Courts in the early 1900s used “freedom of contract” to
overturn state laws that prohibited child labor and set maximum limits on
number of hours worked in a week (e.g., 60 hours). A leading case in 1905 (Lochner v. N.Y.) struck down a law that was meant to
protect employees from employer pressure to work under unsafe conditions. The
Supreme Court said: “The freedom of master and employee to contract with each
other in relation to their employment … cannot be prohibited or interfered with.”
We will likely see a 21st century version
of this “freedom” concept because the Trump administration is drawing its
intellectual content from the Heritage Foundation.
Why is “freedom” in quotes here? If an employer requires an
employee to work six days per week for 12 hours a day (as was the case in
Lochner)—or face termination— is that really freedom? Or is it a false choice?
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