              THEATTORNEYGENERAL
                            OFTEXAS

                          AUSTXN       ~%‘I?ExAs




                             October     27,   1961



Mr. R. B. Latting,  Commissioner
Bureau of Labor Statistics
Austin, Texas
                                         Opinion      No.   WW-1181

                                         Re:   Whether the Federal Government,
                                               by exempting the shrimp canning
                                               and processing     industry from the
                                               overtime provisions       of the Fair
                                               Labor Standards Act, has pre-
                                               empted this field of legislation       to
                                               the extent that Article 5 172a,
                                               Vernon’*    Civil Statutes,    regulat-
                                               ing the maximum working hours
Dear   Sir:                                    of females,    is invalid.

         You have requested an opinion of this office as to whether the
Federal Government,       by exempting the shrimp canning and processing
industry from the overtime provisions        of the Fair Labor Standards Act,
has pre-empted     this field of legislation  to the extent that Article 5172a,
Vernon’s   Civil Statutes,   regulating the maximum working hours of female
employees,    is invalid.

        The Fair Labor Standards Act, 29 United States Code, Section
201, et seq.,  as amended May 5, 1961, provides for maximum hours
for employees   under the Fair Labor Standards Act. Section 207(a)
reads as follows:

                 “Except as otherwise provided in this section,     no
         employer   shall employ any of his employees    who is en-
         gaged in commerce     or in the production of goods for com-
         merce for a workweek longer than forty hours, unless such
         employee receives    compensation   for his employment   in
         excess of the hours above specified at a rate not less than
         one and one-half times the regular rate at which he is
         employed. ”
Mr.   R.   B.   Latting,    page 2         (WW-1181)




        Section 213(b), 29 United States Code, as amended h4ay 5, 1961,
provides for certain exemptions   to the maximum hours section, the appli-
cable exemption being set out as follows:

                    “The provisions  of section 207 shall not apply
           with respect to- . . . (4) any employee employed in
           the canning, processing,    marketing,    freezing,    curing,
           storing,  packing for shipment,    or distributing   of any
           kind of fish, shellfish, or other aquatic forms of ani-
           mal or vegetable life, or’any by-product       thereof; . . . ”

           Section   218,   29 U.S.   C. A.,     reads    as follows:

                    “No provision of this chapter or of any order
           thereunder shall excuse noncompliance     with any Federal
           or State law or municipal ordinance establishing    a mini-
           mum wage higher than the minimum wage established
           under this chapter or a maximum workweek lower than
           the maximum workweek established       under this chapter,
           . . . ,I

           Section   1, Article   5172a,       Vernon’s     Civil   Statutes,   reads   as follows:

                     “No female shall be employed in any factory,
           mine, mill, workshop,        mechanical   or mercantile   estab-
           lishment,    hotel, restaurant,    rooming house, theater,
           moving picture show, barber shop, beauty shop, road
           side drink and/or food vending establishment,         telegraph,
           telephone or other office,      express or transportation    com-
           pany, 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. ”

         Section 5a, Article 5172a, as amended by Acts of the 57th Legisla-
ture, page 978, Chapter 425 (S. B. 352), Vernon’s    Texas Sessions Laws,
effective June 17, 1961, reads, in part, as follows:

                   “In case of extraordinary  emergencies,    such as
           great public calamities,   or where it becomes necessary
           for the protection of human life or property,   longer hours
           may be worked;    but for such time not less than one and
Mr.   R.   B.   Latting,    page 3   (WW-1181)




           one-half times the regular rate at which such female
           is employed shall be paid to such female with her con-
           sent.   Unless otherwise provided herein,   any female
           employee who works more than forty (40) hours per
           week shall be entitled to receive from the employer
           pay at a rate not less than one and one-half times the
           regular rate for which such female’ is employed for all
           hours in excess of nine (9) hours per day, provided the
           employee actually works more than forty (40) hours per
           week. 1’

         Early in our constitutional   history,   it was s’ettled that the fact that
 Congress   has power to regulate commerce        among the’ several States does
not exclude State legislation   in the exercise    of.the police power, even
though it may affect such,commerce.         Willson v. Blackbird Creek Marsh
co.,
-      2 Pet.  246 (1829); Cooley   v. Board,of    Wardens,    12 How. 299 (1951).

         It is also well settled that where a State.Statute    and a Federal
Statute can be reconriled     or can consistently   stand together both acts
should be allowedto     stand;   Therefore,   unless the repugnance or con-
flict of the State and,Federal    Statutes is so obvious that the two acts
cannot be reconciled    or stand.together,   ,they will b, allowed to stand.
Sinnott v. Davenport,     22 How. 227 (1859); Missouri,      K. & T. R. Co.
v. Haber,     169 U.S. 613, 623 (1897).

        In Kelly v.        Washington,  302~U. S. 1 (1937),~ which is in accord
with the immediate         foregoing cases,  the following statement appears at
page 10:

                    .‘I. . . States are thus enabled to deal with local
           exigencies     and to e~xert in the absence of conflict with
           federal legislation     an essential protective power.       And
           when Congress       doesexercise     its paramount authority,
           it is obvious that Congress       may determine how far its
           regulation shall go.       There is no constitutional    rule which
           compels Congress        tomoccupy the whole field.      Congress’
           may circumscribe        its regulation and occupy only a limited
           field.   When it does s~o, ‘state regulation’ outside that limi-
           ted field and otherwise admissible         is not forbidden or dis-
           placed.      The principle is thoroughly establishe’d that the
           exercise     by the State of its pdlice’power,     which would~ be
           valid if not superseded      by federal action; is superseded
Mr.   R.   B.   Latting,   page 4   (WW-1181)




           only where the repugnance or conflict is so ‘direct
           and positive’ that the two acts cannot ‘be reconciled
           or consistently  stand together. ’ ”

          There is .nothing in the Fairy Labor Standards Act dealing with a
limitation on daily hours worked for the shrimp canning and processing
industry.    The Federal Act prohibits working more than forty hours per
week for any industry “unless such employee receives           compensation    for
his employment      in excess of the hours above specified at a rate not less
than one and one-half times the regular rate at which he is employed. ”
Section 207(a),    29 U.S. C. A.    On the face of the two statutes,   there is
no conflict concerning     regulation of ,the number of daily hours worked.
The state law prohibits employment         for more than nine hours in any one
calendar day, whereas the federal law is silent.          The state law prohibits
employment     for more than fifty-four     hours in any one calendar week;
whereas the federal law is silent as to the shrimp canning and processing
industry and requires only that time and a half be received by an employee
who works more than forty hours in any one work week four those indus-
tries not exempt.      There being nothing in the Federal Fair Labor Stan-
dards Act dealing with a limitation on daily hours worked in the shrimp
 canning and processing      industry,  there is no conflict between the State
law and the federal Act.

         An application of this principle, involving the comparable    field
of labor legislation,  appears in Allen-Bradley    Local No. 1111 v. W. E. R. B. ,
315 U.S. 740 (1942).     There it was asserted   that by reason of a claimed
conflict between the Wisconsin    Labor Relations Act and the National Labor
Relations Act, an order of the Wisconsin     Employment     Relations Board,
under state law, could not stand.     The United States Supreme Court, in
affirming  the Supreme Court of the State of Wisconsin,      pointed out one
of the fundamental rules to be applied in determining     contentions of this
type.   We quote the following excerpt from page 748:

                    “We agree with the statement of the United
           States as amicus curae that the federal Act was not
           designed to preclude a state from enacting legislation
           limited to the prohibition or regulation of this type of
           employee or union activity.     The committee   reports
           on the federal Act plainly indicate that it is not a
           ‘mere police court measure’ and that authority through
           the several states may be exerted tomcontrol such con-
           duct.   Furthermore,    this Court has long insisted that
Mr.   R.   B.   Latting,   page 5    (WW-1181)




           ‘an intention of Congress   to exclude states from
           exerting their police power must be clearly mani-
           fested. ’ (Citing cases). ”

        Then, after reviewing       other decisions and the basic provisions
of both state and federal law,      the Court pointed out at,page 750 that
there was no conflict because:

                    “But, as we have said, the federal Act does
           not govern employee or union activity of the type
           here enjoined;~ * * * Since the state system of regu-
           lation, as construed Andyapplied here, can be recon-
           ciled~with the federal Act and since the two as focused
           in the case can consistently  stand together, the order
           of the state board must be sustained under the rule
           which has long o.btained in this Court. ”

          In Reid v. Colorado,,   187 U. S. 137 (1902) the Court held that,
“It should never be held that Congress       intends to supersede     or by its
legislation   ,suspend the exercise   of the police powers of the State, even
when it, may do ,so, unless its purpose to effect that result is clearly
manifested.      . . . The principle is universal   that legislation, ,whether
by Congress      or by a State, must be taken to be valid, unless the con-
trary is made clearly to appear; . . . ”

          The numerous    cases concerning the allowable area of State law
leave no doubt that State action cannot be set aside on the basis of vague
generalities   about Congress   having “pre-empted    the field, ” but rather
it is clearly pointed out that Congress    may limit its regulations    allowing
State legislation  to stand outside that limited field.   State action is not
curtailed unless ~the State laws are clearly contradictory      to the federal
statutes and unless it can be shown the State statutes are directly and
positively   repugnant to the federal statutes so that they cannot be recon-
ciled and cannot stand together.     The intention of Congress     to exclude
States from exerting their police power must be clearly manifested.

         We think it evident that Congress   was, in passing this legislation,
well aware of the differences   in local circumstances    and that it was
desirable  to leave treatment of these matters to the different localities.
In the United States Code Congressional     and Administrative   News (April-
May, 1961). at page 1394, in discussing      one of the exemptions   of the
Fair Labor Standards Act, it is stated that:
Mr.   R.        B.       Latting,   page 6   (WW-1181)




           I,
                 .  These exemptions
                     .    .              were motivated by a desire
           on the part of President    Roosevelt,    the sponsors of
           the original legislation,   and Congress     as a whole to
           exclude local business from the act.        Congress   felt that
           the matter of regulating the minimum wages and maxi-
           mum hours of the retail and service establishments
           should be left to the States,   in view of the wide varia-
           tion in the operating practices     of such establishments
           (81 Congressional     Record 7648).     The States have been
           doing their job in this connection.      For example, during
           the past year Massachusetts,       New Hampshire,     New York,
           Utah, Vermont,     Wisconsin,    the District of Columbia,     and
           Puerto Rico raised their minimums.           So did Pennsylvania,
           effective in January 1961.     In all, some 33 States, the
           District of Columbia,     and Puerto Rico have wage and hour
           laws regulating retailing. I’

         Therefore,  from the above, it seems apparent that it was the in-
tent, when the original Bill was passed by the Congress,     that any regula-
tions concerning these exempt establishments    or industries   should be
left to the States; and consequently a large percentage   of the States have
passed legislation  to cover some of the exemptions   in the federal act.

         It is also apparent that Congress   by enacting Section 218 of the
Fair Labor Standards Act, clearl~y intended that State laws providing
higher standards on a given subject matter should prevail.       We think
the language of 218 is broad enough to include the exemptions      contained
in Section 213 of the Act.    The language in Section 218 is strong and in-
clusive when it provides that” “No provision of this chapter or of any
order thereunder shall excuse noncompliance       with any Federal or State
law or mim’idipal ordinance establishing    a minimum wage higher than the
minimum wage established       under this chapter or a maximum workweek
lower than the maximum workweek established         under this chapter,  . . . ”
(Emphasis     added)

         Not only does the express language of applicable  sections of the
federal law support the conclusion that State laws which are stricter
than the Fair Labor Standards Act shoul,d prevail,   but pertinent court
decisions and administrative   rulings further support the conclusion,

           In the case of Eastern Sugar Associates       v. Pei%,   222 F. 2d 934
(1955),     Pega brought suit against his employer,       Eastern   Sugar Associates,
Mr.   R.   B.   Latting,   page 7   (WW-,1,181)




for unpaid overtime compensation      which he claimed was due under the
laws of Puerto Rico.      The Puerto Rican law was similar to Article
5172a in that it restricted   daily employment  to eight hours of work
and provided for overtime for hours worked in excess of eight.       In this
case, the Court said:

                   “Section 18 of the Fair Labor Standards Act
           provides that no pr~ovision of that act “shall excuse
           noncompliance     with any Federal or State law or mun-
           icipal ordinance establishing    a minimum wage higher
           than the minimum wage established       under this Act or
           a maximum workweek lower than the maximum work-
           week established    under this Act”.    Thus the States,
           and this undoubtedly includes the Commonwealth         of
           Puerto Rico, are given freedom of action to estab-
           lish higherstandards     than those established   by the
           Federal act.     Puerto  Rico has  done  so by Act  No. 379,
           Laws of Puerto Rico, 1948, under which this suit
           was brought.    . . .

                    ‘1. . . . .

                      “With respect to the first two bases for the
           plaintiff’s   claim,  that is, daily work after eight hours
           and work on days of rest, he claims time and a half
           and double time respectively       under Section 5 of Act
           No. 379.      Since there is no similar provision in the
           federal law it is perfectly    clear that this part of his
           claim is solely under the local law.,”

        The Court then reviewed plaintiff’s    claim which sought overtime
for work performed     in excess of forty hours in one week and concluded
that the plaintiff’s entire claim “is necessarily   based on the local law
and not upon the federal Fair Labor Standards Act. ” Therefore,        the
decision of the Puerto Rico Supreme Court which rejected the employer’s
defense under the federal law was affirmed.

        On February 8, 1950, the Attorney General of Montana issued his
Opinion 89, this opinion being summarized  in the Commerce  Clearing
House Labor Law Reports,     Wages and Hours, Volume 1, page 36, 620.
This opinion states as follows:
Mr.   R.   B.   Latting,   page 8     (WW-1181)




                    “The Montana eight-hour      day constitutional
           provision and enforcement      statutes,    in so far as the
           same apply to employees      in seasonal industries,       and
           employees    engaged in first-processing       industries,
           supersede   the F. L. S. A. since it provides a maximum
           work week shorter than the work week established
           under the Act for such employees.        ‘I

        In short, the states may legislate on matters in the general
domain of commerce     so long as Congress  is silent.  And even when the
Congress   has spoken, the states may legislate when the federal enact-
ment does not clearly indicate Congressional    intent to preempt the par-
ticular area involved.

          If Congress,    by exempting the Shrimp Industry from the mini-
mum hours provisions        of the Fair Labor Standards Act and refusing to
legislate    on that, had intended to wipe out the States’ police power as to
these matters,      it would have been an easy matter to express this inten-
tion in clear,    distinct and unambiguous language.       However,   neither ex-
pressly nor by indirection       did the Fair Labor Standards Act displace what-
ever police power the States may have to deal with maximum hours pro-
visions.      To repeat what was said in Allen-Bradley      Local v. Board, supra,
“We will not lightly infer that Congress       by the mere passage of a federal
Act has impaired the traditional sovereignty        of the several States” over
such police matters as are the concern of Article 5172a.           Therefore,   by
refusing to legislate     as to the exempted industries,    Congress   did not for-
bid the States from so legislating.

        The only issue before us is whether Texas,    under Article 5172a,
is free to regulate the shrimp canning and processing   industry where
Congress   has not done so.

        By exempting the Shrimp Industry from the overtime provisions         of
the Fair Labor Standards Act, there is no basis for the conclusion       that
Texas is thereby denied ,the right to pass legislation  to regulate the hours
of females   employed in the shrimp canning and processing     industry.    We
do not believe that any provisions    of the Fair Labor Standards Act, includ-
ing the exemptions    thereunder,  displace whatever police power the States
might have to deal with those aspects of this industry as to which Congress
refused to legislate.
.   ,.   .




             Mr.   R.   B.    Latting,   page 9     (WW-1181)




                      It   is, therefore,    the opinion of this office that the federal govern-
             ment, by      exempting the shrimp canning and processing           industry from the
             overtime      provisions    of the Fair Labor Standards Act, has not pre-empted
             this field    of legislation,   and Article 5172a, Veinon’s       Civil Statutes, regu-
             lating the     working hours of female employees        is valid.



                                                  SUMMARY

                                 By exempting the shrimp canning and processing
                        industry fr,om the overtime provisions       of the Federal
                        Fair Labor Standards Act, the Federal government            has
                        not pre-empted   this field of legislation,    and Article
                        5172a, Vernon’s    Civil Statutes,   regulating the working
                        hours of female employees,      is valid.

                                                                Very   truly   yours,

                                                                WILL WILSON
                                                                Attorney General        of Texas



                                                                BY
                                                                       Dudley I$. McCalla
                                                                       Assistant Attorney          General

             DDM:lmc

             APPROVED:

             OPINION         COMMITTEE:

             W. V. Geppert,  Chairman
             John Reeves
             Iola B. Wilcox
             Morgan Nesbitt
             Coleman Gay, III

             REVIEWED   FOR THE ATTORNEY                  GENERAL
             BY:  Houghton Brownlee, Jr.
