New blue laws make sure workers get a day off.

New blue laws make sure workers get a day off.

New blue laws make sure workers get a day off.

The law, lawyers, and the court.
April 7 2008 7:39 AM

The New Blue Laws

They're about giving workers a break, not forcing church attendance.

Do workers have a right to Sundays off?
Do workers have a right to Sundays off?

In a recent night-shift ad, Hillary Clinton promised that she would work hard to help workers who toil after hours. Barack Obama, for his part, has issued a call for relief for people "juggling work and parenting." The candidates' concern about the demands of employment comes at a time when businesses increasingly try to stay open for most of the hours of the day, seven days a week. While keeping our shopping malls abuzz, these frenetic routines also make it harder for workers to get the weekend off to relax or spend time with their families. The ramped-up pace is due in part to the success businesses have had in attacking laws that improve workers' lives—like mandatory-closing laws, which require many stores to close on Sundays or holidays.

Mandatory-closing laws sound, yes, like another name for "blue laws," the Colonial-era restrictions in the name of morality that also closed stores on Sunday (and even banned frivolous dress). Their original purpose was to encourage church attendance. Because of this history, these laws are often still thought of as paternalistic intrusions that impose one Christian version of morality. It doesn't help that they had a brief resurgence during the teetotaling era of Prohibition, courtesy of the temperance movement. But mandatory-closing laws have since shed their old cloak and taken on a new purpose: protecting the interests of workers who otherwise could not rely on a regular, guaranteed day off.

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In 1961, 49 states had laws limiting Sunday activities, the majority of which sought to give most workers the day off. Today, most of these laws have been repealed. Fragments persist, like a Minnesota law forbidding Sunday auto sales. But only a handful of laws remain that broadly require businesses to close on certain days. One of the last such laws, in South Carolina, was saved last summer only by the governor's veto of its repeal. In New Jersey, where Sunday closing laws were once widespread, only Bergen County still has one. Maine and Massachusetts have laws that require closings, but now only on certain holidays. And even these vestiges are under attack as businesses draw attention to the laws' prudish-seeming blue history instead of to the ways they help workers.

For example, the Bergen County law has been criticized by the local business community as a denial of consumer and business freedom and as an anachronism from a Puritan past. In South Carolina, businesses seeking exemption from the state's mandatory-closing laws emphasize the infringement on consumer choice. And a Whole Foods Market executive opposed to a Massachusetts Thanksgiving closing law condemned it as "antiquated and silly."

Meanwhile, in the face of employer opposition, unions—themselves unfairly attacked by businesses as outdated institutions that hinder the free market—continue to fight for more free time for workers. For example, in its grocery contracts, the UFCW continues to press for premium pay for Sundays and holidays—a standard that discourages stores from requiring many employees to work on those day. But the decline in union membership, particularly in the retail sector, gives workers diminishing bargaining power in the fight to preserve their weekends and holidays. Today, more than 30 percent of all wage and salary employees work on an average weekend day or holiday, and nearly 50 percent of workers in sales and related fields are at work on any given such day.

The case to be made for mandatory-closing laws is that limits on economic choice can, paradoxically, give workers more much-needed freedom to relax and spend time with family. Businesses carefully structure employees' schedules to avoid paying overtime, doling out short shifts or days off during the week (when other family members are less likely to be at home) and asking for hours on the clock throughout the weekend. If you're forced to work multiple jobs to make ends meet, you can easily work a 60-hour week without earning overtime. That means constantly wrangling to get time off to spend with your family.

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This is a far cry from the regular, predictable schedule of office and professional workers. Vacant seats and foil-wrapped leftovers may be the sign of some loved ones at family gatherings. And it all may be getting worse. In some places, store hours have been expanded on Sundays, and custom is becoming less of a barrier to opening on holidays. Massive store sales traditionally held the Friday after Thanksgiving now begin on the holiday itself. According to the New York Times, a Manhattan CompUSA opening at 9 p.m. this last Thanksgiving served pie to customers to make up for missed desserts at home.

As to the objection that mandatory-closing laws violate the separation of church and state, the Supreme Court held, back in 1961, that Maryland's law was constitutional, because it had taken on a secular, worker-protective purpose. It's still true that Sunday closing laws can burden Jewish and Muslim businesses and consumers who honor Friday or Saturday religious observances. Consumer convenience is also an issue. But legislatures can address these concerns while allowing stores to stay open on the weekends—for example, by entitling workers to at least one weekend day off and giving workers and businesses the discretion to decide which day that is. Stores might have to hire more staff or reduce weekend hours, but some businesses could still stay open all weekend.

In considering the future of mandatory-closing laws, legislatures need to look beyond the libertarian outrage drummed up by business opponents. Indeed, this outrage may not amount to much in the end: As one consumer told the Boston Globe, in response to retailer-driven pressure to repeal Massachusetts' Thanksgiving-closure law, "You can go shopping on Friday. Take a day off."

Paul L. Edenfield, a former assistant general counsel for the United Steelworkers union, is counsel and policy analyst for the Leadership Conference on Civil Rights in Washington, D.C.