John Marshall Harlan II

“ It is contended, however, that even though equitable jurisdiction to restore lost wages resulting from an unlawful discharge may originally have existed under § 17, such jurisdiction was withdrawn by the 1949 proviso which disabled courts in § 17 actions from awarding 'unpaid minimum wages or unpaid overtime compensation or an additional equal amount as liquidated damages * * *.' 80 S.Ct. ”

“ This being so, there is no warrant for construing the § 17 proviso as reaching beyond suits to enjoin violations of the minimum wage and overtime provisions of the statute, so as wholly to eradicate any jurisdiction to restore wage losses to employees discharged in violation of § 15 (a) (3) . ”

“ Resort to statutory remedies might thus often take on the character of a calculated risk, with restitution of partial deficiencies in wages due for past work perhaps obtainable only at the cost of irremediable entire loss of pay for an unpredictable period. Faced with such alternatives, employees understandably might decide that matters had best be left as they are. ”

“ Respondents cannot be heard to assert that wages are ordered to be paid for services which were not performed, for it was the employer's own unlawful conduct which deprived the employees of their opportunity to render services. ”

“ Notes
↑ In addition to the conduct prohibited by § 15 (a) (3) , various other activities are proscribed by paragraphs (1) , (2) , (4) , and (5) of subdivision (a) of that section.↑ The opinion of the District Court is reported in 180 F.Supp. ”