I am currently teaching Employment Law at Oklahoma City University Law School and we have been discussing a concept called “Private Ordering”, a phrase that means employers and employees are free to work out their relationship however they wish. If a worker wants a job badly enough to work for a sub-minimum wage, Private Ordering says they should be allowed to do so. If the employer does not wish to pay “time and a half” for overtime work done by employees, the employer can pay straight time if they wish. In a world where Private Ordering is the rule, workers and employers are considered to be on equal footing and can contract with each other however they choose. In a Private Ordering world, there would be no mandatory minimum wage, overtime, child labor law or discrimination statutes. This is a world some business owners long for so they can be relieved of the burdens of government dictates. At the other end of the spectrum is a world of “mandates” where government or union contracts or some other third party impose constraints on employers and employees and dictate certain aspects of their work relationship. “Mandates” include things like the Occupational Health and Safety Administration (OSHA) which requires safe work places, or the Fair Labor Standards Act (FLSA) which sets minimum wage and overtime standards, or the Equal Employment Opportunity Commission (EEOC) which prevents discrimination.
But, as I explained to my class, a work world at either extreme on the Private Ordering/Mandate spectrum is far from ideal. Too much government interference stifles business, but too little leaves workers unprotected. Employment law–and employment lawyers like me–constantly struggle to find the right balance between Private Ordering and Mandates.
Some, of course, think Mandates are the greater evil and there have been efforts in recent years in Oklahoma to pare back employee protections and give employers greater freedom with regard to their employees. This creates a more “business friendly” environment, according to these advocates, which results in greater economic growth for the state. But moving toward greater Private Ordering comes at a cost: decreased protection for workers. To illustrate the danger of extreme Private Ordering I told my class about my Grandpa, Tom Priest. Here, in my own father’s words, is Tom’s story:
Tom was born November 29, 1900. I know little about his life until he was eleven years of age. He was the oldest of four children. He had two younger sisters (Marion and Lillian) and a brother (William) who was six months old when the dead body of his father, Teddy, was brought home by friends. Teddy had been killed that day at work in the coal mines of Pennsylvania. They brought him home in a wheelbarrow and placed his body on the living room floor.
I imagine when they dropped off Teddy’s body they said they were sorry and left. The family had no insurance and no money. No workers compensation existed. Someone needed to take Teddy’s place at work the next day because the family lived in a house owned by the company and they owed money to the company store. If someone did not show up at work the next day the family would be thrown out of the house by the company. The only one who could go to work the next day was eleven year old Tom. That day was the end of Tom’s boyhood. His mother, a small quiet, sweet woman, paid for Teddy’s burial by taking in washing and ironing for fifty cents a basket. I knew her many years later and never once heard her complain.
At age eleven Tom had to quit school and went to work in the coal breaker (the mouth of the coal mine) as a “breaker boy”. The school principal came to Tom’s house and begged his mother to keep Tom in school because he was a bright boy. But the family needed to eat and Tom had to quit school and work. For the first three years that he worked Tom never received a paycheck because they always owed more to the company store than he earned. Tom’s income put food on the table for his family and he was a father figure to his two sisters and brother until the day he died. I believe after three years he was given a job down in the mines as what they called a “sprag boy”. It must have been shortly after this he became a “laborer” (one who shovels coal into the cars–a miner’s helper). At age sixteen he broke his leg while down in the mine. He laid the rest of the day in what they called the “shift shanty” until the end of the shift at which time they took him to the hospital. He had a limp the rest of his life.
That’s what life was like for workers in a world of Private Ordering. It’s little wonder a union called the United Mine Workers rose up and demanded greater protections for mine employees. Work in today’s coal mines is still dangerous and tough, but it’s not nearly as terrible as it was when my Grandpa went to work at the age of eleven.
I told my class there are evils to be avoided at both ends of the Private Ordering/Mandates spectrum and, as lawyers, we are part of the process that seeks to find the right balance. It’s not an easy task but it’s definitely a worthy endeavor.
I’m not going to tell you to “hug a lawyer” today, but the next time you’re tempted to think the world would be better off without lawyers, remember Grandpa Tom and be thankful there are lawyers working to keep the right balance between Private Ordering and Mandates.