McGrath et al v. City of Somerville

Filing 128

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER On Motions For Summary Judgment entered, granting in part and denying in part 90 Motion for Partial Summary Judgment; 94 Motion for Summary Judgment; and 110 Motion for Partial Summary Judgment. (Bono, Christine)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
MICHAEL MCGRATH, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
CITY OF SOMERVILLE,
)
)
Defendant.
)
)
__________________________________________)

Civil Action No.
17-10979-FDS

MEMORANDUM AND ORDER ON
MOTIONS FOR SUMMARY JUDGMENT
SAYLOR, J.
This is an action for violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201
et seq., and the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, §§ 148, 150. Plaintiff
Michael McGrath and 82 other individually named plaintiffs are current and former police
officers who are or were employed by defendant the City of Somerville, Massachusetts, between
May 26, 2014, and May 26, 2017. The complaint alleges that the officers regularly worked more
than 40 hours a week but were not paid overtime as required by law.
This is not a typical claim for unpaid wages. Somerville police officers are paid
generously, according to a complicated system with various supplements and bonuses depending
on their rank, seniority, duties, shift, education, and training. They also have ample opportunities
for paid details, including an entitlement to certain minimum payments even if little work was
performed. Those provisions are the product of a collective bargaining agreement between the
police officers’ union and the City, negotiated with the participation of experienced labor counsel

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on both sides.
Plaintiffs do not allege that the City breached the terms of the CBA. Instead, they argue
that by complying with the CBA, the City violated both the FLSA and the Massachusetts Wage
Act, and that they are entitled to additional overtime pay as a matter of law. Their claims are
highly technical, and involve the intersection of a complex compensation scheme and complex
provisions of federal labor law.
The parties have filed cross-motions for summary judgment as to a variety of issues. For
the following reasons, both motions will be denied in part and granted in part.
I.

Background
Except where otherwise noted, the following facts are set forth in the record and are

undisputed.
A.

Factual Background

Michael McGrath and 82 other individual plaintiffs are current or former police officers
employed by defendant the City of Somerville between May 26, 2014, and May 26, 2017. (First
McGrath Aff. ¶ 1). The Somerville Police Employees Association (“the SPEA”) is the exclusive
bargaining agent for all Somerville Police Patrol Officers, including plaintiffs. (Def.’s SMF ¶ 3).
1.

The Collective Bargaining Agreement

On November 8, 2007, the City and the union executed a collective bargaining agreement
(the “CBA”). (Def.’s Ex. 2 (CBA) at 57). The City and the union modified the CBA in March
2009 and again in November 2011. (Id. at 59-63). The City was represented by experienced
labor and employment counsel throughout the negotiations and modifications of the CBA.
(Collins Decl. ¶ 3). The union was also represented in the negotiations by counsel. (Id.). Over
the course of the negotiations, neither the City’s outside counsel nor the union’s counsel

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suggested that the provisions of the CBA failed to comply with the FLSA. (Id. ¶ 4). The City’s
then Chief Labor Counsel, Robert Collins, believed that the CBA complied with the law. (Id.).
The CBA expired on June 30, 2012. (CBA at 61; Buckley Decl. Ex. 3 at 64). It is
unclear what happened next, but in 2014, a petition was filed for exercise of jurisdiction before
the Joint Labor Management Committee (“JLMC”) to reach a successor contract through a form
of interest arbitration. (Buckley Decl. Ex. 3 at 64).1 On December 22, 2016, the JLMC issued
its decision, modifying certain terms of the CBA and implementing an “evergreen clause,” which
extended the CBA until the City and the union reach a new agreement. (Id. at 76-77, 114). In
January 2019, the City and the union commenced bargaining over the terms of a new CBA.
(Cooper Decl. ¶ 9). At the time of the filing of motions for summary judgment, those
negotiations were still ongoing. (Id.).
From May 2014 to the present, the City has paid plaintiffs as specified by the CBA.
(First McGrath Aff. ¶ 6).
a.

Assignments, Schedules, and Shifts

The CBA governs the assignments, schedules, and shifts of police officers. (CBA Art.
VIII §§ 1-3). Non-superior officers may be assigned to the following divisions: (1) patrol; (2)
station; (3) neighborhood police; (4) traffic bureau; (5) criminal investigation/detective bureau;
and (6) administrative duties/other. (Buckley Decl. Ex. 4). Officers assigned to the patrol,
station, and neighborhood police divisions work a “four-and-two” schedule, working four days
followed by two days off. (CBA Art. VIII § 2(a)). Officers assigned to the traffic, criminal
investigation/detective, or administrative divisions generally work a “five-and-two” schedule,
working five consecutive days Monday through Friday with Saturday and Sunday off. (CBA
1
The City contends that the union filed the petition. Plaintiff admits that a petition was filed with the
JLMC but contends that there is no evidence cited as to who filed the petition. (Def. SMF ¶ 12 & Pl. Resp.).

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Art. VIII § 2(b)). Officers work one of three eight-hour shifts: (1) day shift (8:00 a.m. to 4:00
p.m.); (2) first half shift (4:00 p.m. to midnight); or (3) last half shift (midnight to 8:00 a.m.).
(CBA Art. VIII § 1(a)).
Officers assigned to the patrol and neighborhood divisions attend “[r]oll call immediately
prior to the commencement of each work shift or tour of duty, not to exceed fifteen (15)
minutes,” which is explicitly excluded from the CBA’s definition of “overtime service.” (CBA
Art. VIII § 3(a)(4)). The CBA also refers to that roll call time as “unpaid” and excludes it from
its definition of officers’ “regular work day.” (CBA Art. VIII § 1). At roll call, officers receive
information about prior and upcoming shifts and pick their assignments. (Clark Dep. at 21;
McDaid Dep. at 61). Officers receive no additional compensation for their time spent attending
roll call. (CBA Art. VIII § 1).
b.

Compensation

An officer’s annual base salary is determined by seniority within the department. (CBA
Art. XIX § 1). Each Friday, officers receive 1/52 of their annual base salary, regardless of their
actual hours worked in their regularly scheduled shifts. That pay is intended to compensate them
for all hours associated with their regularly scheduled shifts during the preceding seven-day
period. (Monaco Dep. at 12; Nardone Dep. at 25; Shea Dep. at 49). Officers are compensated
based on a seven-day workweek, running from Sunday through Saturday. (Elpidoforos Dep. at
52; McDaid Dep. at 53; McGrath Dep. at 31; Nardone Dep. at 31; Shea Dep. at 50). Officers
receive an additional seven percent of their weekly base salary each week “in recognition of their
availability to work nights” (“night-availability differential”). (CBA Art. XIX § 2(a)). In
addition to the night-availability differential, each officer who works a first-half or last-half shift
receives a night differential of $1,000 per year. (CBA Art. XIX § 2(b)). Officers who work a

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weekend shift receive an additional $7.00 or $6.50 per hour. (CBA Art. XIX § 4(a)-(b)).
Officers who have a degree in law enforcement receive an additional 5% to 12.5% of
their weekly base salary, depending on the level of law-enforcement-specific education attained.
(CBA Art. XIX § 5(b)). Officers who have an advanced degree in a field other than law
enforcement receive an annual bonus between $300 and $500. (CBA Art. XIX § 5(a)). Eligible
officers receive an annual weapons-of-mass-destruction stipend of $500. (CBA Art. XIX § 7).
Officers receive an annual bonus between $475 and $600 depending on their performance in a
weapons-performance examination. (CBA Art. XIX § 6). Officers who have worked for the
department for more than five years receive an annual bonus between $200 and $3,900. (CBA
Art. XIX § 3). Officers who have worked for the department for more than twenty years receive
an additional annual bonus between $800 and $3,200. (CBA Art. XIX § 3(A)).
Officers are compensated for fourteen annual holidays, including their birthdays. (CBA
Art. IX § 1). On holidays, officers receive an additional day’s pay, computed at one-fourth of
their weekly compensation. (CBA Art. IX § 3).
c.

Overtime Compensation

All service outside of an officer’s regularly scheduled tour of duty or work shift (other
than paid police details) is considered overtime service. (CBA Art. VIII § 3; Shea Dep. at 46).
Officers performing overtime service receive one-and-a-half times their hourly rate of pay for
each hour of overtime service or fraction thereof. (CBA Art. VIII § 5; D’Angeli Dep. at 32-33).
The straight-time hourly rate is calculated by dividing the sum of each officer’s weekly base
salary, educational-incentive payment, and night-availability differential by 40. (Id.). Overtime
service following an officer’s regular tour of duty is not compensated unless such overtime
service continues beyond the first quarter hour. (CBA Art. VIII § 5). Beyond the first quarter

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hour, the straight-time hourly rate is computed to the next hour. (CBA Art. VIII § 5).
If an officer misses a regular shift due to vacation, sick time, or personal time, he or she
still receives overtime compensation for work performed outside of regular shifts. (Elpidoforos
Dep. at 111; McCarey Dep. at 147-48; Monaco Dep. at 139).
Officers are paid a minimum of four hours of overtime compensation if they are recalled
to police headquarters or any other place or are placed on a standby basis after their regular work
shift. (CBA Art. VIII § 3(b)). Officers are paid a minimum of four hours of overtime
compensation for time spent attending court outside of regularly scheduled shifts. (CBA Art. V
§ 1).
Overtime compensation is paid on a weekly basis. (CBA Art. VIII § 5(b)). It is not
necessarily paid in the Friday paycheck immediately following the end of the seven-day
workweek. (First McGrath Aff. ¶ 7; D’Angeli Dep. at 72-74).2
d.

Paid Details

Officers are afforded the opportunity to volunteer to work paid details. Details are work
assignments in which an entity other than the department pays for an officer to provide services
such as traffic control for a construction project or security at an event. (CBA Art. VI; E. Roche
Dep. at 43-44, 81; Elpidoforos Dep. at 84-86). From May 2014 through January 2017, the detail
rate was $43 per hour. (E. Roche Decl. ¶ 12; Third McGrath Aff. ¶ 20). In January 2017, it was
increased to $46 per hour. (Id.). In January 2019, it was increased to $60 per hour. (Id.).3
Officers are guaranteed a minimum of four hours of pay per detail. (CBA Art. VI § 8).
For road or construction details exceeding four hours, officers are guaranteed a minimum of

2

The City disputes this statement to the extent that it suggests that the City has not timely compensated
plaintiffs for overtime. (Pl. SMF ¶ 7 & Def. Resp.).
3

The CBA provides that all details shall be paid at a minimum rate of $40 per hour. (CBA Art. VI § 8).

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eight hours of pay. (Id.). Hours worked in excess of eight hours on a detail are compensated at a
rate of one-and-a-half times the applicable detail rate. (Id.). The applicable detail rate is
increased by one dollar hourly for details performed from midnight to 8:00 a.m., on Sundays,
and on select holidays. (E. Roche Decl. ¶ 13).4
The City maintains a special detail fund into which all money received from police
details is deposited and from which detail money is paid to employees. (CBA Art. VI § 11). The
City is required to pay officers for details within 21 calendar days after a detail has been worked
and the proper documentation has been submitted. (Id.).5
Details may be requested by private contractors performing work in the City; City
departments, such as the Department of Public Works; or state agencies with projects in the City,
such as the Massachusetts Department of Transportation. (E. Roche Dep. at 15-24, 62-70, 9798).6 The mechanism by which private contractors pay the City for detail work has varied over
time and based on the type of project. (Id. at 73-77). City details are occasionally paid for by
check from a third party. (E. Roche Decl. ¶¶ 8-9).7 For some private parties with whom the City
contracts to perform work on behalf of the City, the department detail clerks make entries to
show that the detail is a City detail. (First McGrath Aff. ¶ 29; E. Roche Dep. at 120-21).8

4

Details performed on certain other holidays are paid at one-and-a-half times the regular detail rate. (CBA
Art. VI § 8).
5

It typically takes two or more weeks after the City is invoiced for a City detail to issue a notice to fund
payment. (E. Roche Dep. at 84). Upon receiving notice of a journal entry showing a transfer of funds to pay for
police details, the police department detail clerk immediately notifies the City’s payroll department, which in turn
causes payment to the police officer in the upcoming paycheck. (Id. at 82-84).
The City contends that “the distinction between ‘City’ and ‘Private’ details is not a legal distinction, is
imprecise as a matter of law as evidenced by the fact that ‘City’ details have a different meaning under the [FLSA]
and the Massachusetts Wage Law, and cannot be relied on as a basis to adjudicate any legal issue in this case.” (See,
e.g., Def. Resp. to Pl. SMF ¶ 15).
6

7
That method of invoicing was established to try to resolve issues with delinquent vendors that were
working for the City. (E. Roche Dep. at 77-78).
8
Because the City has moved to strike that paragraph of McGrath’s affidavit, this statement is not
undisputed. However, the City does not appear to dispute the veracity of its contents.

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When working a private detail, the third-party contractor determines the officers’ arrival
and departure times. (McCarey Dep. at 94). Plaintiffs working private details testified that upon
arriving at a job site, they report to the foreman or supervisor of the third-party contractor.
(Clark Dep. at 88; Monaco Dep. at 106-07). Plaintiffs also testified that the third-party
contractors determine the tasks that they are to perform while at the job site. (Clark Dep. at 88;
McCarey Dep. at 94; Monaco Dep. at 106). Some plaintiffs have not worked a single detail in
the relevant period. (See, e.g., Dottin Dep. at 58; Gilberti Dep. at 105; Nardone Dep. at 57).
Since at least May 2014, the department has maintained a general order governing patrol
officers who perform both City details and private details. (First McGrath Aff. ¶ 20). General
Order 406 provides in part:
Police Officers are first and foremost employees of the Somerville Police
Department. That a private business is providing compensation to the city for the
services of the Officer shall have no relevance in the performance of an Officer’s
official duties. Officers have the primary responsibility of enforcing the law and
protecting the safety of all. This policy provides a set of comprehensive
guidelines for the assignment of authorized Somerville Police Officers to paid
detail assignments. In addition, this policy also governs all Officers conduct,
appearance, and sanctions/penalties for the violations of this policy while on an
assigned detail.
(Id.; First McGrath Aff. Ex. E).
Police details are not included in the calculation of officers’ regular rate of pay for
purposes of overtime compensation. (CBA Art. VI; CBA Art. VIII § 3).
e.

Union Business Days

McGrath has served as the union president since 2009. (McGrath Dep. at 97). As the
union president, he is permitted to reserve two of every four work shifts or tours of duty for
union business without loss of pay or benefits. (CBA Art. III § 6; McGrath Dep. at 106). During
union business days, he is typically doing business for the union and not police work, details, or

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overtime. (McGrath Dep. at 106).
f.

Special Details for Federal Agencies

Officers may assume special details for federal agencies, such as the Federal Bureau of
Investigation (“FBI”) and the Drug Enforcement Administration (“DEA”), as part of their duties.
(Fallon Decl. ¶¶ 5-7; Oliveira Dep. at 14, 22). John Oliveira is voluntarily employed on a longterm assignment to an FBI task force. (Oliveira Aff. ¶ 12; Oliveira Dep. at 14, 22). James
“John” Hyde is voluntarily employed on a long-term assignment to the federal DEA. (Fallon
Decl. ¶¶ 5, 7; Hyde Aff. ¶ 12). The compensation of Oliveira and Hyde is determined by the
CBA. (Hyde Aff. ¶ 22; Oliveira Aff. ¶ 22). They typically report to their respective task-force
offices and perform most of their work on long-term assignments at the discretion of task-force
leaders. (Fallon Decl. ¶¶ 8-9; Hyde Aff. ¶ 10; Oliveira Dep. at 25, 31). They are occasionally
pulled from their long-term assignments to work directly with the police department under the
supervision of the chief of police and the City. (Hyde Aff. ¶¶ 10, 14, 18-20; Oliveira Aff. ¶¶ 10,
14, 17-20). The chief of police does not determine their job responsibilities within their
respective task forces. (Oliveira Dep. at 24; Fallon Decl. ¶ 9).
While working with their respective agencies, Oliveira and Hyde are subject to the
general orders of the department at all times and are subject to discipline by the chief of police
and the City. (Hyde Aff. ¶ 15; Oliveira Aff. ¶ 15). They are also subject to the rules of their
respective federal agencies and may be removed at any time by agency management if those
managers become dissatisfied with their performance or for any other reason. (Id.).
Oliveira and Hyde are imbued with the powers of their respective federal agencies, some
of which are not available to them in their roles for the City, such as tracking cell phones,
crossing jurisdictional boundaries into different municipalities, investigating crimes that

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originate outside of the City, and effecting arrests outside of the City. (Fallon Decl. ¶ 11;
Oliveira Dep. at 14-15). They serve as liaisons between the City and their respective agencies
and provide the City with surveillance information and equipment that it does not otherwise
possess. (Hyde Aff. ¶ 18; Oliveira Aff. ¶ 18). The City has further benefited from their work
through the receipt of cash and asset forfeitures from individuals involved in drug crimes. (Hyde
Aff. ¶¶ 16-17; Oliveira Aff. ¶¶ 16-17).
The scheduling of the duties of Oliveira and Hyde at their respective federal agencies is
controlled by police department management. (Hyde Aff. ¶ 21; Oliveira Aff. ¶ 21). For
example, the City requires them to request and obtain approval for paid time off for vacation,
personal days, sick days, or leaves of absence. (Id.). Their respective agencies have no role in
approving paid time off or leave. (Id.). However, Oliveira and Hyde will notify their respective
agencies when they take paid time off as a courtesy. (Id.).
The City pays the weekly base salary of Oliveira and Hyde. (Hyde Aff. ¶ 27; Oliveira
Aff. ¶ 27). Their respective federal agencies do not monitor the compensation that the City pays
them. (Hyde Aff. ¶ 28; Oliveira Aff. ¶ 28). Both Oliveira and Hyde work overtime hours and
are entitled to overtime compensation under the CBA. (Hyde Aff. ¶ 24; Oliveira Aff. ¶ 24).
Their respective agencies pay up to the first approximate $18,000 of their overtime compensation
each year. (Hyde Aff. ¶ 28; Oliveira Aff. ¶ 28). The police department has to approve any
overtime that they work because department approval is required for them to receive overtime
compensation. (Hyde Aff. ¶¶ 24-25; Oliveira Aff. ¶¶ 24-25).
During the employment of Oliveira and Hyde, there have been two methods by which a
patrol officer may be assigned to a specialist position. (Hyde Aff. ¶ 5; Oliveira Aff. ¶ 5). Under
the “chief’s pick” method, the chief of police offers a particular specialized assignment to an

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individual patrol officer, and the officer has the option to accept or reject the offer. (Hyde Aff. ¶
6; Oliveira Aff. ¶ 6). Under the “board-selection” method, the patrol officer submits a resume
for the position. (Id.). A board, composed of two captains and two patrol officers, then
interviews candidates and selects an officer for the assignment. (Hyde Aff. ¶ 7; Oliveira Aff. ¶
7). Both Oliveira and Hyde were selected for their current positions by the chief of police, with
agreement from their respective agencies. (Fallon Decl. ¶¶ 6-7; Hyde Aff. ¶ 13; Oliveira Aff. ¶
13). Other positions within the department, such as patrol officer and traffic officer, are filled on
the basis of bidding and seniority. (Hyde Aff. ¶ 5; Oliveira Aff. ¶ 5).
2.

CBA and FLSA Discussions

In 2013, the City’s personnel director, Candace Cooper, attended two courses that briefly
addressed the FLSA. (Cooper Dep. at 41-44). Those courses discussed the interplay between
the contractual provisions of a CBA and the FLSA and taught that unionized employees should
be paid in accordance with the governing CBA. (Id. at 46-47, 50, 57, 62). The City’s payroll
director, Phyllis Shea, attended at least one of the same training sessions as Cooper, and was
taught that a CBA supersedes the FLSA’s method of calculating overtime. (Shea Dep. at 18-19).
Neither plaintiffs nor the union questioned the legality of the CBA provisions governing
the rate for overtime compensation until September 2016. (Collins Decl. ¶¶ 5, 9; Cooper Decl.
¶¶ 4, 8). In September 2016, union counsel emailed the City with specific questions about
McGrath’s paycheck. (Buckley Decl. Ex. 20; Collins Decl. ¶ 6). In October 2016, union counsel
met with Collins and Cooper and questioned whether the City was correctly calculating
McGrath’s regular rate for the purposes of overtime compensation. (Collins Decl. ¶ 7). Those
present at the meeting discussed the FLSA in connection with McGrath’s compensation. (First
McGrath Aff. ¶ 41). Union counsel also provided the City with a copy of Murphy v. Town of

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Natick, 2009 WL 1364662 (D. Mass. May 14, 2019), a decision concerning the compensation of
Natick police officers. (Cooper Dep. at 84-85; First McGrath Aff. ¶ 41).
After the October 2016 meeting, the City researched the FLSA and calculated McGrath’s
pay for the week at issue, first using the FLSA method requested by union counsel, and then in
accordance with the CBA. (Cooper Decl. ¶ 5; Cooper Dep. at 133). The City’s calculations
showed that McGrath had received more compensation under the CBA than he would have under
the FLSA calculations. (Cooper Decl. ¶ 6). The City therefore concluded that McGrath was
properly compensated. (Id. ¶ 7; Collins Decl. ¶ 8).9
In October 2016, Cooper also researched the FLSA and contacted the Town of Natick to
ask how it computes overtime for police officers. (Cooper Dep. at 90, 132-33). The Town
responded on May 30, 2017, and attached its “FLSA Calculation Worksheet,” which showed that
the Town divided certain compensation by 1946.56, consistent with the court’s ruling in Murphy
v. Town of Natick. (Cooper Dep. at 91-93; Cooper Dep. Ex. 36).
Following the October 2016 meeting, union counsel did not file a grievance or unfair
labor practices charge concerning the overtime pay issue. (Collins Decl. ¶ 8). The City believed
that the issue was resolved and received no further communication regarding the calculation of
the overtime rate until plaintiffs filed this lawsuit on May 26, 2017. (Id.; Cooper Decl. ¶ 8).
William Roche, the City’s personnel director from 2012 to the fall of 2016 (when he was
succeeded by Cooper), received e-mails throughout his tenure that provided alerts about FLSA
concerns specific to municipalities. (W. Roche Dep. at 11, 13, 60-61, 69-71). In his capacity as
personnel director and his previous positions working for the City, he had no memory of any

9

The City contends that it reported the results of its review and conclusion that McGrath was properly
compensated to union counsel. Union counsel disputes that, contending that neither Collins nor anyone else on
behalf of the City followed up in response to his concerns. (Collins Decl. ¶ 8; Canzoneri Aff. ¶ 7).

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communications or education about the FLSA or any overtime laws. (Id. at 39, 70-71). As
personnel director, he did not know that there was a law that required the payment of overtime or
specified how police officers were to be compensated. (Id. at 39-40, 43-46, 61).
3.

911 Emergency Operators’ Compensation

In April 2017, the City changed its payroll operating system. (D’Angeli Dep. at 21).
When the new operating system was implemented, it did not contain a pay code for paying
overtime pursuant to the FLSA. (Cooper Dep. at 77; D’Angeli Dep. at 218). Within
approximately a year after implementation, however, an FLSA pay code was created so that the
City’s 911 emergency operators would be paid overtime at the rate specified by the FLSA.
(Cooper Dep. at 76-77; D’Angeli Dep. at 218). The FLSA code includes all compensation paid
to 911 operators, including weekly salary, longevity, and shift differential, in the computation of
their overtime rate. (D’Angeli Dep. at 219-20). The City uses the FLSA overtime pay code
when it chooses to compute overtime under provisions of the FLSA. (Cooper Dep. at 76-77;
D’Angeli Dep. at 216-17; Shea Dep. at 156-57). However, the City never used the FLSA
overtime pay code for police officers. (Shea Dep. at 157).
B.

Procedural Background

The second amended complaint was filed on January 31, 2018. Count 1 asserts a claim
under the FLSA for unpaid overtime. Count 2 asserts a claim under the Massachusetts Wage Act
that is entirely derivative of the FLSA claim—that is, plaintiffs allege that because the City
violated the FLSA, it also violated the Wage Act. Count 3 asserts a claim directly under the
Wage Act for late payment of wages. Both parties have moved for summary judgment as to a

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variety of liability and damages issues.10
II.

Standard of Review
The role of summary judgment is to “pierce the pleadings and to assess the proof in order

to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (internal quotation marks omitted). Summary judgment is appropriate when
the moving party shows that “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Essentially, Rule 56[]
mandates the entry of summary judgment ‘against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.’” Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir.
1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In making that
determination, the court must view “the record in the light most favorable to the nonmovant,
drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009). When “a properly supported motion for summary judgment is made, the adverse party
must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotations omitted). The non-moving party may
not simply “rest upon mere allegation or denials of his pleading,” but instead must “present
affirmative evidence.” Id. at 256-57.

The City also moved to strike plaintiffs’ statement of material facts, based on the alleged inadmissibility
of certain portions of affidavits submitted by plaintiffs. That motion is the subject of a separate memorandum and
order.
10

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III.

Analysis
A.

Liability under Count 1 -- Fair Labor Standards Act
1.

Plaintiffs Who Allegedly Did Not Work More Than 40 Hours
in a Workweek

The Fair Labor Standards Act requires an employer to compensate its employees “not
less than one and one-half times the regular rate at which [the employee] is employed” for each
hour worked in excess of 40 hours per workweek unless those employees are exempt. 29 U.S.C.
§§ 207(a)(1), 213.11 As a general matter, “[a] claim for unpaid overtime wages must
demonstrate that the plaintiffs were employed ‘for a workweek longer than forty hours’ and that
any hours worked in excess of forty per week were not compensated ‘at a rate not less than one
and one-half times the regular rate.’” Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 43-44
(1st Cir. 2013) (quoting 29 U.S.C. § 207(a)(1)).
The City contends that plaintiffs who have not worked more than 40 hours in a
workweek—including plaintiffs McGrath, Oliveira, Hyde, Rego, and Ankenbauer—do not have
a claim for overtime pay under the FLSA.
a.

McGrath

As to McGrath, the City contends that union business days do not count toward the 40hour threshold. Plaintiffs concede this. (Pls.’ Opp. Mem. at 1). However, they contend that
McGrath can recover for the eight hours of overtime he worked on the week ending January 31,
2015. Whatever the merits of that claim, it accrued on January 31, 2015, and the original
complaint was filed on May 26, 2017. The claim was filed outside the applicable limitations

11

Somerville police officers are paid a base salary, rather than an hourly wage. Section 13 of the FLSA
provides exceptions to the overtime requirements, including an exception for salaried employees who serve
executive, professional, or administrative functions. 29 U.S.C. § 213. The parties do not dispute that given the job
duties of the Somerville police, the exemptions to overtime requirements do not apply here.

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period, which is two years, and is therefore time-barred. 29 U.S.C. § 255. Accordingly,
summary judgment will be granted to the City on the FLSA claim of McGrath for unpaid
overtime wages.
b.

Oliveira and Hyde

As to Oliveira and Hyde, the City contends that the work they performed when assigned
to long-term details with outside federal agencies is excluded from the regular rate calculations
by the “special detail work” exemption in 29 U.S.C. § 207(p)(1). Under § 207(p)(1), if a state
law-enforcement employee “solely at such individual’s option[] agrees to be employed on a
special detail by a separate and independent employer in . . . law enforcement, or related
activities,” then the hours that employee works for the outside employer are excluded from
FLSA overtime calculations for the first employer. 29 U.S.C. § 207(p)(1). “Section [207(p)(1)]
applies . . . provided (1) [t]he special detail work is performed solely at the employee’s option,
and (2) the two employers are in fact separate and independent.” 29 C.F.R. § 553.227. Plaintiffs
contest whether both requirements have been met.
First, plaintiffs contend that the work of Oliveira and Hyde for their respective details is
not performed “solely” at their “option.” They assert that an employee’s special detail work is
“performed solely at [his] option” only if he alone has the authority to exercise that option.
Otherwise, they contend, the statutory language would be superfluous; there would be no need
for an employee to “agree[] to be employed” on a detail “solely at such individual’s option.”
(Pls.’ Opp. Mem. at 10-11). But that interpretation runs contrary to common sense. In plaintiffs’
view, the special-detail exemption would apply only where a police officer unilaterally decides
whether to join or leave a special detail—with no request from the detailing agency and indeed
even if it does not consent. That interpretation is also at odds with the regulations issued under §

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207(p)(1), which permit the primary employer to play a role in special detail selection. See 29
U.S.C. § 553.227 (“For example, a police department may maintain a roster of officers who wish
to perform such work.”). For those reasons, courts have interpreted that requirement to simply
mean that an employee’s placement on a special detail was voluntary. See Lemieux v. City of
Holyoke, 740 F. Supp. 2d 246, 256 (D. Mass. 2010); Clark v. City of Ft. Worth, 800 F. Supp. 2d
781, 787 (N.D. Tex. 2011), aff'd sub nom. 464 F. App'x 325 (5th Cir. 2012); Cox v. Town of
Poughkeepsie, 209 F. Supp. 2d 319, 324-25 (S.D.N.Y. 2002). Here, because there is no dispute
that Hyde and Oliveira voluntarily work on their respective special details, that work is
“performed solely at [their] option” within the meaning of § 207(p)(1).
Next, plaintiffs contend that the FBI and DEA are not “separate and independent” from
the City. Neither the statute nor the regulation explicitly defines “separate and independent.”
Clark, 800 F. Supp. 2d at 787. “However, courts addressing the issue have considered the
following factors: ‘(1) whether the agencies maintained separate payrolls; (2) whether the entities
had arms-length dealings regarding employment; (3) whether the agencies had separate budgets;
(4) whether the employees of the entities participate in separate retirement programs; (5) whether
they are independent entities under state statute; and (6) whether they can both sue and be
sued.’” Murphy v. Town of Natick, 516 F. Supp. 2d 153, 157-58 (D. Mass. 2007) (quoting
Barajas v. Unified Gov’t of Wyandotte County/Kansas City, 87 F. Supp. 2d 1201, 1207 (D. Kan.
2000)). “The degree to which one employer exerts budgetary control over another is typically
given special weight.” Id. (citing Nolan v. City of Chicago, 125 F. Supp. 2d 324, 337 (N.D. Ill.
2000)).12

Plaintiffs contend that the City and FBI and DEA are “joint employers” under 29 U.S.C. § 791.2 and thus
cannot be “separate and independent” within the meaning of § 207(p). But that argument conflates two separate
inquiries. A municipality that is an officer’s joint employer must compensate him for his overtime under the FLSA,
12

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All of those factors strongly suggest that the FBI and DEA are separate and independent
from the City for the purposes of § 207(p)(1). They are separate entities created under federal
law. See 28 U.S.C. §§ 531-533; 21 U.S.C. §§ 801-71. As federal agencies, they have separate
budgets and do not depend on the City for “funding, budget approval, and other fiscal matters.”
See Nolan, 125 F. Supp. 2d at 337 (concluding municipal agencies were separate and
independent from the city because they had separate budgets). They maintain separate payrolls.
(See Hyde Aff. ¶¶ 26-28; Oliveira Aff. ¶¶ 26-28). And, as departments of the federal executive
branch, they may sue and be sued separately from the City, albeit only if the United States
consents. See Hawaii v. Gordon, 373 U.S. 57, 58 (1963).
Plaintiffs contend that because Hyde and Oliveira do not perform their work for the FBI
and DEA during off-duty hours, those agencies are not “separate and independent” employers
within the meaning of the law. (Hyde Aff. ¶ 23; Oliveira Aff. ¶ 23). It is true that the relevant
regulation, 29 C.F.R. § 553.227, states in general terms that § 207(p)(1) “makes special provision
for . . . law enforcement employees of public agencies who, at their own option, perform special
duty work in . . . law enforcement or related activities for a separate and independent employer
(public or private) during their off-duty hours.” At least two courts have held that whether the
work was performed during off-duty hours is a factor in determining whether the employee was
working for an independent and separate employer. See Specht v. City of Sioux Falls, 639 F.3d
814, 822-23 (8th Cir. 2011) (holding that § 207(p)(1) may not apply where, among other things,
firefighters’ detail work “included their normal shift days and hours”); Crow v. City of Derby,
1992 WL 363682, at *2 (D. Kan. 1992) (holding that § 207(p)(1) did not apply where plaintiff
worked for other police departments at the direction of his employer department). But that fact
but even then, the exemption in § 207(p) may still apply. See Cox, 209 F. Supp. 2d at 323-25 (finding that defendant
jointly employed officers, and then analyzing whether § 207(p) applied).

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is not dispositive, and certainly does not outweigh the other factors tending to show that the FBI
and DEA are separate and independent from the City. Accordingly, based on the undisputed
evidence, the FBI and DEA are separate and independent agencies within the meaning of §
207(p)(1).
Under the circumstances, the work performed by Oliveira and Hyde for the FBI and DEA
is excluded by the “special detail work” exemption in 29 U.S.C. § 207(p)(1). Summary
judgment in favor of the City is therefore appropriate as to their claims for overtime under the
FLSA.
c.

Rego and Ankenbauer

The City further contends that at least two additional plaintiffs—Rego and Ankenbauer—
have not worked more than 40 hours in a workweek during the relevant two-year limitations
period. Plaintiffs do not dispute this. (Pls.’ Opp. Mem. at 11). Accordingly, summary judgment
will be granted to the City as to the claims of Rego and Ankenbauer for unpaid overtime under
the FLSA.
2.

The Threshold for Determining Plaintiffs’ Eligibility for Overtime
Compensation

The City next contends that Congress created a unique overtime threshold for police
officers under 29 U.S.C. § 207(k), and that it does not owe overtime to plaintiffs until they have
worked at least 43 hours in a workweek. It specifically contends that the City operates a sevenday “work period” within the meaning of the statute. It also contends that plaintiffs’ union has
conceded the application of § 207(k) in a pending parallel proceeding at the Department of Labor
Relations (“DLR”), and thus plaintiffs are barred by issue preclusion from taking a contrary
position here.
Plaintiffs have cross-moved on that issue, contending that overtime liability was incurred
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because (1) the 7-day/40-hour standard set forth in § 207(a) of the FLSA applies, not the 7day/43-hour standard set forth in § 207(k); and (2) even if § 207(k) applies, the City has failed to
demonstrate the existence of a seven-day § 207(k) “work period.”
The text of § 207(k) is not a model of clarity.13 In substance, however, it provides that if
a public agency creates a “work period” for law enforcement officers of between 7 and 28 days,
overtime need not be paid until a certain proportionate threshold is reached. For law
enforcement officers on a seven-day work period, that threshold is 43 hours. 29 C.F.R. §
553.230. “The work period requirement is ordinarily not a high hurdle. Virtually any bona fide,
fixed, recurring period of between 7 and 28 days will suffice.” O'Brien v. Town of Agawam, 350
F.3d 279, 291 n.21 (1st Cir. 2003) (citing 29 C.F.R. § 553.224(a)). An employer is not required
to inform its employees that it has established a § 207(k) work period. See Calvao v. Town of
Framingham, 599 F.3d 10, 15-18 (1st Cir. 2010).
As an initial matter, plaintiffs are not barred by issue preclusion from asserting their
claims.14 Among other things, issue preclusion requires a “final judgment on the merits in the
13

Section 207(k) provides as follows:
No public agency shall be deemed to have violated subsection (a) with respect to the
employment of . . . any employee in law enforcement activities . . . if -(1) in a work period of 28 consecutive days the employee receives for tours of duty which in
the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as
determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards
Amendments of 1974) in tours of duty of employees engaged in such activities in work
periods of 28 consecutive days in calendar year 1975; or
(2) in the case of such an employee to whom a work period of at least 7 but less than 28 days
applies, in his work period the employee receives for tours of duty which in the aggregate
exceed a number of hours which bears the same ratio to the number of consecutive days in his
work period as 216 hours (or if lower, the number of hours referred to in clause (B) of
paragraph (1)) bears to 28 days, compensation at a rate not less than one and one-half times
the regular rate at which he is employed.

29 U.S.C. § 207(k).
14
It appears that the City intended to assert a defense of judicial estoppel, not issue preclusion, based on the
sworn statements of McGrath in the DLR case. Judicial estoppel generally prevents a party who successfully adopts
a position in one legal proceeding from taking the contrary position in a later proceeding after circumstances have
changed. See InterGen N.V. v. Grina, 344 F.3d 134, 144 (1st Cir. 2003). For judicial estoppel to apply, however,

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prior adjudication.” Kobrin v. Bd. of Registration in Med., 444 Mass. 837, 843 (2005). The City
has not cited to any final decision by the DLR, and indeed there does not appear to be one.15
The question, then, is whether the City in fact operated a seven-day work period, both as
to officers on a “four-and-two” schedule and those on a “five-and-two” schedule. Those are
separate questions, because an employer may have different work periods applicable to different
employees. See O’Brien, 350 F.3d at 292 (citing 29 C.F.R. § 553.224(b)).
For plaintiffs who work a “four-and-two” schedule, the City has not established by the
undisputed evidence that it operated a § 207(k) work period. Under the terms of the CBA,
officers on a “four-and-two” schedule work a six-day work week; they work four consecutive
days and then receive two days off. (See CBA Art. VIII, § 2). In O’Brien v. Town of Agawam,
the First Circuit held that the defendant town, which had adopted a similar “four-two” schedule
in its CBA, had not established the existence of a § 207(k) work period. 350 F.3d at 290-291.
The court reasoned that while in theory a town could adopt a work period that differed from the
work schedule in its CBA, the record did not show it had done so. Id. Here, the City’s only
evidence that it operates a work period different from the CBA work schedule is testimony by its
payroll employees that they use a seven-day pay period. A work period, however, “need not
coincide with the duty cycle or pay period. . .” 29 C.F.R. § 553.224.16 On this record, there is a
genuine dispute of material fact as to what length work period the City operated. Accordingly,

the party’s earlier and later positions must be inconsistent. See New Hampshire v. Maine, 532 U.S. 742, 750-51
(2001). As set forth in the Court’s memorandum and order on the City’s motion to strike, McGrath’s statements are
not sufficiently inconsistent to trigger the operation of the doctrine.
15
See MASS. DEP’T OF LABOR RELATIONS, DLR Hearing, CERB & Arbitration Decisions,
https://www.mass.gov/service-details/dlr-hearing-officer-cerb-arbitration-decisions (last visited Sep. 30, 2019).
16

In the only case cited by the City, an agreement between the parties set both the pay period and the work
period at 14 days. See Callahan v. City of Sanger, 2015 WL 2455419, at *11 (E.D. Cal. 2015). Here, by contrast,
the City’s claimed seven-day pay period was not set by the CBA and it appears to be inconsistent with the six-day
work schedule set there.

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summary judgment is inappropriate as to the claims of officers on a “four and two” schedule.
However, as to plaintiffs who work a “five-and-two” schedule, the undisputed facts
establish that the City did in fact operate a § 207(k) work period. Under the terms of the CBA,
officers on a “five-and-two” schedule work a seven-day work schedule; they work five
consecutive days and then receive two days off. (See CBA Art. VIII, § 2). Plaintiffs contend
that officers on a “five-and-two” schedule do not consistently work a seven-day period because
they occasionally take extra days off. But whether an officer takes extra days off in a particular
work period is not material; an occasional “four-and-three” or “zero-and-seven” schedule still
amounts to a seven-day work period. Otherwise, no municipality whose employees took a
substantial vacation could successfully operate a § 207(k) work period.17 Accordingly, the
undisputed evidence shows that the City operated a seven-day work period under § 207(k) as to
those plaintiffs who worked a “five-and-two” schedule. See O’Brien v. Town of Agawam, 491 F.
Supp. 2d 170, 173-74 (D. Mass. 2007) (holding defendant operated a § 207(k) work period for
plaintiffs on a “five-and-two” schedule).
Finally, plaintiffs contend that the City is required by 29 C.F.R. § 553.51 to keep records
for any § 207(k) work period and that it failed to do so. It is at best unclear whether compliance
with § 553.51 is necessary to establish a § 207(k) work period. See McGrath v. City of
Philadelphia, 864 F. Supp. 466, 477-78 (E.D. Pa. 1994). In any event, the CBA’s provisions
concerning work schedules and the City’s payroll records are sufficient to prove the existence of
a work period—that is, they “provide the information sought by the regulation, namely the length
of the exemption period, the officers to whom it applies, and the regularly scheduled shifts of the

For example, under plaintiffs’ logic, a municipality that operated an 11-day work period would not
qualify if some of its employees occasionally took a five-day vacation, because that would mean those employees
occasionally worked six or fewer days and so the municipality did not operate a regular, recurring seven-day work
schedule pattern. (See Pl. Mot. in Supp. at 28).
17

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officers.” Adair v. City of Kirkland, 185 F.3d 1055, 1061-62 (9th Cir. 1999).
Accordingly, to the extent the City’s motion seeks summary judgment that it established
a § 207(k) work period, it will be denied as to the claims of officers on a “four-and-two” work
schedule and granted as to the claims of officers on a “five-and-two” work schedule.
3.

The Denominator for Calculating the Regular Hourly Rate

“Calculation of the correct ‘regular rate’ is the linchpin of the FLSA overtime
requirement.” O'Brien, 350 F.3d at 294. It matters because “an employee who works overtime
is entitled to be paid ‘at a rate not less than one and one-half times the regular rate at which he is
employed.’” Id. (quoting 29 U.S.C. § 207(a)(1)).
Under the FLSA, the employee’s “regular rate” of pay is calculated as the “hourly rate
actually paid the employee for the normal, nonovertime workweek for which he is employed. . .”
29 C.F.R. § 778.108 (citing Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419
(1945)). “If the employee is employed solely on the basis of a single hourly rate, the hourly rate
is the ‘regular rate.’” 29 C.F.R. § 778.110 (emphasis added). “If the employee is employed
solely on a weekly basis,” the regular rate is computed based on the number of hours which the
salary is intended to compensate. 29 C.F.R. § 778.113 (emphasis added).
“Once the parties have decided upon the amount of wages and the mode of payment the
determination of the regular rate becomes a matter of mathematical computation, the result of
which is unaffected by any designation of a contrary ‘regular rate’ in the wage contracts.”
Walling, 325 U.S. at 424-425. That mathematical computation consists of dividing an
employee’s total remuneration by the number of hours worked for which that compensation was
paid. 29 C.F.R. § 778.109. In other words, calculation of the “regular rate” requires both a
numerator (the amount of compensation) and a denominator (the hours worked).

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Here, the officers were neither employed solely on the basis of a single hourly rate, nor
solely on the basis of a weekly salary. Part of their compensation resembles an ordinary weekly
salary: each week, the City pays officers 1/52 of their annual salary plus a pro-rated portion of
their night-availability differential and educational-incentive payment. (CBA Art. XIX;
D’Angeli Dep. at 32-33). However, the City also pays additional compensation for details and
overtime, which varies with the number of hours worked.18 Again, under § 778.109, the
denominator is “the total number of hours actually worked by [an employee] in that workweek
for which such compensation was paid.” That will vary as to each individual officer.
Citing Murphy v. Town of Natick, 2009 WL 1364662 (D. Mass. May 14, 2009), plaintiffs
allege that their base salary is intended to compensate them for 1,946.56 hours annually—in
other words, that all officers have that same fixed amount of base hours. It is true that the
Murphy court held that the appropriate denominator in that case was 1,946.56. Id. at *2.
However, the plaintiff officers in that case had received overtime pay only for hours worked in
excess of 40 per week. Id. at *1. That is, the only overtime pay the plaintiffs would have
received would qualify as overtime under the FLSA and thus be excluded from regular wage
calculations. There is no indication in the decision that those plaintiffs received variable pay,
and thus the decision is not applicable here.
In short, the actual denominator will depend on the actual overtime and detail hours
worked by each officer. That number is necessarily an individualized calculation, not a fixed

The CBA labels such extra pay as detail or overtime pay, but “[f]or the purposes of the CBA, all hours
worked under the statutory maximum are non-overtime labor.” O’Brien, 350 F.3d at 289 (citing 29 C.F.R. §
778.101). Until an officer works more than the statutory maximum, any additional detail or CBA-defined overtime
pay that does not exceed the employee’s regular rate “is simply considered straight-time compensation under the
Act.” See id. Thus, if in a given week a plaintiff has worked details or overtime as defined by the CBA, but has not
exceeded the FLSA statutory maximum hours, that detail or overtime pay must be included in the calculation of her
regular rate. See id. (concluding that “overtime” paid to officers under CBA must be included as part of their
regular hourly compensation).
18

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number applicable to all officers. To the extent that plaintiffs seek summary judgment in their
favor on the basis that the same denominator is applicable to all officers, it will be denied.
4.

The Inclusion of Wage Augments

Generally, an employee’s regular rate “shall be deemed to include all remuneration for
employment paid to, or on behalf of, the employee.” 29 U.S.C. § 207(e). Section 207(e)
enumerates various exceptions to this rule, including, for example, such things as contributions
to benefit plans. See § 207(e)(4).
Here, the parties dispute whether plaintiffs’ regular rate must include seven wage
augments that the City pays to officers. Those seven wage augments are: (1) a night-shift
differential; (2) a longevity bonus; (3) a senior longevity bonus; (4) a weekend differential; (5) a
weapons-qualification stipend; (6) a weapons-of-mass-destruction stipend; and (7) an education
incentive. Plaintiffs contend that all seven augments must be included in their regular rate. The
City contends that the parties agreed in the CBA to exclude those augments from overtime
calculations and that, in any event, six of the seven (all except the weekend differential) are
excluded by law.
An employer and its employees cannot, by agreement, exclude compensation from the
FLSA’s definition of a regular rate. In calculating FLSA overtime, “the regular rate cannot be
stipulated by the parties; instead, the rate must be discerned from what actually happens under
the governing employment contract.” O’Brien, 350 F.3d at 294 (citing 29 C.F.R. § 778.108; Bay
Ridge Operating Co. v. Aaron, 334 U.S. 446, 462-63 (1948)). Accordingly, the CBA’s exclusion
of the seven wage augments from the regular-rate calculations may be disregarded.19

The City cites two cases in which courts have enforced parties’ definition of what to include in a regular
rate. In both of those cases, however, the court relied upon the agreement to include compensation that would not
otherwise be included. See Wheeler v. Hampton Twp., 399 F.3d 238, 245 (3d Cir. 2005); O’Brien, 482 F. Supp. 2d
at 117. Here, the City asks the opposite.
19

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Furthermore, and in any event, the First Circuit has held that five of the seven wage
augments are of the type that must be included in an employee’s regular rate. In O’Brien, the
court held that shift differentials, longevity bonuses, and education incentives must all be
included in the definition of an FLSA regular rate. See 350 F.3d at 294-97. Accordingly, the
night-shift differential, longevity bonus, senior longevity bonus, weekend differential, and
education incentive must be included in the regular rate here.
Based on the reasoning of O’Brien, the weapons-qualification stipend and weapons-ofmass-destruction stipend must also be included in plaintiffs’ regular rate. As sums paid in
recognition of skills or qualifications, they are analogous to educational-incentives payments.
See Murphy, 516 F. Supp. 2d at 157 (holding that bonuses for technological proficiency due
under a CBA must be included in plaintiffs’ regular rate). Because these stipends “are mandated
by the CBAs and are indisputably ‘remuneration for employment paid to, or on behalf of, the
employee’” they must be included in the regular rate. Id.
The City nonetheless contends that all seven wage augments are exempt under §
207(e)(1) and (2). Section 207(e)(1) excludes sums paid as “gifts” and “payments in the nature
of gifts made at Christmas time or on other special occasions, as a reward for service. . .”
Section 207(e)(2) excludes “payments made for occasional periods where no work is
performed,” “reasonable payments for traveling expenses,” and “other similar payments to an
employee which are not made as compensation for his hours of employment.” Even under a fair
reading of FLSA exemptions, the City’s claimed exclusions do not apply. Neither section
applies on its face. Moreover, by regulation, § 207(e)(1) does not include any “bonus[] paid
pursuant to contract (so that the employee has a legal right in the payment and could bring suit to
enforce it),” which applies to all seven wage augments. 29 C.F.R. § 778.212.

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Accordingly, plaintiffs’ motion for summary judgment will be granted to the extent it
contends that the City violated the FLSA by failing to include the seven wage augments in its
calculation of plaintiffs’ regular rate of pay.
5.

The Inclusion of Roll Call Time

Plaintiffs contend that the City violated the FLSA by failing to compensate them for, and
failing to include in the overtime calculation, a period of 15 minutes that officers assigned to the
patrol division spend each shift attending roll call. The City, however, counters that roll call is
compensated by the officers’ base salary, and that there is no basis for excluding roll call from
the hours that it is intended to compensate.
Here, disputed issues of fact preclude summary judgment. The CBA does not clearly
address whether time spent at roll call is compensated by the officers’ base salary. Compare
Rosano v. Township of Teaneck, 754 F.3d 177, 192 (3d Cir. 2014). On one hand, it says the
“regular work day” is “exclusive of not more than fifteen (15) unpaid minutes for roll call.”
(CBA Art. VIII, § 1). That would suggest that the salary does not include time at roll call. On
the other hand, the CBA lists roll-call time as one type of “regularly scheduled tour of duty or
work shift” and excludes it from the definition of overtime service, which suggests that the
officers’ ordinary, compensated duties include roll-call attendance. (See CBA Art. VIII, § 3).
The deposition testimony of two patrol officers—one of whom was uncertain—that they believe
roll call time was compensated does not resolve that ambiguity. (See Monaco Tr. at 15; McDaid
Tr. at 63). Both parties’ motions for summary judgment as to that issue will therefore be denied.
6.

The Inclusion of Compensation for Details

Plaintiffs contend that the City violated the FLSA by failing to include compensation
paid for city details at the “regular detail rate” plus any non-premium hourly pay differential

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added to the regular detail rate in the calculation of FLSA overtime. In other words, they
contend that the regular detail rate should be included as part of their regular compensation.
As noted, Section 207(p)(1) exempts “special detail” hours worked by law enforcement
personnel from FLSA overtime calculations; that section applies “provided (1) [t]he special
detail work is performed solely at the employee’s option, and (2) the two employers are in fact
separate and independent.” 29 C.F.R. § 553.227. The parties do not dispute that all detail work,
whether paid for by City entities or others, is voluntary. (See CBA Art. VI, § 1). Instead, the
question is whether details performed for contractors, even if ultimately for the City’s benefit,
are worked for separate and independent employers.
As also noted, courts have relied on six factors to decide if employers are separate and
independent: whether the employers “(1) maintain separate payrolls, (2) deal with other
employers at arms’ length concerning the employment of any individual, (3) have separate
budgets and (4) separate retirement systems, (5) are independent entities under state law, and (6)
can sue and be sued in their own names.” Clark, 800 F. Supp. 2d at 787 n.3.
Here, all six factors indicate that the City and the private detail contractors are separate
and independent employers. They maintain separate payrolls, separate budgets, and separate
retirement systems. (See Bean Decl. ¶¶ 4-6) Several of the private contractors are separate
entities that may sue and be sued in their own name. (See Def.’s Add’l SMF & Pls.’ Resp. ¶¶
83-84). It is true that the City deals with private contractors at arms’ length: the third-party
contractors dictate officers’ arrival and departure times and tasks directly to the officers. See
Clark, 800 F. Supp. 2d at 784-85, 788. The City retains some control over details; it collects
payments for details for contractors and distributes it to officers, and it requires officers to abide
by department standards and continue to enforce the law while on detail. All of that is permitted

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by 29 C.F.R. § 553.227(d), however, and “do[es] not raise a fact issue that defendant is the offduty employer.” See id.
In summary, the City and private contractors are separate and independent employers.
City details are therefore exempted by § 207(p)(1), and need not be counted as regular
compensation.
The City further contends that certain details worked for other City departments should
be excluded under 29 U.S.C. § 207(e)(7). Section 207(e)(7) excludes from FLSA overtime
calculations any “extra compensation provided by a premium rate paid to the employee, in
pursuance of an applicable employment contract or [CBA] for work outside of the hours” set by
the contract if that premium rate “is not less than one and one-half times the rate established” by
the contract. An employer may credit this extra compensation “toward overtime compensation
due under [§ 207(a)] for work in excess of the applicable maximum hours standard.” 29 C.F.R.
§ 778.201.
Although plaintiffs argue to the contrary, applying § 207(e)(7) requires a case-by-case
analysis. It is true that the detail rate applies uniformly to all officers, even if that rate has
increased over time. However, officers’ base hourly rates under the CBA may vary
substantially, due, among other things, to differences in any of the seven wage augments
discussed above. Therefore, determining how much detail pay must be excluded from FLSA
regular wages, and then credited against the City’s overtime liability, depends on the hourly rates
of individual officers.20 Because such officer-by-officer calculations rely on disputed facts,
specifically individual officers’ base hourly pay and detail schedules, they are not susceptible of

Plaintiffs propose a simpler methodology: taking the weighted average of officers’ base hourly rates and
the uniform detail rates. See 29 C.F.R. § 778.115. However, that method assumes the entirety of officers’ detail pay
must be included in their regular rate, and § 207(e)(7) expressly excludes some detail pay as “extra compensation.”
For that reason, that approach is not appropriate.
20

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summary judgment.
Accordingly, plaintiffs’ motion for summary judgment will be denied as to the claims
that the City’s detail pay practices violated the FLSA.
B.

Count 2 – Massachusetts Wage Act Claims Based on FLSA Violations

In Count 2, plaintiffs claim concurrent violations of the Massachusetts Wage Act, Mass.
Gen. Laws ch. 149, § 148. In substance, plaintiffs contend that FLSA liability under Count 1
triggers liability and treble damages under the timely-pay provision of the Wage Act.
The Massachusetts Wage Act provides that “[e]very person having employees in his
service shall pay weekly or bi-weekly each such employee the wages earned by him . . . .” Mass.
Gen. Laws ch. 149, § 148. To establish a claim for unpaid wages under the statute, a plaintiff
must show that (1) he was an employee under the statute, (2) his form of compensation
constitutes a wage under the statute, and (3) the defendants violated the Act by not paying him
his wages in a timely manner. Stanton v. Lighthouse Fin. Servs., Inc., 621 F. Supp. 2d 5, 10 (D.
Mass. 2009) (citing Allen v. Intralearn Software Corp., 2006 Mass. App. Div. 71, 2006 WL
1277813 at *1 (2006)).
However, the FLSA “is the exclusive remedy for enforcement of rights created under the
FLSA.” Roman v. Maietta Const., Inc. 147 F.3d 71, 76 (1st Cir. 1998). “That is, the plaintiff
cannot circumvent the exclusive remedy prescribed by Congress by asserting equivalent state
claims in addition to the FLSA claim.” Id. (quotations omitted).
Several courts in this district have nonetheless held that claims under the Massachusetts
timely-pay provision “premised exclusively on FLSA violations are not duplicative of FLSA
claims and not preempted.” Chavira v. OS Rest. Servs., LLC, 2019 WL 917226, at *2 (D. Mass.
Feb. 25, 2019) (“The Roman holding, however, does not clearly control here where the relevant

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section of the Wage Act, which concerns the timeliness of wages paid under state and federal
law, is not an equivalent claim.”); see also Lambirth v. Advanced Auto, Inc., 140 F. Supp. 3d
108, 110-13 (D. Mass. 2015); Carroca v. All Star Enters. & Collision Ctr., Inc., 2013 WL
3496537, at *3-4 (D. Mass. July 10, 2013). Those courts have permitted timely-pay claims for
overtime due under the FLSA even where the plaintiff could not recover under the Massachusetts
overtime law. See Lambirth, 140 F. Supp. 3d at 110; Carroca, 2013 WL 3496537, at *3.
Whatever the merits of that position, municipal immunity requires a different result here.
Municipalities are immune from state-law claims for overtime under Mass. Gen. Laws ch. 151, §
1A. See Burns v. City of Holyoke, 881 F. Supp. 2d 232, 237 (D. Mass. 2012); Lemieux v. City of
Holyoke, 740 F. Supp. 2d 246, 259-261 (D. Mass. 2010); see also Grenier v. Town of
Hubbardston, 7 Mass. App. Ct. 911 (1979) (rescript).21 Permitting plaintiffs to treble their
recovery for federal-law overtime claims—even though the City is immune to state-law overtime
claims—would simply circumvent the City’s municipal immunity, and is therefore
impermissible.
Accordingly, the City’s motion for summary judgment will be granted to the extent that
Count 2 seeks treble damages for any overtime due under the FLSA, and plaintiffs’ cross-motion
as to the same issue will be denied.
C.

Count 3 – Massachusetts Wage Act Claims Based on State-Law Violations

The City has moved for summary judgment as to Count 3, which asserts claims under the

Municipal immunity “is deeply anchored in the law of the Commonwealth.” Lemieux, 740 F. Supp. 2d at
260. Consent to sue a municipality “will be assumed only where it has been ‘expressed by the terms of a statute, or
appears by necessary implication from them.’” Id. (quoting Locator Servs. Group, Ltd. v. Treasurer & Receiver
Gen., 443 Mass. 837, 858 (2005)).
21

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Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148.22 Plaintiffs have cross-moved on a
number of issues arising under the Wage Act.
1.

Timeliness of Pay for City Details

Plaintiffs first contend that city details are not timely paid under the Wage Act if paid
more than six days after the pay period in which they earned such compensation. The City,
however, contends that the CBA, which calls for payment within 21 days, governs the timing for
payment.
As a general matter, “[a]n agreement to circumvent the Wage Act is illegal even when
‘the arrangement is voluntary and assented to.’” Melia v. Zenhire, Inc., 462 Mass. 164, 170
(2012). However, while “waiver of Wage Act provisions is strongly disfavored,” public
employees “have long been explicitly granted the ability to . . . alter the manner of their
payments.” Parris v. Sheriff of Suffolk Cty., 93 Mass. App. Ct. 864, 867. Thus, public employee
unions “may act on behalf of their members to exercise the employees’ election under the Wage
Act” by setting “a negotiated version of a different time period for payment . . . through their
collective bargaining representatives.” Id. at 868-69. In short, while private parties to an
employment contract may not waive the protection of the Wage Act, public employees may alter
the time period by means of a CBA.
The parties, however, dispute which CBA provision is relevant. Article VI, § 11 provides
that the City shall pay for details out of a “special detail fund in accordance with the provisions
of [the Municipal Finance Law, Mass. Gen. Laws ch. 44, § 53C], into which all money received
from police paid details is deposited,” and shall make payment within 21 days. CBA Art. VI,

22

The City does not have immunity as to the Wage Act claim in Count 3. Unlike the overtime section of
the Wage Act, the timely-pay provision of the Act waives the immunity of municipalities. See Mass. Gen. Laws ch.
149, § 148.

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§ 11 (emphasis added).23 The City contends this provision sets a 21-day period for all details.
Plaintiffs contend that because the Municipal Finance Law only applies to details performed for
third parties, the 21-day period controls only payments for those types of details, and not city
details. See Malden Police Patrolman’s Ass’n v. Malden, 92 Mass. App. Ct. 53, 62-63 (2017).
Article VI, § 11 of the CBA is ambiguous. The statutory reference is not particularly
instructive. It is included without explanation, and exactly what details are covered by ch. 44,
§ 53C was unclear even several years after the CBA was executed. See id. (noting “there is no
case law governing the interplay between the Wage Act, [Mass. Gen. Laws ch.] 149, § 148, and
the municipal finance law, [Mass. Gen. Laws ch.] 44, § 53C”).
As to the text of § 11 itself, it can be read in either party’s favor. As the City points out,
nowhere does § 11 limit its application to details performed for third parties; it refers only to
“police paid details.” Cf. id. at 54 n.1 (referring to both details performed for Malden and third
parties as “paid details”). Yet § 11 also provides that “[u]nder no circumstances shall the City be
required to pay for paid details worked out of City funds other than moneys received from
vendors . . . .” (CBA Art. VI, § 11). That language suggests that § 11 may cover only details
worked for third parties. Furthermore, the fact that § 11 does not explicitly refer to the
requirements of the Wage Act somewhat undermines the conclusion that it was meant to amend
those requirements. Cf. Parris, 93 Mass. App. Ct. at 867.

23

Mass. Gen. Laws ch. 44, § 53C provides in part as follows:
All money received by a city . . . as compensation for work performed by one of its
employees on an off-duty work detail which is related to such employee’s regular
employment or for special detail work performed by persons where such detail is not related
to regular employment shall be deposited in the treasury and shall be kept in a fund separate
from all other monies of such city . . . and . . . shall be expended . . . in such manner and at
such times as shall, in the discretion of the authority authorizing such off-duty work detail or
special detail work, compensate the employee or person for such services; provided, however,
that such compensation shall be paid to such employee or person no later than ten working
days after receipt by the city . . . of payment for such services.

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On this record, a reasonable factfinder could hold in either party’s favor as to whether the
CBA amended the payment period for city details. Accordingly, plaintiffs’ motion for summary
judgment as to that issue will be denied.
2.

Timeliness of Pay for Private Details

Plaintiffs further contend that because payments for private details that were made more
than 21 days after the date worked, those payments were untimely under the Municipal Finance
Law.
As noted, the Municipal Finance Law “provides that compensation for off-duty detail
work shall be paid to an employee ‘no later than ten working days after receipt by the city.’”
Malden Police, 92 Mass. App. Ct. at 64 (quoting Mass. Gen. Laws ch. 44, § 53C). In Malden,
the court held that the Municipal Finance Law’s ten-day time period, rather than the Wage Act’s
six-day time period, governed claims for payment for details performed on behalf of third
parties. Id. Interpreting the two statutes, the court held that the Municipal Finance Law was not
“incompatible with the Wage Act,” and that its longer pay period “signals an awareness by the
Legislature that when compensation for detail work is coming from a third party, a city’s prompt
payment of wages to officers who have performed such work may be delayed.” Id. The court
noted that, where possible, “the two statutes should be construed and applied harmoniously” if
they did not conflict—a contention not raised by the plaintiffs in that case. Id. at 62 n.13. The
court also indicated that public employees may alter the Municipal Finance Law’s ten-day period
by a CBA, id. at 65, just as the Parris court held permissible for the Wage Act’s six-day period,
see Parris, 93 Mass. App. Ct. at 867.
Accordingly, the time period set in the CBA supersedes either or both the six-day time
period of the Wage Act or the ten-day time period of the Municipal Finance Law. See Malden

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Police, 92 Mass. App. Ct. at 65; Parris, 93 Mass. App. Ct. at 867. Whether the City timely paid
plaintiffs for private details is thus properly determined under the CBA’s 21-day time period.
However, disputed issues of material fact exist as to whether the City actually paid all of
the plaintiffs on all of their claims within 21 days.24 The 21-day period for detail payment under
the CBA only starts “after a detail has been worked and the proper documentation therefore
submitted.” (CBA Art. VI, § 11). When officers submitted their detail documentation, and thus
when the CBA’s 21-day period started to run, cannot be determined except on an individual
basis. (See E. Roche Dep. at 38, 104 (officers turned in detail slips up to months after a detail);
Elpidoforos Dep. at 90 (up to two days after a detail); Monaco Dep. at 117-18 (upon next visit to
station); Clark Dep. at 98 (on same day as detail)). Accordingly, a genuine issue of material fact
exists as to whether the City complied with the CBA’s 21-day time period.
Accordingly, both plaintiffs’ and defendant’s motions for summary judgment as to that
issue will be denied.
D.

FLSA Damages

In addition to its motion for summary judgment on the merits of plaintiffs’ claims, the
City contends that it is entitled to summary judgment as to certain issues concerning the proper
measure of any FLSA damages. Plaintiffs have also cross-moved as to certain damages issues.
1.

Statute of Limitations and Willfulness

The statute of limitations for FLSA actions is set forth in 29 U.S.C. § 255. “Under the
[FLSA], an action for unpaid compensation must commence within two years after a cause of
action accrues and three years if the cause of action arises out of a willful violation.” Trezvant v.
Fidelity Emp'r Servs. Corp., 434 F. Supp. 2d 40, 51 (D. Mass. 2006) (citing 29 U.S.C. § 255);
24
Plaintiffs themselves appear to have conceded that “[t]he City actually paid [p]laintiffs as specified by
the CBA from at least May 2014 to present.” (See Pl. SMF & Def. Resp. at ¶ 6).

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see also McLaughlin v. Boston Harbor Cruises, Inc., 2006 WL 1998629, at *1 (D. Mass. July 17,
2006) (noting that § 255 “bars an action arising out of a claimed [ ] violation of the statute unless
it is ‘commenced’” within the applicable statute of limitations). For the three-year limitations
period for “willful” violations to apply, a plaintiff must show that the employer “either knew or
showed reckless disregard for the matter of whether its conduct was prohibited by the statute.”
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).
Here, the City has moved for summary judgment on the statute of limitations issue. It
contends that the limitations period governing plaintiffs’ FLSA claims should be two years
because it did not willfully violate the statute, and indeed acted in good faith to comply with it,
with respect to its regular rate calculations.
Plaintiffs have not put forth evidence sufficient to establish that any FLSA violations by
the City were willful. They contend that the City exhibited a “reckless disregard for compliance
with the FLSA” as evidenced by its “disregard for accumulating any information.” (Pls.’ Opp.
Mem. at 27). But the First Circuit has rejected the notion that a failure to investigate compliance
with the FLSA can, without more, constitute willfulness. See Baystate Alternative Staffing, Inc.
v. Herman, 163 F.3d 668, 681 (1st Cir. 1998) (“The [Supreme] Court [] expressly rejected a
negligence standard of liability . . .”). “Although it is possible to envision circumstances in
which a failure to make further inquiry into the legality of one's conduct might constitute a
reckless disregard of the FLSA,” id. at 680, plaintiffs have not put forth sufficient evidence here
to make such a showing.
Both sides were represented by counsel during the negotiation of the CBA. The City’s
Chief Labor Counsel testified in his deposition that he believed the CBA complied with the law.
At the time the CBA was negotiated, neither the City’s nor the SPEA’s counsel suggested

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otherwise. (Collins Decl. ¶¶ 3-4). And the fact that the City paid plaintiffs in accordance with
the CBA, which it believed complied with the law, is strong evidence that any FLSA violations
were not willful. See Howard v. City of Springfield, 274 F.3d 1141, 1144 (7th Cir. 2001)
(affirming district court’s finding of no willfulness where the defendant city paid its officers in
accordance with a negotiated CBA); Rudy v. City of Lowell, 777 F. Supp. 2d 255, 263 (D. Mass.
2011) (finding no willfulness where the defendant city paid plaintiffs in accordance with a
negotiated CBA); Caraballo v. City of Chicago, 969 F. Supp. 2d 1008, 1025 (N.D. Ill. 2013)
(same).
In summary, because the City complied with a negotiated CBA that no one suggested
was unlawful, and plaintiffs have failed to offer any evidence that the City was aware of, or
recklessly disregarded any FLSA violations, no reasonable jury could conclude that any
violations were willful. Accordingly, the City’s motion for summary judgment as to the statute
of limitations issue will be granted, and a two-year limitations period will apply to all claims.
2.

Liquidated Damages and Good Faith

The City next contends that plaintiffs are not entitled to liquidated damages because it
acted in good faith with respect to its regular rate calculations.
Under the FLSA, an employee may recover “their unpaid minimum wages, or their
unpaid overtime compensation, as the case may be, and in an additional equal amount as
liquidated damages.” 29 U.S.C § 216(b). A court may decline to award liquidated damages if an
employer shows that any conduct resulting in an FLSA violation was in “good faith” and that it
had “reasonable grounds for believing” that it complied with the statute. 29 U.S.C. § 260.
Courts have repeatedly held that a municipality acts in good faith within the meaning of
§ 260 if it retains experienced counsel, negotiates a CBA that is approved by those experienced

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counsel, and complies with that CBA. See Brooks v. Village of Ridgefield Park, 185 F.3d 130,
137-138 (3d Cir. 1999); Featsent v. City of Youngstown, 70 F.3d 900, 906-07 (6th Cir. 1995);
Rudy, 777 F. Supp. 2d at 263. That is true whether any ensuing FLSA violations turn on open
questions of law, see, e.g., Rudy, 777 F. Supp. 2d at 262-263 (defendant applied § 207(h)(2)
offsets cumulatively), or are apparent from established law, see, e.g., Featsent, 70 F.3d at 906907 (defendant failed to include wage augments).
Again, both the City and plaintiffs’ union were represented by experienced counsel, none
of whom questioned whether the CBA complied with the FLSA. Furthermore, the City complied
with the terms of that CBA. Thus, “[f]rom its attorney’s silence, the City was entitled to the
reasonable belief that the [CBA] did not violate the . . . FLSA.” See Featsent, 70 F.3d at 907.
Accordingly, liquidated damages are not warranted and the City’s motion for summary judgment
as to that issue will be granted.
3.

Offsetting FLSA Liability with Premium Payments

The City next contends that it is entitled to offset any FLSA liability with all “premium”
payments already paid to plaintiffs—that is, “extra compensation” creditable toward overtime. It
specifically contends that it is entitled to set off any gratuitous payments that have already been
paid to each plaintiff on an inter-week, or cumulative, basis against any FLSA liability it may
have.
Section 207(h)(2) of the FLSA allows for “[c]redit toward minimum wage or overtime
compensation of amounts excluded from regular rate” as follows:
(2) Extra compensation paid as described in paragraphs (5), (6), and (7) of
subsection (e) [concerning certain “extra compensation provided by a premium
rate . . .”] shall be creditable toward overtime compensation payable pursuant to
this section.
29 U.S.C. § 207(h).
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The parties dispute whether any such credits may be applied cumulatively or only on a
week-by-week basis. “The FLSA does not provide an explicit answer to this difference of
interpretation and the United States Circuit Courts have taken divergent positions. Some courts
have held that § 207(h) offsets should be calculated on a workweek basis.” Rudy, 777 F. Supp.
2d at 259 (collecting cases). “The First Circuit has not directly addressed this issue, and judges
in this District have reached different conclusions.” Urbani v. Wellesley Coll., 2016 WL
6571247, at *13 (D. Mass. Jan. 12, 2016). Compare Murphy, 516 F. Supp. 2d at 160-61
(Stearns, J.) (allowing cumulative offsets); O'Brien, 491 F. Supp. 2d at 176 (D. Mass. 2007)
(Ponsor, J.) (same), with Urbani, 2016 WL 6571247, at *13 (Burroughs, J.) (holding that Section
207(h) offsets are only available on a workweek basis); Rudy, 777 F. Supp. 2d at 259 (D. Mass.
2011) (Gorton, J.) (same).
While there is certainly ample room for doubt, the Court finds that § 207(h) offsets may
only be applied on a week-by-week basis. That conclusion appears to be consistent with the
FLSA, pronouncements by the Department of Labor, and established First Circuit law. See
generally Urbani, 2016 WL 6571247, at *13-15.
First, the FLSA calculates overtime liability on a week-by-week basis. An individual
workweek is the FLSA’s “basic unit of measurement.” Rudy, 777 F. Supp. 2d at 260; see 29
U.S.C. § 207(a)(1). “If overtime liability is calculated on a workweek basis, employers should
not be allowed to offset their weekly overtime liability with premium payments made outside of
that workweek.” Urbani, 2016 WL 6571247, at *13. Allowing them to do so would be
inconsistent with the FLSA’s basic framework. Furthermore, it would “frustrate the FLSA’s
requirement that overtime payments be made in a timely manner.” Id. at *14 (citing Rudy, 777
F. Supp. 2d at 261; Howard, 274 F.3d at 114). With cumulative offsets, employers would have

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an incentive to “withhold overtime earnings in order to offset them against potential ‘short’
weeks in the future.” Rudy, 777 F. Supp. 2d at 261.
Second, the Department of Labor has taken the view that offsets should apply week-byweek, both in an interpretive regulation and an opinion letter. The relevant regulation, 29 C.F.R.
§ 778.202(c), provides that contractual overtime premiums may be offset “against the overtime
compensation which is due under the statute for hours in excess of 40 in that workweek.”
(emphasis added). The First Circuit cited § 778.202(c) with approval in O’Brien, observing—
albeit in dicta—that contractual overtime premiums “may be offset against any statutory
overtime liability in the same week.” O'Brien, 350 F.3d at 289 (emphasis added). And in a 1985
opinion letter, the DOL expressly stated that “surplus overtime premium payments, which may
be credited against overtime pay pursuant to section 7(h) of FLSA, may not be carried forward or
applied retroactively to satisfy an employer's overtime pay obligation in future or past pay
periods.” Opinion Letter from Herbert J. Cohen, Deputy Administrator, U.S. Dep't of Labor,
WH–526, 1985 WL 304329, at *4 (Dec. 23, 1985) (emphasis original).25
The City relies substantially on Lupien v. City of Marlborough, 387 F.3d 83 (1st Cir.
2004), in support of its view that offsets may be applied cumulatively. There, police officers
alleged that Marlborough’s policy of allowing officers to accept compensatory time instead of
overtime payments violated the FLSA. After Marlborough conceded liability, the district court
addressed damages. The police officers had already redeemed much of their compensatory time,
but they argued that those redemptions could only be offset against FLSA overtime liability

DOL opinion letters “do not warrant Chevron-style deference” and “are ‘entitled to respect’ . . . only to
the extent that th[eir] interpretations have the ‘power to persuade.’” Calvao, 599 F.3d at 18 (quoting Christensen v.
Harris County, 529 U.S. 576, 587 (2000)).
25

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incurred in that same workweek. Id. at 86. The district court rejected that theory, permitting
Marlborough to offset the value of redeemed compensatory time against its FLSA overtime
liability, regardless of when redemption occurred. Id. at 84-85. The First Circuit affirmed,
holding that permitting Marlborough to offset redeemed compensatory time only on a week-byweek basis would be “contrary to the FLSA's aim that ‘plaintiffs are entitled to be made whole,
not to a windfall at the [City's] expense.’” Id. at 90 (quoting Roman, 147 F.3d at 77).
Lupien, however, is distinguishable. As the court explained in Urbani, “[t]he key
difference is that the ‘comp[ensatory] time’ in Lupien had been offered to plaintiffs as a
substitute for statutory overtime payments.” Urbani, 2016 WL 6571247, at *15 (emphasis
original). In Lupien, the First Circuit permitted cumulative offsets so that the plaintiffs would
not recover the overtime owed to them under the FLSA twice, once in the form of redeemed
compensatory time and once as monetary damages, resulting in a “windfall at the City’s
expense.” Lupien, 387 F.3d at 90. “The same cannot be said, however, of the ‘extra’
compensation payments that are eligible to be offset against FLSA overtime liability pursuant to
Section 207(h)(2).” Urbani, 2016 WL 6571247, at *15.
Here, as in Urbani, plaintiffs “are entitled to such payments under the terms of their
collective bargaining agreement[], irrespective of any statutory overtime they may receive.” Id.
Under the circumstances, “there is no risk [with week-by-week offsets] that [p]laintiffs will be
‘paid twice’ for statutory overtime . . . or that this would otherwise produce a ‘windfall’ for
employees.” Id. They will receive, at most, only what they are due under the FLSA and the
CBA. That can hardly be called a windfall, as it “most closely reproduces what [plaintiffs]
would be entitled to had there been no error in the City’s initial computation of its overtime
liability.” Rudy, 777 F. Supp. 2d at 261.

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Accordingly, the City may apply any § 207(h) offsets as a credit against damages on a
week-by-week basis only, and not cumulatively. Accordingly, plaintiffs’ motion for summary
judgment will be granted to the extent that it seeks to limit the City’s ability to apply § 207(h)
offsets cumulatively, and the City’s cross-motion on the same issue will be denied.
4.

Treble Damages for Late Payments

The City next contends that for any Wage Act claims based on late payments, plaintiffs
cannot recover treble damages, only interest based on the delay in payment. It specifically
contends that if it has liability for any delayed payments to plaintiffs for work performed on city
and/or private details, the proper measure of damages is limited to the interest accrued between
the time that payment became due and the time of payment.
The purpose of the Wage Act is “to protect wage earners from the long-term detention of
wages by unscrupulous employers.” Melia, 462 Mass. at 170. An employer violates the Wage
Act by failing to pay “each . . . employee the wages earned by him to within” six or seven days,
depending on the employee’s pay schedule. See Mass. Gen. Laws Ann. ch. 149, § 148. An
employee who succeeds on a claim under the Wage Act “shall be awarded treble damages, as
liquidated damages, for any lost wages and other benefits . . . .” Mass. Gen. Laws ch. 149, §
150.
At one time, a plaintiff’s recovery of treble damages under the Wage Act was a decision
left to judges’ discretion. See Wiedmann v. The Bradford Grp, Inc., 444 Mass. 698, 710 (2005).
However, “in 2008, the Legislature made trebling of ‘lost wages and other benefits’ mandatory.”
Clermont v. Monster Worldwide, Inc., 102 F. Supp. 3d 353, 358 (D. Mass. 2015). Nonetheless,
courts have since held that wages paid late, but in full, “are not ‘lost wages’ within the meaning
of [ch. 149, § 150].” Id.; see also Crowe v. Harvey Klinger, Inc. 2018 WL 6819329, at *11-12

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(D. Mass. 2018); Awuah v. Coverall North Am., Inc., 740 F. Supp. 240, 244-45 (D. Mass. 2010).
They have held so in cases where the late wages in question were paid before a complaint was
filed, see Clermont, 102 F. Supp. 3d at 358, as well as in cases where the late wages were paid
after filing, see Crowe, 2018 WL 68193219, at *6, 11-12. In both scenarios, the courts limited
damages to the award of interest. Crowe, 2018 WL 6819329, at *11-12; Clermont, 102 F. Supp.
3d at 358; Awuah, 740 F. Supp. at 245.
Plaintiffs contend that George v. National Water Main Cleaning Co., 477 Mass. 371
(2017), requires a different result. Specifically, plaintiffs point to the following passage:
In the context of a violation of the Wage Act, “liquidated damages” properly
would include the various additional costs that might be incurred by an employee
who has not been timely paid his or her full wages, but who still needs to pay for
the family's housing, transportation, food and clothing, tuition, and medical
expenses. The damages arising from delay in paying the wages due might be
considerable, depending on the employee's circumstances, but they would be
difficult to quantify with precision.
Id. at 380.
According to plaintiffs’ interpretation, that passage means that, under the Wage Act,
liquidated damages must be available for delayed payments as an imperfect estimate of the
various costs that any delay may impose. The problem with that interpretation is that liquidated
damages are only available for lost wages, not merely delayed ones. Indeed, in George, the SJC
was considering a claim for the “nonpayment” of damages. Id. at 371. Accordingly, its
explanation of the import of “liquidated damages” should be read in context, and thus, to only
apply to claims for lost wages, not claims of delayed payment.
In short, plaintiffs here are not entitled to treble damages, which are awarded “for any
lost wages and benefits.” Rather, the plaintiff is entitled only to “damages incurred”—that is,
any foregone interest. See Mass. Gen. Laws ch. 149 § 150 (listing “damages incurred”
separately from “lost wages and other benefits”); Clermont, 102 F. Supp. 3d at 358. Because the
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City ultimately paid plaintiffs, although late, they have not suffered any “lost wages” and cannot
recover treble damages under the Wage Act.
For those reasons, the City’s motion for summary judgment will be granted to the extent
that it seeks to limit any Wage Act claims for delayed payments to the interest accrued between
the time any such payment became due and the time it was ultimately paid.
5.

Immunity from Prejudgment Interest

The City further contends that it is immune from prejudgment interest on plaintiffs’ statelaw claims under Mass. Gen. Laws ch. 231. Plaintiffs have cross-moved for summary judgment
on the same issue, contending that the Wage Act itself provides a statutory basis for imposing
prejudgment interest that overcomes the sovereign immunity defenses raised by the City. See
Mass. Gen. Laws ch. 149, § 148 (“. . . every county and city shall so pay every employee
engaged in its business or wages or salary earned by him . . .”) (emphasis added). They further
contend that Mass. Gen. Laws ch. 231, § 6C and § 6H also provide independent bases to impose
prejudgment interest.
As an initial matter, the Wage Act does not provide an independent statutory basis for
imposing prejudgment interest. “[T]he payment of prejudgment interest in a Massachusetts court
is governed by statute, either [Mass. Gen. Laws ch.] 231, § 6B, 6C, or 6H.” George, 477 Mass.
at 378. That general rule applies to Wage Act claims. Id.
“Municipal liability implicates the doctrine of sovereign immunity, which protects the
public treasury from unanticipated money judgments.” Todino v. Town of Wellfleet, 448 Mass.
234, 238 (2007). “The rules of construction governing statutory waivers of sovereign immunity
are stringent.” Id. (internal quotations omitted). “Absent statutory language that indicates by
express terms a waiver of sovereign immunity,” such a waiver “may be found only . . . ‘by

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necessary implication’ from the statute's terms.” DeRoche v. Massachusetts Comm'n Against
Discrimination, 447 Mass. 1, 12-13 (2006). Here, the Wage Act has expressly waived sovereign
immunity as to timely-pay claims, see Mass. Gen. Laws ch. 149, § 148, but neither that statute
nor ch. 231, §§ 6B, 6C, or 6H explicitly waive immunity for prejudgment interest on such
claims.26
Nonetheless, a waiver of the City’s immunity as to prejudgment interest is clear by
“necessary implication” from the Wage Act. The Supreme Judicial Court has found implied
waivers of sovereign immunity for liability for accrued interest under similar circumstances. In
DeRoche v. Massachusetts Commission Against Discrimination, 447 Mass. 1 (2006), the SJC
held that the legislature had waived sovereign immunity with respect to the imposition of interest
for claims under the Massachusetts anti-discrimination statute. While that statute expressly
permitted such claims against the Commonwealth, it “did not specifically authorize interest on”
such claims. Id. at 13. The SJC, however, found such an authorization by necessary implication
because it had previously held that awards of interest furthered the statute’s remedial and
compensatory purposes, and the Commonwealth was otherwise subject to the law. Id. Similarly,
in Todino, the trial court had found Wellfleet liable under Mass Gen. Laws ch. 41, § 111F for
back pay that it had not timely paid to an incapacitated police officer. 448 Mass. at 234-35. On
appeal, the SJC considered whether the officer was entitled to recover interest on that back pay.
Id. Section 111F was “silent . . . on the question whether a governmental employer must pay
interest on amounts due the employee where payment has been delayed.” Id. at 238. The SJC
held that “the recovery of interest is necessarily implied by the potent language of § 111F that

26

The parties dispute whether Mass. Gen. Laws ch. 231, § 6C, which applies only to contract actions,
requires the award of prejudgment interest in claims under the Wage Act. Because the Court finds that prejudgment
interest is available to plaintiffs under § 6H, it does not reach the question of whether Wage Act claims also sound in
contract for the purposes of § 6C.

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requires timely payments” because the “only way” that an award for delayed compensation could
“retain its stated worth is by adding interest in order to compensate for delay in payment from
that point forward.” Id. at 239. See also Brookfield v. Labor Relations Comm’n, 443 Mass. 315,
326 (2005) (“An award of interest on monetary relief is a necessary remedial component of
[Mass. Gen. Laws ch. 150E, § 10(a)].”)
Based on those decisions, it is likely that the Supreme Judicial Court would decide
similarly here. As with the statute at issue in Todino, § 148 of the Wage Act is aimed at ensuring
not only that plaintiffs receive what they are due, but in a timely manner. See Melia, 462 Mass.
at 170. Because the only way to ensure that a plaintiffs’ recovery of delayed wages “retain[s] its
stated worth is by adding interest,” the recovery of interest is necessarily implied by the statute.
See Todino, 448 Mass. at 239. Similarly, awarding interest serves the statutory aim of
compensating employees for their lost or delayed wages. See DeRoche, 447 Mass. at 13-14; see
also Brookfield, 443 Mass. at 325-26.
Accordingly, Mass. Gen. Laws ch. 231, § 6H applies to this action, and prejudgment
interest in the amount of 12% per annum will be added to any damages awarded to plaintiffs
under § 148 of the Wage Act.
For those reasons, the City’s motion for summary judgment on this issue will be denied,
and plaintiff’s cross-motion will be granted.
6.

Damages as to Plaintiffs McNally and Goulart

Plaintiffs contend that plaintiff James McNally is entitled to partial summary judgment
for one week of FLSA damages of $357.83 for the workweek of October 22-28, 2017. They also
contend that plaintiff Kevin Goulart is entitled to partial summary judgment for one week of
FLSA damages of $304.17 for the workweek of June 18-24, 2017.

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While a court may award damages at the summary judgment stage, they do so only if the
damages are “readily calculable based on the undisputed facts.” See Martins v. 3PD Inc., 2014
WL 1271761, at *4 (D. Mass. Mar. 27, 2014) (citing AEP Energy Servs. Gas Holding Co. v.
Bank of America, N.A., 626 F.3d 699 (2d Cir. 2010)); see, e.g., Ellicott v. American Capital
Energy, Inc., 2016 WL 7799635, at *5 (D. Mass. Apr. 28, 2016) (denying summary judgment
where plaintiffs’ damages calculations were based on “disputed factual issues”).
Here, disputed issues of fact preclude summary judgment on the damages claims of
McNally and Goulart. First, plaintiffs’ model assumes that FLSA regular rates must be
calculated using a denominator of 1,946.56 hours, but a case-by-case analysis is necessary to
calculate that denominator, as detailed above. Second, the calculations assume that all details
worked for the city must be included in plaintiffs’ FLSA regular rates, but again a case-by-case
analysis is necessary to determine where such detail hours are excluded under 29 U.S.C. §
207(e)(7). Finally, there are mathematical errors in plaintiffs’ calculations.27
Accordingly, because the damages calculations for McNally and Goulart are based on
disputed issues of fact, plaintiffs’ motion for summary judgment as to that issue will be denied.
7.

Damages as to 191 City Details in Paragraph 45

Finally, plaintiffs contend that partial summary judgment should be granted for the 191
city details listed in paragraph 45 of their statement of material facts, resulting in base damages
of $68,792 and treble damages of $203,376. According to plaintiffs, those details are susceptible
to summary judgment because they may be identified, without more, by either (1) a description
of the detail on the weekly “export” report associating a detail with the “City of Somerville” or a
city department, or (2) a description on the weekly “export” report associating the detail with a

27

See, e.g., Pls.’ Mem. at 37-40 (incorrectly calculating $1052.38 * 2/3 = $700.92; $34.04 * 40 = $791.53).

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third party, such as P.T. Kelley, and the omission of that party from that week’s “910 form” log
of third-party payments.
Again, summary judgment on damages is appropriate only if the damages are “readily
calculable based on the undisputed facts.” See Martins, 2014 WL 1271761, at *4. Here,
however, plaintiffs’ damages methodology is not undisputed. There are issues of fact as to
whether, under the CBA, the City had up to 21 days to pay for details performed for the City or
its entities, as discussed above. And plaintiffs’ model assumes they are entitled to recover the
full amount of their delayed pay for details plus treble damages, rather than interest only, as
discussed above.
Accordingly, because there are disputed issues of fact and plaintiffs’ model does not
reflect the City’s actual potential liability, summary judgment is inappropriate.28 Plaintiffs’
motion for summary judgment on this issue will therefore be denied.
IV.

Conclusion
For the foregoing reasons, the motion of defendant City of Somerville for summary

judgment and the motion of plaintiffs for partial summary judgment are GRANTED in part and
DENIED in part, as set forth in this Memorandum and Order.
So Ordered.

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
United States District Judge

Dated: September 30, 2019

The parties also dispute whether plaintiffs’ model is reliable because it depends on manual records kept
by the City’s detail office. To the extent that plaintiffs’ model for calculating Wage Act damages relies on disputed
facts, summary judgment is also inappropriate for that reason.
28

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