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United States labor law sets the rights and duties for employees,labor unions, andemployers in the US. Labor law's basic aim is to remedy the "inequality of bargaining power" between employees and employers, especially employers "organized in thecorporate or other forms of ownership association".^[3] Over the 20th century, federal law created minimumsocial and economic rights, and encouraged state laws to go beyond the minimum to favor employees.^[4] TheFair Labor Standards Act of 1938 requires a federalminimum wage, currently $7.25 but higher in 29 states and D.C., and discourages working weeks over 40 hours through time-and-a-halfovertime pay. There are no federal laws, and few state laws, requiringpaid holidays orpaid family leave. TheFamily 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 guaranteedSocial Security,^[5] but theEmployee 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. TheOccupational Safety and Health Act of 1970 requires employees have a safe system of work.

Acontract of employment can always create better terms than statutory minimum rights. But to increase theirbargaining power to get better terms, employees organize labor unions forcollective bargaining. TheClayton Act of 1914 guarantees all people the right to organize,^[6] and theNational Labor Relations Act of 1935 creates rights for most employees to organize without detriment throughunfair labor practices. Under theLabor 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 ingood 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 oncorporate boards.^[8]

Since theCivil 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 theEqual Pay Act of 1963. Additional groups with "protected status" were added by theAge Discrimination in Employment Act of 1967 and theAmericans with Disabilities Act of 1990. There is no federal law banning all sexual orientation oridentity 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 inBostock 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 againstunjust discharge, and most states also have no law with full protection against wrongfultermination of employment.^[10]Collective agreements made by labor unions and some individual contracts require that people are only discharged for a "just cause". TheWorker 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 reachfull employment throughmonetary policy and spending on infrastructure. Trade policy has attempted to put labor rights in international agreements, to ensure open markets in aglobal economy do not underminefair and full employment.

Modern US labor law mostly comes from statutes passed between1935 and1974, and changing interpretations of theUS Supreme Court.^[11] However, laws regulated the rights of people at work and employers from colonial times onward. Before theDeclaration of Independence in 1776, thecommon law was either uncertain or hostile to labor rights.^[12] Unions were classed as conspiracies, and potentially criminal.^[13] It toleratedslavery andindentured servitude. From thePequot War inConnecticut from 1636 onwards,Native Americanswere enslaved by European settlers. More than half of the European immigrants arrived as prisoners, or inindentured servitude,^[14] where they were not free to leave their employers until adebt bond had been repaid. Until its abolition, theAtlantic slave trade brought millions of Africans to do forced labor in the Americas.

However, in 1772, the EnglishCourt of King's Bench held inSomerset v Stewart that slavery was to be presumed unlawful at common law.^[15]Charles Stewart fromBoston,Massachusetts had boughtJames Somerset as a slave and taken him toEngland. With the help ofabolitionists, Somerset escaped and sued for a writ ofhabeas 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 theAmerican Revolution in 1776.^[16] The1790 United States census recorded 694,280 slaves (17.8 per cent) of a total 3,893,635 population. After independence, theBritish Empire halted theAtlantic slave trade in1807,^[17] and abolished slavery in its own territories, by paying off slave owners in1833.^[18] In the US, northern states progressively abolished slavery. However, southern states did not. InDred 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] TheAmerican Civil War was the result.President Lincoln'sEmancipation Proclamation in 1863 made abolition of slavery a war aim, and theThirteenth 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 thePeonage Act of 1867.^[20] In 1868, theFourteenth Amendment ensured equal access to justice, and theFifteenth Amendment required that everyone would have the right to vote. TheCivil Rights Act of 1875 was also meant to ensure equality in access to housing and transport, but in theCivil 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 onproperty owners for work, income and basic services.

Like slavery, common law repression of labor unions was slow to be undone.^[22] In 1806,Commonwealth v. Pullis held that aPhiladelphia shoemakers union striking for higher wages was an illegal "conspiracy",^[23] even thoughcorporations—combinations of employers—were lawful. Unions still formed and acted. The first federation of unions, theNational Trades Union was established in 1834 to achieve a10 hour working day, but it did not survive the soaring unemployment from the financialPanic of 1837. In 1842,Commonwealth v. Hunt, held thatPullis 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 theMassachusetts 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 theKnights 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 theAlien Contract Labor Law of 1885 which suppressed workers migrating to the US under a contract of employment.

Industrial conflicts onrailroads andtelegraphs from 1883 led to the foundation of theAmerican 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. TheSherman Antitrust Act of 1890, which was intended to sanction business cartels acting inrestraint of trade,^[28] was applied to labor unions. In 1895, theUS Supreme Court inIn re Debs affirmed an injunction, based on the Sherman Act, against the striking workers of thePullman Company. The strike leaderEugene Debs was put in prison.^[29] In notable dissent among the judiciary,^[30]Holmes J argued inVegelahn v. Guntner that any union takingcollective action ingood 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 theUS Supreme Court, but was again in a minority on labor rights. In 1905,Lochner v. New York held thatNew York limiting bakers' working day to 60 hours a week violated employers'freedom of contract. The Supreme Court majority supposedly unearthed this "right" in theFourteenth Amendment, that no State should "deprive any person of life, liberty, or property, without due process of law."^[32] WithHarlan 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 inLoewe v. Lawlor, holding that triple damages were payable by a striking union to its employers under theSherman Act of 1890.^[33] This line of cases was finally quashed by theClayton Act of 1914 §6. This removed labor fromantitrust 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]

Throughout the early 20th century, states enacted labor rights to advance social and economic progress. But despite theClayton Act, and abuses of employers documented by theCommission on Industrial Relations from 1915, the Supreme Court struck labor rights down as unconstitutional, leaving management powers virtually unaccountable.^[35] In thisLochner 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 banemployment 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 inWorld War I, meaning thatEugene Debs ran as the Socialist Party's candidate forpresident in1920 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 thestock 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. TheWall 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 theGreat Depression.

This led to the election ofFranklin D. Roosevelt for president in 1932, who promised a "New Deal". Government committed to createfull employment and a system ofsocial and economic rights enshrined in federal law.^[44] But despite theDemocratic Party's overwhelming electoral victory, the Supreme Court continued to strike down legislation, particularly theNational Industrial Recovery Act of 1933, which regulated enterprise in an attempt to ensure fair wages and preventunfair competition.^[45] Finally, after Roosevelt'ssecond overwhelming victory in 1936, and Roosevelt's threat to create more judicial positions if his laws were not upheld, one Supreme Court judgeswitched positions. InWest Coast Hotel Co. v. Parrish the Supreme Court found thatminimum wage legislation was constitutional,^[46] letting theNew Deal go on. In labor law, theNational Labor Relations Act of 1935 guaranteed every employee the right to unionize, collectively bargain for fair wages, and take collective action, includingin solidarity with employees of other firms. TheFair Labor Standards Act of 1938 created the right to a minimum wage, and time-and-a-halfovertime pay if employers asked people to work over 40 hours a week. TheSocial Security Act of 1935 gave everyone the right to a basic pension and to receive insurance if they were unemployed, while theSecurities Act of 1933 and theSecurities Exchange Act of 1934 ensured buyers of securities on thestock market had good information. TheDavis–Bacon Act of 1931 andWalsh–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 reachfull employment and out of depression, theEmergency Relief Appropriation Act of 1935 enabled the federal government to spend huge sums of money on building and creating jobs. This accelerated asWorld 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 ofFascism here at home."^[48]

Although theNew Deal had created a minimum safety net of labor rights, and aimed to enablefair pay throughcollective bargaining, a Republican dominated Congress revolted when Roosevelt died. Against the veto ofPresident Truman, theTaft–Hartley Act of 1947 limited the right of labor unions to takesolidarity action, and enabled states to ban unions requiring all people in a workplace becoming union members. A series of Supreme Court decisions, held theNational 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 theLabor Management Reporting and Disclosure Act of 1959. Post-war prosperity had raised people's living standards, but most workers who had no union, orjob security rights remained vulnerable to unemployment. As well as the crisis triggered byBrown v. Board of Education,^[50] and the need to dismantle segregation, job losses in agriculture, particularly amongAfrican Americans was a major reason for thecivil rights movement, culminating in theMarch on Washington for Jobs and Freedom led byMartin Luther King Jr. Although Roosevelt'sExecutive Order 8802 of 1941 had prohibitedracial discrimination in the national defense industry, people still suffered discrimination because of theirskin color across other workplaces. Also, despite the increasing numbers of women in work, sex discrimination was endemic. The government ofJohn F. Kennedy introduced theEqual Pay Act of 1963, requiring equal pay for women and men.Lyndon B. Johnson introduced theCivil 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 theAge Discrimination in Employment Act of 1967, thePregnancy Discrimination Act of 1978, and theAmericans with Disabilities Act of 1990, now overseen by theEqual Employment Opportunity Commission.

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, theEmployee Retirement Income Security Act of 1974 created rights to well regulatedoccupational pensions, although only where an employer had already promised to provide one: this usually depended oncollective bargaining by unions. But in 1976, the Supreme Court inBuckley v. Valeo held anyone could spend unlimited amounts of money on political campaigns, as a part of theFirst Amendment right to "freedom of speech". After the RepublicanPresident Reagan took office in 1981, he dismissed allair traffic control staff who went on strike, and replaced theNational 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. TheImmigration Reform and Control Act of 1986 criminalized large numbers of migrants. TheWorker Adjustment and Retraining Notification Act of 1988 guaranteed workers some notice before a mass termination of their jobs. TheFamily and Medical Leave Act of 1993 guaranteed a right to 12 weeks leave to take care for children after birth, all unpaid. TheSmall 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 tofederal government contracting, Executive Order 13673, entitledFair Pay and Safe Workplaces, was issued by PresidentBarack 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 PresidentDonald Trump on 27 March 2017 underExecutive Order 13782.^[59]

Contracts between employees and employers (mostlycorporations) usually begin an employment relationship, but are often not enough for a decent livelihood. Because individualslack bargaining power, especially against wealthy corporations, labor law creates legal rights that override arbitrary market outcomes. Historically, the law faithfully enforced property rights andfreedom 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 determinedeconomic and social rights over rights of property and contract, state and federal governments introduced law reform. First, theFair Labor Standards Act of 1938 created a minimum wage (now $7.25 at federal level, higher in 28 states) andovertime pay of one and a half times. Second, theFamily 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 anoccupational pension or other benefits, theEmployee Retirement Income Security Act of 1974 ensures employers guarantee those benefits if they are promised. Fourth, theOccupational 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 aslaboratories of democracy in social and economic rights, where they have not been constrained by theUS Supreme Court.

Common law, state and federal statutes usually confer labor rights on "employees", but not people who are autonomous and have sufficientbargaining power to be "independent contractors". In 1994, theDunlop 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. InNLRB 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 theNational Labor Relations Act of 1935. The newspaper corporations argued the newsboys were "independent contractors", and they were under no duty to bargain ingood faith. The Supreme Court held the newsboys were employees, and common law tests of employment, particularly the summary in theRestatement 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 theNational Labor Relations Board could decide itself who was covered if it had "a reasonable basis in law." Congress reacted, first, by explicitly amending theNLRA §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 decidedUnited 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 theirlack 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., theFair 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 theRestatement of Agency must be considered, though none is necessarily decisive.^[65]

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, theNational 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, inNLRB v. Yeshiva University,^[68] a 5 to 4 majority of the Supreme Court held that full time professors in auniversity 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. InNLRB 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 theFair Labor Standards Act of 1938, inChristopher v. SmithKline Beecham Corp.,^[71] the Supreme Court held 5 to 4 that a traveling medical salesman forGSK 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 inLemmerman 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, inHoffman 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, includingfreedom of association.^[74]

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 intort law can exist regardless of an employment relationship. InRuiz v. Shell Oil Co,^[76] theFifth 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] InLocal 217, Hotel & Restaurant Employees Union v. MHM Inc^[78] the question arose under theWorker Adjustment and Retraining Notification Act of 1988 whether a subsidiary or parent corporation was responsible to notify employees that the hotel would close. TheSecond 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 theNLRA. Under theFair 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 theNLRB has found an enterprise to be an employer if it has "substantially identical management, business purpose, operation, equipment, customers and supervision."^[79] InSouth 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 theNLRB. 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]

When people start work, there will almost always be acontract of employment that governs the relationship of employee and the employing entity (usually acorporation, but occasionally a human being).^[83] A "contract" is an agreement enforceable in law. Very often it can be written down, or signed, but anoral agreement is also a fully enforceable contract. Because employees haveunequal 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. Genuinenegotiation 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 tocollective bargaining, by a labor union elected by its employees, is meant to reduce the inherently unequal bargaining power of individuals against organizations to makecollective agreements.^[85] The federal right to a minimum wage, and increasedovertime 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, includingfamily leave, rights againstdiscrimination, or basicjob security standards, were designed by theUnited 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, theFair Labor Standards Act of 1938 entitles states and municipalities to set minimum wages beyond the federal minimum. By contrast, other statutes such as theNational Labor Relations Act of 1935, theOccupational Safety and Health Act of 1970,^[87] and theEmployee Retirement Income Security Act of 1974,^[88] have been interpreted in a series of contentious judgments by theUS 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 ofcontract law, and potentiallytorts, will apply.

Aside from terms in oral or written agreements, terms can be incorporated by reference. Two main sources arecollective agreements and company handbooks. InJI Case Co v. National Labor Relations Board an employing corporation argued it should not have to bargain ingood faith with a labor union, and did not commit anunfair labor practice by refusing, because it had recently signed individual contracts with its employees.^[92] TheUS Supreme Court held unanimously that the "very purpose" of collective bargaining and theNational 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, inTorosyan v. Boehringer Ingelheim Pharmaceuticals, Inc. theSupreme 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 newconsideration and true agreement.^[95] By contrast, a slight majority on theCalifornia Supreme Court, appointed by Republican governors, held inAsmus 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 ofgood 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 ofgood faith persists throughout the employment relationship. It has not yet been used extensively by state courts, compared to other jurisdictions. TheMontana 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 theCalifornia Supreme Court limit any recovery of damages to contract breaches, but not damages regarding the manner of termination.^[99] By contrast, in theUnited 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, in14 Penn Plaza LLC v. Pyett,^[106] in a 5 to 4 decision under theFederal 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, theFair 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 oflaw also regulatesexecutive pay, although a system of "maximum wage" regulation, for instance by the formerStabilization Act of 1942, is not currently in force. Historically, the law actually suppressedwages, not of the highly paid, by ordinary workers. For example, in 1641 theMassachusetts Bay Colonylegislature (dominated by property owners and the official church) required wage reductions, and said rising wages "tende to the ruin of the Churches and theCommonwealth".^[109] In the early 20th century, democratic opinion demanded everyone had aminimum wage, and could bargain for fair wages beyond the minimum. But when states tried to introduce new laws, theUS Supreme Court held them unconstitutional. A right tofreedom of contract, argued a majority, could be construed from theFifth andFourteenth 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 fulllevel of equality of choice with their employer".^[110]

After theWall Street Crash, and theNew Deal with the election ofFranklin D. Roosevelt, the majority in theUS Supreme Court was changed. InWest Coast Hotel Co. v. ParrishHughes CJ held (over four dissenters still arguing forFreedom of Contract) that aWashington 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 theFair 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 moreovertime 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 theRepublican Party has opposed raising wages, the federalreal minimum wage is over 33 per cent lower today than in 1968, among the lowest in the industrialized world.

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, fiveUS Supreme Court judges held inAlden v. Maine that the federal minimum wage cannot be enforced for employees of state governments, unless the state has consented, because that would violate theEleventh Amendment.^[119]Souter J, joined by three dissenting justices,^[120] held that no such "sovereign immunity" existed in theEleventh Amendment.^[121]Twenty-eight states, however, did have minimum wage laws higher than the federal level in 2016. Further, because theUS Constitution,article one,section 8, clause 3 only allows the federal government to "regulateCommerce ... 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". InAuer v. Robbins police sergeants and lieutenants at theSt 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, followingDepartment 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". InLong Island Care at Home, Ltd. v. Coke, a corporation claimed exemption, althoughBreyer J for a unanimous court agreed with theDepartment 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 toMurphy 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] InArmour & Co. v. Wantockfirefighters claimed they should be fully paid while on call at their station for fires. TheSupreme 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 theSixth 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. InWalling v. Helmerich & Payne, Inc., theSupreme 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, inChristensen v. Harris County sixSupreme Court judges held that police inHarris 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. Thesecretary 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. UnderFLSA 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. TheConsumer 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 thePortal 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]

• 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

People in the United States work among the longest hours per week in theindustrialized world, and have the least annual leave.^[142] TheUniversal Declaration of Human Rights of 1948 article 24 states: "Everyone has the right to rest and leisure, including reasonable limitation of working hours andperiodic holidays with pay." However, there is no general federal or state legislation requiring paid annual leave. Title 5 of theUnited States Code §6103 specifies tenpublic 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 uponcollective agreements and individual employment contracts. State law proposals have been made to introduce paid annual leave. A 2014Washington Bill fromUnited States House of Representatives memberGael 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 theInternational Labour OrganizationHolidays with Pay Convention 1970^[144] three weeks is the bare minimum. The bill did not receive enough votes.^[145] By contrast, employees in allEuropean 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, theFair Labor Standards Act of 1938 §207 creates a financial disincentive to longer working hours. Under the heading "Maximum hours", §207 states thattime 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 theUS Supreme Court inLochner v. New York.^[149] TheNew 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 hisUtica, Mr Lochner claimed that the law violated theFourteenth 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 wholeLochner era of jurisprudence was reversed by theUS Supreme Court in 1937,^[152] but experimentation to improve working time rights, and "work-life balance" has not yet recovered.

Just as there are no rights to paid annual leave or maximum hours, there are no rights to paid time off for child care orfamily 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 lackbargaining power will often get none.^[154] There are, however, limited federal rights to unpaid leave for family and medical reasons. TheFamily 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 andNew 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 theUS Supreme Court inRagsdale 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 thesecretary 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 freechild care orday 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 publicsocial security program created by the Social Security Act of 1935,^[169] (2) occupational pensions managed through the employment relationship, and (3) private pensions orlife insurance that individuals buy themselves. At work, mostoccupational pension schemes originally resulted fromcollective 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 bycollective agreement became known as "Taft–Hartley plans" after theTaft–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 calledTIAA, was established on the initiative ofAndrew Carnegie in 1918 with the express requirement for participants to have voting rights for the plan trustees.^[172] These could be collective anddefined 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 theInternal 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 sametax deferral rule applies to all pensions. But unlike a "defined benefit" plan, a401(k) only contains whatever the employer and employeecontribute. It will run out if a person lives too long, meaning the retiree may only have minimum social security. ThePension Protection Act of 2006 §902 codified a model for employers toautomatically enroll their employees in a pension, with a right to opt out.^[174] However, there is no right to an occupational pension. TheEmployee 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]

Five main rights for beneficiaries inERISA 1974 include information,funding,vesting,anti-discrimination, andfiduciary duties. First, each beneficiary should receive a "summary plan description" in 90 days of joining, plans must file annual reports with thesecretary 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] ThePension 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 mustaccrue (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, theUS Supreme Court has enabled benefits to be withdrawn by employers simply amending plans. InLockheed 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 byfiduciary duties to preserve what an employee had originally been promised.^[185] In dissent,Breyer J andSouter 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, andMead Corp. v. Tilley a majority of theUS Supreme Court held that employers could recoup excess benefits paid into pension plans afterPBGC 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, afiduciary 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 theDepartment of Labor to involve a duty to vote on proxies whencorporate stocks are purchased, and publicizing a statement of investment policy.^[193] Third, and codifying fundamental equitable principles, afiduciary must avoid any possibility of aconflict 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 avoidingself-dealing with a related "party in interest".^[196] For example, inDonovan v. Bierwirth, theSecond Circuit held that trustees of a pension which owned shares in the employees' company as atakeover bid was launched, because they faced a potentialconflict 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 theSupreme 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 theFair Labor Standards Act of 1938 or theFamily and Medical Leave Act of 1993, which encourage states to legislate for improved protection for employees, beyond the minimum. The preemption rule led theUS Supreme Court to strike down aNew York that required giving benefits to pregnant employees inERISA plans.^[200] It held a case underTexas law for damages for denying vesting of benefits was preempted, so the claimant only hadERISA remedies.^[201] It struck down aWashington 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, orsecurities.' So, the Supreme Court has also held valid aMassachusetts law requiring mental health to be covered by employer group health policies.^[203] But it struck down aPennsylvania 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 most important rights thatERISA 1974 did not cover were who controls investments andsecurities that beneficiaries' retirement savings buy. The largest form of retirement fund has become the401(k). This is often an individual account that an employer sets up, and aninvestment management firm, such asVanguard,Fidelity,Morgan Stanley orBlackRock, is then delegated the task of trading fund assets. Usually they also vote on corporate shares, assisted by a "proxy advice" firm such asISS orGlass Lewis. UnderERISA 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 thesefiduciaries ortrustees, 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, particularlycorporate stocks which have voting rights, as well asgovernment bonds,corporate bonds,commodities, real estate orderivatives. 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 organizedTaft–Hartley plans, andstate public pension plans. Under the amendedNational 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 theDepartment 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 greaterbargaining 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, theCalifornia 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 replaceinvestment manager voting. Furthermore, no general legislation requires voting rights for employees in pension funds, despite several proposals.^[213] For example, theWorkplace Democracy Act of 1999, sponsored byBernie Sanders then in theUS 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 theDodd–Frank Act of 2010 §957 bannedbroker-dealers voting on significant issues without instructions.^[214] This means votes in the largestcorporations that people's retirement savings buy are overwhelmingly exercised by investment managers, whose interests potentially conflict with the interests of beneficiaries' onlabor rights,fair pay,job security, or pension policy.

TheOccupational Safety and Health Act,^[215] signed into law in 1970 by PresidentRichard 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 asbenzene. 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 theFirst Amendment and theFourteenth 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 theFirst 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 onRonald 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 thecross-training policies of the hospital were flawed, could be dismissed without any violation of theFirst 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)

The central right inlabor 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 theClayton Antitrust Act of 1914,^[218] which declared the "labor of ahuman being is not acommodity or article of commerce" and aimed to take workplace relations out of the reach of courts hostile to collective bargaining. Lacking success, theNational 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 thecorporate or other forms of ownership association",^[219] theNLRA 1935 codified basic rights of employees to organize aunion, requires employers to bargain ingood faith (at least on paper) after a union has majority support, binds employers tocollective agreements, and protects the right to takecollective action including a strike. Union membership, collective bargaining, and standards of living all increased rapidly until Congress forced through theTaft–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, theUS Supreme Court chose to develop a doctrine that the rules in theNLRA 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, theNLRA 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 orcodetermine directors of corporate boards, and electwork 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 theFirst Amendment to the Constitution.^[222] In earlycolonial 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 inSavannah,Georgia in 1746.^[223] After theAmerican Revolution, however, courts departed from repressive elements ofEnglish common law. The first reported case,Commonwealth v. Pullis in 1806 did find shoemakers inPhiladelphia guilty of "a combination to raise their wages".^[224] Nevertheless, unions continued, and the first federation of trade unions was formed in 1834, theNational Trades' Union, with the primary aim of a 10-hour working day.^[225] In 1842 theSupreme Court of Massachusetts held inCommonwealth 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 ofslavery byAbraham Lincoln'sEmancipation Proclamation during theAmerican Civil War was necessary to create genuine rights to organize, but was not sufficient to ensure freedom of association. Using theSherman Act of 1890, which was intended to break up business cartels, the Supreme Court imposed an injunction on striking workers of thePullman Company, and imprisoned the leader, and future presidential candidate,Eugene Debs.^[227] The court also enabled unions to be sued for triple damages inLoewe v. Lawlor, a case involving ahat maker union inDanbury, Connecticut.^[228] The president andUnited States Congress responded by passing theClayton Act of 1914 to take labor out ofantitrust law. Then, after theGreat Depression passed theNational 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. TheTaft–Hartley Act of 1947 regulated how members can join a union, and theLabor Management Reporting and Disclosure Act of 1959 created a "bill of rights" for union members.

While union governance is founded uponfreedom 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 theMcClellan Committee of theUS Senate found evidence of two rivalTeamsters Union executives,Jimmy Hoffa andDave Beck, falsifying delegate vote counts and stealing union funds,^[231] Congress passed theLabor 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 thesecretary 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 expressfiduciary 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 forembezzlement. 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 theUS 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 orfinancial institutions.^[238]

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 madecollective 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 incollective bargaining. However, after theTaft–Hartley Act of 1947, theNational 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 withRepublican governments passed laws restricting union membership agreements, there has been a significant decline ofunion density. Unions have not, however, yet experimented with agreements toautomatically enroll employees in unions with a right to opt out. InInternational Ass'n of Machinists v. Street, a majority of theUS Supreme Court, against three dissenting justices, held that theFirst 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 supportlabor rights.^[243] But the urgency of political spending was raised when in 1976Buckley v. Valeo decided, over powerful dissents ofWhite J andMarshall J, that candidates could spend unlimited money on their own political campaign,^[244] and then inFirst 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 originalFederal Election Campaign Act of 1971 had intended to do. A unanimous court held inAbood v. Detroit Board of Education thatunion security agreements to collect fees from non-members were also allowed in the public sector.^[247] However, inHarris v. Quinn fiveUS Supreme Court judges reversed this ruling apparently banning public sector union security agreements,^[248] and were about to do the same for all unions inFriedrichs v. California Teachers Association untilScalia 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 the2016 US Presidential election, for the future of the labor movement, and democratic life.

Since theIndustrial Revolution, collective bargaining has been the main way to getfair pay, improved conditions, and a voice at work. The need for positive rights to organize and bargain was gradually appreciated after theClayton Antitrust Act of 1914. Under §6,^[250] labor rights were declared to be outside ofantitrust law, but this did not stop hostile employers and courts suppressing unions. InAdair v. United States,^[251] andCoppage v. Kansas,^[252] theSupreme Court, over powerful dissents,^[253] asserted the Constitution empowered employers to require employees to signcontracts 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 theGreat Depression when theNorris–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 thelandslide election ofFranklin D. Roosevelt, theNational 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 increasebargaining power of employees to get better terms in than individual contracts with employing corporations. However §152 excluded many groups of workers, such as state andfederal government employees,^[258]railway and airline staff,^[259] domestic andagriculture workers.^[260] These groups depend on special federal statutes like theRailway Labor Act or state law rules, like theCalifornia Agricultural Labor Relations Act of 1975. In 1979, fiveSupreme Court judges, over four forceful dissents, also introduced an exception for church operated schools, apparently because of "seriousFirst 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, inFedEx Home Delivery v. NLRB theDC Circuit, adopting submissions ofFedEx's lawyerTed 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 centunionization rate and 12.3 per cent rate ofcoverage by collective agreement. This is the lowest in the industrialized world.^[264]

At any point employers can freely bargain with union representatives and make acollective agreement. UnderNLRA 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 afair day's wage for a fair day's work, reasonable notice and severance pay before any necessarylayoffs,just cause for any job termination, andarbitration to resolve disputes. It could also extend to any subject by mutual agreement. A union can encourage an employing entity throughcollective action to sign a deal, without using theNLRA 1935 procedure. But, if an employing entity refuses to deal with a union, and a union wishes, theNational Labor Relations Board (NLRB) may oversee a legal process up to the conclusion of a legally bindingcollective agreement. By law, the NLRB is meant to have five members "appointed by the President by and with the advice and consent of theSenate",^[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 lessbargaining 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 orunfair labor practices (e.g. threatening job termination, alleging unions will bankrupt the firm) to vote against recognizing the union. The average time for theNLRB 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 ingood 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, inJI Case Co v. National Labor Relations Board theSupreme Court held an employer could not refuse to bargain on the basis that individual contracts were already in place.^[272] Crucially, inWallace Corp. v. NLRB the Supreme Court also held that an employer only bargaining with acompany union, which it dominated, was anunfair labor practice. The employer should have recognized the trulyindependent union affiliated to theCongress of Industrial Organizations (CIO).^[273] However, inNLRB 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 PresidentGeorge W. Bush and theSenate refused to make any appointments to the Board, and it was held by five judges, over four dissents, inNew 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 theNLRB to act to promote collective bargaining.

Once collective agreements have been signed, they are legally enforceable, often througharbitration, 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 bindingarbitration, governed by theFederal Arbitration Act of 1925.^[279] For example, inUnited Steelworkers v. Warrior & Gulf Navigation Co a group of employees at a steel transportation works inChickasaw, Alabama, requested the corporation go toarbitration over layoffs and outsourcing of 19 staff on lower pay to do the same jobs. TheUnited 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 onpublic 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, theSupreme Court drew a clear distinction for arbitration over individual statutory rights. InAlexander v. Gardner-Denver Co. an employee claimed he was unjustly terminated, and suffered unlawfulrace discrimination under theCivil 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 in14 Penn Plaza LLC v. PyettThomas J announced with four other judges that apparently "[n]othing in the law suggests a distinction between the status of arbitration agreementssigned 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 theAge Discrimination in Employment Act of 1967, and instead potentially be heard only by arbitrators their employer selected.Stevens J andSouter J, joined byGinsburg J,Breyer J dissented, pointing out that rights cannot be waived even by collective bargaining.^[285] AnArbitration 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 whyNLRA 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 theSupreme Court's interpretations, major proposed reforms have included theLabor Reform Act of 1977,^[287] theWorkplace Democracy Act of 1999, and theEmployee Free Choice Act of 2009.^[288] All focus on speeding the election procedure for union recognition, speeding hearings forunfair 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, theNLRA 1935 created a group of rights in §158 to stall "unfair labor practices" by employers. These were considerably amended by theTaft–Hartley Act of 1947, where theUS Congress over the veto of PresidentHarry 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 oflitigation 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 inHague v. Committee for Industrial Organization held theNew Jersey mayor violated theFirst Amendment when trying to shut downCIO 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.

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 theNational Labor Relations Board was entitled to order workers be rehired after they had been dismissed for organizing a union at their plant inAliquippa,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 inNLRB v. Erie Resistor Corp the Supreme Court held it was unlawful to give 20 years extra seniority to employees who crossed apicket line while the union had called a strike.^[294] Second, and by contrast, the Supreme Court had decided inTextile 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 aduty of fair representation.^[296] InNLRB 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 theNLRB has changed its position with different political appointees, theDC 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, inDetroit 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, inLechmere, 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, inPattern 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]

TheUS Supreme Court policy ofpreemption, developed from 1953,^[304] means that states cannot legislate where theNLRA 1935 does operate. The NLRA 1935 contains no clause requiringpreemption as is found, for example, in theFair 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 aPennsylvania statute was preempted from providing superior remedies or processing claims quicker than theNLRB 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] InSan Diego Building Trades Council v. Garmon, theSupreme Court held that theCalifornia 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 inLodge 76, International Association of Machinists v Wisconsin Employment Relations Commission, where aWisconsin 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. InGolden State Transit Corp. v. City of Los Angeles a majority of theSupreme Court held that Los Angeles was not entitled to refuse to renew a taxi company's franchise license because theTeamsters Union had pressured it not to until a dispute was resolved.^[309] Most recently inChamber 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 andGinsburg 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]

The right of labor to takecollective action, including theright to strike, has been fundamental tocommon law,^[313] federal law,^[314] andinternational 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 realcollective bargaining, you have 'collectivebegging.'"^[316] During the 19th century, many courts upheld the right to strike, but others issued injunctions to frustrate strikes,^[317] and when theSherman Antitrust Act of 1890 was passed to prohibit business combinations inrestraint of trade, it was first used against labor unions. This resulted inEugene Debs,American Railway Union leader and futureSocialist Presidential candidate, being imprisoned for taking part in thePullman Strike.^[318] The Supreme Court persisted inLoewe v. Lawlor in imposing damages for strikes underantitrust law,^[228] until Congress passed theClayton Act of 1914. Seen as "theMagna Carta of America's workers",^[319] this proclaimed that all collective action by workers was outside antitrust law under theCommerce 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 theInternational Labour Organization in 1919.^[321] Finally at the end of theLochner era^[322] theNational 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]

Although federal law guarantees theright to strike, Americanlabor 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. TheNational 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 takeprotected concerted activity.^[327] ButNLRB 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 onsolidarity 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: inNLRB 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 ingood 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 theNational Labor Relations Board's attempts to mediate was held to be insubstantial.^[334]

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 inNLRB v. Mackay Radio & Telegraph Co. that employees on strike could be replaced bystrikebreakers, 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 inNLRB 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. InNLRB 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]

Whilecollective bargaining was stalled byUS Supreme Courtpreemption policy, a dysfunctionalNational Labor Relations Board, and fallingunion membership rate since theTaft–Hartley Act of 1947, employees have demanded direct voting rights at work: for corporateboards of directors, and inwork councils that bind management.^[349] This has become an important complement to both strengtheningcollective bargaining, and securing the votes in labor's capital onpension boards, which buy and vote oncorporate stocks, and control employers.^[350] Labor law has increasingly converged withcorporate law,^[351] and in 2018 the first federal law, theReward 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 governorCalvin 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 bothProcter & 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 anyemployee 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 theOrganisation for Economic Co-operation and Development have laws requiring direct participation rights.^[358] In 1994, theDunlop 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.

Corporations are chartered under state law, the larger mostly inDelaware, but leave investors free to organize voting rights and board representation as they choose.^[360] Because ofunequal 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 throughcollective agreements, as it historically occurred in Germany or other countries, or through employees demanding further representation throughemployee stock ownership plans, but they aimed for voice independent from capital risks that could not bediversified. By 1980, workers had attempted to secure board representation at corporations includingUnited Airlines, theGeneral Tire and Rubber Company, and theProvidence and Worcester Railroad.^[362] However, in 1974 theSecurities and Exchange Commission, run by appointees ofRichard Nixon, had rejected that employees who held shares inAT&T were entitled to make shareholder proposals to include employee representatives on the board of directors.^[363] This position was eventually reversed expressly by theDodd–Frank Act of 2010 §971, which subject to rules by theSecurities and Exchange Commission entitles shareholders to put forward nominations for the board.^[364] Instead of pursuing board seats through shareholder resolutions theUnited Auto Workers, for example, successfully sought board representation by collective agreement atChrysler in 1980.^[365] TheUnited Steel Workers secured board representation in five corporations in 1993.^[366] Some representation plans were linked toemployee 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 from401(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 withworker directors, though often linked to corporate stock.^[368]

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 electedwork councils. After theNational War Labor Board was established by theWoodrow 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 theRepublican 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, theNational Labor Relations Act of 1935 §158(a)(2) ensured it was anunfair 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, awork council law was passed by the US government inAllied-occupied Germany calledControl 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 applycollective 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 werepreempted by theNational Labor Relations Act of 1935.^[375] In 1992, theNational Labor Relations Board in itsElectromation, Inc,^[376] andEI du Pont de Nemours,^[377] decisions confirmed that while management dominated councils were unlawful, genuine and independent work councils would not be. TheDunlop Report in 1994 produced an inconclusive discussion that favored experimentation with work councils.^[378] ARepublican Congress did propose aTeamwork for Employees and Managers Act of 1995 to repeal §158(a)(2), but this was vetoed by PresidentBill Clinton as it would have enabled management dominated unions and councils. In 2014, workers at theVolkswagen Chattanooga Assembly Plant, inChattanooga, Tennessee, sought to establish awork council. This was initially supported by management, but its stance changed in 2016, after theUnited Auto Workers succeeded in winning a ballot for traditional representation in an exclusivebargaining unit.^[379] As it stands, employees have no widespread right to vote in American workplaces, which has increased the gap betweenpolitical democracy and traditional labor law goals ofworkplace andeconomic democracy.

Since theUS Declaration of Independence in 1776 proclaimed that "all men are created equal",^[380] theConstitution was progressively amended, and legislation was written, to spread equal rights to all people. While theright 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, PresidentFranklin D. Roosevelt'sExecutive Order 8802 in 1941 set up theFair Employment Practice Committee to ban discrimination by "race, creed, color or national origin" in the defense industry. The first comprehensive statutes were theEqual Pay Act of 1963, to limit discrimination by employers between men and women, and theCivil 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. TheAge Discrimination in Employment Act of 1967 protects people over age 40. TheAmericans with Disabilities Act of 1990 requires "reasonable accommodation" toinclude people with disabilities in the workforce. Twenty two state Acts protect people based onsexual orientation in public and private employment, butproposed federal laws have been blocked byRepublican opposition. There can be no detriment tounion members, or people who haveserved 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 nodisparate treatment by employing entities, nodisparate impact of formally neutral measures, and enables employers to voluntarily takeaffirmative action favoring under-represented people in their workforce.^[383] The law has not, however, succeeded in eliminating the disparities in income byrace, health, age or socio-economic background.

The right to equality in employment in the United States comes from at least six major statutes, and limited jurisprudence of theUS Supreme Court, leaving the law inconsistent and full of exceptions. Originally, theUS Constitution entrenched gender, race and wealth inequality by enabling states to maintainslavery,^[384] reserve the vote to white, property owning men,^[385] and enabling employers to refuse employment to anyone. After theEmancipation Proclamation in theAmerican Civil War, theThirteenth,Fourteenth andFifteenth Amendments attempted to enshrined equal civil rights for everyone,^[386] while theCivil Rights Act of 1866,^[387] and1875 spelled out that everyone had the right to make contracts, holdproperty and access accommodation, transport and entertainment without discrimination. However, in 1883 theUS Supreme Court in theCivil Rights Cases put an end to development by declaring thatCongress 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]

By 1944, the position had changed. InSteele v. Louisville & Nashville Railway Co.,^[391] a Supreme Court majority held a labor union had aduty of fair representation and may not discriminate against members based on race under theRailway Labor Act of 1926 (or theNational Labor Relations Act of 1935.Murphy J would have also based the duty on aright to equality in theFifth Amendment). Subsequently,Johnson v. Railway Express Agency admitted that the oldEnforcement 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 theFifth orFourteenth Amendment if discrimination is shown to be intentional,^[393] or if it irrationally discriminates against one group. For example, inCleveland 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 theDue Process Clause, because it could not plausibly be shown that after child birth women could never perform a job.^[394] But while theUS 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] TheEqual Pay Act of 1963 banned gender pay discrimination, amending theFair 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, inCorning 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 theFLSA 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, norchild 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 landmarkCivil Rights Act of 1964.^[403]

Beyond gender equality on the specific issue of pay, theCivil 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 theCivil 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'srace, color, religion, sex, ornational origin."^[405]Segregation in employment is equally unlawful.^[406] The same basic rules apply for peopleover 40 years old,^[407] and for people withdisabilities.^[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 againstdisparate treatment. InTexas Department of Community Affairs v. Burdine theUS Supreme Court held plaintiffs will establish aprima 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 inSt. Mary's Honor Center v. Hicks whereScalia 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 underCRA 1964 §2000e-2(e) if an employer shows selecting someone reflects by "religion, sex, or national origin is abona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."^[413] Race is not included. For example, inDothard v. Rawlinson the state ofAlabama 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 120lbs), 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 abona fide occupational qualification, because there was a heightened risk of sexual assault, althoughStewart J suggested the result might have differed if the prisons were better run. A majority held the height and weight restrictions, while neutral, had adisparate impact on women and were not justified by business necessity.^[414] By contrast, inWilson v. Southwest Airlines Co., aTexas 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 theADEA 1967, age requirements can be used, but only if reasonably necessary, or compelled by law or circumstance. For example, inWestern Air Lines, Inc v. Criswell the Supreme Court held that airlines could require pilots to retire at age 60, because theFederal Aviation Administration required this. It could not, however, refuse to employ flight engineers over 60 because there was no comparable FAA rule.^[416]

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 of42 USC §2000e.^[417] But also if employees or managers create a "hostile or offensive working environment", this counts as discrimination. InHarris 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 toFaragher 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 theCivil Rights Act of 1964,^[421] or theAge Discrimination in Employment Act of 1967.^[422] InUniversity 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 theEEOC to investigate the claim.^[423] Furthermore, inRobinson 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.

In addition todisparate treatment, employing entities may not use practices having an unjustifieddisparate impact on protected groups. InGriggs v. Duke Power Co., a power company on theDan River,North Carolina, required ahigh school diploma for staff to transfer to higher paying non-manual jobs. Because ofracial segregation in states like North Carolina, fewerblack employees thanwhite 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 unanimousSupreme 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 withdisparate impact followed "business necessity" that was "related tojob 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 theCivil Rights Act of 1991,^[428] ifdisparate 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, inRicci v. DeStefano five Supreme Court judges held theCity of New Haven had acted unlawfully by discarding test results forfirefighters, which it concluded could have had an unjustifieddisparate impact by race.^[430] In a further concurrence,Scalia J said "resolution of this dispute merely postpones theevil day" when adisparate impact might be foundunconstitutional, 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 thatdisparate impact theory advances equality, and in no way requires behavior that is not geared to identifying people with skills necessary for jobs.^[431]

Bothdisparate treatment and disparate impact claims may be brought by an individual, or if there is a "pattern or practice" by theEqual Employment Opportunity Commission, theattorney general,^[432] and byclass action. Under theFederal 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 theCivil 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 theFair 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 theCRA 1964 §703(h).^[437] InCounty 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". HoweverRehnquist 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 theCivil Rights Act of 1964. Given that a significantgender 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 inCleveland 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 tostrict 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 theBureau 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

• 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

• 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 theNLRA 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

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 thebargaining 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 theLloyd–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 forseverance pay if an employer lays off employees for economic reasons. The only exception is that theWorker 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 ofmonetary policy, it is the duty of theFederal 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 usefiscal 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]

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 theLloyd–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 theInternational Labour OrganizationTermination 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 aseverance allowance if the termination is for economic reasons.^[456] Some countries such as Germany also require that electedwork councils have the power to veto or delay terminations, to neutralize the employer's potentialconflicts 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]

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, theCalifornia 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 legitimatelyblow 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 ofgood 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 economiclayoffs, where employers believe that employees are redundant. In most countries, economic layoffs are separately regulated because of theconflicts 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. TheILOTermination of Employment Convention, 1982 requires aseverance 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 writeControl 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 oremployee 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.

The only statutory right for employees is for extreme cases of mass layoffs under theWorker Adjustment and Retraining Notification Act of 1988. TheWARN 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 incorporate 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 tofull employment or the "right to work" in a fair paying job is a universal human right ininternational law,^[501] partly inspired by the experience of theNew 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, workerbargaining 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 inTruax 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 theNew Deal with unemployment having reached 20% after theWall Street Crash of 1929, theEmergency Relief Appropriation Act of 1935 empowered the President to create theWorks Progress Administration, which aimed to directly employ people on fair wages.^[505] By 1938, theWPA employed 3.33 million people, and built streets, bridges and buildings across the country. Also created by the 1935 Act, theRural 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.

After World War II, theEmployment 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 theEqual Protection Clause itself in the14th Amendment should also mean, according toJustice Marshall inBoard 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] TheHumphrey–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 ajob guarantee, full employment, and environmental improvement have not yet been used. During the2008 financial crisis, theAmerican Recovery and Reinvestment Act of 2009 was passed to enable more spending, but not a job guarantee.

While the laws for a federal or statejob guarantee have not yet been used, theFederal Reserve Act 1913 does require that the Board of Governors of theFederal Reserve System should use its powers "to promote effectively the goals ofmaximum 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 anatural 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 asMilton Friedman that central banks should use monetary policy only to control inflation, according to thenon-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]

If despite fiscal and monetary policy people are unemployed, the Social Security Act of 1935 createsunemployment 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]

• 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) andPaul v. Virginia, 75 US 168 (1869)
• Interstate Commerce Act of 1887 andFederal Trade Commission Act of 1914
• International Labour Organization andinternational 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

• Trade Act of 1974,Trade Agreements Act of 1979,Trade Act of 2002,Trade Preferences Extension Act of 2015 andFast track (trade)
• North American Free Trade Agreement, 19 USC ch 21, §3301
• World Trade Organization andUruguay Round Agreements Act of 1994
• Permanent normal trade relations
• Trans-Pacific Partnership andTransatlantic Trade and Investment Partnership
• Three potential views are:
  • (1) expansion of trade is good because it increases the scope fordivision of labor and expanding markets. So, all customs, taxes, and equivalent restrictions againstmarket 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 forhuman development and the workers' rate ofproductivity.

In 1959, California added the Division of Fair Employment Practices to theCalifornia Department of Industrial Relations. The Fair Employment and Housing Act^[526] of 1980 gave the division its ownDepartment of Fair Employment and Housing, with the stated purpose of protecting citizens againstharassment andemployment 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 oncase 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, theCalifornia 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 againstharassment andemployment 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]

As of 2019^[update], twenty-six states plusGuam 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 bancard check.

• 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 theCivil Service Reform Act of 1978 federal employees have no recourse to the federal courts over wrongful discharge cases, but must instead go to theMerit 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 oflabor legislation