FRESH PERSPECTIVES: THE DICHOTOMY, ORIGIN, AND LEGISLATIVE FRAMEWORKS OF LABOR AND EMPLOYMENT LAW

By Janine Braxton

Janine Braxton is an attorney at Martenson Hasbrouck & Simon who represents employers in state and federal courts with an emphasis on complex wage and hour representative PAGA and class actions. She also focuses on litigating individual discrimination and harassment claims. She is a California Young Lawyers Association liaison to the Labor and Employment Law Section Executive Committee. Ms. Braxton can be reached by email at jbraxton@martensonlaw.com.

What exactly is "labor and employment law"? As a new practitioner several years ago, I generally understood the phrase as encompassing the employment relationship and primarily rooted in the California Fair Employment and Housing Act (FEHA),¹ California Labor Code,² Title VII of the 1964 Civil Rights Act,³ and various other California and federal employment laws. I did not fully appreciate the distinctions between traditional labor and employment law until later in my practice as I navigated Weingarten Rights, combed through collective bargaining agreements (CBAs), sections 7 and 8 of the National Labor Relations Act (NLRA),⁴ and litigated section 301 of the Labor Management Relations Act (LMRA).⁵ Such was the extent of my interactions with traditional labor law as an employment defense attorney and former neutral workplace investigator. Labor and employment law certainly overlap at times. There are careers in this field that require expertise of both. However, for most newer attorneys and those pivoting to this area of law for the first time, you are likely to focus on labor or employment law-two discrete areas of practice. The dichotomy of the two is rooted in their origins, as well as the societal and legislative framework through which they were born.

Traditional labor law focuses on collective actions of an organized workforce, collective bargaining, and other issues related to organized labor-the main parties being a union representing a collective group of employees and the employer. Labor lawyers generally negotiate CBAs, handle unfair labor practice charges before the National Labor Relations Board (NLRB) and similar bodies,⁶ resolve grievances, manage union organization campaigns, and litigate related issues in state and federal courts. According to the U.S. Bureau of Labor Statistics, 16.2 percent of California employees were union members in 2020. Nationally, only 10.8 percent of employees were union members in 2020.⁷ Union membership rates in California have exceeded the U.S. average since 1989, the first year California union data became available. Consequently, most American and California workers are not unionized.