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November 25, 2005

Get the blue laws out of this blue state

Please, please, will someone repeal our ghastly blue laws?  It's ridiculous enough that our chief law enforcement officer, Attorney General and would-be Governor Tom Reilly, had nothing better to do one day this week than to write a nasty letter to Whole Foods informing them that if they kept their stores open on Thanksgiving Day - paying their employees twice their usual wages in the process - they'd be criminally liable.  (The impetus behind the letter?  Not disgruntled employees who objected to coming to work - it was Shaw's Supermarkets, a major Whole Foods competitor.)  Today we read that police ("acting on a tip") actually forced a supermarket that had missed the warnings to close, and that "the attorney general's office would investigate all reports of illegally opened stores."

Great Scott, let's hope these scofflaws see some serious punishment!  How are parents supposed to teach their children respect for the law unless swift and harsh justice isn't meted out for such obviously criminal behavior?

Seriously, the idea that the power of the state to impose criminal penalties should apply to opening a store on a Sunday or a holiday has, as I've written before, always struck me as utterly absurd.  I'm all for legal safeguards such that workers can't be punished for refusing to work on major legal holidays or on the day that they observe the Sabbath.  I'd even go along with requiring the payment of extra wages for those workers choosing to work those days.  But let's please (1) get these regulations out of the criminal statutes (where they're officially known as the "Common Day of Rest Law") and into the labor code where they belong, and (2) get the all-knowing and beneficent state out of the business of dictating to private enterprises the days on which they may and may not serve the public.  For one thing, the state carries out that function extremely badly - really, you have to read these statutes to believe them.

I disagree with Globe paleocon columnist Jeff Jacoby on just about everything.  But he's right on this one: "The blue laws are and always have been obnoxious deprivations of liberty."  Yup.

Posted by David at 10:14 AM in Massachusetts | Permalink


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» Are Blue Laws "Necessary"? from The Volokh Conspiracy
In response to my post on the Massachusetts law requiring that supermarkets close on Thanksgiving, some commenters suggested such laws served a valuable purpose insofar as th... [Read More]

Tracked on Nov 28, 2005 1:21:52 PM


"I'm all for legal safeguards such that workers can't be punished for refusing to work on major legal holidays or on the day that they observe the Sabbath. I'd even go along with requiring the payment of extra wages for those workers choosing to work those days."

Yeah, right. How would that work? *Choosing to work?* David, if you work retail, you work pretty much when they tell you, and generally, you don't have a ton of great options otherwise.

The whole point of these laws is so that employers can't bully their workers into working on holidays when they'd rather spend time with their families, like you and I did. And if you think the enforcement for keeping businesses closed is onerous, how about that for "keeping workers from being coerced", if it were truly and reliably enforced? You think that would be less messy and less onerous?

I think it's fine for folks to take a day off, and for other folks to get their shopping done a few days before. And it's OK to legislate that. But I'm a Paternalistic Dem (TM)!

Posted by: Charley on the MTA | Nov 25, 2005 10:36:27 AM

The whole point of these laws is so that employers can't bully their workers into working on holidays when they'd rather spend time with their families
Actually, no. Historically, at least, the "whole point" of these laws was to legislate the Puritans' version of the Sabbath, as is painfully obvious if you read them. Because that has become untenable as a clearly-expressed government policy over the years, they have been reduced to a crazy-quilt of exceptions, and exceptions to exceptions, to the point where they're practically incoherent on the page (go read them if you don't believe me). The Sunday-closing laws - which were defended for years on the grounds you mention - are finally a thing of the past as of a couple of years ago, and the only remnant of these colonial-era Puritan laws is now the mandatory closing of retail stores on Thanksgiving and Christmas. Now, when else have I heard recently of a government policy whose original justification fell apart and was post-hoc rationalized on another, entirely unrelated basis?

Frankly, I don't think it would be that difficult to enforce a "no coercion for taking holidays off" policy - if our crack law enforcement teams can disentangle complicated financial accounting schemes, they can figure out when Wal-Mart is bullying its employees and make them stop. But perhaps more importantly, can you really be so sure that EVERY employee of Whole Foods (or whoever) would rather have been FORCED by the state to take yesterday off, than to have spent a few hours working for double their regular wage?

Posted by: David | Nov 25, 2005 10:51:43 AM

Having worked at a big box retailer on the side for the past few years, I can tell you that the vast majority of the employees would rather have time off with their families than the double time, and that managers, asst managers, and department heads will twist arms to get people to work on holidays, and saying no leads to an easy made-up excuse for firing next week.

I don't really consider Thanksgiving to be under the "blue laws" philosophy since it's a national holiday, not a religious one.* I'd like to see retailers kept closed on Thanksgiving and Christmas, and it is the job of the AG to help enforce the laws, not choose which ones he doesn't like. He got a complaint, and he moved on it... anything less would be him taking a paid vacation on the job.

P.S. IIRC, holiday pay is 1.5, not 2.0.

* Abe Lincoln made it a national holiday, and since it's specific to all of tUSA it doesn't really make sense to think of it as religious, even if most folks do pray and give their thanks to some deity.

Posted by: stomv | Nov 25, 2005 1:18:39 PM

"if our crack law enforcement teams can disentangle complicated financial accounting schemes, they can figure out when Wal-Mart is bullying its employees and make them stop."

Gosh, David, that sure sounds like wishful thinking to me. I mean, we should be able to stop domestic violence, too; but similarly, the problem tends not to be *reported*, as stomv has indicated.

And I don't get too exercised about people being "forced" to take a holiday off. :)

Posted by: Charley on the MTA | Nov 25, 2005 3:00:47 PM

I agree with Charley on this one. In theory, of course I want to be able to go out and buy stuff on Thanksgiving morning. It happens to me almost every year. And while Dave is right about the origin of the Blue Laws, he ignores why they remain on the books today: The Labor Movement.

The laws are onerous to consumers and to big business, but they are there to protect employees.

If there was a way to absolutely ensure that no employee is forced to work when they don't want to on a holiday, I'd be more willing to go along with changing these laws. But I'm not sure how you ever accomplish that.

The interesting aspect of this story is how it took Shaws Supermarkets to "tattle". Pretty bad press if you ask me.

Posted by: Qane | Nov 25, 2005 3:24:45 PM

stomv: fine, Thanksgiving isn't an explicitly religious holiday. But Christmas obviously is. In any event, though I heartily object to the establishment clause problem with blue laws, my objection is broader than that. Yes, the law says time and a half; Whole Foods was going to pay double time, according to the article. And Tom Reilly gets hundreds of complaints every day. He seemed awfully anxious to move quickly and forcefully on this one.

Charley: "take a holiday off." Therein lies one of my basic problems with these laws. What do you say to the managers and employees of the Super 88 Market (the one the cops shut down), most of whom (according to the Globe) are Asian and do not see Thanksgiving as a big deal? That darn it, you're in America now, and you'd better start acting American or else? In addition to being obvious deprivations of liberty, these laws are so culturally specific that blanket application has all kinds of pitfalls.

And to all of you: first, I want you ALL to follow the links in the post and read these wretched laws to see if you can even figure out what they say.

Back? Good. Now: tell me honestly if you think this is any kind of way to make law. A worse mishmash of unenforceable, never-enforced, sometimes-enforced, and always-enforced-if-you-can-figure-out-what-it-says laws I have hardly ever seen. And that's because, yes, they all originated in the 1600s (I love the one about dancing on Sunday), and have been "updated" over the years to the point where they make almost no sense at all. If the legislature really wants to enforce days of rest, it should do it right: wipe the law books clean, hold hearings, and write laws that make sense in light of the world today.

And another thing: what do you say to, for example, restaurant workers - many of whom are paid LESS than the retail workers who get a mandatory day off? Most restaurants are open on Thanksgiving. Why? Two reasons: because the law doesn't force them to close, and because some people like to eat out on Thanksgiving (i.e., the market demands it). So the restaurants are open. Is that bad? Would you guys require that they close? If not, why not? What about retail stores with three or fewer employees, to whom the mandatory closing law doesn't apply? For that matter, why not go back to the bad old days of all businesses being closed on Sunday? Wouldn't your theory suggest that that would be a good idea?

Again, part of the reason these laws stink is because they simultaneously go too far and not far enough. And that's because instead of writing a sensible worker protection code, the legislature insists on trying to update hopelessly archaic laws.

Posted by: David | Nov 25, 2005 4:48:23 PM

Your point on the confusion of the law if excellent, and clearly they should start over. But then I feel the same way about the federal tax code.

Your point on restaurants is fair as well. The difference is that the pay for a Thanksgiving restaurant worker is probably pretty good. For a low-end employee at Wholefoods, $12/hr probably still isn't a lot.But it's a reasonable point that big businesses and small businesses shouldn't really be treated any differently in theory. And yet I find myself in favor of doing so, if only to give smaller businesses the slightest edge one day out of the year. Not logical. Just emotional.

Posted by: Qane | Nov 25, 2005 5:15:14 PM

Would it be unreasonable to expect potential employees to think five minutes ahead and ask about the company's holiday policies before accepting a job? Maybe get it in writing? After all, people can choose their employer. Even unskilled retail employees have rather a lot of options.

Also, the interests of employees are not completely opposed to those of consumers and "big business". Employees are also consumers, and if their employer loses too much money, the employee loses his job. (And the employee's savings or retirement accounts generally want to see the economy as a whole doing well.)

Posted by: Jay Kominek | Nov 28, 2005 3:12:32 PM

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