The History of Employment Law in America
A Colony Brain Growth Research Project
This is published as-is from an internal Colony “Brain Growth” research project. As a team we value ongoing learning and development and have operationalized this “brain growth” into our company. If that’s interesting to you, check out our list of open positions or ways you can contribute to the project.
Introduction
First, the most important question: why in the hell is Collin doing a report on the history of US Employment Law?
Very valid indeed.
Two answers to that. First is that I’ve been researching topics like this and the history of the corporation as I’ve been working on writing articles. It’s naturally come up. Second is that I believe it useful to understand where work has come from and where it is today for us to effectively usher in the future of work.
But why US law? We’re not even an American company.
Yes, another valid question. I’ve focused on US law here because during the American Industrial Revolution (1820–1870), the US led the way as work shifted away from home produced goods towards manufactured goods in factories. They largely led the shift towards a new world of work and have had the most influence on shaping work as we know it today.
During the shift, they had to wrestle with many concepts around work: master-slave relationships, employee rights, unions, and discrimination. It is not a pretty history, and as you’ll see it largely (and still does) favors the employer.
With that, let’s get into the history of employment law in the US. I’ll cover the 5 main periods of employment law:
- Pre-American Revolution (1600–1770)
- From the Revolution to the Civil War (1770–1865)
- From the Civil War to the Great Depression (1865–1929)
- From the Great Depression to the Taft-Hartley Act (1930s–1940s)
- From the Taft-Hartley Act to the Present (1940s–2000s)
Pre-American Revolution (1600–1770)
The defining words of this period are slavery and servitude.
Everything centered around the home and landowners. You produced (and consumed) goods that were produced in home. The landowners (masters) owned and controlled servants and slaves.
There were two types of servants: bound and hired, but the law didn’t have much of a distinction because all power was handed to the homeowner (the master) and any breach of work or contract was grounds for flogging.
There was no concept of labor law at this point; all courts sided with the masters who had plenary authority over the labor of spouses, children, hired servants, bound servants, and slaves. Workers were considered chattels, or personal property of the master.
Desertion and unlawful absence were crimes punishable by whipping, affixing of iron collars, and extensions of service for terms up to ten times the period of absence
This was a terrible period but it’s important to note that this was the origin point of all labor laws in American (and surely elsewhere).
From the American Revolution to the Civil War (1770–1865)
Summary: shift towards the market economy; laws still abide by master-servant principles
This period was marked as the shift towards the market economy. Entrepreneurship flourished as artisans and entrepreneurs began hiring laborers to manufacture goods.
Arose from this was employer-employee relations that needed to be dealt with in the court of law.
Courts, without any precedent, relied on history which was based on master-servant principles. However, instead flogging, punishment was economic: work without wages for 6 to 12 months.
By the early 1800s, early “unions” began to form. Journeymen formed associations to enact codes that governed wages, working conditions, and employment relations.
However, the courts wouldn’t have any of it! Employers were able to enact private rule making, but not employee groups. They enacted Labor Conspiracy Doctrines which made it illegal to “conspire” against employers.
In a Pennsylvania case decided in 1806, courts applied the English doctrine of criminal conspiracy to the early trade unions. … the jury was instructed that a ‘combination of workmen to raise their wages’ in itself gave rise to criminal liability.
You can see that all the power lies with the employers and even though workers are trying to band together to enact change, the court system does not support them.
However, workers began to get stronger and resisted the power of the aristocracy. The unions gave them bargaining and negotiating power.
A significant change (in theory) occurred. In 1836, twenty New York tailors were fined for striking. This resulted in the largest protest rally ever: one fifth of the adult population came out to support the tailors.
Under significant opposition from workers, The courts decided in 1842 that organized union activity (e.g., striking) would not itself be a criminal act, but would be decided upon on a case-by-case basis.
This was the magna carta of labor.
This period ends with the beginning of the American Civil War in 1861 which was fought until 1865.
From the Civil War to the Great Depression (1865–1929)
Summary: In theory things improve! In practice they don’t.
The end of the civil war was momentous for workers rights (in theory). As work shifted from farming to manufacturing, and because there were so many people in the workforce who could vote, workers’ power escalated which, in part, led to the 13th Amendment to the US Constitution in 1865.
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States”
(Later in 1869 the 14th amendment was enacted which gave rights to all persons naturalized in the US, including blacks and women.)
While the 13th and 14th amendments were good for workers and for including all people, they didn’t always practically help.
- Black people were forbid from working by excluding them at the employer level
- Women forbid from working in the court and said it was not a place for them
“The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”
State government tried to improve worker conditions by passing reforms around hours and wages. However, not much practically changed and that is why this period is so interesting: the courts had all the power, and they sided with the employers.
In 1880, courts enacted the Labor Injunction which allowed judges to immediately ban any unlawful labor activity, such as, for example, boycotting, sympathy strikes, etc. (instead of going through a lengthy court process). This strongly favored employers.
With labor injunction, any power that was gained by unions and workers was once again shifted back to the employers as enforced by the courts.
This period can be summarized by saying that the courts controlled labor law.
From Great Depression to the Taft Hartley Act (1929–1947)
Summary: The courts are displaced as the primary labor laws makers; rise of the labor unions.
The Great Depression of the early 1930s, which caused the stock market to crash. Consequently, workers and unions gained incredible bargaining power as confidence in the market and employers eroded.
During this period several acts were passed (and then overthrown). But the notable development during this period was two-fold:
- The rejection of any associated underpinnings of labor law being associated with master-servant principles
- Collective bargaining rights for workers and unions
In 1935, the National Labor Relations Board was established to help encourage the practice and procedure of collective bargaining.
This was important because for the first time it seemed as though employers and employees were on equal footing.
However, all ground that was gained fell apart during the second world war as uninterrupted production of military equipment and supplies was favored. The courts (again!) reverted back to master-servant principles to enforce labor output.
Immediately post-war, the unions tried to regain lost ground by holding massive, nation-wide strikes. There was significant public dissent towards this, though, and it led to the Labor Relations Management Act, otherwise known as the Taft-Hartley act of 1947. This act restricts the activities and power of labor unions at a time when they were doing things like secondary boycotts to strong-arm employers into action.
The unfortunate consequence of all this? It seems to be the beginning of labor unions sucking. They began to take on a bad name, as it turned from being a voluntary collective that workers joined to a bureaucracy of labor professionals skilled at negotiating and enforcing technical contract language.
From the Taft-Hartley Act to the Present (1947–2000s)
Summary: the question of “labor” recedes from mind; pluralism arises instead
With the introduction of Taft-Hartley Act, unions became unfavourably viewed. This killed the conversation around worker rights as the bureaucracy of union bargaining took over.
Instead the conversation shifted towards pluralism and black and women’s rights movements.
In 1964, the Civil Rights Act included the Equal Employment Opportunity title which prohibited employers from discriminating based on race, sex, religion, or national origin (and later on age and disability).
Even though racial (and gender) discrimination was banned, it didn’t necessarily improve the conditions for people of color or women. This was borne out through organizational hierarchy and surrounding institutions. For example, jobs often required people to pass tests, but black people often failed because they were also restricted from equal educational opportunities.
This led to Affirmative Action Plans (positive discrimination) where employers were encouraged to hit numerical or percentage plans in hiring to abolish traditional patterns of racial segregation.
Some ground was lost during the 80s. This resulted in the Civil Rights Act of 1991. While it granted more rights to employees, it also made law more technical and complex.
And that is where we end up: Unions have fallen out of favor due to their overly complex bureaucracy, and labor law has become much the same.
Conclusion
Perhaps the most common theme here is one of oppression. Oppression towards slaves, towards workers, towards the poor, towards blacks, towards women. Work is characterized by a divide: us versus you, we versus them.
What Colony does is remove oppression and provide opportunity by opening work up and valuing your output, not your socioeconomic status. In that view, we can change the narrative around work. We can provide opportunities in work that have not yet existed, to people who’ve not yet had the opportunities.
