Articles on Wisconsin legal history
Reforming the workplace
Written by Joseph A. Ranney, Attorney at Law
Ph: (608) 283-5612
Working conditions in the late 1800s were vastly different than they are today. Many of the factories which sprang up throughout Wisconsin after the Civil War were uncomfortable, dangerous places to work. Noise, smoke and flying particles of wood and metal created constant stress and hazards for many workers. Some factories, built in haste, were inadequately insulated and were bitingly cold in winter. Adequate restrooms and clean drinking water were rare. Machinery was almost never guarded; it was not uncommon for workers to get caught in moving parts, with serious injury or death often the result. Children, some as young as eight or nine years old, also worked under these conditions.
In 1867 Wisconsin became the first state to enact any sort of worker safety law. The 1867 law was a limited one: it barred employers from forcing women and children to work more than eight hours a day, but the Legislature provided no inspectors to enforce it.
Between 1877 and 1900, the Legislature modestly strengthened laws protecting women and children. Among other things, it enacted the state's first compulsory school attendance law in 1879. The law was widely ignored. People recognized only gradually that in the long run, a child's earning power would be higher if he/she received a good education rather than being sent to work at an early age. The minimum work age was set at 12 in 1877 and raised to 14 in 1891. Safety laws were also passed from time to time. For example, after dozens of people died in an 1883 fire at the Newhall House in Milwaukee for lack of fire escapes, the Legislature passed a law requiring fire escapes on commercial buildings.
A new wave of interest in workplace reform arose in the United States about 1900. The Progressives were slow to address this issue, but starting in 1907 they passed laws that prohibited children from working at all in certain hazardous jobs. They also created the nation's first vocational school system to give children who were not suited to college the chance to better themselves by becoming skilled workers.
In 1911 the Progressives created the nation's first government agency dedicated to workplace safety: the Industrial Commission, which is now known as the Department of Workforce Development. Professor John Commons of the University of Wisconsin and Charles McCarthy of the state Legislative Reference Library drafted the law.
Commons and McCarthy wanted to make employers absolutely liable for workplace safety, but they were worried that if the law made the obligation absolute, the courts would strike it down. Absolute safety might be prohibitively expensive, and businesses might challenge the new law as depriving them of property without due process. Commons and McCarthy finally solved the problem by requiring employers to make factories as safe as conditions would "reasonably permit." In 1916, the Wisconsin Supreme Court held the law was constitutional. Other states hailed the Industrial Commission as a great innovation in workplace law and created their own commissions.
In 1913, the Legislature passed groundbreaking new laws for the protection of women and children. It prohibited women from working hours which were "dangerous to their life, health, safety or welfare," and it required employers to pay women and children a "living wage." A few years later, similar federal laws were struck down by the U.S. Supreme Court in a series of highly unpopular decisions, but Wisconsin employers never challenged the new child labor laws. In 1924 a Wisconsin federal court reluctantly struck down the women's wage law. The court concluded that it had no choice because it had to follow the U.S. Supreme Court. But the next year the Legislature passed a new law decreeing that women could not be paid "oppressive wages," and this law was never challenged. Workplace safety is never complete; the Industrial Commission has continued to work toward that end for the past 85 years. But the laws which the Legislature passed in the early 1900s paved the way for great improvements in workplace conditions and made Wisconsin a better place to live.
Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.