Read v. Hooke

In an action pursuant to the Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, § 201 et seq.) for claimed unpaid overtime compensation, an additional equal amount as liquidated damages, and attorney’s fee for the prosecution of the action, judgment in favor of plaintiff and against defendant reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. Plaintiff was engaged to perform services in connection with the issuance of a weekly periodical, for which he was to be compensated the amount of $30 per week. The office hours of defendant’s establishment were between 9:00 a.m. and 5:00 p.m. on each day, from Monday to Friday, inclusive, of each week, one hour being allowed for luncheon, and from 9:00 a.m. to 12:00 noon on Saturdays. Sometime after plaintiff’s hiring, defendant’s general manager undeniedly told plaintiff that he was not required to work on Saturdays, and plaintiff never told defendant or the general manager that he had done any work at home or outside of the stated hours. Under the circumstances, it is our opinion that the employment did not include overtime work, and none of the work “was engaged in during the portion of the day with respect to which it was * * * compensable ” by express provision of contract, custom or practice. (Portal-to-Portal Act of 1947, § 2, subd. [b]; U. S. Code, tit. 29, § 252, subd. [b].) Nolan, P. J., Carswell, Adel, Sneed and Wenzel, JJ., concur.