                                                     ORNEY GENERAL
                                                    OF TEXAS




Honorable          John      D. Reed,             Commissioner
Bureau       of Labor         Statistics
Austin,      Texas


Dear      Mr.     Reed:                                                 Opinion        No.      O-5 154


                                                                        Re:      Whether,           under      the provisions
                                                                                 of S. B.        129,     48th Legislature,
                                                                                Regular          Session,          a hearing            is
                                                                                 necessary            before       an employer
                                                                                 may      employ          female       employees
                                                                                 more        than nine         hours       per        day,
                                                                                 or    fifty-four         hours      per     week,           as
                                                                                 outlined        in Section          1.


                   We      beg    to acknowledge                    receipt     of your         inquiry      with      respect              to the
above-captioned               subject             matter,      as follows:


                   “Attached           you will         find        copy     of Senate       Bill       129 which          was        ap-
           proved       by Governor                 Coke       R.    Stevenson         on March            18, 1943.         This
           Bi~ll became           effective           upon      the Governor’s               signature,            being     passed
           in the Senate              by     24 yeas        and      in the House         by     117 yeas.


                   “The      first         five     sections        of this     Act      seem       to be a reinactment
           of those        laws       that were             repealed         by this     Act.        In Section         6 provi-
           sion      is made          that    in time         of war       or when        the President              of the
           United       States        proclaims             a +tate        of national        emergency             to exist
           female       workers             in certain          industries         are    exempt          from      the provi-
           sions      of Sections             1, 2, 3, 4, 5 and               13 of the Act           and may          be em-
           ployed       not exceeding                 10 hours         per     day,    provided           such     fiours        of
           employment             in such           i.ndustry        are      not injurious           to the health          or
           morals          of female          employees,              or working          such       hours       does      not
           add     to the hazard              of their         occupation         and     such       hours       of employ-
           ment      are     in the public             interest.


                   “Nothing           is stated         in Section            6 providing           for   a pub1i.c hearing
           to determine               whether         or not such             hours      of employment               are     injuri-
           ous     to the health             or morals,             add to the hazard                of their       occupation
           or whether            or    not such         hours         of employment              are      in the public               in-
           terest.
Honorable      John        D. Reed,            Page      2, O-5154


               “However,                beginning         with       Section      7 there            is outlined           down
       through           Section        11 a procedure                 whereby          employers             or     one-third
       of female           employees             of employers                coming           within     the jurisdiction
       of any        of the Federal               acts     enumerated              in Section           6MAY              apply
       to the Commissioner                        of the Bureau                of Labor         Statistics           for     a hear-
       ing under            the terms            of the Act.


               “Will        you       please      give     me        an opinion          as    to whether                or not such
       hearing           is required            before         an employer,              coming         within           Section           6
       of the Act,           can employ               female         employees            more         than    9 hours            per
       day     or    54 hours            per    week      as     outlined        in Section            1.     Inasmuch             as
       thins Department                  has     application            from     employers              affecting            approxi-
       mately            100,000        female        employees              an early         reply     to this           request
       will    be appreciated.”


               The        pertinent        Sections            of Sentate        Bill         129 are       as foll.ows:


               “Section           1.     No     female         shall     be employed                 in any    factory,            mine,
       mill,    workshop,               mechanical              or     mercantile             establishment,                hotel,
       restaurant,               rooming         house,        theater,        moving          picture         show,         barber
       shop,        beauty        shop,        road     side     drink       and/or       food        vending            establish-
       ment,        telegraph,            telephone         or       other     office,        express         or     transporta-
       tion    company,               or any      State        institution,       or     any     other        establishment,
       institution          or     enterprise            where         females        are      employed,             for     more
       than    nine        (9)    hours        in any     one calendar              day,       nor     more         than      fifty-
       four     (54)      hours         in any        one calendar            week.


               “Sec.        6.     In addition           to the foregoing                exemptions,               in time          of
       war     and/or            when     the President                of the United            States        proclaims                a
       state     of national             emergency              to exist,       female          workers            employed
       in industries              coming         within        the jurisdiction                of the Fair               Labor
       Standards            Act       of 1938 and          amendments               thereto,           the Act           of June           30,
       1936,        C.    881, 49 Statute              2036,         U. S. Code,         Supplement                II,    Title     41,
       Paragraph             35 - 45, as              amended          by Act      of May            13, 1942,            Public
       No.     552,       77th Congress,                 2nd Session,            commonly              known         as the Walsh-
       Healey        Act,        or    the Act        of March          3, 1931,         C.    411,     46 Statute               1494,
       as     amended            August        30,     1935,      C.    325,    49 Statute             1011,       U. S. Code
       Title    40, Paragraph                   276A      and        Supplement           V,    Title       40, Paragraph
       276A-276A-6,                 commonly     known as the Bacon-Davis     Act,                                         are ex-
       empted   from              the provisions    of Sections 1, 2, 3, 4, 5 and                                         13 of this
       Act,    and female               workers          in such         industries            may      be employed                not
       exceeding            ten (10)       hours         per     day     provided           such       hours       of employ-
       ment in such industries    are not injurious to the health or morals
       of female employees,    or working   such hours  does not add to the
       hazards            of their       occupations             and     such     hours         of employment                    are
       in the public              interest.           Provided,          however,             that     in time           of war
_-   .




         Honorable       John      D. Reed,              Page     3, O-5154




                and/or         when        the President                 of the United                States        proclaims              a
                state     of national              emergency              to exist,           all     female            office      em-
                ployees         of such           employers              coming         within         the purview                 of
                Section         6 hereof           are     exempt          from      the provisions                      of this        Act.


                         “Sec.       7.     Employers,              or     one-third                (l/3)         the female            em-
                ployees         of employers,                   coming         within         the jurisdiction                   of any
                of the Federal                   Acts     enumerated              in Section                6 may         apply         to the
                Commissioner                     of Labor         Statistics            for     a hearing               under       the
                terms       of this         Act,         and    it shall       be the duty              of the Commissioner
                of Labor         Statistics,              on the filing           of the application,                          to designate
                a date     for       a hearing             not later        than thirty               (30)        days      after       the
                date     of the receipt                  of the application;                   and      he shall           within         five
                (5) days        from        the date            of the receipt             of such            application,                set    a
                date     for     a hearing,              and notify         such        applying             employer              or em-
                ployees         of such           date;        but for     good      caus,e           shown         by employer                  or
                employees,             the Commissioner                        may       postpone                 such     hearing          for
                as     much      as       five     (5)    days,     and     he shall            designate               the place           of
                such      hearing,              which      may      be anywhere                 in the State               of Texas,
                but at a place                  convenient          to the employer,                        employees,           and the
                Commissioner                     or any         representative                 duly         authorized           by him
                for     such     purpose;               and    the Commissioner                        or     his       representative
                shall     hold       such         hearing         at the time            and        place         designated.


                         “Sec.        8.    When          any employer               shall          apply         for    a hearing,
                such      employer               shall     give     notice        of the application                       to the em-
                ployees         affected           by posting            notices         in the plant,                  yard     and/or
                place      of business               of such        employer             at places                readily        access-
                ible    to the affected                  employees             and      in such             manner          that the em-
                ployees         in the usual               course        of their         employment                     shall      have         an
                opportunity            to read            and     inspect        such         notices.


                         “Sec.       9.     In time            of war      the Commissioner                             of Labor          Statis-
                tics    may,         based        upon         private      investigation                   and without             notice            or
                hearing,         if he finds              that the employment                         of female             employees                  in
                any     designated               industry         for    ten     (10)     hours             per    day will         not injure
                the health           or     morals            and/or       add    to the hazards                        of their        occupa-
                tion,     and that          such         hours      of labor         are       in the public                interest,            file
                his     findings           as    required         herein,         and      make             an order           granting           an
                exemption;             and the employer                     affected           shall         be exempt              for     thirty
                (30)     days      from          the provisions              of this          Act,      during           which          time      if
                further        exemption                 is desired         by employers                     affected,           notice          and
                hearing         as    provided             herein        shall     be had as                 though        no temporary
Honorable        John     D. Reed,               Page        4, O-5154




       exemption              had     previously              been      in effect.


                “Sec.         10.     The        employer’s             notice        to employees                required
       herein         shall        state     that the application                     for    a hearing            is made,
       and the date             which         has       been     set     for     the hearing,              and        if an
       emergency               exemption            under        the foregoing                  provisions              of this
       Act     is in effect            insofar          as    the employer’s                  business,           trade,         or
       industry          is concerned,                  it shall        state       the date        a hearing            shall
       be had to extend                    the exemption                for     a period           of six       (6)    months.
       The     affidavit            of an employer                 or    an officer             of an employer                  that
       such      notice        has     been        given       shall         be prima           facie     evidence             that
       the notice         provisions               of this       Act         have     been       complied             with.
       Failure         to give        such        notice        shall        be sufficient              cause         to reject
       such      application.


                ‘*Sec.    11. On the date                     designated             for    a hearing,            the Com-
       missioner              of Labor           Statistics,            or    his    authorized            representa-
       tive,     shall     hold       an informal               hearing             under       such      rules        as the
       Commissioner                   of Labor           Statistics            may         make,        at which         anyone
       interested          may        offer        information;               and     if the Labor              Commis-
       sioner      finds        as    a matter            of fact        from        the evidence               presented
      that the employment                         of female             workers            in the business,                  trade,
      and/or          industries            concerned,             for       ten (10)        hours        per     day        is not
       injurious         to the health              or morals                of the females               employed
      therein          and/or         does       not add         to the hazards                 of their         occupation,
      and      that    ten (10)           hours      per       day      of labor           is in the public              interest,
      he shall         make          written        findings            of such         facts      and file           such     with
      the Secretary                 of State,        and       draw          an order        granting           such         employer
      affected         exemption              from        the provisions                   of Sections           1, 2, 3, 4, 5,
      and      13 herein            for    a period            of six        (6) months,           which         order         shall
      be made           within        five       (5) days        after        the conclusion                of the hearing
      and      shall     be filed          with     the Secretary                   of State.           Such     orders          of
      the Commissioner                       during          wartime            shall       be extended               at the end
      of six      (6) months               for    a like       period          of six       (6) months            without         fur-
      ther     notice         or     hearing,           unless       prior          to such        automatic            extension,
      a protest          is filed          with     the Commissioner,                        notice        of which            protest
      is furnished              to the employer,                   by a sufficient                 number             of employees
      to lead         the Commissioner                        to believe            that there           is no longer             a
      necessity           for       such     exemption             If he finds              the facts       adversely             to the
      applicant,          he will           so state          in his         findings        and no order               will     issue.”
_’   -




         Honorable          John D. Reed,               Page      5, O-5154




                            Upon       a consideration               of the entire             bill,      giving     effect        to each
         and every         part      thereof,        as we      should             do, and especially               to Sections             6,
         7, 8, 9, 10 and            11 above         quoted,         we      beg     to advise         as follows:
          a

                            No     employer          contemplated                   in Section         6 of the Act          may       law-
         fully    employ         female        employees,            other          than   office       employees,               in time         of
         war     or when         the President              of the United             States        proclaims             a state      of
         National        emergency             to exist,       more          than nine         hours       per      calendar         day,
         or fifty-four           hours      per     calendar           week,         without        an order        by the Commis-
         sioner     of Labor           Statistics           granting         that exemption.                 In other        words,         no
         such     employer           may,       upon     his    own       initiative,         bring       himself          within     an ex-
         emption        of the requirements                    of Sectibn            1 of the Act.


                            Such       an order        of exemption                 may      be made         by the Commissioner
         of Labor         Statistics        to such         employer               in time     of war,        based        upon      his     private
         investigation           and without           notice        or    hearing,          upon      his    finding        that the em-
         ployment         of female          employees           in such            designated            industry         for     ten hours
         per     day will     not injure            the health          or     morals         and/or         add    to the hazards                    of
         their    occupation,            and    that such         hours            of labor      are      in the public             interest,
         which      such     order         of exemption           will       be effective            as    to the particular                 em-
         ployer     for     thirty       days     from       the date          thereof.         (See      Sec.      9)


                            Where          the Commissioner                    has     not acted          upon      his     own      initiative,
         an employer,             or    one-third           of the female              employees             of an employer                 coming
         within     the jurisdiction                of any      of the federal               acts      enumerated            in Sec.         6 of
         the Act,       may      apply      to the Commissioner                        of Labor           Statistics         for     a hearing,
         whereupon          it becomes              the duty      of the Commissioner                         to designate             a place
         and     time     not later        than     thirty      days         for    such      hearing;        and furthermore,
         making         it the Commissioner’s                    duty,         or that of his             representative,                to hold
         such     hearing.          (See     Sec.      7)


                            Sec.       8 requires           notice        to the employees                 where         the application
         has     been     made       by the employer.                     There       is necessarily               implied          a require-
         ment      of notice        to the employer               where             the application           for        hearing      is by em-
         ployees.


                            The      Act    contemplates               that the Commissioner                         shall        make       his       or-
         der     upon     such     hearing,         and      if favorable             to the employer,                   he would        thus         be
         brought        within      the exemption               from         the requirements                 of Section            1, otherwise
         he would         not be exempt.
Honorable        John D. Reed,         Page        6, O-5154




                 So,   also,    the Commissioner                 must    hold     a hearing            and    make
a finding    upon      any     requested         extension       of a thirty-days’                 order     previ-
ously    made     by him       upon   his       own     initiative,     under     Sec.        9.


                 We    trust    that what         we    have    said    is a sufficient              and   satisfac-
tory    answer     to your       inquiry.


                                                                       Very     truly        yours


                                                               ATTORNEYGENERALOF                                TEXAS




                                                                              Oc’ie      Speer
                                                                                 Assistant
OS-MR



                                                                                    Approved
                                                                                        Opinion
ATTORNEY           GENERAL            OF        TEXAS                                   Committee
                                                                                        BY    fl,&t/7?j               1
                                                                                             Chairman




                                            .
