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WIRTZ v. MELOS CONSTR. CORP.

May 8, 1968

W. Willard Wirtz, Secretary of Labor, Plaintiff,
v.
Melos Construction a Corporation et al., Defendants


Weinstein, D.J.


The opinion of the court was delivered by: WEINSTEIN

WEINSTEIN, D.J.

The Secretary of Labor seeks to enjoin defendants, the Melos Construction Corp. ("Melos") and its president, Americo Melo, from violating the overtime and recordkeeping provisions of the Fair Labor Standards Act. 29 U.S.C. §§ 207, 211. Defendants concede that they have not complied with the Act, but insist that it is inapplicable because Melos is not "an enterprise engaged in commerce" within the meaning of the statute. For the reasons stated below, the injunction will be granted.

 Melos, a construction company with a yearly income of somewhat over half a million dollars, is engaged in constructing foundations for suburban homes. It does all its work on Long Island, New York. While its materials and supplies are obtained only from dealers located in New York, the dealers buy from out-of-state sources.

 The principal item purchased by Melos is locally prepared ready-mix concrete - a mixture of cement, sand, gravel, and water. About fifty percent of the cement used - valued at approximately $35,000 a year - is manufactured outside New York. In addition, about $10,000 a year is spent for other supplies - primarily steel and lumber - which originate outside New York.

 The question presented is whether the use of products worth about $45,000 a year which its suppliers purchase from outside the state brings Melos within the scope of the Fair Labor Standards Act. The answer turns on whether Melos' employees are "working on goods which have been moved in or produced for [interstate] commerce."

 The overtime provision, contained in section 207(a) of title 29, is applicable to an "enterprise engaged in commerce." It states, insofar as relevant:

 
"(2) No employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, and who in such workweek is brought within the purview of this subsection by the amendments made to this Act by the Fair Labor Standards Amendments of 1966-
 
* * *
 
for a workweek longer than forty hours . . .
 
unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

 Recordkeeping provisions apply to employers covered by section 207(a). 29 U.S.C. § 211(c).

 An "enterprise engaged in commerce" is defined by section 203(s) to include one whose employees are "working on goods that have been moved in or produced for commerce." It reads, in part, as follows:

 
"'Enterprise engaged in commerce or in the production of goods for commerce' means an enterprise which has employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that have ...

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