It goes without saying that it’s critical that frontline operational leaders research and understand federal law as well as the laws of your state or municipality. However, you’ll be best advised to remember the adage “Practice trumps policy.” In other words, how you apply rules and regulations in your workplace—your “past practice”—is just as important if not more important than the wording in your employee handbook or policy & procedure manual.
For example, you should not terminate one employee for excessive tardiness—even if you have a clear policy outlining its definition and consequences—if you allow other employees to flout that same policy or fail to hold them to the same standard. Courts and arbitrators will specifically look to the polices outlined in your employee handbook but will likewise want to know how your organization has handled similarly situated cases. That’s why it’s so important to check with HR before taking any kind of adverse action against an employee in your unit: only HR knows the organization’s past practices and history for dealing with particular issues and can shed light on that during your discussions.
Following is a brief overview of some of the most significant U.S. federal employment laws passed by decade over the last century. Your state may have its own equivalent of these laws (for example, the federal Family Medical Leave Act [FMLA] and the California Family Right Act [CRFA], which covers smaller employers and more family members than the federal law). Follow this decade-by-decade approach to US employment law to gain a greater understanding of how our rules and regulations developed over the last century to create today’s modern workplace.
· 1920s
1920 – Nineteenth Amendment to the Constitution ratified giving women the right to vote.
1924 – Congress enacted the Indian Citizenship Act, which granted citizenship to all Native Americans born in the U.S.
· 1930s
1935 – The Wagner Act (known as the National Labor Relations Act or NLRA) – guaranteed basic rights of private sector employees to unionize, collectively bargain, and strike.
1938 – Fair Labor Standards Act (FLSA) – banned oppressive child labor (under age 14), set minimum wage (25 cents), and required employers to pay overtime and set the maximum workweek at 44 hours.
· 1940s and ‘50s
1947 – Taft Hartley Act – protected employers from unfair labor practices (i.e., unions refusing to bargain with employers in good faith).
1959 – Labor Management Reporting and Disclosure Act (Landrum-Griffin Act) – provided employers the right to sue unions.
· 1960s
1963 – Equal Pay Act (EPA) - protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.
1964 – Civil Rights Act—Title VII - prohibits employment discrimination on the basis of sex, race, color, religion, or national origin (includes recruitment, hiring, wages, assignment, promotions, benefits, discipline, discharge, and layoffs).
1965 – Executive Order 11246 – prohibits federal contractors from discriminating in employment decisions based on race, color, religion, sex, or national origin; required federal contractors to develop an Affirmative Action Plan (AAP).
1967 – Age Discrimination in Employment Act (ADEA) – prohibits discrimination based on age (40 years or older) and protects employees from a hostile work environment based on age.
1968 – Fair Credit Reporting Act (FCRA) - protects individuals by regulating the way businesses gather and use credit information about them.
· 1970s
1970 – Occupational Safety & Health Act (OSHA) - governs occupational health and safety; ensures that employers provide employees with an environment free from recognized hazards.
1972 – Vietnam Era Veteran’s Readjustment Assistance Act (VEVRA) - provides equal opportunity and affirmative action for Vietnam era veterans, special disabled veterans, and veterans who served on active duty during a war. (This applies to employers with Federal contracts or subcontracts of $25,000 or more.)
1973 – Rehabilitation Act - prohibits discrimination on the basis of disability in programs conducted by federal agencies, contractors and/or programs.
1974 – Employee Retirement Income Security Act (ERISA) - protects the interests of employee benefit plan participants by setting minimum standards for pension plans in private industry and rules on the tax effects associated with employee benefit plans.
1978 – Uniformed Guidelines on Employment Selection Procedures - provides standards for use in employment testing; employers must demonstrate that a selection process is valid in predicting performance, and the selection process cannot create adverse impact.
1978 – Pregnancy Discrimination Act (PDA) – prohibits discrimination based on pregnancy; employers are required to treat pregnancy as any other temporary disability.
· 1980s
1989 – Whistleblower Act – protects federal whistleblowers who work for the government and report agency misconduct; agency cannot retaliate against an individual who reports misconduct.
1985 - Consolidated Omnibus Budget Reconciliation Act (COBRA) - provides workers who lose health benefits to continue group health benefits (temporarily) in certain circumstances.
1986 – Immigration and Reform Act (IRCA) – prohibits discrimination based on national origin or citizenship of applicants; companies may be penalized for hiring illegal aliens.
1986 – Health Insurance Portability and Accountability Act (HIPAA) – protects an individual’s personal health information (amended in 1996 - improves portability and continuity of health insurance coverage).
· 1990s
1990 – Americans with Disabilities Act (ADA) – prohibits discrimination based on disability in employment decisions and requires that employers provide reasonable accommodations to qualified individuals with disabilities unless the accommodation creates an undue hardship.
1991 – Civil Rights Act – provides the right to trial by jury on discrimination claims and introduced the possibility of emotional distress damages (i.e., punitive damages), while limiting the amount that a jury could award.
1993 – Family Medical Leave Act (FMLA) – provides job and benefit protection and unpaid leave for certain circumstances.
1994 – Uniformed Services Employment and Reemployment Act (USERRA) – provides job rights of individuals who leave employment to serve in the uniformed services and prohibits employers from discriminating against past and present members of the uniformed service (and applicants to the uniformed services).
· 2000s
2002 – Sarbanes Oxley (SOX) Act - ensures the reliability of publicly reported financial information; company noncompliance may result in fines and imprisonment of CEO and CFO; contains protections for corporate whistleblowers.
2008 – Genetic Information Nondiscrimination Act (GINA) - prohibits the use of genetic information in health insurance and employment decisions.
2010 – The Patient Protection and Affordable Care Act, referred to as the Affordable Care Act or “ACA” for short, is a comprehensive health care reform law that makes affordable health insurance available to more people.
This overview is important because it shows particularly active versus inactive decades (for example, the legislatively quiet 1940s and ‘50s during and after World War II versus the highly charged 1960s and ‘70s), the move towards greater worker protections as the economy became stronger and more sophisticated (for example, the 1980s), the tug of war between union protections and anti-labor pushback, the arc of the law trending towards technology and bioscience, and more. We can likewise expect future US employment law to reflect our new realities as we move forward with artificial intelligence, quantum computing, the metaverse, and their impact on employee privacy rights, data security, international data transmission, and more. In short, forewarned is forearmed, and understanding the landscape of worker protections and company rights is a good place to launch your leadership and professional development journey.
Paul Falcone is the former CHRO of Nickelodeon, a bestselling author with HarperCollins Leadership and the American Management Association, a columnist for the Society for Human Resource Management, and now a consultant offering services in the areas of keynote speaking, management training, executive coaching, and HR advisory services.