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July 16, 1986

WILLIAM E. BROCK, Secretary of Labor, United States Department of Labor, Plaintiff,

The opinion of the court was delivered by: DUFFY



 Plaintiff, William E. Brock, Secretary of Labor ("the Secretary"), United States Department of Labor ("Labor Department"), brings this action against defendant, Judith Wilamowsky, doing business as Continental Word Processing ("CWP"), alleging a willful violation of the overtime compensation and recordkeeping provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 201 et seq. (1982). Specifically, the Labor Department claims violations of sections 207, 211, 215(a)(2) and (a)(5). The Secretary seeks liquidated damages and back wages for defendant's temporary word processor employees from June 1, 1982 until the present and a permanent injunction restraining the defendant from violating the above sections. *fn1" Plaintiff moves for a partial summary judgment pursuant to Fed. R. Civ. P. 56(a), and defendant cross-moves for summary judgment. If defendant is found liable for backwages, the parties have agreed that the total amount due and owing defendant's employees in overtime compensation would be $75,797.68.


 CWP is a temporary employment agency which provides word processing services to its clients on a 24 hour, round-the-clock, seven-days-a-week basis. For the purposes of this litigation, the parties agree that the temporary word processors are employees within the meaning of Section 3(e)(1) of the Fair Labor Standards Act. 29 U.S.C. 203(e)(1) (1982).

 CWP's main office is open and its full-time staff on duty, Monday through Friday, from 9:00 a.m. to 5:00 p.m. CWP receives calls from clients requesting temporary word processors for particular days and times. CWP keeps lists indicating an employee's level of skill and hours of availability. CWP's full-time employees, called counselors, are responsible for contacting the temporary employees to see if they are available for specific jobs. Between 200 and 300 word processors are employed by CWP per week. During any given workweek, a word processor may work for a number of different clients, and may work an unspecified number of hours during one or more of the following work periods:

 Day: 8:00 a.m. to 5:00 p.m.;

 Evening: 5:00 p.m. to 12:00 midnight; and

 Night: 12:00 midnight to 8:00 a.m..

 Word processors have the option of working different time periods from one day to the next and are not required to accept a particular job. The defendant allows that, "... it is the individual word processor, not the agency, who controls when and how many hours he works." Defendant's Reply to Plaintiff's Second Memorandum of Law in Support of Plaintiff's Motion for Partial Summary Judgment, and to Plaintiff's Opposition to Defendant's Cross-Motion for Summary Judgment at 9 (hereinafter "Defendant's Reply Memo"). Thus, the number of hours and the time periods worked may vary from day to day and week to week. The defendant pays its temporary word processors by the hour at a differing rate depending on which of the three time periods the employee works. The pay scale, per hour, in each of the time periods is as follows: Word Processor 8 to 5 5 to 12 midnight 12 midnight to 8 a.m. Beginner $ 10 $ 13 $ 16 Intermediate 11 14 17 Advanced 12 15 18

 The 5:00 p.m. to midnight pay rate is one and a quarter times the day rate. The midnight to 8:00 a.m. rate is one and a half times the day rate. If a word processor works into a period of the day for which the pay rate is different, he or she is paid for those hours at the rate for that period or at the rate for the period immediately preceeding, whichever is higher.

 Both parties agree that any employee who works over forty (40) hours in a workweek is entitled to overtime pay and that the overtime pay should be one and one-half times the "regular rate" of pay as required by 29 U.S.C. § 207(a)(1). The parties disagree, however, as to how the regular rate of pay is to be determined.

 Plaintiff also argues that CWP's recordkeeping practices do not comply with the requirements of 29 U.S.C. §§ 211(c) and 215(a)(5) as implemented by 29 C.F.R. §§ 516.2(a) and 516.7.

 In May, 1984, the Labor Department conducted an investigation into CWP's recordkeeping practices and found that neither CWP's employee time sheets nor its computerized records indicated weekending totals for the hours worked per week. Nancy K. Lipson Affidavit, PP 1, 16 and 17. After CWP was informed that its recordkeeping forms were inadequate, it redid its computer program and since September 1984, has calculated weekending totals. Additionally, the defendant has used its old timesheet records to calculate the weekending totals and possible overtime due for all weeks back to June, 1982 pursuant to the Labor Department's request. Carol Chen Affidavit, February 18, 1986, P 4, Judith Wilamowsky Affidavit, February 21, 1986, PP 12 and 13.


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