Amicus Curiae Brief — Adkins v. Children's Hospital of DC

SUBJECT INDEX

THE WISCONSIN MIMIMUM WAGE

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Action by Commission postponed to

await decision in Oregon case, 243

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Commission petitioned to act ........

Public hearings and final report ......

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Difficulty in telephone industry ......

Telephone order made .............

The telephone order reads as follows:

Difficulties in exchanges in private

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Difficulties in tobacco stemming ware-

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Petition for new orders and new inves-

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REVISED MINIMUM WAGE ORDERS

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Women employes 17 and over—boys

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Boys and girls, 14 and 15 years of age.

Seasonal industries ..................

Limitation upon number of learners...

Allowance for board and lodging ......

Payment of wages on other than time

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Records to be kept by the employer....

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Report of Industrial Commission to At-

torney General of Wisconsin, Feb-

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Tobacco stemming warehouses ....... 20

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Telephone exchanges ................ 22

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Home work or sweat shop system..... 23

Sweat shop system drives industry out

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Wisconsin factory-made knitted product

not hampered in competition ......

FURTHER EFFECTS ..................

Learners more rapidly developed... ..

No displacement of women by men .

Minors not replaced by adults ........

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IN THE

Supreme Court of the

United States

No. 795

JESSE C. ADKINS, et al., Constituting the

Minimum Wage Board of the District of

Columbia, Appellants,

v.

THE CHILDREN’S HOSPITAL OF THE

DISTRICT OF COLUMBIA, A Corpo-

ration, Appellee.

No. 796

JESSE C. ADKINS, et al., Constituting the

Minimum Wage Board of the District of

Columbia, Appellants,

v.

WILLIE A. LYONS, Appellee.

BRIEF OF AMICI CURIAE

HERMAN L. EKERN,

Attorney General of the State of Wisconsin,

J. E. MESSERSCHMIDT,

Assistant Attorney General,

FRED M. WILCOX,

Chairman, Industrial Commission of Wisconsin,

AMICI CURIAE.

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INTRODUCTION

The State of Wisconsin appears as amicus

curiae in this action because a decision against

the constitutionality of the act involved in this

action may directly affect the constitutionality

of the Minimum Wage Law of Wisconsin.

The Wisconsin law was enacted in 1913. It is

administered by the Industrial Commission. The

law provides for investigations, hearings, and

the making of orders in a manner quite similar

to that provided for under the act relating to

the District of Columbia. Investigations were

begun by the minimum wage board and hearings

were had preliminary to the making of orders

fixing minimum wages for women and children.

In view of the questions which were raised

with regard to the constitutionality of the Ore-

gon law, which questions were considered and

decided upon in the case of Stettler v. O’Hara,

69 Oregon 519, 537, and in Stettler v. O’Hara,

243 U. S. 629, the commission did not attempt

to make any order until the case had been finally

decided in the Supreme Court of the United

States on April 9, 1917.

Soon after this decision, on June 27, 1919, an

order was made fixing the minimum wage for

women providing:

1. A minimum wage of not less than 22c

per hour for an experienced female or ex-

perienced minor over seventeen years of age.

2. Not less than 18¢ per hour during the first

three months of learner’s period, and not less

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than 20e per hour for the second period of three

months.

3. Permit children between sixteen and

seventeen years of age who have completed

three months in the industry not less than 20c

per hour, and permit children producing the

same output as employes in a higher wage clas-

sification not less than the minimum wage rates

for such class (This was later amended).

4. Define experience and learning period.

5. Pereentage of those receiving less than

22¢ limited to 25% of total employes.

6. Allowance for board and lodging.

7. Payment on the piece basis or system other

than time rate.

8. Posting copy of the order in a conspicuous

place in the work room.

Special orders and concessions were subse-

quently made to meet the particular difficulties

encountered in telephone industries, hospitals

and sanitariums, tobacco stemming warehouses,

and beauty parlors, and on the 28th day of June,

1921, a further general order was made.

After investigation, the Advisory Wage Board

unanimously recommended fixing the minimum

wage rate at 25¢ per hour in all cities with a

population of 5,000 and over, and at 22¢ per

hour in other places. Investigation showed that

the minimum wage effective August first, 1919,

as well as the one established August first, 1921,

was considerably below the market wage.

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Purpose of the Law

The law was not intended to supplant col-

lective or individual bargaining of emplovers

and employes as to wages, but was to meet cer-

tain oppressive conditions, and aid those who

Were in disadvantageous positions to make con-

tracts with employers. It was to protect the

minors and women in a more scientific way from

that attempted under the older laws. Contracts

hy minors and women have always been subject

to restrictions and regulations, in order to pro-

tect the individual and, indirectly, the people in

general.

It was to stop the exploitation of those who

are not able to protect themselves, to place the

two parties to the contract of wages on a par,

and restrain the oppressor from making uncon-

scionable contracts, which must necessarily have

the effect of forcing its vietims to unlawful and

immoral practices and becoming a burden and

danger to society. It aimed to strike at the low-

est scale of wages, and leaves those receiving a

fair compensation to the laws of competition.

It was also intended to put this competition on

a more equitable and higher plane.

The fact that women have not received and

do not receive equal pay with men for equal

work is universally recognized. Thus, the War

Labor Conference Board, under date of March

29, 1918, said, in its official report:

“If it shall become necessary to employ

women on work ordinarily performed by men,

they must be allowed equal pay for equal

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work and must not be allotted tasks dispro-

portionate to their strength.’’

Result

The result shows that the Minimum Wage

Law has been a potent cause in raising the lower

end of the wage scale to the level of the cost

of living. In some industries it decreased the

number of hours of labor during the week. It

increased the wages of telephone operators

33 1/30, as a whole. In some industries, the

whole wage seale was affected. These are to-

bacco stemming, small telephone exchanges,

stores in rural districts and small cities, and

home workers. Learners-are more rapidly de-

veloped under this law than before and the re-

sult has not been to displace women by men nor

minors by adults, and the Wisconsin-made knit-

ted products are not hampered by competition,

asa result of this law.

When the Minimum Wage Order was made in

June, 1919, the Wisconsin legislature was in ses-

sion, and two successive legislatures have been

in Session since. But so satisfactory have been

‘ie results obtained under the Minimum Wage

Orders that it has given universal satisfaction.

No attempt has been made to repeal or weaken

the law. Not a single bill has been introduced

into either house of the legislature to repeal or

restrict the operation of the law, and there have

been no appeals whatever to the courts from any

order of the Commission, under the law.

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THE WISCONSIN MINIMUM WAGE ACT

HISTORY

Ch. 712 of the Wisconsin Session Laws of

1913 makes it a requirement in Wisconsin that

all employers of women and minors shall pay to

such women and minor employes a living wage.

The term ‘‘living wage’’ is defined in the statute

as ‘‘compensation for labor paid whether by

time, pieee-work, or otherwise, sufficient to en-

able the employe receiving it to maintain him-

self or herself under conditions consistent with

his or her welfare.’’ The only women and min-

ors excepted are regularly indentured appren-

tices and those who are unable to earn the living

wage, to whom a special license may be granted

by the Industrial Commission fixing a wage

commensurate with their ability.

Employers aid in determining living wage

This law made it the duty of the Industrial

Commission to determine, after, investigation,

the living wage for women and minor employes.

It also provided that the Commission appoint

an Advisory Wage Board selected so as to fairly

represent employers, employes, and the public,

to assist in its investigations and determinations.

Action by Commission postponed to await de-

cision in Oregon Case, 243 U. S. 629

In 1914, the Commission made a state wide

investigation to determine the actual cost of liv-

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ing of self-supporting women, and an Advisory

Wage Board was organized at that time. No

action was taken because of the question regard-

ing the constitutionality of the law, until after

the decision of Stettler v. O’Hara, 69 Ore. 519

was affirmed in the United States Supreme Court

(243 U. S. 629).

Commission petitioned to act

The Wisconsin Federation of Labor, The

Women’s League of Wisconsin, and The Cen-

tral Council of Social Agencies, in Milwaukee,

on May 21, 1918, filed a verified petition alleg-

ing that women and minor employes in the

state were being paid less than a living wage,

and asking the Industrial Commission to pro-

ceed with a determination of the living wage.

An Advisory Wage Board was then organized

by the Industrial Commission, the employer and

employe members of which were nominated by

the principal organizations of employers and em-

ployes of the state. The representatives of the

public were selected after a conference with the

representatives of the employers and employes.

Immediately after the organization of this

Advisory Wage Board, investigations were made

under its direction by the Women’s Department

of the Industrial Commission, to determine the

cost of living of self-supporting women employes.

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Public hearings and final report

After the completion of these investigations,

public hearings were held in different sections

the state. At each of these hearings members

of the Advisory Wage Board were present, in

addition to the members of the Commission. Fol-

lowing these hearings all of the evidence was

considered by the Advisory Wage Board, and at

a meeting held on June 20, 1919, this Board

made its final recommendations to the Industrial

Commission. In accord with the final recom-

mendations made by the Advisory Wage Board,

the Industrial Commission on June 27, 1919,

adopted the minimum wage order No. 1 reading

as follows:

ORDER

1. No employer shall employ any exper-

ienced female or experienced minor employe

over 17 years of age, in any occupation,

trade, or industry throughout the state at a

wage rate of less than 22 cents per hour.

2. During the first three months of the

learning period, the wage paid shall not be

less than 18 cents per hour. During the

second three months of the learning period,

the wage paid shall not be less than 20 cents

per hour.

3. Permit children shall be paid a wage

of not less than 18 cents per hour. Permit

children between 16 and 17 years of age who

have completed three months in the industry

shall be paid not less than 20 cents per hour.

Permit children producing the same output

as employes in a higher wage classification

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shall be paid not less than the minimum

wage rate for such class.’

4. For the purpose of this order em-

ployes shall be deemed experienced after six

months of employment in the trade or in-

dustry, whether for the same employer or

for different employers. In seasonal indus-

tries operating only for a few months during

the year no learning period is recognized,

and all female and minor employes in such

industries shall be paid a wage of not less

than 22 cents per hour.

5. The total number of employes in any

establishment who receive wages below 22

cents per hour, but not including indentured

apprentices, shall not exceed 25% of the

total number of women and minor employes

normally employed.

6. Where board or lodging is furnished

by the employer as part payment of wages,

an allowance may be made therefor of not

more than $4.50 per week for board and $2.00

per week for lodging.

7. Where payment of wages is made

upon a piece basis or system other tian

time rate, the actual wage shall not be less

than that provided for in this order.

8. Every employer employing females or

minors shall keep posted a copy of this

order, on a form prescribed by the Commis-

sion, in a conspicuous place in the general

1This paragraph was amended on August 4, 1919, to read

as follows: “3. Minors between 14 and 16 years of age

shall be paid a wage of not less than 18 cents per hour.

Minors between 16 and 17 years of age shall be = not

less than 20 cents per hour, if they have been employed in

the industry for three months or mere; otherwise, they

shall be paid not less than 18 cents per hour. Minors pro-

ducing the same output as employes in a higher wage

classification shall be paid not less than the minimum wage

rate for such class.”

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work room and in the women’s dressing

rooms,

Operation of the order |

The living wage thus determined by the In-

dustrial Commission was made uniform through-

out the state. Very difficult questions at once

arose upon the application of the minimum wage

order to particular industries,

Difficulty in telephone industry

The most difficult of these problems was pre-

sented by the telephone industry. There are

over five hundred telephone companies with in-

dependent exchanges in Wisconsin and at least

forty-three of these have less than one hundred

telephones. At practically all of these exchanges,

no matter how small, some class of service is

rendered for twenty-four hours of the day. How-

ever, in the smaller exchanges this service is

intermittent, and even in many larger exchanges

there are but few night calls and the operators

get considerable periods of uninterrupted rest.

The principal question for determination was the

number of hours for which the telephone com-

panies should pay their operators.

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Telephone crder made

A final order was made in this matter on

Jan. 20, 1920, the underlying principle of which

was that the telephone company must pay their

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operators for all of the time which they can not

employ productively in some other work, while

the night operators must be paid for all of the

time they do not get uninterrupted rest (Order

No. 2).

The telephone order reads as follows:

1. Day Period. For the 16 hour period,

6 A. M. to 10 P. M. of the same day, tele-

phone exchanges shall pay their operators

as a ininimum for the number of hours indi-

cated in the following schedule:

SIZE OF EXCHANGE BASIS OF PAY

Under 200 telephones, pn of the time on

uty.

200-219 telephones, 12/16 of the time on

duty.

220-239 telephones, 15/16 of the time on

duty.

240-259 telephones, 14/16 of the time on

duty.

260-274 telephones, 15/16 of the time on

duty.

275 telephones and more, time on duty.

2. Night Rest Period. For the 8 hour

period 10 P. M. of one day to 6 A. M. of

the following day telephone exchanges shall

pay their operators for all of the time they

are subject to call which is not included

within the longest period of uninterrupted

rest which the operators get on at least two-

thirds of the nights they are on duty, but

no exchange having night service shall pay

its operators for a lesser number of hours

than is indicated in the following schedule:

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SIZE OF EXCHANGE BASIS OF PAY

Under 300 telephones, 2/8 of the time sub-

ject to eall.

300-499 telephones, 3/8 of the time sub-

ject to eall.

500-624 telephones, 4/8 of the time sub-

ject to call.

625-749 telephones, 5/8 of the time sub-

ject to eall.

750-874 telephones, 6/8 of the time sub-

ject to call.

875-999 telephones, 7/8 of the time sub-

ject to eall.

1000 telephones or more, time subject to

eall.

(ilustration: An exchange of 350 sub-

seribers in which the longest period of un-

interrupted rest on 2/3 of the nights is 5

hours or more, is required to pay for only

the minimum of 3 hours. If in such an ex-

change the longest period of uninterrupted

rest which prevails 2/3 of the time is only

+ hours, the exchange must pay its operators

for + hours; if the operators get only 2

hours of uninterrupted rest, they must be

paid for 6 hours.)

Difficulties in exchanges in private resi-

dences

3. In telephone exchanges which are lo-

cated in a private residence and operated by

the members of the household, the payment of

a wage for the operation of the switchboard

of 50e per month per phone, will be re-

garded as a compliance with the minimum

wage law, but if outside help is employed,

such help must be paid upon the basis out-

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lined in the first two paragraphs of this

order.

4. In determining the classification of an

exchange, all telephones for which switch-

ing is done must be counted, whether they

are those of subscribers of the company

owning the exchange, or those of some other

company.

5. All telephone companies not later than

March 1, 1920, shall make a report to the

Industrial Commission showing the schedule

of the hours of labor of their operators in

force on February 1, 1920, the wage rates

which they paid to each of these operators

on that date, and all adjustments they have

made of any back pay which may be due to

their women and minor employes under

General Order Number 1, made pursuant to

the minimum wage law, which became ef-

fective August 1, 1919. Upon application,

the commission will consider what is a fair

adjustment of the pay of operators in ex-

changes located in separate offices which

have less than 100 telephones, for the six

months period from August 1, 1919, to Jan-

uary 31, 1920, and will deal with this prob-

lem by special orders.

Difficulties in hospitals and sanitariums

In addition to the telephone industry, there

were other industries that required modification

of the minimum wage law because of the peculiar

conditions existing in such industries. In hos-

pitals and sanitariums the question of the num-

her of hours for which compensation should be

paid arose. After a public hearing, the Advis-

ory Wage Board recommended, and the Com-

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mission adopted, an order requiring that the at-

tendants should be paid a minimum wage for

fifty-five hours per week as a maximum (Order

§ No. 3).

Sweat shop workers

The Commission also issued an order provid-

ing that home workers, or sweat shop workers

so-called, shall be paid such piece rates as shall

yield the women and minor employes of the same

employers who are of average ability and are

employed in the factory, a minimum wage (Order

No. 4).

Difficulties in tobacco stemming warehouses

: In the tobacco stemming warehouses of the

state it was found that a much larger percentage

of elderly women was employed than in other

industries. In lieu of the minimum wage com-

puted on the hourly basis, tobacco warehouse

‘owners were authorized to pay three and one-

half cents per pound for stripping tobacco

(Order No. 6).

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Difficulties with learners in beauty parlors

Learners in beauty parlors were declared not

subject to the minimum wage during the first two

months (Order No. 7). This concession was

granted on the grounds that the training re-

ceived was peculiarly valuable and that the learn-

ers were of practically no value to the establish-

ment during the first two months.

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Petition for new orders and new investigations

On November 18, 1920, the Wisconsin Federa-

tion of Labor, the Central Council of Social

Agencies of Milwaukee, and the Wisconsin Con-

sumers League filed a new petition asking the

Commission to revise the order and establish a

minimum wage ‘‘more commensurate with a

proper living standard.’’ After the filing of this

petition, investigations as to the changes in the

cost of living since the adoption of the first order

were made by the Women’s Department of the

Commission and hearings were held at the var-

ious points as to the cost of living in various sec-

tions. At the conclusion of the hearings, the Ad-

visory Wage Board unanimously recommended

to the Commission that the minimum wage rate

should be fixed at twenty-five cents per hour in

all cities with a population of five thousand or

over, and at twenty-two cents per hour in cities,

towns and villages with a lesser population.

Revised minimum wage orders

In accordance with this recommendation, the

Industrial Commission on June 28, 1921, issued

revised minimum wage order No. 1 as follows:

DEFINITIONS

1. An ‘‘experienced’’ employe is one whe

has worked six months or more in the trade

or industry, whether for the same employer

or different employers. Other employes are

classified as ‘‘inexperienced.”’

A ‘seasonal industry’’ is one which reg-

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ularly operates only a few months or less

during the year.

The clause ‘‘cities with a population of

5,000 or more’’ includes communities and

isolated establishments which are within the

industrial area of such cities, although out-

side their territorial limits.

In determining the population of cities,

the census of 1920 is controlling. :

WOMEN EMPLOYEES 17 AND OVER—BOYS OVER 17

2. No employer shall employ any female

over 17 years of age or any boy between 17

and 21 years of age in any occupation, trade,

or industry, not a seasonal industry, at a les-

ser hourly rate than is indicated below:

Experienced employes in cities with

a population of 5,000 or more.. 25c

Experienced employes elsewhere... 22c

Inexperienced employes during the

first 3 months in the industry. 16¢

Inexperienced employes during the

second 3 months in the industry 20c

BOYS AND GIRLS, 14 AND 15 YEARS OF AGE

3. Minors between 14 and 16 years of

age shall be paid a wage of not less than

16e per hour during the first year of their

employment in any occupation, trade, or in-

dustry, not a seasonal industry, and 20e per

hour thereafter.

Minors between 16 and 17 years of age

shall-be paid a wage of not less than 20e per

hour if they have been employed in the in-

dustry for six months or more; otherwise

they shall be paid not less than 16¢ per hour.

Minors producing the same output as em-

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ployes in a higher wage classification shall

be paid not less than the minimum wage rate

for such class.

SEASONAL INDUSTRIES

4. In seasonal industries ail female and

minor employes must be paid not less than

25e per hour in cities having a population of

5,000 or more, and not less than 22e per hour

in other parts of the state.

LIMITATION UPON NUMBER OF LEARNERS

5. The total number of employes in any

establishment who receive wages below those

prescribed for experienced employes in sub-

division 2 of this order, but not including

indentured apprentices, shall not exceed 25

per cent of the total number of women and

minor employes normally employed.

ALLOWANCE FOR BOARD AND LODGING

6. Where board and lodging is furnished

by the employer as part payment of wages,

an allowance may be made therefor of not

more than $5.25 per week for board and

$2.50 per week for lodging in cities with a

population of 5,000 or more and of not more

than $4.50 per week for board and $2.00 per

week for jodging in other parts of the state.

PAYMENT OF WAGES ON OTHER THAN TIME BASIS

7. Where payment of wages is made upon

a basis or system other than time rate, the

actual wage shall not be less than provided

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for in this order, but if the piece rates paid

for any particular kind of work yield to 75

per cent of the experienced women and

minor employes over 17 years of age em-

ployed thereon three cents per hour more

than the rate prescribed for such employes

in sub-division 2 of this order, then such

piece rates are deemed adequate for such

experienced employes and differences be-

tween earnings at these rates and the pre-

scribed hourly rates do not have to be made

up by the employer.

RECORDS TO BE KEPT BY THE EMPLOYER

8. Each employer shall keep for the in-

spection of the commission and its deputies

records showing the following facts, eoneern-

ing each female and minor employe:

1, Name and address.

2. Age.

Date of birth of all minors.

4. Date of entering and leaving em-

ploy and cause of leaving.

®. Experience at date of entering.

6. Time of beginning and ending each

day and total number of hours worked

per day.

7. Wages paid, per payroll period.

8. Output of employe, if production

records are kept.

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POSTING OF ORDER

9 Every employer employing females or

minors shall keep posted a copy of this

order, on a form prescribed by the com-

mission, in a conspicuous place in the gen-

2: &SssS*”” seated

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eral workroom and in the women’s dressing

rooms.

WHEN EFFECTIVE

10. This order shall become effective Au-

gust 1, 1921.

This order and special orders referred to above

are in force at the present time.

EXTENT OF THE LAW

The law covers all women and minors who are

in receipt of or are entitled to any compensation

for labor performed for any employer. As nearly

as can be estimated from the United States Cen-

sus Reports there are one hundred eighty-two

thousand females engaged in gainful occupations,

and eighty-two thousand males under twenty-

one years of age gainfully employed. The only

class of employes exempted are apprentices duly

indentured under the supervision of the Indus-

trial Commission,

EFFECTS

REPORT OF INDUSTRIAL COMMISSION TO

ATTORNEY GENERAL OF WISCONSIN,

FEBRUARY 10, 1923

General

Because of the fact that a statistical study

Was not made of the wages paid female and

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minor employes prior to the date the first min-

imum wage order went into effect, an exact sta-

tistical statement of the effect of the minimum

wage can not be made. However, some of the

results have been so obvious that the Commis-

sion feels warranted in making certain definite

statements regarding the results of the law.

In April, 1921, and April, 1922, a study was

made of wages paid minors and female employes.

The 1921 study covered 32,689 such employes,

and the 1922 study covered 46,998. These studies

showed that the minimum wage effective August

1, 1919, as well as the one established August 1,

121, was considerably below the market wage.

The following tabulation brings out this fact:

Hourly Wage 1921 1922

Less than 22 cents .... 35.1% 6.5%

oe ae 13.3% 1.1%

ee ORGS daca vase 23.4% 33.5%

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oe 58.2% 52.9%

Nevertheless, the minimum wage law has been

a potent cause in raising the lower end of the

wage seale to the level of the cost of living. In

certain industries, the entire wage level has been

affected.

These industries are tobaceo stemming, smal!

telephone exchanges, stores in the rural dis-

tricts, and small cities, and home work manufac

ture.

Tobacco stemming warehouses

It was found that tobacco stemming gives em-

ployment to an unusually large number of el-

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derly women, many of whom are inefficient. On

the other hand, it was found that the piece rates

paid in most of the warehouses were so low

that many other employes, in addition to the

elderly women, were unable to make a_ living

wage. After a conference with the officers of

the companies which control most of the ware-

houses in the state, an agreement was reached

that would permit all tobacco stemming ware-

houses to pay their women and minor employes

either the time rates prescribed in the minimum

wage act No. 1 or hte piece rate of 3 1/2e per

pound which was one-half cent per pound more

than the rate paid at most of the warehouses.

After this rate was formally adopted as the

minimum wage order No. 6, reports were re-

quired from all the tobacco warehouses to make

certain that back pay to August 1, 1919, was

given to all women and minor employes who

were paid less than the time rates of minimum

wage order No. 1. Up to July 1, 1920, no less

than 1442 women had been given back pay total-

ing $5,564.76.

Pea canneries

The situation in pea canneries is somewhat

similar to that existing in tobacco stemming.

That is, the work is highly seasonal and a large

number of women are employed who ordinarily

lo not work outside the house. Thus, a supply

of labor is tapped which is not available for reg-

ular employment and which may be induced to

accept a low wage. In 1919, just prior to the es-

CLM

o

22

tablishment of the minimum wage of 22 cents an

hour, 28 of the 90 pea canneries in the state paid

some of their workers less than that amount.

Telephone exchanges

The wages in small telephone exchanges, par-

ticularly in the rural districts have heretofore

probably been lower than in any other industry.

The margin of profit of the employing companies

has been small, and in many instances, being co-

operative, they have not been conducted for profit

at all.

Up to July 1, 1920, the Commission through

correspondence and visits of deputies succeeded

in recovering for 206 women and minor telephone

operators a total of $22,439.23 as back pay. From

July 1, 1920, to July 1, 1922, additional baek pay

was recovered for 171 women and minors in the

amount of $9,653.55. The increase in wages of

some operators as a result of the minimum wage

law has been more than 100 per cent and for the

industry as a whole has probably exceeded

33 1/3%.

Stores

Stores in the towns, villages, and very small

cities of the state, it was found, were paying less

than the minimum wage in a great many in-

stances. Some of the strongest opposition to the

minimum wage law came from the proprietors

of such stores. No tabulation has been made of

the back pay collected in these stores.

Even in the stores of the larger cities because

. —

23

of the long number of hours worked, it was

found that the weekly wage reduced to an hourly

basis did not yield the minimum wage. The ef-

fect was to reduce the number of hours that the

stores were kept open. Instead of keeping open

two or three nights a week, the stores closed ex-

cept perhaps on Saturday nights. However,

in many towns of the state stores, exclusive

of butcher shops and grocery stores, do not

keep open any nights. During the summer, many

dry goods stores and stores employing a consid-

erable number of women close Saturday after-

noons. The Commission therefore feels war-

ranted in making the statement that besides rais-

ing wages in the stores, it has also reduced the

number of hours worked by women and minors in

such stores.

In some of the ‘‘chain’’ stores, wages were

found to be exceedingly low, because of the fact

that managers were allowed only a_ certain

amount out of which they were obliged to pay

the wages of clerks. The inevitable tendency

was to depress wages to the utmost.

Home work or sweat shop system

The greatest evil of home work or sweat shop

work is low wages. An investigation made in

July, 1920, showed that eighteen per cent earned

less than ten cents an hour, fifty-four per cent

from ten to twenty cents an hour, twenty-two per

cent from twenty to thirty cents per hour and

six per cent over thirty cents. The minimum

wage law of Wisconsin clearly covers the home

24

work. However, it is a very difficult matter to

apply the law because this work is done at odd

times and no record is kept of the hours of labor.

The Commission, therefore, adopted an order

providing that home workers must be paid

piece rate which enables piece workers in the fac-

tories of average ability to earn a common

wage. Where work is done at home which is

not done at all in the factories, employers must

determine what is the fair rate made in the fae-

tories where accurate time records are possible.

Before issuing a license to engage in home work,

the Commission makes a study of piece rates to

determine whether they will yield the minimun

wage.

Sweat shop system drives industry out of state

It is only in home work manufacture that the

Commission has ever observed that industry was

forced out of or kept out of the state, as is so

frequently charged. Babies’ handmade knitted

wear is made to a large extent in New York

sweat shops. These articles are sold at a very

low price and several prospective manufacturers

have come to the Commission for permission to

employ home workers on this class of work at

less than the minimum wage, contending that

they can not compete with the Eastern product.

At the present time there is only one manufac-

turer who has received a permit to give out

homework of this kind and the kind of work he

gives out is high class sample work. However,

the Commission feels that the best interests of

25

the state are being conserved by the exclusion

of a parasitic industry of this character.

Wisconsin factory-made knitted product not

hampered in competition

On the other hand, the factory-made knitted

product in this state is able to compete with the

product of any other state. The census of man-

afacturers for 1919 shows that the number of

knitting factories in this state increased from 68

to 72; the average number of wage earners in

such factories increased from 6,244 to 8,736 and

the cost of the product increased from $13,292,-

305.00 to $40,778,000.00 since 1914.

FURTHER EFFECTS

Learners more rapidly developed

In addition to the effects observed in specific

industries as outlined above, the Commission has

found that the minimum wage law has had the

effect of more rapidly developing learners in

given trades. Because of the fact that an em-

ployer must pay the minimum wage, he tries to

develop a learner to the highest point of ef-

ficiency as soon as possible.

No displacement of women by men

There has not been a displacement of women

by men because of the minimum wage law. This

is apparent from the fact that the demand for

26

women workers at the Milwaukee employment

office has increased relatively faster than the

demand for men workers, since the establish-

ment of the minimum wage law. The percentage

of calls for female help as compared with the

total number of calls for help were as follows for

the last four fiscal years:

For the year ending June 30, 1919. .20.9%

For the year ending June 30, 1920. .27.2%

For the year ending June 30, 1921. .29.9%

For the year ending June 2), 1922. .31.7%

Minors not replaced by adults

It may further be stated that the minimum

wage per se has not resulted in a replacement of

minor employes by adults. During the fiscal

year ended June 30, 1919, which was immediately

prior to the establishment of the first minimum

wage in this state, there were 21,444 child labor

permits issued. During the fiscal year ended

June 30, 1920, which is immediately subsequent

to the starting of the minimum wage, there were

25,333 child labor permits issued.

PI I Re ae

TIS rd a

eee. FEAL IARESY

INDEX OF POINTS AND CITATIONS.

POINTS.

Beneficial effects of the Kansas statutes concerning minimum wages for

REE eet STE LET PEELE ER TERETE ERT ETT

CITATIONS.

The Kansas statute regulating wages, hours and conditions of labor for

es Pas pT hE SAS As Da Nh Os ecbnbnddecne

Chapter 275, Laws of Kansas, 1915, which is also set forth in sections 10495

to 10515, inclusive, General Statutes of Kansas, 1915...................

Amendment to the foregoing by chapter 263, Laws of Kansas, 1921, trans-

ferring administrative power from the Industrial Welfare Commission

DRM CONS OE BEMCRUOBGTERL ECOIALIOMS. .. oo cocci cc ccc ec ce ce ceceecowsess

Chapter 29, Laws of Kansas, 1920, establishing the Court of Industrial

ee ek Chew hen 65 Nb 56.6 0004066 Rb Os DA CSRnS 666068

The Topeka Laundry Company v. The Court of Industrial Relations of

the state of Kansas et al., No. 45154, in the district court of Shawnee

RE nS eer ree

The Topeka Packing Company v. Court of Industrial Relations of the

State of Kansas ef al.. No. 45155, in the district court of Shawnee

ait wi Wik s 0s 4's O00 S 5505S O00 000.085 0 denne ee

The decision of the district court of Shawnee county, Kansas in the two

ee LL ed Sew ty ch ash eb bb0.b 00600 ese Rb SONS

The Court of Industrial Relations of the State of Kansas v. The Charles

Wolff Packing Company, No. 23702, 109 Kan. 629, 643.................

The foregoing case, under the title of The Charles Wolff Packing Company

v. the Court of Industrial Relations of the State of Kansas, No. 739,

October Term, 1922, set for argument in this court, April 23, 1923......

PAGE

—

Iu the Supreme Court

of the United States.

OCTOBER TERM, 1922.

Jesse C. ApkINs et al., constituting THe Minimum Wace Boarp or

THE District oF CoLuMBIA, Appellants,

vs.

THe CHILDREN’s HospitaL oF THE District or CotumsBtia, a Cor-

poration.

No. 795.

Jesse C. ApKINs et al., constituting Tut Minimum Wace Boarp oF

THE District or CotuMBt1A, Appellants,

VS.

Witurr A. Lyons.

No. 796.

BRIEF FOR THE STATE OF KANSAS.

This brief is filed by leave of court because of the interest of the

state of Kansas in the questions presented in these cases.

There is a statute of Kansas regulating the subject of wages, hours

and conditions of labor of women in industrial occupations. It was

enacted in 1915—chapter 275, Laws of Kansas, 1915—and is also

set forth in sections 10495 to 10515, inclusive, General Statutes of

Kansas, 1915. This was amended by chapter 263, Laws of Kansas,

1921. In the original act powers of administration were vested in an

Industrial Welfare Commission. By the act of 1921 these powers

were transferred to the Court of Industrial Relations. The latter

body was created by chapter 29, Laws of Kansas, 1920, which act

taken alone covered labor controversies in occupations affected with

a public interest.

By the act of 1915 as amended in 1921, the Court of Industrial

Relations is given authority to fix a minimum scale of wages for

(3)

4

women engaged in industries. This power was formerly vested in

the Industrial Welfare Commission.

Under this legislation orders have been made fixing minimum

rates of wages for women from time to time since the statute oi

1915 took effect, and such orders have been enforced.

By Industrial Welfare Order No. 12, of May 19, 1922, relating to

women employees in laundries, dyeing, dry cleaning and pressing

shops, nine hours was fixed as a maximum for a day’s work and

forty-nine and a half hours as a maximum for a week’s work, with

some exceptions both as to a day’s work and a week’s work, allow-

ing overtime in cases of emergency. Minimum wages of women

employees in such places were fixed at $11 per week, where they

had served six months’ apprenticeship. The apprenticeship period

was divided into two spaces of three months each, and the minimum

wages for the first three months were $7.50 per week and for the

second three months $9 per week.

By Industrial Welfare Order No. 13, May 19, 1922, concerning

women employees in manufacturing occupations, nine hours was

fixed as a maximum for a day’s work and forty-nine and a hall

hours for a week’s work, with some exceptions, allowing overtime

in cases of emergency.

Minimum wages were fixed at $11 per week for those who had

served an apprenticeship. Lower wages were fixed for the period of

apprenticeship, varying from $6.50 per week to $9 per week, accord-

ing to the variety of the occupation and period of service.

The validity of these two orders fixing minimum wages was con-

tested on constitutional grounds in two cases in the district court of

Shawnee county, Kansas, of The Topeka Laundry Company, a cor-

poration, plaintiff, v. The Court of Industrial Relations of the State

of Kansas et al., defendants, No. 45,154; and The Topeka Packing

Company, a corporation, plaintiff, v. The Court of Industrial Rela-

lations, State of Kansas, et al., defendants, No. 45,155. On Septem-

ber 20, 1922, the district court rendered a decision in those cases,

upholding the validity of the two orders. .

In the case of the Court of Industrial Relations, plaintiff, v. The

Charles Wolff Packing Company, defendant, No. 23,702, 109 Kan.

629, opinion filed October 8, 1921, other questions were presented

to the court than those here involved, including the validity of some

provisions of chapter 29, Laws of Kansas, 1920, above referred to,

and the validity of an order of the Court of Industrial Relations fix-

ing minimum wages of both men and women in a meat-packing

oo .

plant, which by the statute was declared to be affected with a public

interest. The court in its reasoning in the opinion stated, “Laws

fixing minimum wages and hours of labor for women are justified

on moral and physical grounds,” and cited cases where the estab-

lishment of minimum wages for women had been held valid. (109

Kan. 643.)

The decision in the last case, which was on other questions than

those here presented and sustained the validity of the order made by

the Court of Industrial Relations, is before this court in that case,

pending on writ of error, set for argument April 23, 1923, entitled

The Charles Wolff Packing Company v. The Court of Industrial

Relations of the State of Kansas, No. 739, October term, 1922.

Before the enactment of the statute of 1915, the wages paid a

large proportion of the women laboring in Kansas industries were

below the amount ‘absolutely necessary for their support. Soon

after the statute took effect, orders were made thereunder which

fixed minimum wages above the minimums they had been receiving.

and subsequent orders were made from time to time as prices ad-

vanced. At present the wages received by women in Kansas in-

dustries are substantially higher, compared to living cost, than they

were before the statute of 1915 took effect. Part of this increase has

been caused by the general advance in prices and the increased de-

mand for women’s labor, as a result of the World War and the par-

ticipation of the United States therein. Part of the increase has

been caused by orders made under the statute. The effect of the

operation of the statute and the orders made thereunder, has been

to establish minimum wages which at least afford women workers

sufficient to pay their economical and absolutely necessary living

expenses. The legislation has given general satisfaction in the state

and is strongly and steadfastly supported by public opinion. Be-

fore the statute, many women workers in industries were not fully

self-supporting after the apprenticeship stage, although their work

was adequate in amount and well done. The insufficiency of their

wages was not due to any deficiency in their labor, but was caused

by economic pressure against those workers who were not in a posi-

tion to contend against it. By the unpaid portion of their labor they

helped to support the industries or to give lower rates to the cus-

tomers of their employers, or both. It was a tribute they were forced

to pay to others for the privilege of earning a partial maintenance.

No doubt there is something yet to be accomplished in the adminis-

tration of the law, but it has diminished a glaring injustice, and has

i. ll

5

6 io a

helped competent women workers, doing a full day’s work, toward

earning their own bare support.

If the protection thus afforded by the state should be abandoned,

there would be a relapse in great part to the former unfair and

oppressive situation. The ballot which is now possessed by women

can only help their condition as workers by means of laws and their

enforcement. It is of no avail in the direct industrial struggle,

although it is of potency in procuring state regulation.

The number of lines of work in industries which can be done by

women is limited. Those classes of work which they are adapted

to they in the main perform as well or better than men, but they

do not have the range of occupations afforded to men. They are

more tied to their homes and families and are not usually free to

seek for employment at any other place than their home towns.

They do not have the strength or assertion to contest effectively

with their employers for better pay or conditions. Their industrial

salvation must come, if at all, from the state. The law has always

in various forms recognized their disadvantages, and has to some

extent in the past protected them against overreaching and impo-

sition. In recent times, in this country, there has been great im-

provement in their conditions, but the law still recognizes the weak-

ness of their sex. The legislation in many of the states to regulate

the hours and conditions of labor and the minimum wages of women

has been enacted te protect them against injustice, deprivation and

oppression, and has been helpful.

There can be no fundamental right of an employer to obtain any

part of the labor of women for which he does not pay. The con-

venience and profits of employers and cut prices to consumers must

yield to the just requirement that women workers. should receive

sufficient pay for competent and adequate labor to afford them

bare self-support. The interests of society call for the enforce-

ment of this principle. Respectfully submitted,

JOHN G. EGAN,

Assistant Attorney-general of the State of Kansas.

O

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