Lifting Ban on Homework Is a Bad Idea

Secretary of Labor William E. Brock III can only hurt hundreds of thousands of workers if he carries out his plan to lift a 44-year federal prohibition against workers in eight apparel-related industries doing their jobs in their homes, where they can easily be exploited by unscrupulous employers.

Something good could come out of Brock’s unfortunate proposal, however, if it ignites a nationwide debate on the entire question of industrial homework. The issue has not been seriously explored since the 1930s, when President Franklin D. Roosevelt’s National Recovery Act, known as the Blue Eagle law, banned the practice in 127 industries.

A conservative Supreme Court declared the NRA unconstitutional, along with the broad ban on industrial homework. For reasons that are not quite clear, the ban was reimposed in 1942 on nine industries. Employers were not allowed to hire home workers to manufacture women’s apparel, jewelry, gloves, mittens, buttons, buckles, handkerchiefs, embroidery or knitted outer wear.

Over the years, industrial homework increased in other industries, such as electronics, and among clerical workers. And there is a relatively new and rapidly growing breed of workers, the “telecommuters,” who do some or most of their work with their own home computers. The limited ban on industrial homework in the apparel-related industries has not been rigorously enforced in any administration, and it has been more neglected than ever under President Reagan. But at least the law is on the books, and, in a more worker-oriented administration, it could be effectively used to prevent exploitation.

Brock’s predecessor, Raymond J. Donovan, tried in 1981 to eliminate all prohibitions against industrial homework. But court rulings and loud protests from several reputable employer associations, unions and others forced him to sharply limit his proposal. Homework was finally legalized in 1983 in only the knitted outer-wear industry.

Even when many workers are employed in one factory location, it is almost impossible to enforce the Fair Labor Standards Act that is supposed to make sure that they are paid at least the $3.35 hourly minimum wage, overtime pay, and that they have safe, sanitary working conditions. There are not nearly enough federal or state inspectors to do the job.

But although each factory is actually inspected rarely, if ever, at least a stab can be made at enforcing the law, because one investigator can check the pay records and job conditions when many workers are at one location.

Imagine, though, the difficulty of enforcing the law when thousands of individuals are working in their homes, not in a factory, in jobs that traditionally pay low wages. And enforcement becomes practically impossible in dealing with homework by illegal aliens or other unsophisticated workers who are unlikely to go to the government to file complaints against their bosses.

Brock says he can solve that seemingly insoluble problem by requiring employers to get a certificate from the Labor Department if they want to hire home workers. That is supposed to make it easier for government inspectors to locate the home workers and make certain that the certificated employers are obeying the labor laws.

Such a requirement is of dubious value, of course, because those bent on violating the law in terms of wages and working conditions aren’t likely to seek one of those certificates. California and 25 other states have their own laws against industrial homework in apparel-related industries, and even if Brock does get rid of the anti-sweatshop regulation on the national level, the states can retain their own. But without the federal ban, employers seeking cheap labor might well be tempted to move to other states that do not prohibit industrial homework.

Doing office and even factory work at home is not in itself evil. Some of my colleagues at The Times use personal computers to write stories in their usually clean homes, and their pay is well above the legal minimum. Homework can be invaluable for severely handicapped workers, and there are other circumstances where it makes sense.

But factory-type homework in some industries, such as those apparel-related ones and electronics, are particularly vulnerable to exploitation because the work is relatively simple and repetitive, and massive equipment is not required.

Urgent need can persuade low-income workers--and their children--to do the jobs in often less-than-comfortable homes, without meaningful protection from employers who don’t pay the minimum wage. And such workers rarely get any of the usual benefits of factory or office jobs such as paid vacations, holidays, health insurance or pensions.

Often, they must supply their own tools and pay for the heat and electricity needed to perform their tasks.

Brock said he will not finally decide the issue until Oct. 22 because of the nationwide interest in his plan. This will allow time for some public outrage and the presentation to Brock of much-needed proposals to expand, instead of get rid of, industrial homework prohibitions.

Legislative Action

The California Legislature didn’t do much in its current session to directly help workers, and one little-noticed measure that was passed could do them some harm.

The Legislature did not increase the low benefits either for the unemployed or for workers injured on the job. Instead, it did away with the concept of “collateral estoppel” in contested jobless benefit cases.

Maybe one reason the bill went almost unnoticed is that it is hard to generate much interest in a collateral estoppel, which simply means that a decision in one case can be used to bolster the same arguments in another.

Interesting or not, however, the legislation makes it harder for workers to collect money if they have been fired without just cause from their jobs. Here’s why:

Until a few years ago, many companies did not bother to fight jobless benefit claims filed by workers who had been fired. Unless many workers got those benefits, the insurance cost to the employer did not rise significantly. But if an employer felt strongly that a worker had been properly fired, the claim for jobless benefits would be opposed.

In the last few years, however, more and more employers have been sued successfully in the courts by employees who contended that they were unjustly fired. This fairly new concept holds that workers have a vested interest in their jobs and cannot be “fired at will” by their employers without “just cause.”

Some “wrongful discharge” plaintiffs have collected hundreds of thousands of dollars.

Employers became increasingly reluctant to challenge a claim for jobless benefits because of collateral estoppel. When an employer challenged the right of a worker to collect jobless benefits--and lost the case before an unemployment insurance appeals referee--that quasi-judicial decision could then be used by the worker to bolster his arguments in a subsequent “wrongful discharge” suit against the employer.

The new law means that workers cannot use a victory won from an unemployment insurance appeals judge in a “wrongful discharge” case.

The legislative action doesn’t mean much to union members. If they think they have been fired unfairly, they have grievance procedures in their contracts to help them. But non-union workers, who found in collateral estoppel a new weapon to protect themselves against arbitrary dismissals by their employers, have lost some valuable legal ammunition for their fight.