Labor and Commerce
THE FAIR LABOR STANDARDS ACT, U.S.A., 1937–1938
WHY BOTHER to name an act “fair”? Who would intend anything else? The naming of the Fair Labor Standards Act of 1938, the source of modern minimum wage policy in the United States, was itself a clue that a constitutional preemptive strike as well as a political achievement was planned. Due process called for fair procedures. Adkins had hinted that a fair wage might be constitutional. And federal antitrust legislation had won judicial approval with the argument that the Commerce Clause of the Constitution allowed Congress to establish the rules of fair competition. Administration lawyers seeking a basis for a federal minimum wage had ample reason for placing fairness at the forefront of their case and at the head of their title. The everyday meaning of fairness as justice barely entered either legal or political debate over the act. It was a technical, constitutional sense of fairness that gave the new policy its name. 1
The FLSA found constitutional authority in the federal power to regulate commerce between the several states. The preamble to the act declared that “the existence … of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general wellbeing of workers” variously: 1) used the medium of commerce to spread such conditions more widely; 2) burdened commerce itself and inhibited its free flow; 3) constituted unfair competition; 4) led to labor disputes (with all the above lamentable secondary effects); and 5) interfered with the orderly and fair marketing of goods. This was the rhetoric of the Webbs' paradigm of sweating, seeking fair economic processes, not of the original NCL model minimum wage law: “The welfare of the State of — demands that women and minors be protected from conditions of labor which have a pernicious effect on their health and morals.” 2 The shift from police power to due process arguments after Adkins had diverted attention from gender issues. Passage of the FLSA completed the process as “commerce, ” and “employees” within commerce, became the named targets of minimum wage policy.
The FLSA apparently solved problems of definition and coverage that had dogged the campaign for the past thirty years: the act applied to “labor, ” not just to women or even only to sweated labor; indeed, gender discrimination was specifically barred; it was national, eliminating the need for forty-eight separate campaigns and the problems caused by the disparities between states; it set a flat-rate wage, escaping the problematic and highly political task of calculating “living” or “fair” wages; and its premise of universality meant that exemptions had to be argued out of coverage, whereas previously each occupation had been argued into coverage by state wages boards.