Saturday, August 24, 2013

The High Cost of Judicial Legislation

The decision of the Supreme Court in the Mount Clemens Pottery case on June 10 has brought on union claims for alleged unpaid wages that could completely ruin great American industries. We can find the simplest way to extricate ourselves from this “portal-to-portal” mess by retracing the legislative and judicial blunders that got us into it.

The Fair Labor Standards Act of 1938 prescribes a minimum hourly wage of 40 cents. But it goes on to provide that an employer must pay “not less than one and one-half times the regular rate” for all hours above 40 a week. It is the latter provision that extends  the control of the Federal government over the wages, high or low, of practically everybody. It benefits most the highest paid and penalizes most the employer who pays most. If he pays his workers only 40 cents an hour, he is penalized only 20 cents more for overtime, but if he pays them $1.50 an hour, he is penalized 75 cents more for overtime.
But Congress at least stopped with this blunder. It did not go on to redefine what constitutes an hour’s work. This meant that it accepted the established customs of industry in this respect. This was the sensible view taken by the special master appointed in the Mount Clemens Pottery case, by the Circuit Court of Appeals in overruling the district court, and by the Supreme Court minority.

But it was not the view of the Supreme Court majority. Mr. Justice Murphy argued that walking time to the place of work within the employer’s premises must be considered part of the working hours, because “without such walking on the part of the employees, the productive aims of the employer could not have been achieved.” On this logic, there is no reason why he could not have gone on to include in working hours the time spent by the worker in traveling to work from his home, or even the time spent in getting up, dressing, or reasonable sleep-for without such activities on the part of the employees, the productive aims of the employer could not have been achieved either.

Justice Murphy even boldly declared that “the statutory work-week includes all time during which an employee is necessarily required to be on the employer’s premises.” Yet there is no such definition whatever of the workweek in the statute. It is arbitrarily imposed by the Supreme Court.

This is a glaring case of judicial legislation. If the Supreme Court is to be free to rewrite legislation in this way, under the guise of telling Congress what it really meant to do, then it becomes a third house of Congress whose members cannot be reached by the voters and whose laws cannot be vetoed. This is intolerable. There is a simple way in which Congress can rebuke such judicial usurpation as it must be rebuked, and at the same time prevent the immeasurable harm that the Mount Clemens Pottery decision could work. It should pass a joint resolution reading somewhat as follows:

“In using the word ‘work-week’ in the Fair Labor Standards Act Congress did not mean to redefine this common term or to set aside long-established contracts or customs which had absorbed in the rate of pay of the respective jobs recognition of whatever preliminary activities might be required of the workers for that particular job. ‘Work-week’ is a simple term used by Congress in accordance with the common understanding of it. For the courts to include in it items that have been customarily and generally absorbed in the rate of pay but excluded from measured working time is not justified in the absence of affirmative legislative action.”

These are not my words. They are taken straight out of the dissenting opinion of the Supreme Court minority in the Mount Clemens Pottery case. This joint resolution could be supplemented, under ample precedents, by an amendment to the Fair Labor Standards Act closing the Federal Courts to all suits of the type now being filed by unions. Congress need not stand by helpless when a court presumes to tell it that its own law means what it does not mean.

If it wants to go farther, and undo some of the harm it has itself done, Congress should reduce the legal minimum overtime wage rate to 50 percent above the legal minimum regular rate. This would confine its intervention to the wages of marginal workers. It should stop trying to regulate everybody’s.

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