1.1 Introduction to Law

Purpose and Function of Law

The employment relationship in the United States (U.S.) is governed by law. Law is a set of rules for human behavior which are established by legitimate authority and which have a binding force.

The purpose and function of the law is to:

• Prevent undesirable, or promote desirable, behavior

• Facilitate for private arrangements between individuals

• Settle private and public disputes

• Determine procedures for changing the law

• Regulate the institutions of state to protect individual freedom

• Keep the peace

• Remedy social injustice

• Facilitate planning

• Provide for the orderly change in government

Common Law and Precedent

U.S. law is based on the English and American common law, which consists of opinions of judges in cases covering hundreds of years. Over time, in each case, a judge established Precedent—a controlling rule, example, or guide—which provided a framework for other judges to follow in deciding later cases. A very simple example would be if a court found that stealing business account files was a crime; a later court could use the same principle to find that stealing business computer files—an issue not before encountered—was also a crime. The doctrine of a court following the precedent of an earlier court is known as stare decisis. The common law requires strict adherence to law but also gives courts power to exercise equity or fairness.

Supreme Law of the Land: The Constitution

Notwithstanding the role of common law, the supreme law of the land in the U.S. is the Constitution. Every law in the country must comply with the provisions of the Constitution, or that law is void. The power of the Supreme Court to consider whether a law comports with the Constitution is called Judicial Review.

Main Functions of the Constitution

The Constitution has two main functions: First, it establishes the three branches of the federal government and allocates the division of powers between them. Second, and more importantly for the employment law context, the Constitution enumerates fundamental rights – the Bill of Rights – of citizens and protects them from the government’s ability to restrict those rights.

Branches of the Federal Government

The three branches of the federal government are the Legislative Branch, the Executive Branch and the Judicial Branch. The legislative branch is made up of the two houses of Congress—the Senate and the House of Representatives. These bodies are tasked by the Constitution to make laws for the “general welfare” of the people. The executive branch is composed of the President and other executive leaders, such as the Vice-President and the Cabinet. The President and the Vice-President are elected by the people, while cabinet members, who lead major departments in the federal government, are appointed by the President. The executive branch conducts foreign affairs and ensures that sound laws are created and enforced. The judicial branch, is the court system of the country and is comprised of the United States Supreme Court and other federal courts. Through actual legal controversies, the courts explain and define the meaning of the Constitution and laws passed by Congress. The Supreme Court is the highest court in the land and its decisions are final.

Role of the Federal Government in Employment Law

Each branch of the federal government plays a role in employment law. For example, in 1963 President Kennedy, invited Congress to draft Civil Rights legislation to eliminate employment discrimination. Congress accepted the challenge, and the following year they passed the Civil Rights Act of 1964. Currently, the executive branch, through the Equal Employment Opportunity Commission (EEOC), ensures the Civil Rights Act of 1964 is enforced. Finally, the courts, through cases brought by the EEOC and private parties, interpret and define the scope of the Civil Rights Act.

Supremacy Clause

The Constitution contains a Supremacy Clause, which mandates that the Constitution, federal law, treaties, and federal regulations are the highest laws of the land and have priority over state law. As we shall see in the coming sections of the book, this doctrine is important in the employment law context because many laws and regulations governing employment are federal laws. Finally, the legal construction of employment has its roots in the traditional master/servant relationship under the common law. The legal principles surrounding that relationship grew into modern contract and agency law to which we now turn.