Case Information

*1 ORNEY GENERAL OF TEXAS John D. Reed, Commissioner

Bureau of Labor Statistics

Austin, Texas

Dear Mr. Reed: Opinion No. O-5 154

Re: Whether, under the provisions of S. B. 129, 48th Legislature, Regular Session, a hearing is necessary before an employer may employ female employees more than nine hours per day, or fifty-four hours per week, as outlined in Section 1.

We beg to acknowledge receipt of your inquiry with respect to the above-captioned subject matter, as follows:

“Attached you will find copy of Senate Bill 129 which was ap- proved by Governor Coke R. Stevenson on March 18, 1943. This Bi~ll became effective upon the Governor’s signature, being passed in the Senate by 24 yeas and in the House by 117 yeas.

“The first five sections of this Act seem to be a reinactment of those laws that were repealed by this Act. In Section 6 provi- sion is made that in time of war or when the President of the United States proclaims a +tate of national to exist female workers in certain are exempt from the provi- sions of Sections 1, 2, 3, 4, 5 and 13 of the Act and may be em- ployed not exceeding 10 hours per day, provided such fiours of employment in such i.ndustry are not injurious to the health or morals of female employees, or working such hours does not add to the hazard of their occupation and such hours of employ- ment are in the public interest.

“Nothing is stated in Section 6 providing for a pub1i.c hearing to determine whether or not such hours of employment are injuri- ous to the health or morals, add to the hazard of their occupation or whether or not such hours of employment are in- terest.

“However, beginning with Section 7 there is outlined down through Section 11 a procedure whereby employers of employers coming within the jurisdiction in Section 6 MAY apply of any of the Federal acts enumerated to the Commissioner of the Bureau of Labor Statistics for a hear- ing under the terms of the Act. “Will you please give me an opinion as to whether or not such coming within Section 6 is required before an employer, than 9 hours per of the Act, can employ female employees more

day or 54 hours per week as outlined in Section 1. Inasmuch as thins Department has application from employers affecting approxi- mately 100,000 female employees an early reply to this request will be appreciated.”

The pertinent Sections of Sentate Bill 129 are as foll.ows: “Section 1. No female shall be employed in any factory, mine, mill, workshop, mechanical or mercantile establishment, hotel, restaurant, rooming house, theater, moving picture show, barber shop, beauty shop, road side drink and/or food vending establish- ment, telegraph, telephone or other office, express or transporta- tion company, or any State institution, or any other establishment, institution or enterprise where females are employed, for more than nine (9) hours in any one calendar day, nor more than fifty- four (54) hours in any one calendar week.

“Sec. 6. In addition to the foregoing exemptions, in time of war and/or when the President

state of national to exist, female workers employed in industries coming within the jurisdiction of the Fair Labor Standards Act of 1938 and amendments thereto, the Act of June 30, 1936, C. 881, 49 Statute 2036, U. S. Code, Supplement II, Title 41, Paragraph 35 - 45, as amended by Act of May 13, 1942, Public No. 552, 77th Congress, 2nd Session, commonly known as the Walsh- Healey Act, or the Act of March 3, 1931, C. 411, 46 Statute 1494, as amended August 30, 1935, C. 325, 49 Statute 1011, U. S. Code Title 40, Paragraph 276A and Supplement V, Title 40, Paragraph 276A-276A-6, commonly known as the Bacon-Davis Act, are ex- empted of Sections 1, 2, 3, 4, 5 and 13 of this Act, and female workers in such industries may be employed not exceeding ten (10) hours per day provided such hours of employ- ment in such are not injurious to the health or morals of female employees, or working such hours does not add to the hazards of their occupations and such hours of employment are interest. Provided, however, that in time of war *3 _- .

and/or when the President

state of national emergency to exist, all female office em- ployees of such employers coming within the purview Section 6 hereof are exempt from the provisions of this Act.

“Sec. 7. Employers, (l/3) the female em- ployees of employers, coming within the jurisdiction of any of the Federal Acts enumerated in Section 6 may apply to the Commissioner of Labor Statistics for a hearing under the terms of this Act, and it shall be the duty of the Commissioner of Labor Statistics, on the filing of the application, to designate a date for a hearing not later than thirty (30) days after the date of the receipt of the application; and he shall within five (5) days from the date of the receipt of such application, set a date for a hearing, and notify such applying employer or em- ployees of such date; but for good caus,e shown by employer or employees, may postpone such hearing for as much as five (5) days, and he shall designate the place of such hearing, which may be anywhere in the State of Texas, but at a place convenient employees, and the Commissioner or any representative duly authorized by him for such purpose; and the Commissioner or his representative shall hold such hearing at the time and place designated.

“Sec. 8. When any employer shall apply such employer shall give notice of the application to the em- ployees affected by posting notices in the plant, yard and/or place of business of such employer at places readily access- ible to the affected employees and in such manner that the em- ployees in the usual course of their employment shall have an opportunity to read and inspect such notices.

“Sec. 9. In time of war the Commissioner of Labor Statis- tics may, based upon private investigation and without notice or hearing, if he finds that the employment in any designated for ten (10) hours per day will not injure the health or morals and/or add to the hazards of their occupa- tion, and that such hours of labor are file his findings as required herein, and make an order granting an exemption; and the employer affected shall be exempt for thirty (30) days of this Act, during which time if further exemption is desired by employers affected, notice and as provided herein shall be had as though no temporary

exemption had previously been in effect.

“Sec. 10. The employer’s notice to employees required herein shall state that the application for a hearing is made, and the date which has been set for the hearing, and if an exemption under the foregoing provisions of this Act is in effect insofar as the employer’s business, trade, or is concerned, it shall state the date a hearing shall be had to extend the exemption for a period of six (6) months. The affidavit of an employer or an officer of an employer that such notice has been given shall be prima facie evidence that the notice provisions of this Act have been complied with.

Failure to give such notice shall be sufficient cause to reject such application.

‘*Sec. 11. On the date designated the Com- missioner of Labor Statistics, or his authorized representa- tive, shall hold an informal under such rules as the Commissioner of Labor Statistics may make, at which anyone interested may offer information; and if the Labor Commis- sioner finds as a matter of fact from the evidence presented that the employment of female workers in the business, trade, and/or concerned, for ten (10) hours per day is not injurious to the health or morals of the females employed therein and/or does not add to the hazards of their occupation, and that ten (10) hours per day of labor is in the public he shall make written findings of such facts and file such with the Secretary of State, and draw an order granting such employer affected exemption of Sections 1, 2, 3, 4, 5, and 13 herein for a period of six (6) months, which order shall be made within five (5) days after the conclusion of the hearing and shall be filed with the Secretary of State. Such orders during wartime shall be extended at the end of six (6) months for a like period of six (6) months without fur- ther notice or hearing, unless prior to such automatic extension, a protest is filed with the Commissioner, notice of which protest is furnished by a sufficient number of employees to lead the Commissioner to believe that there is no longer a necessity for such exemption If he finds the facts adversely to the applicant, he will so state in his findings and no order will issue.” *5 _’ -

Upon a consideration of the entire bill, giving effect to each and every part thereof, as we should do, and especially to Sections 6, 7, 8, 9, 10 and 11 above quoted, we beg to advise as follows:

No employer contemplated in Section 6 of the Act may law- fully employ female employees, other than office employees, in time of war or when the President a state of National to exist, more than nine hours per calendar day, or fifty-four hours per calendar week, without an order by the Commis- sioner of Labor Statistics granting that exemption. In other words, no such employer may, upon his own initiative, bring himself within an ex- emption of the requirements of Sectibn 1 of the Act.

Such an order of exemption may be made by the Commissioner of Labor Statistics to such employer in time of war, based upon his private investigation and without notice or hearing, upon his finding that the em- ployment in such designated for ten hours per day will not injure the health or morals and/or add to the hazards their occupation, and that such hours of labor are

which such order of exemption will be effective as to the particular em- ployer for thirty days from the date thereof. (See Sec. 9)

Where has not acted upon his own initiative, an employer, of the female employees of an employer coming within the jurisdiction of any of the federal acts enumerated in Sec. 6 of the Act, may apply to the Commissioner of Labor Statistics whereupon it becomes the duty of the Commissioner to designate a place and time not later than thirty days for such hearing; and furthermore, making it the Commissioner’s duty, or that of his representative, to hold such hearing. (See Sec. 7)

Sec. 8 requires notice to the employees where the application has been made by the employer. There is necessarily implied a require- ment of notice to the employer where the application for hearing is by em- ployees.

The Act contemplates that the Commissioner shall make his or- der upon such hearing, and if favorable he would thus be brought within the exemption from the requirements of Section 1, otherwise he would not be exempt.

So, also, must hold a hearing and make a finding upon any requested extension of a thirty-days’ order previ- ously made by him upon his own initiative, under Sec. 9.

We trust that what we have said is a sufficient and satisfac- tory answer to your inquiry.

Very truly yours ATTORNEYGENERALOF TEXAS Oc’ie Speer Assistant OS-MR

Approved Opinion ATTORNEY GENERAL OF TEXAS Committee

BY fl,&t/7?j 1 Chairman .