United States v. Universal Cit Credit Corp./Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

I think the question whether an employer has violated the criminal provisions of the Act is determined by reference to what he has done to a particular employee. The Act does not speak of 'course of conduct.' That is the Court's terminology, not the Act's. The Act requires the employer to pay 'each of his employees' not less than 75 cents an hour, prohibits him from employing 'any of his employees' for more than 40 hours a week unless overtime is paid, and requires him to keep records of 'the persons employed by him' and the wages, hours, etc. 29 U.S.C. §§ 206, 207, 211(c), as amended, 29 U.S.C.A. §§ 206, 207, 211(c). And the Act makes it unlawful for an employer to violate 'any of the provisions' of those sections. 29 U.S.C. §§ 215, 216(a), 29 U.S.C.A. §§ 215, 216(a).

It therefore seems clear to me that if an employer pays one employee less than 75 cents an hour or fails to pay overtime to one employee, or fails to keep the required records for one employee a crime has been established, if scienter is shown. And it seems equally clear to me that if an employer wilfully fails to pay one employee the minimum wage, and wilfully fails to pay him the required overtime, and wilfully fails to keep the required records for him, three crimes have been committed. The crime is defined with reference to the individual employee. The crime may be a single, isolated act. It may or may not be recurring or continuous. The violation may affect one employee one week or one month and another employee another week or another month; and it may affect one employee in one way, another employee in a different way. The violations may be continuous, and follow a set pattern; or they may be sporadic and erratic. The Act does not differentiate between them. Nothing is said about 'course of conduct.' Perhaps a committee of Congress would be receptive to the suggestion now made. But it should be received there, not here. Of course, horrendous possibilities can be envisaged under almost every law. But the prosecutors who enforce this Act, the grand juries who hear the evidence on violations, and the District Courts who apply the sanctions have to date not made these criminal provisions oppressive and beyond reason. Yet until this case no court, so far as I can learn, has ever had the inventive genius to suggest that 'course of conduct' rather than the 'employee' is the unit of the crime.