Constructing a Legal Education for a Career in Labor and Employment Law

Paid work is at the center of most adults’ lives and livelihoods, and human labor is a crucial input into the production of goods and services. Not surprisingly, disputes between employers and workers are pervasive in our society. Many of those disputes end up in some adjudicatory forum—they make up more than 20 percent of the caseload of the federal and state courts—and others spill onto the streets and the front pages. Labor issues are also increasingly transnational in nature, and require US practitioners to deal with treaties and other sources of international law as well as foreign nations’ labor and employment laws. 

NYU Law is unusual among top law schools in the size and quality of its full-time faculty in this important area, with specialists in comparative labor and employment law, employment discrimination, and constitutional aspects of labor law, for example. Visiting professors from across the world regularly teach courses and offer lectures in the field. (For more on course offerings, see below.)  Students have the opportunity to conduct independent research and to publish their work, sometimes as co-authors with their professors. NYU Law graduates are among the leading practitioners of labor and employment law across the country.

Beyond the classroom, the Law School boasts the Center for Labor and Employment Law, which sponsors programs on a variety of current topics in the field that engage advocates, government officials, and judges. The Center’s annual labor conference, now going on its 73rd year, is one of the premier conferences in the nation in this vibrant field. Students can also get hands-on experience in the field as early as their first year through the student-led Unemployment Action Center, one of the top providers of legal services for unemployment hearings in New York City. Countless opportunities for term-time volunteer and paid employment in the labor and employment field exist in New York’s rich practice environment. 

The practice of labor and employment law takes many forms, depending partly on whom one represents. Lawyers may practice labor and employment law in law firms representing employers, employees, or unions; in-house within labor unions or union federations or large companies; in a variety of state and federal government agencies that administer labor and employment laws; or in non-profit advocacy organizations. The practice has a large litigation component, but many lawyers in the field are largely occupied with advising clients—especially employers or unions—on how to avoid disputes or to enhance their clients’ leverage in future disputes.

The core courses in the field are Labor Law (which concerns collective labor relations—union organizing and collective bargaining—mainly in the private sector); Employment Law (which concerns individual employment relations and common law and statutory regimes governing employment in both the private and public sectors); and Employment Discrimination Law (which delves more deeply into that complex and varied dimension of Employment Law). All sections have basic elements in common, but they vary in emphasis. For descriptions offered by the professors who teach the course, see below.

The main clinical offering in the field is Civil Litigation: Employment Law, which can be taken for a single semester or for a year. Beyond the core courses and that clinic, specialized course offerings vary from year to year. Recent courses and seminars have included Labor and Employment in Entertainment Law, Labor and the Constitution, and Regulating Work Beyond Employment.

Students planning to specialize in the labor and employment field will also benefit from taking courses in the fields of civil rights and constitutional law, federal courts and litigation, immigration law, administrative law, alternative dispute resolution (arbitration and mediation), public international law and human rights, and the basic courses in corporate law and federal income taxation.

Core Courses

  • Employment Law (Cynthia Estlund)
    This course concerns the law governing the employment relationship in the United States, primarily in the non-union private sector. After ingesting some history of that law through the New Deal, we will cover in some detail the evolution of the employment contract, especially with regard to job security, and of public policy and private rights as limitations on the employer’s power to discharge and manage employees. Along the way we will also discuss the law of employment discrimination; constitutional rights of public employees; post-employment restraints; and regulation of wages and hours and/or workplace health and safety. Throughout the course, we will be assessing competing models of contract, regulation, and litigation, and their impact on work life, labor markets, and the society at large.
  • Employment Law (Samuel Estreicher)
    Employment law is the body of law that applies to all individual workers irrespective of whether they have joined a union. As practiced, the field is comprised of employment discrimination law and federal and state statutes and common law rules spelling out is what is in the employment contract, what must be in it, and which terms or subjects are prohibited. We will initially look a who is an employee and who is an employer, and consider the common law of the employment relationship (contract, tort, employee duties, and limits on noncompete clauses). We will then turn to the employment discrimination laws which are a central part of employment law as practiced. We will cover federal laws like the wage-hour provisions of the FLSA, OSHA, ERISA, WARN and family and medical leave laws, as well as state statutes dealing with privacy, biometrics, etc. The emphasis throughout is on the practical -- which issues are litigated, how they are litigated, and where employers must take active steps to ensure compliance. Reform issues are considered throughout.
  • Labor Law (Cynthia Estlund) 
    This course examines U.S. law governing collective labor relations in the private sector. Our primary focus will be on the National Labor Relations Act and the processes of union organizing and collective bargaining that the NLRA establishes. But we will also consider historical and comparative perspectives on labor law, as well as emerging forms of worker organization, union strategies, and reform proposals that have arisen in the face of an aging labor law regime.
  • Labor Law (Samuel Estreicher) 
    We consider the common law and federal statutes applicable to concerted labor activities and collective bargaining, with particular focus on union organizing, weapons of economic conflict, duty to bargain in good faith, arbitration of grievances, preemption and labor-antitrust. The principal focus is on the National Labor Relations Act, with some discussion of the Railway Labor Act. Comparative discussion of labor laws of other countries and foreign trade issues is also featured.
  • Labor Law (Deborah Malamud) 
    This course examines the (past) rise and (current) decline of worker unionization in the United States, and the efforts of labor unions (and other social movements) to either reverse the tide or develop alternative modes of worker self-organization to fill the gap that declining “union density” has left in its wake. The main focus of the course is on the federal law governing private-sector unionization: the relationships between unions and management (e.g., collective bargaining), and between unions and the employees they represent. We will look at how changing patterns of law enforcement (at the administrative-agency and judicial level), changing social practices, and changing economic realities have contributed to the decline in private-sector unionization in the United States. We will also look at social-movement and legal efforts to revive unions as a meaningful option across the social and economic spectrum of the American workforce. Although the focus of the course is on private-sector federal law, we will also spend some time looking at unionization in the public sector.
  • Employment Discrimination Law (Deborah Malamud) 
    The focus of this course is on employment discrimination, as a phenomenon and as a legal issue. We will be chiefly concerned with the major federal statutes barring employment discrimination: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. In addition to legal issues and materials (including issues and materials relating to the civil-procedure and evidentiary posture of discrimination cases), we will look at theoretical and social-scientific writings on discrimination, in general and in the employment setting. This course is particularly recommended for students pursuing federal clerkships, given the size of the courts' anti-discrimination law docket.
  • Employee Benefits Law (TBD)
    This course examines the tax, labor, and other regulatory and policy aspects of employee benefit plans -- both pension and welfare plans. The principal tax and labor statutes governing eligibility, vesting, benefit accruals, nondiscrimination, deductions, funding, plan distributions, reporting and disclosure, fiduciary responsibility, prohibited transaction, and plan termination are considered. Remedies and preemption under ERISA are also discussed.

Clinical Offerings

  • Civil Litigation - Employment Law Clinic (Professor Laura Sager)
    This course focuses on, and provides experiential learning of, the tasks and skills involved in civil litigation through the lens of litigation of employment law claims.  For the seminar, the students participate in class discussion of the substantive and procedural law involved in the Clinic’s fieldwork cases and engage in a simulation based on an actual prior Clinic case.  Working on the simulation, the students perform all the steps from initial in-take to trial preparation, including initial and continuing case planning; drafting discovery requests; taking depositions; drafting and arguing motions; and preparing for trial, including direct and cross-examination of witnesses. 
    For the fieldwork, the Clinic represents clients in cases of employment discrimination (race, sex, national origin, age and disability); violations of the Family and Medical Leave Act; and violations of the minimum wage and overtime pay laws. Most of the Clinic cases are in federal court, although some are before federal or state agencies  or in state court.  The students’ involvement in the fieldwork cases spans the full range of litigation tasks performed by attorneys. These include meeting with clients, interviewing witnesses, conferring with opposing counsel, drafting discovery requests and motions, taking depositions, and appearing in court for scheduling conferences, argument of motions, evidentiary hearings, trials, and appeals. 

Specialized Courses and Seminars

  • Affirmative Action Today Seminar (Deborah Malamud) 
    This seminar reviews and then goes beyond the Supreme Court cases to examine "affirmative action," broadly defined, as a contemporary social, economic, political, and legal phenomenon.
  • Labor and Employment in the Entertainment Industry Seminar (TBD)
    This seminar examines employment and collective bargaining in the American entertainment industry. This industry presents an especially rich context in which to study labor law due to its characteristics of pervasive unionization and complex collective bargaining, patterns of short-term,"freelance" project employment, individual employment contracts, diverse forms of compensation and the confluence of employment and intellectual property issues. Participation in class presentations and discussions and a final paper determine your grade.
  • Labor and the Constitution Seminar (Cynthia Estlund) 
    The Supreme Court's 2018 decision in Janus, which struck down public sector union “agency fee” agreements, is just one recent example of the ferment surrounding collective labor activity and institutions and the federal Constitution. This seminar will explore some of the history that has shaped contemporary debates on these issues: the “free labor” ideal versus chattel slavery and “wage slavery”; “liberty of contract” versus collective labor activity and regulation; the New Deal Constitution as seen through divergent lenses; and contending constitutional ideas about economic liberty and equality. In light of that history, we will examine several recurring constitutional issues, including the courts’ treatment of strikes, picketing, and boycotts; employers’ free speech rights to oppose union organizing activity; and challenges to both union discrimination and union security arrangements (including agency fees) in the private and public sectors, and the pivotal “state action” issue. The readings will include a mix of cases and scholarship on the historical and contemporary constitutional treatment of labor, labor unions, and collective labor activity.
  • Labor Law in the Context of Globalization (Dennis M. Davis) 
    The concept of this course is to engage with the relationship between the global and the national; that is, lawyers in the 21st century can no longer see their discipline purely in terms of national law. In the area of labour law, this relationship provides a sound basis to interrogate the manner in which the global and the national intersect, or expressed differently, how national regulation can no longer promote the objectives of legal regulation without recourse to the international. The course thus commences with a discussion of the nature of globalization and its implications for national law and sovereignty. It will examine the rise of global value chains, their scope and implications for national regulation (which goes way beyond labour law to tax, the environment, anti trust etc). In this way the course will provide a guide to understanding the links between trade, labor and constitutional law as well as the nature of global production in the 21st century and, hence, the changing face of markets. Drilling down, the course will investigate how public and private international law intersect with trade law including the WTO, international labor standards via the ILO, human rights law and domestic labor law, and company law. We will examine the economic arguments for the kind of labor market that responds to the rights and economic growth questions In the final analysis. Given the nature of this enquiry and the themes of this course, the course will canvas the following: • The emergence of modern labor law • The rise of the Wagner Act and the economic/political reasons therefore • The rise of the modern corporation and the development of corporate governance • From Wagner and national corporations to the changing nature of the labor market and the multinational corporation • The problems posed to national regulation by 21st century globalization • The scope and role of ILO conventions • The WTO’s role in the governance of trade and labor • Does the rise of modern constitutionalism have any role in governance questions • The UN initiatives regarding the corporation and governance • The Ruggie reports • NGO movements and labor protection • Global value chains and labor • An examination of possible future forms of national/global regulation including informal regulation via multinational codes designed to protect vulnerable workers who produce for global value chains in developing countries (eg see the aftermath of the Bangladesh factory fire) • What implications can we draw from the current global economic crisis, for example, what is the future of labor rights in either the developed or the developing world? What consequences for rising inequality, political populism?
  • Law and Business of Human Rights (Michael H. Posner, Stern School)
    This course will focus on human rights law and practice and how the human rights framework applies to business. This segment consists of 12 classes, 3 hours each. The class sessions will be divided into three parts: (I) Foundations of human rights; (II) Business and human rights; and (III) Implementation challenges of business and case studies of human rights issues in different industries.
  • Leadership, Diversity, and Inclusion (Kenji Yoshino and Jessica A. Moldovan) 
    This year-long simulation is open to all students with an interest in diversity and inclusion (broadly defined) who seek to acquire the skills necessary for success in a professional workplace. The course will examine diversity and inclusion as ideals through a variety of angles. It will explore the conceptual underpinning of those ideals, the reasons institutions should seek to realize them, and universal impediments to that endeavor that cut across identity groups embodied in concepts such as “unconscious bias,” “stereotype threat,” and “covering.” The course will place particular emphasis on race and gender. In addition, we will look at how organizations have adopted super-compliant measures to operate above the strict requirements of employment discrimination law through efforts such as choice architecture. The course also aims to teach the skills required to flourish as legal professionals in spite of diversity and inclusion challenges. It will include a practicum on topics such as written communication, negotiation, public speaking, and time management, taught through a combination of traditional classroom instruction, guest presentations by leading practitioners, and skills-based exercises with feedback and opportunities for improvement. Throughout, the course’s aim is to impart the knowledge and tools to shape the more inclusive workplaces of the future, as well as the skills to thrive in workplaces as they are today.
  • Regulating Work Beyond Employment Seminar (Cynthia Estlund and Wilma B. Liebman)
    A growing portion of the workforce in today's economy, especially in the so-called "gig" or "sharing" economy, falls outside the category of "employee," or along its hotly contested boundaries. How are non-employment work relations regulated (by antitrust law, for example), and how should they be regulated? This seminar will take up both the boundary questions -- who is an "employee"? who is an "employer" -- and the legal status and treatment of workers beyond the reach of labor and employment law, primarily within U.S. law but also elsewhere.
  • Sports Law (Jodi S. Balsam) 
    Course Description: This course explores how various bodies of substantive law are applied in the context of the sports industry—both professional and amateur. The course examines the legal relationships between and among athletes, teams, leagues, governing bodies, sports facilities, licensees, broadcasters, and fans, as threaded together through contract, antitrust, labor, intellectual property, constitutional, and tort law. We will also study the financial and business structures that define the sports industry. 
    Course Objectives: At the conclusion of the course, students should be able to: Understand the unique relationships among participants in the sports industry; Understand which legal constructs and doctrines are implicated in a given sports setting; Analyze the legal issues, in particular those arising in contract and antitrust, that affect the operation of sports teams and leagues, on the professional and amateur levels; Comprehend the impact of collective bargaining and union agreements on the sports industry; Understand basic legal and business issues relating to intellectual property rights, including trademark, copyright, and rights of publicity, as implicated in sports broadcasting and merchandising; Explore issues involving amateurism and the nature of the “college athlete.”; Explore issues in criminal, tort, and constitutional law in the sports industry; Read and understand documents common to sports law settings, including league constitutions, collective bargaining agreements, player contracts, governing body by-laws, league and tour rulebooks, player-agent representation agreements; Understand the professional role and responsibilities of attorneys in serving sports industry clients.