[OPE-L:7234] review of Marc Linder's recent book

From: ECUSERS (ECBURKE@scifac.indstate.edu)
Date: Tue May 21 2002 - 21:08:03 EDT

Dear Friends:

Since Gerald brought up Marc Linder, here is a brief review of his 
2000 book on overtime law in the U.S.  It is a book that should be of 
interest to all Marxist labor historians, labor law scholars, and 
anyone interested in worktime issues.

Cheers, Paul Burkett


"Moments Are the Elements of Profit": Overtime and the
     Deregulation of Working Hours Under the Fair Labor Standards
     Act, by Marc Linder. Iowa City, Iowa: Fanpihua Press, 2000.
     Paper, $15.00, Pp. 524.

Marc Linder is widely known among radical political economists as
the author (with Julius Sensat) of Anti-Samuelson (1977); but
among students of U.S. labor law and labor history he is more
familiar as a leading scholar on the evolution of overtime law
under the Fair Labor Standards Act of 1938 (FLSA).  The present
book is a culmination and synthesis of Linder's FLSA-related work
over the last two decades.

     The first of the book's four chapters outlines the
legislative history leading up to the FLSA, including a detailed
treatment of state-level overtime laws.  This chapter also
establishes the two main dynamics of twentieth-century overtime
law in the U.S., both of which involve responses by capital to
worktime initiatives: (a) the pressure, where overtime laws are
inevitable, to press for overtime pay regulations as an
alternative to outright restrictions on the length of (daily or
weekly) worktime; (b) the pressure to limit the effective
coverage of overtime pay laws.  Linder's entire analysis may be
viewed as a study of how these two dynamics interacted in complex
ways.  For example, although overtime pay regulations (especially
time and a half wages) were designed in part as a disincentive to
extended work days (hence as a kind of compromise under dynamic
(a)), the emasculation of these regulations (dynamic (b)),
combined with other factors like the growing fixed costs of
hiring new workers, eroded any such disincentive.

     Linder emphasizes the adverse effects, from a working-class
standpoint, of overtime even with premium pay.  Overtime work (as
opposed to hiring new workers) increases the reserve army of
unemployed, exerting downward pressure on wages, ceteris paribus. 
Competition among employed workers for limited overtime also
tends to create a situation where both extended worktime and the
wage packet with overtime become the standard, producing a
further downward pressure on hourly wages similar to the effects
of piece-rate systems.  Such inter-worker competition can only
erode working-class solidarity.  As Linder shows, however, the
exact forms and effects of these pressures are only determined in
the ebb and flow of economic, legislative, and judicial
conflicts.  Indeed, a key point emerging from Linder's overall
analysis is that organized labor's post-World War II
accommodation to these pressures has had an extremely damaging
effect on working-class conditions and politics.  This
accommodation involved not only an acceptance of overtime pay as
an alternative (in reality fictitious) to limits on worktime
(contrasting with the struggles of earlier labor leaders like
Gompers for outright caps on worktime), but also an acquiescence
to the progressive exclusion of many non-union workers from the
FLSA's overtime and minimum wage provisions -- to the point where
currently only about 60 percent of U.S. workers are covered.

     The detailed analysis of the exclusions begins with Chapter
2's discussion of "pseudo-managers," i.e., workers not covered
because they are (supposedly) mainly engaged in supervisory and
other managerial tasks rather than regular production work.  The
fast food industry in particular has profited greatly from the
super-exploitation of "assistant managers" who work long
stretches of effectively uncompensated overtime on fixed weekly
salaries.  Along with such functional exclusions, quasi-
managerial and other white-collar workers have been subjected to
"salary test" rules stipulating that workers whose weekly wages
(pro-rated over 40 hours) exceed a certain level are not covered
by the FLSA's overtime pay regulations.  Linder documents how,
through inadequate nominal adjustments over the years, the
relevant test salaries have gradually shrunk to levels at or
below the equivalent hourly minimum wage under the FLSA (242).

     Chapter 3 deals with the struggle over the Portal-to-Portal
Act of 1947, which placed strict limits on the applicability of
overtime pay to the time spent in preparatory and/or post-work
activities conducted in the workplace.  The controversy emerged
initially from the mining industry where workers were subjected
to long and often treacherous commutes between the gates of the
mine and the actual point of mineral extraction; but it became of
more general relevance as factories grew in size during World War
II, producing greater walking times between factory gates and
work sites.  Linder shows how capitalists and their government
representatives used the portal controversy to further limit FLSA
coverage through, inter alia, statutes of limitations on back
wages and damages payable as a result of suits filed under the
FLSA, limits on class-action (as opposed to individual or
closed-end group) FLSA-lawsuits, and the legal sanctification of
"custom or practice" with regard to "down time" (based on
particular industry or enterprise conditions and bargaining
histories, however asymmetric worker-boss power relations may
have been).

     In treating the relationship of small enterprises and their
employees to the FLSA, Chapter 4 first demonstrates that
Congress's initial intent, in exempting workers in smaller
businesses from blanket coverage, was mainly to limit coverage to
workers engaged in interstate commerce -- the fear being that the
courts might otherwise strike down the FLSA on state's rights
grounds.  This motivation is evident from the stipulation that
individual employees engaged in interstate commerce would still
be covered even when the smaller businesses employing them were
exempted from blanket coverage.  (Naturally this created a
cottage industry of arcane legislative and judicial opinion-
writing as to exactly what constituted participation in
interstate commerce.)  Over the years small business associations
and their congressional supporters manufactured the myth that the
FLSA had always intended to exclude small business as such on
economic grounds.  This line of thinking helped pave the way for
the Unfair Labor Standards Amendment of 1989, which raised the
floor on enterprise coverage to $500,000 in annual sales,
effectively excluding millions of workers especially in the
construction industry.  Linder demolishes, both logically and
empirically, the economic rationales behind the 1989 Amendment.

     Overall, Linder's analysis of overtime pay regulation
suggests that "workers and unions" should reject "profitability
and consumer demand as the social economy's highest ordering
principles" in favor of human development as registered in social
caps on worktime (207).  For starters, "depriving capital of its
status as the sole authorized interpreter of the market's
commands" as regards worktime requires "an explicit economic
theory and unbiased empirical studies," as well as a
"democratically organized discussion" based on "honesty and
comprehension on the part of legislators and interest and
intelligence on the part of intervening participants," all of
which "have been conspicuously absent" (207, 511).  More
positively, the ongoing conflict over FLSA overtime provisions is
an opportunity for Marxists to take a higher (and popular) ground
in policy discussions.  Linder's book is a rich and highly
readable resource for those interested in pursuing this
political-intellectual project (in addition to being required
reading for specialists in U.S. labor history and labor law).

                                                PAUL BURKETT

Department of Economics
Indiana State University
Terre Haute, IN  47809

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