243 U.S. 426 (1917), argued 18 Apr. 1916, reargued 12 June 1916, reargued 19 Jan. 1917, decided 9 Apr. 1917 by vote of 5 to 3; McKenna for the Court, White, Van Devanter, and McReynolds in dissent, Brandeis recused. A 1913 Oregon law established a ten-hour day for all workers, men as well as women, in mills, factories, and manufacturing establishments, and required time-and-a-half pay for overtime. Bunting, a foreman in a mill, required an employee to work thirteen hours but did not pay the overtime and was convicted of violating the law. The National Consumers’ League secured the services of Louis Brandeis to defend the law, but before the case came up for argument, he was appointed to the Court. Felix Frankfurter took over the case and submitted a massive “Brandeis brief” laden with facts showing that long hours were detrimental to workers’ health.
The Court was badly split on this issue, primarily because some of the justices saw the overtime requirement as a wage regulation, the first step toward statutorily established minimum rates; the case had to be reargued twice. Finally a bare majority agreed that the time-and-a-half provision did not constitute a wage regulation but a penalty designed to discourage overtime work.
In his opinion, Justice Joseph McKenna indicated that the Court need not pass on the wisdom of the act but should accept the judgment of the Oregon legislature that a ten-hour maximum was necessary or useful for preserving the health of employees. The fact that the law did not apply to all workers, but only to those in certain industries, did not constitute discrimination that violated the Due Process Clause. Three members of the Court dissented without opinion.
Melvin I. Urofsky