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Minimum-Wage Policy and Constitutional Inequality: The Paradox of the Fair Labor Standards Act of 1938

Published online by Cambridge University Press:  14 October 2011

Vivien Hart
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Extract

The minimum wage was conceived as an attack on poverty within the work force. Americans first defined “sweated labor” as a category and a social problem, then wrote solutions into law which fundamentally changed that definition and undermined the original purpose. First, in 1912, a problem of economic exploitation of workers became a problem of women unable to protect themselves. Transformed into an issue of the rights of labor, in the Fair Labor Standards Act of 1938 (FLSA) a radically new minimum wage law left those most in need unprotected.

Type
Articles
Information
Journal of Policy History , Volume 1 , Issue 3 , July 1989 , pp. 319 - 343
Copyright
Copyright © The Pennsylvania State University, University Park, PA. 1989

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References

Notes

1. Congress, Senate, Committee on Education and Labor, Fair Labor Standards Act of 1937. Joint Hearings Before the Committee on Education and Labor, U.S. Senate and the Committee on Labor, House of Representatives, 75th Cong., lst sess., 2 June to 22 June 1937, 273. [FLSA Hearings].

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13. The police power was defined as the inherent power “of promoting the public welfare by restraining and regulating the use of liberty and property.” Freund, Ernst, The Police Pouter: Public Policy and Constitutional Rights (Chicago, 1904Google Scholar; repr., Buffalo, 1981), iii; Freund, The Police Power, 303–4.

14. Adkins v. Children's Hospital of Washington, D.C., 261 U.S. 525 (1923), 553; Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).

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16. Forsythe, “Legislative History,” 474.

17. Patterson, James T., Congressional Conservatism and the New Deal: The Growth of the Conservative Coalition in Congress, 1933–1939 (Lexington, KY, 1967), 196–97.Google Scholar

18. Fair Labor Standards Act, Statutes at Large, 52, sec. 2(a), 1060. [FLSA].

19. NCL Papers, FLSA Correspondence, 1930–1937.

20. See testimony from the Council for Industrial Progress, FLSA Hearings, 126–54, National Association of Manufacturers, 623–89, Southern States Industrial Council and Cotton Textile Institute, 760–830; average hourly earnings tabulated, 338–40.

21. FLSA Hearings, 126–55.

22. Levitan, Sar A. and Belous, Richard S., More Than Subsistence: Minimum Wages for the Working Poor (Baltimore, 1979), 41.Google Scholar

23. See Alpert, Rena G., “Legislative Protection for the Agricultural Laborer,” George Washington Law Review 8 (May 1940), 1060–69Google Scholar; Morris, Austin P., “Agricultural Labor and National Labor Legislation,” California Law Review 54 (December 1966), 1939–89CrossRefGoogle Scholar; section 13(c) of the FLSA exempted child labor on farms when “not legally required to attend school”; see also Jeremy P. Felt, “The Child Labor Provisions of the Fair Labor Standards Act,” Labor History 11 (Fall 1970), 467–81; Fair Employment Practice Committee figures for 1940, quoted by Herbert Hill, Black Labor and the American Legal System: Race, Work, and the Law (Madison, 1985), 183; Department of Commerce, Bureau of the Census, Historical Statistics of the United States; Colonial Times to 1970 (Washington D.C., 1975), 304.

24. Frazier, Edward K. and Perlman, Jacob, “Entrance Rates of Common Laborers, July 1939,” Monthly Labor Review 49 (July-December 1939), 1454–55Google Scholar; “Second Year of the Wage and Hour Act.” Monthly Labor Review 49 (July-December 1939), 1443–44Google Scholar; Frazier and Perlman, “Entrance Rates,” 1456–57; United States v. Darby, 312 U.S.100 (1941).

25. “Leaders Doubtful of Pay-Hour Bill,” New York Times, 16 April 1938; see also New York Times, 9 January 1938, 26 March 1938, 3 April 1938, 14 April 1938.

26. “Second Year,” 1439, 1444; “Wage and Hour Bill,” unsigned and undated note, Thomas G. Corcoran Papers, Library of Congress, Special Files, New Deal Era, FDR White House Speech Material, Wages and Hours.

27. “Second Year,” 1440; bakers were the subject of Lochner v. New York, 198 U.S. 45 (1905), the precedent against labor laws for men; candy makers and garment workers featured largely in early minimum-wage investigations.

28. Jane Mansbridge, Why We Lost the ERA (Chicago, 1986), 3; see also Cott, Nancy F., The Grounding of Modern Feminism (New Haven, 1987)Google Scholar, and Lemons, J. Stanley, The Woman Citizen: Social Feminism in the 1920s (Urbana, 1973).Google Scholar

29. Clara Mortenson Beyer to Vivien Hart, 15 November 1983. Letter in Hart's possession.

30. Perkins, Frances, The Roosevelt I Knew (New York, 1946), 151–52, 249, 255Google Scholar; see also Lash, Joseph P., Dealers and Dreamers: A New Look at the New Deal (New York, 1988)Google Scholar, and Ware, Susan, Partner and I: Molly Dewson, Feminism, and New Deal Politics (New Haven, 1987).Google Scholar

31. Adkins v. Children's Hospital, 554–55, 558.

32. Frances Perkins to Raymond Moley, 16 February 1933, with enclosures, Felix Frankfurter Papers, Library of Congress, Subject File/Labor Dept. Labor standards were not on the agenda; banking, taxation, and relief were; see New York Times, 8 February 1933, 6 March 1933, 7 March 1933; following passage of Lehman's minimum-wage bill, Roosevelt did urge other governors to follow suit; see New York Times, 13 April 1933.

33. The child labor decision was Hammer v. Dagenhart, 247 U.S. 251 (1918); relevant anti-New Deal cases were Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), declaring that government could regulate goods only in the stream of commerce, not the conditions under which they were processed or sold; and Carter v. Carter Coal Co., 298 U.S. 238 (1936): “Mining brings the subject matter of commerce into existence. Commerce disposes of it,” excluding production from commerce.

34. Corwin, Edwin S., “Congress's Power to Prohibit Commerce a Crucial Constitutional Issue,” Cornell Law Quarterly 18 (June 1933), 477.Google Scholar

35. Stern, Robert L., “That Commerce Which Concerns More States Than One,” Harvard Law Review 47 (June 1934), 1335, 1337CrossRefGoogle Scholar; see also Irons, Peter H., The New Deal Lawyers (Princeton, 1982).Google Scholar

36. Frankfurter, Felix, The Commerce Clause Under Marshall, Taney and Waite (Chapel Hill, 1937), 18Google Scholar; “Wages and Hours—What is Practical Now,” memorandum “Sam to Tommy” [Corcoran], 17 June 1936, Corcoran Papers, Special Files, New Deal Era, FLSA 1938.

37. New York Times, 29 January 1937; in addition to the 1936 election result, polls confirmed support for wages and hours legislation: 61 percent in favor in May 1937 was the lowest figure; see Gallup, George H., The Gallup Poll: Public Opinion, 1935–1971 (New York, 1972), 1:60.Google Scholar

38. FLSA Hearings, 2.

39. FLSA Hearings, 3; FLSA, sec. 2, 1060.

40. FLSA Hearings, 6.

41. Felix Frankfurter to Frances Perkins, 9 February 1933, Frankfurter Papers, Subject File/Labor Dept.

42. Hoke v. United States, 227 U.S. 308 (1913).

43. See Gross, Edward, “Plus Ça Change … The Sexual Structure of Occupations Over Time,” Social Problems 16 (Fall 1968), 198–208Google Scholar; Wandersee, Winifred D., Women's Work and Family Values, 1920–1940 (Cambridge, MA, 1981), 84–102CrossRefGoogle Scholar, and a critical comment in Milkman, Ruth, Gender at Work: The Dynamics of Job Segregation by Sex during World War II (Urbana, 1987), 1–11Google Scholar; Cooper, Frank E., “The Coverage of the Fair Labor Standards Act and Other Problems in its Interpretation,” Law and Contemporary Problems 6 (Summer 1939), 335–37.CrossRefGoogle Scholar

44. Quoted by Milkman, Gender at Work, 61; FLSA Hearings, 77; Eileen Boris, “Saving the Factory from the Home: Industrial Homework under the Fair Labor Standards Act,” paper presented at the Convention of the Organization of American Historians, Reno, Nevada, 24 March 1988.

45. FLSA Hearings, 338.

46. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); a typical product of Beyer's activism is Bulletin No. 47 of the Department of Labor, Division of Labor Standards, Why a State Wage-Hour Law Now? (Washington, D.C., 1941).

47. Melvin Sims, “Legal Aspects of Labor Problems—Minimum Wages” (mimeo; Washington, D.C., 1936), esp. 37, 106, 133–34. I owe the example of domestic work to Phyllis Palmer; see Domesticity and Dirt: Housework and Domestic Service in the United States, 1920–1945 (Philadephia, forthcoming).

48. “Conversation between Clara Mortenson Beyer and Vivien Hart, Washington, D.C., November 14, 1983,” mimeo, p. 30, Clara Mortenson Beyer Papers, Schlesinger Library, Radclifre College, Cambridge.

49. New York Times, 27 May 1937; Roosevelt, Franklin D., The Complete Presidential Press Conferences (New York, 1972), 11:297.Google Scholar

50. Roosevelt, Press Conferences, 9:230.

51. Paul H. Douglas to Charles O. Gregory, 31 December 1936, NCL Papers, FLSA Correspondence 1930–1937; Wilson, William Julius, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (Chicago, 1987), 115, 121.Google Scholar

52. “Proceedings of the Convention of the National Woman's Party, Washington, D.C., 15–18 February 1921,” mimeo, p. 79, in National Woman's Party Papers, 1913–1974 (Sanford, NC, 1979), reel 115.Google Scholar

53. Minimum Wage Study Commission, Report of the Minimum Wage Study Commission (Washington, D.C., 1981), Table 2:1, 1:36.Google Scholar

54. Stern, “That Commerce,” 1346–47, 1365.

55. Wickard v. Filbum, 317 U.S. 111 (1942); Black, Frankfurter, and Jackson were now on the Court; Stern, Robert L., “The Commerce Clause and the National Economy, 1933–1946,” Harvard Law Review 47 (June 1946), 891–92Google Scholar; Congress, Senate, Committee on Labor and Public Welfare, Subcommittee on Labor, Legislative History of the Fair Labor Standards Amendments of 1974, 94th Cong., 2d sess., 1976, 1:501.

56. Phyllis Palmer, “Outside the Law: Agriculture and Domestic Workers under the Fair Labor Standards Act,” paper presented at the Convention of the Organization of American Historians, Reno, Nevada, 24 March 1988, 2.

57. FLSA Heatings, 2.