W. Willard Wirtz, Secretary of Labor, United States Department of Labor v. Milton J. Wershow Co., a California Corporation

The Secretary of Labor brought this action to enjoin defendant from violating the provision's of Sections 15(a) (2) and 15(a) (5) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.), and prayed (1) for an injunction against future violations and (2) for restraint against withholding of payment of overtime compensation past due to certain named employees.

Defendant moved to dismiss and buttressed the motion by affidavit of defendant’s Controller, averring: “Ever since the alleged violations of the Act were called to our attention, payment of wages and overtime compensation have been and are made in accordance with advice rendered by counsel to be in compliance with the provisions of the Fair Labor Standards Act.” Defendant argued that there was no equitable basis for enjoining future violations in view of the affidavit of compliance and that the Court had jurisdiction to restrain withholding of payments due employees for past violations only in conjunction with an injunction against future violations. The plaintiff admitted that it could not refute the affidavit of present compliance without conducting a new investigation.

The trial court treated the…