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HAYES v. BILL HALEY & HIS COMETS

October 4, 1967

Robert J. Hayes, Plaintiff
v.
Bill Haley and His Comets, Inc., Defendant


Wood, D.J.


The opinion of the court was delivered by: WOOD

WOOD, D.J.:

 This is an action under the Fair Labor Standards Act of 1938, 29 U.S.C.A. ยง 201 et seq. to recover unpaid minimum wages and overtime compensation, plus an equal amount designated by the Act as liquidated damages plus reasonable attorney's fees and costs. After a trial without a jury wherein defendant did not appear through counsel or through anyone else, we make the following:

 Findings of Fact

 1. Plaintiff, Robert J. Hayes, was employed by defendant Bill Haley and His Comets, Inc. from April 3, 1959 to March 31, 1961.

 2. Defendant was the corporate cover for a popular band headed by Haley during this period of time. It was primarily engaged in the business of musical entertainment and recorded phonograph records.

 3. The band travelled in interstate commerce extensively to perform and plaintiff travelled with it. The records were sold in interstate commerce.

 4. Plaintiff was employed to act as a personal assistant to the band leader, Bill Haley, who was the chief officer of the corporation. His duties were to accompany Haley, act generally at his behest, and be available at odd hours for conversation. He also arranged for room and board for the band while on a trip, ensured the availability of the musical instruments for engagements and repacked them.

 5. Plaintiff averaged seventy hours a week at his job. His wage rate commencing at $200.00 per week was increased to $300.00 per week on March 18, 1960 and again was increased during the week of November 25, 1960 to $400.00 per week and there remained until plaintiff left defendant's employ. The salary was intended to cover all hours that Hayes worked.

 6. Plaintiff could not hire or fire, nor was he a supervisor. His primary duties were not related to management policies or general business operations of defendant and he exercised no discretion or business judgment.

 7. Plaintiff on many occasions was not paid his full salary and during other weeks was not paid at all.

 Discussion

 The only questions for disposal are the method of computing the actual damages and what if any damages over and above compensatory are to be allowed. Section 6 of the F.L.S.A. provides that minimum hourly wages must be paid to certain employees in interstate commerce. Section 7 provides that an employer must compensate an employee in any work week longer than forty hours at a rate not less than one-and-one-half times the regular rate at which he is employed.

 The regular rate is the hourly rate at which the employee is actually paid for each week's work. Bay Ridge Operating Co., Inc. v. Aaron, 334 U.S. 446, 92 L. Ed. 1502, 68 S. Ct. 1186 (1948). The regular hourly rate of pay is determined by dividing the total remuneration for employment in any workweek by the total number of hours actually worked by an employee in that workweek for which such compensation was paid. Overnight Motor Transportation Co., Inc. v. Missel, 316 U.S. 572, 579, 86 L. Ed. 1682, 62 S. Ct. 1216 (1942). Overtime can easily be computed then by multiplying the number of hours over forty by one-and-one-half times the regular rate. Overnight Motor Transportation Co., Inc. v. Missel, 316 U.S. 572, 86 L. Ed. 1682, 62 S. Ct. 1216 (1942). The addition of the contractual wage and the product of the number of hours over forty times one-half the regular ...


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