Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
~norable John D. Reed, Commissioner
.BUreell of Labor Statimtica
Auatin, TeXtI
psar Sir:
NO.
sl-
;Wii-
rredea
Your recent ~conuuunl d to the Attorney
General of Texas reads in par
011of human life
worked, but for
ime shall be paid
aupereeding or In conflict with the provirlom~
of statutes premcrlbing the compensation, houra
of work, and other conditiona of employment of
employeea of the United States.’
Jionorable John D. Reed, page 2
“Will you please conelder this ExeoutHe
Order and advise me vhether or not thla oonf’llct8
vith our Artlale 5172, R.C.S., and if 80, doe8
said Executive Order No. 9240 supersede and take
precedence over our Atate atatute?’
Executive Order 100. 9240 reads in part aa follows:
“I. That the folloving principlea and reg-
ulatione ahall apply for the duration of the war
to the payment of premium and overtime wage cram-
peneation on all vork relating to the proaecu-
tlon of the war:
“A. Ho premium wage or extra oompenea-
tion &all be paid to any employee
ln the United States, ltr territories
or posaeealona, for vork on SatuMaj
or &undag except where rush vork is
performed by the employee on the elxth
or revsnth day v6rked in him regulu-
ly eoheduled workweek end aa hereln-
after movlded*
“(I) Uhere because of emergency
sendltione an employee lr re-
qtired to work for seven eon-
recutive days In any regulhr-
19 scheduled vorkveek a pre-
lnium wage of double time com-
pensation shall be paid for
work on the seventh day.
o(2) khre required by the prod-
elona of lav 0~ employment oon-
tracts, not more than time and
one-ha&f vage co+?nsatlon
shall be paid for aork in ex-
cess of eight hourcl in any day
or forty hourr in any vorkveek
or for vork performed on the
eixth day vorked In any qgu-
laxly scheduled workweek.
honorable John D. Reed, page 3
The exception In said Executive Order quoted in your
letter applies only to “employees of the United States” whose
pages and hours of service are epeclflcally regulated by etat-
ute. The exccptlon does nGt apply tG one not an employee of
the United ttates Governwnt.
Article 5168, R. C. S. of Texas, reads aa follows :
“No female shall be employed In any factory,
mine, mill, workshop, meahsnical or mercantile ee-
tabliehnent, hotel, restaurant, rooming house,
theater, novlng picture show, barber shop, tele-
graph, telephone OP other offioe, express or
transportation company, or any State institution,
or any other establishment, Institution or enter-
prise where females are employed, for more than
nine i-nurr in any one oalendar day, nor more than
fifty-four hours in any one oalendar veek."
Then follows the exception in Artlale 5172, A. C. S.
of Texas:
I . . . In cases of extraordinary emergencies
euoh as great pub110 calaaitlee, or vhere it be-
ooznee necessary for the protection of human life
or property, longer hours may be worked, but l’ort
such time not lees than double time shall be paid
such female with her consent.”
The effect of the Texas statutes 18 to prohibit a
female employee from worklng more than nine hour8 in any twenty-
four hour period and not more than fifty-four hours In any on8
veek except In cases of “extraordinary emergenc3.ee” in vhich
event longer hours may be worked but for such extra time *not
lees than double time shall be peld such female with her con-
sent.”
After careful reading of subsection (1) of Section A,
wwaph 1, of the Exeoutlve Order it 18 claar that said eub-
section does not conflict with any provision of the Texas etat-
ute here under oonsideratlon. Under both the Executive Order and the
Texa* atatuter, vhere, because of an emergency, the employue works
more than six days in any work week, such employee shall receive
a premium waga of double time aompeneation for vork done on the
seventh day.
Honorable John D. Reed, page 4
In the United States Supreme Court case of Xrl~
RalI.road v, let+ York, 233 U.S. 671, 58 L. Rd. 1149, 34 S.
Ct. 756 (1914), the rule 1s rrtated thus;
“Indeed, v&n Congress acts in such a uay~
as to manifest it2 purpose to exercise lte constl-
tutlonal authority, the regulatlva power- of the
state ceases to exist.’
In order to aid in the effective prosecution of the
var, Congreea has authorleed the Preeldant to issue Executive
Orders etablllring prices, wagea and aalarlea. Acting under
authority granted to him, the President haa Issued hlr Rxecu-
tive Order lo. 9240. The Exeautlve Order la concerned only with
the payment of over-time or premium wages in “work relating to
the prosecution of the var.”
When therefore the gueation of over-time pay uleee
as to ‘work relating to the prosecution of the war” the Execu-
tive Order will control. It IS Only ln this connection that
the Sate statute is superseded. When the work la not relat-
ed to the proeecutlon of the Wr FXecutlve Order Ho. 9240 hrre
no applioation.
Executs.ve Order Ho. 9240 further provldee:
“B. No premium wage or extra ccuapenea-
tiGLi shall be paid for vork on cue-
tomary holidays except that time and
one-half vage compenaatlon shall be
paid for work performed on any of
the follovfng holidays only:
New Year’s Day
Fourth of July
Labor.Day
Thanksgiving Day
Christmas Dey
and either Memorial Dey or one oth-
er such holiday of greater 10081
importance. *
~Honomble John 0. Reed, page 5
Fhe above quoted eeotion is not in oonfllct with
any zexm statutea but merely provides extra c~mstion
for work relating to the proarcutlon of the war when per-
fo+d on the apeclfled holidaya.
Youra very trulJr
EW;db