A more recent device which provides additional help in enforcing the law is that of a record book, open to inspection by the authorities and containing the actual hours worked each day by each female. Few states rely exclusively on this device for help in enforcing the law. Several states, however, require the keeping of record books in addition to posting notices,2 or as a substitute where daily hours are so irregular that they cannot be determined in advance." Even the wording of the penalty clause is of importance in relation to the enforceability of the law. Massachusetts's first ten-hour law could not be enforced as long as only "wilful” violations were penalized. Several states still render their laws inoperative by similar clauses. For instance, in South Dakota only the employer who "compels" a woman to work overtime is responsible. Experience shows that it is practically impossible to prove such compulsion and that convictions can be secured only when "permitting" excessive hours is also a violation of the law. The enforceability of the laws in a few southern states, which penalize only "contracting" to work overtime, also seems doubtful.5 Even among the enforceable laws there is a difference in effectiveness. It is clearly easier to obtain proof of violation in a state like New Hampshire, where the employment of a woman "outside" the posted hours is a violation of the law, than where the inspector must prove that she worked "longer" than the posted number of hours, as in Tennessee. It may also be of importance in successful prosecutions to note whether the employer alone, "his agent" or "any person" may be held responsible, and whether only the working of excess hours is penalized or, in addition, a failure to post notices, the making of false statements in notices and time-books and the like. Equitable and necessary as legal limitations on the daily hours of working-women are generally recognized to be, they have frequently been contested as out of harmony with our 1 One of these is Illinois, Laws 1911, p. 328. 7 Tennessee, Laws First Extra Session, 1913, C. 121. state and federal constitutions. Clearly, limiting the hours during which a woman may be employed does abridge her freedom to use her capacity for work to its utmost extent. The courts seem to hold in general that such a limitation may be made through the state's exercise of its police power only if excessive hours involve some appreciable danger to the class of workers involved or to the community. The conflict of judicial decisions on the subject appears to arise from differing opinions as to the existence of such danger. Opinions opposed to legal restriction emphasize the interference with woman's freedom to contract to work each day as long as she pleases, implying that employer and employee stand on an equal footing in determining working conditions and that an employee works long hours of her own free will. Such a restriction of freedom of contract, they hold, deprives a woman worker without due process of law of the valuable property right of disposing of her own labor as she sees fit, and furthermore is class legislation because it denies her privileges accorded to men workers. The favorable decisions take cognizance of actual industrial conditions and point out that the labor contract is not freely made between equals, but that its terms are settled largely by the employer and that the state may therefore interfere in the interests of the public welfare. The first important decision on the constitutionality of hour legislation for women was rendered in Massachusetts in 1876, upholding the ten-hour law. In this case, says Professor Ernst Freund, "the court was obviously a good deal puzzled how to deal with the objections raised, disposing of them in a rather offhand and not altogether satisfactory fashion." In a brief opinion 2 the court pointed out that the legislature had evidently considered factory work "to some extent dangerous to health," and that the statute was therefore a health or police measure. This decision, however, held that the legislation did not prevent women from working as long as they saw fit, but only from working more than ten hours continuously in a factory. 1 Freund, "Constitutional Limitations and Labor Legislation," in Third Annual Meeting of the American Association for Labor Legislation, p. 51. 2 Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383 (1876). The next important decision on the constitutionality of hour legislation for women was not rendered until 1895, almost twenty years later. During the interval the principle of entire freedom of contract between capital and labor had been developed. This doctrine was reinforced by the idea that the right to dispose of one's labor freely is a property right, not to be abridged-according to the fourteenth amendment to the constitution of the United States-"without due process of law." It was on this ground that in 1895 the Illinois Supreme Court declared invalid an eight-hour law for women in factories.2 The court could see no “fair, just, and reasonable connection between such limitation and the public health, safety, or welfare proposed to be secured by it." But three years later, in 1898, the United States Supreme Court showed the fallacy of the doctrine of freedom of contract between employer and employee, and within the next few years, in 1900 and 1902, three decisions by state courts brought out in addition reasons why women as a special class of workers particularly need protection. These decisions took into account the fact that women are physically weaker than men and that therefore their health is more likely to suffer from excessive hours of work. Any injury to the health of women workers is of particular social importance, since it is on their health that the vigor of the next generation directly depends. The year 1908, however, finally settled the question as far as the restriction of daytime hours to a maximum of ten was concerned. The United States Supreme Court unequivocally upheld the constitutionality of the Oregon ten-hour law as a health measure.5 "As healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order to preserve the 1 First laid down in 1886 in Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. 354; Millet v. People, 117 Ill. 294, 7 N. E. 631 (1886). 2 Ritchie v. People, 155 Ill. 98, 40 N. E. 454 (1895). Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383 (1898). See "Hours of Labor, Men," p. 240. 'Commonwealth v. Beatty, 15 Super. Ct. (Pa.) 5 (1900); Wenham v. State, 65 Neb. 395, 91 N. W. 421 (1902); State v. Buchanan, 29 Wash. 603, 70 Pac. 52 (1902). Mueller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324 (1908). ... strength and vigor of the race. The limitations which this statute imposes upon her contractual powers, upon her right to agree with her employer as to the time when she shall labor, are not imposed solely for her benefit, but also for the benefit of all." In this case and succeeding ones of a similar nature the influence of the method by which the legislation was defended should not be overlooked. Exhaustive briefs were prepared by Mr. Louis D. Brandeis and Miss Josephine Goldmark, not so much emphasizing the legal aspects of the case as presenting a mass of extracts to show the actual effects of excessive hours of work on the health of women. In 1909, Illinois, whose working - women had been left unprotected from excessive hours since its eight-hour law was overthrown in 1895, passed a ten-hour bill. The constitutionality of the statute was immediately attacked. This time, however, the Illinois Supreme Court did find a clear connection between the measure and the protection of the public health. It recognized not merely a theoretical freedom of contract, but, as well, the facts as to the effects of excessive hours on the health of women. "What we know as men," said the court, "we cannot profess to be ignorant of as judges."1 The constitutionality of a ten-hour workday was now established, but the reasonableness of further restriction was still in doubt. In 1915, however, the United States Supreme Court upheld the constitutionality of the California law which fixed an eight-hour day as the maximum for women workers. The court said that the same principles were at stake as in the previous cases, and that while "a limitation of the hours of labor of women might be pushed to a wholly indefensible extreme. there is no ground for the conclusion here that the limit of the reasonable exertion of protective authority has been overstepped."? ... Hour legislation for women has also been attacked on the ground that it is class legislation, discriminating unreasonably between various classes of workers, and denying that ‘equal protection of the laws" which was promised to all persons by the fourteenth amendment. The statutes have been 1 Ritchie v. Wayman, 244 Ill. 509, 91 N. E. 695 (1910). Miller v. Wilson, 236 U. S. 373, 35 Sup. Ct. 342 (1915). attacked both because they included certain employments and because they failed to include certain others. The constitutionality of the Illinois law was questioned because it included employees in hotels and in public institutions. One of the chief points raised against the constitutionality of the California law was its inclusion of student nurses. On the other hand, different laws have at various times been called "class legislation" because they included only factories and laundries, and because they excluded mercantile establishments, canneries, stenography, and domestic service. The courts have given but little weight to this type of objection, asserting the freedom of the legislature either to use discretion in enlarging the scope of the laws or to single out those groups of workers most in need of protection.2 In an Oregon case the constitutionality of regulation of women's hours by a commission has been attacked on the ground that substituting commission for court authority on questions of fact takes property without "due process of law." The state supreme court sustained the method, holding that it contained the essentials of due process, which it defined as "reasonable notice and a fair opportunity to be heard before some [proper] tribunal.' The case was appealed to the United States Supreme Court where in the fall of 1915 it was still pending. 9 3 Thus the working-woman's theoretical freedom of contract to dispose of her labor under whatever conditions she pleases has been restricted by the state through its police power. Such a limitation is rightfully applied to women workers as a class, because as workers they do not stand on equal footing with their employers in bargaining and because as women their health is more quickly injured by excessive hours of work. Furthermore, the community suffers if the health of any large number of women is endangered, for on the health of women depends the vigor of the race. The reasonableness of the range of employments included in the laws has been affirmed, and hours may now be limited to as few as eight in daytime work. 1 People v. Elerding, 254 Ill. 579, 98 N. E. 982 (1912). See Withey v. Bloem, 163 Mich. 419, 128 N. W. 913 (1910). • Stettler v. O'Hara, 69 Ore. 519, 139 Pac. 743 (1914). |