UNITED STATES v. UNIVERSAL CORP.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

This case arises on an information under §§ 15 and 16 (a) of the Fair Labor Standards Act, 52 Stat. 1060, 1068-1069, as amended, 63 Stat. 910, 919, 29 U. S. C. §§ 215, 216 (a), charging the defendant corporation, its division operations manager and two successive branch managers with violations of the minimum wage, overtime, and record-keeping provisions of the Act.1 Thirty-two counts were laid: six for failure under § 6 of the Act to pay minimum wages, twenty for violation of the overtime provisions of § 7, and six for failure to comply with the requirements for record-keeping under § 11. Counts 1-6 charge minimum wage violations in six separate weeks, one per week, but only as to one employee in any one week and only as to three employees in all. Counts 7-26 charge overtime violations in twenty separate weeks, one per week. A total of eleven employees are involved, two violations having been charged as to each of nine employees. Counts 27-32 charge record-keeping violations as to four employees, two violations as to each of two employees being charged. Section 16 of the Act subjects an employer, offending for the first time, to a maximum fine of $10,000 for violation of any provision of § 15, and would, the District Court assumed, authorize a fine of $320,000 upon conviction under this information.2

Rejecting a reading of § 15 whereby the prosecutor could treat as a separate offense each breach of the statutory duty owed to a single employee during any single workweek,3 the District Court granted defendant's motion to dismiss all but three counts of the information. The court held that it is a course of conduct rather than the separate items in such course that constitutes the punishable offense and ordered consolidation of the separate acts set forth in the information into three counts, charging one violation each of §§ 6, 7 and 11.4 To review this decision, the Government brought the case here under the Criminal Appeals Act, 34 Stat. 1246, 18 U. S. C. § 3731.

The problem of construction of the criminal provisions of the Fair Labor Standards Act is not easy of solution. What Congress has made the allowable unit of prosecution—the only issue before us—cannot be answered merely by a literal reading of the penalizing sections. Generalities about statutory construction help us little. They are not rules of law but merely axioms of experience. Boston Sand Co. v. United States, 278 U.S. 41, 48. They do not solve the special difficulties in construing a particular statute. The variables render every problem of statutory construction unique. See United States v. Jin Fuey Moy, 241 U.S. 394, 402. For that reason we may utilize, in construing a statute not unambiguous, all the light relevantly shed upon the words and the clause and the statute that express the purpose of Congress. Very early Mr. Chief Justice Marshall told us, "Where the mind labors to discover the design of the legislature, it seizes every thing from which aid can be derived . . . ." United States v. Fisher, 2 Cranch 358, 386. Particularly is this so when we construe statutes defining conduct which entail stigma and penalties and prison. Not that penal statutes are not subject to the basic consideration that legislation like all other writings should be given, insofar as the language permits, a commonsensical meaning. But when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.

The penal provision of the Fair Labor Standards Act is only part of a scheme available to the Government and to the employee for enforcing the Act. The preventive remedy of an injunction and individual or class actions for restitution and damages in § 16 (b) are not only also available. They are the remedies more frequently invoked and more effective in achieving the purposes of the Act. Of course the various remedies must be read in relation to each other. But we are asked here in addition to infer that an employer's failure to perform his obligations as to each employee creates a separate criminal offense because the provisions for civil liability in § 16 (b) expressly recognize a right in the individual employee to maintain a separate action against his employer for restitution and damages. The argument cuts both ways. If Congress had wanted to attach criminal consequences to each separate civil liability it could easily have said so, just as it had no difficulty in stating explicitly that the unit for civil liability was what was owing to each employee. Instead of balancing the various generalized axioms of experience in construing legislation, regard for the specific history of the legislative process that culminated in the Act now before us affords more solid ground for giving it appropriate meaning.

When originally introduced in Congress, the bill out of which the Fair Labor Standards Act evolved had two separate penalty provisions, one for underpayments in violation of § 6 or § 7 and one for failure to comply with the record-keeping provisions of § 11.5 Each provision set the maximum fine at $500 and explicitly defined what constituted a separate offense. As to §§ 6 and 7 the employee was the unit of criminal offense and as to § 11 each week of violation was a separate offense.6 After the measure wound its way through a long legislative process there resulted consolidation of the two penalty provisions, elimination of the separate offense clauses, and substitution of $10,000 for $500 as the maximum fine. These rather striking changes would in themselves afford justifiable ground for giving the less harsh and therefore more reasonable construction to the offense-creating portions of the legislation. In addition, we have illuminating statements in both houses concerning the separation of offenses. Although the separate offense clause for record-keeping violations was deleted early in the legislative process, the other separate offense clause was attacked in debate precisely because it would authorize the sort of multiplication of offenses by the number of employees that the information before us represents.7 Indeed, multiplication in this information goes beyond what even the original bills would have authorized. Underpayments of the same employees are split into separate counts of the information, and record-keeping violations during the same week are split to serve as the basis of separate counts.

It would be self-deceptive to claim that only one answer is possible to our problem. But the history of this legislation and the inexplicitness of its language weigh against the Government's construction of a statute that cannot be said to be decisively clear on its face one way or the other. Because of the history and language of this legislation, the case is not attracted by the respective authority of two cases pressed upon us. In re Snow, 120 U.S. 274, and Blockburger v. United States, 284 U.S. 299.

The district judge was therefore correct in rejecting the Government's construction of the statute. The offense made punishable under the Fair Labor Standards Act is a course of conduct. Such a reading of the statute compendiously treats as one offense all violations that arise from that singleness of thought, purpose or action, which may be deemed a single "impulse," a conception recognized by this Court in the Blockburger case, supra, at 302, quoting Wharton's Criminal Law (11th ed.) § 34. Merely to illustrate, without attempting to rule on specific situations: a wholly unjustifiable managerial decision that a certain activity was not work and therefore did not require compensation under F. L. S. A. standards cannot be turned into a multiplicity of offenses by considering each underpayment in a single week or to a single employee as a separate offense.

However, a wholly distinct managerial decision that piece workers should be paid less than the statutory requirement in terms of hourly rates, see United States v. Rosenwasser, 323 U.S. 360, involves a different course of conduct, and so would constitute a different offense. Thus, underpayments based on violations of the statute as to these piece workers could not be compounded into a single offense with unrelated underpayments which resulted from the decision that a certain activity was not work, merely because the two kinds of underpayments occurred in the same workweek or involved the same employee. Whether an aggregate of acts constitute a single course of conduct and therefore a single offense, or more than one, may not be capable of ascertainment merely from the bare allegations of an information and may have to await the trial on the facts.

This information is based on what we find to be an improper theory. But a draftsman of an indictment may charge crime in a variety of forms to avoid fatal variance of the evidence. He may cast the indictment in several counts whether the body of facts upon which the indictment is based gives rise to only one criminal offense or to more than one. To be sure, the defendant may call upon the prosecutor to elect or, by asking for a bill of particulars, to render the various counts more specific. In any event, by an indictment of multiple counts the prosecutor gives the necessary notice and does not do the less so because at the conclusion of the Government's case the defendant may insist that all the counts are merely variants of a single offense.

By affirming this order without prejudice to amendment of the information, we do not mean to suggest that amendment to increase the number of offenses may be made after trial has begun. But the Government is not precluded from now amending the information either to meet the exigencies of the evidence or to charge as separate offenses separate courses of conduct as to each substantive provision. All we now decide is that the district judge correctly held that a single course of conduct does not constitute more than one offense under § 15 of the Fair Labor Standards Act.

Without prejudice to amendment of the information before trial if the evidence to be offered warrants it, the order below is

Affirmed.

MR. JUSTICE DOUGLAS, dissenting.

I think the question whether an employer has violated the criminal provisions of the Act is determined by reference to what he has done to a particular employee. The Act does not speak of "course of conduct." That is the Court's terminology, not the Act's. The Act requires the employer to pay "each of his employees" not less than 75 cents an hour, prohibits him from employing "any of his employees" for more than 40 hours a week unless overtime is paid, and requires him to keep records of "the persons employed by him" and the wages, hours, etc. 29 U. S. C. §§ 206, 207, 211 (c), as amended. And the Act makes it unlawful for an employer to violate "any of the provisions" of those sections. 29 U. S. C. §§ 215, 216 (a).

It therefore seems clear to me that if an employer pays one employee less than 75 cents an hour or fails to pay overtime to one employee, or fails to keep the required records for one employee, a crime has been established, if scienter is shown. And it seems equally clear to me that if an employer wilfully fails to pay one employee the minimum wage, and wilfully fails to pay him the required overtime, and wilfully fails to keep the required records for him, three crimes have been committed. The crime is defined with reference to the individual employee. The crime may be a single, isolated act. It may or may not be recurring or continuous. The violation may affect one employee one week or one month and another employee another week or another month; and it may affect one employee in one way, another employee in a different way. The violations may be continuous, and follow a set pattern; or they may be sporadic and erratic. The Act does not differentiate between them. Nothing is said about "course of conduct." Perhaps a committee of Congress would be receptive to the suggestion now made. But it should be received there, not here. Of course, horrendous possibilities can be envisaged under almost every law. But the prosecutors who enforce this Act, the grand juries who hear the evidence on violations, and the District Courts who apply the sanctions have to date not made these criminal provisions oppressive and beyond reason. Yet until this case no court, so far as I can learn, has ever had the inventive genius to suggest that "course of conduct" rather than the "employee" is the unit of the crime.