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SEC. 19. Nonpayment of tax.-1. Whenever any person shall fail to pay any tax or penalty imposed by this act, the attorney general shall, upon the request of the tax commission, bring an action to enforce payment of the same. The proceeds of a judgment obtained in such action shall be paid to the tax commission. 2. As an additional or alternate remedy, the tax commission may issue a warrant under its official seal, directed to the sheriff of any county, commanding him to levy upon and sell the real and personal property of the person from whom the tax is due, which may be found within his county, for the payment of the amount thereof, with any penalties, and the cost of executing the warrant, and to return such warrant to the tax commission and to pay to it the money collected by virtue thereof within 60 days after the receipt of such warrant. The sheriff shall within 5 days after the receipt of the warrant file with the clerk of his county a copy thereof, and thereupon such clerk shall enter in the judgment docket the name of the person mentioned in the warrant and the amount of the tax and penalties for which the warrant is issued and the date when such copy is filed. Thereupon the amount of such warrant so docketed shall become a lien upon the title to an interest in real property and chattels real of the person against whom the warrant is issued in the same manner as a judgment duly docketed in the office of such clerk. The sheriff shall then proceed upon the warrant in the same manner, and with like effect, as that provided by law in respect to executions issued against property upon judgments of a court of record, and for his services in executi g the warrant he shall be entitled to the same fees, which he may collect in the same manner. In the discretion of the tax commission a warrant of like terms, force and effect may be issued and directed to any officer or employee of the department of taxation and finance, and in the execution thereof such officer or employee shall have all the powers conferred by law upon sheriffs, but he shall be entitled to no fee or compensation in excess of the actual expenses paid in the performance of such duty. If a warrant be returned not satisfied in full, the tax commission shall have the same remedies to enforce the claim for taxes as if the people of the State had recovered judgment for the amount of the tax.
3. No statute limiting the time for the enforcement of a civil remedy shall be deemed applicable to any proceeding or action taken to levy, appraise, assess, determine, or enforce the collection of any tax or penalty provided by this act. SEC. 20. Penalties for failure to file correct return or to pay tax. Any person failing to file a return or corrected return or to pay any tax within the time required by this act shall be subject to a penalty of 5 per centum of the amount of tax due, plus 1 per centum of such tax for each month of delay or fraction thereof, excepting the first month after such return was required to be filed or such tax became due; but the tax commission, if satisfied that the delay was excusable, may remit all or any part of such penalty. Unpaid penalties may be enforced in the same manner as the tax imposed by this act.
SEC. 21. Certificate of tax commission as prima facie evidence. The certificate of the tax commission to the effect that a tax has not been paid, that a return has not been filed, or that information has not been supplied pursuant to the provisions of this act shall be prima facie evidence thereof.
SEC. 22. Agreements to contributions by employees void.-No agreement by a home worker to pay any portion of a payment required of any other person by any provision of this act, shall be valid and no person shall make a deduction for such purpose from the wages or salary of any home worker.
SEC. 23. Filing and inspection of records and returns.-Records, reports, applications, and returns required to be made by this act shall be kept on file by the commissioner and the tax commission, respectively, and shall be open to examination and inspection by either, and, subject to their regulation, by any person authorized by them. They may be used as evidence in any proceeding under this act, but shall not otherwise become matters of public record.
SEC. 24. Oaths and affidavits.-The commissioner, the director, and any other officer or employee of the department of labor, if duly authorized by the commissioner, may administer oaths and take affidavits in matters relating to the provisions of this act.
SEC. 25. Hearings and subpenas.-The commissioner and the director shall have power, in matters relating to the provisions of this act
1. To issue subpenas for and compel the attendance of witnesses and the production of books, contracts, papers, documents, and other evidence of whatever description;
2. To hear testimony under oath and take or cause to be taken depositions of witnesses residing within or without this State in the manner prescribed by law for like depositions in civil actions in the court. Subpenas and commissions to take testimony shall be issued under the seal of the department.
SEC. 26. Fees of witnesses.—Each witness who appears in obedience to a subpena shall be entitled to the same fees as witnesses in a civil action in the
SEC. 27. Penalties. In addition to any penalties otherwise prescribed in this
1. Any person who willfully makes a false statement or representation in order to lower the amount of fees or taxes due from him under this act; or
2. Any person who makes a deduction from the wages or salary of any home worker to pay any portion of a payment which such person is required by this act to make; or
3. Any person who refuses to allow the commissioner or his authorized representative to enter his place of business for the purpose of inspecting his pay roll or other records or documents relative to the enforcement of this act, or who refuses to permit the commissioner to copy such records or documents-shall be guilty of a misdemeanor.
SEC. 28. Rules and regulations.-Rules and regulations necessary to carry out the provisions of this act shall be made by the commissioner. He shall have the power and it shall be his duty to enforce all the provisions of this act except as otherwise specifically provided.
SEC. 29. Construction. If any provision of this act or the application thereof to any person or circumstance is held invalid, the remainder of the act and the application of such provision to other persons or circumstances shall not be affected thereby.
SEC. 30. Payment into State treasury.-All fees, taxes, and other moneys derived from the operation of this act shall be paid into the State treasury to the credit of the general fund.
SEC. 31. Appropriation. The sum of
-, or so much thereof as may
be necessary, is hereby appropriated to pay the expenses of the department of labor, including personal service and maintenance, in carrying out the provisions of this act.
SEC. 32. Repeal of existing laws.-*
SEC. 33. Time of taking effect. This act shall take effect 90 days after its adoption; except section 31 which shall take effect immediately, and except that the commissioner shall have power, immediately, to promulgate rules and regulations, appoint such officers and employees, and fix their compensation, as may be necessary to carry out the provisions of this act, and do such other things as may be necessary to set up the machinery required to enforce the provisions of this act.
Memorandum to accompany draft of proposed State law to regulate and tax industrial home work
Need for industrial home-work legislation.—The distribution of industrial work to be done in homes has been recognized for many years as an unfair competitive practice. It has been characterized by long and irregular hours, night work, low pay, and child labor. The employer of industrial home workers, by shifting the burden to those who work for him in their own homes, avoids responsibility for overhead costs of production-for rent, lighting, heating, and power-and in a number of industries for even the cost of machines and other equipment. He makes it difficult for his competitor who produces in a factory to maintain fair tandards of hours, wages, and working conditions.
The actual distribution of industrial home work has become very complex. Materials distributed by one manufacturer to be returned to him may pass through the hands of several persons, contractors and subcontractors, before they are delivered finally to the home workers who are to perform the work. Work is often sent from State to State by truck, express, or through the mails, either direct to the home worker or to be distributed through a local representative. It reaches families in remote rural communities as well as in crowded city slums. Efforts to control the practice and to reduce its abuses to a minimum have been made over a long period of years, but continued experience has strengthened the conviction long held by administrators of State home-work laws that ultimately industrial home work must be abolished, and that until abolition is accomplished the distribution of industrial home work and the conditions under which industrial home work is performed must be subjected to rigid control.
During the past 2 years three States-New York, Connecticut, and Rhode Island-have passed laws which look toward the ultimate prohibition of industrial home work in those States. Where it is permitted to continue, State regulation applies. The passage of these laws constitutes a landmark in the progress of industrial home-work legislation.
The accompanying bill is intended for use in States contemplating revision of existing home-work laws or the introduction of new legislation. It has been prepared under the direction of a committee of State labor-law administrators and others having a knowledge of the problems of industrial home work and of the difficulties in its regulation. The appointment of this committee by the Secretary of Labor grew out of recommendations made by State labor commissioners and others interested in labor legislation attending the Second National Conference on Labor Legislation at Asheville, N. C., in October 1935. The bill has been endorsed by the International Association of Governmental Labor Officials at its annual meeting at Topeka, Kans., September 24-26, 1936, and by the Third National Conference on Labor Legislation, meeting in Washington, D. C., November 9-11, 1936.
Organization and purposes of the bill.-In its carefully drawn definitions of such terms as "employer", "industrial home work", "home worker", the home-work bill clearly limits the application of its provisions to home work as a method of industrial production; that is, to home work which is given out by an employer to be processed and ultimately returned to him after having gone through the home worker's hands or thereafter disposed of otherwise according to his directions. The definitions have been written to avoid application of the bill to those individuals who make articles at home to be sold either directly or through nonprofit or cooperative agencies.
The bill attempts a solution to the difficulties of control by holding the employer, who initiates the home-work process, responsible for the conditions under which the work is performed. It requires every employer who sends work into homes for processing to secure from the State department of labor a permit which may be revoked whenever the conditions under which the work is performed are found to be in violation of certain industrial standards. To aid in administration when home work is distributed through contractors, a contractor's permit is required; and in addition provision is made for a home-worker's certificate.
At the same time, the bill provides for the complete prohibition of home work on certain types of commodities, such as children's clothing and dolls, which may constitute a health menace to the ultimate consumer of the articles when they have been manufactured in unhealthful surroundings.
A further restriction on the home-work system is found in the grant of power to the State department of labor to prohibit home work in industries or branches of industries. This may be done after public hearing where the results of the home work are injurious to the health and welfare of the home workers themselves or to the welfare of factory workers in those industries.
One of the advantages that employers of home workers enjoy in their competition with employers of factory workers is that the former do not pay taxes to the State in an amount equivalent to that paid by the factory owner. This considerable item of overhead expense has, in the past, remained in the pocket of the home-work employers, leaving other employers in the State not only at a competitive disadvantage, but also in a position where they were forced to bear a disproportionately heavy tax load. A tax on industrial home work, such as that suggested in sections 18-21, tends to equalize the unfair financial advantages enjoyed by the employer of industrial home workers and, at the same time, to provide for the administrative costs of inspection, etc., which, if no such charge is made against the home-work employer, must be borne from general public funds. Nevertheless, those States in which industrial home work is still a small problem
may find that these additional costs of enforcement may be too slight to warrant the introduction of the tax provisions. For such States it may be pointed out that these provisions are entirely separable from the remaining provisions and that the draft may be used with the tax sections (secs. 18-21) omitted.
Where the head of the home-work process, that is, the employer, is located outside the State, constitutional obstacles stand in the way of applying to him the restrictions and taxes above mentioned. The State industrial home-work bill, therefore, meets this not uncommon situation by providing that the "representative contractor", who is the middleman to whom an out-of-State employer ships materials to be distributed to home workers within his State shall, in all respects, be treated as though he were himself the employer.
One item not appearing directly in the draft of this proposed bill deserves considerable emphasis. In order for regulation to succeed in the circumstances surrounding industrial home work, a vigorous and well-staffed administration is essential. That type of administration is not possible unless the legislature appropriates a satisfactory sum for organization of an inspection staff and enforcement machinery. Due to recent economic conditions, there has been a tendency to reduce, below the safety point, appropriations for the enforcement of labor laws. In connection with this bill, thoroughgoing enforcement will mean a reduction in the abuses of industrial home work and a full collection of fees and taxes will provide a source of additional revenue.
References to State offices, etc.-The definitions section (sec. 3) contains references to State officials who are denominated by titles which are not the same in all States. The whole bill should be gone through to conform the nomenclature to local designations. For example, the word "commissioner" is used in this bill to designate the head of the State department of labor, whereas in some States the head of that department is not called "commissioner" and indeed in some States the department of labor is otherwise named. The term "commissioner" appears in sections 3 (9), 3 (10), 4, 5 (1), 5 (2), 6 (1), 6 (2), 7 (1), 7 (2), 7 (3), 8, 9 (1), 9 (2), 10 (1), 10 (2), 11 (1), 11 (3), 12, 15, 17 (1), 17 (2), 23, 24, 25, 27 (3), 28, 33. The word "director" appears in sections 3 (10), 5 (1), 7 (1), 24, 25. The term "department of labor" appears in sections 3 (10), 24, 25 (2), 31. The term "___ court" appears in sections 8, 18 (4), 25 (2), 26. The term "tax commission" appears in sections 18 (2), 18 (3), 18 (4), 19 (1), 19 (2), 20, 21, 23. The term "attorney general" appears in section 19 (1). The terms "county clerk" and "sheriff” appear in section 19 (2). The term "State treasury" appears in section 30. The term "general fund" appears in section 30. In all these cases the appropriate local equivalent should be substituted.
Modifications to accord with State practice.-Sections 18-21 have to do with the imposition of a home-work tax upon persons having an employer's permit. These sections may be simplified in States where it is possible to eliminate some of the procedural detail. The draftsman should, of course, in any event provide here a procedure that is harmonious with the ordinary method for imposition, collection, and review of similar tax assessments in his State. It is believed that in some States a more general reference to an existing procedure will suffice. In any State that wishes to omit the tax provisions (secs. 18-21), care should be taken to eliminate from the remaining sections of the bill all references to these provisions. Such additional references are found in sections 23, 27 (1), and 30. Payment into State treasury.-The directions contained in section 30 concerning payment of moneys into the State treasury may require modification in the light of oral governmental organization.
Appropriations.-The wording of section 31 should be made to conform to the usal appropriations section in other State legislation. In some States the section must contain directions as to the manner of payment from the treasury.
Repeal of existing laws.-In States now having some type of regulation of industrial home work care should be taken, in filling in section 32, to make specific reference to the precise acts or parts of acts which are intended to be repealed. In States where there is no industrial home-work legislation, the repealing section, of course, may be omitted.
Mr. MOONEY. The committee strongly urges the inclusion of the following essential provisions in the drafting of home-work legislation: 1. The issuance of permits or licenses to employers of home workers. 2. The issuance of certificates for home workers.
3. Definite minimum standards governing the issuance of certificates to home workers. As guides to administering agencies, these standards are:
(a) Certificates shall be issued only to employers whose custom it has been in the past to employ home workers.
(b) The issuance of certificates should properly safeguard the health and well-being of the home workers and the consuming public.
(c) The issuance of certificates should safeguard wages and working conditions prevailing in the factory of the employer.
4. That the administering agency have the right of entrance for inspection of places where home work is performed and the right to inspect factory premises of the home-work employer, as well as the right to examine his books and other documents with reference to distribution and collection of home work, and wages paid to home. workers.
5. That the administrator of the act be granted rule-making powers governing working conditions.
6. That all labor laws in the State be applicable to home workers. Finally, the committee recommends that any State labor department or industrial commission which intends to present to its legislature this year, or in the future, a home-work law, discuss in advance with charitable agencies, and other border-line agencies whose interests and customary relations with their clients might be affected by the passage of such legislation, any problems raised by the proposed legislation. Such agencies as The Lighthouse, or Assistance to the Blind and Handicraft Industries, and other charitable organizations, while not in the category of employers distributing home work, nevertheless are on the border line of the problem and think they might be affected by the home-work act. If the agency proceeds to present legislation to the legislature without consulting those agencies in advance, much opposition often is aroused. That opposition can be killed early by consultation.
Chairman FLETCHER. We will call on Miss Frieda S. Miller of the Department of Labor of New York to lead the discussion.
Miss MILLER. May I say first that as a member of the committee I was very strongly in sympathy with the chairman's position as to