MEMORANDUM
FOLLMER, District Judge.
On August 16, 1966, plaintiff, the Secretary of Labor, filed his Complaint seeking to enjoin defendants, Novinger's Inc., and Robert Gulden, an individual, from violating the provisions of Section 15(a) (2) and 15(a) (5) of the Fair Labor Standards Act of 1938, as amended (52 Stat. 1060, as amended; 29 U.S.C. § 201 et seq.), hereinafter referred to as the Act, and for such other and further relief as may be necessary and appropriate, including the restraint of any withholding of payment of overtime compensation underpayments to, but not limited to, the employees (68) as specified in Exhibit "A" attached thereto and made a part thereof. The Complaint alleges that the action is specifically authorized by Section 17 of the Act.
The Complaint further alleges that the defendants employ a total of one hundred thirty employees in and about their place of business in Harrisburg, Pennsylvania, and elsewhere within the Commonwealth of Pennsylvania, in lathing, painting, plastering, acoustical work, and other forms and modes of construction and reconstruction of buildings housing individuals, firms and facilities producing goods for interstate commerce, and/or engaged in interstate commerce, and in activities closely related and directly essential to the aforesaid principle activities, and, at all times mentioned therein, said employees were, and are, engaged in interstate commerce and/or in the production of goods for interstate commerce, within the meaning of the Act.
In Paragraph VI the Complaint alleges that defendants have been, and are, engaged in the performance of related activities performed through unified operation and common control for a common business purpose, and accordingly were, and are, an enterprise within the meaning of Section 3(r) of the Act.
In Paragraph VII the Complaint alleges that defendants are an enterprise engaged in commerce or in the production of goods for commerce within the meaning of Section 3(s) (4) of the Act.
In Paragraphs VIII and IX the Complaint alleges that defendants have, and are, violating the provisions of Sections
In Paragraph XI the Complaint alleges that defendants have, and are, violating the provisions of Sections 11(c) and 15 (a) (5) of the Act, in that they have failed to make, keep and preserve adequate and accurate records of their employees and of the wages, hours worked, rates of pay, total straight earnings and total overtime compensation for each work week, since May 6, 1964.
Plaintiff asks for judgment enjoining and restraining the alleged violations, all of which it is alleged is specifically authorized by Section 17 of the Act. Attached to the Complaint is a list of sixty-eight of the employees and a summary of unpaid wages, including period covered by work week ending dates and gross amounts due each employee.
Defendants answered, contending (second defense) that the action was not properly brought under Section 7 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 256, since written consents from the employees to whom overtime compensation is allegedly due have not been filed with the Court; and (third defense) that the two year statute of limitations provided in Section 6 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 255, has not been tolled on any of the claims for payment of back wages involved in this action. Defendants demanded a jury trial but during oral argument on the motions on November 21, 1966, they withdrew their demand for jury trial.
The matter is presently before the Court on motion of plaintiff to strike the second and third defense contained as aforesaid in defendants' Answer.
Basically, defendants' contention is that this is a suit for back wages by the Secretary of Labor on behalf of a number of employees under Section 17 of the Fair Labor Standards Act and is a collective or class action within the meaning of Section 7 of the Portal-to-Portal Act.
Section 7 of the Portal-to-Portal Act, 29 U.S.C. § 256, reads as follows:
Section 17 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 217, reads as follows:
The interesting history of Section 17 is well stated by the Court in Wirtz v. Jones, 340 F.2d 901, 903-904 (5th Cir. 1965), as follows:
Again, at p. 756, the Court said:
This is not a collective or class action to which Section 7 of the Portal-to-Portal Act refers. Such type, collective or class, is one which can be instituted privately under Section 16(b) (29 U.S.C. § 216(b)) of the Act "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated" and which requires "consent in writing to become such a party (plaintiff) and such consent is filed in the court". Nor is this an action brought by the Secretary to recover back wages on behalf of an employee (or employees) under Section 16(c) (29 U. S.C. § 216(c)) of the Act which requires a written consent of the employee and his being named in the complaint. This is an injunctive action brought by and on behalf of the Secretary under Section 17 of the Act and, accordingly, is to be considered commenced as of the date the action is filed.
The 1961 amendment served a very definite purpose in that it lifted the impedimenta standing in way of the Secretary's enforcement of the Act due to the reluctance of employees to request action against their employers. This is not an action for statutory damages. This is an action in equity seeking an injunction and restitution.
In Jones v. American Window Cleaning Corporation, 210 F.Supp. 921, 923 (E.D.Va.1962), the Court said: "While we think it clear from the reading of the statute that it is no longer incumbent upon the Secretary of Labor to obtain written requests from employees when an action is maintained under § 217, we need only to look at the legislative history to prove the point."
In Wirtz v. W. G. Lockhart Construction Co., 230 F.Supp. 823, 828 (N.D.Ohio 1964), the Court said: "In other words, the Secretary (under Section 217) may collect the unpaid wages for all of the employees and such action is not dependent upon his first having obtained an employee request to so proceed." See, also, Goldberg v. M & K Manufacturing Company, Inc., 230 F.Supp. 151 (D.Col.1962).
The 1961 amendments to the Act were passed to make back wages improperly withheld more easily recoverable without regard to individual employees' requests
Furthermore, in Wirtz v. W. G. Lockhart Construction Co., supra, 230 F. Supp. at 829, the Court said: "the restrictions relied upon by the defendant regarding the tolling of the statute of limitations are by statute made applicable to Section 16(c) actions but are not made so applicable in Section 17 actions."
In the instant case, plaintiff attached to its Complaint a list of sixty-eight employees, the period during which they were employed, and the gross amounts of back wages found due the said employees. However, as stated in Lockhart, supra, 230 F.Supp. at 829: "the Secretary of Labor is not burdened with § 16(c) restrictions when seeking injunctive relief, and that the tolling of the statute of limitations in the latter type action is not dependent upon the Secretary merely listing the names of all of the employees involved in the original complaint."
Accordingly, motion of plaintiff to strike defendants' second and third defense will be granted.
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