Andrews et al v. Weatherproofing Technologies, Inc.

Filing 49

District Judge Timothy S. Hillman: MEMORANDUM OF DECISION AND ORDER entered granting in part and denying in part 36 Motion for Summary Judgment. (Castles, Martin)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

________________________________________________
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BRENT ANDREWS, and
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ERNEST REZENDES,
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Plaintiffs,
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v.
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WEATHERPROOFING TECHNOLOGIES, INC.,
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Defendant.
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_______________________________________________ )

Civ. Act. No. 15-11873-TSH

MEMORANDUM OF DECISION AND ORDER
September 28, 2017

HILLMAN, D.J.
Introduction
Brent Andrews (“Andrews”), and Ernest Rezendes (“Rezendes”, and, together with
Andrews “Plaintiffs”) filed suit against Weatherproofing Technologies, Inc. (“WTI” or
“Defendant”) alleging: statutory claims for violation of the straight wage provisions of the
Massachusetts Wage Act, Mass.Gen.L. ch. 149, §§ 148, 150 (“MWA”), the overtime
compensation provisions of the Massachusetts Fair Minimum Wage Act , Mass.Gen.L. ch. 151,
§1A (“MFMAW”) and Fair Labor Standards Act, 29 U.S.C. §207 (“FLSA”), and the prevailing
wage provision of the Massachusetts Wage Act, 149, §§26 and 27 (“MWAPW”) ; and

Massachusetts common law claims for breach of the covenant of good faith and fair dealing,
breach of contract, and unjust enrichment.
This Memorandum of Decision and Order addresses Defendant’s Motion For Summary
Judgment (Docket No. 36). For the reasons set forth below, that motion is granted, in part, and
denied, in part.
Standard of Review
Summary Judgment is appropriate where, “the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed. R. Civ. P. 56(c)).
“‘A “genuine” issue is one that could be resolved in favor of either party, and a “material fact” is
one that has the potential of affecting the outcome of the case.’” Sensing v. Outback Steakhouse
of Florida, LLC, 575 F.3d 145, 152 (1st Cir. 2009) (quoting Calero-Cerezo v. U.S. Dep’t. of
Justice, 355 F.3d 6, 19 (1st Cir. 2004)).
When considering a motion for summary judgment, the Court construes the record in the
light most favorable to the nonmoving party and makes all reasonable inferences in favor
thereof. Sensing, 575 F.3d at 153. The moving party bears the burden to demonstrate the
absence of a genuine issue of material fact within the record. Id., at 152. “‘Once the moving
party has pointed to the absence of adequate evidence supporting the nonmoving party’s case,
the nonmoving party must come forward with facts that show a genuine issue for trial.’” Id.
(citation to quoted case omitted). “‘[T]he nonmoving party “may not rest upon mere allegations
or denials of the [movant’s] pleading, but must set forth specific facts showing that there is a
genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden

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of proof at trial.” Id. (citation to quoted case omitted). The nonmoving party cannot rely on
“conclusory allegations” or “improbable inferences”. Id. (citation to quoted case omitted).
“‘The test is whether, as to each essential element, there is “sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” ’ ” Id. (citation to quoted case
omitted).
Findings of Fact
WTI’s Motion to Strike
WTI filed a motion to strike Plaintiffs’ statement of material facts two days before the
hearing on its motion for summary judgment. At the hearing, WTI’s counsel briefly mentioned
that to support Plaintiffs’ statement of material facts, which the Plaintiffs allege are undisputed,
they cite to the deposition of Bernard Honeywell, who supervised Andrews for a time. See Pls’
Resp. to Def’s Statement of Undisputed Material Facts (Docket No. 41)(“Pls’ Disputed Facts
and Additional Factual Assertions”), at pp. 25-32; Pls’ Opp. And Mem. Of L. in Opp. To Def’s
Mot. For Sum.J. (Docket No. 40), at Ex. 3 (the “Honeywell Deposition”). The Honeywell
Deposition was obtained in a prior case, Wright v. Weatherproof Technologies, 13-13264-WGY,
which Plaintiffs alleged involved similarly situated employees who filed suit against WTI
asserting substantially identical claims to the ones asserted by them in this case. Plaintiffs did not
depose Honeywell in this case. Neither party otherwise made or requested to make any formal
argument to the Court regarding the motion to strike. Moreover, post-hearing, Plaintiffs did not
file an opposition to the motion to strike.
For the reasons set forth below, I am, for the most part, allowing the motion to strike.
This is not a decision I make lightly and is not being made simply because the Plaintiffs
neglected to file an opposition. I am allowing the motion because I agree with the Defendant that

3

the evidence in the record cited by the Plaintiffs too often fails to support their factual assertions.
For example, Plaintiffs assert that Bernard Honeywell (“Honeywell”) “fielded complaints from
the technicians about not being paid for performing paperwork at home.” Pls’ Disputed Facts
and Additional Factual Assertions, at ¶76. However, Honeywell’s testimony was that plaintiffs
in the Wright case complained to him that they doing paperwork at home—he did not testify that
they complained they were not being paid for the doing that paperwork. See Honeywell
Deposition, at p. 128 lines 1-5. Additionally, Plaintiffs state that “Honeywell was aware that the
technicians were not getting paid for their administrative work done at home.” Pls’ Disputed
Facts and Additional Factual Assertions, at ¶77. While one of the deposition lines cited could be
read to support this factual assertion, the others do not. Honeywell Dep. P. 133 l. 22-24; P. 134 l.
1-19; p. 145 l. 1-5; p. 153 l. 1-7; p. 181 l. 11-16. Plaintiffs assert that “[a]nother labor intensive
part of the at-home paperwork were organizing, captioning and uploading photos—especially for
a TremCare, which could have 500 photos. Submitting photos took approximately 30 minutes. If
the photos were related to a patch-and repair job, or smaller work, the photos took approximately
15 minutes.” Pls. Additional Facts, at ¶80. However, what Honeywell testified about was how
long it would take to caption the photos, not submit and organize them from home. In fact,
Honeywell repeatedly stated that this process should have been completed at the jobsite—
pushed by Plaintiffs’ counsel, he estimated it could take approximately 30 minutes if the
employee took this work home to complete. Honeywell Dep. P. 144 l.10-24’ p. 145 l. 1-24; p.
146 l. 1-20; p. 152 l. 6-11.
Plaintiffs also misstate the testimony of Edward Kolasienski (“Kolasienski”). Plaintiffs
state that “WTI expects its technicians, particularly Mr. Andrews and Mr. Rezendes to complete
paperwork every single night.” Pls’ Disputed Facts and Additional Factual Assertions, at ¶100.

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However, what Kolasienski actually testified was that TremCare’s Q&A’s and OLI uploads were
to be done every day with no exceptions, including by the Plaintiffs. They were supposed to
complete this task by the end of shift, if they could not, they were to upload it at home and
charge their time to that number of the job they had been working on. See Pls’ Opp. at Ex. 2
(Kolasienski Deposition), at p. 44. There are more examples which I will not take the time to point

out. Instead, I am granting WTI’s motion to the extent that it seeks to strike the additional facts
asserted by the Plaintiffs set forth in Pls’ Disputed Facts and Additional Factual Assertions,, at
¶¶75-125, pp. 25-32.
Putting aside whether the Plaintiffs have accurately characterized Honeywell’s deposition
testimony, there is a more fundamental problem with their reliance thereon. Honeywell’s
deposition was taken in October 2014 for use in a case filed at the end of 2013. From the
deposition excerpts, it appears that Honeywell left Weatherproofing’s employ sometime in 2014.
The Federal Rules of Civil Procedure allow depositions taken in earlier actions to be used in a
later action so long as the later action involves “the same subject matter between the same
parties, or their representatives or successors in interest.” See Fed.R.Civ.P. 32(a)(8). The key is
whether an adversary with the same motive to cross-examine the deponent was present when the
deposition was taken in the earlier action. However, even if I were to assume that the
prerequisites to using Honeywell’s deposition from the earlier action have been met, Plaintiffs
have failed to establish that his testimony is relevant to this case. That is, they have failed to
establish that the time frame to which Honeywell was testifying in the earlier action is the same
timeframe as in this case or that the testimony made by Honeywell regarding the specific
plaintiffs in that case pertains to Andrews and Rezendes. Therefore, I am striking the Honeywell
Deposition for all purposes.

5

As for WTI’s factual assertions which Plaintiffs contend are in dispute, Plaintiffs have
made objections to WTI’s material statement of facts and these objections are unsupported by
citation to the record or don’t actually contradict the factual assertions made by the Defendant.
For example, WTI asserted that it had not received any reports or complaints regarding off-theclock or unreported work or denial of overtime in Massachusetts through this an employee
hotline it set up with a third party vendor. See Def’s Statement of Undisputed Material Facts
(Docket No. 38), at ¶20. Plaintiffs dispute this factual assertion stating that “WTI has received
countless complaints from its Massachusetts technicians regarding off the clock work, including
a separate lawsuit on the issue and has many witnesses (current and former technicians) who
intend to testify to the opposite.” Pls’ Disputed Facts and Additional Factual Assertions, at ¶23.
In support of this statement, Plaintiffs cite to numerous pages of the Kolasienski Deposition.
Ignoring the fact that Plaintiffs do not cite to any record evidence to support their contention that
they have “many witnesses (current and former technicians) who intent to testify to the
opposite,” none of the Kolasienski Deposition testimony cited by the Plaintiffs disputes WTI’s
assertion that the employee hotline received no complaints. Moreover, while some of the
testimony relates to complaints which Kolasienski received from the Plaintiffs, most of this
testimony has nothing to do with employee complaints. Again, there are more examples which I
will not take the time to mention. Plaintiffs also cite generally to their responses to
interrogatories without specifying which response supports their assertion/objection: It is not the
Court’s responsibility to review the interrogatory responses in their entirety to determine which
support Plaintiffs’ objections. In many instances, Plaintiffs “dispute” WTI’s asserted facts by
interjecting irrelevant editorial comments. I have accepted as true factual assertions made by
WTI which Plaintiffs have not properly disputed.

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Plaintiffs’ Employment
Plaintiffs work as roofing technicians, inspecting and repairing WTI’s clients’
roofing systems. They do not work with each other and do not have personal knowledge of
each other’s hours. Andrews began working for WTI in 2006 and, according to the complaint,
Rezendes started working for WTI in 2003. Both Plaintiffs are supervised by Kolasienski.
Kolasienski has been their supervisor for approximately three years. For the rest of the relevant
period, Plaintiffs’ were supervised by Honeywell: He supervised Andrews from the beginning of
his employment in 2006, and supervised Rezendes starting in 2011.
Plaintiffs do not work at a facility operated or maintained by WTI and perform their work
at client sites throughout Massachusetts, and sometimes in other states. Kolasienski does not
observe Plaintiffs’ day-to-day activities and instead communicates with each Plaintiff by
telephone approximately once per day and visits each Plaintiff on a job site approximately once
per week. WTI does not monitor any work Plaintiffs perform at home.
WTI’s Policies and Related Training
The WTI Time Reporting and Expense Policy (“Time Reporting Policy”) requires
all employees to: (i) “maintain an accurate daily record of all hours worked,” (ii) “record and
report all hours worked,” without exception; and (iii) review weekly time and expense reports
“to verify that they have submitted all of their hours worked . . . and that their time record and
expense reporting is complete and accurate.” The Time Reporting Policy further provides:
“Hours worked is all time in a day that is worked and should be recorded accurately from start
time to stop time. This includes all responsibilities of the job, i.e., paperwork, material handling,
meetings, etc.” An employee’s failure to comply with the policy may result in discipline. A
separate policy requires prior approval for overtime hours.

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WTI conducted a training in Rhode Island on October 21, 2013 at which the Time
Reporting Policy was distributed. Plaintiffs and Kolasienski attended the Rhode Island training.
In October 2013, Each Plaintiff read and understood the Time Reporting Policy and agreed to
comply with it. Each Plaintiff acknowledged that the Time Reporting Policy requires him to
report his time and expenses accurately and timely, and that in reporting his time, he is certifying
that it is complete and correct.
Honeywell also attended the training and presented a portion of it. This training also
reviewed the job codes that technicians use to enter their time. These codes were provided to
technicians in a “flip book” to make the time-entry process easy and efficient. The flip book
included labor codes for work billed to WTI’s customers, in addition to codes for non-billable
tasks, such as administrative and training tasks. WTI has retained a third party vendor to receive
employee complaints through an anonymous hotline and distributes information regarding the
hotline number.
Plaintiffs’ Time Entry
Plaintiffs call into the Datria telephone system (“Datria”) every day to report the time
They worked that day. For each project, Plaintiffs report the project code, labor code, amount of
work time (in fifteen minute increments), the amount of travel time, and materials. Based on
these phone calls, a “Weekly Labor and Expense Report” is generated, The Plaintiffs receive a
copy of this report once per week by email. Plaintiffs review these reports each week and are
aware that they may report any problems (e.g., inaccurate entries) to Tracy Jackson, Tremco’s
Project Administrator, Northeast Region. Kolasienski also reviews these reports and approves
Plaintiffs’ time. Plaintiffs are aware they can report pay or other policy violations to
representatives of human resources, but neither Plaintiff reported any issues regarding alleged

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“off-the-clock” work to human resources. Plaintiffs did complain verbally and were told they
don’t get paid for doing paperwork.
Plaintiffs did not send any emails to anyone else, including each other, complaining about
not getting paid for unreported time. Until Plaintiffs filed their lawsuit in 2015, Rezendes
maintained a day planner that captured all of the time he reported to WTI and did not include any
time that he did not report. After beginning this litigation, however, he began recording and
making notes of time that he had not reported to WTI. Outside the context of this litigation,
Rezendes never provided a copy of these records to WTI or attempted to report the time to WTI.
Plaintiffs Were Paid For All Hours They Reported
WTI paid Andrews and Rezendes for all of the time that they reported in Datria and WTI
did not alter any of the time they reported. Plaintiffs contend, however, that the time they spent
completing paperwork could not be reported in Datria and therefore, they were not reimbursed
for that time. Plaintiffs did not work a set schedule-- their hours varied from week to week.
According to their Weekly Labor and Expense Reports, in some weeks they reported
significantly fewer than forty hours and in other weeks they reported more than forty hours. WTI
did not pay Plaintiffs for any time worked which was not entered into the system. Andrews
complained to Kolasienski on at least one occasion that he was not being compensated for work
he had to do from home. Rezendes made the same complaint to Kolasienski on more than one
occasion.
Andrews’ Pricing Work
Andrews prepares pricing estimates for sales representative Tom Foley (“Foley”).
Foley is not Andrews’ supervisor and does not review the time Andrews enters.

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Andrews testified that, on average, he spends approximately ten to fifteen minutes preparing
each bid. 1 Andrews produced only one email in which Foley asked Andrews to prepare an
estimate the same day and does not contend there are others. Andrews has used the “Review
Potential Jobs” and “Sales Support” codes in the Datria flip book to enter time worked and
acknowledges that he knows how to use them. Andrews contends that WTI discouraged him
from using these codes to enter time spent on paperwork.
Andrews kept notes of the time he spent preparing estimates for Foley during 2016 and
did not provide the notes to WTI, although he provided them to his attorney. Andrews
acknowledged that he did not attempt to report any of the time he noted in his private records,
which added up to 54 minutes. Kolasienski is not aware of the time that Andrews spends
preparing estimates for Foley and was not copied or otherwise notified with respect to the time
Andrews spends preparing estimates.
WTI Instructed Plaintiffs How to Record Their Time
Kolasienski told Plaintiffs they should always get paid for any time they work
per company policy, including:
a. Calling in their time to Datria;
b. Filling out paperwork at home;
c. Organizing and uploading photographs of job sites;
d. Preparing pricing estimates for sales representatives;
e. Organizing supplies stored at home;
f. Loading trucks at home;
g. Communicating with colleagues about projects; and
1

This is contrary to the allegations in the Complaint in which Andrews alleges that he spends

45-60 minutes preparing each bid.
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h. Attending ToolBox Talks training sessions.
Kolasienski believed Plaintiff Andrews was complying with his instructions that he
should record time for all work performed. Andrews does not recall any conversation with any
supervisor who told him to perform work without reporting it in WTI’s timekeeping system.
However, he was told that certain work had to be completed each night and he did not always
have a code to get paid for doing the pricing. WTI instructed Rezendes to report all
administrative work he performed away from a job site to a service number, and no one ever told
him not to record the time. Kolasienski sent the Plaintiffs an e-mail instructing them not to use
the labor code “413,”2 for pricing without prior managerial approval.
With respect to Andrews’ pricing work, Dan Arthur (“Arthur”), Regional Manager,
told Andrews that if the pricing estimates take a material amount of time to prepare, he
should “add some extra money to the job so if it does get approved, you can get paid an extra
hour or two, whatever it takes.” Andrews never followed Arthur’s instructions. Arthur also
instructed Plaintiffs to complete their paperwork at home, at night, while watching television.
Honeywell told Andrews to follow Arthur’s instructions or to let them know if he needed a
number for purposes of recording any such time. Kolasienski told Andrews the same thing.
Prevailing Wage
A “patch and repair” work order involves relatively minor repairs in response to customer
requests, including repairs such as fixing a leak. Even when not required, WTI pays prevailing
wage for patch and repair work performed for governmental entities in Massachusetts. TremCare
work results from a service agreement between WTI and a building owner wherein the owner
pays a lump sum for certain services done on a regular schedule, including services such as

2

There is some ambiguity as to whether Plaintiffs were instructed not to use code “413,” which is the code
for pricing for reviewing potential jobs, or code “412,” which is the sales support pricing code.

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inspections. “TremCare” work can also include repairs. “Warranty inspections” are inspections
in accordance with a warranty that is provided at an additional cost in the original contract price
for a roofing system. WTI charges the building owner for the warranty at the time of purchase,
but does not charge for the later inspections and leak repairs, known as “warranty adjustment
work.”
Approximately half of Rezendes’ work is comprised of TremCare work, and the other
half is warranty work. A small percentage of Rezendes’ work is patch and repair work, for which
he acknowledges he receives the prevailing wage rate. Most of Andrews’ jobs are patch and
repair. Andrews knows that the wage for patch and repair in certain towns is the “prevailing
wage,” but doesn’t know what the rate of pay actually is. For that reason, he does not know
whether Tremco is paying him the correct wage for patch and repair jobs. However, he believes
he was paid his normally hourly wage for most of the public works buildings he worked on.
Andrews received the prevailing wage rate of $62 to $65 per hour on patch and repair
jobs in 2015. Andrews’ typical hourly rate, when not working on jobs subject to prevailing rate
requirements, is $26. Significantly, Plaintiffs do not know for which jobs WTI has requested or
received a prevailing wage rate sheet. Nor can they identify any jobs for which WTI received a
prevailing wage rate sheet that they were not paid the prevailing wage rate. However, Plaintiffs
believe that they worked on “dozens” of public work jobs for which they were payed only their
standard hourly rate. Plaintiffs testified that they had never seen a prevailing wage sheet posted
at any site at which they had performed work. Each Plaintiff produced an exhibit with his
answers to interrogatories relating to his prevailing rate claims, but neither plaintiff knows how
the list was created, except that his attorney created it. WTI has reviewed all of the jobs included
in each Plaintiff’s exhibit to his Answers to Interrogatories for which WTI did not already

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produce documents in the course of this litigation. WTI confirmed that it did not receive from a
prevailing wage sheet from any governmental client pertaining to any work performed by WTI
since March 2012. The documents produced by the parties do not include any prevailing wage
rate sheets on projects for which Plaintiffs did not receive the prevailing wage, or any emails
between Plaintiffs and anyone else, including each other, complaining about not getting paid for
off-the-clock time worked.
Discussion
Whether WTI is entitled to Summary Judgment on: Plaintiffs’ Wage Claims because it did not
have Actual or Constructive knowledge of all Uncompensated Work
Plaintiffs allege in their complaint that WTI violated the FLSA, MWA and the MFMAW
by failing to pay them for earned and/or overtime wages. More specifically, they allege that they
were completing required paperwork at home for which they were not compensated in violation
of the MWA. Also, completing the work from home occasionally caused their work time to
exceed forty hours in a given week and they were not compensated for overtime in violation of
the MWA and FLSA. They further alleged that WTI was aware that they were working off-theclock and that it was not compensating them for such time.
While Plaintiffs have asserted claims for violation of state and federal wage laws, neither
party has made any substantive argument regarding Plaintiffs’ claims for violation of the MWA
or the MFMAW. On the contrary, their sole focus is whether WTI has violated the overtime
provisions of the FLSA because it knew or should have known that Plaintiffs were working offthe-clock and not being compensated for such time. In its memorandum in support of its motion
for summary judgment, WTI states that the same “knew or should have known” standard applies
to Plaintiffs’ state and federal wage act claims, and therefore, I can rely on FLSA overtime
claims in deciding Plaintiffs’ claims under the MWA and MFMAW. See Def’s Mem. Of L. in
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Supp. Of Mot. For Sum. J. (Docket No. 37), at p. 10 n. 6. Plaintiffs do not contend to the
contrary. Since the only issue before the Court with respect to these claims is whether WTI
knew or should have known that Plaintiffs were working off the clock and not being
compensated, like the parties, I will assume that the FLSA standard for failing to pay overtime
wages applies to Plaintiffs’ state law claims for failure to pay earned and/or overtime wages.
The FLSA requires employers to pay all covered employees at least one and a half times
their regular rate of pay for hours worked in excess of forty hours per week. See 29 U.S.C. §
207(a)(1).3 An employer violates the FLSA by failing to compensate employees for overtime
work if the employer suffered or permitted such work, that is, where the failure to compensate
for such work was done with the knowledge of the employer. Knowledge may be actual or
constructive, and, thus, an employer is liable for its employees’ unpaid overtime work if it knew
or should have known that the employees were working overtime. If an “employer knows or has
reason to believe” that an employee is working over forty hours per week, the time is “working
time” and the employee must be paid overtime, even if the employer did not request the
employee work excess hours and even if the employer prohibited the employee from working
overtime. Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382 (6th Cir. 2016)(citing 29 C.F.R.
785.11). If an employer has no actual or constructive knowledge of overtime work and the
employee fails to notify the employer or deliberately prevents the employer from learning of the
overtime work, no violation has occurred. See Forrester v. Roth’s I.G.A. Foodliner, Inc.. 646
F.2d 413, 414 (9th Cir. 1981).

3
The MWA mandates that “[e]very person having employees in his service shall pay...such employee the
wages earned by him....” Mass. Gen. L. ch. 149 § 148. The MFMAW “mandates overtime pay for hours worked
over 40 per week at one and a half times the employee's regular rate of pay.” Cavallaro v. UMass Memorial
Healthcare, Inc., 678 F.3d 1, 9 (1st Cir.2012); see also Mass. Gen. Laws ch. 151, § 1A.

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In determining whether the employer has constructive knowledge that an employee is
working off-the-clock, the question is “whether [the employer] should have known about the
[employee’s] unpaid work. Unlike actual knowledge, this issue must be considered ‘in view of
the employer’s duty ... to inquire into the conditions prevailing in his business.’ The constructive
knowledge inquiry is not limited to facts—it is intertwined with an analysis of the employer’s
duty to inquire into what workers are doing, and what reasonable diligence the employer must
perform to ensure that unauthorized hours are not being worked.’” Rueli v. Baystate Health, Inc.,
835 F.3d 53, 63 (1st Cir. 2016)(internal citation and citation to quoted case omitted).
It is the employee’s burden to show, by a preponderance of the evidence, that his
employer had actual or constructive knowledge that he worked overtime. Pforr v. Food Lion,
Inc., 851 F.2d 106 (4th Cir. 1988); Porcal v. Ciuffo, No. 10-cv-40016-TSH, 2013 WL 3989668
(D.Mass. Aug. 1, 2013). Moreover, “[i]t is not enough for a plaintiff to establish his employer’s
knowledge for a few incidents of off-the-clock work, and upon this claim of knowledge, submit a
record of ….years of alleged off-the-clock work. A necessary part of plaintiffs’ burden of proof
[is] to show [their employer] ‘suffered’ or allowed them to work off –the-clock hours … such
proof may be made by proof of a pattern or practice of employer acquiescence in such work, but
plaintiffs may not merely estimate off-the-clock hours worked without presenting a showing that
[their employer] ‘suffered’ that work.” Id. at 109.
To ensure compliance with its provisions, the FLSA requires that an employer keep and
preserve records of its employees’ wages and hours in addition to records concerning its
employment practices. 29 U.S.C. § 211(c); 29 C.F.R. § 516.2. An employee who proves that the
relevant records kept by the employer are unreliable is held to a less stringent standard of proof
in establishing damages for unpaid overtime compensation under the FLSA. Anderson v. Mt.

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Clemens Pottery Co., 328 U.S. 680, 687–88, 66 S.Ct. 1187 (1946), superseded on other grounds
by The Portal-to-Portal Act, 29 U.S.C. §251 et seq.4 “[W]here the employer’s records are
inaccurate or inadequate ... an employee has carried out his burden if he proves that he has in fact
performed work for which he was improperly compensated and if he produces sufficient
evidence to show the amount and extent of that work as a matter of just and reasonable
inference.” Herman v. Palo Group Foster Home, Inc., 183 F.3d 468, 472 (6th Cir.1999)(internal
citation marks omitted)(quoting Anderson, 328 U.S. at 687). “[I]t is possible for a plaintiff to
meet this burden through estimates based on his own recollection.” Kuebel v. Black &Decker,
Inc., 643 F.3d 352, 362 (2d Cir. 2011); Tomei v. Corix Utils. (US), Inc., No. 07-CV-11928-DPW,
2009 WL 2982775 at * 15(D.Mass. Sep. 14, 2009)(federal courts interpreting FLSA have
consistently held employee may recover unpaid overtime wages even where only evidence of
hours worked is employee’s personal recollection). The employer then has the burden “to come
forward with evidence of the precise amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails
to produce such evidence, the court may then award damages to the employee, even though the
result be only approximate.” Herman, 183 F.3d at 472 (internal citation marks omitted)(quoting
Anderson, 328 U.S. at 687-88)). Where “an employer establishes a reasonable process for an
employee to report uncompensated work time, the employer is not liable for non-payment if the
employee fails to follow the established process. In such circumstances the relevant standard
transforms from ‘I know that the employee was working’ into ‘I know the employee was

4
There is a similar provision under Massachusetts law. See Mass. Gen. L. ch. 151, § 15 (“Every employer
shall keep a true and accurate record of … the hours worked each day and each week by each employee….”).
Neither party suggests that the FLSA law differs from Massachusetts law when analyzing whether an employer has
complied with its obligation to maintain accurate records of the hours worked by its employees.

16

working and not reporting his time.’” Craig, 823 F.3d at 389 (citation to quoted case omitted).
An employer may still be liable under such circumstances where the employer “prevents the
employee from reporting overtime or is otherwise notified of the employees’ unreported work.”
Id. (citation to quoted case omitted).
On the record before me, making all reasonable inferences in favor of the Plaintiffs, I find
that they have established that there are genuine questions of material fact as to whether they
have performed both straight time and overtime work for which they were not compensated. At
the same time, I do not find that Plaintiffs have met their burden to establish that WTI had actual
knowledge that they were working off-the-clock and not being compensated, either for straight
time and/or overtime work. While there is scant evidence that WTI had constructive knowledge
of Plaintiffs’ off-the-clock work, I find that there is a genuine issue of material fact as to whether
WTI should have known that Plaintiffs were not being compensated for such time. I so find
because regardless of WTI’s policy that all time is compensable, there are genuine issues of
material fact as to whether WTI exercised reasonable diligence to ensure that unauthorized hours
were not being worked. More specifically, there are genuine issues of material fact as to whether
it should have known that Plaintiffs were not being compensated for off-the-clock work given
the nature of its business, including that its employees worked off-site, i.e., were known to
complete paperwork and administrative duties from home, and the comments Plaintiffs made to
their supervisors that they were not being paid for performing such work.5

5

Plaintiffs’ supervisors testified that some or all of such work should have been completed on-site and that
Plaintiffs should have been aware as to how to be compensated for such time using Datria. However, at summary
judgment, all reasonable inferences must be made in favor of the non-moving party.

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Whether WTI is entitled to Summary Judgment on: Plaintiffs’ Prevailing Wage Act Claims
“The Massachusetts prevailing wage law ‘govern[s] the setting and payment of wages on
public works projects constructed by the State, by municipalities, or by public authorities.’ Under
the statute, and ‘[p]rior to awarding a contract for the construction of public works, [a] public
official or public body shall submit to the commissioner a list of the jobs upon which ... laborers
are to be employed, and shall request the commissioner to determine the rate of wages to be paid
on each job.’ Once the rate of wages has been set, ‘no contractor or subcontractor shall pay less
than the rates so established,”’ i.e., the prevailing wages … An employer that pays less than the
prevailing rate of wages violates the statute.” O'Leary v. New Hampshire Boring, Inc., 176 F.
Supp. 3d 4, 9 (D. Mass. 2016)(internal citations and citation to quoted authorities omitted). The
MWAPW “is designed ‘to achieve parity between the wages of workers engaged in public
construction projects and workers in the rest of the construction industry.’ Under this law, the
‘rate per hour of the wages’ paid to ’mechanics and apprentices, teamsters, chauffeurs and
laborers in the construction of public works’ may not be less than ‘the rate or rates of wages’
determined by the commissioner of the Department of Labor Standards (department). The
commissioner determines the minimum rate by preparing a classification of “the jobs usually
performed on various types of public works’ by ‘mechanics and apprentices, teamsters,
chauffeurs and laborers’ employed in such construction. The commissioner is authorized to
‘revise such classification from time to time, as he may deem advisable.’” Niles v. Huntington
Controls, Inc., 92 Mass. App. Ct. 15, -- N.E.-- (2017)(internal citations and citation to quoted
authorities omitted). The term “construction,” includes “additions to or alterations of public
works.” Mass.Gen. L. ch. 149, §27D. The expanded definition of what constitutes an “addition”

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or “alteration” contained in the statute suggests that the Legislature intended that the terms be
construed broadly. Niles, 92 Mass.App.Ct. at *5.
The onus is on the public body/municipality to set the prevailing wage rate not the private
employer. Where there has been no request by the public body/municipality to set a prevailing
wage rate for contracted work the MPWA does not apply6. See McGrath v. Act, Inc., 2008
Mass.App.Div. 257 (2008); Cf. Andrews v. First Student, Inc., No. 10-11053-RGS, 2011 WL
3794046 (D.Mass. Aug. 26, 2011)(where municipality fails to request and obtain prevailing
wage rate schedule from the Massachusetts Department of Labor and Workforce Development's
Division of Occupational Safety before awarding contract under Mass.Gen.L. ch. 71, §7A,

employer is not obligated to pay prevailing wage). It is not necessary for the Court to address
whether the WTI misclassified the work performed by the Plaintiffs in order to avoid paying
them prevailing wages on public works contracts. Simply put, there is no evidence in the record
to support a finding that either Plaintiff was not paid prevailing wages on any job to which for
which a prevailing wage was set. Summary Judgment shall enter for WTI on this claim.
Whether WTI is entitled to Summary Judgment on Plaintiffs’ Common Law Claims for Breach
of the Covenant of Good Faith and Fair Dealing, Breach of Contract, and Unjust Enrichment
Breach of the Covenant of Good Faith and Fair Dealing
Plaintiffs allege that WTI’s refusal to pay them their earned wages constitutes a violation
of the covenant of good faith and fair dealing which is implied in cases of at will employment.
WTI asserts that it is entitled to summary judgment on this claim because under Massachusetts
law, such a claim lies only where the employee has been terminated. Plaintiffs failed to oppose
WTI’s motion for summary judgment on this claim. The motion is granted.

6

There are statutory exceptions requiring payment of the prevailing wage even if the rate has not been
properly set. See Mass.Gen.L. ch. 149, §§ 27F-27H. Those exceptions do not apply in this case.

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Breach of Contract
WTI asserts that Plaintiffs’ breach of contract claim must fail because they are at-will
employees without express employment contracts and they have failed to establish that there was
an implied contract between the parties. Plaintiffs’ response is that recent case law confirms that
an employee who brings statutory wage act claims may also pursue a common law breach of
contract claim. See Mansfield v. Pitney Bowes, Inc., No. 12-10131-DC, 2013 WL 947191
(D.Mass. Mar. 12, 2013)(MWA does not preempt all common law claims; under circumstances
of that case, employee could choose to either proceed under MWA or file breach of contract
claim). Assuming for purposes of this discussion that under the circumstances of this case
Plaintiffs’ breach of contract claim would not be preempted, their claim fails for the simple
reason that they have not established (or event attempted to establish) that they had an express or
implied employment contract with WTI. Summary judgment shall enter for WTI on this claim.
Unjust Enrichment
WTI asserts that Plaintiffs’ unjust enrichment claim fails because they have a statutory
remedy at law, i.e., their state and federal wage act claims. I agree. See DaSliva v. Border
Transfer of MA, Inc., 227 F.Supp.3d 154 (D.Mass. 2017)(party with adequate remedy at law
cannot claim unjust enrichment under Massachusetts law; The MWA is available as a statutory
remedy sufficient to bar unjust enrichment claim). Summary judgment shall enter for WTI on
this claim.

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Conclusion
Defendant’s Motion For Summary Judgment (Docket No. 36) is granted, in part, and
denied, in part as provide in this Memorandum of Decision and Order.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
UNITED STATES DISTRICT JUDGE

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