Mary Lincoln Candies, Inc. v. Department of Labor

Desmond, J. There is open to us on this record one question only: May a minimum wage order under article 19 of the New York State Labor Law, validly fix a so-called “ Guaranteed Wage ” (for women and minors), that is, may such an order require employers not only to pay a minimum hourly rate to such employees, but also to pay that minimum hourly rate for a minimum number of hours per week? Although the Appellate Division certified to us a question, among others, as to the reasonableness of the hourly rate here fixed and of the number of hours for which that hourly *265 rate is required by the order to be paid, we find that the courts below reached no such question, and we, therefore, cannot and do not answer it (Coatsworth v. Lehigh Valley Ry. Co., 156 N. Y. 451, 458.) For the same reason we return no answer to the certified question which inquires as to whether the Federal Fair Labor Standards Act of 1938 is controlling, as against article 19 of our Labor Law (Cons. Laws, ch. 31), in so far as New York State employers engaged in interstate commerce are concerned. Directory Order No. 3, here under scrutiny, requires the payment of a minimum of ten dollars to any minor employee of either sex, or any adult female employee, who works three days or less in any week, during the “ peak period ” in the confectionery industry, and a minimum of seven dollars per week to any such employee who works two days or less in any week during the dull period in that industry. Directory Order No. 3 was promulgated by the Industrial Commissioner after full compliance with the elaborate statutory procedures as to investigation, hearings, wage board recommendations, etc. The manufacturers thereupon petitioned the Board of Standards and Appeals for a review, and that Board held the order to be valid and reasonable in all its parts. Then followed this suit against the State Department of Labor, under section 111 of the Labor Law “ to determine the validity and reasonableness ” of the order. While in form a suit against the State Labor Department, this litigation is in substance an appeal from the determination of the Board of Standards and Appeals. (Labor Law, § 111, subd. 2.) Special Term upheld various provisions (not here in question) of Order No. 3 but struck down the provisions for “ Guaranteed Wages ” as “ not reasonable and in reasonable compliance with the statute.” (175 Misc. Rep. 399, 402.) The opinion in that court makes clear that the reasonableness of the “ cents per hour ” and “ minimum hours to be paid for ” directions of the Order were not passed on by Special Term, but only the validity under article 19 of the Labor Law, of any provision at all for a “ Guaranteed wage.” The Appellate Division affirmed. The constitutionality of article 19 itself is, of course, not in question. (West Coast Hotel Co. v. Parrish, 300 U. S. 379.) But plaintiffs say this “ Guaranteed Wages ” feature of Directory Order No. 3 *266 is not within the authorizations of article 19 since, they say, the Order requires payment to employees for services not rendered at all. Thus, again according to plaintiffs, the Order flouts section 555 of the Labor Law which requires that the commissioner and the wage board “ take into account the value of the service or class of service rendered.” We agree with plaintiffs that the phrase “ may take into account ” in section 555 means “ must take into account ” but we do not forget that the section calls upon the Wage Board and the Commissioner to take into account not only the worth of the labor, but also “ the amount sufficient to provide adequate maintenance and to protect health.” After computing both these amounts, the Board or Commissioner must arrive at a resultant. If they find that the amount required for decent maintenance is higher than the going market value of the work, are they to be limited to the latter? If the answer to that question must be “ yes,” then the statute accomplishes little or nothing as to the evils against which it was written. Recognizing this, the United States Supreme Court, in West Coast Hotel Co. v. Parrish, expressly overruled in 1937 its former holdings in Adkins v. Children’s Hospital (261 U. S. 525), and similar cases, and held unobjectionable a minimum wage law (Session Laws of Washington, 1913, ch. 174, §§ 10, 11) which authorized the fixation of a wage “ adequate in the occupation or industry in question to supply the necessary cost of living, and maintain the workers in health.” The Supreme Court did say in the West Coast opinion that it might be assumed that minimum wages in the State of Washington are fixed “ in consideration of the services that are performed in the particular occupations under normal conditions.” (p. 396.) But the Washington statute in fact specified only one test of the minimum wage, the test of its adequacy to cover the cost of living of the female or minor employee. The very concept of minimum wage legislation necessarily involves the determination of the cost of living and the fixing of a wage that will reasonably cover, or approach, that cost. The idea of a “ living wage ” is the heart and core of all such legislation. The earliest of the State minimum wage laws (Massachusetts, L. 1912, ch. 706) called upon the wage boards of that State to take into consideration “ the. needs of the employees ” as well *267 as the effect on the industry of any increase in wages. The District of Columbia statute (40 Stat. 960) frowned upon by the Supreme Court in the Adkins case (supra), authorized the establishing of minimum wages “ adequate to supply the necessary cost of living to * * * women workers.” That statute passed upon in the Adkins case said nothing about value of services, or going rates, or anything of the sort, and it was held invalid for that reason, principally. In 1936 the original New York State minimum hour law (L. 1933, ch. 584) was similarly rejected by the Supreme Court (Morehead v. New York, 298 U. S. 587) because it apparently required the minimum wages fixed thereunder not only to be equal to the value of the services rendered but also to be sufficient to meet the minimum cost of living (see §§ 551 and 552 of that statute and this court’s opinion in the Morehead case, 270 N. Y. 233, 238). When, finally, the Supreme Court took a different view of such statutes and decided that they were not unconstitutional (West Coast Hotel Co. v. Parrish, supra) it observed (300 U. S. p. 396) that the statutes in the Adkins, Morehead and West Coast cases, were all alike in so far as they all failed to make the value of the services a controlling test. It cannot be doubted that our Legislature had these rulings in mind when it passed in 1937 the minimum wage statute which we are here construing. And when it directed the Wage Board and the Commissioner to take into account the cost of adequate maintenance and health as well as the value of the services and the wages paid in the State for like work, the Legislature of course realized that a wage sufficient to provide a decent standard of living would sometimes exceed the strict bargain- and-sale value of the worker’s services. In reciting the “ factual background ” of our present minimum wage law, the Legislature declared that its purpose was “ to secure wages sufficient to provide adequate maintenance and to protect the health of women and minors.” (Labor Law, art. 19, § 550, added L. 1937, ch. 276.) It is fairly to be assumed that the Legislature, bent on seeing to it that women and minors should, so far as possible, receive subsistence wages for their work, appreciated that no hourly rate of wages could achieve that result unless it were multiplied by some appropriate number of hours. Plaintiffs’ argument seems based on an assumption that article 19 set up only a system for *268 determining hourly rates of wages. The word “ hour ” or “ hourly ” appears nowhere in the law. Its heading reads: “ Minimum Wage Standards for Women and) Minors.” The Legislature, driving toward its plainly marked goal, would have stopped far short of that goal if it had provided for minimum hourly wages only. The accomplishment of its high social purpose required a grant of authority to the Labor Department to make such orders as would in fact be directed toward providing a living wage, not merely an hourly rate which, in most industries, would not produce a living income, unless ordered paid for a sufficient minimum number of hours. The words “ Guaranteed Wages ” mean no more than required or ordered wages. Directory Order No. 3 guarantees no work or wages to anyone. It requires no employer to hire or pay anyone. It fixes the minimum amount an employee is to get in any week wherein her services are needed and requested by the employer. Having called her into service, the employer, says the order, must pay her no less than ten dollars (in the rush season) or seven dollars (in the slack season). Plaintiffs say that at times they need less than three (or two) days work per week but that, under this order, they must either pay for services they do not need and camiot use or go without the workers’ services entirely. Assuming that this is factually correct as to their industry, we still conclude that the order does not, for that reason, fail to stand the tests of section 555. We hold that a minimum wage order, to be valid under our statute, need not be consistent with the actual market value of the work actually done in every period of employment however short. The contrary argument, applied to extreme situations, leads to impossible results. If it be a valid objection to a minimum, wage order that it requires, or may require, payment for work not actually needed or done, then an order mandating a thirty-five cents per hour wage would be illegal because the employer might need the worker for only a half hour, or ten minutes. Invalidating an order for such a reason would wipe the statute off the books. We do not agree, on this record, that this Wage Board paid no attention at all to the value of services or to the wages currently being paid in the industry. Both these subjects were inquired into and there are findings as to each. In fact, the Wage Board report says that, *269 because of conditions in the industry, it has in this order fixed wages which are not high enough for the proper maintenance of the workers. Certainly it does not appear as matter of law that in writing the terms of this order, the value of the services was entirely disregarded. We do not hold that the Wage Boards have unlimited authority to make any extraordinary or whimsical requirements, as to hours and wages, that suit their fancy. The provisions of any such order must be reasonably fit for enforcement of the policy of the statute under the circumstances of the particular employment. We see nothing strange or startling about the requirements here. A week is not an unusual unit of wages or employment. Requiring payment, in a week where any work is done, for two-sevenths or three-sevenths of the days of that week, is not so plainly arbitrary as to offend against the statute itself. In this connection we take notice of the orders current in other States, as referred to in the brief filed here, in support of the Labor Department’s position, by the Attorneys-General of Minnesota, Illinois, New Hampshire, North Dakota and Utah, as amid curiae. All those states have Minimum Wage Acts which differ in no important way from article 19 of our Labor Law. Each of the Attorneys-General informs us that his state promulgates orders for “ fixed or established weekly wages.” Plaintiffs say that no order promulgated in any of those five states “ goes so far as to guarantee wages for the whole week or part of a week,” but plaintiffs’ own analysis of various orders in effect in those other states shows, we think, the contrary. In three of the states (Illinois, New Hampshire and Utah) there are found orders which in effect “ guarantee ” a worker at least four hours pay on any day she is called to work. Other orders, in those three and the other two states, fix a higher rate of wage per hour in any week where less than a minimum number of hours employment is furnished. It is our view that all these orders proceed on the same theory as does the order under attack in this suit,' the theory that part time employment must, by the application of some formula, produce more money return to the worker than she would receive if her pay envelope contained only an amount arrived at by multiplying the market value of her hourly service by the exact number of actual hours work which the employer had made *270 available to her. The differences between these various orders are differences of detail, approach and formulation. The theory, the objective and the general method are the same in every instance. The judgments should be reversed and the action remitted to the Special Term for proceedings not inconsistent with this opinion with costs in all courts to the appellants to abide the event. The first question certified should be answered in the affirmative and the third in the negative. The second and fourth questions certified are not answered.