Wirtz v. Lieb

• Decision Date: 14 September 1966
• Docket Number: No. 8454.,8454.
• Citation: 366 F.2d 412
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. William C. LIEB, Jr., doing business as AAA Exterminators, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

366 F.2d 412 (1966)

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. William C. LIEB, Jr., doing business as AAA Exterminators, Appellee.

No. 8454.

United States Court of Appeals Tenth Circuit.

September 14, 1966.

William Fauver, Washington, D. C. (Charles Donahue, Bessie Margolin and Robert E. Nagle, Washington, D. C., with him on brief), for appellant.

Frank D. McSherry, McAlester, Okl., for appellee.

Before MURRAH, Chief Judge and HICKEY and JONES^*, Circuit Judges.

MURRAH, Chief Judge.

This is a conventional wage and hour case in which the trial court found from creditable evidence that the employerappellee is engaged in the pest control business with four places of business in Oklahoma and three in Texas; that he maintains an office in McAlester, Oklahoma, where employees "as a regular part of their duties receive daily reports, service contracts, payments on account and other records and correspondence from the other places of business, including those in Texas, and similarly prepare and mail or otherwise send to other places of business, including those in Texas, service tickets, service contracts, accounts receivable, records, parts and other records and correspondence."

The court held these activities constituted engaging in commerce within the meaning of the Fair Labor Standards Act and that the employees so engaged were not exempt from the minimum wage, overtime, record keeping requirements of § 11(c) of the Act, i. e. Act of June 25, 1938, c. 676, 52 Stat. 1060, as amended; 29 U.S.C. § 201 et seq.; and see 29 C.F.R. 1516.2; that no record was kept of the hours worked and the hourly wage paid any employee engaged in activities subject to the Act. The court accordingly concluded that the Secretary was entitled to a § 15(a) conventional injunctive decree but denied the claim for minimum wage and overtime compensation apparently for insufficiency of the proof to support the claim of the twenty-four employees in whose behalf the suit was brought.

The employer does not now seem to contend that the described activities are not subject to the Act. Indeed, as the trial court found, he has now undertaken to comply with the requirements of the Act with respect to the employees found to be covered thereby. In any event, no appeal is taken from the injunctive decree based on coverage. And see Wirtz v. First National Bank & Trust Company, et al., July Term, 1966, 10 Cir., 365 F.2d 641.

The established rule in cases of this kind is that "the burden rests upon the employee to show that he performed overtime work for which he was not properly compensated and to show the extent and amount of such work as a matter of just and reasonable inference. When the employee proves that he did in fact perform overtime work for which he was not properly compensated and produces sufficient evidence to show the extent and amount of such work as a matter of just and reasonable inference, the burden shifts to the employer to come forward with evidence of the precise amount of the work performed or with evidence to negate the reasonableness of the inference to be drawn from the evidence of the employee. And if the employer fails to produce such evidence, it is the duty of the court to enter judgment for the employee, even though the amount be only a reasonable approximation." Mitchell v. Caldwell, 10 Cir., 249 F.2d 10, 11, and cases cited.

The unpaid minimum wages and overtime compensation for the twenty-four employees were computed by a wage and hour investigator who testified that in arriving at the hourly rate paid an employee, he took the basic work week of an employee as being forty hours and from records for that and preceding weeks determined the hourly rate of each individual employee, i. e. whether $1 per hour or $1.15 per hour. He computed unpaid minimum wages due each employee based upon the difference between the rate paid and the statutory minimum rate applicable at the time the wages were paid. If the payroll record showed that a particular employee was paid in excess of his payroll...