Untitled Texas Attorney General Opinion ( 1943 )

ORNEY GENERAL
OF TEXAS
Honorable John D. Reed, Commissioner
Bureau of Labor Statistics
Austin, Texas
Dear Mr. Reed: Opinion No. O-5 154
Re: Whether, under the provisions
of S. B. 129, 48th Legislature,
Regular Session, a hearing is
necessary before an employer
may employ female employees
more than nine hours per day,
or fifty-four hours per week, as
outlined in Section 1.
We beg to acknowledge receipt of your inquiry with respect to the
above-captioned subject matter, as follows:
“Attached you will find copy of Senate Bill 129 which was ap-
proved by Governor Coke R. Stevenson on March 18, 1943. This
Bi~ll became effective upon the Governor’s signature, being passed
in the Senate by 24 yeas and in the House by 117 yeas.
“The first five sections of this Act seem to be a reinactment
of those laws that were repealed by this Act. In Section 6 provi-
sion is made that in time of war or when the President of the
United States proclaims a +tate of national emergency to exist
female workers in certain industries are exempt from the provi-
sions of Sections 1, 2, 3, 4, 5 and 13 of the Act and may be em-
ployed not exceeding 10 hours per day, provided such fiours of
employment in such i.ndustry are not injurious to the health or
morals of female employees, or working such hours does not
add to the hazard of their occupation and such hours of employ-
ment are in the public interest.
“Nothing is stated in Section 6 providing for a pub1i.c hearing
to determine whether or not such hours of employment are injuri-
ous to the health or morals, add to the hazard of their occupation
or whether or not such hours of employment are in the public in-
terest.
Honorable John D. Reed, Page 2, O-5154
“However, beginning with Section 7 there is outlined down
through Section 11 a procedure whereby employers or one-third
of female employees of employers coming within the jurisdiction
of any of the Federal acts enumerated in Section 6MAY apply
to the Commissioner of the Bureau of Labor Statistics for a hear-
ing under the terms of the Act.
“Will you please give me an opinion as to whether or not such
hearing is required before an employer, coming within Section 6
of the Act, can employ female employees more than 9 hours per
day or 54 hours per week as outlined in Section 1. Inasmuch as
thins Department has application from employers affecting approxi-
mately 100,000 female employees an early reply to this request
will be appreciated.”
The pertinent Sections of Sentate Bill 129 are as foll.ows:
“Section 1. No female shall be employed in any factory, mine,
mill, workshop, mechanical or mercantile establishment, hotel,
restaurant, rooming house, theater, moving picture show, barber
shop, beauty shop, road side drink and/or food vending establish-
ment, telegraph, telephone or other office, express or transporta-
tion company, or any State institution, or any other establishment,
institution or enterprise where females are employed, for more
than nine (9) hours in any one calendar day, nor more than fifty-
four (54) hours in any one calendar week.
“Sec. 6. In addition to the foregoing exemptions, in time of
war and/or when the President of the United States proclaims a
state of national emergency to exist, female workers employed
in industries coming within the jurisdiction of the Fair Labor
Standards Act of 1938 and amendments thereto, the Act of June 30,
1936, C. 881, 49 Statute 2036, U. S. Code, Supplement II, Title 41,
Paragraph 35 - 45, as amended by Act of May 13, 1942, Public
No. 552, 77th Congress, 2nd Session, commonly known as the Walsh-
Healey Act, or the Act of March 3, 1931, C. 411, 46 Statute 1494,
as amended August 30, 1935, C. 325, 49 Statute 1011, U. S. Code
Title 40, Paragraph 276A and Supplement V, Title 40, Paragraph
276A-276A-6, commonly known as the Bacon-Davis Act, are ex-
empted from the provisions of Sections 1, 2, 3, 4, 5 and 13 of this
Act, and female workers in such industries may be employed not
exceeding ten (10) hours per day provided such hours of employ-
ment in such industries are not injurious to the health or morals
of female employees, or working such hours does not add to the
hazards of their occupations and such hours of employment are
in the public interest. Provided, however, that in time of war
_- .
Honorable John D. Reed, Page 3, O-5154
and/or when the President of the United States proclaims a
state of national emergency to exist, all female office em-
ployees of such employers coming within the purview of
Section 6 hereof are exempt from the provisions of this Act.
“Sec. 7. Employers, or one-third (l/3) the female em-
ployees of employers, coming within the jurisdiction of any
of the Federal Acts enumerated in Section 6 may apply to the
Commissioner of Labor Statistics for a hearing under the
terms of this Act, and it shall be the duty of the Commissioner
of Labor Statistics, on the filing of the application, to designate
a date for a hearing not later than thirty (30) days after the
date of the receipt of the application; and he shall within five
(5) days from the date of the receipt of such application, set a
date for a hearing, and notify such applying employer or em-
ployees of such date; but for good caus,e shown by employer or
employees, the Commissioner may postpone such hearing for
as much as five (5) days, and he shall designate the place of
such hearing, which may be anywhere in the State of Texas,
but at a place convenient to the employer, employees, and the
Commissioner or any representative duly authorized by him
for such purpose; and the Commissioner or his representative
shall hold such hearing at the time and place designated.
“Sec. 8. When any employer shall apply for a hearing,
such employer shall give notice of the application to the em-
ployees affected by posting notices in the plant, yard and/or
place of business of such employer at places readily access-
ible to the affected employees and in such manner that the em-
ployees in the usual course of their employment shall have an
opportunity to read and inspect such notices.
“Sec. 9. In time of war the Commissioner of Labor Statis-
tics may, based upon private investigation and without notice or
hearing, if he finds that the employment of female employees in
any designated industry for ten (10) hours per day will not injure
the health or morals and/or add to the hazards of their occupa-
tion, and that such hours of labor are in the public interest, file
his findings as required herein, and make an order granting an
exemption; and the employer affected shall be exempt for thirty
(30) days from the provisions of this Act, during which time if
further exemption is desired by employers affected, notice and
hearing as provided herein shall be had as though no temporary
Honorable John D. Reed, Page 4, O-5154
exemption had previously been in effect.
“Sec. 10. The employer’s notice to employees required
herein shall state that the application for a hearing is made,
and the date which has been set for the hearing, and if an
emergency exemption under the foregoing provisions of this
Act is in effect insofar as the employer’s business, trade, or
industry is concerned, it shall state the date a hearing shall
be had to extend the exemption for a period of six (6) months.
The affidavit of an employer or an officer of an employer that
such notice has been given shall be prima facie evidence that
the notice provisions of this Act have been complied with.
Failure to give such notice shall be sufficient cause to reject
such application.
‘*Sec. 11. On the date designated for a hearing, the Com-
missioner of Labor Statistics, or his authorized representa-
tive, shall hold an informal hearing under such rules as the
Commissioner of Labor Statistics may make, at which anyone
interested may offer information; and if the Labor Commis-
sioner finds as a matter of fact from the evidence presented
that the employment of female workers in the business, trade,
and/or industries concerned, for ten (10) hours per day is not
injurious to the health or morals of the females employed
therein and/or does not add to the hazards of their occupation,
and that ten (10) hours per day of labor is in the public interest,
he shall make written findings of such facts and file such with
the Secretary of State, and draw an order granting such employer
affected exemption from the provisions of Sections 1, 2, 3, 4, 5,
and 13 herein for a period of six (6) months, which order shall
be made within five (5) days after the conclusion of the hearing
and shall be filed with the Secretary of State. Such orders of
the Commissioner during wartime shall be extended at the end
of six (6) months for a like period of six (6) months without fur-
ther notice or hearing, unless prior to such automatic extension,
a protest is filed with the Commissioner, notice of which protest
is furnished to the employer, by a sufficient number of employees
to lead the Commissioner to believe that there is no longer a
necessity for such exemption If he finds the facts adversely to the
applicant, he will so state in his findings and no order will issue.”
_’ -
Honorable John D. Reed, Page 5, O-5154
Upon a consideration of the entire bill, giving effect to each
and every part thereof, as we should do, and especially to Sections 6,
7, 8, 9, 10 and 11 above quoted, we beg to advise as follows:
a
No employer contemplated in Section 6 of the Act may law-
fully employ female employees, other than office employees, in time of
war or when the President of the United States proclaims a state of
National emergency to exist, more than nine hours per calendar day,
or fifty-four hours per calendar week, without an order by the Commis-
sioner of Labor Statistics granting that exemption. In other words, no
such employer may, upon his own initiative, bring himself within an ex-
emption of the requirements of Sectibn 1 of the Act.
Such an order of exemption may be made by the Commissioner
of Labor Statistics to such employer in time of war, based upon his private
investigation and without notice or hearing, upon his finding that the em-
ployment of female employees in such designated industry for ten hours
per day will not injure the health or morals and/or add to the hazards of
their occupation, and that such hours of labor are in the public interest,
which such order of exemption will be effective as to the particular em-
ployer for thirty days from the date thereof. (See Sec. 9)
Where the Commissioner has not acted upon his own initiative,
an employer, or one-third of the female employees of an employer coming
within the jurisdiction of any of the federal acts enumerated in Sec. 6 of
the Act, may apply to the Commissioner of Labor Statistics for a hearing,
whereupon it becomes the duty of the Commissioner to designate a place
and time not later than thirty days for such hearing; and furthermore,
making it the Commissioner’s duty, or that of his representative, to hold
such hearing. (See Sec. 7)
Sec. 8 requires notice to the employees where the application
has been made by the employer. There is necessarily implied a require-
ment of notice to the employer where the application for hearing is by em-
ployees.
The Act contemplates that the Commissioner shall make his or-
der upon such hearing, and if favorable to the employer, he would thus be
brought within the exemption from the requirements of Section 1, otherwise
he would not be exempt.
Honorable John D. Reed, Page 6, O-5154
So, also, the Commissioner must hold a hearing and make
a finding upon any requested extension of a thirty-days’ order previ-
ously made by him upon his own initiative, under Sec. 9.
We trust that what we have said is a sufficient and satisfac-
tory answer to your inquiry.
Very truly yours
ATTORNEYGENERALOF TEXAS
Oc’ie Speer
Assistant
OS-MR
Approved
Opinion
ATTORNEY GENERAL OF TEXAS Committee
BY fl,&t/7?j 1
Chairman
.