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Outside the Law: Agricultural and Domestic Workers Under the Fair Labor Standards Act

Published online by Cambridge University Press:  14 October 2011

Phyllis Palmer
Phyllis Palmer
Affiliation:
George Washington University
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Extract

In 1966, at the end of almost two decades of civil rights agitation, men and women of color redressed one significant historical injustice—the legislative exemption of tens of thousands of farmworkers from the 1938 Fair Labor Standards Act (FLSA), which guaranteed a minimum wage and maximum hours of work for covered workers. In 1974, after almost a decade of feminist agitation, domestic workers convinced the Congress that even private household service fell within the act's minimum-wage coverage of workers engaged in interstate commerce. The two occupations in which most African Americans and a large number of other nonwhite Americans worked in 1938, and in which significant numbers remained in the 1960s and 1970s, joined the roster of jobs covered by this fundamental legislation. Coverage of the country's least powerful workers and its least valued jobs finally overturned central racial and gender inequalities encoded in the nation's basic labor standards law and awarded workers and jobs long-sought recognition and respect.

Type
Articles
Information
Journal of Policy History , Volume 7 , Issue 4 , October 1995 , pp. 416 - 440
Copyright
Copyright © The Pennsylvania State University, University Park, PA. 1995

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References

Notes

1. Key, V. O. Jr., Southern Politics: The State and the Nation (New York, 1949)Google Scholar, finds that southern Senators differentiated themselves by “a common determination to oppose external intervention in matters of race relations” (352). “Only … three [agricultural] wage and hours issues evoked a high degree of Southern cohesion in coalition with the Republicans” (356). Patterson, James T., Congressional Conservatism and the New Deal: The Growth of the Conservative Coalition in Congress, 1933–1939 (Lexington, Ky., 1967)Google Scholar, notes that one-half of southern Democratic senators opposed the FLSA in 1937, and fifty-two of fifty-six representatives voting against the final bill were from the Old Confederacy (245). Freidel, Frank, FDR and the South (Baton Rouge, 1965)Google Scholar and “The South and the New Deal,” in The New Deal and the South ed. Cobb, James C. and Namorato, Michael V. (Jackson, Miss., 1984)Google Scholar. Daniel, Cletus E., Bitter Harvest: A History of California Farmworkers, 1870–1941 (Ithaca, 1981)Google Scholar, argues that the 1938 legislation “transformed farmworkers in California, and in other states where labor-intensive farming flourished, into what was for all practical purposes a rural caste, [as exclusions from Wagner Act, Social Security and FLSA] codified the traditional powerlessness of farm laborers” (261).

2. See Hart, Vivien, “Minimum Wage Policy and Constitutional Inequality: The Paradox of the Fair Labor Standards Act of 1938,” Journal of Policy History 1 (1989): 330–37CrossRefGoogle Scholar, and idem, Bound by Our Constitution: Women, Workers, and the Minimum Wage (Princeton, 1994), esp. 167–82Google Scholar. See also Grossman, Jonathan, “Fair Labor Standards Act: Maximum Struggle for a Minimum Wage,” Monthly Labor Review 101 (June 1978): 22–29.Google ScholarPubMed

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10. Hart, “Minimum Wage Policy and Constitutional Inequality,” 320.

11. Mettler, Suzanne, “Divided Citizens: State-Building, Federalism, and Gender in the New Deal,” Ph.D. diss., Cornell University, 1994. 423Google Scholar. Mettler compiled data through analyzing the gender composition of covered and exempt occupations. She disagrees with the earlier findings of Ronnie Steinberg, based on employer reports to the Wage and Hour Division, which showed more than twice as many men as women in covered occupations: 39 percent versus 14 percent. Wages and Hours: Labor and Reform in Twentieth Century America (New Brunswick, 1982), 98–99.Google Scholar

12. U.S. Statutes at Large 1938, 75th Cong., 3d sess., v. 52, pp. 1060–69, esp. 1060, “Definitions,” and 1067, “Exemptions.”

13. Jones, Jacqueline, Labor of Love, Labor of Sorrow: Black Women, Work, and the Family, from Slavery to the Present (New York, 1986), 199Google Scholar, estimates that 90 percent of black women worked in agriculture and domestic work during the 1930s. As agriculture declined in significance, the percentage of black men working as farmers and farmworkers declined from 42.5 percent in 1939 to 24.9 percent in 1949, 12.7 percent in 1959, and 5.3 percent in 1969; the percentage of black women working as farmers and farmworkers dropped from 16 percent in 1939 to 9.3 percent in 1949, 9.6 percent in 1959, and 1.6 percent in 1969, according to A Common Destiny: Blacks and American Society, ed. Jaynes, Gerald David and Williams, Robin M. Jr. (Washington, D.C., 1989), 273Google Scholar. During the 1930s, data were not organized separately to show Indian and Mexican American workers; nevertheless, local studies indicate a high proportion of these women found employment in domestic, agricultural, or agricultural processing work, e.g., Ruiz, Vicki L., “By the Day or By the Week: Mexicana Domestic Workers in El Paso,” in “To Toil the Livelong Day”: America's Women at Work, 1780–1980 (Ithaca, 1987)Google Scholar. Of Chicano men in the Southwest, 35 percent were farm laborers in 1930 and 25 percent in 1950; 20 percent of Chicano women did farm labor in 1930 and 6.2 percent in 1950, according to Barrera, Mario, Race and Class in the Southwest: A Theory of Racial Inequality (Notre Dame, 1979), 13Google Scholar. In 1930, in the eleven former Confederate states, blacks made up 54–9 percent of farmworkers; in California, Arizona, and New Mexico, 41.1 percent of farmworkers were “other races” than white; all the other states had only a small number of nonwhite farmworkers. The nonwhite percentage of farmworkers increased during the decade, according to Marc Linder's reading of 1930 and 1940 census data in “Farm Workers and the FLSA,” 1344–45. Glenn, Evelyn Nakano, Issei, Nisei, War Bride: Three Generations of Japanese American Women in Domestic Service (Philadelphia, 1986), 72–73Google Scholar, points out that 50 percent of lssei women in San Francisco were in domestic work, but only 6.4 percent in Los Angeles and 3.3 percent in Seattle.

14. Grubbs, Donald H., Cry from the Cotton: The Southern Tenant Farmer's Union and the New Deal (Chapel Hill, 1971)Google Scholar, recounts Arkansas Governor Junius Marion Futrell's justifying tenant removal, because the tenant “‘has the mentality of a 12–year-old child’ and should be subject to compulsory birth control or sterilization” (126). Natanson, Nicholas, The Black Image in the New Deal: The Politics of FSA Photography (Knoxville, 1992)Google Scholar, comments that New Deal documentation projects perpetuated an image of the black farmworker as a natural entity, embedded in the land rather than working upon it; “their identities were more frequently linked with the crop than were white identities.” Images in the era remained those of a happy-go-lucky people “less inclined than whites to take problems seriously” (20–21).

15. Conrad, The Forgotten Farmers, chap. 8.

16. Harvard Sitkoff, “The Impact of the New Deal on Black Southerners,” in The New Deal, ed. James C. Cobb and Michael V. Namorato. 121–22.

17. Pete Daniel, “The New Deal, Southern Agriculture, and Economic Change,” in The New Deal, ed. James C. Cobb and Michael V. Namorato, 55–59.

18. Cletus Daniel, in Bitter Harvest, emphasizes the shift from farmer efforts to sustain small independent farms to an acceptance of large-scale agriculture reliant on a politically powerless, often migratory labor force, chaps. 1–2.

19. Majka and Majka, Farm Workers, 143–52.

20. Hart, “The Right to a Fair Wage,” 111. Drawing on Shanley's, M. L. insight in Feminism, Marriage, and the Law in Victorian England, 1850–1895 (London, 1989)Google Scholar that Victorian beliefs in the separate nature of private family life justified the family's exemption from the rules applied in the public realm, Hart speculates that farmworkers identified with a family farm were similarly excluded from access to legal protection and rights.

21. Passage of an expanded FLSA to cover farmworkers fit Truman's 1949 emphasis on a Fair Deal for all Americans, including racial minorities and workers after his 1948 election victory, but his goals were continually frustrated by the seniority of conservative, often southern congressmen, according to McCoy, Donald R., The Presidency of Harry S. Truman (Lawrence, Kan., 1984), 164–75.Google Scholar

22. Testimony of William R. McComb, Administrator, Wage and Hour and Public Contracts Division, U.S. Department of Labor, in Congress, House, Committee on Education and Labor, Amendments to the Fair Labor Standards Act of 1938. Hearings Before the Committee on Education and Labor, 80th Cong., 2d sess., 27 January to 5 February 1949, Part I, 65. (Hereafter House, Amendments, 1949) McComb's advocacy bears out Theda Skocpol's observation that “collectivities of officials may elaborate already established public policies in distinctive ways [by] the intellectual activities of civil administrators engaged in diagnosing societal problems and framing policy alternatives to deal with them.” “Bringing the State Back In: Strategies of Analysis in Current Research,” in Bringing the State Back In, ed. Evans, Peter B. et al. (Cambridge, 1985), 9, 11CrossRefGoogle Scholar. The idea of a minimum wage for farmworkers had been recommended as early as 1937 by Fisk University sociologist Charles S. Johnson in his work for the President's Commission on Farm Tenancy. See Mertz, Paul E., New Deal Policy and Southern Rural Poverty (Baton Rouge, 1978), 174.Google Scholar

23. Mrs. Elizabeth Sasuly, Washington Representative, Food, Tobacco, Agricultural and Allied Workers of America, CIO, House, Amendments, 1949, I, 797, 785–86. Ruiz, Vicki, Cannery Women/Cannery Lives: Mexican Women, Unionization, and the California Food Processing Industry, 1930–1950 (Albuquerque, 1987)Google Scholar, provides a history of FT A, esp. 57 and chap. 6. Previously named the United Cannery, Agricultural, Packing and Allied Workers of America (UCAPAWA), FTA worked from its inception in the 1930s to organize California farm labor and southern sharecroppers as well as packing workers in Texas, the South, and California. Bringing together African American and Mexican American workers in a transregional alliance, the FTA nevertheless gave up organizing farm fields in the late 1940s to concentrate on industrialized cannery workers. Daniel, in Bitter Harvest, 278–81, views the UCAPAWA decision, later validated by the CIO and AFL, as the end to union interest in farmworker organizing.

24. Austin E. Anson, Executive Manager, Texas Citrus and Vegetable Growers and Shippers, Harlingen, Texas, House, Amendments, 1949, I, 625–33.

25. John H. Todd, Counsel and Acting Executive Secretary, National Cotton Compress and Cotton Warehouse Association, House, Amendments, 1949, I, 876.

26. Clarence Mitchell, Labor Secretary, National Association for the Advancement of Colored People, Congress, Senate, Committee on Labor and Public Welfare, Fair Labor Standards Act Amendments of 1949. Hearings Before a Subcommittee of the Committee on Labor and Public Welfare, 81st Cong., 1st sess., 11 April to 22 April 1949, 226. (Hereafter Senate, Amendments of 1949).

27. William R. McComb, Administrator, Wage and Hour and Public Contracts Division, Department of Labor, in Congress, Senate, Committee on Labor and Public Welfare, Fair Labor Standards Act Amendments. Hearings Before a subcommittee of the Committee on Labor and Public Welfare, United States Senate, 80th Cong., 2d sess., 19 April to 26 April 1948, Part I, 67–68. (Hereafter Senate, Amendments, 1948)

28. Clarence Mitchell, Labor Secretary, NAACP, Senate, Amendments of 1949, 225.

29. Miss Elizabeth Magee, National Consumers League for Fair Standards, House, Amendments, 1949, I, 890–91. Mrs. Gertrude Folks Zimond also spoke for the National Child Labor Committee in support of extended regulation of agricultural child labor, I, 635–40. The National Council of Jewish Women and a coalition of ten other national women's groups, including the American Federation of Teachers, the American Home Economics Association, the YWCA, the National Women's Trade Union League, and the United Council of Church Women, also memorialized Congress to pass stronger childlabor provisions. See Senate, Amendments of 1949, 987–88.

30. Congressional Quarterly Almanac, 81st Cong., 1st sess., 1949, V (Washington, D.C., 1949), 434, 440, 468–71.

31. Burk, Robert Fredrick, The Eisenhower Administration and Black Civil Rights (Knoxville, 1984), chap. 5Google Scholar, concludes that Eisenhower advocated removal of official barriers to equal employment opportunity, but he was unwilling to consider federal government action to overcome resistance to equal employment, integrated housing, and other civil rights measures.

32. Stanley H. Ruttenberg, Director of Research, American Federation of Labor and Congress of Industrial Organizations, Congress, House, Fair Labor Standards Act. Hearings Before a Subcommittee of the Committee on Education and Labor, House of Representatives, 84th Cong., 2d sess., on bills relating to the extension of coverage of the Fair Labor Standards Act, 19 July to 20 July 1956, 93, 102.

33. Congress, Senate, Proposals to Extend Coverage of Minimum Wage Protection. Hearings Before a Subcommittee on Labor of the Committee on Labor and Public Welfare, U.S. Senate, 85th Cong., 1st sess., March 1957, 359. (Hereafter Senate, Proposals, 1957)

34. Clarence Mitchell, Director, Washington Bureau, National Association for the Advancement of Colored People, Senate, Proposals, 1957, 854, 856.

35. Patricia Roberts Harris, National Council of Negro Women, Senate, Proposals, 1957, 860–61.

36. Congressional Quarterly Almanac, 87th Cong., 1st sess., 1961, XVII (Washington, D.C., 1961), 471, 481, 529–30, 571–72.

37. W. Willard Wirtz, Secretary of Labor, Congress, House, Committee on Education and Labor, Minimum Wage-Hour Amendments, 1965. Hearings Before the General Subcommittee on Labor, Committee on Education and Labor, House of Representatives, 89th Cong., 1st sess., 25 May to 17 June 1965, Part 1, 8–9. (Hereafter House, Minimum Wage, 1965)

38. Foley, Michael, The New Senate: Liberal Influence on a Conservative Institution, 1959–1972 (New Haven, 1980), 51Google Scholar, counts a record twenty-eight liberal senators in 1965. Sundquist, James L., Politics and Policy: The Eisenhower, Kennedy, and Johnson Years (Washington, D.C., 1968)Google Scholar.

39. Majka and Majka, Farm Workers, 159.

40. Ibid., 172–76.

41. Letters to Representative James Roosevelt, Chairman, House Labor Subcommittee, House of Representatives, from Robert B. Delano, President, Virginia Farm Bureau Federation, 14 July 1965; Harold F. Ohlendorf, Arkansas Farm Bureau Federation, 15 July 1965; Donald A. John, Plains Cotton Growers, Inc., 13 July 1965; and Robert D. Pugh, President, American Cotton Producers Associates, 14 July 1965, Congress, House, Minimum Wage-Hour Amendments, 1965. Hearings Before the General Subcommittee on Labor of the Committee on Education and Labor, House of Representatives, 89th Cong., 1st sess., 14 July to 21 July 1965, Part 4 and Appendix, 2028–31. Daniel, Pete, Breaking the Land: The Transformation of Cotton, Tobacco, and Rice Culture since 1880 (Urbana, 1985), 242–49Google Scholar, sees the job loss as simply the culmination of the long-term southern agricultural shift from lowwage, labor-intensive cultivation to mechanized work.

42. Fred W. Burrows, Executive Vice President, International Apple Association, Inc., House, Minimum Wage, 1965, Part 1, 395–97.

43. Congressional Quarterly Almanac, 89 Cong., 2d sess., 1966, XXII (Washington, D.C., 1966), 821, 912, 974.

44. Harrison, Cynthia, On Account of Sex: The Politics of Women's Issues, 1945–1968 (Berkeley and Los Angeles, 1988), 101–3.Google Scholar

45. Such an alliance had always failed in the past, according to Palmer, Phyllis, Domesticity and Dirt: Housewives and Domestic Servants in the United States, 1920–1945 (Philadelphia, 1989), chap. 6Google Scholar; Rollins, Judith, Between Women: Domestics and Their Employers (Philadelphia, 1985), chap. 5Google Scholar; Romero, Mary, Maid in the U.S.A. (New York, 1992).Google Scholar

46. Mathews, Glenna, “Just a Housewife”: The Rise and Fall of Domesticity in America (New York, 1987)Google Scholar; Palmer, Domesticity and Dirt, chaps. 2 and 3; Glenn, Evelyn Nakano, “From Servitude to Service Work: Historical Continuities in the Racial Division of Paid Reproductive Labor,” Signs 18 (1992): 31–33CrossRefGoogle Scholar, on the pattern of racial subordination in paid labor.

47. Skocpol, Theda, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass., 1992), 36Google Scholar, emphasizes Progressive women's “maternalist” goals of bringing “domestic ideals into public life.” I have labeled as “masculinist” the alternative tactic of bringing public efficiency ideals into private life.

48. Hon.Abzug, Bella, a Representative in Congress from the State of New York, House, Fair Labor Standards, 1973, 86–87.Google Scholar

49. Dr.Scott, Ann on behalf of the National Organization for Women, Senate, Fair Labor Standards, 1971, 295.Google Scholar

50. Clarence M. Mitchell, Legislative Chairman, Leadership Conference on Civil Rights, Congress, Senate, Fair Labor Standards Amendments of 1971. Hearings Before the Subcommittee on Labor of the Committee on Labor and Public Welfare, U.S. Senate, 92d Cong., 1st sess., 26 May to 22 June 1971, Part L, 223. (Hereafter Senate, Fair Labor Standards, 1971)

51. Clarence Mitchell, Chairman of the Legislative Committee, Leadership Conference on Civil Rights, and Director, Washington Bureau, N AACP, Congress, House, Fair Labor Standards Amendments of 1973. Hearings Before the General Subcommittee on Labor of the Committee on Education and Labor, House of Representatives, 93d Cong., 1st sess., 13 March to 10 April 1973, 349–50. (Hereafter House, Fair Labor Standards, 1973)

52. Hardy, George, President of the Service Employees International Union, AFL-CIO, House, Fair Labor Standards, 1973, 347.Google Scholar

53. Statement of Mrs.Shriver, Lucille, Director, National Federation of Business and Professional Women's Clubs, Inc., Senate, Fair Labor Standards, 1971, 284.Google Scholar

54. Haener, Dorothy, Founding Member, National Organization for Women, accompanied by Kee Hall, NOW Legislative Office, House, Fair Labor Standards, 1973, 240, 242.Google Scholar

55. Letter from Congresswomen Shirley Chisholm, Marjorie S. Holt, Leonor K. Sullivan, Yvonne Braithwaite Burke, Patsy T. Mink, Julia Butler Hansen, Edith Green, Martha W. Griffiths, Ella T. Grasso, Bella S. Abzug, Elizabeth Holtzman, Barbara Jordan, Patricia Schroeder to Hon. John H. Dent, Chairman, [House] General Subcommittee on Labor, 17 April 1973, in Subcommittee on Labor of the Committee on Labor and Public Welfare, U.S. Senate, Legislative History of the Fair Labor Standards Amendments of 1974 (Washington, D.C., 1976), I, 151–52Google Scholar. (Hereafter FLSA, 1974, I)

56. FLSA, 1974, I, 306.

57. Statement of Edith B. Sloan, Executive Director, National Committee on Household Employment, accompanied by Geneva Reid, Chairwoman, Household Technicians of America, House, Fair Labor Standards, 1973, 206. NCHE had spun off the Household Technicians of America as a proto-union organizing group in affiliation with NCHE, which persisted in legislative advocacy, women's group coalition work, and directing projects to demonstrate the feasibility of labor standards in household employment.

58. FLSA, 1974, 279.

59. Ibid., 279, 501.

60. Edith B. Sloan, House, Fair Labor Standards, 1973, 207.

61. FLSA, 1974, I, 597–98.

62. Ibid., 277.

63. “Minority Views of Messrs. Dominick, Taft, and Beall,” FLSA, 1974, I, 599.

64. Statement of Allen Nixon, president, Southern States Industrial Council, House, Fair Labor Standards, 1973, 138–39.

65. Legislative History of the Fair Labor Standards Amendments of 1974, II, 1823.

66. Ibid., 1818.