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15
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1983
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SENATE
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Harry Hughes
Governor
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May 26, 1983
Honorable Harry Hughes
Governor of Maryland
State House
Annapolis, Maryland 21401
Re: Senate Bill 199
Dear Governor Hughes:
We have reviewed for constitutionality and legal sufficiency
Senate Bill 199, which seeks to regulate certain forms of
industrial homework engaged in by garment manufacturers. For
reasons more fully detailed below, it is our opinion that because
of amendments to key provisions of the bill, Senate Bill 199 was
apparently intended to sanction conduct violative of federal law
and regulations of the Department of Labor. Even if construed so
as not to conflict with the federal scheme, the bill, if signed,
nevertheless would result in an invitation to violate federal
law. For these reasons, we do not approve the bill.
Industrial homework has been the subject of strict federal
controls for more than 40 years. In the early 1940's, the Labor
Department banned industrial homework (with minor exceptions) in
selected industries as "a necessary means" to make effective
minimum wage orders. Gemsco v. Walling, 324 U.S. 244, 245
(1945). This prohibition, which was upheld by the Supreme Court,
Id., was imposed on the basis of findings that minimum wages
could not otherwise be maintained in such industries, Id. at 249,
and that low paid homeworkers, by competing with factory workers,
destroyed the latter's right to a minimum wage. Id. at 259. In
1949, Congress expressly authorized the Labor Department to
regulate, restrict or prohibit industrial homework. 29 U.S.C.
§211(d). 1 / This authority apparently contains the same
limitation that exists with respect to the Department's authority
under other provisions of the Fair Labor Standards Act, namely,
it only reaches employees "engaged in commerce". 29 U.S.C.
§203(b). However, the Supreme Court has recognized that the
purpose of the federal act, of which §211(d) is a part, is to
extend federal control "throughout the farthest reaches of the
channels of interstate commerce." Walling v. Jacksonville Paper
Co., 317 U.S. 564, 567 (1943). And, "[n]o de minimus rule applies
to the Act: any regular contact with commerce, no matter how
small, will result in coverage." Marshall v. Victoria
Transportation Co., Inc., 603 F.2d 1122, 1124 (5th Cir. 1979).
Until 1981, the ban on industrial homework extended to seven
industries: women's apparel; jewelry manufacturing; knitted
outerwear; gloves and mittens; button and buckle manufacturing;
handkerchief manufacturing; and embroideries. See 29 C.F.R. Part
530. 2 / However, effective November 9, 1981, the Labor
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