LABOR ‑- WOMEN ‑- OVERTIME PAY FOR WORKING IN EXCESS OF 8 HOURS

LABOR ‑- WOMEN ‑- OVERTIME PAY FOR WORKING IN EXCESS OF 8 HOURS

Director of Labor and Industries is limited in taking of assignments of wage claims.

Wage claims for overtime for women working in excess of 8 hours a day invalid.

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                                                                 August 28, 1951

Honorable A. M. Johnson
Director, Department of Labor and Industries
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 112

Dear Sir:

            This is in answer to your letter of August 20, 1951, in which you request our opinion and advice as follows:

            "During the past few months the Division of Women and Minors of the Department of Labor and Industries has been receiving more and more calls from women employees asking that we collect overtime pay for them.  We, as a Department, are not sure of our position in requests of this nature as collection of such overtime wages might be in direct violation of our eight-hour law.  We, therefore, would appreciate your advice on this matter.

            "Also does the Department of Labor and Industries have the authority to collect over-time pay for women when overtime is a provision of a union agreement?  Wage claimants in such instances are adverse to testifying against their employer when confronted with the fact they have been working in violation of the law.  Again, we will very much appreciate being advised."

             [[Orig. Op. Page 2]]

            Our conclusions are as follows:

            (1) The Director of Labor and Industries is empowered by Rem. Rev. Stat. Supp. 7596-1 to take assignments of wage claims only from persons who are financially unable to employ counsel when in the judgment of the Director such claims for wages are valid and enforceable in the courts.

            (2) Such claims for wages of women working in excess of eight hours a day cannot be deemed valid and enforceable in the courts.

            (3) Claims for wages of women working in excess of eight hours a day are not valid and enforceable even though payment for overtime in excess of eight hours a day is a provision of a union agreement.

                                                                     ANALYSIS

            The authority of the Director of the Department of Labor and Industries to take assignments of wage claims is specified by the legislature in section 1, Chapter 96, Laws of 1935 (Rem. Rev. Stat. Supp. 7596-1), which reads in part as follows:

            "The director of labor and industries by and through the division of industrial relations shall have the power and authority, when in his judgment he deems it necessary, to take assignments of wage claims and prosecute actions for the collection of wages of persons who are financially unable to employ counsel in cases in which, in the judgment of the director, the claims for wages are valid and enforceable in the courts; * * *"

            The prosecution of actions based upon such assignments as above stated in Rem. Rev. Stat. Supp. 7596-1 is a duty of the attorney general.  The attorney general is empowered, among other things, in Rem. Rev. Stat. 112:

            "To institute and prosecute all actions and proceedings for, or for the use of the state which may be necessary in the execution of the duties of any state officer:"

            The statute regulating the maximum hours of work for females, being Rem. Rev. Stat. 7651, was amended by section 1, Chapter 84, Laws of 1951 (49.28.070 RCW), which reads, in part:

             [[Orig. Op. Page 3]]

            "No female shall be employed in any mechanical or mercantile establishment, laundry, hotel, or restaurant for more than eight hours during any day.  The hours of work may be so arranged as to permit the employment of females at any time so that they shall not work more than eight hours during the twenty-four:  Provided, That this section shall not apply to, or affect, females employed in harvesting, packing, curing, canning, or drying any variety of perishable fruit or vegetable, or to females employed in canning fish or shellfish:  Provided further, That a three‑member commission, consisting of one representative of labor, one of industry and one of state government, is hereby established.  The commission shall be appointed by the governor from names submitted to him by organizations or associations representing labor, industry and government.  The committee shall consider problems of national defense which may require relaxation of certain state practices or standards for the purpose of increasing defense and war production and shall consider any application made by employers therefor, which application must set forth the reason for the same.  After investigation of any such application, the commission may, by majority vote, grant such application, in whole or in part, and issue a defense production permit covering a designated place of employment.  Such permits shall be valid only during the existence of the specific emergency for which the permit was issued.

            "The commission shall continue in existence only so long as a national emergency, as proclaimed by the president, continues to exist.

            "Any employer violating the provisions hereof shall, upon conviction, be fined a sum not less than ten dollars nor more than one hundred dollars for each offense."

             [[Orig. Op. Page 4]]

            We take it that your letter is directed to situations arising where no permit as provided for by the 1951 Legislature is in existence.

            Inasmuch as statutes limiting the hours of employment of women are not intended for the benefit of employees only, but are for the protection of the public health, the benefit of the statute may not be waived by the employee, and any agreement for overtime work is contrary to public policy and is unenforceable.  Collective bargaining agreements between one or more unions and one or more employers are valid contracts enforceable both at law and in equity, according to the rules and laws relating to contracts generally.  (Teller, Labor Disputes and Collective Bargaining, 1st Ed. 1940, Vol. 1, section 163, page 492).  Thus, the same rule would apply whether it was an individual contract or a union agreement.

            In upholding the constitutionality of the first act regulating the hours of female employment, or chapter 37, Laws of 1911, the Supreme Court of Washington, in the case ofState v. Summerville, 67 Wash. 638, at page 642, stated:

            "The courts have not agreed at all times as to what are reasonable restrictions upon the right of private individuals to contract for hours of labor, but the later decisions have evinced marked liberality in sustaining legislation of this character.  The police power which may be invoked to protect the health, property, welfare, and morals of citizens is an inherent attribute of sovereignty, the exercise of which is necessary to secure good government and promote the public welfare.  Circumstances and occasions calling for its exercise have multiplied with marvelous rapidity in recent years, by reason of the well-recognized fact that modern, social and economic conditions have called into existence agencies previously unknown; many of which so vitally affect the health and physical conditions of laborers, and especially female laborers, that legislation of the character here involved has been sustained with greater liberality than was formerly evinced under less exacting conditions.  * * *"

            In a California case involving a statute limiting hours of work for women to 48 hours a week, an employee sued her employer to recover for hours worked voluntarily in excess of that permitted by statute, the court denied the employee any recovery.  In this case,Lewis v. Ferrari, (1939) 34 Cal. App. Supp. (2d) 767, 90 P. (2d) 384, at page 387, the court said:

             [[Orig. Op. Page 5]]

            "We do not think that this statute ought to be held to be designed for the exclusive benefit of the employee.  Police regulations are not ordinarily enacted for the benefit either of individuals or of selected classes of individuals.  They are in their nature restrictions on liberty and as such ordinarily designed to bear some reasonable relation to the welfare of the whole community.  There may, indeed, be cases where certain classes of individuals are so situated as to be subject to particular disadvantages sufficient to require police regulations in their favor to insure to them legal rights in some sort commensurate with those enjoyed by the community at large.  But generally speaking, where police regulations are made undertaking to protect some particular class of persons, such protection is accorded because the welfare of such class of persons is conceived to be bound up with the welfare of the community as a whole.  Particularly is this the case with women as a class.  The circumstance that the restriction of their hours of labor inures to their benefit does not militate against its beneficial effect through them on the health and welfare of the community as a whole.  When, therefore, a particular woman participates in the violation of such a regulation, it seems to us fallacious to argue that she is justified in so doing because the regulation is meant for her benefit and she has a right to waive the benefit.  We hold that she has no such right.  The benefit is one intended for the community of which she is but a single member, and the circumstance that she may be one of the members of the community especially benefitted by the regulation affords her no justification for violating it.  Actual coercion or circumstances amounting in effect to the same thing may in some degree excuse her participation in its violation, but that is not the same thing as justifying it."

             [[Orig. Op. Page 6]]

            We therefore advise you that under the authority of Rem. Rev. Stat. Supp. 7596-1 overtime pay for women working in excess of eight hours a day cannot be deemed valid and enforceable in the courts in the absence of such a permit as described in Rem. Rev. Stat. 7651, supra, as amended by the 1951 Legislature.  This would be so even though such overtime pay for women working in excess of eight hours a day is a provision of a union agreement and no permit, as above described, is in existence.

Very truly yours,

SMITH TROY
Attorney General

FRANCIS J. WALKER
Assistant Attorney General