The relations between employers and workers were completely transformed throughout the Western world by what is known in England as the industrial revolution, the application of new types of motive power, steam and electricity, to the production of goods and the consequent concentration of work in large plants and factories. This revolution occurred after the American Revolution and therefore the United States had no previous experience to guide them in these problems. The common law he conceived his norms of the employment relationship on the basis of feudal conceptions of the relationship between lord and servant or between landowner and semi-free farmer. From the century XLV onwards laws had been passed that regulated wages and made work compulsory. Later the workers’ associations were declared criminal associations. Until the sec. XIX the action of the employer against the worker who terminated his contract was of a criminal nature.
Much of this survived in the early days of American history. But the introduction of machines into the industries of the big cities of the east soon required the abandonment of all those rules. The contract between employer and worker was assimilated to other contracts and trade unions were declared legal. The assimilation of the employment contract to others was not without disadvantages for the workers. Contracts, as oral as written, were usually dictated by employers, and the immigration of workers from Europe, which began to take place on a large scale even before the Civil War (1861-65), consistently provided a mass of hand it also works for the growing demand for skilled or unskilled labor.
Again: the conditions of energy transport, building construction and manufacturing industry dramatically increased the number of occupational accidents. Liability for these injuries was governed by the ordinary rules on negligence, for which the burden of proof of guilt rested on the injured party. Furthermore, the application of the so-called ” fellow – servant ” norm) absolved the employer of any responsibility when the accident was due to the negligence of another employee in the industry, as was commonly the case: it was assumed that the risk of these accidents had been assumed by the worker. Indeed, the principle of voluntary risk taking was applied even more widely. In some few states, employers were even authorized to stipulate their complete release even from the consequences of gross negligence or willful misconduct.
To all these rules that made the condition of the worker burdensome, the so-called “vice-principal” rule, which held the main responsible when the negligent “workmate” was a manager with wide discretionary powers, or the laws that imposed on the employer a generic responsibility for the safety of the workplace and for the quality of the machines and tools.
But all this has been overcome by the rapid spread of the “compensation laws” for workers (Workmen’s compensation lazis) based mainly on the French and German ones, which require the employer to insure workers against accidents of all kinds, regardless of their cause, provided they occurred during the employment relationship.
These laws met with fierce resistance at first, but are now generally in effect in state and federal jurisdictions. The compensation is governed, not by the ordinary courts, but by a commission which works to control spending and reduce them to a minimum.
The difficulties that arise from the relations between organized workers and the employer are still extremely serious and far from having had a legal arrangement. The aim of the workers’ organization was clearly to improve working conditions and raise wages; their main weapon, the strike. With the common law doctrine abandoned, which regarded leagues as such as criminal associations, the right to strike became the subject of passionate discussion, since it naturally involved the deliberate intention of breaking a contract. However, both by law and by jurisprudence the right to strike was officially recognized.
But the difficulties created by the strikes were more complicated. Most of the strikes brought with them serious disturbances of public order and real armed conflicts. The use of the “injunction” remedy became frequent and the ” labor injunction ” became a special type of that famous instrument devised by the Chancery Court. English, which consisted of a warning addressed to individuals and whose violation was punishable by prison. The injunction to work differed from the traditional in that it was often addressed to entire groups of people and in that it was based on the broad interpretation of the concept of “irreparable damage to property” as the element once considered essential. The workers violently protested against the injunction and an attempt was made to prohibit it by means of legislation, which still has the character of an experiment. Other laws, which established mandatory arbitration or prohibited employers from making burdensome distinctions against federated workers, have been declared unconstitutional by the courts.
Similarly, courts have imposed quasi – corporate liability on workers’ unions which exceeds that of common law. Unions did not constitute corporations, moral entities, and therefore, before the law, they were mere groups of individuals. In order to hold any natural person liable for any damage caused during an employment dispute, it was necessary to prove that he had directly participated in the act. In England, the sentence in “Taff Vale case” (brought by the railway company of Taff Vale, South Wales, against single strikers and against the Amalgamated Society of Railway Servants “General Confederation of Railwaymen”) in 19o5 (according to the Encyclopedia Britannica, 13th ed., XXII, p. 375, the decision of the House of Lords is of 1901) had stated that trade unions were jointly and severally liable for the acts of their members, although they did not possess legal personality, and that it was possible to proceed against the funds, often relevant, of the union. This was likewise the effect of a 1922 Federal Supreme Court decision.
Currently the most debated issue in terms of labor law is that of the right to bargain collectively. It forms the essence of a recent law, the Wagner Act, which is still under scrutiny by the courts. But the issues connected with it also interfere with trade between states. Whether this law is to be considered invalid, as a violation of the right to freedom to contract, will probably be determined in the various states.
The laws for the protection of the work of women and children and those on old-age and unemployment insurance form a considerable group of new laws. Many states prohibit child labor, but a federal law prohibiting it was declared unconstitutional. An amendment to the constitution has been approved by the majority of states, but not yet by the 3/4 necessary. A law regulating women’s work was passed, but minimum wage laws were declared unconstitutional to both the federal government and the states. Here, once again, it is thought that the difficulty can be resolved by means of an amendment to the constitution.
The difficulty of dealing with the problems of work, considering them simply as special cases of contractual obligations or arising from fault, has become increasingly evident. But it cannot be said that forensic professionals have made a great contribution to solving these problems, who show a strong tendency to oppose any innovation tending to make labor law a special branch of law.