Another example of unequal treatment.
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Imagine clearing out your desk on the last day of your job, ready to begin a higher-paying position elsewhere. But just as you turn in your keys, your boss hands you a court order preventing you from taking your new job. Instead, you need to come back tomorrow to the same job — for the same pay — if you want to work at all.
This is exactly what happened in January to seven employees of ThedaCare, a health-care system in Wisconsin. As the employees were preparing to leave their positions for more lucrative jobs at Ascension, another regional health-care network, ThedaCare sued Ascension and asked a court for a restraining order — which was granted — to stop the workers from taking the Ascension jobs until ThedaCare could hire their replacements. This happened even though there was no dispute that the workers were “at-will” employees and supposedly free to quit at any time.
The restraining order was lifted three days later, but for those three days the employees were essentially held against their will by ThedaCare with no certainty about when — or if — the court would allow them to start their new jobs.
While observers expressed shock and outrage, the court's initial order is less surprising when considered in light of the historical roots of U.S. employment law, which has its origins in English laws governing the relationship between domestic servants and their masters.
Those laws, which arose from medieval norms that English courts enforced, created a rigidly hierarchical relationship between masters and servants. Servants were typically bound to work for their masters for a specific duration. During the term of service, a servant was expected to live in the master’s house, abide by the master’s rules and perform whatever tasks the master requested. No matter how bad working conditions were, the servant could not quit, since their labor was considered the property of the master. In fact, masters could have servants arrested if they attempted to leave their service early.
Beginning in the 1700s, scholars and judges began applying master/servant rules to other types of work relationships that were historically less hierarchical. By the late 1800s, the master/servant paradigm had effectively become the default legal model for all employment relationships in the United States. Factory workers who quit their jobs could be arrested for vagrancy and forced to choose between returning to the factory or staying in jail. Farmhands hired for the harvest season were forced to follow every one of their employer’s commands — no matter how unfair or dangerous — or else risk being fired without receiving any pay.
Laws passed by Congress and the states since then have hacked away some of the worst parts of this legal heritage. Employees today have the right, for example, to be paid a minimum wage, have a workplace free of health and safety hazards, and to engage in collective action or join a union to press for better pay and working conditions.
- Law, Labor, and Ideology in the Early American Republic.
- Ordinance of Labourers 1349.
The Ordinance of Labourers 1349 (23 Edw. 3) is often considered to be the start of English labour law. Specifically, it fixed wages and imposed price controls; required all those under the age of 60 to work; prohibited the enticing away of another's servants; and other terms.
The ordinance was issued in response to the 1348−1350 outbreak of the Black Death in England. During this outbreak, an estimated 30−40% of the population died. The decline in population left surviving workers in great demand in the agricultural economy of Britain.
Landowners had to face the choice of raising wages to compete for workers or letting their lands go unused. Wages for labourers rose and translated into inflation across the economy as goods became more expensive to produce. The wealthy elites suffered under the sudden economic shift. Difficulties in hiring labour created frustration. John Gower commented on post-plague labourers: "they are sluggish, they are scarce, and they are grasping. For the very little they do they demand the highest pay." On the other hand, while some workers suffered from increasing prices, others benefited from the higher wages they could command during this period of labour shortage.
The law was issued by King Edward III of England on 18 June 1349.
The ordinance required several things, including:
- Everyone under 60 must work.
- Employers must not hire excess workers.
- Employers may not pay and workers may not receive wages higher than pre-plague levels.
- Food must be priced reasonably with no excess profit.
- No one, under the pain of imprisonment, was to give any thing to able-bodied beggars 'under the colour of pity or alms'.
The ordinance has largely been seen as ineffective.[4] Despite the English parliament's attempt to reinforce the ordinance with the Statute of Labourers of 1351, workers continued to command higher wages and the majority of England (those in the labouring class) enjoyed a century of relative prosperity before the ratio of labour to land restored the pre-plague levels of wages and prices.
