Child labor was prominent in United States textile mills and child labor continues in the global attire industry.

Lewis Hines, who spent a decade as a photographer for the National Child Labor Committee, produced many haunting images of child labor.

The 1908 photograph below is the one that I found myself returning to again and again as I researched and wrote the chapter “Dressing Economically,”  Hines entitled the photograph “Rhodes Mfg. Co., Lincolnton, N.C. Spinner. A moments glimpse of the outer world Said she was 10 years old. Been working over a year. Location: Lincolnton, North Carolina.”

In Hammer v. Dagenhart, decided a decade later, the United States Supreme Court would side with the interests of the Southern Cotton Manufacturers, the organization that challenged the federal statute seeking to regulate child labor, and hold Congress did not have such a power.   The 5-4 majority concluded that to uphold Congressional authority to regulate child labor in textile mills would have dire consequences:  “all freedom of commerce will be at an end, and the power of the states over local matters may be eliminated, and thus our system of government be practically destroyed.”

In his speech commemorating the 50th Anniversary of the March on Washington for Jobs and Freedom, President Obama stated:

“Because they marched, doors of opportunity and education swung open so their daughters and sons could finally imagine a life for themselves beyond washing somebody else’s laundry or shining somebody else’s shoes.”

“woman carrying laundry home along highway between Durham and Mebane, North Carolina” photo by Marion Post Wolcott, circa 1939, Library of Congress

The care of other people’s attire has been the province of low-wage workers throughout US history, as the chapter “dressing economically” addresses. 

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Incarcerated men in Brazil are knitting high fashion clothing pieces to receive reduced sentences.

As reported, when her knitted fashions became popular, designer Raquel Guimaraes sought an alternative source of production to fill her orders — she contacted a maximum security prison in Brazil.

Guimaraes originally proposed that incarcerated women could knit her designs. The prison’s warden, however, suggested that the incarcerated men would be better suited to produce the high fashion clothing.

As one journalist writes, Guimaraes and the warden were gambling on “whether men imprisoned for offenses such as armed robbery, drug trafficking, and murder, could learn to knit tricot.” And indeed, MSN News reported the story with the headline Your expensive handmade cardigan might have been knitted by a murderer.

But the ‘gamble’ seems to have payed off for the two.

Guimaraes has so far taught eighteen prisoners to work on her clothing line. As a ‘reward’ for their labor, the incarcerated men receive ‘extra money’ and their sentence is reduced by one day for every three full days of work.

Though the program is touted as a reintegration tool, the underlying point is for Guimaraes to sell the pieces as ‘handmade’ high fashion knits across the world, including in New York and San Francisco, for a profit. The prices do not reflect the inexpensive and often exploited labor pool from which the knitted designs were produced.  

A photojournalism piece of the prison labor program can be found here.

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What should a clothing label tell us?

In a piece in the LA Times, I argue that mandating labels that tell us whether or not a piece of apparel is – – – or is not – – – sweat-free or manufactured in safe conditions is an idea whose time has come, despite the First Amendment problems.

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Certainly the United States Supreme Court’s current docket has some controversial issues – – – such as affirmative action, voting rights, campaign finance, and same-sex marriage – – – but some of the questions it decides to hear are decidedly less high profile, including a question of statutory construction on the meaning of changing clothes, and indeed, the meaning of clothes.

The Court has granted certiorari in Sandifer v. United States Steel to decide

What constitutes “changing clothes” within the meaning of section 203(o) of the Fair Labor Standards Act?

The section of the Fair Labor Standards Act, FLSA, at issue is a definitional one, defining “hours worked” as excluding

any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

The Seventh Circuit – – – in an opinion by the controversial and colorful Judge Richard Posner – – – found in favor of U.S. Steel that donning and doffing the safety gear was not necessarily changing clothes.  Not for the first time, Judge Posner decided to include an image in his opinion (reproduced at right).  Judge Posner explained:

It’s true that not everything a person wears is clothing. We say that a person “wears” glasses, or a watch, or his heart on his sleeve, but this just shows that “wear” is a word of many meanings. Almost any English speaker would say that the model in our photo is wearing work clothes.

Posner also situates the case in labor relations and the steel industry:

From a worker’s standpoint any time spent on the factory grounds is time “at work” in the sense of time away from home or some other place where he might prefer to be if he weren’t at work. But it is not time during which he is making steel, and so it is not time for which the company will willingly pay. If the workers have a legal right to be paid for that time, the company will be less willing to pay them a high wage for the time during which they are making steel; it will push hard to reduce the hourly wage so that its overall labor costs do not rise. The steel industry is inter- national and highly competitive, and unions temper their wage demands to avoid killing the goose that lays the golden eggs. They don’t want the American steel industry to go where so much American manufacturing has gone in recent years—abroad. The plaintiffs are adverse to their union, to the interests of other steelworkers, and to their own long-term interests.

The constitutional issues surface only in the last portion of Judge Posner’s opinion for the Seventh Circuit.  The Department of Labor, the federal agency charged with implementing FLSA, has altered its administrative determinations regarding the meaning of “changing clothes.”  As Posner writes, this meaning has changed with various Presidential Administrations, explaining in his inimitable prose that “Such oscillation is a normal phenomenon of American politics. Democrats are friendlier to unions than Republicans are . . . .”  He adds that “Naturally the Department of Labor does not acknowledge that its motive in switching sides was political; that would be a crass admission. . .”

Moreover, even as the Supreme Court is set to tell us what “changing clothes” means and within that pronouncement, to define “clothes,” these definitions will occur only within the context of a statute.  Thus, Congress retains ultimate power here; it could always amendment FLSA to include specific (and even contrary) definitions.