Labor Legislation and Administration
LABOR LEGISLATION AND ADMINISTRATION
LABOR LEGISLATION AND ADMINISTRATION. Labor legislation in America has gone through four distinct periods. Before the late nineteenth century, legislative intervention in the master-servant relationship had been extremely rare and episodic, and common law and court policy had long prevailed as the dominant legal framework. However, in the late nineteenth and early twentieth centuries (especially during the Progressive Era), waves of protective labor legislation swept across the country, providing industrial workers with some protection against flagrantly unfair and inhumane labor practices by employers. Then during the 1930s, labor legislation began to focus on the organization of labor, and leadership was taken over by the federal government. Since the 1960s, labor laws have reached far beyond unions and industrial workers, offering protection against discrimination because of race, gender, age, or disabilities.
In colonial America, when the majority of workers were domestic servants, apprentices, temporary helpers, indentured servants, or slaves, and when wage labor for a livelihood was the exception, the master-servant relationship was hierarchical and mutually obligatory. Many legal commentators and treatise writers of the period noted that the master was supposed to afford the servant provisions and medical care. In colonial Massachusetts, laws and indentures accorded the servant certain rights, such as food, clothing, shelter, safe tools, and the right not to suffer bodily harm or cruel treatment. On the other hand, such paternalistic arrangements often imposed harsh terms on the servant. When the servant failed to measure up to the norms or terms of labor, the servant might be disciplined, even whipped, by the master or imprisoned by a court. In colonial South Carolina (and Massachusetts, to a lesser extent), the master had statutory permission to put his servant to work for one week—not to exceed a total of two years—for every day the servant was absent from work without consent. In many colonies and localities, voluntary idleness was illegal, and a small number of the "indigent," "vagrant," or "dissolute" persons and criminals were bound to labor for limited terms, usually not exceeding one year. Yet, until the end of the eighteenth century there had been little, if any, legislative action or litigation involving free adult workers.
In the late eighteenth and early nineteenth centuries visible groups of gainfully employed artisans and mechanics appeared in increasing numbers in urban and early industrializing centers and seaports. When those workers envisioned their collective interests and organized as trade societies and brotherhoods, state courts suppressed their efforts by invoking a doctrine of common law that defined such activity as "criminal conspiracy inimical to the general welfare." The leading cases were Commonwealth v. Pullis (Pennsylvania, 1806), State of Maryland v. Powley (1809), and People v. Melvin (New York City, 1809). The judiciary's hostility toward labor would continue until the mid-1930s.
During the first half of the nineteenth century, state courts formulated a new legal framework that viewed the master-servant relationship as a contract between two free and equal parties. The old paternalism persisted for resident servants, juvenile apprentices, and slaves, but a new court policy denied wage workers medical care for injuries resulting from an accident caused by a fellow servant or the injured worker himself. It was also reasoned that an injured worker had assumed the risk of the trade upon entering employment, and that such risk was compensated through wages. Elaborated in the early 1840s, the three so-called employers' defenses would remain until the 1910s. The American judiciary maintained a strong role in subsidizing industrialization—mostly at the expense of workers—by reducing the employers' liability and expenses related to labor organization.
In the 1880s and 1890s, industrialization was in full swing, industrial accidents were mounting, and workers were often treated unfairly and left at the mercy of the marketplace. A growing number of social reformers and public leaders began to lend a sympathetic ear to industrial workers' grievances and to attack the pro-business legal framework. In consequence, a number of state legislatures enacted the first significant labor laws. For example, laws were passed to prescribe safety standards, restrict hours of labor, and regulate methods and terms of wage payment. Although the constitutionality of such laws were sustained by some state courts, most failed to pass judicial muster—most notably Godcharles v. Wigeman (Pennsylvania, 1886; struck down an anti-truck act) and Richie v. People (Illinois, 1895; struck down an eight-hour law for women).
The legislative initiative and the occasionally favorable judicial response were only a prelude to a full-fledged reform movement of the Progressive Era (c. 1897–1917). During this period, broad interpersonal and interorganizational coalitions developed, dedicated to improving working and living conditions for industrial and mercantile workers. With labor (especially state federations of labor) as the vanguard, the reform coalitions included liberal churches and ministers preaching the "social gospel"; settlement houses and charity organizations; muckraking journalists and popular magazines; reform-minded college professors; progressive public officials and inspectors at bureaus of labor or labor statistics; and pro-labor civic organizations. In addition, dozens of state labor laws were precipitated by a series of industrial calamities, including the 1907 Monongah mine disaster in West Virginia (362 killed); the 1909 Cherry mine disaster in Illinois (259 killed); the 1911 fires at the Triangle Shirtwaist Company in New York City (146 killed); and in 1914, a fire at an Edison lamp factory in West Orange, New Jersey (25 killed).
The confluence of reform coalitions and tragic industrial accidents led to the most rapid and intensive labor legislation in American history, including employers' liability laws; safety laws for factories, workshops, railroads, and mines; hour laws for men and women; laws regulating the terms and conditions of wage payment; prohibition of the trucking (company store) system; convict labor and child labor laws; greater protection for collective bargaining and trade unions; and laws regulating fees and abusive practices by private employment agencies. The most prominent achievement was the passage of workmen's compensation acts, which by 1920 had been enacted by the federal government and by all but six states.
Although most progressive labor legislation was enacted state by state, federal legislation provided the model for many state laws. The Federal Employers' Liability acts of 1906 and 1908 were more liberal than most state counterparts, and earlier than many. The federal government took the initiative in probing the possibility of workmen's compensation, producing the Federal Workmen's Compensation Act of 1908, the earliest viable compensation law in the country. This was also true of the federal eight-hour laws of 1892 and 1912, as well as the Esch Industrial Hygiene and Occupational Disease Act of 1912. A federal law of 1912 even offered postal workers strong union protection and job security. In 1915, Congress eliminated the use of the stopwatch in government plants earlier than any state did. The federal government was also the leader in safety inspection and accident prevention and publicized the need of old age pensions.
Employers' associations vigorously attacked progressive labor laws as too costly, injurious to interstate competition, unconstitutional, and likely to serve as an "entering wedge" for further drastic measures. Yet, despite the major aberration of Lochner v. New York (U.S. Supreme Court, 1905; struck down New York's ten-hour law for bakers) courts rejected employers' objections and sustained most progressive laws as a valid exercise of the police power by the legislature. As shown most dramatically by the Holden v. Hardy decision of the U.S. Supreme Court (1898, upheld Utah's eight-hour law for miners and smelters) progressive jurisprudence put the public welfare above private property rights, recognized the unequal power relationship between employer and employee, showed an enormous amount of deference to the will and wisdom of the legislature, adapted law pragmatically to socioeconomic and technological changes, debunked the freedom-of-contract fiction, stripped employers of many of their vested interests in common law, and merged the welfare of workers and the public.
Progressives learned from the past when several "voluntary" labor laws had proved to be only "dead letters," due to employers' noncompliance. Consequently, advocates of progressive legislation equipped the laws with financial and legal penalty clauses—in some cases even criminal penalties with imprisonment terms—and prohibited contracting out of the laws. Many laws were also backed by a newly created or strengthened administrative apparatus with a far greater staff and financial resources than ever before. For example, the Industrial Commissions in several states (most notably in Wisconsin) were given powers to interpret the laws quasi-judicially, write administrative guidelines, issue administrative orders, and penalize or prosecute non-complying employers. Progressive labor legislation, adjudication, and administration occasioned a "radical departure" from the laissez-faire and pro-business past. Furthermore, those progressive ideas would serve as a building block for the labor-relations governance in the following decades.
Progressive labor legislation had a critical flaw, however. While supporting the welfare of industrial workers as an integral part of the broader public welfare, it fell short of recognizing labor's right to organize and promote the exclusive interests of individual unions. In particular, state and federal supreme courts invalidated most measures intended to promote labor organization, and instead they legitimized "yellow-dog contracts" whereby employees signed away the right to unionize as a precondition of employment; held collective action of a union as an anti-trust violation; and struck down laws protecting union membership. After a little more than a decade of little progress in protective labor legislation, and even a few setbacks in the 1920s, labor interests emerged as the over-arching issue when the very foundation of the nation's economic life and social fabric was in critical jeopardy.
As the first major pro-union measure, the Norris- LaGuardia Act (1932) outlawed yellow-dog contracts and banned federal injunctions in labor disputes, except under carefully defined conditions. Pro-union legislation was further amplified by the National Labor Relations Act (or Wagner Act, 1935), the single most important labor law in American history. Declaring to redress the historical inequality of bargaining power between management and labor, the act guaranteed labor "the right to self-organization, to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection." It enumerated and prohibited "unfair practices" by employers to undercut labor organization and collective bargaining. The act created a permanent independent agency—the National Labor Relations Board (NLRB)—with the power to conduct and certify union elections and to prevent unfair labor practices by employers. With this epoch-making legislation, organized labor grew from some 3.5 million workers in 1935 to almost 15 million in 1947. These two pro-union measures were followed in 1938 by the Fair Labor Standards Act, which established a minimum wage and a maximum workweek.
After World War II, the public became more conservative and complacent, and legislation reversed some of the more radical legislation of the 1930s. While retaining most of the collective-bargaining provisions of the Wagner Act, the Labor-Management Relations Act (the Taft-Hartley Act, 1947) prohibited the closed shop (mandatory union membership by employees) and permitted the union shop only on a majority vote of the employees. It also outlawed jurisdictional strikes and secondary boycotts and stipulated a sixty-day "cooling-off" period at the close of a contract. An additional eighty-day cooling-off period might be ordered by the president when the nation's health or safety was deemed at risk. The act also encouraged states to pass right-to-work laws by allowing state anti-union measures to preempt federal legislation. In 1959, the act was amended by the Labor-Management Reporting and Disclosure Act (the Landrum-Griffin Act) to further restrict secondary boycotts and the right to picket, regulate internal financial and managerial affairs of unions, and provide the states with greater freedom to govern labor relations within their jurisdictions.
The 1960s opened a new chapter in the history of American labor law by addressing such entirely new issues as race, sex, age, disability, and family. This was a natural outcome of factors such as the civil rights movement, new social norms, a gradually shrinking trade and industrial workforce, changes in technology, and an increasingly global economy. Since the 1960s, labor laws have come to cover practically all working Americans.
The opening page of this new chapter was the Equal Pay Act (1963). The act prohibited gender-based wage discrimination between workers doing similar kinds of work under similar conditions. The next year saw Title VII of the Civil Rights Act of 1964—the most sweeping labor measure ever. It barred discrimination in every aspect of employment, based on race, color, ethnic origin, sex, or religion. In 1986 sexual harassment was incorporated into Title VII. In 1967 the Age Discrimination in Employment Act—supplemented by the Age Discrimination Act of 1975—prohibited discrimination against persons forty years of age and older, based solely on age.
For the first time in 1973, with the Rehabilitation Act, Congress prohibited workplace discrimination against employees with disabilities in the federal government or in the private sector receiving federal assistance. The limited scope of the act was greatly extended by the Americans with Disabilities Act (ADA) in 1990, which came to cover some 43 million people in the private and nonfederal public sector. In 1999, the Work Incentives Improvement Act made it easier for people with disabilities to return to work by expanding health care coverage and assistance by the Social Security Administration. Also significant was the Family and Medical Leave Act (1993), which mandated up to twelve weeks of unpaid leave for employees with at least a year of service, so that they could balance the demands of the workplace with their family and medical needs.
The enforcement of many of the labor laws enacted since the 1960s rests with the Equal Employment Opportunity Commission (EEOC), created in 1965. EEOC enforces the Equal Pay Act, Title VII, the Age Discrimination in Employment Act, the Rehabilitation Act, and the ADA by utilizing such enforcement tools as administrative resolution, mediation, outreach, educational and technical assistance, on-site reviews, and litigation in federal court. The agency operates fifty field offices nationwide in cooperation with state and local fair employment practices agencies. The Civil Rights Act of 1991 provided for both compensatory and punitive damages in cases of willful violations of Title VII, the Rehabilitation Act, and the ADA. And the Occupational Safety and Health Administration (OSHA), created within the Department of Labor, enforces the Occupational Safety and Health Act (1970), regulating the health and safety conditions in nearly 7 million workplaces for more than 100 million private-sector workers by means of workplace inspections, educational programs, citations, and penalties.
In the final decades of the twentieth century, the enforcement of protective labor laws tended to be relatively strict during Democratic administrations and lax during Republican administrations. Historically, the labor laws since the 1960s have made a remarkable contribution to redressing longstanding injustices and prejudices against minorities, women, and people with disabilities, yet substantial discrimination still exists. Similarly, many basic rights and interests of unskilled, migrant, and low-paid workers have long been largely neglected.
Dubofsky, Melvyn, and Stephen Burwood, eds. The Law and the New Deal. New York: Garland, 1990.
Forbath, William. Law and the Shaping of the American Labor Movement. Cambridge, Mass.: Harvard University Press, 1991.
Lehrer, Susan. Origins of Protective Labor Legislation for Women, 1905–1925. Albany: State University of New York Press, 1987.
Linder, Marc. The Employment Relationship in Anglo-American Law: A Historical Perspective. Westport, Conn.: Greenwood Press, 1989.
Montgomery, David. The Fall of the House of Labor: The Workplace, the State, and American Labor Activism, 1865–1925. New York: Cambridge University Press, 1987.
Steinfeld, Robert J. The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350– 1870. Chapel Hill: University of North Carolina Press, 1991.
See alsoChild Labor ; Contract Labor, Foreign ; Convict Labor Systems ; Injunctions, Labor ; Labor ; Labor, Department of ; Progressive Movement ; Trade Unions ; Wages and Hours of Labor, Regulation of .