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The protection of the health of workers and consumers is an essential of home-work legislation. A thorough investigation of each application for a home-worker's certificate, including inspection of the premises to insure a sanitary and healthful work place, should be made. No certificates should be issued in homes in which infection or communicable disease is present. Home work should be prohibited on products where there is a serious health hazard either to the consuming public or to the workers.
In the case of industrial home work, the necessity for adequate appropriations and effective enforcement cannot be overemphasized. Unless careful, periodic inspections are made, the entire system of regulation described above is useless. It is probably advisable to require the employer of home workers to bear the expense of regulation through the payment of fees for licenses and the imposition of a tax on home-work products.
The interstate aspects of the problem of home-work regulation deserve considerable study. As partial control, the adoption of a provision in the State home-work law making residence a condition of receiving an employer's license or requiring a nonresident employer to designate a responsible representative within the State is desirable. This procedure does not solve the problem of the shipment of homework materials into a State where there is no regulation and the subsequent competitive sale of the products of unregulated home work. It is recommended that the home-work committee appointed by the Secretary of Labor investigate the effectiveness of Federal legislation similar to the Hawes-Cooper Act regulating the interstate shipment of prison-made articles, with a view toward applying such a regulatory device to the products of industrial home work.
Proposed State Law to Regulate and Tax Industrial Home Work'
represented in Senate and
SECTION 1. Legislative purpose.-This State has long recognized that employment of men, women, and children under conditions detrimental to their health and general welfare, results in injury not only to the workers immediately affected, but also to the public interest as a whole. This recognition has produced a broad program of regulatory legislation to conserve the public welfare. The continuance of an unregulated industrial home-work system in this State runs counter to that program, since it is usually accompanied by excessively low wages, long and irregular hours, and insanitary or otherwise inadequate working quarters. Employment of young children in industrial home-work occupations is frequent, but effective supervision of this child-labor evil has not been attainable under
• Endorsed by International Association of Governmental Labor Officials, Sept. 26, 1936. (See p. 232.) Drafted by Walter Gellhorn, professor of law, Columbia University, acting as legal adviser to the following emmittee appointed by the Secretary of Labor: Frieda S. Miller, director, division of women in industry and minimum wage, State Department of Labor of New York, chairman; Anne S. Davis, assistant chief. supervisor, minimum wage division, State Department of Labor of Illinois; W. E. Jacobs, Commissioner of Labor of Tennessee; Beatrice McConnell, director, industrial division, Children's Bureau, U. S. Department of Labor; A. Louise Murphy, industrial economist, Division of Labor Standards, U. S. Department of Labor, W. A. Pat Murphy, Commissioner of Labor of Oklahoma; Mary Elizabeth Pidgeon, chief, reb division, Women's Bureau, U. S. Department of Labor; John J, Toohey, Jr., Commissioner of Labor of New Jersey.
present statutes. The dangerous consequences of this system may fall upon the consumer of its products, as well as upon the men and women who are its work force. The preservation of the system, moreover, endangers the protection of the workers in factory industries, which, being forced to compete with industrial home work, are under pressure to relax the established safeguards of life, health, and the public welfare. After study of experience and reported investigations, the legislature is convinced that industrial home work must eventually be abolished and that, during a period of adjustment, it must be strictly controlled in the interest of the wage earners of this State and of the public at large. This act is the product of that conviction.
SEC. 2. Short title.-This act shall be known and may be cited as the "Industrial home-work law."
SEC. 3. Definitions.-Whenever used in this act:
1. "To manufacture" includes to prepare, alter, repair, finish, or process in whole or in part, or handle in any way connected with the production, wrapping, packaging, or preparation for display of an article or materials.
2. "Person" means an individual, partnership, firm, association, domestic or foreign corporation, the legal representatives of a deceased individual, or the receiver, trustee, or successor of an individual, firm, partnership, association, or domestic or foreign corporation.
3. "Employer" means any person who, for his own account or benefit, directly or indirectly or through an employee, agent, independent contractor, or any other person, (a) delivers or causes to be delivered to another person any materials or articles to be manufactured in a home, and thereafter to be returned to him, not for the personal use of himself or of a member of his family, or thereafter to be disposed of otherwise in accordance with his directions; or (b) sells to another person any materials or articles for the purpose of having such materials or articles manufactured in a home and of then rebuying such materials or articles, after such manufacture, either by himself or by someone designated by him.
4. "Contractor" means any person, who, for the account or benefit of an employer, representative contractor or other person, distributes to a home worker or any other person not recruited or engaged by such employer, representative contractor or other person, materials or articles to be manufactured in a home and thereafter to be returned to him or otherwise disposed of in accordance with his directions.
5. "Representative contractor" means any person who receives from an employer or contractor not within the State, materials or articles to be distributed by him to any home worker or other person not recruited or engaged by such employer or contractor, to be manufactured in a home and thereafter to be returned to him or otherwise disposed of in accordance with his directions.
6. "Home" means any room, house, apartment, or other premises, whichever is most extensive, used in whole or in part as a place of dwelling; and includes outbuildings upon premises that are primarily used as a place of dwelling, where such outbuildings are under the control of the persons dwelling on such premises.
7. "Industrial home work" means any manufacture in a home of materials or articles for an employer, a representative contractor, or a contractor.
8. "Home worker" means any person engaged in manufacturing in a home materials or articles for an employer, a representative contractor, or a contractor. 9. "Commissioner" means the industrial commissioner.
10. "Director" means the director or any deputy director of the division in the department of labor which is charged by the commissioner with the immediate responsibility of enforcing this act.
SEC. 4. Prohibited home work.—It shall be unlawful to manufacture in a home, for an employer, contractor, or representative contractor, any of the following articles, and no permit issued under this act shall be deemed to authorize such manufacture:
1. Articles of food or drink.
2. Articles for use in connection with the serving of food or drink.
3. Articles of wearing apparel for use of infants or children 10 years of age or under.
4. Toys and dolls.
6. Drugs and poisons.
7. Bandages and other sanitary goods.
8. Explosives, fireworks, and articles of like character.
9. Articles the processing of which requires exposure to substances determined by the commissioner to be hazardous to the health or safety of persons so exposed. SEC. 5. Power to prohibit.-1. The commissioner shall have the power upon his own initiative, and it shall be his duty upon receipt of a petition of 50 or more
residents of this State, to cause the director to make an investigation of that portion or branch of any industry which employs home workers, in order to determine: (a) Whether the wages and conditions of employment are injurious to the health and welfare of home workers in such portion or branch; or (b) whether the wages and conditions of employment prevailing in such portion or branch have the effect of rendering unduly difficult the maintenance of existing labor standards or the observance and enforcement of labor standards established by law or regulation for the industry of which such portion or branch is a part, thus jeopardizing wages or working conditions of the factory workers in such industry.
2. If, on the basis of information in his possession, with or without an investigation as provided in this section, the commissioner shall find that industrial home work cannot be continued within any industry without injuring the health and welfare of the home workers within that industry, or without rendering unduly difficult the maintenance of existing labor standards or the observance and enforcement of labor standards established by law for the protection of the factory workers in that industry, the commissioner shall by order require all employers, representative contractors, or contractors, in such industry to discontinue the furnishing within this State of material for industrial home work, and no permit issued under this act shall be deemed thereafter to authorize the furnishing of materials for industrial home work prohibited by such order.
SEC. 6. Procedure.-1. Before making such order the commissioner shall hold a public hearing or hearings at which an opportunity to be heard shall be afforded to any employer, or representative of employers, and any home worker, or representative of home workers, and any other person or persons having an interest in the subject matter of hearing. A public notice of such hearing shall be given in such manner as may be fixed by the commissioner. Such notice shall be made at least 30 days before the hearing is held. Such hearing or hearings shall be in such place or places as the commissioner deems most convenient to the employers and home workers to be affected by such order.
2. The commissioner shall determine the effective date of such order, which date shall be not less than 90 days after the date of its promulgation. The order shall set forth the type or types of manufacturing which are prohibited after its effective date.
SEC. 7. Permit required.-1. Every employer and every representative contractor within this State must procure from the commissioner an employer's permit. Application for such permit shall be made on a form prescribed by the commissioner. Such permit shall be in writing, dated when issued, and signed by the commissioner or the director. It shall give the name and address of the person to whom it is issued and shall designate and limit the acts that are permitted. Such permit shall be valid for a period of 1 year from the date of its issuance, unless sooner revoked.
2. No such permit shall be issued to any person, or to the successor in interest of any person, whose employer's permit has been revoked by the commissioner within 2 years prior to the last application for such a permit.
3. An employer or a representative contractor who delivers or causes to be delivered to another person any materials for manufacture by industrial home work, without having in his possession a valid employer's permit from the commissioner, shall be guilty of a misdemeanor punishable by a fine of $1,000.
SEC. 8. Injunction against continued violations.-Whenever any employer or representative contractor has twice been found guilty of conducting his business without an employer's permit, the commissioner may apply to the...
court of any county in which such employer or representative contractor has a pisce of business for an injunction, and such court shall upon such application issue an injunction, to restrain such employer or representative contractor from further violating the provisions of this act.
SEC. 9. Fees.-1. A fee of $200 shall be paid to the commissioner for the original isuance of an employer's permit.
2. For each annual renewal of such permit, the employer or representative contractor shall pay to the commissioner a fee of (a) $50, where at no time during the preceding calendar year did the employer or representative contractor directly or indirectly have business relations simultaneously with more than 100 home workers; (b) $100, where at any time during the preceding calendar year the en.ployer or representative contractor directly or indirectly had business relations smitaneously with more than 100 but less than 300 home workers; (c) $200, were at any time during the preceding calendar year the employer or representative contractor directly or indirectly had business relations simultaneously with 300 or more home workers.
SEC. 10. Contractor's permit.-1. Every contractor must procure from the commissioner a written contractor's permit. Application for such permit shall be made on a form prescribed by the commissioner. Such permit shall be valid for 1 year from the date of its issuance, and shall be issued by the commissioner to an applicant upon payment by such applicant of a fee of $25.
2. But no such permit shall issue to any person who or whose predecessor in interest held an employer's permit which, within 2 years prior to the application for a contractor's permit, was revoked by the commissioner.
SEC. 11.5 Home-worker's certificate.-1. Every person desiring to engage in industrial home work within this State must procure from the commissioner a home-worker's certificate which shall be issued without cost and which shall be valid for a period of 1 year from the date of its issuance, unless sooner revoked or suspended. Application for such certificate shall be made in such form as the commissioner may by regulation prescribe. Such certificate shall be valid only for work performed by the applicant himself in his own home and in accordance with the provisions of this act.
2. No home-worker's certificate shall be issued (a) to any person under the age of years (insert minimum age for factory employment in State law); or (b) to any person suffering from an infectious, contagious, or communicable disease or living in a home that is not clean, sanitary, and free from infectious, contagious, or communicable disease.
3. The commissioner may revoke or suspend any home-worker's certificate if he finds that the holder is performing industrial home work contrary to the conditions under which the certificate was issued or to any provision of this act or has permitted any person not holding a valid home-worker's certificate to assist him in performing his industrial home work.
SEC. 12. Records to be kept.-No person having an employer's or a contractor's permit shall deliver or cause to be delivered or received any articles for or as a result of industrial home work unless he shall keep in such form and forward to the commissioner at such intervals as he may by regulation prescribe and on such blanks as he may provide, a complete and accurate record of all persons engaged in industrial home work on materials furnished or distributed by him, of all places where such persons work, of all materials furnished and distributed to such persons described as the commissioner may require, of all goods which such persons have manufactured, of the net cash wages received by each home worker, and of all contractors to whom he has furnished materials to be manufactured for him in any home.
SEC. 13. Conditions of manufacture.-Industrial home work on articles manufactured for any person to whom an employer's permit has been issued shall be performed-1. Only by a person possessing a valid home-worker's certificate; 2. Only by persons over the age of (insert minimum age for factory employment in State law); 3. Only by persons resident in the home in which the work is done; 4. Only during such hours as may be fixed by law or regulation as permissible hours of labor in factories by persons of the same age and sex as the home worker; and 5. Only in a home that is clean and sanitary and free from any infectious, contagious, or communicable disease.
Upon the issuance of an employer's permit to an employer or representative contractor, such employer or representative contractor shall be deemed to have accepted responsibility for the observance of the conditions of manufacture specified by this section; and each of such conditions shall be deemed to be a condition of the employer's permit to the same extent as though it were expressly set forth therein.
SEC. 14. Labels required.-No employer or representative contractor or contractor shall deliver or cause to be delivered any materials or articles to be manufactured by any home worker unless there has been conspicuously affixed to each article a label or other mark of identification bearing the employer's or representative contractor's name and address, printed or written legibly in English. But if the goods are of such a nature that they cannot be individually so labeled or identified, then the employer or representative contractor shall conspicuously label in like manner the package or other container in which such goods are delivered or are to be kept while in the possession of the home worker. SEC. 15. Unlawfully manufactured articles.—Any article which is being manufactured in a home in violation of any provision of this act may be removed by the commissioner and may be retained by him until claimed by the employer.
This section was not included in the language of the draft as it was presented to the International Association of Governmental Labor Officials in September 1936, but is in line with the recommendation of the I. A. G. L. O. home-work committee that any bill for the regulation of industrial home work include provision for home-workers' certificates.
See footnote 5.
The commissioner shall by registered mail give notice of such removal to the person whose name and address are affixed to the article as provided by section 14. Unless the article so removed is claimed within 30 days thereafter, it may be destroyed or otherwise disposed of.
SEC. 16. Delivery to contractors.-No employer or representative contractor shall deliver or cause to be delivered any materials or articles to a contractor who is not in possession of a valid contractor's permit.
SEC. 17. Violations.-1. If the commissioner has reason to believe that a person having an employer's permit is not observing the provisions of this act or of a regulation or order authorized by it to be issued by the commissioner or the conditions of his employer's permit, the commissioner may, on 10 days' notice, summon such person to appear before the commissioner to show cause why the commissioner should not find that he has failed to observe such provisions or conditions.
2. If, after such hearing, the commissioner finds as a fact that such person has failed to observe or comply with a provision of this act, his permit, or a regulation or order issued by the commissioner under authority of this act, the commissioner may (a) revoke the permit of such person, his order of revocation to be effective on a date fixed by the commissioner not more than 30 days after the date of its issuance; (b) cause to be published in a newspaper or newspapers circulating within this State, or in such other manner as the commissioner may deem appropriate, the name of such person as having failed in the respects stated to maintain the standards established under authority of this act. Such publication may contain an identification, by trade name or otherwise, of the products manufactured or sold by such person. Neither the commissioner nor any authorized representative of the commissioner, nor any newspaper publisher, proprietor, editor, nor employee thereof shall be liable to an action for damages for publishing the name of any person as provided for in this act, unless guilty of some willful misrepresentation.
SEC. 18. Home-work tax.-1. Each employer and each representative contractor shall be required to pay quarterly (on January 15, April 15, July 15, and October 15 of each year) an excise tax of $2.50 for each home worker to whom materials have been sent or delivered by such employer or representative contractor during the preceding quarter.
2. The tax commission is hereby charged with the enforcement of this section. 3. Each employer and each representative contractor shall file quarterly with the tax commission, on a form to be prescribed by it, a return showing the number of home workers to whom material has been sent or delivered by him during the preceding quarter, together with such other information as the commission may require. At the time of filing this return, the employer or representative contractor shall pay to the commission the tax imposed above.
4. If a return as required by this section is not filed within 30 days after it is due, or if, when filed, a return is incorrect or insufficient and the maker fails to file a corrected or sufficient return within 30 days after the same is required by notice from the tax commission, such commission shall determine the amount of tax due from such information as it may be able to obtain. The tax commission shall give notice of such determination to the person liable for the tax. Such determination shall finally and irrevocably fix the tax unless the person against whom it is assessed shall within 30 days after the giving of notice of such determination apply to the tax commission for a hearing or unless the tax commission of its own motion shall reduce the same. At such hearing evidence may be offered to support such determination or to prove that it is incorrect. After such hearing the tax commission shall give notice of its decision to the person liable for the tax. The decision of the tax commission may be reviewed by certiorari if application is made therefor within 30 days after the giving of notice thereof. Whenever under this act an order of certiorari is permitted it shall not be granted unless the amount of any tax sought to be reviewed, with penalties thereon, if any, shall be first deposited with the tax commission and an undertaking filed with the tax commission, in such amount and with such sureties as a judge of the court shall approve, to the effect that if such order be dismissed or the tax confirmed the applicant for the writ will pay all costs and charges which may accrue in the prosecution of the certiorari proceeding, or, at the option of the applicant, such undertaking may be in a sum sufficient to cover the tax, penalties, costs and charges aforesaid, in which event the applicant shall not be required to pay such tax and penalties as a condition precedent to the granting of such order.
See pp. 168 and 169 of the accompanying memorandum.