Joseph G. Moretti, Inc. v. Boogers, 23460.
| Decision Date | 07 April 1967 |
| Docket Number | No. 23460.,23460. |
| Citation | 376 F.2d 27 |
| Parties | JOSEPH G. MORETTI, INC., and Nat G. Harrison Overseas Corporation, Appellants, v. William J. BOOGERS, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lucien G. Woodard, Miami, Fla., Henry L. Newell, Balboa, Canal Zone, for appellant.
David de C. Robles, Woodrow deCastro, DeCastro & Robles, Balboa, Canal Zone, for appellee.
Before GEWIN, COLEMAN, and GOLDBERG, Circuit Judges.
This was an action by a former employee against his former employers for overtime compensation under the Fair Labor Standards Act, 29 U.S.C.A. § 216 (b),1 claiming overtime compensation for all time worked over forty hours per week from January 16, 1963 through September 30, 1964. The detailed facts appear in the opinion of the Court below, reported at 247 F.Supp. 981 (1965). We, therefore shall not reiterate the facts here. Judgment was entered for the employee in the amount of $3,475.88, plus costs and attorney's fees in the sum of $1,700. Because of the errors in computation hereinafter set forth the judgment is vacated and remanded for a recomputation to be made consistently with the standards here announced.
From January 16, 1963, until May 8, 1963, the claimant was employed at a weekly salary of $100. From May 9, 1963, until September 30, 1964, the weekly salary was $110. The employer kept no hourly time sheet, but the employee kept a personal diary of the time worked each week, including Saturdays.
The first error committed by the Court below was that it divided forty hours into these weekly wage rates and thereby fixed a base rate of $2.50 per hour for the period expiring May 8, 1963, and $2.75 per hour thereafter. The employee's work week actually fluctuated from thirty-two to fifty-seven hours. It is undisputed that no hours were agreed upon in the employment contract. It was standard procedure to work on Saturdays. Obviously, since no forty hour work week was agreed upon, the rule of Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948) is controlling:
"Where there are no overtime premium payments the rule for determining the regular rate of pay is to divide the wages actually paid by the hours actually worked in any workweek and adjudge additional payment to each individual on that basis for time in excess of forty hours * * *."
See also Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942), in which it is pointed out that under this method the employee's regular hourly rate of pay will vary from week to week. See also the Interpretative Bulletin to 29 C.F.R. § 778.114. The base hourly rate of pay and time for this employee, in excess of forty hours per week, if any, must be recomputed in accordance with these principles.
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...be included as payable overtime hours unless these unscheduled hours were actually worked by a Plaintiff. Cf. Joseph G. Moretti, Inc. v. Boogers, 376 F.2d 27, 28 (5th Cir.1967) ("We especially point out that overtime for holidays ... is due only for that time in any particular week in which......
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...F.2d 1206, 1207 n. 1 (5th Cir.1976) (per curiam); Mumbower v. Callicott, 526 F.2d 1183 (8th Cir.1975); Joseph G. Moretti, Inc. v. Boogers, 376 F.2d 27, 28 (5th Cir.1967) (per curiam); Rigney v. Wilson & Co., 61 F.Supp. 801, 803 (S.D.W.Va.1945). See generally 4 FRES, Wage and Hour Laws §§ 29......
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...at bar and not be far afield. Authorities stating that meal periods are not generally considered work time are: Joseph G. Moretti, Inc. v. Boogers, 376 F.2d 27 (5th Cir. 1967); Rapp v. United States, 340 F.2d 635 (Ct.Cl.1964); Erickson v. City of Waltham, 2 Mass.App. 436, 314 N.E.2d 139 (19......
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...an hourly wage rate lower than the minimum wage, as it does in this case. This second factor also distinguishes Joseph G. Moretti, Inc. v. Boogers, 376 F.2d 27, 28 (5th Cir.1967), Rau v. Darling's Drug Store, Inc., 388 F.Supp. 877, 883-84 (W.D.Pa.1975); Keen v. Mid-Continent Petroleum Corp.......
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...Oldsmobile, Inc. , 538 F.2d 1206 (5th Cir. 1976) (district court correctly applied regulation); Joseph G. Moretti, Inc. v. Boogers , 376 F.2d 27 (5th Cir. 1967) (district court incorrectly applied regulation). Also see Garza v. Smith Int’l, Inc. , 2011 U.S. Dist. LEXIS 10010 (S.D. Tex. Feb.......
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Wages, Hours, and Overtime
...Oldsmobile, Inc. , 538 F.2d 1206 (5th Cir. 1976) (district court correctly applied regulation); Joseph G. Moretti, Inc. v. Boogers , 376 F.2d 27 (5th Cir. 1967) (district court incorrectly applied regulation). Also see Garza v. Smith Int’l, Inc. , 2011 U.S. Dist. LEXIS 10010 (S.D. Tex. Feb.......
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Wages, hours, and overtime
...Oldsmobile, Inc. , 538 F.2d 1206 (5th Cir. 1976) (district court correctly applied regulation); Joseph G. Moretti, Inc. v. Boogers , 376 F.2d 27 (5th Cir. 1967) (district court incorrectly applied regulation). Also see Garza v. Smith Int’l, Inc. , 2011 U.S. Dist. LEXIS 10010 (S.D. Tex. Feb.......
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Wages, Hours, and Overtime
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