I recently posted about how the world has changed in the decades since workers' compensation came to Florida in 1935. Florida was not among the first states to adopt this abrogation of the common law. In fact, we were among the last. Perhaps the legislators were sitting about in the 1920s and essentially reassuring each other "this is just another fad?"
In The 1979 Response and History, I concluded that Florida workers have gained much over the last 87 years. I noted a couple of federal laws that enhanced the safety and bargaining power of employees. I mentioned child labor laws. Many do not recall that the Keating- Owen Child Labor Act passed in 1916. It took years to shepherd through the legislative process.
What many do not know is that the United States Supreme Court concluded that the law was unconstitutional. Hammer v. Dagenhart, 247 U.S. 251 (1918). The Court in Hammer was Justices White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandies, and Clarke. The Court in those days took a bit less expansive view of the Interstate Commerce Clause, and there was some respect for and deference to the ability of states to regulate activities and issues within a state. The evolution of child labor in the courts, from Hammer on is interesting.
Then, in 1938, the Fair Labor Standards Act (FLSA) was passed. In U.S. v. Darby, 312 U.S. (1941) the United States Supreme Court unanimously concluded that the same Interstate Commerce Clause did empower Congress to regulate child labor and a variety of other constraints within states. This was a reversal of Hammer and other cases, and a stark reversal of the respect for federalism demonstrated previously. The Court in Darby was Justices Hughes, Stone, Roberts, Black, Reed, Frankfurter, Douglas, and Murphy. In the 23 years since Hammer, the justices had all been changed. The Commerce Clause had not.
Some cynics might say the only thing that changed was the members of the Court. The Court relied heavily upon Gibbons v. Ogden, 22 U.S. 9 (1824), one of the early Commerce Clause cases. Of course, Gibbons predated Hammer by almost a century, and thus was precedent when Hammer was decided. The Court in Darby explained that it really did not matter whether goods were ever shipped in interstate commerce. It noted that some goods might be intended or expected to be moved in interstate commerce following manufacturing, but that intent was not the critical issue. Instead, the overall impact or effect of goods on interstate commerce rendered regulation of the employee/employer relationship within the authority of Congress. This reading renders virtually every good and service subject to federal authority.
Imagine what people would say today if the Supreme Court overruled a case perceived as clear precedent and reached a seemingly opposite conclusion. Perhaps business owners back in 1941 were marching on the Capitol to protest Darby and insist on their rights under Hammer? Of course, within a year, "some people did something," a great many Americans perished at Pearl Harbor, and the country was plunged into a war that challenged American resolve, business, and citizenry perhaps as never before. If there had been protests, perhaps a great national urgency quelled any dissent about this expansion of the Commerce Clause's reach?
So, for about 84 years, child labor in the U.S. has been regulated at the federal level, and thus largely uniform (states can always provide greater protection than the baseline in a federal law). Many who speak publicly on workers' compensation remind us periodically of the Triangle Shirt Waist fire in New York. There is sound basis to argue we have workers' compensation in large part due to that tragedy.
Notably, however, that facility, according to History.com, "was a true sweatshop," in which "nearly all the workers were teenaged girls who did not speak English and worked 12 hours a day, every day." But, the world has changed. Perhaps the drive for child labor laws was similarly driven by the tragedy in New York and the deaths of so many young workers at the Triangle factory (not really a factory, but a production facility located in essentially an office building in New York City).
In July 2022, MSN ran a story regarding a little town, Luverne, Alabama. The town made the news when a thirteen-year-old "Guatemalan migrant" briefly disappeared there. This led to the allegation "that she and her two brothers, aged 12 and 15, were not attending school and (instead were( working at" a "metal stamping plant" in Luverne, "which supplies parts for the Hyundai assembly line in nearby Montgomery."
The FLSA says that 12 and 13-year-olds may only work in non-hazardous jobs on farms with their parents. It says that 14 and 15-year-olds can work in "jobs not declared hazardous by the Secretary of Labor. But, all of this is allowed only "outside of school hours." Thus, there are allegations of violations of child labor laws in Alabama in 2022. In any business environment, it is perhaps possible that some aberration might occur and an underage person might gain access surreptitiously. But, that is harder to fathom as regards 12, 13, and 15-year-olds. One might also wonder how truancy laws and the schools did not bring this to light.
There are those who are quoted in the story verifying the allegations. One claims that there "were around 50 underaged workers working at the facility." Thus, there is some inference that this was not an aberration(s) or exception, but a systemic failure. The car company, however, "denies any allegation that it knowingly employed anyone who is ineligible for employment." The truth, perhaps, will require some time to ascertain with confidence. It is imperative to remember that allegations are easy to make and in the end what matters is what is proven.
Whether the workers' compensation laws are better today than when this grand bargain began in the early 20th century is open for debate and discussion. There are a great many protections in place for workers, as noted in The 1979 Response and History. Despite all of that, and the FLSA, is it possible that children are working in factories right here in the United States? If so, are we bothered by the implications of this in a supply chain? See Supply Chain Slavery (October 2020).
Beyond that, are people ready to accept that periodically the United States Supreme Court concludes that its prior course and precedents are not appropriate and that some adjustment is necessary through receding from or overruling such decisions? If that is practical to consider, there is some reason to wonder if the present Court might overrule Darby at some point, retreat to Hammer, and afford dignity and respect to the concept of limited powers of the federal government and the commitments of the plain meaning of the Tenth Amendment to the Constitution.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Much of where we are as a nation is rooted in our laws, including federal, state, and local. We may perceive that various people respect such laws or not, and we may complain when we perceive someone as not following the laws. But, might it be that our laws are not perfect, and in some instances not appropriate? The Supreme Court so decided in Darby. Other examples might spring to mind. In the end, there is value in stability and predictability, but that value has to be balanced at times against what is right.
The process of judicial review is challenging. It is not found in the constitution but was invented by the Court and assumed near the time of our nation's birth. Marbury v. Madison, 5 U.S. 137 (1803). That the Court must determine constitutionality is deeply rooted, and subject to the potential flaws of human imperfection. Do we worship stare decisis for the stability, or will the courts re-examine their precedent? Was the Court right in Darby, or in Hammer? Does anyone care? These are indeed interesting times.
