LABOR & EMPLOYMENTProfessor Lisa Smith-ButlerAdvanced Legal ResearchFall 2014

INTRODUCTION

There are a number of federal laws that regulate the private sector’s labor/management relationship. Some of the more important ones include:The National Labor Relations ActFair Labor Standards ActOccupational Safety & Health ActCivil Rights Act of 1964, 1991

NATIONAL LABOR RELATIONS ACT (NLRA) In 1935, Congress passed the Wagner Act, more commonly known as the National Labor Relations Act (NLRA.)

This Act has been amended several times. Two important amendments include the 1947 Taft-Hartley Act and 1959 Landrum-Griffin Act.

Briefly, the purpose of the NLRA is to regulate labor-management relations in industries affecting interstate commerce.

The NLRA regulates the right of employees to organize and bargain collectively with their employers. The Act governs the behavior of both employees and employers.

NATIONAL LABOR RELATIONS BOARD (NLRB) The National Labor Relations Board (NLRB) is the federal agency empowered to administer and enforce the National Labor Relations Act (NLRA.) It is applicable to labor-management relations in the private sector.

This agency is divided into two divisions: the General Counsel which investigates and prosecutes complaints; and the Board which interprets the NLRA via adjudicatory hearings.

HOW DOES THIS WORK?

The NLRB is the only entity that can enforce the NLRA. This is important in terms of structure and consequently publication of materials pertaining to the NLRA.

If an employee or employer believes that the NLRA has been violated, they can file a formal complaint with the local field office of the NLRB.

The complaint is referred to the Regional Director who then investigates. If the Regional Director believes no violation has occurred, this decision can be appealed to the General Counsel.

If the Regional Director determines that a violation of the Act has occurred and settlement efforts fail, the matter is then referred to an NLRB Administrative Law Judge. The ALJ writes a decision which can be appealed to the full five member NLRB.

NLRB decisions can then be appealed to the appropriate U.S. Circuit Court of Appeal.

PRIMARY SOURCES OF LAW: THE NLRA The current NLRA can be found at 29 U.S.C. §§151-169. (2012.)

The initial version passed by Congress in 1935 can be found at 49 Stat. 449 (1935.)

REGULATIONS

RegulationsRegulations pertaining to federal labor-management relations and collective bargaining can be found in 29 C.F.R. §100-103 (2014.)

CASES

Judicial and Administrative Decisions can be found in:Court Decisions Relating to the National Labor Relations Act began publication in 1939 by the GPO and contain court decisions involving the NLRB. Access is via an accompanying index.

Decisions and Orders of the National Labor Relations Board published NLRB decisions from 1936 onwards by GPO.

Weekly Summary of NLRB Cases is a summary of NLRB cases, published weekly by GPO. Publication began in 1979. See also the online version at http://www.nlrb.gov/cases-decisions/weekly-summaries-decisions.

ACCESSING OFFICIAL NLRB DECISIONS How do you access decisions promulgated by the NLRB? Digest of Decisions of the National Labor Relations Board

Provides coverage from 1946-1970.

Classification Index of National Labor Relations Board Decisions and Related Court Decisions (GPO;

Provides coverage from 1974 onwards. Classified Index of Decisions of the Regional Directors of the National Labor Relations Board in Representation Proceedings

Provides coverage from 1976 onwards.

CCH LABOR LAW

In addition to official government publications of NLRB decisions, there are also commercial publications, including: CCH Labor Cases is a loose-leaf published by CCH (Commerce Clearinghouse:) Publication began in 1937 and continues to present. This loose leaf reporter provides a selection of decisions produced by federal and state courts throughout the U.S. on federal and state labor problems.

CCH Labor Law Reports (Commerce Clearinghouse: )  is another loose leaf published. Publication began in 1987. This series contains: current NLRB decisions; Advice Memoranda issued by the Office of General Counsel of the NLRB; and court decisions.

MORE CCH

CCH NLRB Decisions is another loose leaf published by CCH. Publication began in 1960 and it reproduces decisions published in the CCH Labor Law Reports.

CCH has compiled all of these print resources into an electronic library now known as Labor & Employment.

This library can be searched by keyword or citation.

It will then display results in the following order: news and current awareness; laws & applicable regulations; citations to cases that interpret the laws; and explanations offered by an expert in the field.

THE CODE

REGULATIONS

CASES

CCH EXPLANATIONS

CCH FORMS

BNA (BUREAU OF NATIONAL AFFAIRS) BNA’s Labor Relations Reporter is another loose leaf, published by BNA (Bureau of National Affairs) from 1939 to the present. It contains:analysis, news and background information;NLRB decisions;State laws;Wage & Hour decisions; &Fair Employment Practices Cases.

BNA

THE NLRB OFFICIAL WEB SITE The NLRB’s Internet site, http://www.nlrb.gov/, also provides a wealth of primary and secondary sources of legal information. At this site, you can find:Administrative decisions of the NLRB;Agency rulings;Press releases,NLRB forms; andNLRB Manuals.

SECONDARY SOURCES

Selected Treatises:Gould, William B., A Primer on American Labor Law, 4th ed. (2004.) E-BookHiggins, John E., ed., The Developing Labor Law: The Board, The Courts, and the NLRA, 5th ed. (2006.)Modjeska, Lee, Federal Labor Law: NLRB Practice , rev. ed. (1994 - .) E-BookGarren, Brent, How to Take a Case Before the NLRB , 8th ed. (2008.)

SECONDARY SOURCES

Selected Periodicals:Berkeley Journal of Employment and Labor LawHofstra Labor Law and Employment Law JournalHofstra Labor Law Forum (1983-1987)Hofstra Labor Law Journal (1987 – 1997)Labor Law Journal (CCH)The Labor Lawyer

BLOOMBERG, LEXIS & WESTLAWBloomberg Law, Lexis Advance, and WestlawNext provide extensive coverage of coverage of labor law materials, including primary and secondary sources.

BLOOMBERG BNA

LEXIS ADVANCE

WESTLAWNEXT

INTERNET SITES

There are several Internet sites that provide access to primary and secondary sources. They include:

ABA Section of Labor & Employment Law @ http://www.abanet.org/labor/home.html

Bureau of Labor Statistics @ http://www.bls.gov/Cornell’s Legal Information Institute @ http

://www.law.cornell.edu/wex/table_laborDepartment of Labor @ http://www.dol.gov/National Labor Relations Board @

http://www.nlrb.gov/

FAIR LABOR STANDARDS ACT (FLSA)In 1938, Congress passed the Fair Labor Standards Act (FLSA) also known as the Davis-Bacon Act. For employers earning $500,000 or more annually and involved in some fashion with interstate commerce, the FLSA establishes:

the minimum wage;overtime pay;employer record keeping responsibilities; andchild labor.

PROCESS & INVESTIGATION

There are local Wage & Hour Offices stationed through out the United States. Their function is to enforce the FLSA.

How does enforcement begin?

An employee may initiate a complaint; orthe Wage & Hour Division may routinely investigate a business.

Once an investigation has begun, a Wage and Hour officer will go to the place of business and:review employer records;speak privately with employees.

After the investigation is completed, a determination is then made as to whether the FLSA has been violated.

If a violation has occurred, the employer may be fined and can also be sued either by the Secretary of Labor or the private individual harmed by the employer’s actions.

PRIMARY SOURCES OF LAW

The Fair Labor Standards Act was passed by Congress in 1938; this current legislation can be found at 29 U.S.C. §§201 et seq. (2012)

Originally it was published in 52 Stat. 1060 (1938).

Current regulations regarding the Fair Labor Standards Act can be found at 29 C.F.R. §§510 - 794 (2014.)

CASES: OFFICIAL & COMMERCIALGeneral Wage Determinations Issued Under the Davis-Bacon and Related Acts (GPO) is the official publication which contains “the wage determinations issued by the Secretary of Labor…specifying the prevailing wage rates….”Chain, Leah, ed., Federal Labor and Employment Law, in Specialized Legal Research (1997).

Commercial publications include:BNA’s Wage and Hours Cases provides coverage from 1942 to the present. The text of federal and state court opinions involving the FLSA can be found here as well as decisions of administrative tribunals. Access is via a cumulative digest.BNA’s Wages and Hours Cases: 2d Series provides current court decisions and administrative rulings as well as reports of federal and state court opinions involving the FLSA.

SECONDARY SOURCES

Selected Treatises:Government Printing Office, Handy Reference Guide to the Fair Labor Standards ActMurphy, Betty Southard, et. al., Guide to Wage and Hour Regulation, 2d ed. (1998.)

ELECTRONIC RESOURCES

Information about the FLSA and related laws can be found at the Department of Labor’s Internet site at http://www.dol.gov/.

The Employment Standards Wage & Hour Division also publishes an electronic advisory for employees and employers known as elaws at http://www.dol.gov/elaws.

ADDITIONAL LAWS ENFORCED BY THE DOLIn addition to the enforcement of the Davis Bacon/Fair Labor Standards Act, the Wage & Hour Division of the Department of Labor also enforces the following wage statutory provisions:

Service Contract ActWalsh Healey ActFamily & Medical Leave Act

OCCUPATIONAL SAFETY & HEALTH ACT (OSHA)The Occupational Safety & Health Act (OSHA) was enacted by Congress in 1970.

This Act regulates the safety and health of employees in private sector industries that affect interstate commerce.

The Act is administered by the Occupational Safety and Health Review Commission.

OSHA

The Occupational Safety & Health Review Commission administers OSHA and can:

promulgate health and safety standards for an industry;

inspect employer premises for possible OSHA violations; and

issue citations to employers for any OSHA violations.

OSHA

In turn, employers can challenge the Occupational Safety and Health Review Commission in the appropriate Circuit Court of Appeals regarding:

promulgated agency rulings; orcitations issued for violations.

PRIMARY SOURCES OF LAW

Current OSHA legislation can be found at 29 U.S.C. §§ 651-678 (2012.) Regulations are contained at 29 C.F.R., Parts 1900 - 1988 (2014.)Official publications of reports and decisions can be found in:Occupational Safety & Health Review Commission Decisions which contains selected decisions by OSHCR.

O.S.A.H.R.C Reports which contains reports of the OSCHR as well as selected decisions.

Access to these materials is via the Index to Decisions of the Occupational Safety and Health Review Commission. BNA’s loose leaf reporter, Occupational Safety and Health Reporter publishes current news as well as selected court decisions and agency rulings.

SECONDARY SOURCES

Selected Treatises:Government Printing Office, Occupational Safety and Health Handbook (2000 - .)Hirsch, Jeffrey L., Occupational Safety and Health Handbook: An Employer Guide to OSHA Laws, Regulations & Practices, 4th ed. (2012.) Rothstein, Mark, Occupational Safety and Health Law (2006 - .) E-Resource

ELECTRONIC RESOURCES OSHA also maintains an Internet site @ http://www.osha.gov/ which provides access to agency rulings, publications, and a variety of other documents on workplace safety.

CIVIL RIGHTS ACT OF 1964

In addition to the civil rights acts passed immediately following the U.S. Civil War in the late 1860’s, Congress also passed the Civil Rights Act of 1964, commonly known as Title VII. Since then, it has also been referred to as “employment discrimination.”

Title VII prohibits employment discrimination in the public or private sector (providing the employer employed 25 or more employees) on the basis of:race;color;sex;religion; ornational origin.

CIVIL RIGHT ACT OF 1964

Title VII also established the Equal Employment Opportunity Commission (EEOC) whose task was to enforce the provisions of Title VII.The EEOC investigates, at either an employee’s complaint or its own instigation, allegations of violations of Title VII.

Before entering federal court with allegations of violations of Title VII, an employee must first file a complaint with the Equal Employment Opportunity Commission.

The EEOC has six months to investigate; after this, the employee can request and receive a right to sue letter and proceed directly into federal district court.

CIVIL RIGHTS ACT OF 1964

When investigating, the EEOC can:request and subpoena employer records; &interview employees.

After investigating, the EEOC then makes a determination as to whether a violation of Title VII occurred.

If a violation has occurred, settlement is encouraged.

If there is no settlement, the EEOC and/or the private individual may proceed into federal district court against the employer.Since 1964, Congress has amended Title VII to include age and disability.The 1991 amendment, the Civil Rights Act of 1991, also known as §1981 actions, included disability and allows individuals who are the victims of intentional discrimination to recover both compensatory and punitive damages as well as receiving a jury trial.

PRIMARY SOURCES OF LAW

Title VII can be found at 42 U.S.C. §§2000e-2000e-17 (2012.) The initial legislation passed in 1964 can be found at 78 Stat. 253 (1964). The Civil Rights Act of 1991 can be found at 42 U.S.C. §1981a (2012.) The initial law can be found at 105 Stat. 1071 (1991.)

Regulations for Title VII can be found at 29 C.F.R. Part 1601-1627 (2014.)

Court decisions involving Title VII can be located in commercial publications, including:American with Disabilities includes the full text of federal court decisions as well as a cumulative index and digest. This is a loose leaf published by BNA.

CIVIL RIGHTS ACT OF 1964

Fair Employment Practices Cases is a loose leaf reporter published by BNA. It too contains the full text of federal court decisions involving Title VII. Access is via a cumulative digest and index known as the Cumulative Digest and Index Covering Fair Employment Practices Cases and the Fair Employment Practices Cumulative Digest and Index and Table of Cases.

Employment Practices Decisions is a loose leaf service published by CCH. It contains the full text of federal and state court decisions involving employment discrimination.

The EEOC’s Internet site at http://www.eeoc.gov also provides a great deal of information, including text of the legislation and regulations, statistics, manuals, and guides to filing charges.

SECONDARY SOURCES

Selected Treatises:Buckley, John & Lindsay, Michael, Defense of Equal Employment Claims, 2nd ed.(2003 - .)E-BookPlayer, Mack A., Employment Discrimination Law in a Nutshell, 7th ed. (2013.) KF 3464 .Z9 P55 2009Lindemann, Barbara et. al., Employment Discrimination Law, 4th ed. (2007.)Perritt, Henry, Americans with Disabilities Act Handbook, 4th ed. (2003.) E-Book

CONCLUSION

For specialized legal research, consult:Chanin, Leah, Specialized Legal Research (1987 - .)Questions: Contact the Reference Desk @ 843.377.4020 or reference@charlestonlaw.edu .