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UNIVERSITY OF CALIFORNIA LIBRARY

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THE LAW OF THE EMPLOYMENT OF LABOR



THE MACMILLAN COMPANY

MKW YORK • BOSTON • CHICAGO
SAN FRANCISCO

MACMILLAN & CO., Limithd

LONDON • BOMBAY • CALCUTTA
MELBOURNE

THE MACMILLAN CO. OF CANADA, Ltd.

TORONTO



THE LAW



OF THE



EMPLOYMENT OF LABOR



BT

LINDLEY D. CLARK, LL.M.



THE MACMILLAN COMPANY
1911

AU rights r*terved



3^/^^



COPTEIGHT, 1911,

bt the macmillan company.



Set up and electrotyped. Published November, igii.



Norinoot) $tt8S

J. 8. Cashing Co. — Berwick fi tive eases and statutes the principles of the common law in their
p^4 most important phases, as well as the nature and trend of leg-
■< islation, in so far as these are applicable to workmen and their
employers in their relations as such, in a single volume of con-
venient size. No detailed account of the items of legislation
could be presented in a work of this character, since they are
shifting so rapidly that a volume could hardly be put through
the press before it needed revision. A summary and general
view of such laws and of their legal construction and effect will
answer the purpose of the student of the question of the legal
control of the subjects under consideration, while sufficient ref-
erences are furnished to enable the pursuit of the subject in
further detail if desired. An effort has been made to present
with practical completeness the legal principles involved in pro-
tective and regulative legislation of this class, in so far as they
have been made the subject of judicial determination by the



vi PREFACE

higher courts, so that, while the volume is intended primarily
to interest the student of the conditions of labor, it is believed
that its value as a legal handbook is limited chiefly by its brevity,
and that it will nevertheless be found worthy of consideration in
such an aspect.

A recognized pressing need of the social organization is the
securing of safe and wholesome conditions of work and an ad-
justment of the relations of employer and employed in the light
of their mutual and reciprocal rights and interests, so that there
shall be neither undue advantages nor undue burdens on either
side. It is not many years since such legal provision as existed
was embodied solely in the common law, that body of customs
and adjudications that had come to have the sanction of the
courts of England and America to such an extent that it became
a clog to any progressive adjustment of law to changing eco-
nomic conditions. Clearly a policy shaped in the days of the
hand loom and forge and transportation by horse power could
poorly provide for the needs of industry to-day. The common
law reduced to a codified form is printed as an appendix to this
volume, and sufficient evidence of its inadequacy is afforded if
this code is compared with the scores of statutes compiled in the
fifteen-hundred-page volume of labor laws, forming the Twenty-
second Annual Report of the United States Commissioner of
Labor, presenting the enactments of the legislatures of the
various states in their attempt to prescribe the respective rights
and duties and to safeguard the physical and economic interests
of the parties to the labor contract. There is a feeling, only too
well founded, that, despite legislation, the dead hand of outgrown
doctrines of the common law restrains the courts in their con-
struction of statutes ; but that there is encouraging advance in
this respect cannot be gainsaid.

The unusual activity at this time of a number of states and



PREFACE vii

of various organizations in attempting to solve the problem of
a better distribution of the burdens of industrial accidents af-
fords a clear indication that the present doctrine of employers'
liability will not much longer maintain the position of controlling
importance which it now occupies. That the fundamental
assumptions of this doctrine have been long since outgrown in
the destruction of actual personal contact between employer
and workman and the growth of the great industries of trans-
portation, manufacturmg, and mining, in which the mutual
responsibility of fellow-workmen becomes impossible, is a con-
clusion that cannot be disputed. The widespread study of the
principles of compensation by federal and state commissions
and otherwise, and the enactment of compensation laws by the
federal Congress and by several state legislatures are doubtless
but the forerunners of great and desirable changes in the atti-
tude of the law-making bodies and the courts in respect of this
subject.

To what extent the collective bargaining of the labor union is to
affect the contract of employment is another unsettled question.
As in the above mentioned matter, it is a question of absolute
individualism giving way to collectivism, or at least a modified
individualism, as a result of far-reaching changes in the indus-
trial organization, for which the workingman is not primarily
responsible. It is not too much to say that epoch-making
decisions affecting labor organizations are being made and to be
expected shortly. The law on this subject is in an unsettled
condition, and will doubtless remain so for a long time to come.
The diversity of interests of the employing and employed classes,
as they are now conceived, and as they have always been re-
garded so far as history gives account of the employment of
labor, does not permit an anticipation of an early or easy settle-
ment of the questions involved between these two elements of the



viii PREFACE

producing and distributing forces of society. It seems hardly
more than commonplace to say that the more rapidly the
reciprocal rights of combined and delegated representation of
the two parties are recognized, the more rapidly the existing
problems will find their solution.

LiNDLEY D. Clark.
Washington, 1911.



CONTENTS



CHAPTER I



Forms of



10.
11.
12.
13.



14.
15.

16.
17.

18.



The Contract of Employment

SECTION

1. The basis of the relation of employer and employee.

contracts. Status of the labor contract . , , . 1, 2

Conditions of the contract ....... 2-4

Freedom to contract. Constitutional guarantees . . . 4, 5

Limitations on freedom of contract 6, 7

Police power 7-9

Term of the contract. Implications from periods of payment 9-12

Enforcement of the labor contract. Specific performance . 12-14
Violations of contracts by employees. Recovery of wages for

partial performance ........ 14-16

Statutory provisions for enforcing contracts. Employers' ad-
vances. Abandoning service so as to endanger property or

life 16-23

Seamen 23, 24

Breach of contract by the employer. Damages . . . 24-27

Grounds for discharge. Sufficiency 27-30

Other methods of dissolving the contract relation. Mutual
consent. Expiration of term. Sickness or death of parties.

Other incidents occurring during term. Rescission by notice 30-33

Clearance cards 33-35

Procuring breach of contract. Motive. Damages . . . 35-39
Statutes prohibiting interference with contracts . . . 39-42
Right of employer to recover for injuries to employee. Pro-
curing intoxication 42, 43

Civil rights of employees. Protection as voters. Membership

in the National Guard 43, 44



CHAPTER II
Wages

19. Definition. Work in violation of law. Payee

20. Rate. How fixed

Lx



45-47
47-50



X CONTENTS

BioTioN rknn

21. Deductions from wages. Fines for imperfect work, etc, . . 60, 51

22. Time of payment. Discharged employees. Retaining part

wages as security 51-65

23. Place of payment 55

24. Attachments, garnishments, etc. Exemptions . . . 65-57

25. Assignments of wages. Wage brokers 57-60

26. Suits for wages. Attorneys' fees 60, 61

27. Mechanics' liens 61, 62

28. Bonds to secure payment of wages 62, 6.3

29. Liability of stockholders of corporations for wage debts . . 63

30. Preference of wage claims 63, 64

31. Payment of wages in scrip. Store orders .... 64-69

32. Company stores 69, 70

33. Freedom of employees as traders. Choice of boarding houses 70-72



CHAPTER III
Hours of Labor

34. Regulation of hours of labor. Overtime. Outside employ-

ment. Statutes

35. Constitutionality of statutes limiting the hours of labor .

36. Sunday labor. Employers' liability for injuries to employees

working on Sunday. Earnings



73-76
76-79

79-82



CHAPTER IV
Regulation of ths Physical Conditions of Emplottcbkt

37. Statutory control 83

38. Regulation of factories and workshops. Agricultural machin-

ery 83,84

39. Steam boilers 84, 85

40. Railways. Safety appliances. Street railways ... 85, 86

41. Mine regulations 86

42. Building operations 86, 87

43. Accidents. First aid appliances. Reports . . . . 87, 88

44. Construction and interpretation of safety statutes . . . 88-92

45. Enforcement 92,93

46. Disobedience of laws. "Waivers. Assumption of risks. Neg-

ligence 93-98

47. Sufficient compliance. Standard of safety . . . . 98, 99

48. Sale of liquor to employees 99



CONTENTS xi

CHAPTER V
Emplotmbnt of Women and CHiLDBKif

SBOTIOIT PAOXS

49. Special regulations. Prohibited employments. Age limits.

Hours of labor. Suits 100-104

50. Effect of unlawful employment on the employers' liability . 104-106

51. Wages of married women and minors 100, 107

CHAPTER VI
Restrictions on Emplotkes

62. Examination, registration, etc., of workmen .... 108,109

53. Status of certified employees ....... 109-111

54. Grounds for legislative interference ...... 112-116

55. Age as a condition of employment 116, 117

56. Resident laborers. Aliens 117-122

57. Convict labor 122, 123

CHAPTER Vn
Liability of Employers for Injuries to Employees

58. What law controls. Statutes 124

59. Duty of the employer to exercise care. Degree . . . 124-126

60. Place and instrumentalities. Discretion of the employer . 126, 127

61. Standards of care fixed by statute. Violation. Compliance as

a defense 127-129

62. Repair and maintenance 130, 131

63. Customary method or use. Departure by employee . . 131

64. Inspection. Nature and degree. Statutes .... 131-134

65. Ownership of appliances. Railway cars 134, 136

66. Working force. Numbers and qualifications .... 136, 136

67. Rules. Enforcement 136, 137

68. Instructions and warnings 137, 138

69. Duties nondelegable 138

70. Negligence. Proof 139

71. Defenses of employers. Volenti non Jit iJijuria . . . 139,140

72. Assumption of risks. Knowledge. What risks are assumed . 141-144

73. Contracts and rules avoiding liability. Conflicting views.

Statutes 144-146

74. Relief benefits. Acceptance as bar to suits for damages.

Statutes 146-149



xii CONTENTS

BBOTION PAOE8

75. Contributory negligence. Proximate cause .... 149-151

76. What negligence bars recovery 161,152

77. Comparative negligence. Statutes 152, 153

78. The fellow-servant rule. Grounds 15.S-157

79. Common employment 157, 158

80. Contemplated risks 158, 159

81. Departmental doctrine 159, 160

82. Representation of the employer 160

83. Test of rank 160-162

84. Superior servant doctrine 162, 163

85. Status of manager 163, 164

86. Heads of departments 164, 165

87. Character of act as test. Dual capacity 165-167

88. Tests not mutually exclusive 167-169

89. Modification of employers' liability by statute. English law 169-171

90. Statutes affecting designated employments. Hazardous un-

dertakings 171, 172

91. Promise to repair 172, 173

92. Direct orders 173, 174

93. Assurances of safety 174, 175

94. Variation of scope and course of employment. Volunteers . 175-178

95. Details of work 178, 179

96. Contracts with labor organizations 179, 180

97. Employers' insurance against liability. Forms. Scope.

Mutual companies 180-184

98. Insurance of employees 184-186



CHAPTER Vin
Workmen's Compeksation Laws

99. Federal statute of 1908 187-198

100. State statutes 193-198

CHAPTER IX
Negligence of Emplotees

101. Liability of employees for their negligent acts. Injuries to

fellow-servants. Injuries to third persons. Bonds. Intoxi-
cation 199-201



CONTENTS



xm



BECTIOX

102. Liability of the employer to third persons for negligence of

employees. Joint liability of employer and employee

CHAPTER X
Sundry Statutes

103. Liability of employers for taxes of employees

104. Profit sharing by employees. Special stock

105. Pensions for employees

106. Cooperative associations

107. Workmen's trains .

108. Employment offices

109. Bureaus of labor



201-204



205,206
206

206, 207
207
207

208-211

211, 212



CHAPTER XI
Trade and Labor Associations



110. Nature

111. Status at common and statute law

112. Rules, by-laws, etc.

113. Membership .

114. Collective agreements

115. The closed shop

116. The union label

117. Restrictive combinations. Anti-trust laws



213-217
217-226
226-2.30
230-235
235-240
240-246
246-250
250-256



CHAPTER XII
Labor Disputes

118. Conspiracies 267-261

119. Strikes 261-272

120. Persuasion or incitement to strike 272-276

121. Picketing 276-282

122. Boycotts 282-293

123. Blacklists 293-295

124. Interference with employment, intimidation, etc. . . . 295-300

125. Remedies by suits at law 300-304

126. Injunctions 305-323

127. Contempts 32;J-S31

128. Mediation and arbitration 331-340

Appendix : A code of the common law 341-346



LAW OF THE EMPLOYMENT OF LABOR

CHAPTER I

THE CONTRACT OP EMPLOYMENT

Section 1. The Basis of the Relation of Employer and Em-
ployee. — In order that the status of employer and employee
may come into existence there must be a contract or agreement
between the employer or his representative and the person enter-
ing upon service or his representative. Such a contract may be
informal to the extent of being only inferable from the conduct
of the parties,^ or it may be carefully drawn in writing, signed,
and witnessed. Contracts which cannot be completed within
one year, to be enforceable, must be in writing, being within
the statute of frauds.* In case of an implied contract, sufficient
facts must be shown to support it,' since a mere volunteer can
neither collect wages nor hold the person served liable for
injuries.* No practicable form of contract, however elaborate,
could be presumed to embody all the conditions and conse-
quences that result from the consent of the parties, the one to

' Nimmo v. Walker. 14 La. Ann. 581.

« Jones V. Hay. 52 Barb. 501 (N.Y.) ; Hassclman Printing Co. v. Fry, 9 Ind.
App. 393, 35 N.E. 1045.

» Hart V. Hess, 41 Mo. 441 : Goddard v. Foster, 17 Wall. 123 (U.S.) ; Robin-
son V. Cushman, 2 Den. 141 (N.Y.).

* Roberts v. Swift, 1 Ycates 209 (Pa.) ; Jones v. Jincey, 9 Grat. 708 (Va.) ;
Bartholomew r. Jackson, 20 Johns. 28 (N.Y.) ; Langan v. Tyler, 114 Fed. 716
(C.C.A.).

B 1



2 LAW OP THE EMPLOYMENT OF LABOR

render service, and the other to receive it and to pay compensa-
tion therefor. In other words, there is formed a status of the
two parties, determined by long usage, the ruHngs of the courts
in unnumbered cases, and many statutory enactments, the de-
tails of which are to be known only by a consideration of the
whole law relating to employment, and which no contract
attempts to express.

There is not in the United States, nor has there ever been
since the establishment of the Government, any difference be-
tween contracts of hiring and other contracts, so far as the gen-
erally controlling principles of law are concerned. Competent
parties {i.e., of legal capacity), mutual agreement, and lawful
and sufficient consideration, are the essentials here as elsewhere.
The same limitations, neither more nor less, as to immoral acts
or those otherwise contravening public policy affect the con-
tract of employment as they do other contracts. But the
agreement having been reached, the law intervenes to secure to
both parties certain rights and defenses that have been con-
ceived, through a long series of adjudications and legislation,
to best conserve the interests of the immediate parties to the
contract, and, in what may fairly be said to be an increasing
degree, the interests also of that great third party, the general
public.

Section 2. Conditions of the Contract. — Among the condi-
tions imposed by law, but not at all appearing in any customa-
rily used contract, are the requirement that the employee shall
be engaged only in lawful pursuits,^ that he shall be treated with
reasonable regard to health and comfort,^ that he shall not be

> Warner v. Smith, 8 Conn. 14; Com. r. St. Germans. 1 Browne 241 (Pa.).
« Gillis V. Space, 63 Barb. 177 (N.Y.) ; Luske v. Hotchkiss, 37 Conn. 219.



THE CONTRACT OF EMPLOYMENT 3

exposed to other risks than those reasonably incident to his
employment,' and that the conditions surrounding employment
shall not be corrupting or immoral.^ On the other hand, an em-
ployee is supposed to be competent,^ to obey reasonable instruc-
tions and commands,* to use ordinary care in the performance
of his work,^ and to have due regard for his master's interests.^

Rules of the employer or customs of the trade, not in terms
forming a part of the contract of employment, must be shown to
have been known to both parties at the time the contract was
entered into if they are to be incorporated therein as a matter of
defense in an action at law7 And a mere continuance in service
after becoming aware of regulations not known at the time the
contract was made is only evidence tending to show assent, and
is not conclusive.*

Where the rate of wages is not definitely fixed, custom may
be referred to, and the court will undertake to find out what the
services were reasonably worth and award a quantum meruit,'
due regard being had for special skill or professional ability ; '°
and so[^of the other factors that enter into a contract of employ-
ment, though the rules of common law, the effect of custom, and
even the terms of the contract itself are becoming more and

» See Chapter VI.

' Warner v. Smith, supra; Berry v. Wallace, Wright 657 (Ohio).

« WaugL V. Shunk, 20 Pa. St. 130 ; Parker v. Piatt, 74 111. 430.

* Lawrence v. Gullifer, 38 Me. 532.

' McCracken v. Hair, 2 Speers 256 (S.C).
» Gower v. Andrew, 59 Cal. 119. 43 Am. Rep. 242.

^ Dodge r. Favor, 15 Gray 82 (Mass.) ; Harmon r. Salmon Falls Mfg. Co.,
35 Me. 447.

* CoUina t>. Iron Co., 115 Mass. 23.

» Bagley v. Bates, Wright 705 (Ohio) ; Miller v. Cuddy, 43 Mich. 273, 38 Am.
Rep. 181.

»• Stockbridge v. Crooker, 34 Me. 349.



4 LAW OF THE EMPLOYMENT OF LABOR

more affected by statutory enactments and the construction
put upon them by the courts of the various states.

The general rule applicable to the formation of contracts that
there must be a meeting of the minds of the parties thereto, is in
force in labor contracts to prevent fraud and misrepresentation
as to the conditions in existence in the employer's works or
business ; but a few states have enactments lookmg to the more
specific prohibition of deception, and particularly in the matter
of the existence or non-existence of strikes.^ The nature of the
employment and the prevalent sanitary conditions must not be
misrepresented, under like penalty, though with reference to
strikes, it is in most cases made unlawful to fail to give notice
where they are in existence, while only actual false statement
with reference to other conditions is condemned.

Section 3. Freedom to Contract. — Whether the right of
contract is inherent in free manhood, as has been concluded
from the guarantee of Magna Charta that "No freeborn man
shall be disseized of his free tenement or liberties or his free cus-
toms," taking "customs" to include freedom of trade; or
whether it depends on such guarantees as are found in our
national and state constitutions, is a question of historical in-
terest, but not of controlling importance. There is frequent
reference to the fourteenth amendment to the Constitution of
the United States in cases in which the freedom of contract is
discussed,^ as well as to the similar provisions of the state consti-
tutions relative to the protection of liberty and property. While
these seem practically to embody the doctrine of the clause of

1 Cal., Sim's Penal Code, p. 635 ; 111., R.S., ch. 48, sec. 49 ; Mont., Acta 1903,
ch. 80 ; Oreg., Acts 1903, p. 193 ; Tenn., Acts 1901, ch. 104.

> Allgeyer r. Louisiana, 165 U.S. 578, 17 Sup. Ct. 427 ; Lochner r. New York,
198 U.S. 46, 25 Sup. Ct. 639.



THE CONTRACT OF EMPLOYMENT 5

Magna Charta quoted above, it is sufficient for our present pur-
pose that these guarantees exist, and that, with the common
acceptance of the view that the protection of property involves
the protection of the right to make reasonable contracts with
reference to its acquisition and use, they are understood to
guarantee the freedom of the contract of employment.^

Labor is the workingman's capital, and it is his right to em-
ploy it or dispose of it as may appear to his judgment best in
the conditions in which he finds himself, subject only to the
rules of law that forbid contracts which are against pubUc
policy.2 Every man has the right to earn his living, or to pur-
sue his trade or business, without undue interference, a right of
absolute freedom to employ or to be employed,' to make con-
tracts with reference to service, whether as employer or em-
ployee, or to refrain from making them, for any reason or no
reason,* and such a right is both a hberty and property right,
within the guarantees of the federal Constitution.^ Such a
statute as that of Indiana, therefore, which prohibits employers
from discriminating against persons or classes of persons seeking
employment, by posting notices or otherwise,* is obviously of
no value, since the employer is as free to reject as the employee
is to refuse any proposition for employment, no matter by whom
made, or for what reason held undesirable.

» Lochner v. New York, supra: Mullet v. Oregon, 208 U.S. 412, 28 Sup. Ct.
324 ; Atkins v. Fletcher Co.. 65 N.J. Eq. 658, 55 Atl. 1074.

» People r. Marx, 99 N. Y. 377, 2 N.E. 29 ; In re Jacobs, 98 N.Y. 98 ; Frorer v.
People, 141 111. 171. 31 N.E. 395.

» Jersey City Printing. Co. r. Cassidy, 63 N. J. Eq. 759. 53 Atl. 230.

* Adair r. United States, 208 U.S. 161, 28 Sup. Ct. 277 ; New York, C. A St.
L. R. Co. r. Schaffer. 65 Ohio St. 414, 62 N.E. 1036.

» State V. Missouri Tic & Timber Co.. 181 Mo. 536, 80 S.W. 933 ; Jonea v.
Leslie, (Wash.) 112 Pac. 81. "A.S., sec. 7087p.



6 LAW OF THE EMPLOYMENT OF LABOR

Section 4. Limitations on Freedom of Contract. — This free-
dom is legal rather than economic and practical, and has been
called a legal fiction, a designation which appears just in view of
the widespread manifestation of a purpose to interfere with and
restrict it by legislative action. The man without invested
capital requires the constant return from his labor in order that
his own needs and those of his dependents may be met ; while
the employer, who may as imperatively require labor for the
conduct of his business, still has between him and immediate
want a reserve fund which makes him the economic superior of
the average man seeking employment. To lessen this in-
equality, organized labor provides "out-of-work" and "strike"
funds, to tide the membership over the period of unemploy-
ment. The rules of labor organizations also restrict the free
action of their members, while society at large proceeds by way
of legislation, seeking to fix the conditions of employment,
either generally, or for specific industries or groups of indus-
tries. There is now a very considerable body of such legislation



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