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COBI BROTHERS v. BRANCH MOTOR EXPRESS COMPANY (08/01/69)

CIVIL COURT OF THE CITY OF NEW YORK, TRIAL TERM, NEW YORK COUNTY 1969.NY.42721 <http://www.versuslaw.com>; 304 N.Y.S.2d 174; 60 Misc. 2d 835 August 1, 1969 COBI BROTHERS, PLAINTIFF,v.BRANCH MOTOR EXPRESS COMPANY, DEFENDANT Arthur J. Brothers for plaintiff. Jezer, Slade & Weiss (Irvin Rothfarb of counsel), for defendant. Harry T. Nusbaum, J. Author: Nusbaum


Harry T. Nusbaum, J.

Author: Nusbaum

 This action was instituted by the plaintiff to collect overtime wages allegedly due to him pursuant to the provisions of sections 206 and 207 of chapter 8 of title 29 of the United States Code more commonly known as the Fair Labor Standards Act, §§ 6 and 7; (U. S. Code, tit. 29, §§ 206, 207).

In defense thereof the defendant pleads a general denial and, as affirmative defenses, (1) that the plaintiff was employed in an executive and administrative capacity and as such comes within the exemptions set forth in section 13 of the act (U. S. Code, tit. 29, § 213), and (2) that this court lacks jurisdiction of the subject matter of the action.

The question of jurisdiction can be disposed of quickly. This court has jurisdiction to determine the question submitted. Section 16 of the act (U. S. Code, tit. 29, § 216) specifically states "Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." Accordingly it has been uniformly held that jurisdiction under the Federal statute lies in both the Federal and the State courts (Emerson v. Mary Lincoln Candies, 174 Misc. 353, affd. 261 App. Div. 879, app. den. 261 App. Div. 1044, affd. 287 N. Y. 577; Majewski v. Johnson Glove Co., 45 N. Y. S. 2d 419; Kerness v. Austin Burke, Inc., 188 So. 2d 879 [Fla.]: Tidewater Optical Co. v. Wittkamp, 179 Va. 545). The basic question presented is, of course, one of definition. What is an executive, or an executive or administrative employee? Section 541.1 of the Regulations and Interpretations of the Code of Federal Regulations, issued under the Fair Labor Standards Act by the United States Department of Labor, defines an executive employee as follows (Code of Fed. Reg., tit. 29, § 541.1):

"The term 'employee employed in a bona fide executive * * * capacity' in section 13(a)(1) of the Act shall mean any employee:

"(a) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; and

"(b) Who customarily and regularly directs the work of two or more other employees therein; and

"(c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and

"(d) Who customarily and regularly exercises discretionary powers; and * * *

" Provided, That this paragraph shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment, or who owns at least a 20-percent interest in the enterprise in which he is employed; and

"(f) Who is compensated for his services on a salary basis at a rate of not less than $100 per week (or $75 per week if employed in Puerto Rico, the Virgin Islands, or American Samoa) exclusive of board, lodging, or other facilities;

" Provided, That an employee who is compensated on a salary basis at a rate of not less than $150 per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all the requirements of this section."

Section 541.2 defines an "administrative employee" as any employee who, among other things, performs services or non-manual work directly related to management policies and who customarily and regularly exercises discretion and independent judgment and who performs only general supervision work along specialized or technical lines requiring special training, experience, or knowledge.

Section 541.116, entitled "Trainees, executive," states "The exemption is applicable to an employee employed in a bona fide executive capacity and does not include employees training to become executives and ...


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