Labor Law, Legislation, and Liberty of Contract
For the proposed Stoa resolution on labor law, students would research Constitutional history as well as legal and economic concepts.
The United States federal government should substantially reform its laws governing the rights of employers, employees, and/or labor organizations.
An earlier post for the NCFCA federal court reform resolution, “Labor Laws: Uber’s Road to Serfdom, or Think Tanks to the Rescue?” looked critically at federal labor regulations that could drive Uber and Lyft out of business. The post begins by quoting John Goodman’s article “It’s Time To Rethink Our Labor Laws” [though link to original Forbes article is broken]
If you perform services for other people, there are basically two sets of laws: labor law and common law. If you are an independent contractor your relationship with people you work for is completely contractual. Neither buyers nor sellers have any obligations other than what has been agreed to. If you are an employee, however, there are laws governing the minimum amount you must be paid, how many hours you can work without a change in pay, etc.
Related article is here: “It’s Time To Abolish The Legal Term ‘Employment’ “
Legislation is one kind of law, but U.S. labor law developed well before federal labor legislation, adapting British common law principles and practices for employer and employee rights and obligations.
For the proposed Stoa resolution students could argue that early twentieth century labor legislation interfered with settled and developing common law practices, interfering with the long-standing “liberty of contract doctrine.
Less dramatically, debaters can make the case that recent federal regulatory agencies have been stretching (or breaking) labor legislation to mandate new labor regulations (such as restricting opportunities for internships, regulations pushing employees into per-hour status with mandatory overtime, employee vs. contractor status for Uber and other “gig-economy” workers, new union certification rules, and many more). (Obama pushing thousands of new regulations in Year 8).
From American Enterprise Institute:
• “New overtime rules unlikely to help workers” (July 2, 2015), and
• “Could well-meaning new labor rule hurt charter schools, preschools, & tutoring programs?” (March 23, 2016)
• “Did right-to-work laws impact income inequality?” (March 17, 2016)
Wall Street Journal
• A Disgraceful Labor Law Ripe for Repeal: The ‘prevailing wage’ rule for federal projects is rooted in bigotry and still hurts minorities today. (Sept. 24, 2015)
• Colleges Brace for Overtime Overhaul: Many schools say rule is at odds with Obama goal of making higher education affordable (March 22, 2106)
Mercatus Center Working Paper
• An Economic Analysis of Overtime Pay Regulations (April 4, 2016)
Employment Policies Institute
Page of articles and studies on Overtime, including
• Raising the Overtime Threshold Would Directly Benefit 13.5 Million Workers: Here is a Breakdown of Who They Are
• Why It’s Time to Update Overtime Pay Rules: Frequently Asked Questions
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Advocates for expanding progressive era labor and unionization goals can find articles and studies making the case that Reagan-era reforms and lower trade barriers weakened unions as manufacturing employment declined, so new federal regulations could strengthen unions with the goal of raising wages.
(It is worth noting, however, that manufacturing employment is up significantly, including automobile manufacturing, in non-union southern states. Many Japanese, Korean, and European car makers have opened large operations from South Carolina to Tennessee to Texas, all right-to-work states. Unionized GM, Ford, and Chrysler, however, can’t open nonunion factories in the American south, encouraging them to invest billions of dollars to manufacture in Mexico.)
The post title used the title of David Mayer’s book: Liberty of Contract: Rediscovering a Lost Constitutional Right [link to book on Amazon, with “look inside” option].As students of constitutional history know, the Lochner era (1897-1937) is typically vilified as a time when judges imposed their personal opinions to invalidate laws that regulated the economy. Professor Mayer offers a far more complex and nuanced view of that era as a time with judges often, but not always, invoked a presumption of liberty. He shows that Lochner-era justices protected not only economic but personal rights as well, such as the right of parents to teach their children in a foreign language or to send their children to a private school, whereas anti-Lochner justices like Oliver Wendell Holmes rejected such a presumption. ..
An overview is provided in this 2014 Capital Research Center publication: The Untold, Racist Origins of ‘Progressive’ Labor Laws: Protecting “white jobs” was the purpose of union-backed legislation. Here is the summary:Most Americans take for granted that the minimum wage and the 40-hour work week came about as a result of an effort in the early 20th Century to improve the lives of working Americans. Not true. In fact, these measures were rooted in the racism of the era and were part of an effort to benefit white workers at the expense of black tradesmen. The policies helped create persistent high unemployment among blacks—and shed a light on the real motivations of so-called Progressives.