The potters herald. [volume] (East Liverpool, Ohio) 1899-1982, 1940-03-21
EmploYe MdY Sue
Continued From Page One)

wages or overtime) that the employer,
after a Federal official computed the
overtime, offered to pay that same
We note that Section 16 (a)
imposes criminal penalties for wilful
violations, while Section 16 (b) pro-
vides for the recovery of the addition
al monies for any violation, wilful or
not" (The opinion here cited a Fed
eral Act by which seaman may re-
cover extra wages if the employers
failure to pay is without sufficient
cause") "No such limitation is found
in the (Wage and Hour) Act we are
considering here" Justice Desmond
continued, "and we cannot write one
in. Apparently the failure to pay the
inundated overtime gives rise to Ii
ability under 16 (b) forthwith. The
defense is therefore insufficient. The
offer of judgment included in this al
legged defense is technically insufficient
but defendant may have provision in
the order to be entered hereon per-
mitting service of an amended offer"
Another defense set forth that Mary
Lincoln Candies employed Emerson
under contract, made before enact
ment of the Wage-Hour Law and eX-
tending thereafter, whereby he was to
devote such time as was necessary to
the duties of a stationary engineer at
fixed weekly wage. Justice Des-
mond held that :. "These allegations
are somewhat indefinite i. but | do
not think that, in any event, the mere
allegation that the relationship be-
tween the parties was contractural
constitutes defense to such a suit as
this. Assuming that the employe was
one of the class and engaged in the
occupation covered by the statute :.
| do not see how the existence of a
contract in itself prevents the applica-
ton of the statute >. 1t has been the
law for many years {. that statutes
regulating hours of labor may be up
held as an exercise Of police power
even though they to an extent pre-
vent the free making of contracts OF
contravene existing contracts"
Other defenses alleged that Emer.
son was engaged in an executive OF
professional capacity, and for thai
reason was exempt from the operation
of the Act. Justice Desmond decided
that "whatever the facts may turr
out to be, these defenses for pleading
purposes are sufficient" This means
the candy company may attempt tt
| tn hn To-
stationary engineer was an executive
or professional employe.
The candy company also contendet
that the New York State Supreme
Court in Erie County has no juris
diction over the suit because it is on
for penalty incurred under tn
laws of the United States, of whicl
suits the United States Courts hav
exclusive jurisdiction under Sectiol
, 256 of the United States Judicia
Code" On this Justice Desmond said
&c. In the statute we are consid
ering Wage and Hour Act) there i
an express provision that suits ma
, be brought 'in any court Of competen
jurisdiction and this provision (no
, precedents cited by defendant) cover
the point. This court is one 'havin
! power and authority at the time O
, acting to do the particular act tina
is, to pass on the particular matter
| in suit between these particular par
ties, and so, regardless of the ques
ton of penalty or not, it is clear tina
Y Congress has conferred on this Coul
jurisdiction to hear this cause. Prac
! tical reasons dictated such provision
. for it would be extraordinary for Cor
gress to order such suits, often fo
5 small amounts, to be heard by Fec
eral Courts only The only cas-
{ found which construes Section 16 %
| of the Federal Wage Hour Law hold
= that the municipal court of New Yor
= City has jurisdiction of suit like tn
: one before us The defense
| stricken out as insufficient"