The Building Blocks of Employment Law: Constitutions, Statutes, Regulations and More

Constitutions

Constitutions are the highest form of law, providing the foundation for all other laws. Courts have the responsibility to interpret a constitution's meaning and can invalidate any law or regulation that conflicts with it. Constitutions are the most stable laws, requiring significant political consensus and special procedures to amend.

Federal: The US Constitution is the cornerstone of federal law and applies to all employment in the United States. While it doesn't specifically grant any employment-specific rights, it underpins key protections like anti-discrimination and equal pay.

State: Each of the 50 states has its own constitution, each of which can offer additional protections beyond the US Constitution. For example, some state employment laws - such as Nevada's minimum wage law and Tennessee's right-to-work law - are included in their state constitutions.

Statutes

Statutes are laws passed by a legislature and, typically, signed by an executive. For example, federal laws are passed by Congress and signed by the President. State laws typically are passed by state legislatures and signed by the governor.

After constitutions, statutes carry the greatest authority. They are significantly longer and more robust than constitutions. Statutes are sometimes called "Acts," and many include "Act" in their title - for example, the Family and Medical Leave Act (FMLA) or the Fair Labor Standards Act (FLSA).

Federal statutes are organized in the United States Code (USC), while state statutes can be found in their respective state codes.

Most federal employment laws are in Title 29 of the US Code. Citations usually follow a form like 29 USC § 207(a)(1)(C), with the "29" referring to the volume number, and the numbers and letters following the s-shaped section symbol referring to a specific section (number), subsection (lowercase letter), paragraph (number) and subparagraph (uppercase letter), respectively.

Regulations

Because statutes do not and cannot address every ambiguity or scenario, many statutes grant the administrative agencies tasked with enforcing them (including the US Department of Labor (DOL), the US Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB)) the authority to issue regulations that interpret how the statutes should be applied in real-life situations. They carry less weight than statutes but more weight than sub-regulatory guidance.

Before 2024, a legal doctrine known as "Chevron deference" required courts to defer to an administrative agency's reasonable interpretation of ambiguous statutory language rather than substituting their own judgment if the language in the relevant statute was ambiguous and the agency's interpretation was a reasonable one.

Following the US Supreme Court's 2024 ruling in Loper Bright Enterprises v. Raimondo, courts may exercise their own independent judgment to decide whether an agency has lawfully interpreted a statute. Courts need not defer to an agency's interpretation of the law simply because a statute is ambiguous.

Most federal employment regulations are found in Title 29 of the Code of Federal Regulations (CFR). Citations follow a similar format as the US Code, but with CFR instead of USC.

Sub-regulatory guidance

Administrative agencies often adopt interpretations of the law that have not gone through the full regulatory process. These interpretations (sometimes referred to as "sub-regulatory guidance") can take several forms, such as interpretive bulletins, policy statements, enforcement manuals, opinion letters, or even frequently asked questions (FAQs) posted on an agency's website.

These interpretations do not carry the force of law, but courts may follow them according to their "power to persuade."

Sub-regulatory guidance also can provide insights into the policies and procedures that guide agencies' decisions to investigate workplace violations and potentially to file lawsuits or take other actions on behalf of employees.

Some sub-regulatory guidance can provide special protections. For example, employers that follow FMLA or FLSA opinion letters may be entitled to a "good-faith defense" that can help to limit their liability.

Executive Orders

The American Bar Association (ABA) describes an executive order as a "signed, written, and published directive from the President of the United States that manages operations of the federal government."

According to the ABA, executive orders (EOs) and proclamations "have the force of law, much like regulations issued by federal agencies."

However, EOs are not directed at the public at large; rather, they apply only to administrative agencies that must follow them.

As with statutes and regulations, courts can strike down EOs that conflict with the constitution or existing law. Congress also can pass a law to nullify an EO or choose not to appropriate funds necessary for an administrative agency to carry out an EO.

Court opinions

Courts resolve disputes between parties. In an employment law context, the parties are usually an employer and its employee(s).

Courts apply the law to the facts of a given case and decide its outcome. As noted, courts have the authority to strike down statutes and regulations if they conflict with the constitution or with the relevant statute, respectively. Courts also may temporarily enjoin (i.e., block) a law from being implemented or enforced until they decide a case if they conclude that one of the parties may be irreparably harmed, or if a pause is in the public interest or if certain other conditions are met.

In the federal system, cases generally originate in district courts, also known as trial courts. If a party should lose their case, they can appeal the decision to the next level, the 12 US Circuit Courts of Appeals. If they lose again, they can appeal to the US Supreme Court. Both the appellate courts and the Supreme Court hear only a small fraction of these appeals. When they agree to hear a case, it is sometimes referred to as "granting certiorari" or "granting cert."

The Supreme Court's decisions generally create a binding precedent for all federal courts, meaning those lower courts must apply its principles to any cases that come before them. Similarly, an appellate court's ruling is binding on all the district courts in its jurisdiction.

Although they are not necessarily binding, rulings from a district or circuit in which an employer does not operate may nevertheless be worth considering if they concern a particular fact pattern or narrow point of law that is relevant to the employer's situation. When there is no binding precedent on a particular question within their own circuits, courts often consider the rulings of other courts to be persuasive.

State court systems are structured similarly to the federal system in many ways, with their own trial courts, appellate courts and supreme courts. There are important distinctions as well.

Ordinances

Ordinances are laws passed by local governments, like cities, towns and counties. Just as state statutes can grant employees additional rights beyond federal statutes, local ordinances can grant additional rights beyond state statutes.

Some states have enacted laws that prohibit localities from adopting ordinances or regulations on a specific area of the law.

Brightmine HR & Compliance Center covers local ordinances in certain key areas, including the minimum wage, pay transparency and leave.