or local retailing capacity, or in the capacity of outside salesman (as such terms are defined and delimited by regulations of the Administrator); * * *."
Under the Administrator's rules and regulations implementing the Fair Labor Standards Act, 29 U.S.C.A.Appendix, § 541.1, an employee employed in a bona fide executive capacity is defined as follows:
"The term 'employee employed in a bona fide executive * * * capacity' in section 13(a) (1) of the Act shall mean any employee
"(a) whose primary duty consists of the management of the establishment in which he is employed or of a customarily recognized department or subdivision thereof, and
"(b) who customarily and regularly directs the work of other employees therein, and
"(c) who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight, and
"(d) who customarily and regularly exercises discretionary powers, and
"(e) who is compensated for his services on a salary basis at not less than $30 per week (exclusive of board, lodging, or other facilities), and
"(f) whose hours of work of the same nature as that performed by nonexempt employees do not exceed 20 percent of the number of hours worked in the workweek by the nonexempt employees under his direction; Provided, That this paragraph shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment."
My Findings of Fact dispose of the factual issues raised. I am convinced that the plaintiff was given the empty title of "assistant manager" to circumvent the provisions of the Fair Labor Standards Act. In fact, Harry C. Kruse, the defendant's district manager, who testified in behalf of the defendant, admitted (N.T. p. 160) that there was no executive pay roll, and that the title of "assistant manager" was given to the plaintiff because "It sounded important" (N.T. p. 160), and further that the nature of plaintiff's duties did not change after the acquisition of the title.
Furthermore, the burden of proving that an employee is an executive -- and therefore exempt from the overtime provisions of the Act -- rests upon the employer. Bowie v. Gonzalez, 1 Cir., 117 F.2d 11; Fleming v. Hawkeye Pearl Button Co., 8 Cir., 113 F.2d 52; Schneider v. Sports Vogue, Inc., Misc. , 35 N.Y.S.2d 341. Not only did the defendant fail to meet this burden, but on the contrary the evidence was ample to uphold the plaintiff's contention.
It remains only to determine the measure of damages. It has been decided by the United States Supreme Court that where the employment contract is for a fixed weekly wage and variable or fluctuating hours of work, the "regular rate" per diem, in the statutory sense, for any particular week, is the quotient of the amount paid per week divided by the number of hours worked in that week. Walling v. Belo Corp., 316 U.S. 624, 62 S. Ct. 1223, 86 L. Ed. 1716; Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S. Ct. 1216, 86 L. Ed. 1682.
"Schedule A" contains an analysis of the overtime and the compensation therefor as computed in accordance with the cited Supreme Court decisions, and the amount to which the plaintiff would be entitled, to wit, $1,502.30.
I therefore state the following conclusions of law
1. During the entire period of plaintiff's employment by defendant, plaintiff was not an exempt employee of defendant within the scope or meaning of Section 13 of the Fair Labor Standards Act; and the provisions of Sections 6 and 7 of said Act were applicable at all times to plaintiff's employment.
2. During the period beginning May 6, 1940, and ending November 22, 1941, defendant employed plaintiff in interstate commerce as aforesaid for work weeks longer than the applicable maximum number of hours under Section 7 of the Act. and failed and refused to compensate him for such employment.
3. During the period from May 6, 1940, to November 22, 1941, plaintiff worked an excess of 2,062 3/4 hours for which he was entitled to receive, but did not receive, overtime compensation in the sum of $1,502.30.
4. Plaintiff is entitled to receive from defendant, and defendant shall pay to plaintiff, in accordance with the provisions of Section 16 of the Act: (a) overtime compensation in the amount of $1,502.30; (b) an additional equal amount as liquidated damages, and (c) an attorney's fee in the sum of $500. Defendant shall also pay the costs of the action.
An order for judgment may be submitted in accordance with this opinion.
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