Term Paper on "Employment Law"

r />The work of Stone (2008) entitled: "The Future of Labor and Employment Law in the United States" relates that the system of employment regulation in the United States "is a two track system. Labor law provides the mechanism for collective bargaining and other forms of employee collective actions, while employment law sets minimal employment standards for all employees." (Stone, 2008, p.2) Also set by employment law are minimum wages, establishment of safety and health standards, provision of old age assistance, requirements of unemployment insurance, compensation of industrial injuries, mandate of child care and medical leave, and establishment of other minimal terms of employment. (Stone, 2008, paraphrased)

Stone relates that the 'basic framework of today's labor and employment law originated in the New Deal period and was tailored to the job structures of that era." (2008) the New Deal Era is referred to by Stone (2008) as the 'industrial era' and is one in which "large firms organized their workforces into a set of practices that has come to be termed 'internal labor markets'." (Stone, 2008) Stone states that the 'internal labor market' is a termed used to "distinguish these practices from the neoclassical ideal of a large impersonal external labor market in which buyers and sellers contract freely and repeatedly for jobs of all types." (2008) Jobs, in the internal labor markets are stated by Stone (2008) to be "organized along rigidly defined lines of promotion, called job ladders. Within this framework, the worker hires in at the lowest run and advances in a series of steps throughout the lifetime of their career. Stone states that the internal labor market job structure "assumed a long-term relationship between the employee and the firm..." And the assumption is made that "a long-term relationship between the employee and the firm..." exists. (2008) Another assumption is that the job tasks "were minutely delineated and carefully arranged so that each job provided the training for the job on the next rung. Workers tended to stay within a particular department and on a single promotion line, and had little lateral mobility within or between firms." (Stone, 2008) Workers received rewards with longevity-based pay and benefits, and their seniority defined both their bidding rights for higher jobs and their bumping rights in case reductions in force." (Stone, 2008)

The internal labor markets by the 1930's had "become prevalent in large industrial firms." (Stone, 2008) During the decade of the 1930's Stone notes that the "three most significant labor statues were enacted and two major Supreme Court opinions were issued that together established a framework for governing labor relations that persists to this day." (2008) Stone relates that this framework "was based upon the assumptions rooted in the employment relationship that often prevailed during the New Deal period." (2008) This framework is described as one that was "appropriate to long-term employment relations in stable work environments, but it is becoming increasingly out of date." (Stone, 2008)

II. THREE ACTS

The Norris-LaGuardia Act, was enacted by Congress in 1932 and was an act, which "declared it to be the public policy of the United States to support workers' right to organize and engage in collective bargaining." (Stone, 2008) This Act "made it unlawful for federal courts to issue injunctions in many types of labor disputes." (Stone, 2008, p. 2) the 'National Labor Relations Act' (NLRA) was enacted in 1935 by Congress and provided workers an "enforceable right to engage in concerted action for mutual aid and protection, to organize unions of their own choosing and to engage in collective bargaining." (Stone, 2008, p. 3) the National Labor Relations Board was established in order to enforce those rights of the NLRA and in 1937, the Fair Labor Standards Act was passed by Congress, which established the federal minimum wage and maximum hours for employment. Stone (2008) states that these three statutes "taken together, established a two-tiered system in which labor and management were encouraged to bargain to establish the terms of the employment relationship, while at the same time, individual employees not covered by collective bargaining were guaranteed certain minimal employment terms." (Stone, 2008, p. 3)

III. CENTRALIZATION of AMERICAN LABOR LAW

The work of Benjamin I. Sachs entitled: "Employment Law as Labor Law" states that the United States Congress "More than seventy years ago...centralized nearly all of American labor law into a single federal statue." (2008) the 'National Labor Relations Act' (NLRA) "was designed to be sweepingly broad, dictating the kinds of employees who could organize, the types of organizations workers could form, and the subjects over which labor and management had to negotiate." (Sachs, 2008, p. 2684) Sachs relates additionally that this statute was "aggressively exclusive: neither other federal laws, nor state and local enactments were to interfere with the operation of the NLRA or its administrative agency, the National Labor Relations Board." (Sachs, 2008p. 2685) it is the belief of present day scholars that this is a "failed regime" and that "there are two primary diagnoses:

1) Although Congress intended the law to facilitate worker organizing and collective actions - declaring it to be the 'policy of the United States' to protect the 'full freedom of association [and] self-organization" among workers -- the statute has proven too weak to fulfill this mission; and 2) the regime is too rigid, and that the NLRA's attempt to govern the organizing process and the labor-management relationship from cradle-to-grave has disabled it from keeping pace with changes in the composition of the U.S. workforce and the structure of U.S. production systems." (Sachs, 2008, p. 2685)

Sachs relates that there have been various proposals to amend this statute by both scholars and legislators alike and yet no "meaningful reform" has been proposed or occurred over the course of the last fifty years. In fact, the resilience that this Act has had to proposed change has resulted in the view that "labor law is not simply dysfunctional but 'ossified': that it is stubbornly and powerfully resistant to the reinvention it so clearly needs." (Sachs, 2008, p. 2686) Sachs states that his (2008) explores one of the new "alternative legal channels" of reform, which he has termed "employment law as labor law." (2008, p. 2687)

Sachs (2008) holds that traditional labor law has "proven ineffectual, workers and their lawyers are turning to employment statutes like the Fair Labor Standards Act (FLSA) and Title VII of the Civil Rights Act of 1964 as the legal guardians of their efforts to organize and act collectively." (2008, p. 2687)

Sachs (2008) states the arguments as follows:

1) That the view of employment law as providing no support for collective action -- or as being inimical to collective action -- is wrong as a matter of theory;

2) Employment law's ability to insulate workers' collective activity from coercive interference flows from the strength of the statutes' anti-retaliation provisions; and 3) Employment law's generative potential is suggested by burgeoning research into the dynamics of reciprocity and collective efficacy, which indicates that workers' collective action operates according to self-reinforcing dynamics of success and failure. That is, in the context of workplace organizing, success breeds success and failure breeds failure." (2008, p. 2689-90)

During the decade of the 1930's two cases were decided by the Supreme Court which are stated to have "greatly expanded the power of the federal government to regulate private employment" as follows:

1) West Coast Hotel v. Parrish (1935) - the Supreme Court held that it was constitutional for a state to enact legislation… READ MORE