# Petition for Writ of Certiorari — Town Pump, Inc. v. Brock > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2441%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1100 ## Text = ¥ ‘) Offes &9 me Court, US 84 1345\ : re ED a | FEB 20 a5 NO. i+h eed Cae eS | samen r 3n the Supreme Court of the Anited States OCTOBER TERM, 1984 TOWN PUMP, INCORPORATED, a corporation, Petitioner, vs. RAYMOND J. DONOVAN, Secretary of Labor United States Department of Labor, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD P. SLIVKA (Counsel of Record) DAVID L. DAIN JULI E. LAPIN BOSWORTH & SLIVKA, P.C. 36 Steele Street, Suite 100 Denver, CO 80206 _ (303) 329-6200 Attorneys for Petitioner i \ QUESTIONS PRESENTED FOR REVIEW I. Did the Ninth Circuit so far depart from the accepted and usual course of judicial proceedings as to constitute prejudicial error in its review of the trial court’s decision? A. Did the Ninth Circuit act improperly and in opposition to the position of other circuits in relying on the trial court’s initial find- ings of fact and conclusions of law? B. Did the Ninth Circuit usurp the trial court’s function and act beyond its authority as an appellate court? II. Did the Ninth Circuit’s sweeping reversal of the trial court’s decision, without considering the evidence as to each lessee, constitute error? III. Is the standard for determining employee status within the meaning of the Fair Labor Standards Act so inconsistently and unpredictably applied, as evidenced by the Ninth Circuit’s decision in this case, that it should be redefined? iti TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW .... as vont wks sancdsacus cesses GROUNDS FOR JURISDICTION OF THE UNITED STATES SUPREME COURT ........ STATUTES INVOLVED....................08 STATEMENT OF THE CASE ................. ARGUMENT FOR ALLOWANCE OF UE Oe TEI, Sass nie dcccnncccncuas I. The Ninth Circuit So Far Departed From The Accepted And Usual Course Of Judicial Proceedings In Its Review Of The Trial Court’s Decision That Prejudicial Error Resulted To Town DN oh 6 cul ek an bbe be & A-17 cent per gallon as their commission. Until the contract was changed in April, 1980, they also paid $5.00 per week to Town Pump toward their bond. 33. Originally, the Crowleys were informed by Town Pump of changes in the retail price of gas, but then got permission from Dan Kenneally to simply follow the changes in price at a Gasomat Station down the street. 34. They carry noinsurance on the station and, like Mrs. Challes, received the business licenses in the name of Town Pump #5 through the mail. They are responsible for bad checks and driveaways. They are generally open from 7 a.m. to 8 p.m. (13 hours daily) seven days a week. Sales average 500-700 gallons per day so that their com- missions average $5-$7 daily. 35. Bertha Garner and her husband operated a Town Pump station on Excelsior beginning in 1972 to December, 1972, and operated another station on Montana Street in Butte from December 1972, to April 1977, and then in August 1977 operated Town Pump #9 in Butte. She was paid “‘a penny a gallon” commission at all three locations. 36. Her hours at Town Pump #9 were approxi- mately 7 a.m. to 10 p.m. This location, like others, had a sign in the window (facing the operator) stating “minimum hours 7:00 a.m. to 10:00 p.m.,” “turn off the lights during daylight hours,” “keep the driveways clean” and “make daily bank deposits.” Either Mrs. Garner or her husband were required to be on the premises during hours of business. 37. Although they sold items other than gas, such sales “wouldn’t amount to $2.00 per day,” according to Mrs. Garner. 38. The Garners were responsible for bad credit, checks and driveaways. All gas was furnished by Town Pump. Mrs. Garner stated that “with the Town Pump’s help” she and her husband set the price of gas. However, shortly before her deposition in March 1979, “they come and told us that the Government had asked a raise there,” and Town Pump employees actually change the signs for them when there is a price change. A-18 39. Merlin Hawk testified by way of deposition. He operated Butte #8 in March, 1979 when his depositian was taken. He was told by Dan Kenneally when he took over the station that he would receive one cent per gallon for gasoline sales and 7 cents per gallon for diesel sales. He was further told that the company would like the station to be open from 7:00 a.m. to 10:00 p.m. Those were his actual hours, seven days per week. He never discussed the value of the premises with Kenneally or the fact that an amount designated as “rent” would be paid. 46. Mr. Hawk put it “! was needing a job right at the time and that was the only thing that came open.” 41. Hawk also was responsible for depositing the daily receipts in Town Pump’s account. Town Pump maintained the premises. Hawk carried no insurance and hired no employees because it would “cost more money than what we make.” His typical receipts for items other than gasoline netted him a little over $2.00 per day. 42. Regarding prices to be charged for the gasoline he was given a specific price per gallon by Town Pump to charge and the signs were changed by “one of the Kenneally boys.” 43. Alice Savage also testified by deposition. She operated Butte #2 and had previously been the operator at a Great Falls Town Pump station. At both locations her method of compensation was the same: “We got a penny a gallon on what we sell.” 44. The station was open daily from 6 or 7 a.m. to 10 p.m. and she and her husband split the work about evenly. 45. She and her husband turned in the same weekly reports as did all other operators who testified, and also made bank deposits daily to an account belonging to Town Pump. 46. Regarding the price to be charged for the gasoline, Mrs. Savage testified as follows: Q. Do they set the price of the gasoline that you sell? How are you ordinarily informed of a change in the price? They call us up. They just call you and tell you what the new price is, is that right? Yes. And then you change the pumps and the sign? Well, Kevin cores down and does that, Kevin Kenneally. 47. Cloella Breeden testified by deposition that she had operated Butte #3 since November 16, 1977. She was told by Town Pump’s representative that “I would get a commission off the gas, one penny to a gallon.” The representative, a Mr. Harvey, “said there'd be long hours that we would work and he said that would be from 7:00 to 10:00 at night . . . seven days a week. 48. She was also instructed to make bank deposits daily and that she would be responsible for bad checks. A sign in the station when she started contained instruc- tions regarding daily deposits, hours from 7-10, and turning off the lights during the day and on at dusk. 49. The station licenses were in Thomas Kenneally’s name and Town Pump maintained the > OP Or LPor 50. Mrs. Breeden testified she was “there con- stantly” during the hours of 7-10. 51. Mrs. Breeden testified that the company would call periodically and ask her to measure the tank levels. Depending on the level, Town Pump would come and fill the tanks. The retail price of the gasoline was set by the “Kenneally’s.” She was not usually informed of changes in price in advance, and in fact stated “I was at my daughter's one day and they changed it.” A-20 52. Another operator, Paul Orr, testified in rebuttal as to the extent to which the main office controlled the station operators: He operated the Town Pump stating [sic] in Browning, Montana, from September 1976, through March 1979, and in Columbia Falls from March 1979, through March 1980. He was in contact with field representatives of Town Pump “almost every day.” 53. His hours of operation at both locations were 7-10. The field man told them these were the hours and there was a sign with “instructions we were supposed to follow,” regarding the hours to remain open and making daily bank deposits. The sign was at both locations and he had seen one as well at the Kalispell station. 54. Plaintiff's Exhibit 32 demonstrates the full extent and specificity of Town Pump, Inc.’s instructions to its operators. These instructions were posted at the stations. Among other things the instructions required that ‘Dealer invoices must be done as of the close of business on the last day of the time period. Stick tanks, read the pumps and pull your money at the close of the day. This must not be done the day before, the day after, or during the day. At the close of the business day only.” | Similarly, “ Your days receipts must be deposited in the bank each and every day. This office will be calling your bank to verify that your deposit is made each day.” (Emphasis in all cases in the original). 55. Defendant’s business and pay practices were investigated beginning in April 1977, by Donald E. Lundhagen, a Compliance Officer of the Wage and Hour Division, United States Department of Labor. Mr. Lundhagen testified at trial. 56. On April 14, 1977, he went to the main office of Town Pump, Inc. and asked for the president or manager. He was directed to “Tom, Jr.,” Thomas P. Kenneally who is the son of the president, Thomas F., and who was identified to him as the vice-president. 57. Lundhagen was directed also to an individual identified as the Office Manager, from whom he obtained A-21 documents and statements as to the operation of the Town Pump stations. 58. In the course of his investigation he visited all 10 stations in Butte, 2 in Anaconda, 2 in Bozeman and 2 in Missoula, interviewed the operators at each, photo- graphed the stations and examined the living quarters. 59. Lundhagen also examined the operator’s weekly reports at each station he visited, verified the method and amount of compensation and reviewed copies of the lease agreement to see if they differed from the sample given him by Town Pump which he found to be typical. Where these documents were unavailable at the stations, he returned to the home office to examine them there. 60. Of the stations Lundhagen visited, each had a “Town Pump” sign, each was very similar in appearance and each had exactly the same record keep- ing forms. The records were all maintained at the main office in Butte. 61. Thestations Lundhagen visited did not vary in their posted hours of business which, uniformly were 7:00 a.m. to 10:00 p.m. 62. The office manager related that two stations, Butte #1 and Polson, operated differently than the rest. After further investigation verified this, Lundhagen excluded them from consideration. 63. Lundhagen reviewed his investigation findings with Tom Kenneally, Jr., on April 25, 1977, ata closing conference when he informed him that the Department of Labor considered the operators to be employees. 64. Lundhagen further determined from examin- ing sales records that until January 1, 1977, most of the stations were exempt from the minimum wage and over- time provisions under §13(a)(2) of the Fair Labor Standards Act, but that all were subject to them thereafter. 65. From the company sales records for each station for 1977 (Plaintiff's Exhibits 12 and 13) he com- A-22 puted the amount of underpayment under the minimum wage and overtime provisions. Using 105 hours per week as the approximate number of hours for each station, he divided these hours evenly between the two operators, i.e., husband and wife who operated the stations. 66. On this basis, each operator would be due at least 52 1/2 hours at the applicable minimum wage plus additional 1/2 time for 12 1/2 hours under the overtime provisic as. In 1977, this weekly amount was $270.26 for the two operators per station. 67. From this minimum amount he subtracted the one cent per gallon actually received at each station plus one cent per gallon as the stated “cost” of the housing (Tr. 135). -68. Plaintiff has proved its case only with regard to operators Challes, Crowley, Garner, Breeden, Hawk and Savage. The current hour and wage calculations are not readily available to the court and will be ordered submitted. 69. Violations, if continuing up to the date of this order, will result in back wages for 1981 being due. From the foregoing Findings of Fact the court draws the following CONCLUSIONS OF LAW 1. The court has jurisdiction of this case and the parties. 2. Defendant admits that its annual dollar volume exceeds $250,000 and that it has employees handling goods in or produced for commerce. It is there- fore a covered enterprise engaged in commerce or in the production of goods for commerce within the meaning of Section 3(s)(1) of the Fair Labor Standards Act, herein- after FLSA. 3. An enterprise is defined by the FLSA as follows: A-23 Section 3*** (r) ‘Enterprise’ means the related activities per- formed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more cor- porate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor .. . (emphasis added). 4. Related activities for purposes of §3(r) are those which are the same or similiar, Hodgson v. University Club Tower, Inc., 466 F.2d 745 (10th Cir. 1972). The operation of self-service gasoline stations all of which are similar in appearance and function and are operated in similar fashion constitutes activities which are related within the meaning of the FLSA. 5. Regardless of which corporation owns it, each of the stations sells gasoline distributed by defendant Town Pump, at a price set by Town Pump and at the direction of its representatives. Weekly sales reports are sent to Town Pump on forms it supplies. Each day the cash receipts are deposited to Town Pump’s account, and accounting is done at the central office in Butte, Montana. All gasoline purchas)»g and distribution is controlled from there. Detailed operating instructions are given to the station operators and enforced by de- fendant’s management. Unified operation and common control within the meaning of Section 3(r) are clearly present. 6. Regardless of ownership of the stations, each operator who testified was recruited, interviewed, in- structed and supervised by a Town Pump field repre- sentative. Each of these field representatives are employees of Town Pump. Prospective operators are told by newspaper ads to apply to Town Pump and Town A-24 Pump is the lessor on most of the leases in evidence, even of stations it does not own. Common control of all stations by defendant Town Pump is therefore estab- lished within the meaning of Section 3(r). 7. The organizational structure is both “hori- zontal, as in chain stores” and “vertical, as in the manu- facture and disposition of a particular product.” Although defendant does not manufacture the gasoline, it purchases and distributes it to its retail outlets. This satisfies the common business purpose test, Hodgsen v. University Club Tower, supra; Wirtz v. First National Bank and Trust Company, 365 F.2d 641 (10th Cir. 1966); Brennan v. Arnheim and Neely, Inc., 410 U.S. 512 (1973). 8. The business activities of defendant Town Pump, including those activities at the 54 service stations at issue here, constitute a single enterprise for purposes of Sections 3(r) and 3(5)(1) of the FLSA, unless performed by bona fide independent contractors. 9. The employment relationship which the FLSA defines is a comprehensive one: Section 3. As used in this Act... (d) ‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee. (e) ‘Employee’ includes any individual em- ployed by an employer. KKK (g) ‘Employ’ includes to suffer or permit to work. 10. From the Supreme Court’s decision in Rutherford Food Corporation v. McComb), 331 U.S. 722 (1947), the following indicia of independence have been extracted, see e.g. Usery v. Pilgrim Equipment Co., 527 F.2d 1308 (5th Cir. 1976), cert. den., 429 U.S. 826, and Marshall v. Truman Arnold Distr. Co., 640 F.2d 906 (8th Cir. 1981). 1. The nature and extent of control retained by the alleged employer. A-25 2. The alleged independent contractor’s investment in facilities. 3. His opportunity for profit and risk of loss. 4. The permanency of the relationship, and 5. The amount of initiative, skill and judg- ment required for the success of the claimed independent enterprise. 11. Another pertinent factor is the extent to which the services in question are an integral part of the alleged employer’s business, Shultz v. Mistletoe Express Service, Inc., 434 F.2d 1267 (10th Cir. 1970). 12. For the purposes of the FLSA, an independent contractor is one who is in business for himself; an employee is not in business for himself, but dependent upon finding employment in the business of another. Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 301-302 (5th Cir. 1975). 13. Courts must look to the economic realities to determine if an employment relationship exists. Real v. Driscoll Strawberry Assoc., Inc., 603 F.2d 748 (9th Cir. 1979). Application of these factors to the facts shown at trial compel the conclusion that the station operators are employees of defendant. 14. Control. The company has complete control over every significant aspect cfthe business. Town Pump determines the location of its stations, requires that the operators live on the premises, and will not allow thesale of any gasoline but its own. The company determines the retail price of the gasoline and will not allow price changes without its permission. The company requires periodic sales reports on its forms and daily deposits of receipts to its account. The company maintains sales and receipts records at its central office and makes deduc- tions for losses and shortages as it sees fit. 15. Defendant maintains that its operators have some discretion to set their own hours of business. Such discretion is illusory. The commission method of pay- ment virtually requires the operators to maintain long hours. In fact, the evidence shows that Town Pump virtu- A-26 ally requires that each station be open 15 hours per day and allows only minor flexibility as to opening and closing times. 16. Investment. The operators have none. The de- fendant advertises that no cash investment is required. The facilities and equipment are owned and maintained by defendant, except for minor repairs. While the written agreements recite rental payments, set at one cent per gallon sold, that is not actually paid out but is merely a deduction from the operator’s gross receipts. 17. The licenses for gasoline sales at each station are in Town Pump’s name and obtained by the company, as are government gasoline allocations, as well as retail and grocery licenses. 18. Each operator’s “investment” in his inventory of sideline items such as cigarettes and candy is minimal compared to the overall cashflow of the business and is inconsequential in assessing the dependence of the operator upon defendant. Mednick v. Albert Enterprises, Inc., 508 F.2d 297 (5th Cir. 1975). 19. Profit and loss. Under the commission arrangement, no one but defendant has an opportunity for profit in the true sense of the word: return on capital. Nor do the operators bear the risk of loss of venture capital. The fact that defendant holds them responsible for bad checks and other shortages simply demonstrates their true function as little more than cashiers in defendant’s business organization. 20. Permanency. The operators remain on the job fox as long as they like provided they meet the require- ments set by Town Pump. None of them has anything resembling a business or organization capable of offering the same services to distributors other than defendant, see Usery v. Pilgrim Equipment, 527 F.2d 1308 (5th Cir. 1976). They are dependent upon Town Pump for continued employment. A-27 21. Initiative. Defendant makes much of the fact that each operator can increase his commission by selling more gasoline and encouraging repeat customers. Salesmanship, however, cannot be equated with business initiative and judgment. As in Pilgrim Equip- ment, supra, Town Pump controls “{all] major com- ponents open to initiative” most importantly, pricing and the choice of distributors with whom to deal. The only “initiative” required is provided by the economic necessity to the operator of keeping the station open some 15 hours a day, seven days a week. 22. Finally it is clear from the evidence that the retail sale of gasoline as performed by the operators is “an integrated part of [Town Pump’s] business,” Shultz v. Mistletoe Express Service, 434 F.2d 1267 (10th Cir. 1970). Town Pump “distributes” several million gallon [sic] of gasoline annually to the stations in question. Its gross profits are almost wholly governed by the differ- ence between the wholesale price it pays for the gasoline and the price at the pump, less overhead which includes the one cent per gallon commission paid to the operator. 23. When the economic realities of defendant’s business relationship with its operators are examined in light of the above factors it is evident that the operators are employees within the meaning of Section 3(e) of the FLSA and that defendant Town Fump is their employer within the meaning of Section 3(d) of that Act. 24. Itis immaterial that not all of the time spent on the job by the operators is spent “working.” Readiness to serve may be hired to the same extent as service itself. Armour & Co. v. Wontock, 323 U.S. 126 (1944). 25. It is also immaterial that the defendant may have convinced its station operators that they were in- dependent contractors by stating so in the lease and by other communication. The defendant’s attempt to affix the name of “independent contractor” to the operators will avail it little in ascertaining the true nature of the relationship for FLSA purposes. Mednick v. Albert Enterprises, Inc., 508 F.2d 297 (5th Cir. 1975). A-28 26. Continuing violations of Sections 6 and 7 of the FLSA since at least January 1, 1977, and unpaid mini- mum wages and overtime compensation in substantial amounts were shown. Therefore, the Secretary is entitled to an injunction and back wage recovery regardless of any argument by defendant that it did not believe it was violating the Act, Shultz v. Mistletoe Express, supra. Such relief is remedial rather than punitive in nature and the purpose is “to correct a continuing offense against the public interest,” Shultz v. Mack Farland & Sons Roofing Co., 413 F.2d 1296, 1302 (5th Cir. 1969); Wirtz v. Malthor, Inc., 391 F.2d 1 (9th Cir. 1968). 27. Where, as here, the employer has failed to main- tain records of hours worked, in violation of Section 11 of the FLSA, defendant cannot defeat plaintiffs claim for back wages merely by showing that the evidence lacks the precision it would have if detailed records were kept. Plaintiff has shown the minimum extent of work per- formed by the operators as a matter of “just and reason- able inference,” which is sufficient to shift the burden to defendant of coming forward with precise evidence that fewer hours in fact were worked, Anderson v. Mt. Clemens Pottery, 328 U.S. 680 (1946); Dunlop v. Johnson Waste Materials, Inc., 78 CCH Labor Cases, par. 33,287 (S.D. Tex. 1975). 28. The defendant presented no evidence regarding the operator’s hours of work and failed to rebut the plaintiff's evidence that all were open 15 hours per day or more, seven days a week. Damages based upon the approximate amounts computed by plaintiff may be awarded under Sections 16(c) and 17 of the FLSA. Mt. Clemens Pottery, supra. 29. The defendants are entitled to credit for the commission paid the operators and for the value of the living quarters provided the operators. Marshall v. Truman Arnold Distr. Co., Inc., 640 F.2d 906 (8th Cir. 1981). 30. Liquidated damages under Section 16(c) of the FLSA are to be awarded unless defendant can meet its burden of showing to the satisfaction of the court that it A-29 had reasonable grounds to believe it was in compliance, Section 11 of the Portal to Portal Act, 29 U.S.C. 260. The court will require the submission of further evidence on the issue of defendant’s good faith belief, and will reserve ruling on the issue of liquidated damages. 31. Since January 1, 1977, defendant has violated and is violating the provisions of §§5 and 15(a)(2) of the FLSA by paying to its employees, for their employment in an enterprise engaged in commerce or the production of goods for commerce, wages at rates less than Two Dollars Thirty cents ($2.30) per hour after December 31, 1976; Two Dollars Sixty-Five cents ($2.65) per hour during the year beginning January 1, 1978; Two Dollars ‘Ninety cents ($2.90) per hour during the year beginning January 1, 1979; and Three Dollars Ten Cents ($3.10) per hour during the year beginning January 1, 1980. 32. Defendant has violated and is violating the pro- visions of §§7 and 15(a)(2) of the FLSA by employing its employees in an enterprise engaged in commerce or in the production of goods for commerce for workweeks longer than 40 hours since January 1, 1977, without compen- sating said employees for their employment in excess of 40 hours in such workweeks at rates not less than one and one-half times the regular rates at which they were employed. 33. As aresult of these violations unpaid minimum wages and overtime compensation are owing from defendant to its operators Challes, Crowley, Garner. Breeden, Hawk and Savage for the period from January 1, 1977, through December 31, 1979. 34. As tothe remaining stations and operators, the plaintiff has failed to prove its case and must submit testimony with regard to the hours worked by operators of these stations. See Marshall v. Truman Arnold Distr. Co., Inc., 640 F.2d 906 (8th Cir. 1981). 35. Insofar as the violations are continuing, addi- tional amounts have accrued since January i, 1980, for defendant’s operators who were so employed since that date. A-30 36. A judgment granting recovery is specifically authorized by §16(c) of the FLSA. 37. Defendant, an employer subject to the provi- sions of the FLSA, has violated and is violating the provisions of §§11(c) and 15(a)(5) of the FLSA, in that since January 1, 1977, it has failed to make, keep and preserve records of its said employees and of the wages, hours and other conditions and practices of employment maintained by defendant, as prescribed by the regula- tions promulgated pursuant to §11(c) at 29 C.F.R. 516. IT IS THEREFORE ORDERED and this does order that judgment shall be entered in favor of plaintiff, pursuant to §17 of the FLSA permanently enjoining and restraining defendant, its officers, agents, servants, employees, and those persor.s in active concert or parti- cipation with defendant who received actual notice thereof from violating the provisions of §§15(a)(2) and 15(a)(5) of the FLSA. IT IS FURTHER ORDERED that judgment be entered pursuant to §16(c) of the FLSA, against defendant and in favor of plaintiff for unpaid minimum wages and overtime compensation in an amount to he determined for the operators Challes, Crowley, Garner, Breeden, Hawk and Savage. IT IS FURTHER ORDERED that plaintiff submit calculations of hours worked and wage and overtime amounts owed by defendant to the operators set forth above within 30 days of the date of this order. This amount is to be credited with a proper amount to com- pensate for the fair value of the living quarters provided to the operators and the amount previously paid the operators through the one cent per gallon commission. Done and dated this 6th day of October, 1981. W. D. Murray Senior United States District Judge. A-31 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RAYMOND J. DONOVAN, States Department of Labor CA No. 83-4313 DC No. CV 78-0031 Plaintiff-Appellant, (Montana) TOWN PUMP, INCORPORATED, ORDER a corporacion, Defendant-Appellee. November 23, 1984 tll i i i Before: PECK*, WRIGHT and FARRIS, Circuit Judges. Appellee’s petition for rehearing is denied. *Hon. John W. Peck, United States Court of Appeals for the Sixth Circuit, sitting by designation. APPENDIX B B-1 Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201-219 § 203. Definitions (d) “Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organi- zation. (e)(1) Except as provided in paragraphs (2) [re- lating to an individual employed by a public agency] and (3) [relating to individuals employed by a relative engaged in agriculture] the term “employ- ee” means any individual employed by an employer. (g) “Employ” includes to suffer or permit to work. § 215. Prohibited acts; prima facie evidence (a) [I]t shall be unlawful for any person — — (2) to violate any of the provisions of section 206 or section 207 of this title, or any of the pro- visions of any regulation or order of the Adminis- trator issued under section 214 of this title. (5) to violate any of the provisions of section 211(c) of this title, or any regulation or order made or continued in effect under the provisions of section 211(d) of this title, or to make any statement, report, or record filed or kept pursuant to the pro- visions of such section or of any regulation or order thereunder, knowing such statement, report, or record to be false in a material respect. B-2 § 216. Penalties; civil and criminal liability, injunction proceedings terminating right of action; waiver of claims; actions by Secretary of Labor; limitation of actions; savings provision. (c) The Secretary is authorized to supervise the payment of the unpaid minimum wages or the . unpaid overtime compensation owing to any employee or employees under section 206 or section 207 of this title, and the agreement of any employee to accept such payment shall upon payment in full constitute a waiver by such employee of any right he may have under subsection (b) of this section to such unpaid minimum wages or unpaid overtime compensation and an additional equal amount as liquidated damages. The Secretary may bring an action in any court of competent jurisdiction to recover the amount of unpaid minimum wages or overtime compensation and an equal amount as liquidated damages. The right provided by sub- section (b) of this section to bring an action by or on behalf of any employee to recover the liability specified in the first sentence of such subsection and of any employee to become a party plaintiff to any such action shall terminate upon the filing of a complaint by the Secretary in an action under this subsection in which a recoverv is sought cf unpaid minimum wages or unpaid overtime compensation under sections 206 and 207 of this title or liquidated or other damages provided by this subsection owing to such employee by an employer liable under the provisions of subsection (b) of this section, unless such action is dismissed without prejudice on motion of the Secretary. Any sums thus recovered by the Secretary of Labor on behalf of 2n employee pursuant to this subsection shall be held in a special deposit account and shall be paid, on order of the Secretary of Labor, directly to the employee or employees affected. Any such sums not paid to an employee because of inability to do so within a B-3 period of three years shall be covered into the Treasury of the United States as miscellantous receipts. In determining when an action is com- menced by the Secretary of Labor under this sub- section for the purposes of the statutes of limitations provided in section 255(a) of this title, it shall be considered to be commenced in the case of any individual claimant on the date when the com- plaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action. § 217. Injunction Proceedings The district courts, together with the United States District Court for the District of the Canal Zone, the District Court of the Virgin Islands, and the District Court of Guam shall have jurisdiction, for cause shown, to restrain violations of section 215 of this title, including in the case of violations of section 215(a)(2) of this title the restraint of any withholding of payment of minimum wages or over- time compensation found by the court to be due to employees under this chapter (except sums which employees are barred from recovering, at the time of the commencement of the action to restrain the violations, by virtue of the provisions oi section 255 of this title). 28 U.S.C. § 1291. Final Decisions of District Courts. The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, B-4 the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the juris- diction described in sections 1292(c) and (d) and 1295 of this title. 28 U.S.C. § 1345. United States as Plaintiff. Except as otherwise provided by act of Congress the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2441%3A1. Public record. Not legal advice.