Labor and Employment Law

How many labor and employment laws are there in the U.S.?

The DOL administers and enforces federal L&E laws covering nearly 150 million workers and 10 million workplaces nationwide. Across this wide employment base, the DOL is responsible for implementing more than 180 federal employment laws that apply to both employees and employers representing diverse groups, workplaces, and industries.

Major federal employment laws that protect employees in the workplace are listed below.

Fair Labor Standards Act

The Fair Labor Standards Act of 1938 establishes minimum wage, overtime, and child labor standards that apply to covered employers. Generally, employers are subject to the FLSA if an employment relationship exists and either the business enterprise or individual employee coverage requirements are met.

However, even if employers are covered by the FLSA, certain employees are excluded from the minimum wage and overtime provisions. To qualify as an exempt job, employees generally must meet certain tests regarding their job duties and be paid a prescribed minimum salary. Specifically, highly compensated employees who perform office or nonmanual work typically meet this exemption standard.

Equal Pay Act

As an amendment to the FLSA, the Equal Pay Act of 1963 protects individuals regardless of sex against wage discrimination. The Equal Pay Act covers all forms of compensation, such as:

• Salary
• Overtime pay
• Bonuses
• Vacation pay
• Benefits

If an employer pays two people of different sexes different wages for equal jobs, the Equal Pay Act requires raising, not lowering, respective wages to resolve the disparity.

Title VII of the Civil Rights Act

Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, prohibits discrimination in all aspects of employment on the basis of race, color, religion, sex, or national origin. It bars intentional discrimination on these bases as well as unintentional discrimination that can’t be justified by business necessity or certain enumerated exceptions.

Title VII applies to both employees and applicants for employment. Employers of 15 or more employees, labor unions, and employment agencies are covered.

Age Discrimination in Employment Act

Broadening employee protections, the Age Discrimination in Employment Act (ADEA) of 1967 prohibits discrimination based on age against employees 40 years old or older.

Rehabilitation Act, Sections 501 and 505

Sections 501 and 505 of the Rehabilitation Act of 1973 prohibit federal agencies from discriminating based on mental or physical disabilities of otherwise qualified applicants or employees.

Americans with Disabilities Act

Title I of the Americans with Disabilities Act (ADA) of 1990 further expanded anti-discrimination protections by prohibiting discrimination against qualified employees and applicants with disabilities.

The ADA also requires employers to provide accommodations, such as a screen reader or extra break time, for employees’ and applicants’ known physical and mental disabilities, unless doing so would create an undue hardship for employers.

What is the difference between federal and state labor and employment laws?

Both federal and state labor and employment laws govern the employment relationship, and both can impose obligations and restrictions on employers.

In some rare cases, federal law will preempt or override state law. For example, the Employee Retirement Income Security Act (ERISA), the main federal law on employee retirement and other benefit plans, prohibits states from passing laws that touch retirement plans. Like ERISA, most federal laws that preempt state law include a provision that clearly preempts state law.

In all other cases, employers must comply with both federal law and the laws of the state where the work is performed. It’s a common misconception that employers can comply with both laws by complying with the “stricter” law, but that isn’t the case.

State and federal laws often have enforcement mechanisms, reporting requirements, and penalties that are different from one another, but neither is stricter than the other. This makes it essential for employers to understand and comply with both state and federal law. For example, federal law requires employers to provide family and medical leave and many states require employers to provide voting leave. To comply with both state and federal law, such an employer would need to provide each type of leave: family, medical, and voting.

Do state labor and employment laws offer more protections?

In most cases, state labor and employment laws expand employment protections for workers. For example, many states set higher minimum wage requirements than the federal minimum wage. Similarly, some states provide additional time off, under certain circumstances, beyond the minimum mandated by the federal Family and Medical Leave Act (FMLA).

Right-to-work protections also diverge in federal and state law. While the federal government lacks a right-to-work law, many states now have statutes that allow employees to opt out of paying union dues in a unionized workplace.

What are the basic rights of employees under U.S. labor laws?

By U.S. law, employees have the right to self-organize and take collective action. This legal protection is rooted in a foundational statute of U.S. labor law written decades ago.

The Wagner Act of 1935, which became the NLRA, was the first comprehensive, legally enforceable federal labor law to give employees a right to organize. The NLRA remains one of the chief federal labor laws in the U.S. today. Section 7 of the NLRA outlines three main employee rights in the workplace.

The right to engage in activities to improve working conditions

Under Section 7, employees also have the right to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Concerted activities are legally protected actions between two or more employees to improve working conditions or pay. The NLRA prohibits employers from disciplining or firing workers for engaging in these actions. Conversely, employees also have the right to refrain from any or all such activities.

The right to unionize

The most fundamental employee right laid out in the NLRA is the right to form, join, or assist labor organizations. If most employees at a place of business seek to join or sign their names in support of a union, the next step is to elect employee representatives, overseen by the National Labor Relations Board (NLRB), the independent federal agency that enforces the NLRA. If a majority votes to create a union, the NLRB certifies the union as representing the employees.

The right to collective bargaining

With a union established, employees can engage in collective bargaining, another right under Section 7. To address disputes like pay, benefits, and workplace safety, collective bargaining protects the ability of employees to negotiate with employers through elected representatives. Negotiations must be held in good faith and final terms viewed as binding by all parties.

What is an unfair labor practice under the NLRA?

An unfair labor practice is any violation of employees’ rights – to engage in concerted activities for their mutual aid or protection; to form, join, or assist unions; or to refrain from any of these activities. An employee, employer, labor organization, or any other person may file a charge with the NLRB that any other listed entity is violating the NLRA.

An unfair labor practice complaint should contain a clear and concise statement of facts upon which the NLRB’s jurisdiction is based, as well as a description of the alleged unfair labor practices. The allegations of the complaint should provide sufficient detail to allow the parties to understand the charges and issues to be litigated.

Current issues shaping U.S. employment law

In our most recent State of Practice Survey of law firm and in-house attorneys, among respondents who have some focus on labor and employment law, two-thirds have seen an increase in union activity over the past year. 

Of those survey respondents practicing labor and employment law, collective bargaining and contract renewal negotiations were the most common labor-related activities they reported advising clients on over the past year. The NLRB’s new joint employer status rule was another area of focus; 28% of respondents reported advising their clients on employer status determinations, general aspects of the rule, and the rights and responsibilities of joint employers.

In addition to increased labor-related activities, complex socioeconomic issues continue to reshape employment law. Among today’s highly discussed topics, the rights of gig economy workers, conflicting state and federal cannabis laws, and gender identity discrimination require even greater attention now in the federal L&E law arenas. Here’s a brief look at each.

Gig economy workers

The rise of the gig economy presents far-reaching questions about business compliance with wage, tax, and employment eligibility laws. In January 2021, the DOL revised its interpretation of independent contractor status under the FLSA and published a checklist to help distinguish between employees and independent contractors. However, the line between employee and independent contractor remains unsettled, and legal practitioners must stay apprised of rule changes. Where no ambiguity exists and a worker is misclassified, businesses face liabilities for failure to pay overtime and minimum wage under the FLSA and tax violation fines.

Cannabis legalization and regulation

While still illegal under federal law, cannabis is now decriminalized in more than 20 states. This shift complicates both workplace policies and discrimination statutes within employment law. In this environment, employers should anticipate a rise in employment discrimination lawsuits.

As a further complication, employers can’t rely on uniform agreement among states about discrimination criteria. For example, while Missouri prohibits employers from firing an employee engaged in the medical use of marijuana during non-work hours, Oregon employers are not required to accommodate an employee’s use of medical marijuana. In this shifting terrain, legal practitioners should stay well-versed in state laws on recreational and medical cannabis access and potential consequences of denying or terminating employment due to either use.

Gender identity

Among protected classes outlined under Title VII of the Civil Rights Act, the classification of “sex” has broadened in the decades since the law’s passage. With the Pregnancy Discrimination Act of 1978, for example, the term “on the basis of sex” came to include pregnancy. In a similar push toward broader definition, the U.S. Supreme Court ruled in 2020 that the definition of “sex” can now also include sexual orientation and gender identity. As a result of this expansion, district courts in nearly all federal circuits, and in particular states that lack employment protections for LGBTQ workers, have seen a steady rise in Title VII claims based on sexual orientation or gender identity. As plaintiffs increasingly exercise their legal rights, employers should stay current on Title VII-protected class definitions.