*2 prohibit industrial does not The Act Ga., Williamson, Atlanta, H.O. the adminis authorizes homework but plaintiff-appellant. adopt orders trator “regulating, Tisinger, Tisinger & Richard Tis- G. restricting, prohibiting or Carrollton, Ga., inger, Richard Hu- N. prescribed homework” industrial reasons, defendants-appel- Ga., Atlanta, bert, 211(d). Nor does pay U.S.C. § lees. at a forbid calculation WISDOM, Before GODBOLD RO- resulting wage rate, long so as the Judges. NEY, Circuit hourly rate the minimum is no less than overtime, applicable). set (plus We Judge: GODBOLD,Circuit margin portion of 29 C.F.R. out in the prescribing Act the em This is Fair Labor Standards data which § concerning seq., pre case, 201 et ployer U.S.C. to maintain and wages of a homeworker who assem- homeworker on each industrial serve light pull in employed.2 electric cords bled full, 1. (1) In some instances of units the same Name symbol identifying employee’s record, was less than the minimum eight-hour day, place or number if such is used work, any time, as worked was rec- or name on eight. principles same less as that ords. This apply in both situations. Security purposes. used for Social zip code, (2) address, required. Every (b) Home Items preserve payroll (3) shall maintain if under Date birth containing following respect lot of work: to each information and data with which work every industrial begun worker, worker, ployed by (excepting him those home- begun, given out or of such work 13(d) to whom section is turned Date on which work applies Act and those homeworkers work, worker, of such and amount Puerto Rico to whom Part 545 or on and worked Kind of articles chapter Virgin apply, 681 of this performed, operations chapter Islands whom Part 695 of this paid, applies) Piece rates : compa- hourly No assertion made that the rate. But she testified that on preserve many ny days, perhaps days, to maintain and failed most non, required shown, vel of it. Rather more than worked the hours theory claim is based on the that the claims to be entitled to be ac- cordingly, entries made the records failed to cor- at the minimum rate where rectly applicable actually worked and at overtime rates where *3 appellant, applicable. by which entries reflect the appellant reported number of hours that bones, to Reduced its bare the under- she had worked. pinning for her claim is that regulation, The places C.F.R. employer obligation to separate requires that “a handbook keep records, and maintain (to by employer obtained be the from by employees, overtime worked which Wage sup- and Hour the plied Division and obligation may discharged by not be worker) him to each transferring employee the burden kept for each homeworker. The infor- keeping of g., accurate e. Wirtz required mation by therein shall entered be Mississippi Corp., Publishers employer person the or the distribut- employer, The ing collecting homework on of behalf according appellant’s testimony to hav- such is each time work ing failed to record the actual to or received from a homeworker.” worked, recovery hours she she claims supplied appellant, Handbooks were to approximation on the basis of ac- put have examined those in evi- employer’s obligation tual hours. The to They day dence. each the keep may not be the basis for completed number of units liability in this instance. worked, hours and for each week the to- prior experience From company the “wages paid tal of As al- lot[s].” piece developed work norm of the ready noted, number assembled units home- which a handbook to entered be produce eight- worker could in an gives to, when it work hour and President Baker was from, receives work the homeworker. say keep to frank that he would not can, representative The course, a worker who found it neces- by physical inspection verify sary complete to work overtime to received, number of Appellant explained con- norm. that she expended sistently under-reported hours worked dependent upon the em- recognized because that the alterna- stating figure ployee’s to him a correct tive be of her the loss (subject gross expe- variations which correct, The came forward sub- with rience would indicate were not explaining req- below). employee stantial evidence how the matter discussed This acknowledges regularly uisite minimum had been exceeding eight formulated and that it was both achieva- hours worked not per day, or, ble and achieved its homework day where full less than a ployees. sev- reported, There was from which including persons doing witnesses, eral paid would cause her to regu- work as equal statutory exceed week, (v) each Hours worked Hours worked on each work lot of Wages each at in, week earned turned rates, regular piece (vi) Wages for each lot work pay in, due week for over- Extra each turned Security- (vii) Deductions for Social week, taxes, Total earned Security (v) (viii) payment wage Social Deductions taxes, by payment, covered each week: Co., Light Telephone & v. Western produce re- son did larly could and (S.D.Iowa, See F.Supp. Appellant’s units. quired number contrary River Lumber Caddo also Dollar v. only evidence admissible (W.D.Ark.1941). that she was own statement was her norm. meet the Company, able 255 F. Carolina Wirtz (M.D.N.C.1966), Supp. con- employer util trary demon- we decide but what required production is izes a may differ with how result strates enough impose employer lia alone case there was a In that facts. who, bility to an industrial change hourly piece job, under was “more theo- the court found of hours worked. states Most of the home- real.” retical recognize retain their understood subject permissible, to attain rates are *4 they employment must conform wage. hourly minimum ment of schedule, but no evidence There is they understood that should record being workers achieved norm was hours worked than would show no more general other volume. attainment known it have knew or should wise Most of the workers who testified had gener workers achievable was not attempt report correctly no made particular. There worker al or this were in- hours worked. handbooks evidence that was no adequate incomplete, and the entries reports quired entry false rough nothing more contained cal- appellant con rather culations made the homeworkers with person, supervisory no includ cedes that objective meeting pro- management ing Baker, the one-man requirements. duction The court found company, do so. ever told knew or reason to no evidence that There is encouraged any manner are was inaccurate. Those factors (unless falsely report to infer we were in the case before us. encouragement illegal improper Affirmed. norm, from the existence of mere do), no evidence which we decline ON PETITION FOR REHEARING knew or known that it should have AND FOR REHEAR- PETITION up perform unable ING EN BANC giving employer’s standard, in was false formation to conceal that PER CURIAM: on to hold The Petition for denied ease, panel Judge On narrow no facts member of this nor granted regular the court active service on having requested polled basis that that the Court be estopped profit rehearing (Rule could banc, from on en Federal wrong furnishing Appellate Procedure; own Rules false data employer. Walling Woodruff, 12) Fifth Circuit Rule the Petition (M.D.Ga.1942) ; Morten- En Banc denied.
Mary Nell Brumbelow v. Quality Mills, Incorporated and H. G. Baker, Individually and as President of Quality Mills, Inc.
462 F.2d 1324
5th Cir.1972Check TreatmentAI-generated responses must be verified and are not legal advice.