JERTBERG, Circuit Judge:
The Secretary of Labor brought this action under § 17 of the Fair Labor Standards Act (Act of June 25, 1938, c. 676, 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq., 29 U.S.C. § 217)
The district court in its opinion explained the refusal to order payment of the back wages and overtime compensation:
The court then concluded that:
Appellant moved the district court to reconsider its refusal. The court did so, but still refused to order payment. In a supplemental opinion, the district court said that because the appellees' violations were not wilful, because the business was small so ordering payment of the back wages might prove a hardship for
The Secretary's appeal is well taken. We find the district court's reasons for refusing to issue the requested restraint inadequate. In regard to good faith, the district court itself found that the appellees "should have known that a substantial portion of their bakery products was being transported in interstate commerce." In any event, any lack of wilfulness on the part of these appellees does not justify freeing them from having to make restitution. Burk Builders, Inc. v. Wirtz, 355 F.2d 451 (5th Cir. 1966), affirming Wirtz v. Burk Builders, Inc., 17 WH Cases 109, 52 Labor Cases #31,726 (S.D.Fla.1964); Wirtz v. Miller, 226 F.Supp. 15 (E.D.N.C.1964); Wirtz v. Hartleys, Inc., 245 F.Supp. 101 (S.D. Fla.1965); See Wirtz v. English, 17 WH Cases, 52 Labor Cases #31,716 (D.Kan. 1965). Likewise, the small size of appellees' business and the possible hardship caused them by having to pay the withheld wages and compensation do not warrant refusing the restraint. Fortuna Broom Co. v. Wirtz, 379 F.2d 327 (5th Cir. 1967) affirming Wirtz v. Fortuna Broom Co., 17 WH Cases 293, 53 Labor Cases #31,785 (S.D.Tex.1966).
It must be remembered that restraining appellees from withholding the minimum wages and overtime compensation is meant to vindicate a public, rather than a private, right, and that the withholding of the money due is considered a "continuing public offense." Wirtz v. Jones, 340 F.2d 901 (5th Cir. 1965); Burk Builders, Inc. v. Wirtz, supra; Wirtz v. English, supra. The 1961 amendment of Section 17 (29 U.S.C. § 217) authorizing the restraint that the Secretary requests here had at least two purposes. First, the restraint was meant to increase the effectiveness of the enforcement of the Act by depriving a violator of any gains accruing to him through his violation. Second, the amendment was meant to protect those employers who comply with the Act from having to compete unfavorably with employers who do not comply. (Senate Report No. 145, 87th Cong., First Session, 1961; 1961 U.S.Code Cong. & Admin. News 1620 at 1658-1659). Those public purposes can be fulfilled in this case only by restraining the appellees from further withholding the unpaid compensation.
In addition, the amendment made to Section 16(b) (29 U.S.C. § 216(b))
The judgment of the district court, insofar as it denies prayer for wage relief, is reversed, and the cause is remanded to the district court with instructions to enter an injunction restraining appellees from further withholding the minimum wages and overtime compensation found to be due for past and present employees.