Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Jacobs, S.j.a.d.
[4 NJSuper Page 286] Plaintiff filed a complaint for recovery of overtime wages under the Fair Labor Standards Act (29 U.S.C.A. , §§ 201 et seq.); on the trial date and prior to the introduction of any testimony, the defendant moved for dismissal asserting (1) that the plaintiff had not sufficiently answered the defendants' demand for particulars, (2) that he was an executive, exempt from the act under section 13(a)(1) (29 U.S.C.A. , § 213), (3) that he was also exempt under section 13(b)(1) as an employee with respect to whom the Interstate Commerce Commission had power to establish maximum hours of service under the Motor Carrier Act, and (4) that recovery was barred under the terms of section 9 of the Portal-to-Portal Act of 1947 (29 U.S.C.A. , § 258); the trial court dismissed the plaintiff's action on the first and
second grounds; and this appeal is from the judgment of dismissal.
Plaintiff's complaint, filed in 1946, alleged that defendants were engaged in the business of transporting passengers and goods in interstate commerce and that he had been employed by them as a bus dispatcher. It further alleged that he had engaged in overtime work for which he had not been paid in accordance with the terms of the Fair Labor Standards Act and claimed damages aggregating in excess of $15,000. The defendants filed a demand for particulars seeking, among other matters, a description of the plaintiff's duties and a statement of the specific dates and hours of the alleged overtime work. A bill of particulars was furnished which set forth his hours of work, weekdays, Saturdays and Sundays, and that his duties consisted of checking buses and drivers, ordering additional equipment, performing general supervisory work, attending to passengers' complaints and attending at the bus inspection pit. The defendants then moved for further particulars and a supplemental bill was furnished setting forth that the plaintiff worked overtime "every Saturday and Sunday, every evening before a holiday and on the holiday itself" and listing the aggregate number of overtime hours per week which he allegedly worked between 1939 and 1944.
The defendants then moved for a nonsuit on the ground that their demand for particulars had not been adequately answered. By order dated December 19, 1946, the lower court denied the motion for nonsuit, directed that the plaintiff be confined at the trial to the particulars furnished, and further directed that the plaintiff thereafter furnish such additional particulars as might come into his possession, and that if he failed to furnish additional particulars which came into his possession he would be barred at the trial "from using the same as evidence." On January 31, 1947, the defendants filed their answer.
On February 5, 1948, the lower court entered an order requesting the Secretary of Labor of the United States to produce at the trial, all of the records of his department pertaining
to the plaintiff's employment by the defendants, including his classification under the Fair Labor Standards Act. In response, the Secretary of Labor addressed a letter to the trial judge enclosing a certificate from the Acting Administrator of the Wage and Hour and Public Contracts Divisions of the Department of Labor, which indicated that the plaintiff was included within those listed as exempt under section 13(a)(1) in the inspection report on file with the Wage and Hour Division.
On November 9, 1948, the case was called for trial and the defendants moved for dismissal. The motion was resisted by counsel for the plaintiff, who referred to the sufficiency of the particulars furnished, contended that the issue of whether the plaintiff was employed in a bona fide executive or administrative capacity was a factual one to be decided on the evidence to be introduced at the trial and pointed out that the certificate of the Secretary of Labor was not in evidence and the defendants' motion was premature. Nevertheless, the court granted the motion and entered its order dated November 9, 1948, dismissing the plaintiff's action because of the plaintiff's failure to furnish sufficient particulars and on the additional ground that he was employed in a bona fide executive capacity within the statutory exemptions. The order states that the parties had "stipulated in open court that the issues of law be disposed of by this court before a jury be called and testimony taken" but no evidence of such stipulation is embodied in the appendices or briefs of the parties.
In Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680, 687, 90 L. Ed. 1515, 1522 (1946), petition for rehearing denied, 329 U.S. 822, 91 L. Ed. 699 (1946), the Supreme Court pointed out that although an employee asserting a claim for overtime wages under the Fair Labor Standards Act has the burden of proving that he performed work for which he was not properly compensated, the remedial nature of the act "and the great public policy which it embodies,
however, militate against making that burden an impossible hurdle for the employee." The available records are customarily in the possession of the employer, rather than the employee, and it is generally sufficient if the employee produces evidence from which the amount and extent of his work may be justly and reasonably inferred. See Anderson v. Mt. Clemens Pottery Co., supra; 42 Col. L. Rev. 355, 358 (1943). In Porter v. Poindexter , 158 Fed. 2d 759 (C.C.A. 10 th 1947), the court held the evidence to be adequate where the plaintiff testified that ...