美国劳动法

United States labor lawlocal governments, where workers derive their rights from state law. Federal and statethat would bar employers from discriminating against employees to prevent them fromContents[hide]• 1 History• 2 Contract and rights at worko 2.1 Contract of employmento 2.2 Scope of protectiono 2.3 Wages regulationo 2.4 Pensionso 2.5 Health and safetyo 2.6 Child care rightso 2.7 Income taxo 2.8 Civil liberties• 3 Workplace participationo 3.1 Trade unionso 3.2 Right to organizeo 3.3 Collective bargainingo 3.4 Collective action• 4 Equality and discriminationo 4.1 Civil rightso 4.2 Justificationso 4.3 Affirmative actiono 4.4 Free movement and immigration• 5 Job securityo 5.1 Dismissal protectionso 5.2 Redundancieso 5.3 Unemployment• 6 Labor law in individual stateso 6.1 Laws restricting unionso 6.2 California•7 Enforcement of rights•8 See also•9 Notes•10 References•11 External linksHistory[edit]Main articles: History of labor law in the United States and Labor history of the United StatesA man building the frame of the Empire State Building at the start of the Great Depression in 1930.[2]•Indentured servant•Commonwealth v. Pullis (1806), establishing that unions were criminal conspiracies in the Philadelphia Mayor's court•Commonwealth v. Hunt (1842), disapproving Pullis in the Massachusetts Supreme Judicial Court, and establishing that unions were not necessarily criminal •Vegelahn v. Guntner, 167 Mass. 92 (1896)•Sherman Antitrust Act•Lochner v. New York, 198 US45 (1905)•Loewe v. Lawlor208 U.S. 274 (1908) or The Danbury Hatters' case•Adair v. United States, 208 U.S. 161 (1908) upholding yellow dog contracts, banned by The Erdman Act of 1898 section 10 on the railroads, until reversed bythe Norris-LaGuardia Act•Commission on Industrial Relations (1915)•Adkins v. Children's Hospital, 261 U.S. 525 (1923) Supreme Court held a minimum wage for women and children in DC was unconstitutionalIn 1941, Executive Order 8802 (or the Fair Employment Act) became the first law toprohibit racial discrimination, although it only applied to the national defense industry.Later laws include Title VII of the Civil Rights Act of 1964 (and amendments), Title I of the Americans with Disabilities Act of 1990,[3] the Family and Medical Leave Act of1993,[4] and numerous state laws with additional protections. The Fair Labor Standards Act[5] regulates minimum wages and overtime pay for certain employees who work more than 40 hours in a work week.While working an employee must work a minimum of two hours in a day. Cases of employment discrimination in the United States are most often subject to the jurisdiction of the Equal Employment Opportunity Commission, the federal commission responsible for the enforcement of the anti-discrimination laws. Once a case has been filed with the EEOC or similar state agencies with concurrent jurisdiction, employees have a right to remove the case to the courts with the permission of the agency, or in some instances, after the expiration of a set time period. Employment law cases are heard in state or federal courts, depending upon the issue, the size of the employer (the Civil Rights Act of 1964,[6] for example, applies only to employers with 15 or more employees), and the litigation strategy of the plaintiff.Contract of employment[edit]See also: United States contract lawScope of protection[edit]•Dunlop Commission on the Future of Worker-Management Relations: Final Report (1994) recommended a unified definition of an employee under all labor laws •Inequality of bargaining power•United States v. Silk, 331 U.S. 704 (1947)•NLRB v. Hearst Pub's, Inc 322 U.S. 111 (1944) an employee under the National Labor Relations Act•Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) employee under ERISA •Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440 (2003) employee definition under the Americans with Disabilities Act•Lemmerman v. A.T. Williams Oil Co., 350 S.E.2d 83 (1986) under the North Carolina Workers' Compensation Act an eight year old boy was considered anemployee, although employing children under the age of 8 was unlawful.•Castillo v. Case Farms of Ohio, 96 F Supp. 2d 578 (1999) that an employer who used an employment agency called "American Temp Corps", was responsible for the way that hired migrant farm workers in T exas to work in an Ohio chicken factory, being packed into sub-human transport and living conditions in violation of the Migrant and Seasonal Agricultural Workers Protection Act 1983•Christopher v. SmithKline Beecham Corp., 567 U.S. ___ (2012) 5 to 4, a travelling salesman of four years for GSK was classified as an outside salesman, and so could notWages regulation[edit]Main articles: Fair Labor Standards Act and Minimum wage in the United StatesA graph of the changes in the federal minimum wage rate. Light blue is the real wage and dark blue the nominal wageThe Fair Labor Standards Act[7] of 1938 (FLSA) establishes minimum wage and overtime rights for most private sector workers, with a number of exemptions and exceptions. Congress amended the Act in 1974 to cover governmental employees, leading to a series of United States Supreme Court decisions in which the Court first held that the law was unconstitutional, then reversed itself to permit the FLSA to cover governmental employees.The FLSA does not preempt state and local governments from providing greater protections under their own laws. A number of states have enacted higher minimum wages and extended their laws to cover workers who are excluded under the FLSA or to provide rights that federal law ignores.Local governments have also adopted a number of "living wage" laws that require those employers that contract with them to pay higher minimum wages and benefits to their employees. The federal government, along with many state governments, likewise require employers to pay the prevailing wage, which typically reflects the standards established by unions' collective bargaining agreements in the area, to workers on public works projects.•Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944) travel to work, once underground, was working time under the FLSA. •Jewell Ridge Coal Corp. v. United Mine Workers of America, 325 U.S. 161 (1945) time traveling to work through the coal mine did count as working because it (1)required physical and mental exertion that was (2) controlled and required by the employer (3) for the employer's benefit.•Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) 5 to 2, that preparatory activities at work for the employer's benefit (such as setting up at one's work station) count as working time for FLSA §§7(a) and 11(c).•Skidmore v. Swift & Co., 323 U.S. 134 (1944) the Department of Labor's recommendations over what counted as overtime would be given a level of deference commensurate to its persuasiveness, the thoroughness of investigation, itsconsistency, and the validity of its reasoning.•Auer v. Robbins, 519 U.S. 452 (1997) police sergeants and lieutenants were classed as executives or professional employees, and therefore could not claimovertime pay under the FLSA.•Christensen v. Harris County, 529 U.S. 576 (2000) an employer could require police employees to use up their "comp" time before claiming extra overtime pay. The Department of Labor's recommendation that this violated the FLSA was not binding.•National League of Cities v. Usery, 426 U.S. 833 (1976) 5 to 4 decision that the FLSA could not be extended to state government employees, reversed by Garcia. •Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) 5 to 4, there was authority under the FLSA consistent with the Tenth Amendment to extend the Act's protection to public transport employees.Pensions[edit]Main article: Pensions in the United StatesThe Employee Retirement Income Security Act[8] establishes standards for the funding and operation of pension and health care plans provided by employers to their employees. The ERISA preempts most state legislation that attempts to regulate how such plans are administered and, to a great extent, what types of health care coverage they provide. ERISA also preempts state law claims that an employer discriminated against employees in order to prevent them from obtaining the benefits they would have earned otherwise or to retaliate against them for asserting their rights.•Internal Revenue Code401(k)•Taft-Hartley plan•Employee Retirement Income Security Act of 1974•Pension Benefit Guaranty Corporation•Voluntary Employee Beneficiary AssociationHealth and safety[edit]Main article: Occupational Safety and Health Act 1970The Occupational Safety and Health Act,[9] signed into law in 1970 by President Richard Nixon, creates specific standards for workplace safety. The Act has spawned years of litigation by industry groups that have challenged the standards limiting the amount of permitted exposure to chemicals such as benzene. The Act also provides for protection for "whistleblowers" who complain to governmental authorities about unsafe conditions while allowing workers the right to refuse to work under unsafe conditions in certain circumstances. The Act allows states to take over the administration of OSHA in their jurisdictions, so long as they adopt state laws at least as protective of workers' rights as under federal law. More than half of the states have done so.The Family and Medical Leave Act,[10] passed in 1993, requires employers to provide workers with twelve weeks of unpaid medical leave and continuing medical benefit coverage in order to attend to certain medical conditions of close relatives or themselves. Many states have comparable statutory provisions; some states have offered greater protections.Child care rights[edit]•Child labor laws in the United States•Family and Medical Leave Act of 1993•Maternity leave in the United States•Work-family balance in the United States•Work–life balance (United States)•Parental leave•Government Day Care in the United StatesIncome tax[edit]Main article: Income tax in the United States•Income tax in the United StatesCivil liberties[edit]•Pickering v. Board of Education, 391 U.S. 563 (1968) 8 to 1, a public school teacher was dismissed for writing a letter to a newspaper that criticised the way the school board was raising money. This violated the First Amendment andthe Fourteenth 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 the First 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 on RonaldReagan "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 the cross-checking policies of the hospital were flawed, could be dismissed without any violation of the First 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•Whistleblower Protection Act of 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•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.Workplace participation[edit]President Franklin D. RooseveltContrary to popular intent, the Sherman Antitrust Act (1890) led to prosecution of unions as illegal combinations, but Section 6 of the Clayton Antitrust Act (1914) ended this practice by stipulating that unions shall not be "construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws." The National Labor Relations Act gave a general right to organize in a trade union and collectively bargain.The Taft-Hartley Act (also the "Labor-Management Relations Act"), passed in 1947, loosened some of the restrictions on employers, changed NLRB election procedures, and added a number of new limitations on unions. The Act, among other things, prohibits jurisdictional strikes and secondary boycotts by unions, and authorizes individual states to pass "right-to-work laws", regulates pension and other benefit plans established by unions and provides that federal courts have jurisdiction to enforce collective bargaining agreements.The United States Congress has not yet ratified the International LabourOrganization Convention on the Freedom of Association and Protection of the Right to Organise Convention, 1948 or the Right to Organise and Collective Bargaining Convention, 1949.•Commission on Industrial Relations (1912-1915)•Workplace democracy, Industrial democracy, Economic democracyThe United States Congress subsequently tightened those restrictions on unions inthe Labor Management Reporting and Disclosure Act of 1959, which also regulates the internal affairs of all private sector unions, providing for minimum standards for unions' internal disciplinary proceedings, federal oversight for unions' elections of their own officers, and fiduciary standards for union officers' use of union funds.Union members' participation rights•American Civil Liberties Union, Democracy in Trade Unions (1943)•United States Senate Select Committee on Improper Activities in Labor and Management (1957-1960)•Labor Management Reporting and Disclosure Act 1959 §§•Trbovich v. United Mine Workers, 404 U.S. 528 (1972) upheld the right of union members to intervene in enforcement proceedings brought by the United StatesDepartment of Labor•Hall v. Cole, 412 U.S. 1 (1973), in which the Supreme Court interpreted the Landrum-Griffin Act to permit the awarding of attorney's fees to successful plaintiffs.•Dunlop v. Bachowski, 421 U.S. 560 (1975) upheld the authority of federal courts to review the Department of Labor's decision to proceed or not proceed withprosecutions under Landrum-GriffinRestrictions on membership•De Veau v. Braisted, 363 U.S. 144 (1960) 5 to 3, that it was consistent with the NLRA 1935 that state law could bar union officials from holding office if they had been convicted of a felony. The dissenting judges argued that state law couldintroduce no additional requirement to those in the statute.•Brown v. Hotel and Restaurant Employees, 468 US491 (1984) 4 to 3, New Jersey could impose a requirement that all union officials in a casino had no association with organized crime, consistently with NLRA 1935 §7. The dissenting judgment argued that the requirement was disproportionate because it applied penalties to the whole union rather than the officialsUnion fees•Taft-Hartley Act 1947 §14(b) confirmed states rights to pass "right to work laws", so that a union cannot sign a collective agreement to register all workers as union members, or collect fees for the service of collective bargaining.•Lincoln Fed Labor Union 19129 v. Northwestern Iron & Metal Co, 335 US525 (1949)•Machinists v. Street, 367 US740 (1961), states that "a union may constitutionally compel contributions from dissenting nonmembers in an agency shop only for the costs of performing the union's statutory duties as exclusive bargaining agent." •Communications Workers of America v. Beck, 487 US735 (1988) 5 to 3 that unions could have an agreement with employers that fees be collected to pay for the union's activities, but only up to the point that it was necessary to cover its costs. •Locke v. Karass, 129 S. Ct. 798 (2008) legitimate costs could include the Maine State Employees Association's costs for in national arbitration litigation.Political contributions•United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948) there was no violation of the Federal Corrupt Practices Act 1910in a union publiclyadvocating for particular Congress members to be elected•Abood v Detroit School Board, 431 US 209 (1977) consistent with freedom of association, unions can be required to allow members to contract out of the political activity levies of the union.•Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991) 5 to 4, the union can require nonmembers to give service fee contributions only for its activities as anexclusive bargaining agent, and not for political activities.•Davenport v. Washington Education Association, 551 U.S. 177 (2007) state legislation could require, consistently with the First Amendment, that a union member opts into the fund for political expenditureThe National Labor Relations Act (NLRA, the "Wagner Act") gives private sector workers the right to choose whether they wish to be represented by a union and establishesthe National Labor Relations Board (NLRB) to hold elections for that purpose. As originally enacted in 1935, the NLRA makes it illegal for employers to discriminate against workers because of their union membership or retaliate against them for engaging in organizing campaigns or other "concerted activities", to form "company unions", or to refuse to engage in collective bargaining with the union that represents their employees. The NLRA does not cover governmental employees, with the exception of employees of the United States Postal Service, a quasi-public entity. The Federal Labor Relations Act provides for much more limited rights for employees of the federal government. Congress has excluded workers in the United States Department of Homeland Security and elsewhere from even these limited protections. In order to keep up with the most recent versions to be in compliance with federal labor law, employees could get more detailed information by reading the federal labor law poster, which is required to be posted in the company.Federal law does not provide employees of state and local governments with the right to organize or engage in union activities, except to the extent that the United States Constitution protects their rights to freedom of speech and freedom of association. The Constitution provides even less protection for governmental employees' right to engage in collective bargaining: while it bars public employers from retaliating against employees for forming a union, it does not require those employers to recognize that union, much less bargain with it. Most states provide public employees with limited statutory protections; a few permit public employees to strike in support of their demands in some circumstances. Some states, however, particularly in the South, make it illegal for a governmental entity to enter into a collective bargaining agreement with a union.The NLRA does not cover agricultural or domestic employees. A few states have enacted labor laws similar to the NLRA covering farm workers. Finally, the NLRA does not cover employees in the railroad and airline industries. Those workers are covered bythe Railway Labor Act, first passed in 1926, then amended in 1936 to cover airlineemployees. The RLA creates a wholly different structure for resolving labor disputes, requiring bargaining under indirect governmental supervision and permitting strikes only in limited circumstances.Freedom of association•Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939) held to be a violation of the First Amendment for the NJ mayor to shut down trade union CIOmeetings because he thought they were "communist"•National Labor Relations Act 1935 §7, "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concertedactivities for the purpose of collective bargaining or other mutual aid or protection." Right to communicate to colleagues•National Labor Relations Act 1935 §§7-8•Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527 (1992) 6 to 3, held that an employer did not commit an unfair labor practice under NLRA 1935 §7 by preventing union members, who were not employees of Lechmere Inc, from entering the company parking lot to hand out leaflets. They could not order union members to leave the public grassy area outside the employer's property.Right to suffer no detriment for being in a union•Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002) 5 to 4, the right to not suffer detriment for union organizing activitiesunder NLRA 1935 §8(a)(3) did not apply for an illegal immigrant. This meant theemployer did not need to give substantial back pay for firing a worker after he handed out fliers for the AFL union.•NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) a trade union member has the right to a union representative in any disciplinary inquiry by the managementCollective bargaining[edit]"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a)(3) of this title."Wagner Act 1935 §7 Main articles: Collective bargaining, National Labor Relations Act and Taft-Hartley ActCongress has since expanded the NLRB's jurisdiction to health care institutions, with unique rules governing organizing and strikes against those employers.For the most part the NLRA and RLA displace state laws that attempt to regulate the right to organize, to strike and to engage in collective bargaining. The NLRB has exclusive jurisdiction to determine whether an employer has engaged in an unfair labor practice and to decide what remedies should be provided. States and local governments can, on the other hand, impose requirements when acting as market participants, such as requiring that all contractors sign a project labor agreement to avoid strikes when building a public works project, that they could not if they were attempting to regulate those employers' labor relations directly.•National Labor Relations Board v. Sands Manufacturing Co., 306 U.S. 332 (1939)5 to 2, for collective bargaining to be taking place under the NLRA 1935 there must bescheduled meetings between the union and the employer, but if there were none, the employer could not be considered to violate its duties by shutting down a factory. It held the NLRB's charges were not supported by evidence.•National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S.292 (1939) 5 to 2, held the NLRB had not produced the requisite "substantialevidence" that an employer had acted unlawfully and in directing employment toresume and a lockout to end. The NLRB had attempted to negotiate with an employer on a union's behalf during a lockout.•Wallace Corporation v. National Labor Relations Board, 323 U.S. 248 (1944) it was an unfair labor practice to recognize a company union and have a closedshop agreement with it, so excluding workers who wished to join the independent union.•Marquez v. Screen Actors Guild Inc., 525 U.S. 33 (1998) duty of fair representation•Federal Labor Relations Act 1978•Railway Labor Act 1926, for rail and airline workersCollective action[edit]"Nothing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right."Wagner Act 1935 §13 Main articles: Strike action and Collective actionMembers of the Writers' Guild of America on strike against deteriorating terms and conditions in their employment agreements in 2007The Norris-LaGuardia Act of 1932 outlawed the issuance of injunctions in labor disputes by federal courts. While the Act does not prevent state courts from issuing injunctions, it ended what some observers called "government by injunction", in which the federal courts used injunctions to prevent unions from striking, organizing and, in some cases, even talking to workers or entering certain parts of a state. Roughly half the states have enacted their own version of the Norris-LaGuardia Act.•Protected concerted activity•New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938)•NLRB v. Mackay Radio & Telegraph Co. 304 U.S. 333 (1938), that striking workers remain "employees"•United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948), holding that unions advocating members vote for particular Congress candidates did not violate the Federal Corrupt Practices Act as amended by the Labor Management Relations Act•NLRB v. Mackay Radio & Telegraph Co. 304 U.S. 333 (1938) striking workers remain as employees while on strike, and so it is an unfair labor practice under NLRA 1935 §7 to discriminate in reinstating the workers. However, it was not unfair to hire new workers to break the strike, or to not discharge the strike breakers in order to reinstate the former workers•National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U.S.240 (1939) employees who took part in an unlawful sit down strike, after the employer had attempted to set up a company union, were not entitled to reinstatement in their jobs. Engaging in an unlawful strike meant losing the protection of the NLRA 1935.•NLRB v. Truck Drivers Local 449, 353 U.S. 87 (1957) temporary lockout held to be lawful•Thornhill v. Alabama, 310 U.S. 88 (1940) picketing could not be restricted by state law, as that would violate the First Amendment and the Fourteenth Amendment, so long as the picket was related to a labor dispute in issue.Equality and discrimination[edit]See also: Employment discrimination law in the United States and Civil Rights Act 1964President Lyndon B. Johnson speaks to a television camera at the signing of the Civil Rights Act of 1964. Civil rights[edit]While Congress passed laws barring racial discrimination by private employers in 1866 with the Civil Rights Act of 1866,[11] the Supreme Court's decision in the Civil Rights Cases made that Act a dead letter for nearly a century. Congress adopted limited prohibitions against racial discrimination by defense contractors during World War II, but no general prohibition against employment discrimination until it passed Title VII ofthe Civil Rights Act of 1964,[12] which bars employment discrimination on the basis of race, gender, national origin and religion.Congress amended that Act in 1972 to cover governmental employers, in 1981 to outlaw employment discrimination on the basis of pregnancy, and again in the Civil Rights Act of 1991 to overturn a number of decisions by the Supreme Court limiting employees' rights.Congress has also protected the rights of workers over forty years of age in the Age Discrimination in Employment Act, passed in 1967, and the Americans with Disabilities Act[13] of 1990. The Immigration Reform and Control Act of 1986 also provides narrow prohibitions against certain types of employment discrimination based on immigration status.Title VII[14] encourages states to pass their own anti-discrimination laws; most states outside the South have done so. A number of states and local governments have also enacted statutes that expand on the rights that federal law offers, either by offering greater remedies or broader protections, or have legislated in areas that federal law does not cover, such as discrimination based on sexual orientation or marital status.。