STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

February 27, 1969

Roger A. Schiager
Deputy State's Attorney
Minnehaha County
Sioux Falls, South Dakota 57102

OFFICIAL OPINION NO. 69-22

SDC 17.0601 superseded by Federal Fair Labor Standards Act

Dear Mr. Schiager:

You have asked for an official opinion concerning the following factual situation:

"In the past few months, X Company, which is engaged in interstate commerce, has worked its plant work force 58 hours a week on more than one occasion. That work force is composed of both men and women."

You point out that there is an apparent conflict between SDC 1939 17.0601 (SDCL 1967 §60-12-1) and the Federal law regulating women's working hours. The South Dakota law limits the working hours of women to ten (10) hours per day and fifty-four (54) hours per week. Title VII of the Civil Rights Act of 1964 (42 USCA S2000 e-2) makes it unlawful for an employer to deprive an individual of employment opportunities because of sex.

Your specific question is:

"Can the X plant work a 58 hour work week and keep the women working for such 58 hours without violating SDC 17.0601?"

Were the South Dakota law to be followed, it is clear that the women employees of Plant X would be denied the right to earn the same weekly wages as the male employees of that plant. This discrimination is the source of the conflict between the two laws.

One of the fundamental principles of constitutional law is that the authority of the United States Government is supreme in its cognizance of all subjects which the Constitution has committed to it by the express declaration of Article VI, S2, of the United States Constitution. See also, Cooper v. Aaron, 358 U.S. 1, 3 L ed 2d 5, 78 S Ct 1401.

Consequently, there can be no conflict of authority, in the sense usually given to the term, between a state and the United States in respect to such a matter, because the state law will always be subordinated to the Federal Law. Florida v. Mellon, 273 U.S. 12, 71 L ed 511, 47 S Ct 265. This question is further discussed in Rosenfeld v. Southern Pacific Co., USDC (Calif.) Nov. 22, 1968.

The answer to your question, therefore, is YES. There being a direct conflict between the Federal law and the state law, the state law must yield, for the Federal law has preempted this area.

Respectfully submitted,

Gordon Mydland
Attorney General