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MARSHALL v. BURGER KING CORP.

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK


February 24, 1981

Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
BURGER KING CORPORATION, Defendant

The opinion of the court was delivered by: SIFTON

JUDGMENT

This action came on for trial before the Court, the Hon. Charles P. Sifton, District Judge, presiding, and issues having been duly tried and a decision having been duly rendered in Memoranda and Orders dated December 9, 1980, and February 24, 1981, it is

 ORDERED, ADJUDGED AND DECREED that the defendant, its agents, officers, directors, servants, and employees be, and they hereby are, permanently enjoined and restrained from violating the provisions of sections 15(a)(2) and 15(a)(5) of the Fair Labor Standards Act of 1938, as amended, 52 Stat. 1060, 29 U.S.C. 201-219, hereinafter called the "Act," with respect to record keeping and pay to its Assistant Managers in the New York region of defendant's operations who are compensated below the weekly level of compensation set forth in the proviso to 29 C.F.R. 541.1(f), as from time to time amended, in the following manners:

 (1) Defendant shall not, contrary to sections 7 and 15(a)(2) of the Act, employ any such Assistant Managers longer than the applicable statutory maximum (40 hours) unless such employee receives compensation for his or her employment for such hours at a rate not less than one and one-half times the regular rate at which he or she is employed.

 (2) Defendant shall not, contrary to sections 11(c) and 15(a)(5) of the Act, fail to make, keep, and preserve adequate records with respect to such Assistant Managers and of their wages and hours of employment, as prescribed by the regulations of the Administrator of the Wage and Hour Division, United States Department of Labor, issued and from time to time amended pursuant to section 11(c) of the Act and found in 29 C.F.R. 516.

 (3) Defendant shall create, establish, and maintain an adequate and accurate record-keeping system designed to record the time spent by such Assistant Managers on production work.

 (4) Defendant shall not, contrary to sections 7 and 15(a)(2) of the Act, continue to withhold the payment of unpaid overtime compensation to the employees named in Exhibit A, which is annexed hereto and made a part hereof, and shall make the payment of unpaid overtime compensation to said employees in the amount of four thousand three hundred twelve dollars and eighty-eight cents ($ 4,312.88), plus interest as set forth in Exhibit A from the dates set forth therein.

 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that

 (5) defendant, under the supervision of the Secretary of Labor, shall make the payments set forth in paragraph 4 of this judgment by the delivery of separate certified checks to the representative of the U.S. Department of Labor, Wage-Hour Division, 159 N. Franklin St., Hempstead, N.Y. 11550, payable in the alternative to each of the employees set forth above, as follows: "Individual Employees, and/or Wage and Hour Division Labor," in the net amount due to each said employee after making legal deductions from the gross amount due listed opposite his or her name;

 (6) defendant shall make all payments directed in paragraph 4 above within thirty (30) days after entry of this judgment.

 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that

 (7) any net sums which, within one year after payment of all sums is required to be paid to the employees set forth in Exhibit A to this judgment, have not been distributed to the employees entitled thereto or to their personal representatives because of inability of either the defendant or plaintiff to locate the proper person or because of such person's refusal to accept such sums, shall be deposited with the Clerk of Court who shall forthwith deposit such money with the Treasurer of the United States pursuant to 28 U.S.C. ยง 2041.

 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that

 (8) so much of the complaint herein as seeks relief with respect to the wages, hours, and records maintained by defendant with respect to Assistant Managers in such area of defendant's operations compensated above the weekly level of compensation contained in the proviso of 29 C.F.R. 541.1(f) be, and it hereby is, dismissed.

 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that

 (9) the costs of this action shall be taxed by the Clerk against the defendant.

 The Clerk is directed to mail a copy of the within Judgment to all parties.

 TABLE

19810224

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