¹ The Eighteenth Amendment and the National Prohibition Act gave concurrent enforcement powers to the states and the national government. Enforcement had already broken down when President Coolidge on May 8, 1926 issued Executive Order No. 4439 directing that “any state, county, or municipal officer may be appointed at a nominal rate of compensation, as prohibition officer of the Treasury Department to enforce the provisions of the National Prohibition Act.” The Congress objected strenuously to the President's order and it is a controversial point whether any state, county, or municipal officers were appointed or paid with federal funds. Schmeckebier, Laurence F., The Bureau of Prohibition (Washington, 1929), pp. 18 ff.Google Scholar

² 52 U.S. Stat. 1060, Public 718, 75th Cong., 3d sess. (1938). Section 11(b) provided: “With the consent and cooperation of State agencies charged with the administration of State labor laws, the Administrator and the Chief of the Children's Bureau may, for the purpose of carrying out their respective functions under this Act, utilize the services of State and local agencies and their employees and, notwithstanding any other provision of law, may reimburse such State and local agencies and their employees for services rendered for such purpose.”

³ Macmahon, Arthur W. and Millett, John D., Federal Administrators: A Biographical Approach to the Problem of Departmental Management (New York, 1939), p. 417Google Scholar.

⁴ This is the concept of “cooptation” developed by Philip Selznick in his TVA and the Grass Roots (Berkeley, 1949)Google Scholar. As defined and analyzed by Selznick, the concept is not entirely relevant to cooperative enforcement under the FLSA.

⁵ Perkins, Frances, The Roosevelt I Knew (New York, 1946), pp. 246–67Google Scholar.

⁶ In 1948 the Division of Labor Standards was elevated to Bureau status.

⁷ Zimmer, Verne A., “The Interest of the Federal Government in Conserving the Sight of Industrial Workers,” Bull. No. 37, U.S. Department of Labor, Division of Labor Standards (Washington, G.P.O., 1940), p. 18Google Scholar.

⁸ Macmahon, and Millett, , Federal Administrators, p. 417Google Scholar.

⁹ Stitt, Louise, “State Labor Standards Legislation,” Law and Contemporary Problems, Vol. 6, pp. 454–63, at p. 459 (Summer, 1939)CrossRefGoogle Scholar.

¹⁰ They were California, Montana, New Hampshire, North Carolina, Oregon, Rhode Island, South Carolina, Vermont, and Hawaii; see Paster, Irving, “National Minimum Wage Regulation in the United States,” unpub. diss. (University of Michigan, 1948), p. 239Google Scholar.

¹¹ New York was the first state to regulate homework, which was of special concern both on health and welfare grounds and because the New York market attracted goods, especially items of apparel, made in neighboring states. Its first law was passed in 1874; in 1913 it enacted the first prohibitory law on the subject to be held valid.

¹² Figures supplied by Mr. J. D. Wolf, Supervisor, Homework Bureau, Division of Industrial Relations, Women in Industry and Minimum Wage, New York State Department of Labor, in a letter to the author.

¹³ The number of certificates so issued and accepted ranges between 1,500 and 2,500 annually.

¹⁴ A copy of the written agreement between the Wage and Hour Division and the Massachusetts State Department of Labor is on file at the national office of the Division in Washington.

¹⁵ U. S. Congress, House, Hearings Before the Subcommittee of the Committee on Appropriations on the Department of Labor-Federal Security Agency Appropriation Bill for 1944, 78th Cong., 1st sess. (Washington, G.P.O., 1943), p. 50Google Scholar.

¹⁶ Smith, Florence P., State Minimum Wage Laws and Orders 1942, An Analysis, U.S. Department of Labor, Bull. No. 191, Women's Bureau (Washington, G.P.O., 1942)Google Scholar.

¹⁷ Industrial Home-Work Legislation and Its Administration, U.S. Department of Labor, Bull. No. 26, Division of Labor Standards (Washington, G.P.O., 1939)Google Scholar. By 1945 Colorado, Utah, West Virginia, and the District of Columbia had adopted homework legislation.

¹⁸ In seven wage orders under the FLSA the Administrator prohibited industrial homework except by those who were physically or mentally handicapped or unable to leave home because they were responsible for the care of an invalid. Licenses were required of both employers and employees and detailed records were to be maintained.

¹⁹ This was true also of prohibition enforcement. Compare the Wickersham Commission's observation in 1931: “Conditions are not wholly the same from year to year anywhere. Upheavals in local politics, changes of administration, varying policies in policing, the activities of strong or inactivities of weak personalities in executive positions, contribute to make the course of state enforcement, at least in the average urban locality, fluctuating, vacillating, or even spasmodic.” National Commission on Law Observance and Enforcement, Report on the Enforcement of the Prohibition Laws of the United States (Washington, G.P.O., 1931), p. 40Google Scholar.

²⁰ Personality factors are obviously important. Compare again the Wickersham Commission report: “… the federal authorities can often secure cooperation through their own tact and conciliatory attitude … in Maryland the United States attorney reports, that although there is no state prohibition act and the governor and the state government are hostile to the Eighteenth Amendment, the detective bureau constantly helps to locate offenders and detains them until the federal authorities can take them, and information of the violations of law is given constantly by policemen to the United States attorney.” Ibid., p. 43.

²¹ Administration of subminimum rates for the handicapped has not been decentralized to the regions, so that there has been little opportunity for state cooperation on this phase of FLSA enforcement.

²² To qualify an agency had to have as its primary responsibility the administration of labor laws, had to employ a full time director and an adequate inspection staff, and had to engage in inspection work comparable to that under the federal law.

²³ The duties of the federal representative require him to maintain a measure of independence of the views of state labor officials. In Minnesota the federal representative in St. Paul can have frequent contacts with regional employees of the Division in Minneapolis; thus his position is not as isolated as that of the federal representative in Raleigh.

²⁴ The original law gave the Wage and Hour Division its own General Counsel and regional attorneys. In 1941 Secretary Perkins abolished the Office of General Counsel and assigned the functions to the Solicitor of the Department of Labor, but she did not disturb the regional attorneys. When the House Appropriations Committee learned of this, it insisted that regional attorneys too be made responsible to the Office of the Solicitor.

²⁵ In June, 1952, the Wage and Hour Division had four field operations officers attached to the national office who were responsible for securing consistency in inspection policies. Most of their time is spent in the field.

²⁶ Interim Report of the Administrator of the Wage and Hour Division for the Period August 15 to December 31, 1938, U.S. Department of Labor (Washington: No G.P.O. imprint, 1939), Part II, p. 20Google Scholar.

²⁷ First Annual Report of the Administrator of the Wage and Hour Division for the Calendar Year 1939 (Washington: G.P.O., 1940), p. 69Google Scholar.

²⁸ U.S. Congress, House, Hearings before the Subcommittee of the Committee on Appropriations on the Department of Labor-Federal Security Agency Appropriation Bill for 1942, 77th Cong., 1st sess. (Washington, G.P.O., 1941), Part 1, p. 339Google Scholar.

²⁹ Although the 1942 budget was regarded as adequate, it did not, as a matter of fact, include substantial appropriations for reimbursement under section 11(b).

³⁰ The number of employees estimated to be subject to the FLSA increased from approximately 12,600,000 in 1939 to 20,900,000 in 1951. Coverage was reduced by the 1949 amendments.

The Wage and Hour Division has refused to accept the views urged by the House Appropriations Committee that as employers become acquainted with the provisions of the law the Division can inspect a decreasingly smaller percentage of covered establishments without deleterious effects on compliance. The Division has consistently maintained that violations occur because: (1) the employer is ignorant of the requirements, (2) the violations are technical and unintentional and will be corrected when discovered, (3) the violations are willful, and (4) the employer contests the Administrator's interpretation of the act. Although most employers comply, the Division contends that there will always be a small percentage, but numerically a rather substantial number, who can be brought into compliance only by inspection. The large number of new firms since the end of World War II complicates enforcement. Violation rates remain surprisingly stable despite improved economic circumstances, partly as a result of the Division's improved techniques for concentrating inspections in areas and industries where compliance is the poorest, and partly because overtime violations increase as wages increase. In 1942 the Division inspected 74,676 establishments compared to 26,189 in 1950.