state of facts as presented in this case. Nevertheless, the Referee feels compelled, in view of the arguments made in support of the request for reconsideration, to consider whether the case would be decided differently under that approach. Two observations may be pertinent. First, on ordinary equitable principles, the Company might be estopped from including in the six months period the time used by the Company, at its request, to investigate the question of equal work.1 Second, the bar of paragraph 207 might not apply at al to a case of this kind. The Union did not and could not know until May 9 that its claim would not be granted in full, therefore it could not possibly have had a grievance on denial of back pay until then. To apply paragraph 207 to such a case would mean that the Union might forfeit its case before it could begin to prosecute it, although it acted with the utmost diligence. Thus, under the Company's interpretation, the moment the Company finally announced its denial of back-pay, the employees would already have forfeited four months (January 6 to May 9) of back pay. Proceeding with the utmost dispatch to process the case to a "final determination" by the Referee, the best it could achieve would be an empty award in its favor. If that is what the parties intended, the Referee cannot alter their bargain. But in the absence of a clear showing of intent, courts seek to avoid a construction of a statute or contract which would result in a forfeiture particularly without fault. A Referee should do no less. These aspects of paragraph 207 have not been thoroughly considered, and the parties should not be precluded from arguing them further in an appropriate case. The decision is affirmed for the reasons stated in Part I above. DECISION The decision in Case No. 5 is affirmed. FEBRUARY 22, 1950. NATHAN P. FEINSINGER, Impartial Referee. UNITED PACKINghouse WorkERS OF AMERICA—CIO, NATHAN E. COWAN, Washington, D. C. DEAR SIR AND BROTHER: President Ralph Helstein of the UPWA-CIO has requested me to supply you with some examples of differences existing between female and male rates for the same job classification. I am breaking these examples down into two classes. Class No. 1: Females performing a particular job in one company and a male performing the same job for a different company. 1 This is not the same point as that made by the Union, namely, that paragraph 207 was adopted solely to prevent "stalling" by the Union in the processing of grievances, and should apply to no other situation. The Referee makes no determination on that point. All trimming operations: Armour Swift__. _female__ 1. 105 __male__ 1. 24 Class No. 2: Same company having female perform an operation in one plant and a male perform same operation in another plant or in the same plant. I did not want to make too detailed a report because this is only a small number of the jobs that male and female both perform and do not receive the same rate of pay. If you desire a more detailed report, we will be happy to comply with your request. Fraternally yours, HENRY SCHOENSTEIN, Wage Rate Director, UPWA-CİO. Mr. BURKE. I have here a statement from the State of New York Department of Labor, Emily Sims Marconnier, director, division of industrial relations, women in industry, and minimum wage, which has been submitted for inclusion in the record. Without objection, it will be included in the record at this point. (The matter referred to is as follows:) Mr. JOSEPH KOSKI, STATE OF NEW YORK, Chief Clerk, House Education and Labor Committee, Washington, D. C. DEAR MR. KOSKI: I understand that the House Committee on Education and Labor will hold public hearings on the bill providing equal pay for equal work for women, H. R. 2438, on May 17, 18, and 19. We believe that the committee will be interested in a statement of the experience of New York State with its equal pay law during the past 5 years. I am therefore enclosing such a statement which I wish to file with the committee in connection with its public hearings on H. R. 438. If the committee wishes any other information, I shall be glad to supply it. Yours, very truly, EMILY SIMS MARCONNIER, STATEMENT BY EMILY SIMS MARCONNIER, Director, DIVISION OF INDUSTRIAL Relations, Department of Labor, StatE OF NEW YORK The New York Department of Labor's interest in the wages paid to women for work comparable to that performed by men goes back to the First World War when a survey made then showed that only 10 percent of the women who replaced men in 117 New York State plants received equal pay for the same work. Shortly after Pearl Harbor, when women began to take over men's jobs in war plants and in the service industries, the department began a series of surveys to follow the trends as to comparable wages for men and women. All of these surveys showed that equal pay for equal work was accepted by a far greater percentage of employers than in 1919. Entrance of large numbers of women into war industries during World War II accelerated the movement of paying women "the rate for the job" regardless of sex and gave impetus to the widespread support, on the part of nonpartisan groups, to the introduction of an equal-pay law in the New York State Legislature. Seldom, if ever, in this State has such interest been evidenced in the passage of a social labor law. It was passed by the legislature and became effective July 1, 1944. At the same time, the National Association of Manufacturers, as well as the Congress of Industrial Organizations and the American Federation of Labor, endorsed the principle. The equal-pay principle was further implemented by the various departments of the Federal Government directly responsible for employment of large numbers of workers in war production, including the Army and Navy Departments and the United States Maritime Commission. THE NEW YORK STATE EQUAL-PAY LAW The equal-pay law of New York State (sec. 199-a of the labor law) reads: "No employee shall, because of sex, be subjected to any discrimination in the rate of her or his pay. A differential in pay between employees based on a factor or factors other than sex shall not constitute discrimination within the meaning of this section." The following is the Department's official analysis of this law: 1. A differential in pay because of sex is prohibited. 2. A differential in pay based on a factor or factors other than sex is permitted. 3. All persons employed for hire by an employer in a lawful occupation are covered with the following exceptions: (a) persons engaged in domestic service in the home of the employer; (b) persons engaged in labor on a farm; and (c) persons employed by nonprofit organizations which are operated exclusively for religious, charitable, scientific, literary, or educational purposes and no part of whose earnings inure to the benefit of any shareholder or individual. 4. All employments under contracts of hire are covered whether such contract of hire is expressed or implied, written or oral, and it includes contracts of hire entered into by helpers or assistants of employees, whether paid by the employer or the employee, if such employment is with the knowledge, actual or constructive, of the employer, and all or the greater part of the work is to be performed with the State. CONSTITUTIONALITY The statute is a constitutional enactment under the police power of the State as beneficial legislation for the public welfare. It is constitutional on the same doctrine that the enactment of a State minimum-wage law is constitutional. CONSTRUCTION Since this statute is an act in derogation of the Constitution and common-law rights, it is to be strictly construed; namely, it may not be extended beyond its language. However, since it is beneficial legislation for the public welfare, its language is to be construed liberally to the extent necessary to effectuate its object and purpose. This is the rule of the courts in construing such statutes. INTERPRETATION 1. Where the job content is the same, a differential in the rate of pay between men and women constitutes discrimination. 2. Where the job content is different, a differential in rate of pay does not constitute discrimination, even though the skill, training, and experience in both jobs are comparable. 3. It is the interpretation of the Department that a factor other than sex on which a differential in pay between employees is based must be a substantial factor based in good faith, to permit such a differential under the law. 4. Where the job content is the same, but the man has an additional skill which the woman does not have, and such additional skill is made use of by the employer whenever the occasion arises, a higher rate may be paid to the man if such available additional skill warrants a higher rate. FACTOR OR FACTORS OTHER THAN SEX The words "factor or factors" in this statute mean factors that stem from and are relevant and pertinent to the job. Factors of friendship, personal likes and dislikes, sympathy, and the like are not to be considered. Examples of legal "factor or factors": (1) Seniority, (2) experience, (3) training, (4) skill or ability, (5) difference in duties or services performed, (6) availability for other operations. PROOF OF VIOLATION A person alleging a violation of this statute must submit proof based on legal evidence: 1. That there was a differential in pay; 2. That such differential was because of sex; and 3. That such differential was not based on a factor or factors other than sex. In a criminal action, such a violation must be proved beyond a reasonable doubt. In a civil action, it must be proved by a preponderance of evidence. Section 198 of the labor law provides civil penalties for the violation of this statute: "If a person * * * shall fail to pay wages * * * or discriminate in rate of pay * * * he shall forfeit to the people of the State the sum of fifty dollars." If it is held that a violation of this statute is a failure to pay wages, then section 1272 of the penal law would apply as a criminal penalty. ENFORCEMENT The program of the department has been twofold: The education of employers, employees, and the public; the investigation of complaints and also routine inspection of establishments, particularly service industries, by the industrial investigators of the division. During the year 1949, more than 1,200 investiga tions were made in every part of the State. Meetings and conferences have been held with women's groups, employer associations, and unions. The law has been discussed in colleges and high schools. Two equal-pay surveys were conducted by students of Hamilton and also Syracuse Universities. Personal calls to executives of industrial establishments have been made by members of the equal-pay staff, and the statute has been printed in house organs and business publications. The pamphlet entitled "What Is the Equal-Pay Law?" has gone out to thousands of employers, employees, unions, and civic organizations. In addition, employees of service industries become acquainted with the equalpay law through its inclusion on a poster summarizing the labor laws, and which are posted in all places of employment covered by the industrial investigators in the division of industrial relations, women in industry, of the department of labor. COMPLAINTS Complaints about violations of the equal-pay law have come from unions, employees and members of the public. Employers have sought information about the law. For instance, the latest complaint came from an habitual customer of a beauty parlor, after a conversation with her operator. Typical complaints and actions taken are listed below: 1. Five women, "finishers" in a company making nurses' and maids' uniforms, complained that they received a lower wage than a man finisher doing the same work. The labor department's investigation disclosed that this differential was based upon sex, and the employer was ordered to pay the women $841.64 in back wages due them. 2. A woman hair stylist complained that she was 1 of 16 women receiving a lower wage and a lower commission rate than male hair stylists. The labor department's investigation showed that the schedule of basic weekly salaries for male stylists was $45 to $55 a week, while female stylists received $28.50 to $35 a week. The commission rate was 45 percent and 40 percent for males, and 40 percent and 35 percent for females. The employer paid 16 women a total of $2,573.91 in back wages, as a result of the application of the equal-pay law. 3. A union submitted a complaint that girls in the packing department of a department store received $3 less than men working in the same department. The labor department's investigation disclosed that the packing department had two sections, one for packing small, light articles, where the women worked, and the other for bulk packing of heavier and larger packages, where the men worked, Obviously, the equal-pay law did not apply. 4. Women in the packing department of a biscuit company complained that they received 71 cents an hour, while the men in the same department, doing the same work, received 75 cents. The labor department's investigation disclosed that in rush periods male workers were called in to help who were not considered regular members of this packing department. Obviously, the equal-pay law did not apply. 5. A female opaquer with less than 11⁄2 years' experience in the trade complained that her wage rate was $40.78 while that of the man working beside her, doing the same work, was $42.63. The labor department's investigation disclosed that the policy of the trade as set by the union and accepted by the employer called for a wage of $42.63 per week after 4 years' apprenticeship, for male or female. Obviously, the equal-pay law did not apply. 6. The department had ruled in the Bentley case (the first test case) that discrimination in pay existed between a saleswoman and a salesman employed in different departments of a small retail store in Manhattan. The employer refused to make restitution, and the case was referred to the attorney general. The justice of the First District Municipal Court of the City of New York reversed the department's decision, stating: "Our statute forbids discrimination because of sex. It does not command or require equal pay regardless of sex. In the case at bar, I find that * * * the differences in their work do constitute a substantial factor other than sex to justify the differential in the wages paid." The case was appealed. On appeal, it was dismissed with "no comment. Upon receiving notice of an alleged violation of the equal-pay law, the labor department's wage analyst or administrator goes to the plant or office or shop, examines the company's books and analyzes the job content in question. After a review of the findings, he informs the employer whether a violation exists and how compliance can be achieved. Both employer and complainant are given an opportunity to be heard, either during the investigation or at a hearing held by the labor department. It should be noted here that because of the policy or the department conference and mediation bring better results than the "big stick"; violators of the law have been brought into compliance. However, in a case of discrimination in rate of pay because of sex, the industrial commissioner may recover in a civil action $50 for each offense, payable to the State, or the commissioner may institute criminal proceedings for such violations. A conviction in criminal action subjects the employer to a fine of $10,000 or imprisonment up to 1 year or both. SUMMARY The equal-pay law of New York State, in its 5 years of existence, has been effective in establishing the principle. More and more employers of the State have accepted the principle of "equal pay" and have made necessary changes in their procedures in order to be in compliance with the law. Workers individually and in their organizations recognize its value. Its enactment has been a big step forward in labor legislation, affecting both men and women. Mr. BURKE. That completes the list of witnesses scheduled for this morning, and the hearing will adjourn until tomorrow at 10 o'clock. (Whereupon an adjournment was taken until Thursday, May 18, 1950, at 10 a. m.) |