In Minnesota, in particular. I went to the Minnesota History Center for the second time ever on Friday, my second ever foray into archival research. I dug through the correspondence files for the Minnesota Department of Labor, Industry, and Commerce (I may the order wrong) Insurance Compensation Commission from 1909-1911 (Box #1, item 115.h.17.3B), that’s as much time as I had available. It’s really neat handling these old letters and whatnot, some of them handwritten. Lots of fun and lots of random factoids.
For instance:
- one Don Lescohier wrote a book and a pamphlet issued by the Commission on industrial accidents and workers’ comp in Minnesota. Lescohier had some ties to the Commons school of labor history; he also wrote a book on the Knights of Saint Crispin and on a miner’s strike in Minnesota.
- William Bray was killed in an industrial accident at the North American Telegraphy Company on July 28, 1909, in Duluth.
- A letter from N.A. Tuttle, VP and General Manager for the NATC wrote to Commissioner William McEwen on 11-9-09 about the death, and mentioned that a suit had been filed by the Bray estate in Ramsey County. McEwen wrote to Tuttle (and many other employers) asking for info and assured him that the info would be confidential, as required by law. Only the statistician would see it. The Commission also sought info on master and servant personal injury cases in counties throughout Minnesota.
- One letter of 12/12/09 from McEwen to Matt Jensa, Ramsey County District Court Clerk mentioned the suit of one Thomas Floody which the Minnesota Supreme Court heard, which McEwen read about in the newspaper. The newspapers were an important source of info for the Commission. They hired a clipping service and got copies of articles about industrial accidents, after which they wrote to the companies and sometimes to the workers involved asking for more information. They wanted info on accidents from 1906-1909, and wanted info on whether or not companies carried insurance. In at least one instance in 1910 they wrote to the county coroner to ask if an accident at work had contributed to a death reported as natural causes.
- The Commission also did research on workers’ comp around the world, writing for instance to someone in the Spanish gov’t and sending at least one member of the Commission to Europe. The international focus went both ways, for example the Commission got a letter in 1913 from a lawyer hired by the Consul for Austria-Hungary, inquiring into the death of Mike Piatka on the job (Piatka was a Hungarian citizen), and in 1910 got a letter from the Ontario Workmen’s Compensation Commission, asking for a copy of the Minnesota Commission’s Accident Bulletin and for information on why an attempted workers’ comp law had failed. The letter said “you deal with labour matters in a scientific way in your state.” (There was another reference to scientificness in another letter sometime I think in 1909.)
- The Commission only wanted info on accidents in factories. Rail accidents were to be sent to the Railroad and Warehouse Commission.
- The Commission was created in a law in 1909. The relevant laws were chapter 234, 235, and 286. 286 founded the Commission, charging it with information gathering on accidents in Minnesota and on workers’ comp practice around the US and world and with bringing a draft law by the start of the 1911 legislative session. 234 and 235 required insurance companies and employers to report industrial accidents to the Commission if those accidents resulted in injury. The Commission was to consist of three unpaid people: a representative of labor, of employers, and a legal expert, and the Commission was forbidden to allow its materials to be used for trials about workplace injury.
All of which is interesting, if you like trivia. I do like trivia, so it’s interesting. To be more than trivia, however, it has to be attached to some kind of framework which establishes relevance. Hell if I know what that is.
I have some material from off Lexis on 131 Minnesota Supreme Court cases from 1920 and prior involving workers injured on the job. I plan to take the ones from 1906 onward and see if they show up in the correspondence. I checked the digital archive of the Minneapolis Labor Review, which goes back to 1870. The term “accident” doesn’t appear prior to 1900. It comes up 115 times between 1900 and 1909, 327 times between 1910 to 1919, 468 times from 1920 to 1929, 208 times from 1930 to 1939, and 365 times from 1940 to 1949. (Note to self, “supreme court injury” is a productive search over there, as is “injury law suit”, “plaintiff,” and “fellow servant”. On a partly related note - “speed” and “speed machinery”. What terms was Taylorism talked about in back then?)
The most important thing to do, though, is to figure out what I’m asking, in order to sort the information, as there’s a lot of it.
From what I’ve read so far, here’s the general consensus on workers’ comp.
Workers’ comp laws grew out of a combination of factors. Industrialization and mechanization created more dangerous workplaces, which created more and worse injuries in the workplace. Prior to workers’ comp, injured workers sought restitution by suing the employer in court.
Employers’ legal defense involved three points: the fellow servant rule, assumption of risk, and contributory negligence. Fellow servant meant that if the accident was the fault of another employee, the employer was not liable. Assumption of risk meant that if an employee knowingly worked under risk of injury then the employee consented to taking that risk and so the employer was not liable should injury result. Contributory negligence meant that if the employee could be shown to have been partially at fault for the accident, then the employer was not liable. Essentially, in order to win a suit, employees had to prove that they had faultlessly been injured and the blame rested on the employer.
Historians appear to agree that compensation by lawsuit generally resulted in a lot of workers not getting compensated. Those who did get compensation tended to face long delays, small awards, and costly legal fees. On the other hand, labor unions and others began to push for laws restricting employers’ legal defenses, and juries began to give higher awards. This is part of why many employers got on board with the idea of workers’ compensation insurance. Arguably, employers got on board earlier with workers’ compensation insurance than did unions, who preferred to continue to push for reform to employers’ liability laws.
Employers’ arguments for workers’ compensation generally boiled down to a desire for predictability of cost rather than the unpredictability of awards, and a desire to minimize conflictual interaction with employees. The latter was in part a desire to undermine or shape the direction that workers’ organization took. I’ve found many references to injuries as a source of industrial strife. Strangely, I’ve found few examples of industrial strife resulting from injuries.
Some of the work I looked at implies a sort of backwardness on the part of unions, in their not wanting to get onboard with workers’ compensation (based on not wanting to give up the right to sue or give up blaming employers). There’s also relatively little attention paid to the juries, the litigants, or the popular attitudes toward workplace accidents or reform in liability/workers’ comp. This is noteworthy in particular given that it’s generally accepted that rising jury awards played an important role in making workers’ comp attractive to employers. Also missing from almost all the scholarship is any discussion of gender or race. I’m under the impression that unions at the time - particularly the AFL unions, who were the main labor actors in the relevant policy debates - were predmoninantly white and male. Given that that’s so, the generally color- and gender-blind perspective in the literature may be leaving out important details.
Lastly, I’m not sure how to phrases this, but there seems to me an intangible element that gets left out related to the transition from lawsuits to no-fault insurance. Part of what many unions objected to was essentially a moral point. They wanted to blame the employers for injuries, and the idea of no-fault insurance didn’t sit well with them. I wonder, did anyone experience the transition to workers’ comp insurance as a partial loss in that something that really mattered to them (the ability to claim something was the employer’s fault and the potential - though low in probability - to have a court affirm this)? Or, was there any conversation within unions along the lines of “the new law says no-fault but we really know it’s the employer’s fault when these things happen?”
Comment by Nate — November 1, 2007 @ 10:48 am
I’m looking at women and gender in litigation around workplace injuries in Minnesota between approximately 1908 and 1922. More specifically, I am comparing the experiences of women who appeared in court as injured workers with women who appeared in court as the wives and widows of injured male workers. I chose this era because this is the period in which Minnesota’s Workmen’s Compensation laws were created and given the basic form they still have today. Minnesota’s legislature passed a workers’ compensation law in 1913, after more than twenty years of discussion and debate which intensified significantly in 1909. Research, debate and significant revision of the workers’ compensation law continued until 1921. From 1913-1922, injured workers in Minnesota accessed workers’ compensation through the courts rather than by an administrative commission. Court provision of compensation repeated many of the perceived problems from the pre-workers’ compensation era, including placing a burden on the legal system and fostering a conflictual relationship between workers and employers. This era functioned as a slow phasing in of workers’ compensation as an alternative to litigation. (Fischback and Kantor, Asher.) Litigation during this era shaped the direction of future workers’ compensation programs, since the changes toward an administrative commission were deliberately crafted to eliminate litigation.
Aside from my pre-existing interests, I chose my thematic focus for three basic reasons. The historiography on workers’ compensation has relatively little to say about women and gender. There is what feels to me like an overwhelming amount of primarily material on workers’ compensation and workplace injury cases, such that I need to narrow my scope to a manageably narrow level. This thematic focus will allow me to do so by allowing me to focus on the relatively fewer cases of injured women workers. Third, I want to try my hand at dealing with the records of individual trials in order to talk about the people who brought injury suits.
Several historians have written articles dealing with single states as case studies: Donald Rogers on Wisconsin, Robert Wesser on New York, Robert Asher on Massachussettes and Minnesota, and Shawn Kantor and Price Fishback on Minnesota. With the exception of Rogers, the single state case studies all deal primarily with policy debates among influential groups that shaped policy (primarily employers’ associations and labor unions) and in state legislatures. Some of these historians as well as others such as Julian Go and Barbara Nelson deal in other articles with similar debates and actors at the national level. Rogers, on the other hand, deals with changing concepts of risk, liability, and whether workplace safety and injury were public or private matters. John Fabian Witt deals with similar themes across the United States in his article and book. In terms of sources, the policy centered historians focus largely on the minutes of legislative sessions, speeches and articles from members and officers in influential organizations, and reports and statistics from the public and private bodies that studied industrial accidents and workers’ compensation. The more properly legal historians deal with the above sources but to lesser degree, primarily focusing instead on court cases. In particular, the legal historians focus on judges’ arguments and decisions in order to get at changing legal doctrine.
Several of the works I looked at make no reference at all to gender. A few works make passing reference to gender. Julian Go minimizes the importance of gender, asserting that “gender construction did not seem to bear on the enactment of workers’ compensation or employers’ liability.” (430.) At the same time, Go notes that legal responses to workplace injury in the early 20th century “elided the fact that women (…) were wage earners as well as wives and mothers,” making up 30% of workers in many industrial areas. (425.) Fishback and Kantor note that the Minnesota compensation law did not cover agricultural or domestic workers, but do not comment on the gender or racial implications of this. (565.)
Witt, unlike most of the other historians dealing with workplace injuries and workers’ compensation, offers a good deal of commentary on gender and women. Three of Witt’s chapters deal with the treatment of widows and wives. He also address the gendered notions of free labor and the family wage, and implies that the notions of masculinity held by some male workers led them to be less safe in their work. (32.) Still, while Witt is an important exception for his attention to gender, he does not deal with women workers. Witt state that very few workplace injury cases involved injured women workers, and he does not take up the gendered nature of the exclusion of domestic workers from workers’ compensation. (37.) Barbara Nelson usefully discusses gender and women at some length and criticizes the partition of welfare provisioning into workers’ compensation for white men, Mother’s Aid for white women, and nothing for non-whites. Like Witt, however, she does not look at women’s claims for injury compensation or at the exclusion of domestics.
I was initially overwhelmed by the quantity of material related to workplace injuries and law in Minnesota in this time period. Between Minnesota Supreme Court cases, legislative hearings, correspondence files, and newspaper articles, I began to feel I was adrift without a rudder and I was not finding that the sources were just suggesting a research question to me in the way I’d hoped. After turning to secondary literature, I developed a clearer sense of what I’m looking for, but I have only just begun to identify relevant primary sources. Sources I expect to use include:
McInerny v. St. Luke’s Hospital Association of Duluth, 122 Minn. 10; 141 N.W. 837; 1913 Minn. LEXIS 523
Mary McInerny got her hand caught in an ironing machine in the laundry at St. Luke’s Hospital where she worked as a maid. Her burns were extensive enough to require the amputation of most of her hand. The type of machine that injured Mary was a laundry mangle. During the trial, Mary’s lawyer mentions other women injured on the same kind of machine, so there must be other injury cases involving mangles. Using Lexis, I have found ten other cases involving women injured on mangles. I to look at the case records for these cases, kept with the Law Library’s records of Minnesota Supreme Court cases.
The Minneapolis Labor Review maintains an online archive of their newspaper dating back before 1900. I have printed out a number of issues dealing with debates in the state legislature on the Workingmen’s Compensation Act. I intend to sort through the archive for material relevant to women injured on the job and to wives and widows of injured men. I plan to look for similar material in local newspapers on microfilm.
The Minnesota History Center has copies of the records of the Minnesota Department of Labor and Industry, including correspondence about workers’ compensation, injury statistics, and case files for injuries which occur. I have looked at these files, but I have not been back since deciding to focus on gender. The History Center also includes the records of the Minnesota Industrial Commission, a body which organized the hearings on revising workers’ compensation, and which in 1923 replaced the courts as the avenue for handling workers’ compensation claims. (Cited in Asher, 1973, page 1.)
Draft Outline:
I. Drawing on the historiography
A.Chronological Focus: Transitional period from 1909-1922
1. Background - Starting point and initial change, 1800s until 1908
a. Employers’ legal defenses against liability for workplace injury as inherited from the 19th century (fellow servant, assumption of risk, contributory negligence)
b. Increase in quantity and severity of workplace accidents
c. Increasing and increasingly successful pressure to limit employers’ legal defenses against liability, rising jury awards; lawsuits are not only expensive but unpredictable and promote industrial strife
d. Employers become favorable to workers’ compensation, more so than unions, due to the above
2. Response, 1908-1913
a. Initial disagreements over how workers’ compensation will be provided, this slows passage and implementation
b. State commissions and public hearings
c. Eventual agreement or at least sufficient compromise to pass a bill
3. Relative resolution and continued refinement, 1913-1923
a. Minnesota workers’ compensation enacted in 1913, administered by the courts with assistance by the Department of Labor and Industry
b. Continued changes in provision of compensation until 1922, workers’ compensation begins to be administered by Industrial Commission instead of the courts in 1923
c. During this era lawsuits persisted, which made workers’ comp only partially achieve some of its goals; this also means the records are reasonably good
B. Thematic focus: Women and Gender 1913-1922
1. Little attention to women and gender or to race in this era. This is an important gap because the literature largely ignores that the laws were mainly for white men: Workingmen’s Compensation program, excluded domestic and agricultural workers. Women were included in the laws in two ways
a. As attached to men who got injured
i. Wives - Men would get more money when injured if they were married; number of children affected payments as well
ii. Widows
b. As waged workers on their own when injured
i. No corresponding marriage or child-having benefit for women
II. Primary sources
A. Women as dependents
1. Wives of injured workers and widows of workers who died
a. Appeal to need to support wives, widows, and children
b. Standards/expectations of feminity?
c. Standards/expectations of masculinity?
d. Emotional responses of women depending on the injury?
e. Levels of awards and types of decisions?
B. Women as workers
1. Number of cases, types of injury
2. Standards/expectations of feminity?
a. Was physical disfigurement considered worse for women?
b. Were women permitted displays of emotion which shaped the proceedings?
c. Levels of awards and types of decisions?
i. Women’s lower wages and how these were reflected in awards; provision of board and did that count as part of wages?
ii. What were the assumptions about women’s economic needs and relative dependence/independence? (Lack of compensation for dependents or having a spouse, etc.)
Secondary sources so far -
Asher, Robert, “Radicalism and Reform: State Insurance of Workmen’s Compensation in Minnesota, 1910-1933,” Labor History, No. 14. (1973), 19-41.
Asher, Robert, “Business and Workers’ Welfare in the Progressive Era: Workers’ Compensation Reform in Massachusetts, 1880-1911,” The Business History Review, Vol. 43, No. 4, (Winter, 1969), 452-475.
Go, Julian, “Inventing Industrial Accidents and Their Insurance: Discourse and Workers’ Compensation in the United States, 1880s-1910s,” Social Science History, Vol. 20, No. 3. (Autumn, 1996), 401-438.
Howard, Christopher, “Workers’ Compensation, Federalism, and the Heavy Hand of History,” Studies in American Political Development, No. 16, (Spring, 2002), 28-47.
Kantor, Shawn Everett and Price V. Fishback, “Did Workers Pay for the Passage of Workers’ Compensation Laws?,” The Quarterly Journal of Economics, Vol. 110, No. 3. (August, 1995), 713-742.
Kantor, Shawn Everett and Price V. Fishback, “How Minnesota Adopted Workers’ Compensation,” The Independent Review, Vol. 2 No. 4. (Spring, 1998), 557-578.
Lubove, Roy, “Workmen’s Compensation and the Prerogatives of Voluntarism,” Labor History, No. 8. (Fall 1967), 254-79
Nelson, Barbara, “The Gender, Race, and Class Origins of Early Welfare Policy and the Welfare State: A Comparison of Workmen’s Compensation and Mothers’ Aid,” 413-435 in Louise Tilly and Patricia Gurin, Women, Politics and Change, New York: Russel Sage Foundation, 1990.
Rogers, Donald, “From Common Law to Factory Laws: The Transformation of Workplace Safety Law in Wisconsin before Progressivism,” The American Journal of Legal History, Vol. 39, No. 2. (April, 1995), 177-213.
Weinstein, James, “Big Business and the Origins of Workmen’s Compensation,” Labor History, VIII (Spring, 1967), 156-74.
Wesser, Robert, “Conflict and Compromise: The Workmen’s Compensation Movement in New York, 1890s-1913,” Labor History, No. 12. (Summer, 1971), 365-66.
Witt, John Fabian, The Accidental Republic, Cambridge: Harvard University Press, 2004.
Comment by Nate — November 2, 2007 @ 2:47 am