The Middle Classes in New Deal Hours Legislation

The Middle Classes in New Deal Hours Legislation

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The likely readers of this paper work for a living, or are studying with the hope that they will work for a living very soon. Unlike many other workers in this society, they do not (and will not) get paid time-and---a-half for overtime. In this paper, I tell the story of how upper-level white-collar workers—people like the intended readers of this paper—came to be exempt from the Fair Labor Standards Act's general overtime rules. My purpose in telling this story is not to participate in the debate on whether the so-called “white-collar exemptions” to the Fair Labor Standards Act make sense, although I will close by suggesting why that question is harder than it appears. Instead, my aim is to use the historical example of New Deal wage and hour legislation to shed light on how the law reflects and helps to shape the American concept of class. The legal academy has generated a rich literature on the ways in which law and social practice interact in the creation and maintenance of social categories and hierarchies. Race and gender have been the dominant subjects in this literature. Class has been all but ignored. This should come as no surprise. We Americans do not accept class as a core part of either our identities or our social structure. Most of us believe that we are “middle class,” and that individuals can so easily move upwards into and within the middle classes that it makes little sense to think of Americans as divided by class at all. Just as class tends to be invisible to the American social eye, the American legal eye does not see the law as actively involved in creating and maintaining class lines. When American lawyers look for the hand of the law in the construction of social categories, we tend to look in equal protection theory (the creation of suspect classifications) and in antidiscrimination law (the creation of protected groups). Class seems invisible to American law because neither equal protection doctrine nor antidiscrimination law has accorded it legal significance. While class has not been recognized as a category in American civil rights jurisprudence, class line-drawing has long been a pervasive activity of the American legal system. At least since the New Deal, Congress and administrative agencies operating in the fields of labor, welfare, and tax law have routinely selected categories of people for coverage on the basis of class-like criteria—by which I mean social or economic criteria (such as occupation) that are part of the complex of social and economic distinctions referred to in popular or academic discourse as “class.” By moving from civil rights legislation to economic legislation, and from courts to administrative agencies, we can begin to see the role the law has played in constructing and maintaining American conceptions of class. We are perhaps accustomed to thinking that the government defines “the poor” as a class in the course of enacting and implementing social welfare legislation. We are less accustomed to thinking that the law plays a role in the way we understand the middle classes—or, to address my readers more directly, the way we understand ourselves. There is, of course, a parallel here to the issue of the social and legal construction of race and gender. Traditionally, scholarship on race and gender and the law has focused on the law's involvement in giving shape to black race and female gender. To use the language of linguistics for a moment, it is as if law were seen as doing its work only on the categories “marked” as somehow different or problematic. Restricting critical analysis to the “marked” categories leaves the “unmarked” categories—those in which power resides—seemingly as facts of nature rather than as products of culture. Just as race scholarship has now moved in the direction of problematizing “whiteness,” I wish to problematize the American middle classes. For scholars interested in the subject of class and the law—particularly insofar as the middle classes are concerned- the New Deal is a pivotal period. The Depression had sweeping effects across the American class hierarchy, and the breadth of its effects was recognized by government administrators. In the words of Harry Hopkins, the director of the Federal Emergency Relief Administration (FERA), “the whole crowd is caught in this thing, the finest people in America.” “[D]octors [and] dentists;” “ministers,” "architects, engineers,” and “ever increasing numbers of people with clerical and professional training” found themselves unemployed and needing relief. Who were the “finest people”? Were all white-collar workers in this group, or only the fanciest among them? How was the line to be drawn? Were only white-collar workers in this group, or did the upper tier of skilled blue-collar workers qualify? Was their status as “the finest people in America” to be considered in determining whether and how to assist them? If so, the drawing of class lines—including class lines within the broad category of the American middle classes—would need to become a core part of the New Deal project. Would differential treatment always benefit the “finest people,” or would they sometimes be excluded from much-needed assistance on the grounds that their status as the “finest people" made assistance inappropriate? If that was the choice, would the “finest people” cling to their high status, or would they fight their classification as too “fine” to be helped?

Source Publication

NYU Working Papers on Labor and Employment Law: 1998-1999

Source Editors/Authors

Michael J. Yelnosky

Publication Date

2001

The Middle Classes in New Deal Hours Legislation

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