When President Obama proposed an increase in the federal minimum wage last month, you could almost hear conservative economists and pundits smacking their lips in anticipation. After all, there’s nothing that gets this crowd going like mandating a wage increase, even if it’s from the downright Dickensian $7.25 currently required to a still paltry $9, or just under $19,000 a year.
Minimum wage foes almost always base their opposition on the supposed damage that these laws do to the businesses that have to pay them and the workers who receive them. Despite reams of research to the contrary, they persist in claiming that minimum wage increases force businesses to lay off workers, hurting the very people who should benefit.
There is another argument, however, against minimum wage laws, one that was trotted out in a column by Slate’s Matt Yglesias. The real problem with these laws is not that they hurt workers and their employers, asserts Yglesias, but that they infringe on our basic freedoms.
“You’ve got a guy who wants to give someone $8 to do something that’ll take an hour and another guy who wants $8 and is happy to do the thing in exchange for the money,” writes Yglesias. “Now Barack Obama’s going to fine them for agreeing to trade $8 for the work? Seems perverse.”
Perhaps unwittingly, Yglesias in these seemingly innocuous three sentences has called into question the very basis of legally mandated protections for workers, not to mention consumers, minorities and almost every other group you might care to mention. It’s the hackneyed “freedom to contract” argument — or, as conservatives call it, “the right to work” — so often used against unions. In other words, you have the right to suffer the indignity of taking whatever job the recessionary economy will throw your way.
A critical purpose of labor law is to address the unequal bargaining power between workers and their employers by, among other things, setting minimum standards for wages, safety and other terms and conditions of employment. For most of human history, working conditions were left to the discretion of those in power. The “freedom to contract” system that enshrined the right of employers to exploit, and workers to be exploited, was quite popular with the former. It wasn’t as big a hit with the masses, however, who struggled to enjoy their putative freedom while living in wretched poverty, and not infrequently dying in horrific workplace accidents like the Triangle Shirtwaist Fire. One need only re-read Steinbeck’s “The Grapes of Wrath” to be reminded of the illusory nature of such freedom.
Minimum wage legislation was first enacted at the state level in the early 20th Century, but these statutes were overturned by a U.S. Supreme Court infatuated with the rights of business to freely negotiate wages. In 1933 the first federal minimum wage was established, but it was declared unconstitutional by the High Court, and another five years passed until a meager wage floor of 25 cents an hour was finally the law of the land.
In the ensuing decades, the only notable mass protests involving the minimum wage have been by those trying to raise it. While conservative economists and politicians have railed against the minimum wage, an abolitionist movement has yet to materialize among the tens of millions of Americans who have happily traded in their freedom for a little economic security. Nor have we seen demonstrations by workers clamoring to be rid of regulations that protect their health and safety.
If the freedom of individuals — to exploit, to injure and kill, to encite — were allowed to trump all other rights, it would be a frightening world indeed. Just read a history book if you don’t believe me.
Julie Gutman Dickinson is a partner at the union-side law firm Bush, Gottlieb, Singer, Lopez, Kohanski, Adelstein and Dickinson, and was a former NLRB trial attorney and Senior Labor Advisor to Los Angeles Mayor Antonio Villaraigosa.
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