By Wm. Joseph Austin, Jr.
Of Counsel, Narron Wenzel, P.A.
Labor and employment law has been described as a Rubik’s Cube of federal and state statutes, regulations, and common law.
The lawyer who specializes in this practice advises both employers and employees on these legal standards which are placed on the employment relation under the Rule of Law.
The applicable laws regulate every aspect of that relation from recruitment, background checks, testing, hiring, classification of workers (employees, contractors, interns, or volunteers), compensation and benefits, training, evaluation, discipline, reduction in force planning, termination, and retirement.
The tasks include basic drafting of employment agreements, noncompetition covenants, nondisclosure agreements, personnel policies, training materials, and benefit plans. The traditional labor lawyer is also involved, exclusively either for unions or employers, in the labor-management relations that proceed from union campaigns, organization, collective bargaining, and dispute resolution.
Specialization requires mastery of an array of statutes including the National Labor Relations Act, Fair Labor Standards Act (wage and hour), Equal Pay Act, Title VII, Age Discrimination in Employment Act, Pregnancy Discrimination Act, Americans with Disabilities Act, Family and Medical Leave Act, Genetic Information Nondiscrimination Act, Uniformed Services Employment and Reemployment Act of 1994, and the Worker Adjustment and Retraining Notification Act (WARN), all federal laws; and in North Carolina the North Carolina Wage and Hour Act, Retaliatory Employment Discrimination Act, Employment Security Law, and the Equal Employment Practices Act. Workers’ compensation and workplace safety within the province of OSHA comprise yet another aspect of statutory regulation in the workplace.
The Common Law also has an integral role in the employment relation, for example, under the at-will rule, the public policy exception, tort law including the law of libel and slander, and contract law.
The labor and employment lawyer typically deals with numerous government agencies, both federal and state, including the U.S. and N.C. Department of Labor; the National Labor Relations Board; Equal Employment Opportunity Commission; North Carolina Industrial Commission; and Division of Employment Security, each of which has a particular law to enforce.
Ultimately litigation may ensue requiring court appearance to prosecute (or defend) claims of discrimination, harassment, retaliation, or wrongful discharge.
In the public sector there are several additional factors which come into play including the U.S. Constitution, particularly the First and 14th Amendments (e.g., the freedom of speech and due process in public employment); and in North Carolina the state constitution, the State Personnel Act and whistleblower protection.
Summing up, the federal statutes which apply to the employment relation alone fill up a volume equal in bulk to the Internal Revenue Code—without pretense of codification or harmony. So, in closing the labor and employment lawyer might ask, what other area of the law makes the Internal Revenue Code look good? On the other hand, since most of us stand on common ground in the workplace, striving together whether as business owner, boss, or rank-and-file employee, what better specialty could there be?
© Narron Wenzel, P.A. 2022