150 F.2d 818 | 2d Cir. | 1945
This is an appeal from a judgment against an employer under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The defendant raises only two points: (1) That interest should not have been allowed upon the award; (2) that the amount of overtime was wrongly computed. The judgment was entered before the decision of the Supreme Court in Brooklyn Savings Bank v. O’Neil, 65 S.Ct. 895, which held that no interest ran upon an allowance for overtime; and the award must therefore be reduced by deducting the interest included. As' to the second point the defendant invokes the doctrine of Overnight Motor Transportation Co. Inc. v. Missel, 316, U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682, that, when an employee works a variable number of hours from week to week, his hourly wage for each week is to be found by dividing the total pay for that week by the number of hours which he worked in that week; and that his overtime is to be computed upon the dividend so obtained. The record at bar does not, however, contain the facts necessary to apply that doctrine. The case comes before us upon a stipulation which declares that “the matters set forth herein contain a statement of the record on appeal herein and shall act as a designation * * * of those parts of the record, proceedings and evidence included in the said record on appeal.” Among the “matters set forth” were findings of fact, of which the only ones relevant are that the “plaintiff’s employment contract with the defendant was for a basic 40 hour week”; and that for part of the period his “Weekly Wage” was $45, and for the balance, $47.50. Also among the “matters set forth” were certain facts which the parties agreed “were established at the trial,” of which the only relevant one was “that the plaintiff was engaged by the defendant under an express contract of employment to work . a basic work week of 40 hours per week, consisting of 5 days per week of 8 hours per day.” Finally, there was included a list of the hours during which the plaintiff worked for every day throughout the whole period; the total work hours for each week; and the total overtime for each week.
The defendant went outside the record in its argument and brief, and referred to some of the plaintiff’s testimony; but in view of the form in which the case comes before us, we cannot consider it All that is before us, is that the plaintiff worked a “basic work week of 40 hours”
An allowance of $200 will be made to the appellee’s attorney.
Judgment modified by striking out the award of interest, and adding an allowance to the appellee’s attorney of $200; and, as so modified, affirmed.