MITCHELL v. DEMARIO JEWELRY
Legal provision: Fair Labor Standards
Argument of Bessie Margolin
Chief Justice Earl Warren: Number 39, Mitchell, Secretary of Labor, Petitioner versus Robert DeMario Jewelry Company.
Ms Bessie Margolin: Mr. Chief Justice, Your Honor.
This case involves the section of the Fair Labor Standards Act which makes it unlawful for any person to discharge or, in any other manner, discriminate against any employee because he has filed a complaint instituted a cause to be instituted any proceeding under or related to the Act.
The section is quoted on page 2 of petitioner's brief.
The issue is with respect to the scope of the Court's power to restrain violations of this section.
The question turns on the meaning of the jurisdictional language of Section 17 of the Act, which is also quoted on pages 2 to 3 of the petitioner's brief, which provides that the District Courts shall have jurisdiction for cause shown to restrain violations of Section 15 as a proviso in -- to that section which I'll show yet to you later but that -- since that was not the basis of the Court of Appeal's decision, I will defer reference to that until after meeting the grounds on which the decision below rested.
The facts, the pertinent facts are not in dispute and as substantially as they were found by the trial court.
Immediately after service of the complaints on the respondents for the recovery of wages due some named employees, respondent and respondents who are the DeMario Corporation and Robert DeMario individually who's virtually the sole owner of the corporation and one of the office -- offices of the corporation.
The respondents immediately set out on a -- embarked on a course of discrimination against the employees in whose name these complaints were filed.
And by changing their seating arrangements and taunting them in various ways and assigning them less desirable work and other things of that nature within two weeks, all three of the employees had been discharged.
The trial court found that all three of these employees were relatively long-term employees.
Two of them in particular had worked continuously for respondents longer than most, if not all the other employees.
There have never been any complaints about their work.
And one who had worked the -- continuously for respondents for over three years were admittedly above average.
And the trial court found that none of them would have been laid off had it not been for the filing of these suits or -- or if they have been laid off, they would long since had been reinstated.
The trial court concluded that this conduct clearly constituted a violation of Section 15 (a) 3, that the evidence was so clear and convincing that the Secretary was entitled to an injunction to restrain respondents from discriminating against the said employees and also to a mandatory order requiring respondents to reinstate them.
However, the Court declined to grant the Secretary's request for reimbursement for loss of wages resulting from the unlawful discharges.
The Court noted that the question of whether it had jurisdiction to order such reimbursement had been raised but that it said it was not necessary to rule on that question because in the exercise of its discretion, it would -- it would decline to order reimbursement.
But it made no -- no findings as to mitigating circumstances and gave no reason for so exercising its discretion.
The Secretary appealed from the denial of the reimbursement and the respondents cross appeal from the order for reinstatement.
The Court of Appeals affirmed sustaining the trial court in both respects, holding that there was authority to order reinstatement but that there was no corresponding authority to order reimbursement.
And because of its ruling that there was no power, the Court of Appeals said it was unnecessary to reach the question whether the trial court had abused its discretion in declining to order the reimbursement.
Justice Potter Stewart: Isn't it also true that the Court of Appeals said, for not reaching the question of discretion that if it should have to reach that question, the record before was insufficient?
Ms Bessie Margolin: Well, they said that not enough of it had been printed under the Court's rules of -- of -- redesignated only the findings of the Court to printing.
Respondent could have crossed designated and didn't, and the Court said, “Well, if they had to reach that question, they -- they can, of their own motion in that Court, order more of the record printed,” So they -- they didn't reach that question at all.
If the Court of Appeals was wrong, the case probably would have to go back for consideration of that question.
Justice Potter Stewart: We don't have any record here.
Ms Bessie Margolin: No, we have nothing here but the printed record.
The sole question here is whether the Court has any power --
Justice Potter Stewart: Has power.
Ms Bessie Margolin: -- to order.
The Fifth Circuit explicitly repudiated the Second Circuit's earlier decision in 1944 Walling v. O'Grady where the Second Circuit had held that the reimbursement power was a necessary power adequately to carry out the ex prohibition against a discriminatory discharge.
The Fifth Circuit reasoned that the reimbursement remedy is unavailable unless expressly conferred by or necessarily implied from a specific congressional enactment.
Now, it's the Government's position that the Second Circuit's decision in O'Grady was clearly correct, was and still is clearly correct, and that the Fifth Circuit simply ignored the legislative purpose of this statutory prohibition of discrimination and ignored also our -- applied just the opposite rule to the fundamental principle of statutory construction which this Court has consistently followed in construing comparable enforcement provisions of other regulatory statutes.
The principle is that if a court's equity jurisdiction is invoked to restrain violations or to enforce compliance with a regulatory statute, its inherent equity -- equitable powers are available to effectuate legislative purposes and policy unless the statute expressly or by necessary inference provides otherwise.
Now, if time will not permit going in to all the decisions of this Court and the various distinctions that respondents undertake to make in those decisions, Porter v. Warner and the Phelps Dodge decision of course are the ones that state this principle most explicitly.
Justice William J. Brennan: Ms. Margolin --
Ms Bessie Margolin: And --
Justice William J. Brennan: -- how would you measure that?
How would you measure that?
Ms Bessie Margolin: It measure damages very much the way they do under the National Labor Relations Act.
Justice William J. Brennan: That is --
Ms Bessie Margolin: That is --
Justice William J. Brennan: (Voice Overlap) --
Ms Bessie Margolin: -- it's not -- it's what -- what actual loss they suffer.
In other words, there might be mitigation of damages --
Justice William J. Brennan: Yes.
Ms Bessie Margolin: -- if the employees had secured any employment in the interim.
I think some of them -- one of them at least did secure some and one of them wouldn't have been working anyway.
Another one, the oldest in one -- oldest in employment, Mrs. Duke had tried for the full year to get employment and was unable to get any employment.
And they're going outside of the printed records for that, but I don't believe it will be denied that she so testified.
Justice Charles E. Whittaker: Ms. Margolin, (Inaudible) is it not the common law allow to an employee unlawfully discharged his own individual action for damaging?
Ms Bessie Margolin: Well, the law isn't very clear on that.
The Court's had found that -- that the employees do not -- certainly don't have a right under this Act.
Justice Charles E. Whittaker: No, no, not only this Act but doesn't that spoke us up more sharply the question whether Congress, by this Act, created such a right in the light of the fact that such a right already existed in the employee himself at common law?
Ms Bessie Margolin: I don't think the law is too clear on that and certainly has not been settled that this gives him -- gives him any such right because all the decision so far, most, I think, except for one, has said that he -- the statute does not give him such right.
And I think it's -- it's some quite -- there's some question as to whether he has the right at common law.
But, apart from where they're not -- the employee has that right, we think that the -- has ancillary to an action to restrain violations of this section.
It is a necessary adjunct to the restraining of any such violation.
And certainly, it is something inherently within the equity powers of the District Court's unless Congress has explicitly deprived the Court so.
Justice Charles E. Whittaker: Can I ask you (Inaudible) in this recovery of damages or wrongful discharge, then for the recovery of back pay while -- or I mean by that unpaid compensation which Section 17 expressly precludes the Court from awarding to the --
Ms Bessie Margolin: Yes.
Justice Charles E. Whittaker: -- Government --
Ms Bessie Margolin: Yes.
Our -- our point is that --
Justice Charles E. Whittaker: -- in a -- on a -- to the employee in action by the Government?
Ms Bessie Margolin: Our point is that it is -- it is something quite different from that, that the proviso in Section 17 was specifically and deliberately limited to recovery of unpaid wages under Section 6 and 7 of the Act.
And that the reason it was so limited was because simultaneously, when that proviso was put in, in 1949, simultaneously, Congress enacted Section 16 (c) of the Act which gave the administrator or the Secretary authority to sue on behalf of employees for unpaid wages.
This is the first time the Secretary was given that express authority.
Prior thereto, the Court's had held that the Secretary could recover unpaid wages in an injunction action.
Congress enacted 16 (c) which puts certain limitations on the right -- on that right.Congress said he could bring this action at the -- upon the written request of the employees, only on written request and only if there was no unsettled question of law involved.
So it put the proviso in Section 17 in corresponding language obviously with the intent that if the Secretary was going to bring action on behalf of employees for wages, he should proceed under Section 16 (c) under the conditions and limitations of 16 (c) but they explicitly recognized that he could bring both the injunction action and a 16 (c).
Well, 16 (c) has nothing whatsoever to do with the prohibition of discriminatory discharge.
There's no comparable provision in the Act giving the employee a right to sue for damages under a loss of wages due to discharge.
The only --
Justice William O. Douglas: What does 16 (b) covers?
Ms Bessie Margolin: 16 (b) gives the employee himself a right to sue for unpaid wages and liquidated damages.
Justice William O. Douglas: He could have sued here?
He could have sued here?
Ms Bessie Margolin: He could have sued here, he could -- he could sue either on his own or he can request the -- no, he couldn't have sued here, not for -- not for losses due to discriminatory discharge.
Justice William O. Douglas: He could not.
Ms Bessie Margolin: He could sue for his unpaid wages.
And -- and these employees decided however to use the 16 (c) action.
Justice John M. Harlan: Why isn't it a common law?
Ms Bessie Margolin: As I say, I think its how --
Justice John M. Harlan: -- no statutory action for wrongful discharge.
Ms Bessie Margolin: No statutory action.
And it seems to be questionable whether is -- in some States, at least whether there is one for discriminatory discharge.
It certainly is not clear that there is one.
Justice Charles E. Whittaker: And you're asking, if I understand it, to include that remedy as an incident of the equitable injunctive right granted by Section 17?
Ms Bessie Margolin: That's right, that the -- that the authority to restrain violations includes the authority to adopt all equitable remedies to accomplish the purpose of Section 15 (a) (3).
And I think it's important that we look to that purpose because I think that certainly, if -- there is no compelling reason given either by the court below or by respondents for interpreting this language more narrowly than the Anti-Trust Act is -- is interpreted or then the National Labor Relations Act.
There's no -- no compelling reason for doing so.
And there's -- and --and therefore, if the purpose of this Act or the purpose of Section 15 (a) (3) in particular depends upon this type of remedy, if it's to be all meaningful, and we think it does, then certainly, doubts ought to be resolved in favor of construing it with the same flexibility that -- with the same language has been construed under the anti-trust laws.
And therefore I would like to direct myself to the purpose of this 15 (a) (3).
Justice John M. Harlan: Could I ask you just one question, and I won't interrupt you again?
Your position was squarely sustained by (Inaudible) and the O'Grady case, was it not?
Ms Bessie Margolin: That's right, Your Honor.
Justice John M. Harlan: And the only question about O'Grady was that it's affected, assuming that that -- whether that's still good law in light of the proviso in Section 17.
Ms Bessie Margolin: Well, the Fifth Circuit said it would never --
Justice John M. Harlan: The Fifth -- Fifth Circuit didn't meet it.
They just --
Ms Bessie Margolin: The Fifth --
Justice John M. Harlan: -- talked about it.
Ms Bessie Margolin: -- Circuit said that was never good law.
Justice John M. Harlan: Yes.
Ms Bessie Margolin: And they specifically refrained from my -- I think it's significant that neither court below was willing to rely on the proviso.
And the Fifth Circuit pointed out that it was expressly and in terms limited to suits for unpaid wages, and that it didn't in terms apply to this, although they seem to think that -- they inferred in the intent to overrule O'Grady.
Justice Felix Frankfurter: Would you agree that -- would you agree that it is right in not relying on the proviso since an argument could be made, I think, either they approved it that it implies the power theretofore existed was cut down or that the power -- etcetera, do you agree with that, don't you?
Ms Bessie Margolin: Yes.
Justice Felix Frankfurter: We have to go back in the situation where the Second Circuit began and where this was (Inaudible)
Ms Bessie Margolin: That's right.
Justice Felix Frankfurter: Now, may I ask you this question?
Or perhaps I'd rather let you go out and state the purpose.
That may answer my question.
Ms Bessie Margolin: Oh, I think that the -- the purpose is really conclusive of -- of any questions about the interpretation of -- of this authority to order reimbursement because the purposes obviously to protect the employees against discrimination so that they will feel free to make complaints and cooperate in the enforcement of this Act.
Now, their cooperation and complaints are peculiarly important to the enforcement of this -- of this Act.
It deals with the minimum labor standards of over 20 million employees in their relationship with thousands of employers, and it's obviously wholly impracticable to enforce this Act by continuous policing of employer payrolls.
And also, the enforcement, general enforcement and compliance is of utmost importance to its effectiveness because of the highly competitive factors that are involved.
Therefore, this -- the enforcement of this Act depends necessarily upon many employees feeling free to report any information they have or any complaints they have about violations to report it to the Government officials and feel free to exercise their statutory rights to sue for unpaid wages.
Unquestionably, this is what Congress had in mind in enacting 15 (a) (3).
It was not satisfied simply to establish procedures for enforcement of these substantive standards.
It went further and provided that employees should be protected and encouraged to feel free to participate in those enforcement procedures.
Now, what happens if you say that this -- this enforcement -- for enforcement of this prohibition does not include the power to order reimbursements.
I mean, this case is a good example.
Three employees who presume to exercise their -- their rights under effect, and it might be noted in this record that the employer admitted that he owed this money, he pleaded guilty to a criminal charge of underpaying, both minimum wage over time, failing to keep records, and these specific employees were among those named.
They -- they had a suit brought on their behalf for the unpaid wages and they recovered it no appeal was taken from the judgment in their affidavit there.
So they were asserting unquestionably rights they were entitled to, and they presumed to assert these rights.
The -- they -- they had discharged first immediately, almost immediately discharged their asserting this rights in the plain view of all the other employees.
It was done in the baldest manner obviously for the purpose of intimidating other employees.
And the findings of the Court, I think, will indicate that they are out of work for indefinite period of time.
The order of reinstatement, I think, was about a year later.
And they come back to work without any payment for the loss of wages during the many months that they were out of work.
Now, the employees -- this -- not only the employees who were discharged but their fellow workers says that -- who -- who observed all this happening, who among any of them is going to feel free to come to the authorities or to make a complaint ever in the future?
And the only -- the only possible way that -- that this section can be given any meaning is if the employees are assured that they will not only be reinstated but that they'll be reimbursed of -- that -- their losses and will be redressed.
Justice Potter Stewart: Is there a criminal sanction that goes with this section?
Ms Bessie Margolin: There is a criminal sanction.
The criminal sanction applies to all these things.
We had just had a criminal action against this employee -- employer for his other violations.
The Section 7, minimum wage, overtime and falsification he had been -- he pleaded guilty to that, had been sentenced in and affirmed on that and then -- the -- some of the employees decided that they were entitled to recover these wages then he pleaded guilty of failing to pay.
And they -- they brought this -- this action.
It shows how little by the way that the criminal action deterred.
Justice Felix Frankfurter: Ms. Margolin, I don't -- for myself, I don't think you can solve this problem by producing this particular case of dramatic mischief.
I don't think from that you can draw the necessary guard principle which is involved here --
Ms Bessie Margolin: Well, I think that is true.
Justice Felix Frankfurter: (Voice Overlap) question.
The issues of the unpaid minimum wages or unpaid overtime compensation, are they few or many in the enforcement of this order?
Ms Bessie Margolin: They're quite a few.
Justice Felix Frankfurter: Quite a few considerably.
Ms Bessie Margolin: Probably.
Justice Felix Frankfurter: The question it made to discrimination, are they --
Ms Bessie Margolin: Oh, you mean -- no, there are very few cases on discrimination.
Justice Felix Frankfurter: Very few cases of discrimination.
Ms Bessie Margolin: Extreme -- it's -- it's extremely difficult to prove.
Justice Felix Frankfurter: So that -- so that the result of Fourth -- of the 1949 amendment, and I'm not drawing -- as I have indicated, I'm not construing the -- the Court of Equity from the implication of the 1949 amendment but the result of the 1949 amendment is that in the many instances where equity -- that the power of equity to also impose damages as withdrawn into the few instances that it remained, is that a fair statement?
Ms Bessie Margolin: Oh, no, no, it's -- it hasn't.
It's been withdrawn because some -- some other remedy was given.
Justice Felix Frankfurter: Yes, but the remedy that you -- that was given, you indicate is -- is not a good remedy because that puts the burden on the employee to enforce his right not in the Secretary.
Ms Bessie Margolin: No, the Secretary can enforce it on his behalf too.
Justice Felix Frankfurter: He can?
Ms Bessie Margolin: Oh, yes --
Justice John M. Harlan: (Voice Overlap) --
Ms Bessie Margolin: -- under 16 (c).
Justice Felix Frankfurter: Does the statute say so?
The statute doesn't say so?
Ms Bessie Margolin: Are you talking about unpaid wages?
Justice Felix Frankfurter: I'm talking about unpaid overtime compensation and unpaid minimum.
Ms Bessie Margolin: Yes, under 6 -- Section 16 (c), the Secretary can sue on behalf of the employees upon their written request.
Justice Felix Frankfurter: Is that the --
Ms Bessie Margolin: That's the point I'm making.
This was put in at the same time as with the proviso to Section 17.
And they were obviously intended to correspond.
They didn't want -- they didn't want the Secretary doing this without the request of the employee but it gave him the authority under Section 16 (c), took it away from -- from them in Section 17.
Justice Felix Frankfurter: But he -- he can't do it on his own determination before --
Ms Bessie Margolin: Upon -- no, not -- well, he can -- he has discretion whether to -- to take the request of the employee.
He doesn't have to accept the employee's request.
Justice Felix Frankfurter: No, but he -- a request is required, doesn't it?
Ms Bessie Margolin: A request is required.
Justice Felix Frankfurter: So that the -- so that the power of the Secretary is more limited with reference to the larger class of compensation to be sued for than in the case before the Court, that's true in effect, isn't it?
Ms Bessie Margolin: Well, those cases come up more frequently and the importance of the anti-discrimination provision, of course, is -- is a very general one to try to -- to give employees general feeling of security about his asserting their right and to enable them to feel free to assert their rights to sue for unpaid wages.
Justice Felix Frankfurter: I'm not -- I'm not drawing any inferences against you or for you.
I'm just trying to see the basis on which this can rest in the general purpose of the statute for the protection of employee is, for me, not enough.
Ms Bessie Margolin: Well, this is --
Justice Felix Frankfurter: If its so likely important, then you'd expect greater explicitness and particularly, the withdraw even though a new power is given a more limited power seems to me to make inroads on the general idea, what I want to ask you is this, Section 17 --
Ms Bessie Margolin: May I say -- reserve a few minutes because I think I'm going to need a few minutes for rebuttal.
Justice Felix Frankfurter: Perhaps the Chief Justice will take it out of my time instead of yours.
Section 17 gives the power of the Secretary of -- of Labor to bring injunction proceedings, what I want to know in the first place is that power vested in him to enforce a private light or a public interest?
Ms Bessie Margolin: It's -- it's a public interest in Section 17 --
Justice Felix Frankfurter: And therefore my next question -- my next question is, if your going to draw -- rely on, because I think you must, for the injunctive power in the Secretary, you must also rely, I think, on derivative powers in the Secretary to enforce not individually this for the public interest.
Now, what I ask you, if you will spell out what the public interest is in giving in, authorizing and drawing the general power of the Court of Equity to impose without specific statutory authorization the imposition of money damages although to other powers given to the Court of Equity except that it should exercise equity powers.
Ms Bessie Margolin: Well, it's the same public interest that was involved, I think, Porter v. Warner, that's involved in your anti-trust actions.
The -- it's the interest of the public in the -- in the enforcement of the Act.
Justice Felix Frankfurter: Well --
Ms Bessie Margolin: Now, the -- the -- and I thought that I would be certainly amend to imply that the -- the purpose, the public purpose of -- of this provision against discrimination was to secure the cooperation of the employee --
Justice Felix Frankfurter: I understand the interest --
Ms Bessie Margolin: -- in the enforcement of the Act.
Justice Felix Frankfurter: -- I understand the public interest not having discrimination.
That goes for the whole mechanism, the whole social function of collective bargaining in the union rights etcetera, etcetera but we're dealing here with a very specific claim, namely, that as an adjunct or as an auxiliary to the public interest in getting an injunction, there is also impliedly the public interest in a chancellor to enforce normal equity powers to wit, it's the only way to remedy, it's the way to remedy fully the public interest.
It is necessary to get some money -- to impose money damages that is a concomitant of the chancellor's power.
And that's what you really have to risk on.
You don't --
Ms Bessie Margolin: Well, that -- that is my argument.
Justice Felix Frankfurter: What I'm trying to agree with you but you wouldn't let me.
Ms Bessie Margolin: Oh -- well, I was looking for the -- the question.
I -- apparently I didn't make myself very clear.
Justice Felix Frankfurter: There is, to me, a difference whether -- whether there's an implied authorization of the Secretary of Labor to sue for money damages for the employee or the friend of the employee or the -- what -- what is now given by $16.
That is a different thing from saying independent of what is the interest of the employee having his $27 or $127 is the interest of a public which is the -- the procedure is different from the monetary individual interest of the employee.
That's the case, isn't it?
Ms Bessie Margolin: Well, that's the case I --
Justice Felix Frankfurter: All right.
Ms Bessie Margolin: -- I thought I wasn't (Inaudible).
Chief Justice Earl Warren: You may have three minutes to go to answer Mr. Justice Frankfurter's argument.
And you may have three minutes extra if you wish it too, counsel.
Mr. Moore, you may proceed.
Argument of Lamar R. Moore
Mr. Lamar R. Moore: Mr. Chief Justice and members of the Court.
It is the position of the respondent in this case that a Court of Equity does not have the power under this statute to grant damages or discharge or as we have referred to it generally back wages ancillary to the power to restrain violations of the Fair Legal Standards Act.
Now, we must find this power on the language of the Act or we must find it generally resting within the inherent powers of equity.
The Government here, I believe I'm correct in saying, is relying upon the traditional inherent powers of equity in order to get this relief under this Act and reimburse an employee for money lost between the time of discharge and the time of reinstatement under an injunction.
Justice John M. Harlan: Notwithstanding Government charges (Inaudible)
I thought the Government (Inaudible) is essential to effectuate the purposes of this statute that this power should be implied.
Mr. Lamar R. Moore: Well, they do, Your Honor.
Justice John M. Harlan: But I thought you said they were resting on an inherent power generally?
Mr. Lamar R. Moore: I believe legally they are in -- are resting upon the inherent power of equity to grant this damages for -- in order to effectuate the purposes of this Act.
Justice Felix Frankfurter: Once the power to grant -- once -- once jurisdiction is given to enjoin which is the most conventional of all equity powers, the Government's argument is that there is a right from that to enjoin effectively to remedy the -- the mischief and to that end, it may be necessary and not merely say, “Don't do this hereafter but also make good for the loss you have committed.”
Mr. Lamar R. Moore: I think that equity, Your Honor, can take complete charge of any situation whereas jurisdiction attaches and can give complete relief.
However, the relief it gives must be based upon some right or some law.
It cannot step outside of the general or specific law in order to give extraordinary relief.
Now, the scope and breadth of equities decrees is one thing but its power to decree is another.
Justice Felix Frankfurter: Its power to what?
Mr. Lamar R. Moore: Its power to decree.
In other words, under the anti-trust laws, for example, which they had used as an analogy in this case, the Anti-Trust Act is general in terms, prohibiting combinations and giving powers to the courts to prohibit, to enjoin or otherwise prohibit those combinations.
The Court of Equity in taking charge of an anti-trust case has a broad scope within which it can act in order to prohibit a culmination or a contract.
And so anything that must be done in order to do that is authorized by the general terms of that Act but in this case, we are dealing with a right in an employee.
We -- we are maintaining, the respondent is maintaining here that there must be a right upon which equity can face a decree to grant back wages.
Justice Felix Frankfurter: But that's the clash, that's why I took some minutes of Ms. Margolin's time.
Mr. Lamar R. Moore: That -- that is --
Justice Felix Frankfurter: The clash between you --
Mr. Lamar R. Moore: That is the fact.
Justice Felix Frankfurter: -- if you're right, then this is an enforcement of a right of an individual.
Mr. Lamar R. Moore: That's correct.
Justice Felix Frankfurter: And the Secretary of Labor is not enforcing the right of an individual alone.
He's also enforcing the right of a public interest although that right may involve denial of what is owing to a lot of individuals, and they are very different things.
Mr. Lamar R. Moore: That's correct.
We maintain that the Court cannot go so far as to enforce an individual right not authorized by the statute in order to vindicate public policy.
That -- that remedy would, in its nature, be punitive.
And being punitive, a Court of Equity will not reach that far.
We have studied the Fair Labor Standards Act and the cases upon -- the basic cases upon which the -- the later cases rely for the powers of equity, these inherent powers of equity.
We find no right in the Fair Labor Standards Act for an individual to receive damages for discharge.
And we believe that it is universally the law that there is no common law right in an employee to receive damages for discharge.
Now, that is true where there is no contract for a term of employment.
Now, where there is a contract for a term of employment, I have a contract for six months or a year and I am discharged, I can sue for damages.
Justice Charles E. Whittaker: Is the Secretary or some public official would?
Mr. Lamar R. Moore: No, sir.
I don't see how.
There's no authorization for any such -- any such cause of action.
The cause of action in the Secretary here is his devout with written permission from the employee to sue for unpaid minimum and all the time wages actually worked for.
It has no relationship to the damages for being discharged discriminatorily.
Chief Justice Earl Warren: Well, Mr. Moore, it's -- it's your position then that either statutorily or under the common law, the -- that these employees have no remedy at all for this discharge.
Mr. Lamar R. Moore: That is correct, Your Honor.
Chief Justice Earl Warren: Yes.
Mr. Lamar R. Moore: They -- they have absolutely no remedy individually in themselves and that there is no specific authorization in this Act or any other Act for the Secretary to move in their behalf for damages for discharge.
Chief Justice Earl Warren: Therefore, there is no remedy left to them.
Mr. Lamar R. Moore: That's correct, Your honor.
Chief Justice Earl Warren: Yes.
Mr. Lamar R. Moore: There is no remedy.
Justice Charles E. Whittaker: (Inaudible) under law of the State in -- will you have the right of action for wrongful discharge?
Mr. Lamar R. Moore: Yes, sir, I maintain that outside of authority to substantiate that, Your Honor.
There -- there is no right an employer has a -- has a right to discharge an employee.
Now, it is only under the legislation such as we have here and the National Labor Relations Act where Congress has gone in derogation of the common law right and given an employee the right not to be discharged because of certain discriminations, one, say, for union activity, or the other here for suing for his rights under this specific Act.
Chief Justice Earl Warren: We'll recess now, Mr. Moore.
Argument of R. Lamar Moore
Chief Justice Earl Warren: Mr. Moore, you may proceed.
Mr. R. Lamar Moore: Thank you, Your Honor.
I would like to reiterate that it is the position of the respondent that there is no right in the employee and no right in the Administrator under this statute or under the common law that justifies, legally, damages for discharge.
I would like to be emphatic about this point, Mr. Justice Whittaker, that there is no common law right to damages or in an employee for mere discharge where -- where those damages arise is when a contract is breached, a contract of employment but a mere day-to-day employment.
Being discharged from that would not give a cause of action because the employer has a -- an inherent right to discharge any employee in the absence of contract.
Justice Charles E. Whittaker: Is it then (Inaudible) however, they couldn't state under this law that one may not be (Inaudible) discharge for causes which the law prevents (Inaudible) and that thus to discharge his employment that his rights and action to condemn may be redressed for him?
Mr. R. Lamar Moore: Under the common law, I do not think there is any such right.
The case that is cited, which is a Georgia Case, involved a discharge of a railroad employee where they actually went out and accused him of not doing his work properly.
As a matter of fact, he sued for slander and sued for damages for wages for having been discharged.
The Court stated that regardless of the reason, for any reason that was in the employer's mind they could discharge that employee.
Now, under the Fair Labor Standards Act, while it is made unlawful to discriminate against an employee for the reason stated in this Act, there is no right given to the employee to any damages because of the breach of that legal duty to the public.
Justice Charles E. Whittaker: By that statute?
Mr. R. Lamar Moore: By this statute.
And I don't think that one arises that common law merely because it is made unlawful under this statute, because this statute carries with it and -- and must spell out the rights which it gives to the Government, to the employer and to the employees and in the absence, it is our position that in the absence of spelling out those rights, those rights do not exist.
Chief Justice Earl Warren: Is there any sanction of any kind of flow from the -- from this prohibition in the statute?
Mr. R. Lamar Moore: Criminal sanctions provided in the --
Chief Justice Earl Warren: Is there criminal sanction for discharging?
Mr. R. Lamar Moore: Oh, yes, sir.
Chief Justice Earl Warren: As well as for --
Mr. R. Lamar Moore: Oh, yes, sir.
Chief Justice Earl Warren: -- not paying the --
Mr. R. Lamar Moore: That -- that's correct.
Chief Justice Earl Warren: (Voice Overlap) --
Mr. R. Lamar Moore: The criminal sanctions apply to all of the various provisions of Section 15 of the Act which are to transport goods in commerce in violation of the Act to discharge or in any matter discriminate against an employee, the child labor provisions and the record keeping provisions, though these criminal sanctions apply to that section.
Justice Felix Frankfurter: Is it your position that if I challenge all the cases in this equity in addition to enjoinment, conduct or commanding the conduct, also -- most of the defendants were damaging, everyone will indicate and will disclose the damage -- that the damaged part of it could have been (Inaudible) common law (Inaudible)
Mr. R. Lamar Moore: I --
Justice Felix Frankfurter: -- is that your position?
Mr. R. Lamar Moore: I believe that's correct, Your Honor.
The cases -- basic cases relied upon, there are two cases, I have cited one and the -- the Secretary has cited one.
The case that they cite which is cited and approved by the case of Porter against Warner involving the Emergency Price Control Act, that case is clocked against Smith which is an old case involving the title to land in Kentucky and Tennessee.
The question there was whether or not a federal court, acting in equity, could grant a remedy which was provided for in -- under state law.
The courts -- the court found that the title to the land actually was in the plaintiff, but the Circuit Court divided as to whether or not the court, acting in equity, could grant the relief required by the State statute and the Supreme Court, this Court, held that equity could enforce that right.
The man was entitled to have the junior -- the junior deeds or junior patents to the land granted by the State, delivered into court and cancelled.
Now, that is a right upon which equity could act, but where no right exists now as in the case of Peter against Hargrave, an old Virginia case, pre-civil war case, where some slaves sued for their freedom under the will of one Hargrave and acquired their freedom by virtue of that will.
They sue -- they asked for an additional decree for the mean profits of their labor in the interim from the time that the will was probated until they were released by the Administrator, who had been procrastinating and vacillating and delaying the matter, and they asked for the profits of their labor.
The Court held that there was no legal right to the profits of that labor and consequently, equity in mandatorily giving them their freedom, could not grant damages.
Now, those two cases are old cases, but they are the cases or -- or a type of case, which point out the distinction where equity acts on legal rights, follows the law and does not go out and make new writs and grant extraordinary -- well, it grants extraordinary relief, but it does not grant new relief which has not heretofore been sanctioned at common law or under a statute.
Justice Felix Frankfurter: I haven't any doubt -- I haven't any doubt, but you can find though that many of the cases wouldn't be true that instead of remitting the -- the equity remitting the plaintiff, the law in order to -- to avoid and acquire his damages, money damages, that they're greeted all up in one -- one proceeding.
But the fact that in those -- that there are cases in which the money damages could, by an undetermined cause of action, draws in law, I do not think it establishes as such that if carrying out that for which the extraordinary remedies because in all that's said and done, equity is still is an extraordinary remedy --
Mr. R. Lamar Moore: Yes.
Justice Felix Frankfurter: -- except for a statute looks otherwise, to question one's exercise.
Well, equity puts the affirmative or coercive power of the State behind the cessation of evil conduct or compelling good conduct, and there are collateral damages in society that we can also say what you must make good, that monetary damage we do not have to sit in exaggeration to (Inaudible) or substantively determine whether you could bring a cause of action for money damages on the law outside of the court.
Mr. R. Lamar Moore: The respondent disagrees with that position, Your Honor, in this that the fact that there may have been a loss, does not necessarily give rise to damages and where there is a vindication of the public policy and no statutory basis for a granting of damages of that sort, equity now, acting as equity, does not step in with punitive measures of that sort.
It -- it does not go to vindicate public policy in -- in -- by -- by way of righting, say, a private wrong, where no remedy exist for that wrong.
Justice Felix Frankfurter: Am I wrong, am I bad guesser if I guess, I thought it is, the very few statutes that confer injunctive remedies injunctive jurisdiction upon a court, explicitly add and in such a proceeding, money damages may also be held.
Mr. R. Lamar Moore: They -- they --
Justice Felix Frankfurter: They want to forget that very few statutes are like that.
Mr. R. Lamar Moore: I think you're correct but -- but I think where -- where equity acts, for example, if -- if add them up a stream and affect your riparian rights and your cattle pairs to them, you can come in to equity and enjoin me from blocking the water and at the same time, because equity takes charge and gives complete relief, you can get damages for the tort done to you by interference with your right, but you do have a riparian right.
Here, the employee has no right because of discharge, discriminatory or otherwise.
Justice Felix Frankfurter: Well, supposing your dam case, which are frequent cases, suppose in your dam case, the attorney general of a State is authorized explicitly by a statute to enjoin or continue it for that nuisance and suppose because of that nuisance hundreds of workmen were thrown out of work and put on public relief though, what was states relief whatever you call it, you would say that the attorney general in that proceeding enjoined the systems for continuing for the nuisance could -- could not also ask the reimbursement of the State of what culpably has been or demonstrably can be shown to -- in view in the -- the draft on the Treasury itself, $6000 or whatever it is, X dollars, which they have to pay for putting those (Inaudible) on social relief, but typical entirely to the conduct found to the -- of public nuisance.
Mr. R. Lamar Moore: For damages to the State.
Justice Felix Frankfurter: Yes, you would say no.
Mr. R. Lamar Moore: I would say that unless the statute spells out that there are damages to the State, Your Honor, I would say no.
Justice Felix Frankfurter: Unless the statute -- if it has the view -- not to spell it out but authorized the collection of it.
Mr. R. Lamar Moore: That's correct.
Justice Felix Frankfurter: That's what you would say.
Mr. R. Lamar Moore: Yes, now -- now, I would say this that if they could join with the attorney general of the State, those persons damaged not -- not because they received relief from the State, but by -- by the interference with a riparian right (Voice Overlap) --
Justice Felix Frankfurter: I'm trying to make clear that the State is directly not derivatively out of (Inaudible) because of this nuisance which is now enjoined.
Mr. R. Lamar Moore: I think that's correct that it is not.
Chief Justice Earl Warren: Mr. Moore, where -- where in (Inaudible) is the riparian right of the lower acts on the plan materially different from the right that the employee has here by statute, not to be interfered with discriminatorily?
Mr. R. Lamar Moore: At -- at common law, of course.
Chief Justice Earl Warren: No, let's take it under the statute.
Mr. R. Lamar Moore: Under the statute here?
Well, this statute, of course, changed the common law to -- to this extent in regard to discharge.
First of all, it created a right in an employee to receive a certain minimum wage, which he did not previously have so that was created and different from the common law right which -- which only gave him what he contracted to receive.
Now, in -- in doing so, this statute is somewhat self-contained, in -- in doing so, it provided further that if, in enforcing this right to minimum wages, this employee is discriminated against for that reason, then the Court can come in and enjoin the -- the discrimination and the -- the employee can sue on his own behalf or the Secretary with his written permission for him can sue for the unpaid minimum and overtime wages.
But, there is no provision in the Act.
It doesn't go that far to create a right to damages for having been discharged, it stopped short of that.
Chief Justice Earl Warren: In -- in language, it does, but doesn't it say that he has a right to remain employed in his position to the extent the he shall not be discriminated against by reason of his exercising his rights under these statutes and why isn't that right that he attains similar to the one that the riparian (Inaudible)
Mr. R. Lamar Moore: I -- I don't believe the statute says exactly that.
Now, it -- of course, the Court may interpret it to say that, but the Court says in -- I mean the statute says in effect, “Thou shalt not discriminatorily discharge.”
It doesn't say that the employee has a right to any wages for -- or -- or damages for discriminatory discharge and it -- and it --
Chief Justice Earl Warren: But doesn't the right -- doesn't the right to not to be discharged because of that discrimination arise from that statute?
Mr. R. Lamar Moore: Sir, I -- I do not -- oh, I -- I think that the Court in -- in the statute in going further and saying to the Court, “You can restrain this discrimination, this violation,” gives him the right, perhaps, to be put back to work under a mandatory injunction which the federal court is entitled to issue.
But I don't think that it means that the Court can go further and grant him any other right than that because it spells no right in him, it's a prohibition against the employee, I mean the employer, rather than a right granted to the employee.
Now, there are rights granted to the employee, and they are specifically spelled out in the Act, and they are -- that he can get certain minimal overtime that he has worked for and has not been paid, but the statute just stopped short of creating this right.
Justice Hugo L. Black: Was he lawfully discharged?
Mr. R. Lamar Moore: Was he lawfully discharged?
The Court held that he was unlawfully discharged.
Justice Hugo L. Black: That if he was unlawfully discharged, can you rely on the contract, permit an unlawful --
Mr. R. Lamar Moore: I don't think -- well, there's no contract, Your Honor, unless you could construe a contract from --
Justice Hugo L. Black: You -- I understood you said contract at will.
Mr. R. Lamar Moore: Well --
Justice Hugo L. Black: (Inaudible)
Mr. R. Lamar Moore: Well, I -- I think it's an employment at will.
Justice Hugo L. Black: Yes.
Mr. R. Lamar Moore: But under the common law, there -- there is no right to damages for discharge for any reason under an at will contract.
Justice Hugo L. Black: Precisely.
First, his employment at will and there's no law which gives him -- which says that (Inaudible) having a right to employ at will, you must bear in mind that you can't decide one for this reason, you got to keep it?
Mr. R. Lamar Moore: That's correct.
Justice Hugo L. Black: That's the difficulty.
You have here more than an employment at will.
You have an employment, do you not, in which your law has said, you got to keep it, unless -- insofar as the right to discharge him to -- but because he files a lawsuit.
Mr. R. Lamar Moore: But the remedy provided for the statute is merely --
Justice Hugo L. Black: (Voice Overlap) --
Mr. R. Lamar Moore: -- is -- is --
Justice Hugo L. Black: -- that is what the statute says is the remedy.
Mr. R. Lamar Moore: It is statute as to the remedy says that the Court has jurisdiction to restrain these violations.
Justice Charles E. Whittaker: (Inaudible)
Mr. R. Lamar Moore: And -- with criminal sanctions, that's correct.
Those are two different sections, of course.
Justice Hugo L. Black: I thought that maybe I'm wrong when it comes to the common law that you rely on the contract at will or any other time it may -- its (Inaudible) one of it is in terms speaking in the language of the law is incorporated here if the law said that it has to be there that you can't break this contract for this reason.
Mr. R. Lamar Moore: Your position being, Your Honor, that the contract having been made in the light of the Fair Labor Standards Act incorporates this in it.
Justice Hugo L. Black: But what I saying when I thought many courts, you took as the common law, I thought that it's been a rather general common law rule, am I wrong in that sense?
Mr. R. Lamar Moore: I think that contracts are made with reference to the general laws of the State.
Justice Hugo L. Black: Well --
Mr. R. Lamar Moore: Nevertheless --
Justice Hugo L. Black: But it would limit the State, wasn't it?
Mr. R. Lamar Moore: Well, the State -- the -- the Government.
Justice Hugo L. Black: Yes.
Mr. R. Lamar Moore: Yes.
But --but of course, these contracts of employment actually were made under the State -- under the laws of the State of Georgia.
That was -- that's the -- the body of law that would govern the contracts, except where they are affected by federal law.
Now, it is my position though that this Act is limited in its scope and the fact that it -- it maybe unlawful as against the employer who maybe criminally prosecuted for violation of the provision of the law just as I may be criminally prosecuted for speeding on the highway that that does not create any right, contractual, legal or otherwise, to any damages in that employee because the Court -- I mean the -- the statute does not contain that right and the only remedy provided for discriminatory discharge is that the courts can restrain violations of this Act and of the four or five things that the Act prohibits.
Those things are directed against the employer.
Justice Hugo L. Black: Do you think it depends on the construction of the statute or --
Mr. R. Lamar Moore: Well, yes, I do and --
Justice Hugo L. Black: -- is it with reference to the common law?
Mr. R. Lamar Moore: Well, I think it -- of course, depends upon both.
I think that the statute must be construed in the light of its -- of course, its legislative history the -- the language particularly, the language used in it and particularly the omissions of language.
The Labor Department depends a great deal on the National Labor Relations Act and brings in the -- the power of the board to take affirmative action to effectuate the policies of the Act.
Now, that language is not -- is not found in the Fair Labor Standards Act.
And there is -- there is in the National Labor Relations Act as an illustrative as -- as an -- an example illustrating the affirmative action they can take.
That they can reinstate with back wages.
Now, unless Congress had thought that that was a departure from the normal accepted law, that illustrative example probably would not have been inserted in that Act to take affirmative action including the reinstatement with back pay as will effectuate the policies of this Act.
That's the broad sweeping language of the National Labor Relations Act.
Justice William J. Brennan: Would that be original language in the Wagner Act?
Mr. R. Lamar Moore: I believe it was, Your Honor.
I believe that was the original.
Justice Hugo L. Black: (Voice Overlap) the Phelps Dodge case pose?
Mr. R. Lamar Moore: Now, the Phelps Dodge case held that under but -- that language and coupling that with the definition of the word “employee” who did not have to be the employer's employee, the one involved -- the employer involved here, and coupled also with the interpretation of the word “ha”, discrimination in regard to “ha”, they held that they had to instate employees who were refused employment because of union activity.
And there is ample basis in that statute for that holding without going into and gleaning out of the general statement of policy the right to do that.
Now, the -- the -- these two acts compared will show that the National Labor Relations Act deals with a much more elusive subject matter, a much -- a subject matter of much broader scope and more complicated as evidenced by the fact that the board was created to handle and administer this Act, whereas here, the matter is comparatively simple, and it's not as complicated of administration as the National Labor Relations Act.
The Fair Labor Standards Act was passed after the National Labor Relations Act.
And significantly, the language to take affirmative action including reinstatement with back pay was not used in the Fair Labor Standards Act.
And Congress had before it, the full language of the Wagner Act at that time.
And I feel fairly confident that that language was employed in the beginning of the Wagner Act.
Justice John M. Harlan: Do you think the 1945 amendment bears on your position?
Mr. R. Lamar Moore: Well, I think this, Your Honor.
I think that can be construed.
That proviso which says that in and in proceeding by the administrative foreign injunction to restrain violations that the Court shall not have jurisdiction to grant unpaid minimum and overtime wages and liquidated damages, I think that this back pay, if there is any right to such back pay, which would be damages for discharge, if that exists and of course, that would be computed on the basis of the minimum wage, that that could very well be included within that proviso.
However, I believe that perhaps the best argument for interpreting that particular proviso is the legislative history wherein the Conference Committee said that this proviso will have the effect of reversing such cases as McComb versus Scerbo, which was based directly on the O'Grady case, which is the case opposite to the one that is now under review.
And I think that that legislative history had in it also that this Court --
Justice John M. Harlan: A criminal case did not involve a discrimination case?
Mr. R. Lamar Moore: No, the -- the Scerbo case involved an injunction wherein the unpaid minimum and overtime actually worked for was granted.
But the proviso split that apart and wouldn't let them do it.
It shows a policy of Congress not to let this -- this restitution and the injunction go together.
I see my time is limited.
I would like to -- I would like to say that an analysis of the cases, the -- the -- under the Railroad Act, the -- the National Labor Relations Act and under the Emergency Price Control Act show that in -- and -- in each instance, where equity goes and grants some sort of damages or takes extraordinary relief or disestablishes a -- a bargaining representative, that it is based upon some right which was created in that statute or existed at common law.
And it is our position in this case that the Fair Labor Standards Act includes all of the sanctions, criminal and civil, in specific language and that the -- a court of equity does not have ancillary power to go beyond the words of this statute and the common law in granting a relief.
We respectfully submit that the decision of the Circuit Court should be affirmed.
Justice Charles E. Whittaker: (Inaudible)
Mr. R. Lamar Moore: They would -- it appears to me, Your Honor, that if it is the law that he is entitled to damages for discharge, they would necessarily consist of -- of minimum wages computed on some program of work that would have been performed in the interim.
Justice Charles E. Whittaker: And the word was minimum wages or overtime compensation or both (Voice Overlap) --
Mr. R. Lamar Moore: I should think that that would be the -- probably, the logical the -- cut down, of course, by anything that was earned in the meantime or -- or any amount that he would not have earned by his own volition or prevented or would have been prevented from earning.
Justice Charles E. Whittaker: (Inaudible) specifically joined by this proviso?
Mr. R. Lamar Moore: I think that it can be so held, Your Honor, that that very type of recovery would be specifically enjoined in an injunction proceeding.
Justice Hugo L. Black: I don't quite understand how you say that it's necessarily means --
Mr. R. Lamar Moore: I don't say that --
Justice Hugo L. Black: (Voice Overlap) minimum wage or does he have a contract that -- what -- what he get is so much per hour or something that (Inaudible)
Mr. R. Lamar Moore: Oh, these employees, I believe --
Justice Hugo L. Black: (Voice Overlap) --
Mr. R. Lamar Moore: -- were -- yes, they -- they were given some --
Justice Hugo L. Black: Do minimum wages protected by agreement?
Mr. R. Lamar Moore: Yes -- oh, I -- I beg your pardon.
I say necessarily, minimum wages, it would be adding minimum -- minimum wages.
I -- I don't think you could go below the minimum wage prescribed in the statute in assessing damages --
Justice Hugo L. Black: (Voice Overlap) --
Mr. R. Lamar Moore: That's --
Justice Hugo L. Black: But I assume that if that's the case, assuming damages (Inaudible) based on the wages (Inaudible)
Mr. R. Lamar Moore: I would assume so, but I don't think there are any allocable --
Justice Hugo L. Black: (Inaudible)
Chief Justice Earl Warren: Ms. Margolin.
Argument of Bessie Margolin
Ms Bessie Margolin: May it please the Court.
I think that the emphasis on the individual rights of the employees may have been overdone.
We're not concerned here merely or even particularly with the reimbursement of specific employee.
We're concerned with the public interest in the sharing employees that they will not suffer financial economic loss if they cooperate in the enforcement of this Act.
That the Act depends necessarily on their cooperation and that if employees learn or think, if they will, if the decision below remains enforced that they cannot be protected from loss of wages for an indefinite period.
That they cannot be protected and get redress for that, they are certainly not going to have much assurance under Section 15 (a) (3) that they are free to come in and complain or to file claims.
And it's -- it just become -- well, become apparent to him that that's -- protection, and I can assure you that our investigators refer to that when they -- when they are interviewed, and we take their complaints.
That they will -- they will be protected against discrimination and against loss.
Well, if they are not given redress for their wage losses, then that protection is just illusory because it's commonplace knowledge that an employee is just as much intimidated and deterred from cooperating with enforcement officers by the fact that he may lose his wages for an indefinite period, as he is by the fact that he may permanently lose his job.
And the thing that -- the public interest here is quite something -- quite apart from the private right of the employees.
We're interested in the reimbursement of the individual employees because it means that that is the only way the public interest can be protected.
Justice Felix Frankfurter: Can I completely disregard inquiring to whether or not the employees have independent common law rights?
Ms Bessie Margolin: I think you can completely disregard that.
I think it has nothing to do with what we're concerned with here.
We're -- the -- the statute -- this Court has had frequent occasion to comment on the intimidatory influence inherent in the employment relationship, particularly for the low wage employees with which this Act is -- is primarily concerned.
And what Congress was obviously interested in, in enacting this 15 (a) (3), was to give the employee some assurance that they were not going to suffer economic loss by making their claims under this Act.
That they were not to -- they were not to submit to substandard labor conditions in fear of losing their job and in losing their pay.
And the loss of their pay is obviously just as serious to them as the loss of their job.
To reinstate them without redress for the wages they've lost, is to just thwart the whole purpose of this Section 15 (a) (3) provision.
It did --
Justice John M. Harlan: Is this 15 (a) (3) provision a -- do you find it in the statute or you find it in another statute (Voice Overlap) --
Ms Bessie Margolin: It's comparable to the discrimination provisions of the Labor Board Act.
And it -- and under that Act, the courts have always recognized that reimbursement for loss of wages was -- was the -- the normal method of -- of enforcing that provision.
Now, with respect to the labors law --
Justice Potter Stewart: Well, the statute in -- that statute is very explicit, isn't it?
Ms Bessie Margolin: Yes, well, I was going to come to that, that statute is explicit of course.
But the decisions under it and in particular, the Phelps Dodge decision says specifically -- explicitly that that remedy would exist even if there were no congressional mandate.
And Porter v. Warner under the Price Control Act says that.
And the fact that it would exist, I think, is demonstrated by the antitrust cases where the language is -- virtually the same, as to prevent and restrain violation.
And this Court significantly has used virtually the same language in describing the authority under the antitrust cases as it has under the Labor Board cases.
Now, we think the -- the reason for the specificity in the National Labor Relations Act is because there, you have enforcement by a board created by statute with only the right that the Congress gives them, whereas, under our statute, the Fair Labor Standards Act, the antitrust law, you -- Congress has put the enforcement in the hands of courts of equity, who already possessed these powers.
And the cases under Railway Labor Act, the Court -- this Court and -- and other courts have recognized that even without a provision to restrain violations, back pay could be awarded for violation of the policies --
Justice Felix Frankfurter: Was there anything --
Ms Bessie Margolin: -- and the rights outstanding.
Justice Felix Frankfurter: -- you said either in the report of the Fair Labor Standards Act, a report that brought in and deal with (Inaudible) Act or in the statement by the sponsors of the (Inaudible) on the floor of either House, bearing on monetary compensation or consequences of discriminatory (Inaudible)
Ms Bessie Margolin: No, I don't think -- I don't --
Justice Felix Frankfurter: (Inaudible)
Ms Bessie Margolin: I don't think anything was said about monetary --
Justice Felix Frankfurter: Was it said -- was anything he said that they talked about important -- putting this thing under the equity jurisdiction of injunction with remedies?
Ms Bessie Margolin: I don't recall anything specifically said.
I think the purpose is obvious.
I think that there's much more reason to have this --
Justice Felix Frankfurter: (Voice Overlap) but I was wondering --
Ms Bessie Margolin: -- enforced only by -- by the public official rather than by employee.
The wages, so far as the minimum wages and overtime are concerned, that can be easily calculated and to give each employee a right, it can -- they can sue for it more easily.
It's more -- it's more clear what to do them and would be for violation of -- of this type of provision.
Justice Felix Frankfurter: What you are saying is they build on conventional establishments about the power -- the -- the consequences of granting an injunction with an injunction (Inaudible)
Ms Bessie Margolin: Well, practically.
Justice Felix Frankfurter: -- such as the common place remedy which include this -- what you regard as a common place implication.
Ms Bessie Margolin: May I -- I'll just add one other point about the criminal sanctions.
The -- of -- of course, there are criminal sanctions for this as well.
But there was also the injunctive remedy, and I think there is a good reason for making both available there.
If criminal sanction is not adequate to assure an employee that he's going to be protected if he talks to the Government because it -- it -- the fact that the State may collect the fine from their employer is -- is not going to give them any assurance that they're protected or -- or believe them of the intimadory effect of -- of losing their wages.
The -- the fine in this case so far -- other violations didn't deter the employer here from firing them.
And the employees coming back without redress for their lost wages and all the other employees seeing them was obvious to them what -- what's going to happen if they, in the future, decide to assert their claims, only the most courageous, if not full hearty employee after learning that, is gong to take advantage of his -- of Section 15 (a) (3).