Maximum Hours and Minimum Wages Legislation
MAXIMUM HOURS AND MINIMUM WAGES LEGISLATION
Regulation of the employment relationship was an important aspect of the movement toward state intervention in economic affairs, which began in the late 1800s. The transition from small individual to large corporate employers and the development of a factory system with a numerous wage-earning class resulted in pervasive exploitation of employees. The principal method of alleviating the economic injustice was statutory regulation of employment conditions. The spectrum of protective legislation was wide, including factory safety, child labor, workers' compensation, and the hours and wages of employment. In these early days the laws were state laws.
The protracted constitutional contest over hours and wage legislation was one aspect of the larger theme of substantive due process, a concept developed by the Supreme Court at the turn of the century. Liberty included freedom of contract, which included the employment contract, of which hours and wages were the main components. The Court held that laws regulating hours and wages violated the guarantee of due process of law if the purpose of the law was invalid or if the means were not reasonably related to a valid purpose.
Hours legislation began in the 1870s. Reformers perceived the duration of the workday as related to the employees' health and safety, protection of which was a valid legislative purpose. In its first opinion on the subject, holden v. hardy (1898), the Court sustained a law limiting the hours of men working in mines to eight a day. The hazardous nature of the work justified the limitation as a valid health and safety measure. In muller v. oregon (1908) an hours limitation for women was sustained on the theory that the "weaker sex" required special protection.
Beyond these two exceptional situations the Court at first prohibited hours regulation. The prototype case was lochner v. new york (1905). A 5–4 Court invalidated a law restricting the work of bakery employees to ten hours a day and sixty hours a week. Despite massive documentation, the Court refused to recognize that the baking industry posed any special health danger to which hours of work were reasonably related. More broadly, the Court concluded that the law was not truly a health law, but a "purely labor law" to regulate hours, an impermissible objective.
This strict view yielded to persistent pressures. In bunting v. oregon (1917) hours regulation of adult males in factories was sustained as a valid health measure, a result clearly inconsistent with Lochner, which was not even mentioned in the opinion. Thereafter the validity of hours regulation was not seriously questioned.
Massachusetts passed the first minimum wage statute in 1912 and within ten years there were fifteen such state laws. Proponents urged that health was impaired by wages below a subsistence level. The Court was at first unpersuaded, and, in adkins v. children ' shospital (1923), it invalidated a District of Columbia minimum wage law for women. Wages were the "heart of the contract" and, unlike hours, had no relation to health. Contrary to hours regulation, women were entitled to no special wage protection. The minimum wage was invalid also because it bore no relation to the value of the service rendered. But a law curing this deficiency was invalidated in morehead v. new york ex rel. tipaldo (1936).
One principal justification for protective legislation was that the inequality of economic power between employers and employees made true freedom of contract illusory. This argument was expressly rejected by the Court, which candidly declared in coppage v. kansas (1915) that it was "impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights." Social Darwinism was thus enshrined in the Constitution.
In 1937, that year of constitutional revolution, minimum wage legislation became constitutional by a 5–4 vote. west coast hotel co. v. parrish upheld a minimum wage for women. Adkins was overruled. The Court purported surprise at the employer's reliance on liberty of contract. Not only was the health/subsistence rationale accepted but, more broadly, it was now accepted as a valid legislative purpose to prevent "exploitation of a class of workers who are in unequal position with respect to bargaining power."
Federal regulation of hours and wages was first exercised in limited contexts. An eight-hour day for railroad workers was upheld under the commerce clause in wilson v. new (1917). Congress has long regulated both wages and hours of work performed by employees of contractors with the federal government. Examples are the Davis-Bacon Act, which regulates wages for work on public buildings and other public works, and the Walsh-Healey Public Contracts Act, which regulates both wages and hours for work on supply contracts. The constitutionality of both statutes is unquestioned under the taxing and spending power.
Finally, in the fair labor standards act of 1938, Congress legislated for private employment generally, superseding most state laws. The act required the payment of a minimum wage and overtime for all hours over forty a week to all employees engaged in commerce or the production of goods for commerce. The main purpose was not health but to bolster the economy. The FLSA was sustained under the commerce power in united states v. darby (1941). A substantive due process argument was rejected without analysis. It was "no longer open to question" that neither Fifth nor fourteenth amendment due process limited the fixing of minimum wages or maximum hours, and it made no difference that the regulations applied to both men and women.
That has been the view of the matter ever since. In other contexts the Court repudiated the Lochner substantive due process approach to protective legislation. What was once a burning issue now appears to be a closed chapter in constitutional law. The scope of the state police power was underscored in striking fashion by the upholding in Day-Brite Lighting, Inc. v. Missouri (1952) of a law that required employers to give employees four hours off from work in order to vote—with full pay.
William P. Murphy
De Vyver, Frank T. 1939 Regulation of Wages and Hours Prior to 1938. Law and Contemporary Problems 6:323–332.
Dodd, E. Merrick 1943 From Maximum Wages to Minimum Wages: Six Centuries of Regulation of Employment Contracts. Columbia Law Review 43:643–687.
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