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17
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SENATE
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1983
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persons subject to its requirements and could invite persons to
violate the federal industrial homework ban. One reason for the
existence of the federal ban is the inability to enforce federal
minimum wage requirements in the area. See Gemsco v. Walling,
supra, 324 U.S. at 245. In our view, Senate Bill 199 would
aggravate that enforcement problem. Those benefiting from the
amendments to the bill would be encouraged by the legislation to
continue to ignore federal requirements. In addition, it is
noteworthy that State enforcement officers in administering the
more limited provisions of Senate Bill 199, could not ignore a
violation of the federal scheme even if it occurred in an area
exempt under Senate Bill 199. They would be obliged to report
such violations to the Department of Labor. 5 / Thus, the
intended purpose of the amendments to Senate Bill 199 to sanction
certain forms of industrial homework would clearly be frustrated.
For these reasons, and because of Senate Bill 199's adverse
impact on the federal scheme, we do not approve the bill.
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Very truly yours,
Stephen H. Sachs
Attorney General
1/ Section 211(d) states that:
"The Administrator [of the Wage and Hour Division] is
authorized to make such regulations and orders
regulating, restricting, or prohibiting industrial
homework as are necessary or appropriate to prevent the
circumvention or evasion of and to safeguard the
minimum wage rate prescribed in this chapter, and all
existing regulations or orders of the Administration
relating to industrial homework are contained in full
force and effect."
Regulations issued pursuant to this authority do permit the
granting of "special certificates" to engage in industrial
homework, 29 C.F.R. §530.4. However, the conditions for
obtaining a certificate are so circumscribed that courts
speak of the regulation as a "prohibition" on industrial
homework. See e.g., Gemsco v. Walling, 324 U.S. 244, 249
(1945); ILGWU v. Donovan, ___F.Supp.___, Civ. No. 81-2606
(D.D.C., opinion filed July 23, 1982).
2 / As interpreted in federal decisions, this ban even reached
workers who might have been considered independent
contractors under the common law. See e.g., Mitchell v.
Nutter, 161 F.Supp. 799 (N.D. Maine 1958).
3 / The 1981 change in the industrial homework ban was
immediately. challenged in federal court both on grounds that
the repeal of the homework ban in the knitted outerwear
industry violated the Administrative Procedure Act and on the
basis that the Secretary of Labor lacked the authority to
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