Shain v. Armour & Co.

• Decision Date: 28 August 1941
• Docket Number: No. 256.,256.
• Citation: 40 F. Supp. 488
• Court: U.S. District Court — Western District of Kentucky
• Parties: SHAIN v. ARMOUR & CO.

40 F. Supp. 488

SHAIN v. ARMOUR & CO.

No. 256.

District Court, W. D. Kentucky, Louisville Division.

August 28, 1941.

Cohen, Fisher & Williams, of Louisville, Ky., for plaintiff.

Bruce & Bullitt, of Louisville, Ky., for defendant.

MILLER, District Judge.

This action was brought by the plaintiff Alfred C. Shain on behalf of himself and all others similarly situated against the defendant Armour and Company under the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201 through 219. Recovery is sought for overtime wages alleged to be due under Section 7(a) of the Act, 29 U.S.C.A. § 207(a). The defendant has moved to strike from the complaint as amended all allegations and references to other employees "similarly situated", contending that the statute does not authorize such a class suit under the conditions herein existing. No other employees are specifically named in the amended complaint, and no allegations as to the specific amount of overtime employment are made with reference to any employee other than the plaintiff Shain.

The question is controlled by Section 16(b) of the Act, 29 U.S.C.A. § 216(b). This provides that any employer who violates the provisions of the Act pertaining to maximum hours shall be liable to the employee or employees affected in the amount of their unpaid overtime compensation, and an additional equal amount as liquidated damages. It then provides "action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated." Defendant contends that this statutory provision must be construed in accordance with generally accepted principles applicable to class suits, which means that class suits are not authorized where the parties sought to be represented have claims which are distinct and a subject of an independent suit, even though there may be a common question of law involved. Thomas v. Kentucky Title & Security Co., 156 Ky. 260, 160 S.W. 1037; Batman, Jr., v. Louisville Gas & Electric Co., 187 Ky. 659, 220 S.W. 318; Garfein v. Stiglitz, 260 Ky. 430, 86 S.W. 2d 155; Bickford's, Inc. v. Federal Reserve Bank of New York, D.C.N.Y., 5 F.Supp. 875; Elston v. King County, 178 Wash. 210, 34 P.2d 906; Society Milion Athena, Inc. v. National Bank of Greece, 281 N.Y. 282, 22 N.E.2d 374. Those cases were decided in accordance with familiar equity practice as codified by state statutes or Equity Rules, 28 U.S.C.A. following section 723 Appendix. Such procedure is not controlling in the present case, which is governed by a Federal statute differently worded and evidently intended by its wording to be much broader in scope. The Federal statute authorizes an employee to sue for himself "and other employees similarly situated." It is very comprehensive and inclusive; it contains no restrictions other than that the other employees be similarly situated. To read into it the restrictions claimed by the defendant to exist would for all practical purposes completely nullify the provision. It is of course true, as the defendant contends, that many differences exist between the plaintiff and other employees of the defendant even though engaged in the same type of work, such differences being as to the time worked, wages actually due, and hours of overtime involved. But such differences merely mean that their positions and claims are not identical; it does not follow that they are not similar. Employees may be similarly situated without being identically situated. The evident purpose of the Act is to provide one law suit in which the claims of different employees, different in amount but all arising out of the same character of employment, can be presented and adjudicated, regardless of the fact that they are...