12 N.W.2d 912 | Wis. | 1944
The city council had not by ordinance or resolution complied with either sec.
The plaintiff claims, (1) that he is entitled to receive pay for the three hours' overtime per day actually served; and (2) for the day's rest less than one in one hundred ninety-two hours that he did not get.
(1) On this point the case is plainly ruled by Vogt v.Milwaukee,
"An employee of the government who works for a period exceeding that prescribed by statute for a day's work, in the *619 absence of an express contract therefor or of any suggestion that payment received on the basis of the statutory day is not sufficient, cannot afterwards recover for the additional time. . . ."
The rule is of course otherwise where the right to recover for overtime is declared by statute, United States v. Post,
In notes in 25 A.L.R. 238, and 107 A.L.R. 713, the liability of employers for overtime, excluding governmental and municipal employees, under statutes merely fixing the hours constituting a day's labor, is treated, and cases are there cited and stated holding that the liability does not exist in absence of an agreement therefor.
In the Vogt Case, supra, a New York decision, McCarthyv. New York,
It is true that there are cases, O'Boyle v. Detroit,
(2) The plaintiff also claims that as his pay went on during his nights off he is also entitled to pay for the nights off that he was entitled to but did not get. But this is merely a claim for pay for overtime — a claim for pay for work done at times when the plaintiff was not obliged to work. If the plaintiff was not entitled to pay for the extra three hours a day that he worked when not obliged to, upon like reason he is not entitled *620 to pay for the nights worked when he was not obliged to. The provision of the statute for extra rest days for time served in emergencies has no application for no emergencies occurred.
The complaint also alleges that the plaintiff was illegally discharged because no charges were filed against him and sec.
By the Court. — The order of the circuit court is reversed, and the cause is remanded with direction to enter an order sustaining the demurrer.
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