Opinion
SUCV20172204BLS1 138496
10-12-2017
Janine Frost v. Malden/Dockside, Inc. et al. [1]
Filed October 13, 2017
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS COUNT I TO THE EXTENT IT IS BASED UPON ALLEGED FAILURE TO PAY OVERTIME
Edward P. Leibensperger, Justice
This is a putative class action on behalf of workers serving food and beverages at restaurants owned by defendants known as " Dockside." The Complaint is in three counts: Count I, Non-Payment of Wages, Count II, Unlawful Tip Practices, and Count III, Failure to Pay Full Minimum Wage. Defendants move to dismiss Count I, only to the extent it is based on the alleged failure to pay workers one and one-half times their regular pay (" premium pay" ) for work more than 40 hours in a week.
Count I asserts a claim for non-payment of wages in violation of G.L.c. 149, § 148. That statute requires timely payment of " wages earned." A plaintiff may enforce the obligation to pay wages earned through a private action under G.L.c. 149, § 150. These sections comprise the relevant portions of what is referred to as the " Wage Act."
Defendants move to dismiss the claim for premium pay because G.L.c. 151, § 1A expressly excludes employees employed " in a restaurant" from the requirement otherwise imposed by § 1A to pay premium pay to employees who work more than 40 hours per week. In response, plaintiff asserts that she is entitled to premium pay under the federal Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § § 201 et seq. She argues that if she is entitled to premium pay under any applicable law or agreement, she may use the Wage Act to enforce her right to " wages earned." Defendants contend that the Wage Act may not be used to enforce federal law, particularly where federal law is in contrast to state law, and, in any event, plaintiff did not plead that she was relying on federal law for her Wage Act claim.
Plaintiff points to a number of decisions from the United States District Court for the District of Massachusetts as being directly on point. For example, in Lambirth v. Adv. Auto, Inc., 140 F.Supp. 3d 108 (D.Mass. 2015), the court held that the Wage Act could be used to recover " the untimely payment of all wages to which an employee is entitled under either state or federal law." Id. at 112. That conclusion was also reached by another district judge in Carroca v. All Star Enters. & Collision Ctr., Inc., KAVITA2013 WL 3496537 at *3 (D.Mass. 2013) (even if worker is excluded from premium pay requirement under state law, the Wage Act may be used to enforce premium pay required by federal law). I agree with the rationale and holding of those cases. The Wage Act provides a remedy to collect unpaid " wages earned." There is no limitation on the reach of the Wage Act based on the source of the obligation to pay wages, including premium pay. See Bassett v. Triton Technologies, Inc., KAVITA2017 WL 1900222 (Sup.Ct. 2017) (holding that Wage Act may be used to enforce premium pay requirement for work on Sundays). Thus, if the FLSA requires defendants to pay premium pay for work more than 40 hours per week, the Wage Act may be used to enforce that obligation.
That said, defendants argue that the Complaint does not allege that plaintiff is entitled to premium pay under the FLSA. In fact, the FLSA is not mentioned anywhere in the Complaint. Mass.R.Civ.P. 8(a) requires that a pleading contain " a short and plain statement of the claim showing that the pleader is entitled to relief." At present the Complaint fails that test because plaintiff is only entitled to relief in Count I to receive premium pay if she qualifies for protection under the FLSA. Consequently, defendants' motion to dismiss must be ALLOWED, with leave granted to plaintiff to amend the Complaint. Such a motion to amend must be served by no later than November 15, 2017.