Laws Regulating Working Conditions and Wages.

As noted, even during the Lochner era, the Due Process Clause was construed as permitting enactment by the states of maximum hours laws applicable to women workers104 and to all workers in specified lines of work thought to be physically demanding or otherwise worthy of special protection.105 Similarly, the regulation of how wages were to be paid was allowed, including the form of payment,106 its frequency,107 and how such payment was to be calculated.108 And, because of the almost plenary powers of the state and its municipal subdivisions to determine the conditions for work on public projects, statutes limiting the hours of labor on public works were also upheld at a relatively early date.109 Further, states could prohibit the employment of persons under 16 years of age in dangerous occupations and require employers to ascertain whether their employees were in fact below that age.110

The regulation of mines represented a further exception to the Lochner era’s anti-discrimination tally. As such health and safety regulation was clearly within a state’s police power, a state’s laws providing for mining inspectors (paid for by mine owners),111 licensing mine managers and mine examiners, and imposing liability upon mine owners for failure to furnish a reasonably safe place for workmen, were upheld during this period.112 Other similar regulations that were sustained included laws requiring that underground passageways meet or exceed a minimum width,113 that boundary pillars be installed between adjoining coal properties as a protection against flood in case of abandonment,114 and that wash houses be provided for employees.115

One of the more significant negative holdings of the Lochner era was that states could not regulate how much wages were to be paid to employees.116 As with the other working condition and wage issues, however, concern for the welfare of women and children seemed to weigh heavily on the justices, and restrictions on minimum wages for these groups were discarded in 1937.117 Ultimately, the reasoning of these cases was extended to more broadly based minimum wage laws, as the Court began to offer significant deference to the states to enact economic and social legislation benefitting labor.

The modern theory regarding substantive due process and wage regulation was explained by Justice Douglas in 1952 in the following terms: “Our recent decisions make plain that we do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare. The legislative power has limits. . . . But the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws are avoided.”118

The Justice further noted that “many forms of regulation reduce the net return of the enterprise. . . . Most regulations of business necessarily impose financial burdens on the enterprise for which no compensation is paid. Those are part of the costs of our civilization. Extreme cases are conjured up where an employer is required to pay wages for a period that has no relation to the legitimate end. Those cases can await decision as and when they arise. The present law has no such infirmity. It is designed to eliminate any penalty for exercising the right of suffrage and to remove a practical obstacle to getting out the vote. The public welfare is a broad and inclusive concept. The moral, social, economic, and physical well-being of the community is one part of it; the political well-being, another. The police power which is adequate to fix the financial burden for one is adequate for the other. The judgment of the legislature that time out for voting should cost the employee nothing may be a debatable one. It is indeed conceded by the opposition to be such. But if our recent cases mean anything, they leave debatable issues as respects business, economic, and social affairs to legislative decision. We could strike down this law only if we returned to the philosophy of the Lochner, Coppage, and Adkins cases.”119

Footnotes

104
Miller v. Wilson, 236 U.S. 373 (1915) (statute limiting work to 8 hours/day, 48 hours/week); Bosley v. McLaughlin, 236 U.S. 385 (1915) (same restrictions for women working as pharmacists or student nurses). See also Muller v. Oregon, 208 U.S. 412 (1908) (10 hours/day as applied to work in laundries); Riley v. Massachusetts, 232 U.S. 671 (1914) (violation of lunch hour required to be posted). back
105
See, e.g., Holden v. Hardy, 169 U.S. 366 (1898) (statute limiting the hours of labor in mines and smelters to eight hours per day); Bunting v. Oregon, 243 U.S. 426 (1917) (statute limiting to ten hours per day, with the possibility of 3 hours per day of overtime at time-and-a-half pay, work in any mill, factory, or manufacturing establishment). back
106
Statute requiring redemption in cash of store orders or other evidences of indebtedness issued by employers in payment of wages did not violate liberty of contract. Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901); Dayton Coal and Iron Co. v. Barton, 183 U.S. 23 (1901); Keokee Coke Co. v. Taylor, 234 U.S. 224 (1914). back
107
Laws requiring railroads to pay their employees semimonthly, Erie R.R. v. Williams, 233 U.S. 685 (1914), or to pay them on the day of discharge, without abatement or reduction, any funds due them, St. Louis, I. Mt. & S.P. Ry. v. Paul, 173 U.S. 404 (1899), do not violate due process. back
108
Freedom of contract was held not to be infringed by an act requiring that miners, whose compensation was fixed on the basis of weight, be paid according to coal in the mine car rather than at a certain price per ton for coal screened after it has been brought to the surface, and conditioning such payment on the presence of no greater percentage of dirt or impurities than that ascertained as unavoidable by the State Industrial Commission. Rail Coal Co. v. Ohio Industrial Comm’n, 236 U.S. 338 (1915). See also McLean v. Arkansas, 211 U.S. 539 (1909). back
109
Atkin v. Kansas, 191 U.S. 207 (1903). back
110
Sturges & Burn v. Beauchamp, 231 U.S. 320 (1913). back
111
St. Louis Consol. Coal Co. v. Illinois, 185 U.S. 203 (1902). back
112
Wilmington Mining Co. v. Fulton, 205 U.S. 60 (1907). back
113
Barrett v. Indiana, 229 U.S. 26 (1913). back
114
Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914). back
115
Booth v. Indiana, 237 U.S. 391 (1915). back
116
Adkins v. Children’s Hospital, 261 U.S. 525 (1923); Stettler v. O’Hara, 243 U.S. 629 (1917); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). back
117
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (overruling Adkins v. Children’s Hospital, 261 U.S. 525 (1923), a Fifth Amendment case); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). back
118
Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952) (sustaining a Missouri statute giving employees the right to absent themselves for four hours while the polls were open on election day without deduction of wages for their absence). The Court in Day-Brite Lighting, Inc. recognized that the legislation in question served as a form of wage control for men, which had previously found unconstitutional. Justice Douglas, however, wrote that “the protection of the right of suffrage under our scheme of things is basic and fundamental,” and hence within the states’ police power. back
119
342 U.S. at 424–25. See also Dean v. Gadsden Times Pub. Co., 412 U.S. 543 (1973) (sustaining statute providing that employee excused for jury duty should be entitled to full compensation from employer, less jury service fee). back