한국정치 노트 Notes on the Politics of Korea

미국에서 최저임금법의 역사, 여성 노동자 보호코저 1913년 최초 시행되다.


최저임금법 최초 도입 목적은 노동자들의 ‘건강’ ‘도덕성’ ‘사회복지’를 증진시키고 함양하는 것이다. 이러한 최저임금법의 역사적 배경을 고려했을 때는, 경제학자 정치학자 법학자들이 연구해야 할 주제는 “과연 최저임금법이 노동자들의 건강, 도덕성, 사회복지 함양에 기여했는가”가 되어야 하지 않겠는가? 


내 생각은 그렉 맨퀴(Greg Mankiw) 주장처럼 “최저임금은 노동시장에서 수요와 공급 법칙에 따라 결정된다”고 생각하지 않는다. 

캐나다건 미국이건 최저임금 받거나 그보다 $ 1~3 더 받는 서비스 부문 노동자들 ‘두 개 일자리(투 잡)’인 경우 많다. 한국보다는 상대적으로 너그러운 캐나다 중산층들 ‘최저임금 인상’에 적대적이지 않다. 


최저임금 적정선은 한국, 미국, 캐나다의 모든 시민들의 중위 ‘생계비’ ‘생활비’를 고려한 다음에 책정되어야 한다.  사실 ‘최저임금 인상과 고용/해고 상관관계’에 대한 네오클래시컬 경제학교수들 사이에 연구와 연구방법 정말 흥미롭다. 하지만 그들도 이미 익히 잘 알겠지만, 최저임금 인상이 현존 법률질서, 소유권 제도, 자본주의 체제에 전혀 해를 끼치지 않았고, 않고 있고, 앞으로도 그럴 확률이 99.9%이다.


미국에서 1912년 최저임금이 도입되었다. 매사추세츠 주가 처음이다. 그러나 국가 공권력에 기반하지 않고, 자발적으로 ‘최저임금 제도’ 실시하라고 했다. 1913년 2월 17일 미국 서쪽 오레건 (Oregon)주에서 최초로 ‘최저임금 제도’를 법적 구속력을 지니게 만들었다. 


출발 동기는 여성 노동자의 권리 보호였다. 공장 주인들이 여성 노동자들에게 저임금을 지불하는 것을 사회적 경제적 ‘악’이라는 여론이 터져나왔다.


그래서 ‘최저임금법’이 헌법에 위배하느냐 헌법 정신에 부합하느냐 논쟁도 벌어졌지만, 많은 주들의 법정은 ‘헌법 정신 부합’으로 결론지었다.


1) 오레건 주 대법원 결정사항: 1주 당, 노동자들에게 $ 8.64를 최저임금으로 지불해야 한다.

2) 하루 최대 노동시간은 9시간이다

3) 1주일 최대 노동시간은 50시간이다.  (50시간 초과하면 안된다) 

4) 점심 시간은 45분간이고, 유급이다. 

5) 이를 어기는 것은 ‘불법’이다. 

6) 노동력 판매와 구매는 성인의 ‘시민권리 liberty ‘ , 혹은 자유이지만, 만약 회사 주인(자본가 경영자)가 최저임금법을 준수하지 않는다면, 이는 대중의 건강과 안전을 해치는 것이므로 국가정부가 ‘공권력’을 사용해야 한다.



희망사항: 네오 클래시컬 경제학교수들 사이에서 지난 20년 넘게 ‘최저임금과 고용효과’ ‘최저임금 인상과 노동자 복지’ 등 인과관계, 아니면 상관관계를 연구하고 있다. 분명히 의미있는 연구이다. 하지만 최저임금법이 도입된 ‘원초적 동기들’ 애초 목적들을 최저임금법이 달성하고 있는가를 연구하는 것도 필요해보인다.


(1913년 오레건 주, 포틀랜드 지역 공장에서 일하던 캐롤라인 글리슨 (이후 미리엄 테레사 자매로 알려짐)이 '최저임금법'을 입법화하는 혁혁한 기여를 했다. 캐롤란이 글리슨은 오레곤 전역을 돌며 노동자들의 실태와 의식을 조사했고 마침내 최저임금법'을 오레건 주에서 제정해냈다) 







CONSTITUTIONALITY OF MINIMUM WAGE LAWS.-During the year 1913 the legislatures of many states, realizing the economic and social evils re sulting from the underpayment of women employees, and following the example of England, Germany, New Zealand and Austria, enacted legisla tion establishing a minimum wage for such employees. See the Laws of 1913 in the following states: California (Ch. 324); Colorado (Ch. IIO); Minnesota (Ch. 547); Oregon (Ch. 62); Utah (Ch. 63); Washington (Ch. I47); and Wisconsin (chl. 712). The act passed by the Nebraska Legisla ture (Ch. 211), is very similar to the Massachusetts act, Laws 1912, Ch. 706 as amended by Laws 19I3, Ch. 672, in that these acts are not compulsory.


 In Connecticut, Indiana and Ohio commissions are investigating the problem and it is likely that these investigations will result in legi'slation upon the subject. -And in New York and Michigan provisions have been made for the investigation and study of the question. The vital question in regard to these acts is their constitutionality, and a decision upon this point has been awaited with great interest. 


The case of Stettler v. O'Hara et al, 139 Pac. 743, decided by the Supreme Court of Oregon, upholds the constitutionality of such legislation, and contains an able treatment of a question of first impression. Prior to this decision the only discussion of the question was contained in dicta of cases where the question directly before the court was the power of the legislature to fix a minimum wage for workmen employed by private persons upon a public work, or for employees or officers of a municipality.


 In these cases it was assumed that the legislature had no right to fix wages in strictly private employment. See People v. Coler, i66 . Y. T. The Governor of Oregon, pursuant to Laws 1913, Cih. 62, appointed the defendants members of the Industrial Welfare Commission.


 A conference was held, recommendations made and approved, and an order issued, all the steps being taken in accordance with the above act. The part of this order, material to this discussion, provided, in the case of wvomen employees in certain factories, that nine hours a day and fifty hours a week should be the maximum hours of employment, that there be a noon hour lunch period of forty-five minutes, and that there be paid a minimum wage of $8.64 a week for an experienced adult woman worker in such establishments.


 The plaintiff brought suit to annul and vacate this order, but the court held the legislation to be a valid exercise of the police power of the state. 


The basis for this decision is shown by the words of the court. "Every argument put forward to sustain the maximum hours law, or upon which it was established, applies equally in favor of the constitutionality of the mini mum wage law as also within the police power of the state and as a regu lation tending to guard the public morals and the public health." It is apparent from that portion of the opinion first quoted that the decision rests upon the assumption that the regulation of hours of employ ment of women is a valid exercise of the police power. 


The position of the court is supported by authorities most numerous, among which is Muller v. Oregon, 208 U. S. 412, 52 L. ed. 551, 28 Sup. Ct. 304, 13 Ann. Cas. 957. This case also involved the constitutionality of an Oregon statute fixing

 

 

hours of employment of women. Justice BREWER, in his opinion, after pointing out the vital differences between men and women, said, "Differen tiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sus tained It is impossible to close one's eyes to the fact that she still looks to her brother and depends upon him. 


Even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection;


 that her physical structure and proper discharge of her maternal functions-having in view not merely her own health, but the well-being of the race-justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not solely for her benefit, but also largely for the benefit of all. 


Many words can not make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capactiy for long-continued labor, par ticularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. 


This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her." The most recent case upon the subject of maximum hours for women is Riley v. Massachusetts, 232 U. S. 671. Massachusetts Laws of I9o9, Chap. 514, Sec. 48, provided for ten hours a day and fifty-six hours a week as the maximum hours of labor for women in any manufacturing or mechan ical establishment, permitting a different apportionment for the sole purpose of making a shorter day's work for one day of the week.


 A further pro vision required the employer to post a notice in a conspicuous place stating the hours of labor for women and forbidding the employment of women at a time other than specified in such notice. The specific charge against the defendant was that women were found employed at I2:55 P. M. con trary to the posted notice which specified 12 M. to I P. M. as the noon hour.


 The maximum hour provisions were sustained on the authority of Muller v. Oregon, supra. As to the further provisions the court said, "The end of the statute is the protection of women within constitutional limits, and the requirement that the hours posted in the notice shall be followed is a means to effectuate the attainment of that end. In other words, the purpose of the posting of the hours of labor is to secure certainty in the observance of the law, and to prevent the defeat or circumvention of its purpose by artful practices." A full discussion of the constitutionality of maximum-hour legislation will be found in 8 MICH. L. REV. I, 9 M'ICH. L. REv. 44, arid also in the annotations to Corn. v. Riley,.210 Mass. 387, 97 N. E. 367, in Ann. Cas. 1912 D, 388.

 

 

The rules of law applicable to the question of a minimum wage are few and well settled. These rules are best set forth in Lochner v. New York, 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. 539, and are as follows. The right to purchase and sell labor is a part of the "liberty" protected by the four teenth amendment. This right to "liberty" is, however, subject to such reasonable restraint of action as the state may impose in the exercise of the police power for the protection of the health, safety, morals and gen eral welfare. 


The legislation enacted bv virtue of the police power must have a direct relation to the end to be attained, reasonably adapted to accomplish that end, and the end itself must be appropriate and legitimate. And these minimum wage laws must be sustained unless the court can find that there is no fair ground, reasonable in and of itself, to say that there is material danger to the public health or safety, or to the health or safety of the employees, or to the general welfare, in permitting women to work in a manufacturing establishment for less than a weekly wage of $8.64. 


There is no doubt that the purpose of the minimum wage legislation for women is within the police power of the state, in that the aim of such legislation is to better the health, morals and welfare of the community by improving the conditions of women employees in certain occupations. Barbier v. Conolly, 113 U. S. 27, 28 L ed. 923, 5 Sup. Ct. 357; Webber v. Virginia, 103 U. S. 343, 26 L. Ed. 565.


The real question, then, is whether or not such legislation is directly related to the end to be accomplished and reasonably adapted to attain that end. From the investigations carried on in both this country and abroad the result has been that the commissions have reported a direct connection between wages on the one hand, and health. safety, morality and general welfare among employees on the other hand in many occupations. 


And many commissions have further reported that in certain industries the women employees were receiving less than the cost of living and the reason able provision for maintaining their health. The realization of the number of underpaid women employees, the effect of low wages upon health, morality and welfare, and the particular need of protecting women as set forth in Muller v. Oregon, supra, induced the legislatures of many states to pass these minimum wage laws.


 As the commissions of various states presented reports sufficiently convincing to cause the legislators to act, this fact would tend to show that there was a real connection between wages paid to women in certain occupations and health and morality. These facts should have a great influence upon the courts as tending to uphold this legislation, particularly so in view of the rule applicable to such a situation. For if the end which the legislature seeks to accomplish is within its power, but the means empl'oyed are not the wisest or the best, yet if those mieans are not plainly and palpably unauthorized by law the court can not inter fere. Lochner v. New York, supra, Pattersont v. Kentucky, 97 U. S. 501, 24 L. ed. 1115.


 The holding of the Oregon Court in Stettler v. O'Hara et al is an excel lent illustration of the fact that courts not only progress but keep abreast of the social and economic development of the country. In reading the opinion one can not but be impressed by the court's extended treatment of the economic and sociological aspects of the situation before it. There is no doubt but that this decision will have a very great influence upon the final determination of the question. G. E. K.

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