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Callaway v. N. B. Downing Co.

Superior Court of Delaware, Sussex County

June 21, 1961

Joseph N. CALLAWAY, Plaintiff,
v.
N. B. DOWNING CO., a corporation of the State of Delaware, Defendant.

Page 261

Robert W. Tunnell, of Tunnell & Raysor, Georgetown, for plaintiff.

[53 Del. 494] Daniel J. Layton, Jr., Georgetown, for defendant.

STOREY, Judge.

This case comes before me on the following agreed statement of facts. Plaintiff, Joseph N. Callaway, was employed continuously by the defendant, N. B. Downing Co., a corporation of the State of Delaware, from February 24, 1958 to February 5, 1960, as an expert cabinet maker and carpenter. During this period, defendant received various subcontracts to furnish finished millwork to certain general contractors who were engaged in the construction, alteration and repair of various school buildings in the State. Part of the funds used to compensate these general contractors was appropriated by the General Assembly. Plaintiff was employed by defendant to work on these subcontracts. Plaintiff performed all his work at defendant's place of business and did not work at the actual construction sites with the general contractors. However, plaintiff did make occasional visits to these construction sites in order to obtain measurements and other data necessary for the construction of items called for under the subcontracts.

During his employment with defendant, plaintiff received compensation at the rate of $1.90 per hour for 758 hours and 40 minutes. Plaintiff alleges that he was entitled to a minimum wage of $2.60 per hour during his employment, and herein sues for the difference between the wages paid and the minimum wage, i. e., $.70 per hour for 758 hours and 40 minutes, or $531.07. Plaintiff bases his claim on our minimum wage law which reads as follows:

'Specifications upon which contracts are entered into for the construction, alteration or repair of any public work, for which the State appropriates any part of the funds, shall, as far as possible, contain the minimum rate of wages which may [53 Del. 495] be paid by the contractor, or his subcontractors, for the work performed by laborers and mechanics employed on such public work, and such laborers or mechanics shall be paid not less than such minimum wage or wages.' Del.Code Ann. tit. 29, § 6913 (1953).

The minimum wage for carpenters, such as plaintiff, was $2.60 per hour.

Both parties have filed motions for summary judgment based upon the pleadings, depositions and agreed statement of facts.

The sole question presented in this case is whether plaintiff is entitled to the benefits of our minimum wage law. Defendant asserts that plaintiff is not so entitled and makes the following two contentions: (1) plaintiff cannot maintain a civil action based on the minimum wage law since it is wholly criminal in nature; and (2) plaintiff was not 'employed on such public work' as required by the statute and is therefore not covered by its provisions. I will consider defendant's contentions in this order.

In support of its contention that our minimum wage law is wholly penal in nature and confers no cause of action on plaintiff herein, defendant states that our law is similar to the Federal Bacon-Davis Act, 40 U.S.C.A. §§ 276a-276c. The Bacon-Davis Act is 'declarative of public policy and penal in nature.' Willis v. E. I. Du Pont De Nemours & Co., D.C.E.D.Okl.1948, 76 F.Supp. 1010, 1013, reversed 10 Cir., 171 F.2d 51. However, the Bacon-Davis Act

Page 262

specifically provides that if a contractor has failed to pay the minimum wage required, and if funds withheld by the Comptroller General are insufficient to reimburse the laborer for this deficiency in wage payment, then the laborer shall have a right of action against the contractor for the deficiency. 40 U.S.C.A. § 276a-2(b); Willis v. E. I. Du Pont De Nemours & [53 Del. 496] Co., supra, 76 F.Supp. at page 1013. Part of accrued payments due the contractor may be withheld to make up the difference between the minimum wage required and the wage actually paid to laborers. 40 U.S.C.A. § 276a. The Comptroller General is authorized to pay wages found to be due any laborer from these sums withheld. 40 U.S.C.A. § 276a-2(a).

The scheme of the Bacon-Davis Act seems to be this: sums are withheld from the contractor to make up the difference between the required minimum wage and the wage actually paid a laborer; this sum is paid over to a laborer who received less than the minimum wage; of this sum is insufficient to fully compensate a laborer, then he may sue the contractor for the deficiency.

In comparison, our minimum wage law provides that contracts entered into under the law 'shall stipulate a penalty of an amount equal to three times the difference between the minimum wage * * * and the wage actually paid * * *' where the latter is less than the former. Del.Code Ann. tit. 29, § 6914 (1953). Inspectors shall check to ascertain if the minimum wages are being paid, and upon finding out they are not so paid, the penalty 'shall be withheld and deducted, for the use of the State, from any moneys due the contractor * * *' § 6914, supra. However, § l914 does not state what disposition is to be made of the penalty withheld other than it shall be deducted 'for the use of the State'.

Two material differences between our law and the Bacon-Davis Act are apparent: (1) our law does not provide that withheld sums shall be paid to the laborer; and (2) the laborer is not specifically given a cause of action against the contractor under our minimum wage law. The logical inference is that our General Assembly intended that part of the withheld penalty should be paid over to the employee who was paid less than the minimum wage to compensate such employee for the difference between the minimum wage and [53 Del. 497] the lesser wage he received. It also seems logical to assume that if the employee is not fully compensated, then he may maintain a cause of action against his employer for the deficiency. Such a civil remedy is not specifically denied by the law. However, I am ...


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