The opinion of the court was delivered by: FORMAN
This action was brought by the plaintiffs against the defendant, Courtland Handbag Co., Inc., and the defendant, Benjamin Potash, the principal stockholder and manager of the Courtland Handbag Co., Inc., to recover from the defendants sums of money paid by the defendants to the plaintiffs as overtime compensation which the plaintiffs were forced to return to the defendants, together with an additional equal amount of liquidated damages, and reasonable attorney's fees and costs of the action, pursuant to Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216(b), hereinafter referred to as the Act.
The defendants move (1) to strike the complaint against both defendants on the ground that the complaint fails to state a cause of action; (2) to strike the complaint against defendant, Benjamin Potash, on the same ground; (3) for an order requiring the plaintiffs to furnish a bill of particulars.
In support of the first portion of their motion the defendants argue that the court has no jurisdiction to hear the case for the reason that there is no allegation of unpaid minimum wages nor a sufficient allegation of underpayment of overtime compensation and that the Act does not include "kickbacks", which are the bases upon which the complaint is founded. It is maintained by the defendants that the complaint is vague and obscure in that it fails to set forth the number of hours worked by, and the wages paid to, each of the plaintiffs in order to determine whether an unpaid deficiency exists.
The applicable sections of the Act are as follows:
"Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. 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, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C.A. § 216(b).
"No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce --
"(1) for a workweek longer than forty-four hours during the first year from the effective date of this section,
"(2) for a workweek longer than forty-two hours during the second year from such date, or
"(3) for a workweek longer than forty hours after the expiration of the second year from such date,
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." 29 U.S.C.A. § 207(a).
The amended complaint alleges "* * * the defendants employed the plaintiff for workweeks in excess of the applicable maximum under Section 7 of the Act, without properly compensating him for such excess hours at rates not less than one and one-half times the regular rates at which he was employed, in that the plaintiff was obliged to return and did return * * *, all of the overtime compensation received by him to the defendant, * * *". This allegation is made as to each plaintiff.