Ask The Lawyer By: Daniel A. Gwinn, Esq.-Giving Thanks for Better Protection for Workers
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GIVING THANKS FOR BETTER LIVES FOR WORKERS
This Thanksgiving, we will sit down with friends and families, commemorating a celebration that supposedly occurred over 400 years ago as European settlers broke bread with the Native Americans who had helped them survive in a harsh and unfamiliar land. (Sadly, any entente was not long-lasting. The settlers encroached on Wampanoag lands, and a full-scale war broke out in 1675.)
Those early settlers gave us a lot to be thankful for (apart from a day off in late November): They brought with them the ideas for a democracy that later helped lead to the development of the U.S. Constitution. They created their own outline for self-government, established a court system, recognized the right to vote (limited to freemen) methods for enacting laws and a bill of rights that recognized the right to a trial by jury.
Despite their embrace of some democratic ideals, these Europeans came to America for two reasons: Freedom to establish their own religion and – in what has become a great American tradition – to make money. While the religious “separatists” who arrived on the Mayflower may have been motivated by their faith, earlier settlers who established the Jamestown Colony in 1607 showed their commercial nature in their name: The Virginia Company.
As more colonists arrived, these early settlers found an impediment in the way of establishing profitable farms and businesses. There was a shortage of labor – a problem many employers can relate to.
Unlike contemporary businesses, who have tried to attract workers by offering higher wages or better benefits, or both, those early settlers did not hold to the concept that work should be fairly compensated and safe. Cheap labor could be found through exploitation and slavery.
Several reports say early settlers captured and then enslaved “hostile” Indians, and kept others as “indentured servants,” a position that was often similar to slavery. Settlers used this same system of indentured servitude to attract English and European workers. In exchange for passage to the new world, room, board and lodging, the servant agreed to work for four to seven years without pay. At the end of that period, depending on the agreement, the indentured servant might receive land, livestock and clothing. But, to gain that freedom, the worker had to survive the period of servitude, and that was often no easy task.
In the earliest days in the Jamestown Colony, the mortality rate among indentured workers was high and conditions were poor. Some workers ran away to live with Native Americans rather than accept being “treated like slaves, with great cruelty,” according to one historian. In order to discourage such flight, the colony’s governor ordered that recaptured laborers should be hanged, burned, broken at the wheels, staked or shot. Over time, a more tailored form of indentured servitude resulted in fewer deaths and fewer run-aways, but although servants were guaranteed access to adequate food, clothing, and shelter, they had few rights. The laws protected them against excessive corporal punishment, but what was excessive was interpreted very broadly.
The first Africans to arrive in America were initially treated as indentured servants, but that did not last. By 1641 the Massachusetts colony passed the slave laws – and any rights African “servants” had to freedom were extinguished. As the relative cost of an indentured servant increased in comparison to the cost of a slave, landowners increasingly turned to slavery, and by the 1700s the slave trade in the United States was thriving.
While the life of a paid worker in America in the 18th and 19th centuries was immeasurably better than that of a slave, workers had very few protections. Days off? No. Injured on the job? Tough luck. Sick? Too bad. Pregnant? Keep working. Fair Pay? Are you dreaming? And, people were rarely too young or too old to be exempt from work. In fact, for much of the 19th century factory work was viewed as a solution to the problem of “idle children.” Children as young as 7 were often expected to work, and provided another source of cheap labor.
The idea of collective bargaining took hold in the late 18th century, but until 1842 it was a crime to go on strike. Workers did not get legal protection for risking life and limb on the job until 1908 – and the Federal Employers Liability Act passed that year applied only to railway workers. The landmark Occupational Safety and Health Act was not passed until 1970. In the two years before passage of the act, an estimated 14,000 workers died each year, and another 2 million were disabled or harmed at work. Those statistics have improved, but not as much as might be expected: In 2020, according to the Bureau of Labor Statistics, there were 4,764 fatal work-related injuries. Some 2.7 million workplace injuries and illnesses were reported in 2021 and over a million workers had to stay home from work.
Until 1964, it was legal to discriminate against a worker because of race, sex, color, religion or national origin. Until 2020, it was legal under federal law to discriminate against individuals because of their sexual orientation or gender identity. Until a Michigan Supreme Court decision this past summer, LGBTQ people working at small businesses here had no protection from discrimination.
Workers have come a long way since the pilgrims arrived in what is now Massachusetts, the lives of workers have improved enormously. This Thanksgiving Day, here at Gwinn Legal we are thankful that the abuse of workers that our earliest settlers often practiced has given way to a slow recognition of rights.
The following sites were consulted in preparing this article: https://www.dol.gov/general/aboutdol/history/chapter1
Indentured Servitude in the Americas: An Economic Analysis,” by David W. Galenson, The Journal of Economic History (Vol XLIV, No. 1, March 1984), accessed at https://www.jstor.org/stable/2120553?read-now=1&seq=1#page_scan_tab_contents
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
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