United States: International Comparative Legal Guide To Employment & Labour Law 2019 - USA Chapter

1 Terms and Conditions of Employment

1.1 What are the main sources of employment law?

The Department of Labor administers and enforces over 180 federal employment laws, including the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Employee Retirement Income Security Act (ERISA), the Occupational Safety and Health Act (OSHA), and the Uniformed Services Employment and Reemployment Rights Act (USERRA).

The Equal Employment Opportunity Commission enforces federal laws that make it illegal to discriminate against job applicants or employees, including Title VII of the Civil Rights Act of 1964 (Title VII), the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act of 1967 (ADEA), the Equal Pay Act of 1963 (EPA), and the Genetic Information Nondiscrimination Act of 2008 (GINA).

The National Labor Relations Board (NLRB) enforces the National Labor Relations Act (NLRA).

1.2 What types of worker are protected by employment law? How are different types of worker distinguished?

In order to be covered by federal employment laws, an employer must employ a certain number of employees (depending on the type of employer and the discrimination being alleged). State and local laws cover smaller employers that lack the number of employees required under federal laws.

Employees are distinguished by the existence of an employment contract (or collective bargaining agreement) or employment-at-will. At-will employment can be freely terminated by either the employer or employee, for any or no reason, with or without notice, so long as a federal, state, or local law is not violated. Typically, employees are presumed to be at-will unless a contract creating a different relationship exists. Where employment is established by contract, the employer-employee relationship is governed by the terms and conditions of the agreement. Employment is also distinguished by: whether the employee works in the public or private sector; whether the worker is considered an employee or an independent contractor; and/or whether the employee is exempt or non-exempt from overtime. Exempt employees are not protected by the Fair Labor Standards Act (FLSA) and are thus not entitled to overtime pay, whereas non-exempt employees are entitled to overtime pay.

1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?

No, written contracts of employment are not required. Federal employment laws do not require employers to provide employees with specific information; however, state and local employment laws may require particular information to be in writing.

1.4 Are any terms implied into contracts of employment?

Contract law allows the parties to lay out the terms of the employeremployee relationship. Employers are under a duty of good faith and fair dealings when an employment contract exists. Depending on the applicable state and local laws, other terms may be implied into an express or implied contract.

1.5 Are any minimum employment terms and conditions set down by law that employers have to observe?

Yes, minimum employment terms and conditions are set down by federal, state, and local laws. Under the Fair Labor Standards Act (FLSA), employers are required to pay covered employees the federal minimum wage and overtime pay for hours worked in excess of 40 hours per week. Additionally, many states and localities enact laws regarding minimum wage, overtime, and mandatory breaks.

1.6 To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level?

Collective bargaining agreements are governed by the National Labor Relations Act (NLRA), which sets out the requirements for bargaining. The number of employment agreements covered by collective bargaining has decreased over the years; however, they are more prevalent in certain regions of the United States and particular employment sectors.

Typically, bargaining occurs at a company level, between the employer and employees (or employee representatives). In some industries, bargaining occurs at a regional or industry level, between employers and unions.

2 Employee Representation and Industrial Relations

2.1 What are the rules relating to trade union recognition?

Under the National Labor Relations Act (NLRA), employers are forbidden from interfering with, restraining, or coercing covered private sector employees from exercising their rights to organise, form, join, or assist a trade union. Employees are free to elect a union to represent them.

2.2 What rights do trade unions have?

Employers and unions are required to meet at reasonable times and bargain in good faith regarding wages, hours, vacation time, insurance, safety practices, and other mandatory subjects. Parties must bargain in good faith for successor contracts. It is considered an unfair labour practice for a party to refuse to bargain collectively, but parties are not obligated to reach an agreement or make concessions.

2.3 Are there any rules governing a trade union's right to take industrial action?

Yes, NLRA protects employee rights to strike and engage in picket lines in a lawful manner. The purpose, timing, and conduct during the strike and picket lines are considered when assessing the lawfulness of employee conduct. Strikes and picket lines must address an economic or an unfair labour practice issue to be found lawful.

2.4 Are employers required to set up works councils? If so, what are the main rights and responsibilities of such bodies? How are works council representatives chosen/appointed?

No, trade unions represent employees in work-related negotiations.

2.5 In what circumstances will a works council have codetermination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals?

This is not applicable under United States employment and labour law.

2.6 How do the rights of trade unions and works councils interact?

This is not applicable under United States employment and labour law.

2.7 Are employees entitled to representation at board level?

No, employees are not entitled to representation at board level.

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