fort upon this, doubtless their most difficult problem. "Liberty," said a true lover of his race, "does not fail those who are determined to have it":* and the same is true of justice. "The fundamental defect," as Professor Commons puts it, "is the failure to investigate first the bargaining relations and then to organize those relations in such a way that conflicts of opinion and interest will be furnished a channel for expression and compromise; and then, last of all, to work out the standards and records under the direction of and subordinate to this organization of the bargaining relations. I do not pretend to say how this shall be done. It also is a matter for investigation in each case. I only contend that the individual bargain should be eliminated as far as possible and the collective bargain substituted."+ So far as concerns the legislative restriction of working hours which our study has led us to advocate, the new efficiency is no obstacle or check, but rather an incentive. It represents the progressive employers whom the state benefits together with their employes, in checking the less efficient and unscrupulous competitors. Excessive hours, like overtime and under pay, are marks, often unrecognized, of inefficiency. That scientific management itself has shortened the workday in fair proportion to the increased productivity of its workers, no one can justly maintain. In regard to both hours and conditions the new system has still to share its marvelous gains more equitably with labor. In the present status of our industries, therefore, where the true efficiency is still exceptional, legislation to restrict the working day is still a cardinal need. * "Libertà non tradisce i volenti."-Garibaldi. VIII THE ENFORCEMENT OF LABOR LAWS WE E have now reached a more technical aspect of our subject which needs close consideration—the administration of our labor laws. For in the end the whole test and crux of labor legislation-indeed its whole excuse for being-is precisely its enforceability and enforcement. We do not seek laws limiting the hours of labor for the sake of having them on the statute books, nor for any academic purposes whatever. We seek them purely for the sake of securing adequate control of the length of the workday. What then are the essential desiderata for enforcement? What assists and what hinders the factory inspectors in their difficult office of administering these statutes, particularly that statute which combats industrial fatigue by limiting. the hours of labor? Our inquiry narrows itself down to this specific question. We must consider what kind of laws tend, on the whole, to get themselves best enforced. It is in this connection that the employment of women at night and in the evening after the day's work plays so important a rôle. Overtime work may, in fact, be called the key to the whole matter of regulating the hours of labor. More than 30 American states have enacted laws prohibiting, in various degrees, the employment of women more than a specified number of hours. But only three states-Massachusetts, Indiana, and Nebraska-have set a legal closing hour after which employment is illegal. Moreover, many states, as we shall see, allow various exceptions for overtime which interfere gravely with the enforceability of their laws. The difficulties of inspection become almost insuperable. Let us first make clear the distinction between the rigid law which prohibits overtime and night work, and the elastic law which does not. 1. THE RIGID LAW: HISTORICAL DEVELOPMENT IN MASSACHUSETTS The rigid or non-elastic law is one which provides fixed boundaries for working hours. It protects women from working after a specified hour at night, and more than a given number of hours by the day or week. The best exemplar of this kind of law in the United States is the Massachusetts statute which prohibits the employment of women in textile mills more than ten hours in one day, or more than fifty-four hours in one week, or before six o'clock in the morning or after six o'clock in the evening. A moment's thought will show the advantages for enforcement of laws thus rigidly framed. The law is final. Its provisions are clear cut. Employers, employes, and inspectors know without disagreement or argument what constitutes a violation. Work continued after the specified closing hour is conclusive evidence of violation. The factory inspector can see at a glance, without further machinery, whether or not employes are being illegally kept at work. The Massachusetts textile law has not been hastily enacted. It is the fruit of almost forty years of experience. After two commissions of investigation in 1866 and 1867, the first Massachusetts law for adult women was enacted in 1874. From that date to the present day there has been slow but steady progress making the law more and more rigid and definite in its requirements, as experience proved how enforcement was hindered by the laxness of the earlier statutes. It is worth while to trace this course of legislation in Massachusetts, since the whole case for an exact and rigid law with fixed legal opening and closing hours, rests not on any theory but on the direct evidence of experience. No arguments could be more telling than the fact that our oldest industrial state, like England before it, has had to amend its laws dealing with the hours of labor steadily in the direction of greater rigidity and exactness. The first statute for adult women enacted in Massachusetts prohibited their employment in manufacture more than ten hours in one day and sixty hours in one week. But this law was inoperative for some years because a fine was prescribed only for its "wilful" violation-a loophole through which obviously any offender could easily escape. The law of 1874 was "practically not in operation until in 1879 when the word 'wilfully' was stricken out by chapter 207 of that year." The law of 1874 had also allowed two other exemptions which added greatly to the difficulties of enforcement. This was in permitting overtime after the ten-hour day, in order to make good any time lost for repairs within the same week, or in order to make one day in the week shorter. "The time devoted to starting and stopping machinery was absurdly prolonged. Again, where a factory ran an eleven-hour day, each woman and child was required to leave for half an hour in each half day, but her neighbor tended two sets of machinery during her absence-doubling up' this was technically called."† In order to meet these evident defects in the operation. of the law, various amendments were accordingly passed. In 1880 the posting of a notice was required, stating the daily hours of work; in 1886§ it was required that the notices should contain an additional statement of time allowed to stop and start machinery, and the time given for meals. Even this amendment proved too lax. In the very next year, 1887, the law was again amended || to require the postReport of the Convention of the International Association of Factory Inspectors, 1894, p. 65. † Massachusetts Labor Legislation. S. S. Whittlesey. Supplement to the Annals of the American Academy of Political and Social Science. January, 1901, p. 13. Laws of 1880, chap. 194. || Laws of 1887, chap. 280. § Laws of 1886, chap. 90. ing of the exact hours when work began and stopped and also hours when meal-time began and ended. The practice of lengthening the day's work by "doubling up " was also attacked in 1887.* In factories where five or more women began work at the same time, it was required that meal-time should be given them at the same hours, without imposing additional work upon women who began work and had their meals later. Another important amendment enacted in 1887 aimed to correct another evasion of the law which the inspectors had found very general. "The most trivial accident to the machinery which, in itself, might not have entailed an appreciable loss of time, had again and again been made the pretext for much lengthened overtime employment."† This abuse was attacked by allowing overtime for repairs only when stoppage lasted over thirty minutes, and after a full written report had been sent to the chief inspecting official. A special fine was prescribed for false reporting. Such were some of the successive amendments enacted to assist the enforcement of the law by making its technical requirements more rigid. More important still were successive enactments cutting down the period of hours within which the legal workday was allowed to fall. In 1890 for the first time legal opening and closing hours were set for the day's work. This was a step of farreaching importance. The absence of a fixed closing hour had previously been the most serious obstacle to the enforcement of the law. It allowed women to be employed by night as well as by day. Moreover, it made almost unenforceable the ten hours' limitation of work. So long as women might be employed until any hour of the night at will, it was practically impossible for the inspectors to detect violations. Unless they remained actually on the premises they could not *Laws of 1887, chap. 215. † Whittlesey, op. cit., Laws of 1890, chap. 183. p. 14. |