* Professor of Law, University of Minnesota Law School. The author thanks Kimberly Fuhrman, Monica Grubbs, Sarah Link, Jessica Clay, and Adam Gillette for research assistance and Anne Johnson for editorial assistance.
1 William Shakespeare, The Tempest act 2, sc. i, line 281.
2 See infra notes 7–61 and accompanying text.
3See infra notes 62–175 and accompanying text.
4 See infra notes 176–296 and accompanying text.
5 See infra notes 297–460 and accompanying text.
6 See infra notes 461–716 and accompanying text.
7 In 1955, 69.76% of the total labor force was male. See U.S. Dep’t of Commerce, Bureau of the Census, Historical Statistics of the United States: Colonial Times to 1970, at 131 (1975). In addition, in 1955, 85.4% of the civilian labor force as a percentage of the civilian non-institutional population consisted of white males. See id. at 133. In 1950, the mean years of school completed by white males was 9.3, and in 1960 it had risen to 10.6. See id. at 381.
8 See Handbook of U.S. Labor Statistics, Employment, Earnings, Prices, Productivity, and Other Labor Data 52 tbl.1–7 (Eva E. Jacobs ed., 3rd ed. 1999) (showing 33.9% of working age females participating in the civilian labor force in 1950).
9 See U.S. Dep’t of Labor, 1999 Report on the American Workforce 141 tbl.8 (1999). The U.S. Department of Labor did not maintain data concerning minorities in the workforce until 1954. At that time, approximately six million out of a total workforce of sixty million workers were nonwhite. See id.
10 See id. at 146 tbl.12. In 1950, approximately forty-five million employees were on nonfarm payrolls. Of these employees, 15.2 million worked in manufacturing jobs, 0.9 million in mining jobs, 2.4 million in construction jobs, and 13.4 million in other unskilled labor positions. See id.
11 See id. (showing approximately 5.3 million American workers employed in the service sector in 1950).
12 See id. (indicating that, in 1950, the finance, insurance, real estate, services, and government sectors employed 7.9 million American workers).
13 29 U.S.C. �� 201–219 (1994).
14 See U.S. Dep’t of Labor, History of Federal Minimum Wage Rates Under the Fair Labor Standards Act, 1938-1996, at http://www.dol.gov/dol/esa/public/minwage/chart.html (last visited March 15, 2002).
15 See U.S. Dep’t of Labor, American Workers’ Fact Book 34 (1960).
16 See Phyllis T. Bookspan, A Delicate Imbalance—Family and Work, 5 Tex. J. Women & L. 37, 45 n.45 (1995). Prior to Pearl Harbor, women comprised only 27.6% of the American workforce. See id. During the war the percentage of women working in factories increased to 46% and by the end of the war 37% of the workforce was made up of women. See id.; see also Diane L. Bridge, The Glass Ceiling and Sexual Stereotyping: Historical and Legal Perspectives of Women in the Workplace, 4 Va. J. Soc. Pol’y & L. 581, 590 (1997). During the years surrounding World War II, 20.6 million women entered the nation’s workforce. See Bookspan, supra, at 45 n.45. In fact, in 1940, women filling positions previously held by men who had been drafted made up nearly 25% of the labor force. See id. This increased demand for labor manifested itself differently within the African-American community. See Nancy E. Dowd, Work and Family: Restructuring the Workplace, 32 Ariz. L. Rev. 431, 435 (1990). Typically, African-American women were denied factory, office, and sales jobs that were held by most white women, and instead found work in domestic employment. See id.
17 See Marion O. Crain, Feminizing Unions: Challenging the Gender Structure of Wage Labor, 89 Mich. L. Rev. 1155, 1167 (1991).
18 See id. Ruth Millkman has argued that this reversion to postwar patterns is a result of two factors: (1) the traditional sexual division of labor was so ingrained in society and industry that it compelled the reversion; and (2) that while it was profitable for industries to utilize women in the workforce during the war, they could get more “bang for their buck” by employing men when they were available. See id.
19 The federal government played a large role in pushing women out of the workforce when it granted veterans the right to displace wartime workers and it terminated child care funding that had been established during the war. See Bridge, supra note 16, at 590. In addition, many industries restructured their workforce through outright layoffs. See Dowd, supra note 16, at 436. As a result of these reallocations of employment opportunities, by 1947 only sixteen million women, 30% of the working age females, remained in the labor force. See Bridge, supra note 16, at 590. Those women who did remain in the workforce returned to jobs more traditionally allocated to females that were lower paying and typically in the clerical field. See id.
20 See infra notes 276–278 and accompanying text (discussing the enactment of Title VII, the first federal antidiscrimination statute, in 1964).
21 29 U.S.C. �� 151–169 (1994).
22 For a good description of the development and historical antecedents of the employment-at-will rule, see Jay M. Feinman, The Development of the Employment at Will Rule, 20 Am. J. Legal Hist. 118 (1976).
23 H.G. Wood, A Treatise on the Law of Master and Servant � 134, at 272 (1877).
24 See Wagenseller v. Scottsdale Mem’l Hosp., 710 P.2d 1025, 1030 (Ariz. 1985) (“As commentators and courts later would point out, none of the four cases cited by Wood actually supported the rule.”); Note, Implied Contract Rights to Job Security, 26 Stan. L. Rev. 335, 341–42 (1974). Apparently, some American courts continued to follow the one-year presumption as to duration, which had been borrowed from the English common law. See Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv. L. Rev. 1816, 1825 n.51 (1980) [hereinafter Note, Protecting At Will Employees] (citing Charles Manley Smith, Treatise on the Law of Master and Servant 53–57 (1852)).
25 See Feinman, supra note 22, at 121.
26 Payne v. W. & Atl. R.R., 81 Tenn. 507, 519–20 (1884), overruled on other grounds by Hutton v. Watters, 179 S.W. 134, 138 (Tenn. 1915).
27 See Note, Protecting At Will Employees, supra note 24, 1824–26 (1980) (“By increasing the employer’s freedom in the employment relationship and restricting her liability, the at-will contract rule was meant to further economic growth and entrepreneurship.”); see also Richard J. Pratt, Unilateral Modification of Employment Handbooks: Further Encroachments on the Employment-At-Will Doctrine, 139 U. Pa. L. Rev. 197, 201 (“[T]he at-will doctrine contributed to the entrepreneurship and economic growth of an era.”).
28 See, e.g., Richard A. Epstein, In Defense of the Contract at Will, 51 U. Chi. L. Rev. 947 (1984); Mayer G. Freed & Daniel D. Polsby, Just Cause for Termination Rules and Economic Efficiency, 38 Emory L.J. 1097 (1989).
29 U.S. Dep’t of Labor, Bureau of Labor Statistics 1980b, at 412 tbl.165, in Michael Goldfield, The Decline of Organized Labor in the United States 10 tbl.1 (1987). Approximately fifteen million American workers belonged to unions in 1950. See U.S. Dep’t of Commerce, Historical Statistics of the United States, Colonial Times to 1970, Bicentennial Edition D 927–39 (1975). Of these, approximately eight and one-half million were members of the American Federation of Labor (AFL), four million belonged to the Congress of Industrial Organizations (CIO), and the remaining two and one-half million were members of independent or unaffiliated organizations. See id.
30 See Goldfield, supra note 29, at 10 tbl.1.
31 61 Stat. 136 (1947).
32 The exact size of the unionized sector is somewhat imprecise in that not all union members are covered by collective bargaining agreements and not all of the employees who are so covered are union members.
33 The NLRA does not apply in the public sector. See 29 U.S.C. � 152(2) (1994). Most states, however, have enacted labor relations acts applicable to public employees. Many of these statutes provide rights and obligations similar to the NLRA, with the notable exception of the right to strike. See Donald et al., Bargaining in Public Employment 9–11 (4th ed. 1993) (describing the typical provisions of the public sector labor relations statutes adopted in 36 states). Only thirteen of these state statutes recognize a right of public employees to engage in strikes, and even in these states, the right is “limited and conditional.” See id. at 10.
34 29 U.S.C. � 157 (1994). The NLRA also protects an employee’s right not to join a union and to refrain from engaging in organizational activities. Id.
35 29 U.S.C. � 158(a) (1994).
36 See NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (1983).
37 See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
38 29 U.S.C. � 157.
39 29 U.S.C. � 158(d) (1994); see NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342 (1958).
40 See Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S. 203, 223 (1964) (Stewart, J., concurring) (stating that the NLRA does not require bargaining with regard to managerial decisions “which lie at the core of entrepreneurial control”).
41 See, e.g., First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666 (1981) (ruling that an employer is not required to bargain with respect to a decision to close part of its business operation).
42 See, e.g., NLRB v. Detroit Resilient Floor Decorators Local Union No. 2265, 317 F.2d 269 (6th Cir. 1963) (ruling that an employer is not required to bargain with respect to deciding whether to contribute to an industry promotion fund).
43 29 U.S.C. � 158(d).
44 See NLRB v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960); NLRB v. Montgomery Ward & Co., 133 F.2d 676, 683–84 (9th Cir. 1943).
45 29 U.S.C. � 158(d).
46 29 U.S.C. � 157; see also 29 U.S.C. � 163 (1994) (“Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike.”).
47 See 29 U.S.C. � 158(a)(3) (1994); NLRB v. Browning-Ferris Indus., 700 F.2d 385 (7th Cir. 1983).
48 See, e.g., NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33-35 (1967) (employer committed unfair labor practice by paying accrued vacation benefits to all qualifying employees except those who participated in lawful strike).
49 See Frank Elkouri & Edna A. Elkouri, How Arbitration Works 8 n.34 (5th ed. 1997) (noting two studies which found that approximately 90% of collective bargaining agreements with arbitration clauses also contain a limitation on the right to strike during the life of the contract). The Supreme Court of the United States has ruled that unless the agreement specifies otherwise, it is presumed that the availability of grievance arbitration waives the union’s right to strike in response to an alleged breach of the labor contract. See Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95 (1962).
50 29 U.S.C. � 158(a).
51 29 U.S.C. � 158(b).
52 See 29 U.S.C. � 153 (d) (1994).
53 See 29 U.S.C. � 153(a), 160(c) (1994). NLRB decisions, in turn, are subject to further review by the federal appellate courts. See 29 U.S.C. � 160 (1994).
54 See Roger I. Abrams & Dennis R. Nolan, Toward a Theory of “Just Cause” in Employee Discipline Cases, 1985 Duke L.J. 594, 594 n.1 (1985) (94% of collective bargaining agreements entered into under the NLRA contain clauses that provide that an employer may discharge employees only with “just cause”).
55 See Characteristics of Major Collective Bargaining Agreements, July 1, 1976, 2013 U.S. Dep’t of Labor Bull. 82 (1979) (reporting that approximately 96% of agreements in effect during July 1976 in the nation’s most important industries provided for arbitration as the terminal point of the contractual grievance process).
56 Typically, labor and management jointly select a neutral arbitrator from a list of private arbitrators maintained by a federal or state agency. See generally Laura Cooper et al., ADR in the Workplace 19 (2000).
57 See ABA Section of Labor and Employment Law, Discipline and Discharge in Arbitration 369–71 (1998).
58 See Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 599 (1960) (“[S]o far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.”).
59 See H.K. Porter Co. v. NLRB, 397 U.S. 99, 103 (1970).
60 See supra note 54 and accompanying text.
61 See, e.g., Elkouri & Elkouri, supra note 49, at 10–13 (noting the advantages of arbitration over litigation); Roger I. Abrams, The Integrity of the Arbitral Process, 76 Mich. L. Rev. 231, 236–37 (1977) (same).
62 See U.S. Dep’t of Labor, supra note 29, at 412 tbl.165.
63 See id.
64 See Goldfield, supra note 29, at 11 tbl.2.
65 See Bureau of National Affairs, 26 Daily Lab. Rep. (BNA), at B-8 (Feb. 7, 1991).
66 See Labor Force Statistics from the Current Population Survey: Union Members Summary (2000), available at http://stats.bls.gov/newsrels.htm. The Bureau of Labor Statistics reports a total of 16.3 million union members in the United States in 2000. See id.
67 In 1956, only 915,000 federal, state, and local governmental employees were union members. See Bureau of Labor Statistics, U.S. Dep’t of Labor, Bull. 1865, Handbook of Labor Statistics 1975, at 382 tbl.155 (1975). By 1980, more than five million public employees belonged to unions. See Bureau of the Census, U.S. Dep’t of Commerce & Labor-Management Servs. Admin., No. 102, Labor-Management Relations in State and Local Governments: 1980, at 1 tbl.B (1981).
68 See Donald, supra note 33, at 9–11.
69 See Labor Force Statistics from the Current Population Survey: Union Members Summary (2000), available at http://stats.bls.gov/newsrels.htm.
70 See id.
71 See Thomas Kochan et al., The Transformation of American Industrial Relations 26 (1986) (“Stability in collective bargaining could be achieved only as long as unions were successful in organizing a sufficient part of the market and spread a standard wage across the market so as to take wages out of competition.”); Samuel Estreicher, Labor Law Reform in a World of Competitive Product Markets, 69 Chi.-Kent L. Rev. 3, 10 (1993) (“[U]nions for many years were able to pursue traditional high-labor-cost policies across entire product markets and thus grow or at least maintain their positions.”).
72 Richard B. Freeman & James L. Medoff, What Do Unions Do? 82 (1984); Estreicher, supra note 71, at 12.
73 See Kochan et al., supra note 71, at 114 (stating that “[u]nions’ bargaining power was strengthened [during the 1950s and 1960s] by their substantial organization of a number of the nation’s core industries”); Clyde Summers, The Usefulness of Unions in a Major Industrial Society–A Comparative Sketch, 58 Tul. L. Rev. 1409, 1436–37 (1984) (“Where the union is able to organize an entire product market, such as the steel and auto industry, airlines, longshore, or sections of trucking and construction, so that all competitors in the product market pay the same wages and fringes, the union is able to increase substantially the economic welfare of those it represents.”); see also Peter Capelli, The New Deal At Work, 76 Chi.-Kent L. Rev. 1169, 1174 (2000) (noting that until recently, “[f]oreign competition was very limited, and domestic competition often operated as an oligopoly where unions effectively took labor costs out of competition with standardized union contracts”).
74 See Kochan et al., supra note 71, at 113–15 (noting that American unions suffered a significant decline in numbers and bargaining power as they became less able to take wages out of competition).
75 See Charles B. Craver, Can Unions Survive? 42–47 (1993) (describing the rise of the global economy); Hudson Institute, Workforce 2000: Work and Workers for the Twenty-First Century 1–5 (1987) (depicting the development of an integrated world economy since the 1960s); U.S. Dep’t of Labor, Comm. on the Future of Worker-Management Relations, Fact Finding Report 2–3 (1994) (reporting that the ratio of exports and imports to gross domestic product for the United States more than doubled between 1960 and 1991).
76 See Craver, supra note 75, 43–47; International Labor Office, Multinational Enterprises and Social Policy 77 (1973).
77 See Estreicher, supra note 71, at 13 n.33 (noting that “[t]he impact of international product market competition has been principally felt in the manufacturing sector—in particular, the clothing, steel, automobile, rubber, and electronics industries”). The fact that public sector governmental services are less susceptible to production on an international basis may help explain the greater degree of success that unions have achieved in that sector.
78 See generally Robert Reich, The Work of Nations 113–22, 263–64 (1991) (describing the significant mobility of capital in the new global economy); Janice Bellace, Labor Law—New Deal Model, in Labour Law at the Crossroads: Changing Employment Relationships 22 (Janice Bellace & Max Rood eds., 1997) (noting the greater mobility of capital as compared to labor in the global economy).
79 See Roger Blanpain, The Changing World of Work, in Comparative Labour Law and Industrial Relations in Industrialized Market Economies 23, 24–26 (Roger Blanpain & Chris Engels eds., 1998) (describing the impact of technology on the global movement of goods and services); Kenneth G. Dau-Schmidt, Employment in the New Age of Trade and Technology: Implications for Labor and Employment Law, 76 Ind. L. J. 1, 1–2, 11 (2000) (same).
80 See Sanford Jacoby, Modern Manors 255–56 (1997) (describing the relocation of manufacturing operations to southern states); see also Kochan et al., supra note 71, at 66–68 (describing the influence of labor costs and union avoidance on plant location decisions).
81 See Craver, supra note 75, at 42–47 (describing the flight of American business to “foreign export platforms”); Bellace, supra note 78, at 22 (noting that the global marketplace entices American businesses to move production facilities to lower wage countries).
82 See Dau-Schmidt, supra note 79, at 2, 12 (describing how global competition has led to a new flexibility in structuring work arrangements).
83 See Freeman & Medoff, supra note 72, at 46, 64 (describing a 20–30% union wage effect); see generally H. G. Lewis, Union Relative Wage Effects: A Survey (1986) (describing a 14–17% union wage effect).
84 See generally Kochan et al., supra note 71, at 70, 107–08 (describing the financial incentive for American business to avoid unions).
85 See Peter Capelli et al., Change at Work 66–88 (1997) (describing various changes in business practices beginning in the early 1980s).
86 See Freeman & Medoff, supra note 72, at 221–45; Dau-Schmidt, supra note 79, at 20.
87 In 1950, 30% of employed Americans worked at manual labor jobs, and another 39% were industrial workers. By 1998, these percentages had shrunk to 28% and 20%, respectively. See U.S. Dep’t of Labor, supra note 9, at 146 tbl.12. In contrast, white-collar workers grew from 18% of the workforce in 1950 to 22% in 1998, and the service sector grew even faster from 12% of the workforce in 1950 to 30% in 1998. See id. See also Hudson Institute, supra note 75, at 20–29 (describing the shift in jobs from producing goods to providing services).
88 See Walter Galenson, The American Labor Movement, 1955–1995, at 4 tbl.1.3 (1996).
89 Professional, service, and technical workers have grown from 30% of the 1950 workforce to 52% of the 1998 workforce. See U.S. Dep’t of Labor, supra note 9, at tbl.12 (reporting percentages of “white-collar” and “service” workers); see also U.S. Dep’t of Labor, supra note 75, at 7–8 (discussing the increase in white-collar jobs requiring advanced education).
90 See Paul C. Weiler, Governing the Workplace 107 (1990).
91 See supra notes 7–9 and accompanying text.
92 See supra note 8.
93 See Hudson Institute, supra note 75, at 85 tbl.3–4. As of 1993, 57.9% of working age American females were workforce participants. See U.S. Dep’t of Labor, supra note 75, at 10.
94 See U.S. Dep’t of Labor, supra note 75, at 12. In 1950, nonwhite workers made up approximately 10% of the American labor force. By 1993, the presence of nonwhite workers jumped to 15.2%. Id. This percentage is expected to increase further to 15.7% by 2000. See Hudson Institute, supra note 75, at 89 tbl.3–5.
95 See, e.g., Goldfield, supra note 29, at 123.
96 See id. at 126.
97 See generally H.S. Farber & D.H. Saks, Why Workers Want Unions: The Role of Relative Wages and Job Characteristics, 88 J. Pol. Econ. 349 (1980).
98 See id. at 352; see also Goldfield, supra note 29, at 134–35.
99 See Irving Bernstein, The Growth of American Unions, 1945–1960, 2 Lab. Hist. 131, 150 (1961).
100 See Derek Bok & John Dunlop, Labor and the American Community 44 (1970).
101 See Freeman & Medoff, supra note 72, at 227 (reporting studies showing nonwhite workers more likely to vote for union representation, while female workers were just as likely to do so); Lisa Schur & Douglas Kruse, Gender Differences in Attitudes Toward Unions, Indus. & Lab. Rel. Rev. 89, 89 (1992) (finding that female workers are at least as likely to vote for union representation as similarly situated male workers).
102 Richard S. Belous, The Contingent Economy: The Growth of the Temporary, Part-Time and Subcontracted Workforce 12 (1989). As explained by Belous:
Core workers have a strong affiliation with an employer and are treated by the employer as having a significant stake in the company. Core workers can be thought of as being a part of the so-called corporate family. They show long-term attachment to a company and have a real measure of job stability.
Id. at 5.
103 See Richard S. Belous, The Rise of the Contingent Work Force: The Key Challenges and Opportunities, 52 Wash. & Lee L. Rev. 863, 867 (1995) (stating that the contingent workforce has grown about 75% faster than the overall workforce between the years of 1980 and 1993); see also Jennifer Middleton, Contingent Workers in a Changing Economy: Endure, Adapt, or Organize?, 22 N.Y.U. Rev. L. & Soc. Change 557, 564 (noting a greater than 30% increase in contingent workers between 1980 and 1996).
104 See Belous, supra note 102, at 5–6.
105 See, e.g., Sharon Dietrich et al., Work Reform: The Other Side of Welfare Reform, 9 Stan. L. & Pol’y Rev. 53, 57 (1998).
106 See Belous, supra note 102, at 15–17 (estimating that approximately 25–30% of U.S. workers fall into contingent categories); Stanley Nollen & Helen Axel, Managing Contingent Workers 9–10 (1996) (estimating that approximately 20–25% of U.S. workers fall into contingent categories); Middleton, supra note 103, at 564 (estimating that about one-quarter of the nation’s working population are contingent workers). But see Dietrich et al., supra note 105, at 58 (using more stringent criteria to estimate that contingent workers comprise about 5% of the U.S. workforce).
107 See Belous, supra note 102, at 16 tbl.2.1 (calculating between 29.9 and 36.6 million contingent American workers as of 1988); Middleton, supra note 103, at 564 (estimating the number of contingent workers in 1996 at approximately thirty-two to thirty-seven million). The two largest categories of contingent workers are part-time workers and independent contractors. See Belous, supra note 102, at 16 tbl.2.1 (estimating 19.8 million part-time workers and 10.1 million independent contractors).
108 Independent contractors are self-employed workers who are engaged by a company to “provide specialized services on a contract basis.” Mark Diana & Robin H. Rome, Beyond Traditional Employment: The Contingent Workforce, N.J. Law., Apr. 1999, at 9.
109 Contracted, or outsourced, work occurs when a company uses another firm to perform a particular service, such as janitorial services or copy services. See Jonathan P. Hiatt & Lynn Rhinehart, The Growing Contingent Workforce: A Challenge for the Future, 10 Lab. Law. 143, 146 (1994).
110 Leased employees are workers who are employed by one entity, typically an employee leasing firm, but who provide work for a separate entity. See id.; Belous, supra note 102, at 46.
111 See infra notes 438–449 and accompanying text (discussing the legal tests for determining “employee” status).
112 Part-time employees are those who are scheduled for less than a usual forty-hour work week. See, e.g., Diana & Rome, supra note 108, at 8, 9.
113 Temporary employees perform work at a particular company as a short-term supplement to the regular workforce. See id. at 9.
114 See Nollen & Axel, supra note 106, at 22 (1996) (noting that in an increasingly global economy, companies experience the pressure of “severe fluctuations in their need for labor”); U.S. Dep’t of Labor, supra note 75, at 22 (“The increase in ‘contingent work’ is largely the result of the way in which employers offer jobs to increase flexibility with uncertain product demand and to reduce labor costs by retaining a smaller core of full-time workers.”).
115 See Maria O’Brien Hylton, The Case Against Regulating the Market for Contingent Employment, 52 Wash. & Lee L. Rev. 849, 858 (1995).
116 See Nollen & Axel, supra note 106, at 23 (As “more people . . . move in and out of the labor force, [there are more] who prefer part-time or temporary jobs because of competing demands on their time, [who are in] different states in the life cycle, or [who have] different family circumstances.”).
117 See Brian A. Langille & Guy Davidov, Beyond Employees and Independent Contractors: A View from Canada, 21 Comp. Lab. L. & Pol’y J. 7, 8 (1999) (noting that “revolutionary developments in information technologies . . . have conspired to create new modes of laboring”); Gillian Lester, Careers and Contingency, 51 Stan. L. Rev. 73, 112 (1998) (noting the acceptance of many that, among other things, technological change has contributed to the “drive toward contingent staffing”).
118 See Mark A. Rothstein & Lance Liebman, Employment Law 78 (4th ed. 1998); U.S. Dep’t of Labor, supra note 75, at 6. See generally Manuel Castells, The Information Age: Economy, Society and Culture (1996) (describing the impact of changes in information technology on social and economic trends).
119 See Middleton, supra note 103, at 568–69 (“[T]he legal test for determining employee/independent contractor status is a complex and manipulable multifactor test which invites employers to structure their relationships with employees in whatever manner best evades liability.”); see also infra notes 438–449 and accompanying text (discussing the legal tests for determining “employee” status).
120 See U.S. Dep’t of Labor, supra note 75, at 37–38 (“[C]urrent tax, labor, and employment law gives employers and employees incentives to create contingent relationships not for the sake of flexibility or efficiency but in order to evade their legal obligations.”); Middleton, supra note 103, at 571 (noting that employers are motivated to categorize workers as non-employees in order to avoid legal regulations applicable to employees).
121 See generally U.S. Dep’t of Labor, supra note 75, at 40–41.
122 See, e.g., Hiatt & Rhinehart, supra note 109, at 148–49; Middleton, supra note 103, at 564–65 (1996) (noting that part-time employees earned 58% of the hourly wage of median full-time employees in 1989); see also Kenneth L. Karst, The Coming Crisis of Work in Constitutional Perspective, 82 Cornell L. Rev. 523, 525 n.11 (noting that the average hourly wage for temporary employees in 1994 was 35% lower than it was for full-time employees). The benefit shortfall is particularly notable with respect to health care insurance. See Middleton, supra note 103, at 565 (noting that only 22% of part-time workers received health care benefits through their employers in 1988 as compared to 78% of full-time employees).
123 See, e.g., Vizcaino v. Microsoft Corp., 120 F.3d 1006 (9th Cir. 1997) (en banc) (reviewing legality of pension and welfare plan benefits made available to common law employees but not to similarly situated workers designated as independent contractors).
124 See supra note 111 and accompanying text.
125 See 29 U.S.C. � 152(3) (1994) (defining an “employee” for purposes of the NLRA). The NLRB uses the common law test in determining employee status. See infra notes 438–440 and accompanying text (describing the common law test).
126 See The Developing Labor Law 1481–84 (Charles J. Morris ed., 1983); Clyde W. Summers, Contingent Employment in the United States, 18 Comp. Lab. L.J. 503, 513 (1997).
127 See generally Virginia L. duRivage, New Policies for the Part-time and Contingent Workforce, in New Policies for Part-time and Contingent Workers 89, 116 (1992) (reporting that part-time workers are only one-third as likely to be unionized as are full-time workers).
128 See Lee Hospital, 300 N.L.R.B. 947 (1990). The Board overruled Lee Hospital in 2000. See M.B. Sturgis, Inc., 331 N.L.R.B. No. 173 (2000). Under the new standard announced in Sturgis, the Board will include leased employees in a unit alongside regular employees without requiring consent so long as the two groups share a sufficient community of interest so as to constitute a single appropriate bargaining unit. Id. at 19. Whether Sturgis will survive appellate review and/or reconsideration by a new Bush labor board remains to be seen.
129 See Bita Rahebi, Rethinking the National Labor Relations Board’s Treatment of Temporary Workers: Granting Greater Access to Unionization, 47 UCLA L. Rev. 1105, 1124 (2000).
130 See id. at 1113–15; see also M.B. Sturgis, Inc., 331 N.L.R.B. No. 173, at 12 (reaffirming that the dispersed employees of a supplier firm may seek to bargain with the supplier firm without needing to obtain the consent of the various user firms).
131 See Kochan et al., supra note 71, at 221; Katherine M. Forster, Strategic Reform of Contingent Work, 74 S. Cal. L. Rev. 541, 551 (2001); Middleton, supra note 103, at 589–90.
132 See Forster, supra note 131, at 551; Marc Linder, Dependent and Independent Contractors in Recent U.S. Labor Law: An Ambiguous Dichotomy Rooted in Simulated Statutory Purposelessness, 21 Comp. Lab. L. & Pol’y J. 187, 197–204 (1999).
133 See William B. Gould IV, Agenda for Reform 14–15 tbl.2.1 (depicting union membership as a percentage of the workforce from 1955 to 1990 in various industrialized countries).
134 See id. (showing higher union density rates for both Sweden (95%) and Denmark (88%) in 1990 as compared to 1980); see also Tore Sigeman, Insiders and Outsiders in the Labour Market: Experiences of a Nordic Welfare State in Labour Law Perspective, in LABOR LAW at the Crossroads, supra note 78, at 202 (noting that the percentage of organized employees in Sweden is “stable, or even increasing”).
135 Union density in the early 1990s stood at 36% in Canada, Gould, supra note 133, 14–15 tbl.2.1, and between 25–30% in Mexico, U.S. Dep’t of Labor, Foreign Labor Trends, Mexico 1991–92, at 2 (1992). For a comparison of the labor and employment law regimes in the United States and Mexico, see Stephen F. Befort & Virginia E. Cornett, Beyond the Rhetoric of the NAFTA Treaty Debate: A Comparative Analysis of Labor and Employment Law in Mexico and the United States, 17 Comp. Lab. L. J. 269 (1995).
136 See Freeman & Medoff, supra note 72, at 230–39 (describing various employer tactics in opposing union organizing efforts); Gould, supra note 133, at 45 (“The fact is that American employers have never accepted trade unionism to the extent that their counterparts have in other industrialized countries throughout the world, a phenomenon sometimes encapsulated by the term ‘American exceptionalism.’”).
137 Professor Paul C. Weiler is probably the most vocal and eloquent of these commentators. See Weiler, supra note 90, at 111–14; Paul C. Weiler, Promises to Keep: Securing Workers’ Rights to Self-Organization Under the NLRA, 96 Harv. L. Rev. 1769, 1776–81 (1983).
138 See U.S. Dep’t of Labor, supra note 75, at 75 (“The United States is the only major democratic country in which the choice of whether or not workers are to be represented by a union is subject to such a confrontational process.”).
139 See, e.g., Juan B. Climent Beltran, Ley Federal Del Trabajo: Commentarios Y Jurisprudencia 268 (7th ed. 1993) (Mexico); Alex Leuchten, I International Labor and Employment Laws 4–22 (William L. Keller ed., 1997) (Germany).
140 See Roy J. Adams, The Right to Participate, 5 Employee Resp. & Rts. J. 91, 94 (1992) (“Few advanced democratic societies condone open opposition by employers to unionization.”).
141 29 U.S.C. � 158(c) (1994).
142 See Midland Nat’l Life Ins. Co., 263 N.L.R.B. 127 (1982).
143 See Galenson, supra note 88, at 88 (reporting on a 1983 survey conducted by the AFL-CIO finding that outside consultants or lawyers directed counter-organizing drives on behalf of employers in approximately 75% of union campaigns).
144 For a discussion of both the legal and illegal tactics used by U.S. employers in opposing union organizing efforts, see Weiler, supra note 137, at 1776–81 and Freeman & Medoff, supra note 72, at 230–33.
145 See Freeman & Medoff, supra note 72, at 233–39 (summarizing empirical studies concerning the impact of anti-union campaigns). But cf. Julius G. Getman et al., Union Representation Elections: Law and Reality 128–29 (1976) (finding that most employees do not change their support for or against union representation because of an employer’s anti-union tactics).
146 See U.S. Dep’t of Labor, supra note 75, at 70 (reporting that unlawful employee terminations occurred in one out of every four certification elections); Robert LaLonde & Bernard Meltzer, Hard Times for Unions: Another Look at Employer Illegalities, 58 U. Chi. L. Rev. 953, 994 (1991) (reporting that unlawful employee terminations occurred in one-third of all elections, with one out of thirty-six union supporters being unlawfully discharged).
147 See 29 U.S.C. � 158(a)(3) (1994) (making it an unfair labor practice for an employer to terminate an employee for the purpose of “encourag[ing] or discourag[ing] membership in any labor organization”).
148 29 U.S.C. � 160(c) (1994).
149 See Craver, supra note 75, at 151.
150 See id.; Weiler, supra note 137, at 1788–90.
151 As of 1988, the median length of time from the filing of an unfair labor practice charge until adjudication by the NLRB was 762 days. If judicial review of the Board’s decision was sought, the median interval between charge and resolution jumped to more than three years. See Gould, supra note 133, at 158–59.
152 See Ex-Cello Corp., 185 N.L.R.B. 107 (1970), enforced, 449 F.2d 1058 (D.C. Cir. 1971).
153 See H.K. Porter Co. v. NLRB, 397 U.S. 99, 102 (1970).
154 See, e.g., Gould, supra note 133, at 222; see also Weiler, supra note 90, at 250 (noting the incidence of “bad faith bargaining” has risen as employers “appreciate the lack of force in their obligation to recognize and deal with a certified union”).
155 See U.S. Dep’t of Labor, supra note 75, at 73–74.
156 See Gould, supra note 133, at 169 (“If the union cannot negotiate an agreement, the result is virtually the same as decertification or lack of certification during the organizational campaign.”).
157 The Supreme Court has ruled that an employer does not act unlawfully in hiring either temporary or permanent replacement workers to fill positions vacated by those engaged in a lawful strike. See NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938). A temporary replacement is a worker hired only for the duration of a strike and then is bumped by a returning striker. An employer, however, may retain the services of a permanent replacement for an indefinite period. The strikers whose positions are filled by permanent replacements are placed on a waiting list and entitled to return to work only as their former positions become vacant. See id.; Laidlaw Corp., 171 N.L.R.B. 1366 (1968).
158 See Mackay Radio & Tel. Co., 304 U.S. at 333; Laidlaw Corp., 171 N.L.R.B. at 1366.
159 See Charles B. Craver, The National Labor Relations Act Must Be Revised to Preserve Industrial Democracy, 34 Ariz. L. Rev. 397, 421 (1992); Daniel Pollitt, Mackay Radio: Turn It Off, Tune It Out, 25 U.S.F. L. Rev. 295, 296–97 (1991).
160 See 29 U.S.C. � 159(c)(3) (1994).
161 See Weiler, supra note 90, at 266–67; Matthew W. Finkin, Labor Policy and the Enervation of the Economic Strike, 1990 U. Ill. L. Rev. 547, 565, 567 n.138.
162 See, e.g., Richard B. Freeman & Joel Rogers, Who Speaks for Us? Employee Representation in a Nonunion Labor Market, in Employee Representation: Alternatives and Future Directions 39 (Bruce E. Kaufman & Morris M. Kleiner eds., 1993) (contrasting the United States with various West European countries in which labor is linked with social democratic or labor political parties); Summers, supra note 73, at 1409, 1418–19, 1425–26 (1984) (describing the close affiliation between labor unions and political parties in the United Kingdom and Sweden).
163 For an overview of the history and aims of the Knights of Labor, see Leon Fink, Workingmen’s Democracy: The Knights of Labor and American Politics (1983) and Joseph Rayback, A History of American Labor ch. XI (1966).
164 For an overview of the history and aims of the International Workers of the World, see David Montgomery, Workers’ Control in America, ch. 4 (1979) and see generally Melvin Dubofsky, We Shall Be All: A History of the International Workers of the World (1988).
165 See Lewis L. Lorwin, The American Federation of Labor 44–54 (1970); Selig Perlman, History of Trade Unionism in the United States (1922).
166 See Kochan et al., supra note 71, at 27–28.
167 See Thomas A. Kochan, How American Workers View Unions, Monthly Lab. Rev., Apr. 1979, at 24 (reporting that unions suffer from a “big labor” stereotype with a majority of Americans holding unions in low esteem); see also Galenson, supra note 88, at 60–61 (reporting survey results showing that a majority of nonunion workers viewed unions as pursuing an agenda that was not beneficial to their needs). A related factor that has contributed to the erosion of public support for unions is the highly publicized disclosures of illegal behavior by some labor officials. See Thomas Edsall, The New Politics of Inequality 173 (1984).
168 See Gould, supra note 133, at 56; Freeman & Rogers, supra note 162, at 39.
169 U.S. Needs “30,000 New Jobs Just to Break Even,” U. S. News & World Rep., Feb. 21, 1972, at 27–28.
170 See Christopher David Ruiz Cameron, The Wages of Syntax: Why the Cost of Organizing a Union Firm’s Non-Union Competition Should be Charged to ‘Financial Core’ Employees, 47 Cath. U. L. Rev. 979, 979 (1998). During his first two years in office, Sweeney has committed over thirty million dollars and has trained 250 workers to spread the “gospel of collective bargaining to the next generation of American workers.” See id.
171 See Gould, supra note 133, at 45 (“The fact is that American employers have never accepted trade unionism to the extent that their counterparts have in other industrialized countries throughout the world, a phenomenon sometimes encapsulated by the term ‘American exceptionalism.’”); Steve Fraser, The “Labor” Question, in Steve Fraser & Gary Gerstle, Rise and Fall of the New Deal Order 77 (1989) (quoting a labor official in 1950 complaining that “there is little evidence that employers are prepared to accept trade unionism as a proper and permanent feature of our industrial relations”).
172 See Gould, supra note 133, at 14–15.
173 See Alvin L. Goldman, Potential Refinements of Employment Relations Law in the 21st Century, 3 Employee Rts. & Emp. Pol’y 269, 285 (1999) (noting that “our national cultural orientation is highly individualistic and, therefore, prone to regard collective action with some suspicion”); Reinhold Fahlbeck, The Demise of Collective Bargaining in the USA: Reflections on the Un-American Character of American Labor Law, 15 Berkeley J. Emp. & Lab. L. 307, 333 (1994) (noting the “perceived un-American character of concerted activity”).
174 See Stanley Aronowitz, False Promises 141 (1973); Craver, supra note 75, at 51–52.
175 See Barbara Ehrenreich, Fear of Falling 108–09 (1990).
176 See Pine River State Bank v. Metille, 333 N.W.2d 622, 628 (Minn. 1983) (“[T]he at-will rule . . . is only a rule of contract interpretation . . . [not] a rule imposing substantive limits to the formation of a contract.”).
177 See generally Clyde W. Summers, Employment at Will in the United States: The Divine Right of Employers, 3 U. Pa. J. Lab. & Emp. L. 65, 68–70 (2000).
178 Traditionally, a contract providing for a limitation on an employer’s right to terminate an employee at-will was valid only if supported by some consideration in addition to the employee’s promise to perform services for the employer. See Stephen F. Befort, Employee Handbooks and the Legal Effect of Disclaimers, 13 Indus. Rel. L. J. 326, 335–36 (1992).
179 The Fair Labor Standards Act (FLSA), 29 U.S.C. �� 201–219 (1994), mandates that employers pay covered employees a minimum hourly wage, currently pegged at $5.15 per hour, and compensate work performed in excess of forty hours in a week at one and one-half times the employee’s regular rate of pay. The FLSA contains numerous exemptions, the most significant being for executive, administrative, and professional employees. See id. � 213(a)(1).
180 Title VII of the Civil Rights Act of 1964, 42 U.S.C. � 2000e-17 (1994).
181 42 U.S.C. � 2000e-2(a)(1).
182 See Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971).
183 See 42 U.S.C. � 2000e-2(k)(1)(A)(i).
184 Antidiscrimination statutes also have been adopted by most states. Many of these state statutes go beyond federal law in terms of the classes protected. See, e.g., Minn. Stat. �� 363.01– .20 (2001) (prohibiting discrimination on the basis of sexual orientation, marital status, and receipt of public assistance in addition to those groups protected under federal law). An additional federal statute, The Equal Pay Act of 1963, prohibits gender-based wage discrimination with respect to jobs that are substantially equal in skill, effort, responsibility, and working conditions. 29 U.S.C. � 206(d) (1994).
185 The Age Discrimination in Employment Act of 1967, 29 U.S.C. �� 621–634 (1994).
186 Americans with Disabilities Act of 1990, 42 U.S.C. �� 12101–12213 (1994).
187 Id. �� 12112(a), 12111(8).
188 See id. � 12112(b)(5)(A).
189 See Stephen F. Befort & Holly Lindquist Thomas, The ADA in Turmoil: Judicial Dissonance, the Supreme Court’s Response, and the Future of Disability Discrimination Law, 78 Or. L. Rev. 27, 68–70 (1999) (discussing the somewhat different models of discrimination used by Title VII and the Americans with Disabilities Act).
190 29 U.S.C. �� 651–678 (1994).
191 29 U.S.C. �� 1001–1461 (1994).
192 See 29 U.S.C. �� 1021–1031 (1994).
193 29 U.S.C. � 1144(a) (1994) (“[T]he provisions of [ERISA] shall supersede any and all State laws insofar as they may now or hereinafter relate to any employee benefit plan.”). See generally Stephen F. Befort & Christopher J. Kopka, The Sounds of Silence: The Libertarian Ethos of ERISA Preemption, 52 Fla. L. Rev. 1 (2000).
194 29 U.S.C. �� 2101–2109 (1994).
195 29 U.S.C. �� 2601–2654 (1994).
196 Id. � 2612(a)(1)(D).
197 See, e.g., Lewis v. Equitable Life Assurance Co., 389 N.W.2d 876 (Minn. 1986).
198 See, e.g., Agis v. Howard Johnson Co., 355 N.E.2d 315 (Mass. 1976).
199 See Michael A. Chagares, Utilization of the Disclaimer as an Effective Means to Define the Employment Relationship, 17 Hofstra L. Rev. 365, 400–05 (1989) (citing forty-three states as recognizing the public policy cause of action).
200 See, e.g., Tameny v. Atl. Richfield Co., 610 P.2d 1330 (Cal. 1980) (refusal to participate in an unlawful price-fixing scheme); Remington Freight Lines, Inc. v. Larkey, 644 N.E.2d 931 (Ind. Ct. App. 1994) (refusal to drive an illegally overloaded truck); Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569 (Minn. 1987) (refusal to violate antipollution laws by dispensing leaded gas into car designed for unleaded gas).
201 See, e.g., Kelsay v. Motorola, Inc., 384 N.E.2d 353 (Ill. 1978) (affirming award to employee discharged for filing workers’ compensation claim); Amos v. Oakdale Knitting Co., 416 S.E.2d 166 (N.C. 1992) (finding public policy cause of action for employee who was fired for refusing to work for less than the statutory minimum wage).
202 See, e.g., Sheets v. Teddy’s Frosted Foods, Inc., 427 A.2d 385 (Conn. 1980) (finding public policy cause of action for employee who was discharged for reporting labeling misrepresentations to employer); Palmateer v. Int’l Harvester Co., 421 N.E.2d 876 (Ill. 1981) (employee discharged for reporting criminal conduct to authorities); Fox v. MCI Communications, 931 P.2d 857 (Utah 1997) (finding public policy cause of action for employee who was discharged for informing law enforcement authorities of fraudulent sales practices).
203 See, e.g., The Whistleblower Protection Act of 1989, 5 U.S.C. � 2301(b)(9) (1994) (protecting federal employees from retaliation for whistleblowing); Mich. Comp. Laws � 15.361 (2000) (protecting both private and public sector employees from retaliation for blowing the whistle on illegal acts); see also Rothstein & Liebman, supra note 118, at 923. (reporting that thirty-seven states have enacted some form of statutory protection for employees reporting illegal activity).
204 See Chagares, supra note 199, at 400–05 (citing forty-one states as recognizing an implied contract exception to the at-will rule).
205 See, e.g., Eales v. Tanana Valley Med.-Surgical Group, 663 P.2d 958 (Alaska 1983) (holding representation that employee would not be discharged without cause may be read into employment contract); Bullock v. Auto. Club, 444 N.W.2d 114 (Mich. 1989) (finding revocation of oral promise in policy manual not necessarily binding).
206 See, e.g., Duldulao v. Saint Mary of Nazereth Hosp. Ctr., 505 N.E.2d 314 (Ill. 1987); Wooley v. Hoffman-LaRoche, Inc., 491 A.2d 1257 (N.J. 1985); see generally Befort, supra note 178.
207 See, e.g., Mitford v. De Lasala, 666 P.2d 1000 (Alaska 1983) (ruling against an employer who discharged an employee in effort to avoid profit sharing liability); K-Mart Corp. v. Ponsock, 732 P.2d 1364 (Nev. 1987) (holding against an employer who dismissed an employee in an effort to avoid retirement benefit payments). Most states have declined to recognize the covenant because of the difficulty in determining what constitutes bad faith. See, e.g., Parner v. Americana Hotels, Inc., 652 P.2d 625, 629 (Haw. 1982) (rejecting the covenant because it would necessitate “judicial incursions into the amorphous concept of bad faith”); see also City of Midland v. O’Bryant, 18 S.W.3d 209, 216 (Tex. 2000) (declining to recognize the covenant cause of action because to do so “would completely alter the nature of the at-will employment relationship”).
208 See Fortune v. Nat’l Cash Register Co., 364 N.E.2d 1251 (Mass. 1977) (holding in favor of salesman fired by employer in an attempt to avoid paying future bonus payments under a contractual arrangement).
209 The federal constitution operates as a limit only on governmental action. See Shelley v. Kramer, 334 U.S. 1, 13 (1948). For purposes of the “state action” prerequisite, the “state” comprises all subdivisions of federal and state government, including local branches. See Laurence H. Tribe, American Constitutional Law 1688 n.2 (2nd ed. 1988).
210 See, e.g., Rankin v. McPherson, 483 U.S. 378 (1987) (finding that a county constable violated the First Amendment in terminating a clerical employee for privately expressing her hope that an assassination attempt on the President would succeed); Pickering v. Bd. of Educ., 391 U.S. 563 (1968) (finding that a school board violated the First Amendment in terminating a teacher for sending a letter to a local newspaper criticizing a proposed school tax increase).
211 See Connick v. Myers, 461 U.S. 138, 146 (1983) (explaining that speech is a matter of “public concern” if it relates to a political, social, or other community issue).
212 The disruptiveness of the employee’s conduct is one factor to be considered in this balance, particularly where close working relationships may be impaired. The time, place, and manner of the expression is also relevant. See id. at 151–52.
213 U.S. Const. amend XIV, � 1.
214 See generally Bd. of Regents v. Roth, 408 U.S. 564 (1972).
215 See, e.g., Perry v. Sindermann, 408 U.S. 593, 601 (1972) (finding that a college teacher had a property interest flowing from a written contract with an explicit tenure provision guaranteeing continued employment absent cause for termination).
216 See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–39 (1985) (finding that a statutory civil service system creates property interests if it provides that employees may be terminated only for cause).
217 See Roth, 408 U.S. at 573–75; see also Polson v. Davis, 635 F. Supp. 1130, 1142 (D. Kan. 1986) (holding that to establish that a charge is stigmatizing, an individual must show that his “good name, reputation, honor, or integrity is at stake because of what the government is doing to him”) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).
218 Loudermill, 470 U.S. at 546.
219 See id. at 546–47.
220 “No State shall . . . deny to any person . . . the equal protection of the laws.” U.S. Const. amend. XIV, � 1. The Equal Protection Clause applies to the states directly through the Fourteenth Amendment and to the federal government as incorporated through the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
221 See Washington v. Davis, 426 U.S. 229 (1976) (holding that a plaintiff must show that a governmental employer engaged in intentional discrimination in order to prevail on an equal protection claim).
222 See Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (explaining that the Court considers several factors to determine when this risk is high and a class of people deserve the more stringent levels of judicial protection: whether the class is identified by an immutable characteristic, whether the class has a long history of suffering from invidious discrimination, and whether the class is relatively politically powerless).
223 See generally Tribe, supra note 209, ch. 16.
224 See, e.g., Lawrence E. Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum. L. Rev. 1404, 1405 (1967); Joseph DeGiuseppe, Jr., The Effect of the Employment-at-Will Rule on Employee Rights to Job Security and Fringe Benefits, 10 Fordham Urb. L.J. 1, 69–70 (1981); Clyde W. Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 Va. L. Rev. 481, 482–84 (1976); Richard A. Winters, Note, Employee Handbooks and Employment-At-Will Contracts, 1985 DUKE L.J. 196, 198–99 (1985).
225 See Sanford M. Jacoby, Employing Bureaucracy: Managers, Unions and the Transformation of Work in American Industry 1900–1945, at 13–23 (1985) (describing factory labor in the period prior to 1915).
226 See id. at 31–37; Matthew W. Finkin, The Bureaucratization of Work: Employer Policies and Contract Law, 1986 Wis. L. Rev. 733, 751–52 (1986).
227 See generally Sumner H. Slichter, Union Policies and Industrial Management 100 (1941).
228 See, e.g., Palmateer, 421 N.E.2d at 878 (citing Blades, supra note 224, at 1405) (“With the rise of large corporations conducting specialized operations and employing relatively immobile workers who often have no other place to market their skills, recognition that the employer and employee do not stand on equal footing is realistic.”); Blades, supra note 224, at 1404–05; Pratt, supra note 27, at 197, 200–01.
229 Jack Steiber, Most U.S. Workers Still May be Fired Under the Employment-at-Will Doctrine, Monthly Lab. Rev., May 1984, at 34, 36.
230 See Capelli et al., supra note 85, at 15–64; Dau-Schmidt, supra note 79, at 2, 12; Samuel Estreicher, Employee Involvement and the “Company Union” Prohibition: The Case for Partial Repeal of Section 8(a)(2) of the NLRA, 69 N.Y.U. L. REV. 125, 136 (1994).
231 See Capelli et al., supra note 85, at 66–88 (describing various changes in business practices resulting from global economic pressures).
232 See id. at 1179–83 (summarizing empirical research indicating an increase in employee turnover and a decrease in employee job security); Dau-Schmidt, supra note 79, at 20 (noting the impact of trade and technology on the decline in long-term employment).
233 See e.g., Bellace & Rood, supra note 78, at 22 (noting that labor law and unions are “bound by national borders, but capital is not”); Dau-Schmidt, supra note 79, at 11 (noting the increased mobility of capital in the new global economy).
234 See supra notes 79–81 and accompanying text.
235 See Capelli, supra note 73, at 1179 (concluding that the business restructuring spurred by trade and technology has systematically shifted business risk to employees); Dau-Schmidt, supra note 79, at 11 (“The increased mobility of capital in the international economy has meant that employees must now compete with workers in other countries merely to retain the allegiance of their employer.”).
236 See supra note 229 and accompanying text.
237 See Pauline T. Kim, Bargaining with Imperfect Information: A Study of Worker Perceptions of Legal Protection in an At-Will World, 83 CORNELL L. REV. 105 (1997).
238 See id. at 133–46.
239 Id. at 133–34.
240 See id. at 134 tbl.1.
241 See, e.g., Frank S. Forbes & Ida M. Jones, A Comparative-Attitudinal, and Analytical Study of Dismissal of At-Will Employees Without Cause, 37 Lab. L.J. 157, 165–66 (1986) (reporting the results of a telephone survey showing that only 15–22% of respondents knew that employers could terminate employees without cause).
242 See supra notes 226–227 and accompanying text.
243 See D. Rodgers, The Work Ethic in Industrial America 1850–1920, at 163 (1978).
244 See Jacoby, supra note 225, at 32.
245 See generally Capelli et al., supra note 85; Jacoby, supra note 225, at 243–70.
246 See Capelli et al., supra note 85, at 23; Weiler, supra note 90, at 141–52.
247 See Jacoby, supra note 225, at 262–74 (describing the rise of internal labor markets and increased employee job security); see also Weiler, supra note 90, at 146 (noting the transition of the employment relationship from casual to career in nature).
248 See Jacoby, supra note 225, at 262–74; Finkin, supra note 226, at 741–42.
249 Finkin, supra note 226, at 733.
250 See Jacoby, supra note 225, at 276.
251 See Capelli et al., supra note 85, at 200–01 (describing an implicit employment contract by which “loyalty and retention by the employee are rewarded by stable employment and income”); see also Jacoby, supra note 225, at 269 (noting the “widespread acceptance of the principle that a worker could be dismissed only for just cause”).
252 See Gould, supra note 133, at 80; Kochan et al., supra note 71, at 138; Katherine V. W. Stone, The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law, 48 UCLA L. Rev. 519, 539 (2001).
253 See Stewart J. Schwab, Predicting the Future of Employment Law: Reflecting or Refracting Market Forces?, 76 Ind. L.J. 29, 33 (2001) (stating that “law and social forces have a multidirectional causal relationship”).
254 See supra note 27 and accompanying text.
255 See supra notes 226–227 and accompanying text.
256 See Martin H. Malin, The Distributive and Corrective Justice Concerns in the Debate Over Employment At-Will: Some Preliminary Thoughts, 68 Chi.-Kent L. Rev. 117, 137 (1992) (“[l]imiting dismissal to just cause . . . more accurately reflects the unstated expectations of the parties than does permitting dismissal at will.”).
257 See Finkin, supra note 226, at 751 (contending that the recently recognized contract-based limitations on the at-will rule do not represent so much a change in the law as the application of “the extant law of contract to a world of vastly changed business practice”).
258 See, e.g., Capelli et al., supra note 85, at 27–29, 44–63; Kochan et al., supra note 71, at 114–15.
259 See supra note 103 and accompanying text.
260 See Capelli et al., supra note 85, at 177–79 (discussing various studies showing a decline in job tenure during the 1980s and 1990s).
261 See supra notes 77–79 and accompanying text.
262 See Capelli et al., supra note 85, at 200–01; Sanford M. Jacoby, Melting into Air? Downsizing, Job Stability, and the Future of Work, 76 Chi.-Kent L. Rev. 1195, 1220–21 (2000).
263 See Jacoby, supra note 262, at 1221.
264 See Capelli et al., supra note 85, at 203; Stone, supra note 252, at 569–72.
265 See Stone, supra note 252, at 553–56.
266 See id. at 569–72.
267 Jacoby, supra note 262, at 1205.
268 Id. at 1206.
269 Id. at 1196.
270 Id. at 1219–20.
271 See, e.g., Capelli et al., supra note 85, at 141–42; Wiji Arulampalam & Alison L. Booth, Training and Labor Market Flexibility, 36 BRIT. J. INDUS. REL. 521, 525–27.
272 See Capelli et al., supra note 85, at 141–42.
273 See, e.g., Richard Freeman & Joel Rogers, What Workers Want? (1999) (finding that a majority of workers want greater participation in workplace decision-making); Kim, supra note 237, at 133–46 (finding that most employees believe that they were entitled to continued employment in the absence of poor work performance).
274 See Schwab, supra note 253, at 36 (contending that pressure to limit the at-will rule decreases in a climate where employees change jobs frequently).
275 See Jacoby, supra note 262, at 1214 (explaining that employee leverage in the employment relationship varies with the demand for labor).
276 42 U.S.C. � 2000e-17 (1994).
277 See Civil Rights Act of 1964, 1964 U.S.C.C.A.N. 2355, 2513–17. The employment context of Title VII was only one of the Act’s eleven titles. Other titles extended the antidiscrimination principle to such areas as voting rights, education, and public accommodations. See 42 U.S.C. � 2000 (1994).
278 42 U.S.C. � 2000e-2(a)(1) (1994). Of interest is the fact that the amendment adding “sex” to the list of protected classifications was offered on the floor of the House of Representatives by an opponent of the bill one day before final adoption and with the apparent intent of making the bill unacceptable to most legislators. See William F. Pepper & Florynce Kennedy, Sex Discrimination in Employment 17–18 (1981).
279 See The Age Discrimination in Employment Act of 1967, 29 U.S.C. �� 621–634 (1994).
280 See Americans with Disabilities Act of 1990, 42 U.S.C. �� 12101–12213 (1994).
281 42 U.S.C. � 12101(a)(9) (1994) (Congressional findings relating to the Americans with Disabilities Act).
282 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (ruling that Title VII bans employment decisions resulting from sex-based stereotyping); School Board v. Arline, 480 U.S. 273, 284 (1987) (explaining that the Rehabilitation Act of 1973, which bans disability discrimination by federal employers, contractors, and grant recipients, was designed to redress “society’s accumulated myths and fears about disability”).
283 See Gould, supra note 133, at 78–80 (describing how recognition of the antidiscrimination principle has contributed to a broader expectation of fair treatment); Rosabeth Moss Kanter, Work in America, in Daedalus 53–54 (1978) (noting the increasing tendency of American employees to assert demands for individual rights, justice, and equality in the workplace).
284 Gould, supra note 133, at 80.
285 See id. at 55–58 (discussing the interrelationship between the decline of unionization and the rise of governmental regulation); Clyde W. Summers, Labor Law as the Century Turns: A Changing of the Guard, 67 Neb. L. Rev. 7, 15 (1988) (stating that with the decline in labor unions, “[s]ociety is now looking to the courts and legislatures to protect employees not covered by collective bargaining”).
286 The right of employees to join a union and select a union representative is discussed supra at notes 35–61 and accompanying text.
287 See supra note 29 and accompanying text.
288 See Freeman & Medoff, supra note 72, at 151–54; Kochan et al., supra note 71, at 35.
289 See Freeman & Rogers, supra note 273, at 68–69 (reporting survey results that show that approximately one-third of all currently unrepresented American workers would like a union form of representation); Kochan et al., supra note 71, at 217 (reporting polling data showing that “[O]ne-third of the nonunion workforce does see unionization as a vehicle for improving specific job conditions and would prefer to have a union represent them, if given the opportunity”).
290 See supra notes 71–73 and accompanying text.
291 See supra notes 136–161 and accompanying text.
292 See Goldfield, supra note 29, at 23 fig.4.
293 See Kochan et al., supra note 71, at 114–21, 144–45.
294 See id. at 116–18; Peter Capelli, Concession Bargaining and the National Economy, in Proceedings of the Thirty-fifth Annual Meeting of the Ind’l Rel. Research Assoc. 362–71 (1983).
295 See generally Kochan et al., supra note 71, at 144–45.
296 See generally Summers, supra note 285, at 10, 15.
297 29 U.S.C. � 157 (1994).
298 Id.
299 See infra notes 386–392 and accompanying text.
300 See supra notes 237–241 and accompanying text (discussing surveys showing that most adult Americans believe that an employer may terminate an employee only based on a reasonable cause).
301 During the fiscal year 1983, about 9000 employment discrimination cases were filed in court. See John J. Donohue & Peter Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 Stan. L. Rev. 983, 985 (1991). In comparison, only 1973 employment discrimination cases were filed with the American Arbitration Association in 1999. E-mail from Toni L. Griffin, Vice President of Corporate Communications, American Arbitration Association, to Sarah A. Link (Oct. 26, 2000) (on file with author).
302 See Donohue & Siegelman, supra note 301, at 983–94 (stating that federal employment discrimination litigation has grown at such a rapid rate that it is now raising concerns that employment discrimination litigation is imposing a significant burden on federal judges).
303 See infra notes 313–337 and accompanying text.
304 See Summers, supra note 285, at 18 (stating that “the most difficult problem of the near future will be reconciling overlapping protections”).
305 Section 1144(a) provides that ERISA supercedes “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. � 1144(a) (1994). This standard has led to an “expansive sweep” of federal preemption under ERISA. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47 (1987). See generally Befort & Kopka, supra note 193.
306 See 42 U.S.C. � 2000e-7 (1994) (“Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this title.”).
307 See Stephen F. Befort, Demystifying Federal Labor and Employment Law Preemption, 13 Lab. Law. 429, 430–37 (1998) (discussing NLRA and section 301 preemption).
308 See, e.g., Ficalora v. Lockheed Corp., 193 Cal. App. 3d 489 (1987); Giese v. Phoenix Co. of Chicago, Inc., 639 N.E.2d 1273 (Ill. 1994).
309 See, e.g., Helmick v. Cincinnati Word Processing, Inc., 543 N.E.2d 1212 (Ohio 1989); Clay v. Advanced Computer Applications, Inc., 536 A.2d 1375, 1381 (Pa. Super. Ct. 1988).
310 See, e.g., Williams v. Mariott Corp., 864 F. Supp. 1168, 1175 (M.D. Fla. 1994); Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 379 (Minn. 1990).
311 See supra notes 54–58 and accompanying text (discussing the near universal provisions in collective bargaining agreements requiring just cause for termination and the access to an arbitration forum to enforce such a standard).
312 See Alexander v. Gardner-Denver, 415 U.S. 36, 50–51 (1974). While the Court ruled that the Title VII claim in Alexander should be considered de novo, it added that the prior “arbitral decision may be admitted as evidence and accorded such weight as may be appropriate.” Id. at 60.
313 U.S. Dep’t of Labor, supra note 75, at 113. Between 1991 and 1995, employment-related civil rights lawsuits in federal courts shot up 128%. See id.
314 See Stuart H. Bompey et al., The Attack on Arbitration and Mediation of Employment Disputes, 13 Lab. Law. 21, 22 (1997) (“Approximately ten percent of the docket of the federal courts is estimated to be employment issues.”).
315 See Mei L. Bickner et al., Developments in Employment Arbitration, 52 Disp. Resol. J. 8, 10 (1997); see also Bompey et al.; supra note 314, at 22 (“[E]mployment litigation has increased by 400% in the past twenty years.”). The number of employment discrimination cases has increased twenty-five fold between 1970 and 1998. See Evan J. Spelfogel, Mandatory Arbitration vs. Employment Litigation, 54 Disp. Resol. J. 78, 78 (1999).
316 See Spelfogel, supra note 315, at 78.
317 Bompey et al., supra note 314, at 22.
318 See Spelfogel, supra note 315, at 78.
319 See Bompey et al., supra note 314, at 22 (citing figures based on litigation in California).
320 See James N. Dertouzos & Lynn A. Karoly, Labor-Market Responses to Employer Liability 35 (1992) (reporting that as of 1986, defense lawyer costs could exceed $250,000 in the course of a lengthy wrongful-termination trial).
321 See Bompey et al., supra note 314, at 22 (“Defending against a wrongful discharge claim brought by a former employee can cost an employer hundreds of thousands of dollars in legal fees and considerable time of corporate personnel diverted from productive activity to providing information or testimony.”).
322 See Susan Bisom-Rapp, Discerning Form From Substance: Understanding Employer Litigation Prevention Strategies, 3 Employee Rts. & Emp. Pol’y J. 1, 14–18 (1999); Denise V. M. Hubert, Exactly What is Employment ADR?, Hum. Resource Prof., July-Aug. 1998, at 23 (noting that the cost of undertaking steps to avoid litigation sometimes exceeds the cost of litigation itself).
323 See supra notes 52–53 and accompanying text.
324 See Gould, supra note 133, at 86 (“A problem with the existing system is that judges and juries have less expertise than administrative agencies or labor arbitrators who specialize in the employment relationship.”).
325 See Susan A. FitzGibbon, Reflections on Gilmer and Cole, 1 Employee Rts. & Emp. Pol’y J., 221, 241 (1997).
326 See Gould, supra note 133, at 85 (noting that “the average employee below the managerial ranks simply cannot afford [the litigation] process.”); U.S. Dep’t of Labor, supra note 75, at 105 (noting that the time and expense of the litigation model make it especially difficult for low-wage workers to pursue employment claims).
327 See Lisa B. Bingham, Employment Arbitration: The Repeat Player Effect, 1 Employee Rts. & Emp. Pol’y J., 189, 198–99 (1997); see also FitzGibbon, supra note 325, at 241 (noting that most employment plaintiffs are workers who were removed from professional and/or managerial positions).
328 See Lewis L. Maltby, Private Justice: Employment Arbitration and Civil Rights, 30 Colum. Hum. Rts. L. Rev. 29, 58 (1998) (reporting estimates that only about 5% of employees with potential claims are successful in retaining an attorney).
329 See Model Employment Termination Act Prefatory Note, 7A U.L.A. 421, 424 (1999) (reporting that between 60 and 80% of successful plaintiffs in employment termination cases come from the ranks of middle or upper management and professional employees); FitzGibbon, supra note 325, at 260 (noting that in addition to lower back pay awards, lower paid workers tend not to be as successful in winning discharge suits as compared to high wage professionals).
330 See Bickner, supra note 315, at 12.
331 See U.S. Dep’t of Labor, supra note 75, at 112 (noting that employment litigation “imposes legal costs on the targeted employers, many of whom turn out to be fully in compliance with the law”).
332 See Dertouzos & Karoly, supra note 320, at 35; Bompey et al., supra note 314, at 22.
333 See Hubert, supra note 322, at 23 (stating that the fear of litigation also “causes managers to accept inadequate performance, avoid re-engineering positions and systems, and miss development opportunities”).
334 See id. at 23; see also Dertouzos & Karoly, supra note 320, at 35 (reporting on a California survey in 1986 showing average jury trial awards in wrongful termination cases at “nearly $700,000”).
335 See, e.g., 158 Lab. Rel. Rep. (BNA) 257 (1998) (reporting a study by the American Bar Association showing that employers have prevailed in 92% of all cases filed under the ADA, most frequently at the summary judgment stage).
336 See Hubert, supra note 322, at 23.
337 See Dertouzos & Karoly, supra note 320, at 36 (reporting that about 95% of all wrongful termination cases settle before trial with employers paying an average of $25,000 to the terminated employee and another $15,000 in legal costs); Howard A. Simon & Yaroslav Sochynsky, In-House Mediation of Employment Disputes: ADR for the 1990s, Employee Rel. L.J., Summer 1995, at 29, 30 (noting that more than 85% of all employment cases settle before trial).
338 See Cooper, supra note 56, at 500–01; see also Elkouri & Elkouri, supra note 49, at 10–13; Abrams, supra note 61, at 236–37.
339 See, e.g., Befort & Cornett, supra note 135, at 296–97 (discussing Mexico’s use of specialized conciliation and labor tribunals); Samuel Estreicher, Unjust Dismissals in Other Countries: Some Cautionary Notes, 10 Emp. Rel. L.J. 286, 296 (1984) (surveyin