Lambirth v. Advanced Auto, Inc. et al

Filing 12

District Judge Timothy S Hillman: MEMORANDUM AND ORDER entered denying 7 Motion to Dismiss for Failure to State a Claim. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
)
ROBERT LAMBIRTH,
)
CIVIL ACTION
)
Plaintiff,
)
NO. 4:15-CV-40052-TSH
)
v.
)
ADVANCED AUTO, INC., LUKE MALO, )
)
and JASON MALO,
)
)
Defendants.
______________________________________ )
MEMORANDUM AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS
(Docket No. 7)
October 15, 2015
HILLMAN, D.J.
Robert Lambirth (Plaintiff) brought suit against his former employers, Advanced Auto,
Inc., Luke Malo, and Jason Malo (collectively, Defendants), to recover payment of overtime
wages. Defendants moved to dismiss Count II of Plaintiff’s complaint. For the reasons set forth
below, Defendants’ motion is denied.
Background
The following facts are taken from Plaintiff’s complaint and assumed true for the purposes
of this motion. Advanced Auto, Inc. is a company that sells automobiles and provides automotive
repair services, located in Uxbridge, Massachusetts.1 Luke Malo is the company’s President and
Jason Malo is the Treasurer. Advanced Auto, Inc. hired Plaintiff in April of 2013 as an automotive
technician. His responsibilities included repairing cars and trucks. Between April 13, 2013 and

1

According to Plaintiff, more than 75% of Advanced Auto, Inc.’s annual revenue is derived from
automobile and truck repairs and less than 25% is derived from automobile sales.
1

May 3, 2013, Plaintiff was compensated at $20 per hour. In May of 2013 his compensation was
increased to $23 per hour, and in September of 20142 it was again increased to $24 per hour.
Although Plaintiff regularly worked in excess of forty hours per week, Advanced Auto, Inc. never
paid him one-and-one-half times his hourly wage. Advanced Auto, Inc. terminated Plaintiff’s
employment in January of 20143 and “failed to pay [him] the full amount of his full earned wages
on the date of his termination.” (Docket No. 1-3 at ¶ 19.) Thus, Plaintiff alleges that Advanced
Auto, Inc. owes him “a substantial amount of overtime wages.” (Docket No. 1-3 at ¶ 20.) Plaintiff
brought suit against Defendants alleging violation of the Fair Labor Standards Act of 1938 (FLSA),
29 U.S.C. §§ 207(a), 216(b) for failure to pay overtime compensation (Count I); and violation of
Mass. Gen. Laws ch. 149, §§ 148, 150 (the Wage Act) for failure to timely pay wages due (Count
II). Defendants moved to dismiss Count II pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, for failure to state a claim upon which relief can be granted.
Discussion
Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “a plausible
entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). Although detailed
factual allegations are not necessary to survive a motion to dismiss, the standard “requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Id. at 555. “The relevant inquiry focuses on the reasonableness of the inference of liability
that the plaintiff is asking the court to draw from the facts alleged in the complaint.” OcasioHernandez v. Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011). In evaluating a motion to dismiss,

2

Plaintiff’s complaint lists this date as “September 2014”; however, he was allegedly terminated
in January of 2014.
3
If the date mentioned above is meant to be 2014, then this termination date is inaccurate.
2

the court must accept all factual allegations in the complaint as true and draw all reasonable
inferences in the plaintiff’s favor. Langadinos v. American Airlines, Inc., 199 F.3d 68, 68 (1st Cir.
2000).
Analysis
Defendants argue that Plaintiff’s claim brought pursuant to Mass. Gen. Laws ch. 149,
§§ 148, 150 should be dismissed because these statutes apply only to an employer’s failure to
timely pay regular compensation, not overtime earnings. The so-called “Wage Act,” Mass. Gen.
Laws ch. 149, § 148, provides in pertinent part as follows:
Every person having employees in his service shall pay weekly or
bi-weekly each such employee the wages earned by him to within
six days of the termination of the pay period during which the wages
were earned if employed for five or six days in a calendar week, or
to within seven days of the termination of the pay period during
which the wages were earned if such employee is employed seven
days in a calendar week, . . . and any employee discharged from such
employment shall be paid in full on the day of his discharge . . . .
The word “wages” shall include any holiday or vacation payments
due an employee under an oral or written agreement.
An employee who prevails on a claim brought under § 148 “shall be awarded treble damages, as
liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of
the litigation and reasonable attorneys’ fees.” Mass. Gen. Laws ch. 149, § 150.
Plaintiff asserts that he is entitled to overtime compensation pursuant to the FLSA, 29
U.S.C. §§ 207(a), 216(b) and, because he is entitled to this compensation, Defendants’ failure to
pay it to him upon termination constitutes a violation of the Wage Act, which entitles him to treble
damages.4

Defendants, on the other hand, assert that using the Wage Act in this manner

contravenes its legislative intent.

4

The remedy for failure to pay overtime under the FLSA does not provide multiple damages. See
29 U.S.C. § 216(b).
3

Notwithstanding the Wage Act, Massachusetts state law provides a right to overtime
compensation pursuant to Mass. Gen. Laws ch. 151, § 1A, the so-called “Fair Minimum Wage
Act” (FMWA). This statute mirrors its counterpart in the FLSA, providing that employers must
pay time-and-a-half for hours worked in excess of forty per week. See 29 U.S.C. § 207. The
Massachusetts provision, however, unlike the FLSA, contains an exemption for a “garageman,
which term shall not include a parking lot attendant.” Mass. Gen. Laws ch. 151, § 1A(15).5 The
parameters of this exemption are not clearly established under Massachusetts law. See Fitz-Inn
Auto Parks, Inc. v. Comm'r of Labor & Indus., 213 N.E.2d 245, 246-48 (Mass. 1965). Although
Plaintiff has not asserted a claim under the FMWA, Defendants contend that he would not be
entitled to overtime wages under Massachusetts law due to the “garageman” exemption; thus, they
argue that it would be contrary to legislative intent to allow him to use the Wage Act to collect
treble damages for any unpaid overtime differential, because he is not entitled to overtime under
state law.
Accordingly, the disputed issue is whether the Wage Act can be used as a means of
collecting treble damages for unpaid overtime wages due under federal law. In interpreting the
Wage Act, my “primary duty . . . is to effectuate the intent of the Legislature in enacting it.” Water
Dep’t of Fairhaven v. Department of Envtl. Protection, 920 N.E.2d 33, 37 (Mass. 2010) (quoting
International Org. of Masters v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Auth., 467
N.E.2d 1331, 1332 (Mass. 1984)). If the statutory language is clear and unambiguous, I “must

5

The FLSA contains a somewhat related exemption, providing that “section 207 . . . shall not
apply with respect to . . . any salesman, partsman, or mechanic primarily engaged in selling or
servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing
establishment primarily engaged in the business of selling such vehicles or implements to ultimate
purchasers . . . .” 29 U.S.C.§ 213(b)(1)(A).
4

give effect to the plain and ordinary meaning of the language.” Morales v. Morales, 984 N.E.2d
748, 752 (Mass. 2013) (quoting Victor V. v. Commonwealth, 672 N.E.2d 529, 530 (Mass. 1996)).
The word “wage” is not defined in the Wage Act, except to provide that the term includes
holiday or vacation payments pursuant to an agreement. See Mass. Gen. Laws ch. 149, §§ 1, 148;
Fraelick v. PerkettPR, Inc., 989 N.E.2d 517, 521 (Mass. App. Ct. 2013). Black’s Law Dictionary
defines “wage” as follows: “Payment for labor or services, usu[ally] based on time worked . . .
Wages include every form of remuneration payable for a given period to an individual for personal
services, including salaries, commissions, vacation pay, bonuses, . . . tips, and any similar
advantage received from the employer.” Black’s Law Dictionary 1716 (9th ed. 2009). Thus, there
is nothing in the language of the statute or the plain meaning of its terms to suggest that it does not
encompass overtime differential to which an employee is entitled under federal law.
Regarding legislative intent, it is well established that the Wage Act was meant to prevent
the unreasonable detention of wages. Lipsitt v. Plaud, 994 N.E.2d 777, 783 (Mass. 2013); Melia
v. Zenhire, Inc., 967 N.E.2d 580, 587 (Mass. 2012); Boston Police Patrolmen's Ass'n, Inc. v. City
of Boston, 761 N.E.2d 479, 481 (Mass. 2002). Enacted in 1886, “[t]he Wage Act ‘was intended
and designed to protect wage earners from the long-term detention of wages by unscrupulous
employers as well as protect society from irresponsible employees who receive and spend lump
sum wages.’” Lipsitt v. Plaud, 994 N.E.2d at 783 (quoting Melia v. Zenhire, Inc., 967 N.E.2d 580,
587 (Mass. 2012)) (additional citation omitted); see Camara v. Attorney Gen., 941 N.E.2d 1118,
1121 (Mass. 2011) (quoting Electronic Data Sys. Corp. v. Attorney Gen., 907 N.E.2d 635, 641
(Mass. 2009)) (The purpose of the Wage Act is “to protect employees and their right to wages.”).
The Wage Act was originally limited to certain industries and lacked a private enforcement
mechanism, but the Legislature has since broadened its scope. Melia, 967 N.E.2d at 588.

5

Regarding the type of eligible compensation, the law was expanded in 1954 to “cover commissions
that are ‘definitely determined’ and ‘due and payable’”; in 1966, it was modified to include holiday
and vacation pay. Id. at 588 n.7. This history shows that the Wage Act was intended to protect an
employee’s right to timely collect definite earnings. I find no indication that the provision was
meant to exclude overtime wages.
I find support for this position in recent decisions from within this District. In Carroca v.
All Star Enterprises & Collision Ctr., Inc., No. CIV.A. 12-11202-DJC, 2013 WL 3496537, at *3
(D. Mass. July 10, 2013), this District confronted a situation nearly identical to the one at hand and
found that the plaintiff was entitled to collect overtime pay pursuant to the Wage Act:
Even if the Defendants’ argument that [the Plaintiff] is a
“garageman” is correct, that exemption is not relevant where the
plaintiffs are not alleging a violation of the state overtime wage law,
Mass. Gen. L. c. 151 § 1A, but instead allege a violation under Mass.
Gen. L. c. 149 § 148 governing the timing of wage payments of
payments due here under federal overtime law.
Similarly, although not directly on point, this District found in O'Brien v. Lifestyle Transp., Inc.,
956 F. Supp. 2d 300, 309 (D. Mass. 2013), that a Plaintiff, who had asserted claims under the
Wage Act, the FLSA, and the FMWA, could collect overtime damages under the Wage Act so
long as he was entitled to such overtime pay pursuant to the FMWA.
Defendants rely on a recent decision by the Massachusetts Supreme Judicial Court,
Crocker v. Townsend Oil Co., 979 N.E.2d 1077 (Mass. 2012), to support their contention that the
Wage Act cannot be used to recover overtime pay. In Crocker, the plaintiffs had filed claims under
the Wage Act and the FMWA (but not the FLSA) for owed compensation, including overtime pay,
after the statute of limitations for the FMWA had run but before the statute of limitations for the
Wage Act had elapsed. Id. at 1979, 1081. The court framed the issue as “whether an employee is
entitled to maintain an action for unpaid overtime under the Wage Act (governed by a three-year
6

statute of limitations), rather than under the overtime provisions of [the FMWA] (governed by a
two-year statute of limitations[])” and held as follows:
[A]n employee whose claim for unpaid overtime is barred by the
two-year statute of limitations may nevertheless assert a claim for
unpaid wages under the Wage Act. However, in such instance,
recovery is limited to uncompensated time worked at the regular
rate. That is, if the two-year statute of limitations has elapsed, the
employee is not entitled to the premium overtime rate under [the
FMWA]. This holding strikes a balance between the Legislature’s
intent behind the Wage Act that employees receive timely payment
of wages . . . and the Legislature’s intent to draw a nominal
distinction between overtime wages and regular wages by
establishing different statute of limitations periods.
Crocker, 979 N.E.2d at 1081, 1082 (citations omitted).
Crocker and related cases from this District, cited by Defendants, are consistent with the
above interpretation of the Wage Act. In Crocker, unlike in this case, the plaintiffs had not asserted
a valid entitlement to overtime pay under either state or federal law; they brought only a state law
claim for overtime, and the statute of limitations for this claim had elapsed. See id. at 1079, 1081.
Similarly, in Mogilevsky v. Bally Total Fitness Corp., 263 F. Supp. 2d 164, 165-66, 169-70 (D.
Mass. 2003), cited favorably by the Crocker court, this District found that a plaintiff was entitled
to recover regular pay but no overtime differential where the statutes of limitation for the FMWA
and FLSA (but not the Wage Act) had elapsed. Most recently, in Napert v. Gov't Employees Ins.
Co., 36 F. Supp. 3d 237, 243 n.7 (D. Mass. 2014), this District, citing Crocker, found that recovery
under the Wage Act for overtime was limited to uncompensated time worked at the regular wage
rate and did not include any overtime differential, where the plaintiff was exempt from mandatory
overtime under the FMWA and had not asserted an FLSA claim.
The above-cited decisions, and a close reading of the Wage Act, lead to the conclusion that
the statute applies to the untimely payment of all wages to which an employee is entitled under

7

either state or federal law. The past decisions in which plaintiffs were not permitted to collect
unpaid overtime differential under the Wage Act all have in common that the plaintiffs had failed
to establish any entitlement to overtime pay, either because of an exemption or a running of the
statute of limitations. See Napert, 36 F. Supp. 3d at 243 n.7 (exemption); Mogilevsky, 263 F. Supp.
2d at 169-70 (statute of limitations); Crocker, 979 N.E.2d at 1082 (statute of limitations); Quazi v.
Barnstable Cnty., 877 N.E.2d 273, 278 (Mass. App. Ct. 2007) (exemption). Here, Plaintiff has
asserted a claim for overtime pay pursuant to the FLSA.6 Therefore, his Wage Act claim survives
Defendants’ motion to dismiss.
Conclusion
For the reasons set forth above, Defendants’ partial motion to dismiss (Docket No. 7) is denied.

SO ORDERED.

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

6

I am not, of course, passing judgment on the viability of Plaintiff’s claimed right to overtime
pursuant to the FLSA. This question is beyond the scope of the instant motion, which pertains
only to Count II of Plaintiff’s complaint.
8