930’s through the 1950’s, Congress passed significant legislation to address the rights of unions, employees, and employers in the workplace.

There are four federal laws that form the basis of labor

law and unionization:

1. The Norris-LaGuardia Act of 1932.

1. The Wagner Act of 1935 (also known as the

National Labor Relations Act).

2. The Wagner Amendment – the Taft-Hartley Act of

1947 (also know as the Labor Management

Relations Act).

3. The Landrum-Griffin Act of 1959.

• The opening section of the Act endorsed collective bargaining

as a matter of public policy and established that government

recognized that the job to a worker is more important that a

worker to a corporation and the only real power workers have

is in impacting employers through concerted activity.

• It sharply curbed the power of courts to intervene in labor

disputes, including limiting the use of injunctions.

• While it did not create new rights, it declared that unions

could operate free from court control and interference – in

turn, this supported collective bargaining.

• Did not directly outlaw “yellow-dog” contracts (contracts that

prohibit employees from joining a union), but it declared them

to be inconsistent with public policy and not enforceable in

court.

• The law declared that federal courts could not issue injunctive

relief in a labor dispute if it would prohibit anyone from

participating in such a dispute from doing certain acts.

Judges could not restrain:

• Strikes, regardless of the objective

• Picketing activities

• Urging non-union members to join or support their efforts

• Providing relief to strikers

• Publicizing labor disputes

• The law had a significant impact in curbing prosecution of

unions for concerted activities under the antitrust laws.

• Encouraged employers to band together to set prices and

production quotas through industrial codes. To complete an

industrial code, however, employers were required to allow

employees to bargain through representatives of their own

choosing, free from employer interference.

• The Act (part of of FDR’s New Deal) had two main sections (or

"titles"). Title I was devoted to industrial recovery, authorizing the

promulgation of industrial codes of fair competition, guaranteed

trade union rights, permitted the regulation of working standards,

and regulated the price of certain refined petroleum products and

their transportation. Title II established the Public Works

Administration, outlined the projects and funding opportunities it

could engage in.

• Shortly after its enactment (a mere two years later in 1935) the

National Industrial Recovery Act was declared unconstitutional. The

Supreme Court felt that the term “fair competition” was too vague

and undefined by the statute & the grant of power to the executive

• The law established the right of employees to form unions, bargain collectively, and to strike. This is the primary law governing union activity.

• Prior to passage of the Wagner Act, it was illegal – even criminal in some instances – for employees to join together in an effort to collectively bargain with their employer.

• Administration of the National Labor Relations Act was placed in the hands of the National Labor Relations Board (NLRB) –an independent federal agency. It also:• Provided for court enforcement of the NLRB’s orders

• Established that it is an unfair labor practice to:• Interfere with, restrain, or coerce employees in the exercise of their rights

• Interfere with the formation of a labor organization

• Discriminate in the hiring/firing/promotion of employees because of membership in a union

• Refuse to bargain with representatives of the employees.

• The Taft-Hartley Act was actually an amendment to the

National Labor Relations Act. It’s purpose was to curb

excesses by unions which had grown strong and powerful

after its passage in 1935.

• Some of the unfair labor practices of unions included:

• Refusing to bargain or refusing to do so in good faith

• Coercing or forcing employees to join the union

• Charging discriminatory dues and entrance fees just to join the union

• Engaging in secondary boycotts

• Causing an employer to pay for goods or services that are actually not

provided to the employees by the union

• Restraining or coercing the union members in the exercise of his/her

rights in the selection process for representatives for collective

bargaining.

• The amendment allowed states to have “right-to-work” laws –

meaning, a union could not require an employee to join the

• If an employee did not join the union, the union was still

required to represent his/her interests as part of collective

bargaining.

• If a state was not a “right-to-work” state, then employers were

allowed to have a “union shop” clause in the employment

contract that required employees to join the union within a

specified period of time after becoming employed.

• If it was a union shop, then unions were allowed to require

than non-union members pay union dues and fees without

joining the union.

• Some “right-to-work” states do not require that non-union

employees pay dues – essentially giving them a free ride –

they receive union benefits without paying dues/fees.

• This law is also known as the Labor Management Reporting

& Disclosure Act. It was passed after Congress conducted

investigations into labor union corruption.

• After widespread corruption was discovered, the law was

passed to establish basic ways of union operation in order to

ensure a democratic process, provide unions members with a

minimum bill of rights attached to union membership, and to

regulate the activities of union officials using union funds.

• This statute also set forth the specific procedures to be

followed when unions hold elections, including:

• Voting for officers via secret ballot

• Elections at least every three years

• Mechanisms for members to have an election declared improper

• Provisions to safeguard union funds – stealing funds was made a

federal crime.

Employment Law and Discrimination in

Employment

Wrongful Discharge: absent a contrary provision in a written agreement

between the employer & employee, employment will be presumed to be

“at-will” – meaning that the employer may terminate the employee at any

time, for any legal reason, or for no reason at all.

• Some states imply a duty of good faith into every employment contract that

limits the employer’s right to terminate an employee.

• Public Policy: many states prohibit an employer from terminating an

employee for refusing to perform an illegal or unethical act or for refusing to

take any other action contrary to fundamental public policy.

• Whistleblower statutes: prohibit employers from terminating employees who

report illegal or unethical conduct.

Wage & Hours:

• Fair Labor Standards Act (FLSA): federal law, applicable to employees of all employers engaged in interstate commerce. Among its provisions are:

1. Child Labor: prohibitions against children under the age of 14 from most types of work (exceptions for lawn care, newspaper delivery, etc) and limiting the hours of work permissible for children between the ages of 14-15 and 16-18.

2. Maximum Hours/OT: except for “non-exempt” employees (executives) the FLSA requires that any employees who work more than 40 hours per week be paid overtime wages – at 1-1/2 times their regular wage.

3. Minimum Wage: sets the lowest wage an employee can be paid.

Occupational Safety & Health Administration (OSHA): the federal

agency empowered to set workplace health & safety standards, to

conduct workplace inspections, and to investigate employee complaints.

• Employers must promptly report any workplace accident as a result of which

an employee was killed or at least 5 employees were hospitalized.

• Failure to comply with OSHA standards or to promptly report incidents may

result in severe fines for the employer and possible imprisonment for

culpable supervisory personnel.

Workers’ Compensation Laws: state laws establishing an administrative

procedure for compensating workers for their workplace or work-related

injuries that arise out of, or in the course of, their employment, regardless

of fault.

Family Medical Leave Act: federal law requiring employers with 50 or more employees to provide them up to 12 weeks of family or medical leave during any 12-month period.

• During the leave, the employer must continue to provide benefits to the employee – but they are not required to pay the employee.

• The employer must guarantee the employee will get their job back (or a comparable job) unless the employee at issue is deemed a “key employee” (defined as top 10% of the workforce)

• FMLA does NOT apply to employees who have worked for the employer for:

• Less than 1 year, or

• Less than 25 hours per week for the previous year.

Employee Privacy: the Employee Polygraph Protection Act prohibits

employers from:

1. Requiring or causing employees or applicants to submit to a lie-detector test;

2. Using, accepting, or referring to the results of a lie-detector test taken by any

applicant or employee; and

3. Taking or threatening to take any negative employment action based on an

employee’s or applicant’s lie-detector results or his refusal to take a lie-

detector test.

Drug Testing: drug testing of employees or applicants for evidence of drug

use is subject to both state & federal constitutional limitations and may

be prohibited or regulated under a collective bargaining agreement or an

employment contract.

Immigration Reform & Control Act (IRCA) :

• Prohibits employers from hiring illegal immigrants, and

• Requires employers to complete a Form I-9 for each employee, verifying that each employee is either a US citizen or otherwise entitled to work in the US.

Immigration Act of 1990:

• Limits the number of LEGAL immigrants entering the US each year by capping the number of visas granted, and

• Requires employers who recruit from other countries to:

a. Satisfy the Dept of Labor that there is a shortage of qualified US workers capable of performing that work, and

b. Establish that bringing that worker into the US will not adversely affect the existing labor market.

Employment Discrimination:

• Equal Employment Opportunity Commission (EEOC): the federal agency charged with enforcing Title VII of the Civil Rights Act of 1964 and the other federal regulations prohibiting employment discrimination.

• Employment Discrimination (in general): treating employees or job unequally on the basis of race, color, national origin, religion, gender, age, disability, or other basis prohibited by law.

• Title VI of the Civil Rights Act of 1964: prohibits discrimination based on race, color, national origin, religion, and gender.

Employment Discrimination:

• To prove a claim of employment discrimination you must show:

1. You are a member of a protected class; and

2. You applied, and was qualified for, or was employed in, the position

in question; and

3. You were rejected, demoted, or terminated; and

4. The position was subsequently filled by someone not in the protected

class.

Employment Discrimination:

• Disparate Treatment: intentional discrimination against someone

who is a member of a protected class (i.e., Hispanic, female,

disabled, etc).

• Disparate Impact: discrimination resulting from practices or

procedures which, although not outwardly discriminatory, have

the effect of discriminating against members of a protected class.

Employment Discrimination:

• Sexual Harassment: there are 2 types of sexual harassment.

1. Quid Pro Quo Sexual Harassment: granting employment, job promotions, or

other benefits in return for sexual favors, or refusing (or threatening) to hire,

promote, or extend other employment benefits if sexual favors are refused.

2. Hostile Work Environment Sexual Harassment: language or conduct that is

so sexually offensive that it creates a hostile working environment. Conduct

must be either severe or pervasive.

Note: only recently have courts allowed same-sex sexual harassment claims.

Employment Discrimination:

• Age Discrimination: is prohibited under the Age Discrimination

in Employment Act (ADEA) and it prohibits employment

discrimination on the basis of age against persons 40 years of age

and older.

• Disability Discrimination: is prohibited under the Americans

with Disabilities Act (ADA): and it prohibits employment

discrimination against persons with recognized disabilities.

Defenses to Employment Discrimination:

• Business Necessity: the discriminatory practice or policy is

related to job performance. (e.g., requiring that a doctor have a

medical degree).

• BFOQ – Bona fide Occupational Qualification: identifiable

characteristics – such as gender, national origin, or religious belief

– that are reasonably necessary to the normal operation of a

business. (e.g., a men’s swimwear company hires only male

models to model their swimsuits).