Document Type

Article

Publication Date

1-2004

Abstract

Labor law became labor and employment law during the past several decades. The connotation of "labor law" is the regulation of union-management relations and that was the focus from the 1930s through the 1950s. In turn, voluntary collective bargaining was supposed to be the method best suited for setting the terms and conditions of employment for the nation's work force. Since the 1960s, however, the trend has been toward more governmental intervention to ensure nondiscrimination, safety and health, pensions and other fringe benefits, and so on. "Employment law" is now the term for the direct federal or state regulation of individual employees' relations with their employer. This paper will concentrate on the legal developments over the two decades of existence of the Carl A. Warns, Jr. Institute of Labor and Employment Law. But, I am going to indulge in the same kind of liberties with exact dating that seems accepted by reputable historians. A growing consensus among them is that the 19th century did not end until August 1914, when World War I broke out, and the 21st century did not begin until "9/11 ." So I can't resist going back to the watershed year of 1980 in my "two decades." Part of the growth we have seen in employment law, as distinguished from labor law, is attributable to the decline of organized labor. Government has had to step in to fill the vacuum. Indeed, the drop in union membership has been steep and dramatic. Since the early 1980s, it has gone down from about 19 million to 16 million while the nonagricultural work force has grown from some 90 million to over 120 million. The result is that the rate of organization has shrunk from 20.1% in 1983 to 13.2% in 2002. Since public sector membership has remained steady at around 37%, this has meant a devastating decline in the private sector, from approximately 16% in 1983 to 8.5% in 2002. That is a loss rate of almost 50% in a mere 20 years. This is not the place for an extended discussion of the many reasons for the decline in the American labor movement. The shift from manufacturing to service industries, automation and technological advances, job relocations from the north to the south and southwest, more intense employer resistance, unimaginative union leadership, and employee apathy have undoubtedly all contributed. But, adverse decisions by an increasingly conservative federal judiciary have almost surely played a role, and these will be part of my overview of some major legal developments of the past two decades.

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