The major demands in the labor program of earlier years—higher wages, shorter hours, settled conditions of employment, and the like—were not altered after 1896, but a few striking advances were made. The attempt to legislate concerning hours of employment, for example, had been continually obstructed by the clauses in the Fifth and Fourteenth Amendments forbidding any legislation depriving the individual of "life, liberty, or property, without due process of law." The courts had usually interpreted these phrases as prohibiting laws restricting hours of labor, on the ground that the liberty of the workman to contract freely regarding his own working hours was thereby infringed. A Massachusetts law of 1874, nevertheless, which limited a day's work for women and children to ten hours, had followed the long-continued assertion that regulatory legislation could be based on the "police power"—a somewhat indefinite authority which was gradually conceded by the courts to the states and the federal government, and under which it was possible to pass legislation concerning the conservation of the health and morals of the people without violating the Constitution. Not until 1908, however, was the constitutionality of such legislation finally settled by the Supreme Court, in upholding an Oregon ten-hour law. "As healthy mothers are essential to vigorous offspring," the decision asserted, "the physical well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race." In other words, the Court was prepared to approve limitations on the freedom of contract in order to further the public interest. The Massachusetts law was imitated far and wide, so that at the present time an almost negligible number of states have failed to restrict the length of the working day for women.
Recently, also, substantial progress has been made in restricting working hours for children. As long ago as 1866 Massachusetts had restricted the employment of children, but neither this law nor similar laws passed by other states had been fully enforced. Greater progress has been made since 1903, when Illinois, followed by the majority of the important industrial states, established the eight-hour standard for children under sixteen. Impressed with the need of federal legislation to coerce backward states, the reformers took their case to Congress where a federal act was passed in 1916. On account of constitutional limitations, the measure was framed so as to forbid shipment, on interstate railways, of the products of factories employing children under fourteen years of age. It was estimated that 150,000 out of nearly 2,000,000 working children might be affected by the act. Its fate, however, was that of many another piece of economic legislation; by a vote of five to four, the Supreme Court declared the law unconstitutional on the ground that it was not an attempt to regulate commerce, but an attempt to regulate the conditions of manufacture. Early in 1919 the effort to regulate child labor was renewed through the imposition of a tax of ten per cent. on the net profits of factories employing children under fourteen years of age. The constitutionality of the law has not yet been tested (1920).
It will be noted that all the foregoing legislative attempts to reduce the working day affected women and children only; in general, little attempt has been made to limit the working day for men. Nevertheless, large numbers of cities, more than half the states, and the federal government provide for an eight-hour day on public work; and western states have followed the lead of Utah in passing eight-hour laws for miners. Hours of labor for railway employees have also been the subject of study and legislation. Cases had not been unknown where employees were kept at their posts for thirty, fifty and even one hundred hours; frequently such workmen fell asleep and disastrous accidents occurred. In 1907 this situation was met by a congressional act limiting the hours of railway engineers to sixteen and providing that periods of work must be followed by specified rest periods. Train-despatchers, telegraphers, and others were similarly protected. A majority of the states imitated these federal statutes. In a few cases, state laws have been passed which were intended to limit working hours in other especial industries. The most famous of these was one in New York, which restricted the working day in bakeries to ten hours. In the decision Lochner v. New York, the Supreme Court declared the law unconstitutional.[3]
The early twentieth century also saw progress on the subject of compensation for industrial accidents. As far back as 1884 Germany had enacted a law which put the blame for all accidents on the employers, except when the victim was wilfully negligent; in 1897 England had passed the British Workmen's Compensation Act which virtually made the employer the insurer of his workmen against all accidents. The theory underlying these laws was that accidents were like wear and tear and should be made a charge on the industry, like the depreciation of buildings and machinery. The United States, however, lagged behind all other industrial nations, despite the astonishing number of accidents which yearly occurred. In 1908, for example, it was estimated that two million men were injured, of whom 200,000 were permanently disabled, and 30,000 died—a larger number than the federal killed, wounded and missing in the Gettysburg campaign. Under previous practice in this country compensation for industrial accidents had been awarded in accord with common law principles, under which the employer was not responsible for an employee who was injured through the negligence of a fellow servant. Any workman who entered hazardous employment was assumed under the common law to know the dangers and be ready to run the risks, and no compensation could be recovered unless it could be shown that the master had been negligent and the employee had not also been negligent. It came widely to be thought that the common law did not justly apply to the complex industrial system of modern times. It did not seem equitable, for example, that the fellow servant doctrine should hold in case of a railway employee killed through the negligence of a train despatcher many miles away, whom he did not know and had never even seen.
The first workmen's compensation act in the United States was passed in Maryland in 1902. Its scope was narrow and it came to nothing as it was declared unconstitutional. In course of time, however, legislation was framed in such language as to pass muster before the courts, and moreover judicial decisions changed, as time went on, in the direction desired by popular opinion. Beginning in 1911 there was an avalanche of liability and compensation laws and by 1920 forty-two states, together with Porto Rico, Alaska and Hawaii had passed acts that placed the burden more or less completely on the employer, and provided schemes of compensation. The federal government also took action. At the suggestion of President Roosevelt an act was passed in 1908 making interstate railroads responsible for injuries to employees and expressly doing away with former common law practices.[4] At the same time a similar liability was placed upon the United States for accidents occurring to certain classes of government employees and a plan of compensation was established. In 1916 another act brought all civil servants under the system.
Several other types of social legislation have made considerable progress in Europe, but have found little or no foot-hold in this country, such as minimum wage laws, health insurance, old age and widows' pensions, and unemployment insurance. The minimum wage law, establishing a level below which wages must not go, has been adopted by Massachusetts and a few other states in a restricted form. The unemployment problem has hardly been touched, although the federal Department of Labor since its establishment in 1913 has gathered and made public information in regard to opportunities for work.
Recent years have likewise seen a vast number of laws which together have made a new era in American industrial life, although separately no one of them was revolutionary. For example, matches containing white phosphorous were subjected to a prohibitive tax because of the harmful effect of the phosphorous on workmen in match factories; greater care was exercised in guarding dangerous machines, elevator wells and the like; fire protection, harmful or poisonous fumes and dust, ventilation and safety devices in mines, safety appliances on railway trains, together with numberless other accompaniments of modern industry were the subject of state legislation. Almost as important as legislative enactments were the changes in working conditions voluntarily made by the most progressive corporations. One who compares a factory built within twenty-five years of the close of the Civil War with a building erected since 1900 discovers revolutionary changes. Later buildings are constructed with much more care for ventilation, light and convenience; in some cases even the temperature of the work-rooms is a matter for painstaking attention; "welfare" work is now a commonplace, with rest rooms, lunch rooms, recreation fields and factory social activities. Factory or store committees that confer with higher officers in relation to hours and the needs and desires of the employees are by no means uncommon, and some of the large corporations even provide pension systems for their employees.
On the other hand, laws and statute books did not always guarantee performance. Laws were continually avoided both by the employers and the employees; workmen transgressed rules laid down for their welfare; the passage and execution of many laws were hampered to the last degree by short-sighted employers; the courts invalidated much legislation on the ground of unconstitutionality; and progress was frequently confined to leading states or corporations and was by no means universal. It nevertheless is true that the tendencies in social and economic legislation since 1896 have been widely different from those prevalent before that year.
In several cases the influence of the labor element in federal legislation has been decisive. The use of the injunction, it will be remembered, was one of the grievances most frequently mentioned at the time of the Pullman strike. In the campaign of 1908 both parties strove to attract the labor vote by proposals of reform, but not until 1914 was the issuance of injunctions forbidden "unless necessary to prevent irreparable injury to prosperity … for which injury there is no adequate remedy at law." At the same time the labor unions were exempted from the operation of the anti-trust laws.[5] The influence of the labor organizations was also a factor in the agitation for the restriction of immigration which continued from 1897 to 1917. In the former year a bill was passed which contained a literacy test—that is, a provision excluding persons who were unable to read or write English or some other language. President Cleveland exercised his veto, as did later presidents when similar measures were carried in 1913, 1915 and 1917, but in the latter year Congress was able to muster sufficient strength to pass the act over the President's veto. One of the main purposes of the measure seems to have been the restriction of the labor supply, and hence it enlisted the support of the American Federation of Labor and other similar organizations.[6]
The ameliorative measures already mentioned have by no means prevented the boycott and the strike. Indeed they have not, except in rare cases, directly affected the two great causes of industrial disputes—hours and wages for adult male laborers. Many formidable and violent strikes have occurred since 1896, such as those of the shirt-waist makers in New York in 1909, the textile operatives in Lawrence, Massachusetts, in 1912, and the Colorado coal miners in 1913. On the whole, however, it seems that the labor unions have developed somewhat greater conservatism and that their influence has been against violence in strikes.