Evening star., 1947-03-23
Portal Pay Bill Faces
Conference Chances

Conference Changes
Sponsors Hope to Avoid Veto
of Measure Barring Huge Claims
By Gerard D. Reilly
With the passage by the Senate Of the
amendments to the Wage and Hour Act,
the new Congress now has in conference
the first Of the major legislative projects
on its calendar. This means, barring the
possibility OF presidential disapproyal,
that the uncertainties which have beset
industry and the U. S. Treasury by rea-
son OF the six billion dollar potential liza
bility arising under the portal-to-portal
pay suits have largely been removed.
For although there are wide variations
between the House and Senate bills, one
feature common to both Is the retro
active cutting off of claims which have
already accrued, including those which
are the subject of pending lawsuits.
One problem which conferees will
face is the extent to which the disparity
in language between the two bills makes
1t possible, If they are so minded, to
meet certain objections raised by the ad-
ministration.s Certainly considerable
thought will be given to this aspect of
the matter by the managers of the legis-
lation in the hope of avoiding veto.
Fer despite the fact that no statement
was made by the White House in the
oF f1a IeIoo &c %
lieved that the administration does not
oppose the central feature of the legisla-
ton, provided the measure which
emerges from the conference. does not
weaken the general scope of the mini
mum wage and maximum hours law.
While a number of Democratic sem
ators on the floor took the broad posi-
tion that the outlawing of portal-to-
portal claims was inequitable to work
ers and probably unconstitutional, it
was significant that the official views of
the minority of the Judiciary Committee
did not 60 this far. Their report, signed
by Senators McCarran, Kilgore, Nc
Grath, LANCER and Magnuson, resulted
in their Offering substitute bill which
was defeated by a vote of 51-35. This
proposal also contemplated barring re-
covery upon portal-to-portal claims al
ready approved but was drawn so as to
preserve rights of action arising out of
violations of the Fair Labor Standards
Act not involving portal-to-portal situa-
tions.
The substitute also provided method
for disposing of pending suits by per-
mitting the parties to enter into COM
promise settlements. This would have
had the effect of overruling the Supreme
Court decision in Brooklyn Savings
Bank VS.. ONeil, which held that even
If an employee received restitution and
gave release, that he was still free to
bring an action for double damages.
1t also established three-year rather
than two-year statute of limitations.
One section of the majority bill which
came under heavy fire proposed that any
act taken by an employer in reliance
upon regulation, Interpretation, ruling
or practice of the administrator should
be defense in the future to any action
under the statute, even though the rul-
ing or Interpretation in question might
have been rescinded or held void by judi
cial authority. Ever since the passage of
the original act it has been the prac-
tice of the various Wage-Hour admin
istrators, Notwithstanding the absence
of any rule-making power, to issue in
terpretive bulletins for the guidance
of different industries. Moreover as
matter of public relations policy, the
administrators have also attempted to
answer all correspondence about the
application of the act to real or hypo-
thetical situations. Consequently large
part of the time Of the opinion section
Of the Solicitor of Labor's ONCE is
spent in replying to such letters, which
run into thousands every year.
Although the courts have occasionally
said that these interpretations are en-
titled to some weight. they have never
felt themselves bound by them. The
trend of judicial decisions has been to
take much broader view of the cover
age OF the act than the Department of
Labor has done administratively. As
result many employers who continued
certain practices after the act went into
effect in reliance upon these interpretive
bulletins or letters frequently found
themselves confronted with enormous
claims for back pay, If the courts sub
sequently deemed such opinions to be
erroneous.
The minority recognized the hardship
involved in these cases, but contended
that the majority language was too
broad. The substitute bill proposed
that the defense of good faith be rec
ognized only where the evidence showed
adherence to written ruling or regNla-
ton prior to the time of published
amendment. This alternative sugges-
ton, however, was rejected with the de-
feat of the substitute. and since the
language of the House bill on this point
is even broader than the Senate ver-
sion, it is doubtful whether it can be
renewed in conference.
X \
Because of the highly technical char
acter Of most of the differences between
the majority and minority, as we'll as
the complex problems inherent in
drafting language to cover great vari-
ETY. of industrial practices, the debate
on the bill lasted for seven, legislative
days. An interesting sign of the change
which has come about in the Senate
since long tenure of office has become
the exception rather than the rule, was
the prominent part played in the debate