Employment law changes throughout the years

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One hundred years ago, employees had the right to work under whatever terms and conditions they and their employers may set, go work elsewhere, or not work at all.

States could regulate the health and safety of the workplace, but state regulation of wages, hours, and the like was unconstitutional. Federal regulation of labor was limited to those employees directly engaged in commerce between the states, such as rail and shipping.

Today’s workplace is subject to federal, state, and local legislation of any aspect of employment that a majority may choose to enact. Compensation for workplace injuries, collective bargaining, wages and hours, wrongful discharge, discrimination, benefit plans, disability — all are regulated at either the federal or state level, or both.

The following is a timeline of that history, seen through a dozen significant federal and state court decisions interpreting those labor and employment regulations:

Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209 (1911).
Wisconsin’s workers’ compensation law is constitutional.

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615 (1937).
National Labor Relations Act of 1935, setting forth the right of employees to self-organization and to bargain collectively through representatives of their own choosing, and defining “unfair labor practices,” is within Congress’ power under the commerce clause, and is thus constitutional.

Lincoln Federal Labor Union No. 19129 v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251 (1949).
State laws banning “yellow dog” contracts — under which employees agree not to join a union as a condition of employment — are constitutional.

Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849 (1971).
Adopted “disparate impact theory” — an employment practice, even if neutral on its face, is unlawful under the Civil Rights Act, if it cannot be shown to be related to job performance, and its effect is to disproportionately exclude minorities from employment.

Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983).
Even an employee at-will, subject to termination for any or no reason, can sue an employer for wrongful discharge, if the termination clearly contravenes public policy evidenced by a constitutional or statutory provision.

Streiff v. American Family Mut. Ins. Co., 118 Wis.2d 602, 348 N.W.2d 505 (1984).
If an employer’s restrictive covenant against working for a competitor is not reasonably limited with respect to time and geographic area, it is void in its entirety.

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005 (1985).
Municipalities are not immune from federal overtime and minimum wage laws.

Communications Workers of America v. Beck, 487 U.S. 735, 108 S.Ct. 2641 (1988).
The National Labor Relations Act does not permit a union, over the objections of employees, to expend union dues on political activities unrelated to collective bargaining.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 225 (1998); and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998).
An employer is liable for a supervisor’s discrimination, or a hostile work environment created by a supervisor, but the employer is not liable if it exercised reasonable care to prevent and correct sexually harassing behavior, and the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer.

Pabst Brewing Co., Inc., v. Corrao, 161 F.3d 434 (7th Cir. 1998).
ERISA does not require the vesting of welfare benefits; a collective bargaining agreement “for the term of this agreement” allows an employer to discontinue retiree health benefits following expiration of the agreement.

Crystal Lake Cheese Factory v. LIRC, 264 Wis.2d 200, 664 N.W.2d 651 (2003).
Under Wisconsin’s Fair Employment Act, in contrast to federal statutes regarding disability discrimination, an employer can be required to modify the job duties of a disabled employee as a “reasonable accommodation” of the employee’s disability.

Repa v. Roadway Express, Inc., 477 F.3d 938 (7th Cir. 2007).
The Family and Medical Leave Act’s limitation on an employer’s right to substitute paid vacation and personal leave for FMLA leave is not limited to leave for the birth of a child, but includes medical leave.

Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007).
Rejected the “paycheck accrual rule.” In an action alleging unequal pay based on gender, an employee must bring suit within 180 days of an act influenced by discrimination; each paycheck issued subsequent to a discriminatory payroll decision is not itself a new discriminatory act.