Labor Law Outline

Labor Law Outline—Plass
History of Labor Law:
 
Pre 1935 Labor Law:
Until 1935, there was no formal labor or workplace regulation.
Around 1925/1926, Congress passed the Railroad Act.  However, it only dealt with railroads.
Before the passage of the NLRA, Labor law and workplace disputes were governed by the common law.
What kind of law?
Contract law;
Criminal law.
 Note that we can still use criminal law for workplace disputes.  So some things haven’t changed.
Ie:  An employee resorts to “self help.” He is unhappy with the situation at work  and starts to sabotage the employer and vandalize.  Then the employer can, in turn, call the cops and prosecute the employee.
At will or contract? 
Historically, 1800s, at will employees were rare.  Most employees were under contract (thus, this is why contract common law was a source of resolving workplace disputes).
Forfeiture Doctrine:
HYPO:   Employee says that employer is making him do things he was not hired to do.  For example, employee claims the employer is making him work more hours and that, thus, the employer is breaching their k.  The employee says he is going to quit before the k term.  The employer then says that if employee quits, he will not pay the employee.  Here, we would utilize contract law.
K doctrine of Forfeiture.  Employment ks were entire, which meant that the employee had to perform completely under the k.    If not, the employee forfeits any right to recover under the k.
There was no similar rule if employers were charged with misconduct.  Employers were making frivolous claims that employees breached the k and did not perform and thus, were not allowed to recover under the k.
Mid 1800s:  It was not until the mid 1800’s, state courts started to grant some relief for the employee:
 Quasi contractual doctrine came about.
The courts looked away from the notion that ks were “complete.”
 
SECTORS: 
Historically (1800s), employees were in three different sectors:
Agricultural (90 percent); Service (2 to 3 percent); Manufacturing (5 percent approx)
Now, it’s a different story.  There are many workers in the service industry.
Before, people used to make a lot of their own stuff. 
Now we don’t make our own stuff.  If you look at the tags of your belongings, you will see its made in Vietnam, Korea, China, etc.
Every year, American workers are more and more in the service industry, and less and less in the agricultural and manufacturing industries.
 
MASS EMPLOYMENT:
In the 1800s, employers were not employing workers in mass.
NOW, corporations employ a mass amount of workers. 
 Historically, there was no means of knowing who all the employers were and the employees working for them. 
NOW, we have this fictitious entity—the corporation!
 
Late 1780/1790– 1850s (civil war):
The country is experiencing the industrial revolution.
Growth of corporations
Growth in desire to employ workers in mass
What is the negative aspect of employing workers in mass?
Poor pay b/c skill is not really required. Workers became dispensable.  Poor working conditions, again, b/c skill is not really required.
 
1880s through late 1800s:
Employees were working but were unhappy.  They began to stick together—unionize.
Employees begin threatening the employer with strikes
Employer could seek out to the criminal law—criminal conspiracy!
Criminal conspiracy made it a crime to ban together to affect an unlawful end or to affect a lawful ends by unlawful means.
The idea is that the employees’ act of sticking together and “unionizing” was Un-American b/c it would screw up the market.  The cost of labor is the biggest cost for a lot of products.  Thus, unionization would drive the prices of products up.
Debate:
Employer would argue that employees’ are raising the cost of products everywhere, thereby hindering the economy.
Employees would counter and say that if they did not get paid more, or get other benefits, then they will quit and no one will want to make products.  Then, there will be a product shortage and thus, the price of the product will go up.
Employers argued that if employees would get their way, then they could set the price of their work at any price they see fit.
Nevertheless, employees were convicted of criminal conspiracy in order to control unionization.
 
Late 1880s:
Liberty of k principles was prevalent.
Liberty of contract principles: 
The principle that two parties to a contract should bargain to reach their equilibrium price.
Employer should be able to buy labor at the price he is willing to negotiate; Employee should be able to sell labor at the price he is willing to accept.
The parties should be able to come to a mutual agreement, w/o regulation.
Thus, liberty of k principles is inconsistent with unions and unionization.
Lochner:  In 1897, The Supreme Court stepped in regarding liberty of contract principles
The state’s interest in policing its citizens cannot interfere with right to k!
The right to k is a fundamental right under the 14th Amendment DP clause (note that this has since been abolished.  The right to k is no longer a fundamental right).
This was the Lochner Era!
 Lo