The primary question presented for decision on this appeal is whether article 19 of the Labor Law authorizes a directory order issued to the confectionery industry by the Department of Labor providing for a so-called guaranteed wage for part time employment. Such a guaranteed wage is based solely upon an amount considered sufficient to provide adequate maintenance and to protect health without regard to the value of the services rendered. Directory Order No. 3, the Order in question, besides providing for a basic hourly rate of thirty-five cents an hour, requires that employees must be paid a minimum of ten dollars for three days or less during the peak period and seven dollars for two days or less during the slack period irrespective of the amount of time actually worked. It is conceded that these provisions of this order mean that: "if an experienced employee works for any period whatever (e.g., ten minutes) in a week during which the employer's establishment is in operation for the given two days or three (according as the industry is `sluggish' or `at peak'), then the so-called guaranteed weekly minimum wage is to be paid. (This construction is not disputed.)" By this regulation no attempt has been made to compensate short periods of employment at an increased rate per hour, but a flat rate of ten dollars or seven dollars is fixed for a work period, however short, and hence without taking into account the value of the service rendered. This order in effect outlaws part time employment with the result that the only alternative for an employee or an employer is either for the latter to pay for labor that is not used or for both to be deprived of part time labor that is necessary for both. *Page 271
While it is not contested in fact or in principle that article 19 authorizes a guaranteed minimum weekly wage in return for a full week's work, it is submitted that no authority is conferred by this statute, either directly or by fair intendment, permitting the establishment of guaranteed wages for part time employment irrespective of services rendered. Concededly there exists no provision in article 19 expressly providing for the fixing of wages based solely upon an amount considered adequate to provide maintenance and protect health without regard to the value of the services rendered. Under other circumstances the question might arise whether such authority is conferred by fair implication or intendment. But in the case at bar we have a principle of statutory construction that, in the absence of a clear expression of legislative intent, it will not be inferred that the statute was intended to abolish traditional common law concepts or outlaw recognized common law relationships. Certainly up to the time of the enactment of article 19 there had not been established in New York State the principle that wages may be fixed wholly on the basis of what the Wage Board or the Commissioner may deem sufficient to provide adequate maintenance and to protect health. Therefore, since the order in question in fact outlaws part time employment and changes the traditional concept of "wages" as a return for services actually rendered, we must find clear and unambiguous language in the statute to authorize such administrative action.
A reading of the statute shows that it is implicit therein, when read both as a whole and with emphasis on the particular language used, that the Wage Board and the Commissioner are not authorized to fix a guaranteed wage for part time employment irrespective of service actually rendered. The introductory section (550), denominated "Factual background," expressly states that the mischief to be remedied is the employment of women and minors at "wages insufficient to provide adequate maintenance and to protect health and unreasonably low and not fairly commensurate with the value of the services rendered. Such a condition is contrary to public interest and public policy commands its regulation."
Thus the evil complained of is expressly stated to be comprised of two attributes, namely, wages insufficient to provide adequate *Page 272 maintenance and to protect health, and at the same time unreasonably low and not fairly commensurate with the value of the services rendered. In section 555 of this same article 19, captioned "Basis of Minimum Wage," the Legislature has enacted in similar language not only that the Commissioner take into account an amount sufficient to provide adequate maintenance and to protect health, but "the value of the service or class of service rendered * * *," and "the wages paid in the state for work of like or comparable character." Surely the express coupling of the factors of value of services and the wages paid in the State for work of like character with the factor of amount sufficient for maintenance and protection of health would lead to a strong inference that power has not been conferred to fix wages irrespective of the value of the services rendered.
In addition, in section 556 the statute is very specific and detailed in providing that the regulations adopted by the Wage Board: "may among other things define and govern learners and apprentices, their rates, number, proportion or length of service, piece rates or their relation to time rates, overtime or part-time rates, bonuses or special pay for special or extra work, deductions for board, lodging, apparel or other items or services supplied by the employer, and other special conditions or circumstances."
Where the statute is so exact in defining the minute powers which the Board possesses, and at the same time makes no mention whatever of the extraordinary power to fix guaranteed wages irrespective of services rendered, and in some instances where no services at all are rendered, it would seem a fair inference that the Legislature did not intend to give such power to the Board. If such had been the intention of the Legislature, it could very easily have included a provision to that effect. To find so great and novel a power conferred upon the Wage Board and the Commissioner in the absence of clear legislative expression, is to fly in the face of the settled principle of statutory construction, that a grant of such power will not be inferred from what is at best ambiguous language.
On the contrary, the statute prescribes that the Wage Board is to recommend "Minimum Wage Rates" and such regulations as may be deemed appropriate to safeguard the minimum wage *Page 273 standards recommended without departing from such basic minimum rates. Thus, the statute as a whole talks about and deals with wages and wage rates. "Wage" has always been construed by the courts in New York to mean compensation for services rendered. (Walsh v. City of New York, 143 App. Div. 150; Shane v.City of New York, 135 App. Div. 218.) The term "rate" is defined as the amount or degree of a thing measured per unit of something else. Thus, when used in conjunction with "wage," the term connotes compensation measured by the hour, day or week actually worked.
Looked at realistically, a distinction exists between wages sufficient to meet a minimum cost of living necessary for health, when an employee is working on a full time basis, and wages sufficient to meet adequate maintenance necessary for health when an employee, through no fault of the employer, can find only part-time employment. The principle involved is not inconsequential. If, as advocated by appellant, it is held that by intendment the Legislature empowered the establishment of a minimum guaranteed wage for part time employment irrespective of services rendered, then it follows that wages may be guaranteed on a monthly or yearly basis irrespective of services rendered. This follows as a necessary corollary to the contention of appellant that the Legislature intended to confer such power in relation to part time employment.
Starting with a laudable effort to raise wages which were not commensurate with the value of the services rendered through employment of the police power in aid of adequate maintenance for women and minors, the Wage Board and the Commissioner have swung to the other extreme and interpreted the statute to provide for a wage rate for part time employment without any regard to the value of the services rendered.
Since this appeal may rest upon the decision of the construction of article 19, it becomes unnecessary to consider the constitutional questions involved.
It follows that the judgment appealed from should be affirmed, the first question certified answered in the negative, the third *Page 274 question in the affirmative, and the other questions not answered, without costs of this appeal to any party.
LEHMAN, Ch. J., LOUGHRAN and RIPPEY, JJ., concur with DESMOND, J.; FINCH, J., dissents in opinion in which LEWIS and CONWAY, JJ., concur.
Judgments reversed, etc.