The Four Pillars of Work Law

Authors

Orly Lobel, University of San DiegoFollow

Abstract

In our contemporary legal landscape, a student wishing to study the law of the workplace has scarce opportunity to encounter an integrated body of scholarship that analyzes the labor market as the subject of government regulation, contractual duties, collective action, and individual rights. Work law developed in the American legal system as a patchwork of common law doctrine, federal and state statutes, and evolving social norms. Typical law school curricula often include courses relating to the four pillars of work law: "employment law," "labor law," "employment discrimination," and some variation of a tax-oriented "employee-benefits law." Employment law, in most categorizations, studies the boundaries of the individual employment contract, including contractual limitations, tort liabilities, and minimum protections. Labor law is the subject of collective bargaining between unions and employers, statutorily framed by the National Labor Relations Act ("NLRA"). Employment antidiscrimination law is the subject of status-based unequal treatment in the workplace, including on the basis of gender, race, national origin, disability, or religion. Lastly, the fourth category, employee-benefits law, involves the standards controlling the administration and taxation of social welfare attached to the work cycle, including unemployment benefits, pensions and ERISA, health insurance and COBRA, disability benefits, and worker compensation plans. More than simply substantive divisions, these four categories are also stacked as historical developments in the regulation of work and vary in the public and private mechanisms each undertakes as means for social control. In other words, the subfields of work law correspond with ideas about modes of effective and legitimate social regulation, creating contrived form substance alignments. While some questions have been resolved through legislation, other areas developed through ad hoc adjudication. Similarly, while some areas are federally regulated, other areas are controlled by state law. And while issues such as workplace safety are enforced by a public administrative agency, other issues, such as antidiscrimination claims, are enforced primarily by private litigation. Although the four pillars of work law have developed relatively independently from one another, the realities of contemporary work defy this fragmented structure and its conceptual satellites. The subjects and regulatory tools of all four subfields overlap significantly, and it is increasingly problematic to study them separately. In reality, legal disputes do not originate carrying a tag of one category or another. Workers experiencing dislocation or mistreatment seek assistance that transcends these divides and requires a more expansive outlook.

Recommended Citation

Orly Lobel, The Four Pillars of Work Law, 104 Mich. L. Rev. 1539 (2006).
Available at: https://repository.law.umich.edu/mlr/vol104/iss6/14