GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE
Section 11(d) of the Fair Labor Standards Act ("FLSA") authorizes the Secretary of Labor to "make such regulations and orders regulating, restricting, or prohibiting industrial homework as are necessary or appropriate to prevent the circumvention or evasion of and to safeguard the minimum wage rate . . . ." 29 U.S.C. § 211(d). Plaintiffs, claiming arbitrary and capricious action, sue the Secretary of Labor to obtain review of a Department of Labor (the "Department") Final Rule rescinding a previous total ban on homework in five industries -- gloves and mittens, handkerchiefs, buttons and buckles, "nonhazardous" jewelry, and embroideries (the "five industries") -- in favor of implementing a certification system for persons working at home in those industries. The Final Rule, published at 53 Fed.Reg. 45706, is now before the Court for review on cross-motions for summary judgment which have been fully briefed and argued. A group of New England homeworkers has intervened as defendants and has also briefed and argued the issue.
A ban on homework in the five industries, as well as in the knitted outerwear and women's apparel industries, was adopted by Department regulations in the early 1940's. In 1981, the Department by regulation rescinded the homework ban in the knitted outerwear industry, but the Court of Appeals vacated that rule as arbitrary and capricious in ILGWU v. Donovan, 722 F.2d 795 (D.C.Cir. 1983), cert. denied, 469 U.S. 820, 105 S. Ct. 93, 83 L. Ed. 2d 39 (1984) (" ILGWU "). In 1984, the Department issued a new regulation, which again rescinded the homework ban in knitted outerwear but this time replaced it with a system for certification of employers in the industry. This rule was not challenged in court. Now the Department, by the Final Rule at issue here, seeks to extend the certification system, with certain alleged improvements, to the five industries.
For the reasons discussed below, the Court grants the defendants' motions for summary judgment.
The FLSA, enacted in 1938, established minimum wage, overtime pay and child labor standards aimed at achieving "in those industries within its scope, certain minimum labor standards." ILGWU, 722 F.2d at 801.
Department investigations in the early 1940's found high rates of violation of minimum wage, maximum hour, and child labor provisions among homeworkers in the seven industries mentioned above. Homeworkers in those industries are normally paid by piece rate rather than hourly wages. The Department found four primary impediments to enforcing the FLSA among homeworkers in the seven industries: first, the difficulty in identifying homeworkers; second, the difficulty in securing accurate records of hours worked at home; third, the difficulty in detecting and remedying FLSA violations with respect to homeworkers; and fourth, the lack of sufficient resources to enforce the FLSA with respect to homeworkers. The Department concluded that even extremely diligent enforcement efforts could not prevent FLSA violations among homeworkers, and, accordingly, it adopted rules banning homework, subject to a few exceptions, in the seven industries. ILGWU, 722 F.2d at 801-04. Persons who were elderly, disabled or responsible for the care of an invalid could apply for an exemption certificate to work at home. Additional homework bans or limitations in these industries are imposed by the laws of some 20 states.
Federal law permits homework in all other industries.
In 1981, the Department proposed rescission of the homework ban in all seven restricted industries. 46 Fed.Reg. 25108 (1981). However, the final rule adopted lifted the ban in the knitted outerwear industry only. 46 Fed.Reg. 50348 (1981). The rule was challenged in court, and the Court of Appeals concluded that the rescission of the homework ban was arbitrary and capricious, because the Department had failed to consider alternatives to the complete elimination of restrictions and because the record did not support the conclusion that FLSA compliance could be maintained without the homework ban:
The Secretary argues that because of increased acceptance of the minimum wage, and the developing expertise of his enforcement officials, a "concerted compliance program" by the Department will insure effective enforcement of the Act. The Secretary's statements are unsupported by the record and, in effect, ask us to accept the Secretary's conclusory assurances and to assume that the impediments to enforcement of the Act which were considered 'inherent in the home work practice' in 1942, have disappeared with the passage of time.