of the owner of the business, that is to say, his wife. At first he acted for and on her behalf. Towards the end the evidence indicates that he acted as much for himself as for her. She had installed him as the managing director. He took to the position with alacrity. His wife very soon became voiceless in the management of the concern. She apparently accepted her status, as her only visits were weekly for the purpose of picking up the house money. The parties' expenses, that is the utilities and medical expenses were paid for by corporate checks on the business. The medical and hospital expenses in connection with the birth of their child were likewise paid by corporate checks. It is clear that from the marriage on, Isabelle Zygowski turned not only one-half of her real property over to plaintiff but put him in sole and full charge of the business. Trouble between the parties arose when in the exercise of tight fisted control over the business affairs, plaintiff commenced to exclude his wife from receiving any money from the business. She testified that he refused her even adequate house money. It is to be noticed that in the meantime he was operating the business successfully. It is also noticed that in the last two years plaintiff became careless in making proper book entries.
From my observation of the two people, it is apparent that plaintiff was the dominating personality. On the marriage Isabelle abdicated all functions with regard to the corporation except signing checks. Plaintiff was her alter ego in all business affairs. She made no assignment of any stock to him but it is not believed that such an act was necessary. It seems to this court from the marriage on, it was a one man corporation as that term is commonly used, and that the man concerned was the plaintiff and not Isabelle Zygowski.
In order for the plaintiff to recover in this case he must show by a fair preponderance of the evidence that he was an employee within the statutory meaning of that term and that he is entitled to the overtime compensation. This he has failed to do. It cannot be said that plaintiff's status with the defendant corporation was that of an employee in the light of the statutory definition of the term employer and the duties performed by the plaintiff.
Needless to say, a corporation can only act through someone. That someone in the instant civil action during the period of time involved here was the plaintiff and he alone. He was the sole person in the exercise of management functions. His function was performed not as an employee but as a representative of the proprietor, that is, his wife, who had given him full charge of the business. There do not seem to be any specific cases parallel to the factual situation presented before me but this court nevertheless has no doubt of plaintiff's status.
Under Section 203 Definitions (d), the employer includes any person acting directly or indirectly in the interest of an employer in relation to an employee. As that term is understood by this court the employer here insofar as the general run of employees of the defendant is concerned was the corporation. But under the definition, the employer also includes any person acting directly or indirectly in the interest of such employer. That person during the period of time in question here is the plaintiff. This court finds under the evidence in this case that plaintiff during the two year period in which he claims compensation was the employer under the definition in the act and therefore not entitled to the benefits of the act insofar as his claim for overtime wages is concerned. He came clearly within the statutory definition of an employer under Section 203. See Mitchell, Sec. of Labor, v. L. W. Foster Sportswear Co., Inc., D.C., 149 F.Supp. 380.
Conclusions of Law.
1. This court has jurisdiction of the subject matter and of the parties to this action pursuant to the provisions of Section 16 of the Fair Labor Standards Act of 1938, as amended.
2. During the two year period prior to April 29, 1958 which was the date suit was brought, plaintiff in his association with the defendant was an employer within the meaning of Section 203(d) of the Fair Labor Standards Act of 1938.
3. Plaintiff has not established by the evidence that he was an employee of the defendant during the two year period previous to April 29, 1958.
4. Plaintiff is not entitled to recover from defendant any minimum compensation under the Fair Labor Standards Act, nor any overtime compensation under the Act, for hours worked in excess of forty hours per week during the period which is at issue in this case.
5. That defendant is entitled to judgment in its favor.
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