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AGO 1950 No. 394 - November 29, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

WHETHER FEMALE EMPLOYEES EMPLOYED IN MECHANICAL, MERCANTILE, LAUNDRY, HOTEL OR RESTAURANT BUSINESSES, ALTHOUGH MAIN OFFICES ARE IN SEPARATE BUILDINGS, COME UNDER THE PROVISIONS OF EIGHT HOUR LAW, L.I.D

All women and minors employed in a mercantile industry, regardless of task, are covered by Mercantile Industry Order.

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                                                               November 29, 1950

Honorable A. M. Johnson
Director of Labor and Industries
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 394

Dear Sir:

            Receipt is acknowledged of your letter of October 27, 1950, as follows:

            "It has been the policy of the Division of Women and Minors, Department of Labor and Industries, when called upon to determine what female employees come under the provisions of the Eight Hour Law, to maintain the law applies to all female workers in an industry classified as Mechanical, Mercantile, Laundry, Hotel or Restaurant, even though their main offices may be in separate buildings.

            "Would you please advise us whether or not we are right in our application?

            "Mr. E. L. Moser of General Petroleum raises the question on the status of his girls in the main office where the company deals in wholesale selling only and the office girls are not part of the selling force."

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            The general subject of the applicability of Minimum Wage Orders was considered in our opinion to Mrs. Isabelle Noble Watson, Supervisor of Women and Minors in Industry, under date of June 20, 1949 [[Opinion No. 49-51-69]], a copy of which opinion is enclosed herewith.  In the course of that opinion we said:

            "The words employed in section 10, chapter 174, Laws of 1913, are:

            "'* * * in any occupation, trade or industry.'

            "That language grants the Industrial Welfare Committee a broad basis for the classification of occupations or industries, that is to say, the order may be based either upon an industry or upon an occupation.  * * *"

            The Mercantile Industry Order, which is Minimum Wage Order No. 44, defines its application in the following paragraph:

            "This order shall apply to all WOMEN and MINORS employed in any industry, business or establishment operated for the purchasing, selling or distributing goods or commodities at wholesale or retail, regardless of how wages are computed, unless such operation is performed in an industry covered by another order of the Committee * * *"

            The definition of the mercantile industry in that order is as follows:

            "(1) 'MERCANTILE INDUSTRY' means any industry, business or establishment operated for the purpose of purchasing, selling or distributing goods or commodities at wholesale or retail."

            With respect to the Mercantile Industry Order in our opinion of June 20, 1949 [[Opinion No. 49-51-69]], we said:

            "The situation is quite akin to that presented to the Supreme Court in Edwards v. Department of Labor and Industries, 146 Wash. 266, in which  [[Orig. Op. Page 3]] the court concluded that the business of the employer and not the particular task in which an employee was engaged determined the application of the Industrial Insurance Act.  That principle has been followed in a long line of decisions.

            "We are therefore of the opinion that in industry type orders it is the business of the employer and not the particular task in which the individual employee is engaged which determines the application of the minimum wage order."

            In reply to your inquiry, you are therefore advised that the particular task in which the employees of the General Petroleum Company are engaged is not a factor in determining the application of the Mercantile Order.  All women and minors employed in the mercantile industry in whatever task engaged are covered by that order.  That is likewise true of all industry orders as opposed to occupation type orders.

Very truly yours,

SMITH TROY
Attorney General

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