United States District Court, Northern District of Illinois
December 13, 1974
STANLEY LENCA AND BEULAH LENCA, PLAINTIFFS,
LARAN ENTERPRISES, INC., DEFENDANT.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes before the Court on the motion of defendant to
dismiss the complaint for want of jurisdiction.
This action was brought pursuant to the Fair Labor Standards
Act of 1938, 29 U.S.C. § 201 et seq., which guarantees
certain rights to employees engaged in interstate
commerce.*fn1 The complaint specifically alleges that:
"At all times material herein Defendant was part of an
enterprise engaged in commerce or in the production of goods
for commerce within the meaning of Section 3(s) of the Act.
Defendant has violated the provisions of Section 7(a)(1) of
the Act by employing Plaintiff Stanley Lenca for workweeks
longer than forty hours without compensating him for his
employment in excess of forty hours a week at rates not less
than one and one-half times the regular rate of pay at which
he was employed.
Defendant has violated the provisions of Sections 6(a)(1) of
the Act by failing to compensate Plaintiff Beulah Lenca for
her hours worked and Section 7(a)(1) of the Act by employing
her for workweeks longer than forty hours a week at rates not
less than one and one-half times the legal minimum wage of
$1.60 an hour.
Under Plaintiff Stanley Lenca's agreement with Defendant he
was compensated during the period August 1972 through June
1973 at an average monthly salary of $866.00 plus free rental
of an apartment at an estimated value of $150.00 per month,
or total compensation of $1016.00 per month, for all hours
During the period August 1972 through June 1973 Plaintiff
Stanley Lenca worked in the Defendant's employ a total of
5,280 hours and received total compensation of $11,176.00.
Mr. Lenca received no overtime pay during this period.
During the period August 1972 through June 1973 Plaintiff
Stanley Lenca had a regular straight-time rate of pay of
$2.11 per hour ($11,176 divided by 5,280 hours). During this
period he worked a total of 3,400 overtime hours for which he
should have received an additional one-half time pay, or
$1.055 per hour, for a total of $3,587.00.
During the period August 1972 through June 1973, Plaintiff
Beuhla Lenca worked in Defendant's employ a total of 3,960
hours of which 1,880 hours were straight time and 2,080 hours
were overtime. She received no compensation for any of these
hours. The then federal minimum wage under Section 6(a)(1) of
the Act was $1.60 per hour. As a result Plaintiff Beulah
Lenca was entitled to $3,008.00 in straight time pay (1,880
hours x $1.60) and $4,992.00 in overtime pay (2,080 hours x
$2.40) or a total of $8,000.00.
Essentially the issue for consideration before the Court is
whether a residential janitor is engaged in commerce or in the
production of goods for commerce within the coverage of the
Fair Labor Standards Act.
At the outset certain basic principles must be acknowledged. As
stated by the Court of Appeals for the Tenth Circuit:
". . . The Act was passed for humanitarian and remedial
purposes, A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493,
65 S.Ct. 807, 89 L.Ed. 1095; it must be liberally construed `to
apply to the furthest reaches consistent with direction,'
Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 211,
79 S.Ct. 260, 264, 3 L. Ed.2d 243; and breadth of coverage is
vital to the Act's mission, Powell v. United States Cartridge
Co., 339 U.S. 497, 516, 70 S.Ct. 755, 94 L.Ed. 1017." Hodgson
v. University Club Tower, Inc., 466 F.2d 745 (10th Cir. 1972).
Despite liberal treatment of the Act's coverage this Court is
of the opinion that plaintiffs under the facts of this case do
not enjoy its benefits. Defendant is not an "enterprise"
engaged in interstate commerce within the meaning of the Act
which provides at Section 203(s)(1) that such an enterprise
exists when there is a $250,000 annual gross volume of sales.
As evidenced by the affidavit executed by the president of the
defendant corporation, during each of the years of plaintiff
Stanley and Beulah Lenca's employment, there was less than
$100,000 of gross sales or business. On the other hand, as
individual employees plaintiffs are entitled to coverage under
203(j) only if their work is "in producing, manufacturing,
mining, handling, transporting, or in any other manner working
on such goods [for commerce], or in any closely related process
or occupation directly essential to the production thereof
. . . ."
A review of cases indicates that a residential or commercial
janitor's work does not substantially affect interstate
commerce. In their memoranda plaintiffs cite many factors in an
attempt to show plaintiffs' influence on interstate commerce,
i. e., use of supplies
such as cleaning compounds, light bulbs, plumbing repair parts
which traveled in interstate commerce; use of the telephone in
speaking with prospective tenants from out of state; delivery
of tenant's mail, etc. However none of these activities is of
such character to have any significant impact on interstate
commerce. Plaintiffs are simply not engaged in "production of
goods for commerce" as that phrase has heretofore been
interpreted. See Hunter v. Madison Ave. Corp., 174 F.2d 164
(6th Cir.), cert. denied, 338 U.S. 836, 70 S.Ct. 45, 94 L.Ed.
510 (1949); Baldwin v. Emigrant Industries Sov. Bank,
150 F.2d 524 (2nd Cir.), cert. denied, 326 U.S. 767, 66 S.Ct. 171, 90
L.Ed. 462 (1945); Blumenthal v. Girard Trust Co., 141 F.2d 849
(3rd Cir. 1944); Tullis v. Shavin, 230 F. Supp. 52 (D.C.Tenn.
1963), aff'd 332 F.2d 616 (6th Cir.); Addison v. Commercial
Nat. Bank in Shreveport, 70 F. Supp. 619 (D.C.La. 1947), aff'd
165 F.2d 937 (5th Cir.); Building Service Employees
International Union Local No. 238 v. Trenton Trust Co.,
53 F. Supp. 129 (D.C.N.J. 1943), aff'd 142 F.2d 257 (3rd Cir.);
Houchin v. Thompson, 438 F.2d 927 (6th Cir. 1970); Wirtz v. B.
B. Saxon Co., 365 F.2d 457 (5th Cir. 1966); Shultz v. Isaac T.
Cook Company, 314 F. Supp. 461 (E.D.Mo. 1971); Thomason v.
Alester G. Furman Co., 222 F.2d 421 (4th Cir. 1955); Pollard v.
Herbert J. Siegel Org., Inc., 272 F. Supp. 821 (D.Md. 1967); 10
East 40th Street Bldg., Inc., v. Callus, 325 U.S. 578, 65 S.Ct.
1227, 89 L.Ed. 1806 (1945); Dolan v. Swope, 138 F.2d 301 (7th
The Court fails to see how the Act applies to either the
defendant (which is not an "enterprise") or to the plaintiffs
(who have failed to establish that their job activity
substantially affects interstate commerce in the traditional
sense). The difference between "traditional" and "enterprise"
application of the Act as to janitors was discussed in Hodgson
v. University Club Tower, Inc., 350 F. Supp. 817 (N.D.Okla.
1971), aff'd 466 F.2d 745 (10th Cir.), where the court found
that an apartment house and a hotel were not a single
"enterprise" despite common ownership and thus, without more,
the janitors in the apartment house were not within the
coverage of the Act.
All the cases cited by plaintiffs involved a situation wherein
the defendants were engaged by an "enterprise" which had gross
business in excess of $250,000. Those cases have no bearing on
the facts of this case wherein defendant's business, or the
employing enterprise, is not in excess of $250,000.
Consequently, plaintiffs' work activities must be so extensive
as to affect interstate commerce. The facts of the case
indicate that plaintiffs' activities are not of interstate
character or impact.
Accordingly, defendant's motion to dismiss is hereby granted.
Plaintiffs' motion for a partial summary judgment is denied.