Announcer: SJC-13176 Rutchada Devaney and others
v Zucchini Gold LLC and another.
-: Attorney Hemsey?
Welcome.
-: Thank you, Chief Justice, Associate Justice.
May it please the court.
My name is Christopher Hemsey, and I represent
the appellants Zucchini Gold and Mr. Intha.
I do understand I had to write to the Appeals Court
for this argument, and not necessarily
one to the Supreme Judicial Court.
And it is an honor to argue before you this morning.
I understand with the two issues that were brought up
in terms of the correct instruction
under the Federal Labor Standards Act
as well as the liquidated damages clause
between the two statutes,
that there is a large public policy,
which I believe that is unanswered
at least in the state courts here in Massachusetts.
The context of our trial below, before Judge Wilson
was a damages-only trial.
After having found a violation of the overtime law
under the FLSA,
it was done on a summary judgment from Judge Ames
in the Suffolk Superior Court.
So it left a damages-only trial.
And in that argument, in the Supreme,
the summary judgment holding, there was also finding.
No matter whether or not it was entitled to that finding,
there was also finding that there was bad faith
of the individual restaurant owner, my client, Mr. Anthi,
which is only relevant in these statutes under the FLSA-
-: But wait a minute, wait a minute,
weren't those facts, weren't facts,
all the facts undisputed?
I thought there was some
where there were some stipulations here.
-: There were factual stipulations-
-: And was this disputed? The bad faith issue?
-: No, but I'm just simply,
it wasn't disputed in terms of the holding,
but the holding found bad faith in summary judgment,
which is only relevant in-
-: Okay, so the bad faith was not in the findings
that were stipulated to it, it was in the conclusion?
-: Yes, the conclusion of summary judgment,
but the only point being that that finding
is only relevant in the liquidated damages clause
of the FLSA- -: Right.
Liability Wage Act, and that-
-: Before you keep going, we wanna get in that.
You're gonna get to the jury instruction at some point?
-: Yeah, that's point number one.
Elspeth: Okay, go ahead.
-: So the jury instruction, and again,
we're here on the legal questions,
not disrupting the sole factual premise of the finding,
which was from their expert.
The ultimate jury instruction compelled the jury,
no matter what was paid to these plaintiffs,
compelled them to pay time and a half.
-: Okay, I have two questions before you go further.
One is, talk to me about waiver in this case,
because there was no objection to this instruction.
In fact, the attorney said no comment,
even though I know instructions were proposed,
and I know it was discussed,
but when the judge said any problems with this instruction,
there was no objection.
-: Well, the objection was made in transcript exhibit three,
page 64, me and Judge Wilson
and Attorney May all had a conversation
on day seven of trial.
And I started the conversation 'cause you noted,
I didn't really have that many opportunities
to discuss the jury, the proposed jury instruction.
And I had said, I had objected to the entire instruction
as it relates to the FLSA and he kind of-
-: And that was after the jury was,
right before the jury was charged or after?
When was that exactly with regard
to when the instruction was given?
-: The first objection was made, it was about 10 minutes.
I read in the record after the decision was made
by Judge Wilson as to the multiplier.
And then the second objection came after the...
When we were talking, everyday a trial began
and ended with this conversation of the jury instructions.
And after the decision was made from the draft,
I started with the objections to the FLSA
which he acknowledged was made during trial.
And also that I had made that objection clear,
that I disagreed that the FLSA did not allow for
an offset to the time and a half,
which we don't disagree with.
But we're arguing that we're entitled to the instruction
that doesn't seem to be contested here,
that these plaintiffs were paid the time
in the time and a half.
And that's the important crux.
And this was the nature of the legal aspect of our trial.
It was a very difficult trial, and that it was two weeks
and we were dealing with many witnesses,
but also we were briefing this issue numerous times.
And Judge Wilson had heard us many different arguments
before the eventual decision.
But the nature of this claim
and their only evidence was from the expert,
and I'm combining the three plaintiffs' claims
was $101,000 of what they claim was owed.
And of that, I had asked all three plaintiffs
and I had asked the actual expert and said,
is your factual-
-: Counsel, can I ask you,
were these plaintiffs paid
the same flat rate
every day that they showed up?
Regardless of whether it was a half day
or they could only put in six hours,
or was it every day they showed up,
they got paid the same thing?
-: Yes, so no matter what, in terms of,
in this case, I think the record is clear,
at least at trial.
They had a day rate,
and the way they were paid is,
is each shift, it was lunch or dinner.
So each shift was a half a day rate.
So if you were paid, it didn't matter
if it was a dead Monday lunch or a slamming Saturday night,
it was, you paid a half a day rate.
So you could work two hours, you could work-
-: So they were not paid
a day rate in that
they were paid a flat sum for every day.
If they showed up for
the morning shift,
they were paid half,
they were paid,
whatever that shift rate was?
-: Correct, as defined by a half-a-day rate.
-: All right, so what,
what in your estimation is the fraction
that allows the FL,
I'm gonna get that wrong.
-: FLSA.
-: Section 778.112 to be triggered.
'Cause either you're saying,
I'm protected, I employer,
am protected by this provision.
And when I half the day rates,
what if I one-eighthed the day rate?
That is for every eighth of a day,
you show up, I pay you this rate,
would that fraction work also under the section 778.112
in your estimation?
-: I don't think this case goes into those examples
from the federal regulations.
And as a starting point, the FLSA under section 207,
it is, we owe a time and a half,
but the case law is clear that what the plaintiffs
are entitled to is the unpaid time.
So I just think that's the rule, and it's not contested.
At least my reading of the appellate's brief.
It's not contested that these plaintiffs
were paid for the time and the time and the half.
What they make is the academic argument
that I don't fit within an exception
to get the 0.5 multiplier, such as in section 0.112.
However, in that, and Thomas,
the 11th Circuit Waste Pro case, Thomas in Tampa,
it spoke about when you're looking at things,
the fact that you get a half-a-day rate for half a day
does not take it out of what I'm arguing to be this case,
which is ultimately it's a day rate.
And if you work one shift, you get half,
no matter how many hours it is.
And these examples, they really look to the intent,
the primary scope of their payment relationship,
which in this case,
we had a 73-year-old architect who bought a restaurant
and honored every payment agreement these plaintiffs had
with the predecessor owner.
-: I'm sorry, Counsel, you're speaking so fast.
Christopher: Sorry.
-: What was the case that you said
proved the half-day rate?
-: Thomas versus Waste Pro
which just dealt with these concepts.
These things after section 109 are simply examples.
They're not necessary precedented-
-: I'm sorry, Thomas is from what circuit?
-: I believe it's the 11th circuit, is down at Tampa.
It was in my brief, your honor.
-: Okay, thank you.
-: But anyway, the point is,
it's not into these rigid constructions of whether or not
it fits into the example.
Our own Massachusetts overtime law actually says-
-: Mr. Hemsey, before you move to us for a second,
I just want to make sure are there any...
When I read this Thomas versus Waste pro case,
it's not gonna have a half-day rate, right?
We're not gonna have any guidance on half days.
Are the only federal cases that allow the half
as opposed to time and a half full-day rate cases,
I'm just trying to make sure I know what the landscape is
'cause I don't know the FLSA stuff well.
-: Well, again, I can't...
There's various examples in case laws dealing
with these examples of those federal regulations.
But, I can't stress enough that the factual premise here
is that these,
and this is from the plaintiff's own testimony
as well as the experts own factual foundation.
They were paid for each hour work,
which means that as a rule, I don't disagree
they worked hard,
I don't disagree the federal law requires
they get paid time and a half.
The only thing that I kept arguing and objecting to
was that I should have been able to have the instruction
that they were paid a time versus the time and a half.
And that shouldn't fit within an exception to the rule.
I believe that is the rule, which is in line with 151-1B,
which says that a plaintiff in overtime and mass
gets the full amount of the overtime compensation,
less any amount actually paid to him.
And that's really the crux of that first argument is that,
and I do believe, that Thomas case, your honor,
to your question,
it does say the fact that a plaintiff recovered
other compensation for tasks outside his normal day,
doesn't take it outside the scope of a day rate.
They look at the primary payment, and here is,
it's a day rate as defined by each shift.
If it was two hours or six hours, is half of that rate.
And that's what Thomas stands for.
If it's a half-a-day rate, it doesn't take it out
of that formula in the section-
-: Well, let me ask you a question about this,
your day rate and your half-day rate.
My understanding from the record I thought was that,
it was always a day rate Monday through Friday,
but it was a half day rate on Saturday and Sunday
because the restaurant only served dinner.
-: Correct, so in other words-
-: So it's not really like
on those Monday through Friday days,
people were coming in, clocking for half a day
and somebody was noticing the time
and figuring out what to pay them?
-: Correct, it was simply if you work lunch,
you got half your day rate.
If you work dinner, you got half your day rate.
No matter the day, no matter how many hours it was.
-: So it's not accurate in the record then
that Monday through Friday,
they were payed a flat rate day rate.
-: If they work both shifts, it was, but even,
and the point of these federal cases is,
even if they worked half a day and got half a rate,
it still fits within that day rate.
In this case, it was just how
they mathematically figured out the level of that,
of the wages paid, and so-
-: Can I ask, mister, a very basic question,
if I work 41 hours a week under the FLSA
and I get paid 41 hours,
but I don't get time and a half for that one hour,
do I get a whole one and a half,
even though I got paid for the,
or do I only get a half, just for this standard case?
-: The first question is whether or not you were paid
for that 41st hour, and in this case, it was,
and that's all from the plaintiff's testimony
and the expert.
So that first hour-
-: Forget about this case for a second,
federal law, I work 41 hours,
I got paid for 41 hours.
I didn't get time and a half for that one hour.
Do I only get a half hour or do I also get one and a half
as some kind of (indistinct) provision?
-: The case law in terms of that, it's to make them whole,
not give them a windfall.
And it's the half hour
which gives them the overtime wage rate,
because it doesn't ignore that they were paid the time
and the time and a half.
That's consistent in O'Brien, in Loopy,
and the cases I cited in the brief,
as well as our own Massachusetts statute.
If I can go to the second-
-: So you only get the time and a half,
when you not been paid at all for that last hour.
You only get it when it's-
-: There's plenty of cases where these plaintiffs
weren't paid anything after the 40th hour.
And in that case, yes, it's time and half.
That is your step one, and then from that damages,
you go down and say, okay,
what did you get paid from
that entitled rate of time and a half?
And in this case, it's uncontested,
they got paid for every hour worked.
And therefore when they...
Their only evidence was,
there were singular damages of $33,000.
That was what the half was.
And they argued for $101,000.
And the judgment came to 548 with these liquidated damages.
And these statutes are designed to not reach an absurd
or an unreasonable conclusion.
And the facts, their facts which I don't question
for purposes of appeal, is that they were out of pocket
33,000, because they were paid at a time
and the time and a half.
-: Just to follow up on Justice Kafke's question.
So are you saying that the statute is designed
just to make them whole,
not to punish the employer in any way?
They're just supposed to get the time and a half
they were supposed to get all along?
-: Well, there's two points.
In these statutes, FLSA and Wage Act have teeth
and it's to stop the unreasonable detention of wages.
So the first step is yes, you make them whole,
but as defined under the liquidated damages,
that includes a double damage in FLSA
or a triple damage strict liability under our Wage Act.
And on top of that is the attorney's fees.
So it's not, the single damages makes them whole,
and the case law says not to provide a windfall,
which this is because what happened at-
-: I completely understand you're saying
they got 1.5 versus 0.5, I get that.
I was just trying to figure out,
and you are telling me that yes,
the FLSA does allow for sort of a punishment,
if you will, to the employer.
-: It is a predefined liquidated damages,
which if I could briefly, just on that second point,
the case law seems to come down to the crux
of whether or not you could bring an argument
in federal and state court.
And if you can, then you could choose either statute
for your voice for the liquidated damages.
In this case, they could not bring this in state law
because the exemption that existed
since the Overtime Statutes enactment in 1960
of the restaurant industry.
So the quick argument as brief was simply that,
you look at the common sense as the Donnas
and the Jinx Course,
most recently in the Arya's Philando case,
you look at that common sense approach,
the Crocker and Townsend oil,
where the Supreme Judicial Court said,
you can get these damages, but not the overtime rate.
There is an attempt to look at the intent
of these legislatures and every other reading
by allowing the Wage Act to enforce a federal violation,
really doesn't, it ignores the statutory intent
of the exemption of the restaurant industry.
And I feel like that's why,
and I preserved this in the jury instructions
prior in September, prior to trial.
This was the issue of trial and it wasn't for the jury.
We had discussed that it was an issue for the judge
after the jury did its singular damages calculation.
So I just believe that that there is a half owed
if you can prove that you're paid the time
and time and a half.
And for a federal violation of statute,
without a corresponding state violation, which we have here.
They paid on time and they paid minimum wage,
that it should be enforced by the FLSA.
-: So they should get double?
They should get double then under the FLSA, not triple?
-: Correct, and it's, either way attorney's fees,
which that hearing on attorney's fees,
you have to also consider why we're here.
And if I'm correct that they got nine times damages
by coming in without accounting for,
getting paid a time for the time and a half,
that's a huge factor.
This case is going to trial because we're aside
two thirds of their claimed argument.
-: Right, Counsel, along those lines,
just, can you tell me what your position is on
whether it's divisible by 40 hours a week
or the actual number of hours worked?
-: I think that's clear.
The judge held it's not issue of appeal,
but it is actual money paid,
divided by actual hours worked.
And that gives us our actually paid regular rate
by which the expert used, presented to the judge.
And I accept that for purposes of this appeal.
It's using actual, which gives us actual amount paid.
And in this case, it was on time and sufficient
for our minimum wage requirements for-
-: And so that's really what you're saying.
Oh, that reminds me, the minimum wage count.
What happened to that?
-: In all of the expert numbers,
it was above minimum wage when he did the-
-: But it's not on the docket, it's not in the decision.
I don't see anything taking care of this count.
-: Well, I think that, well,
there was no finding that it was below
the statutory required minimum wage.
It was just simply the Wage Act was violated
because of the OT time and a half FLSA provision violation
as found at summary judgment.
So with the wage number, as well as the timing of payment,
there was no independent Wage Act violation by my client.
-: So even though there's no docket entry on this count
and nothing in the opinion about this count,
you're saying this count, that the judge found no problem.
-: Yes, the damages were based on the two issues
that we had discussed.
Elspeth: Okay.
-: Okay, thank you.
-: Thank you, all.
-: Attorney May.
You're on mute.
-: Good morning, may it please the court, good morning.
Madam Chief Justice, associate justices.
I am Michaela May and together with Eric LaBlanc,
I represent the appelles.
This court must affirm the decision below.
Before I begin,
I would like to address a point made by my brother counsel.
With all due respect to brother counsel,
the record was quite different than presented here.
I would respectfully point to appendix three,
pages, 33, I'm sorry, 34 and 35, stamp Devaney 63 and 64.
Those show that when my clients worked
less than a full day, for example,
because they attended a doctor's appointment,
their wages were cut.
This is a critical point because it invalidates
any day rate scheme.
It was contested at trial that the plaintiffs were paid
a day rate as defined under the FLSA.
And it's that those deduction from wages and addition
to wages that invalidated the scheme.
So I wanted to be clear about that before I delve
into the rest of the argument.
Appellee's reading of the FLSA and the Wage Act
is convoluted and it's incorrect.
Their position contradicts the plain language
and the remedial purposes of these statutes.
This appeal involves two issues,
both of which the lower court and the jury got correct.
The Superior Court appropriately awarded treble damages
pursuant to the Wage Act and its jury instructions
on the calculation of overtime wages may not be disturbed.
Under the restaurant's present ownership,
appellant's hours got longer,
the restaurant got busier
and the number of employees became fewer.
A pay scheme that initially covered 40 hours expanded
and expanded with no overtime whatsoever.
-: Okay, Counsel, can I ask you to just follow up
on a question that your brother was addressing.
Do you agree that the trial judge found
that this is a situation where we're going
to take actual pay and divide it by actual hours?
Is that what happened?
-: So that is what the judge did.
There was uncontroverted evidence that the pay scheme
was established during prior ownership
when the plaintiff's hours were affirmatively limited
to 40 hours per week.
There was extensive testimony about this
that was completely uncontroverted,
to wit the restaurant shut down its lights
in the middle of the day.
And the prior owner required the employees
to effectively record their hours
through a point of sale system.
What the new owner did is he expanded the hours,
he cut the staff, the restaurant got busier
and he refused to hire more people,
which is what the FLSA tries to stop.
It tries to encourage employers to employ more workers,
and it seeks to compensate employees for the burden
of a long work week.
These are the statutes-
-: It's not addressed on how hard you work during the hours.
It's addressed to whether you got paid
for the extra hours you worked, right?
The fact that he worked them harder
is none of our business.
It's whether he worked them longer
that it becomes our business, right?
-: Well, respectfully Mr. Justice,
I think it's relevant to the extent
that an expressed purpose of the FLSA
is to compensate employees for the burden
of longer workweeks.
And this has been established in FLSA precedence
since the 1940s.
-: Well, again, you've gotta get paid the hours you work.
If you have to work harder during the hour,
that's none of our business,
that's what employers get to do.
That's how it's...
So why don't we just deal with the issue
about how many hours they worked,
and how many hours they got paid as opposed to...
And also, who cares what the prior owner did,
it's what this guy did, right?
-: Well, according to Mr. Intha, he took over the scheme.
He says he kept everything the same.
So I think they brought it up.
I think they've made it relevant,
and the agreement was created under the prior ownership.
So-
-: But we can't, we can't measure that, can we?
We can't factor how hard
they were working into this calculation.
All we can really do is look at how were they paid?
How many hours did they work?
Were they deprived of overtime?
And if they were deprived of overtime,
are we factoring this by 1.5 or are we doing 0.5, right?
-: And there's several reasons to that.
If your honor would like me to jump into the FLSA,
I'm happy to do that.
I intended to begin with the Wage Act,
but I can do that if you wish.
-: I just want to make sure that,
we're talking about how hard they're working
and that we can't factor that into anything.
So whether it's the Wage Act or the FSLA,
it doesn't matter.
-: Let me clarify.
So the reason that it came in is I was asked,
did I agree that the denominator
was the entire hours worked over the week?
Which of course we don't know what that sum is for any week,
or was it 40 hours?
And our support for 40 hours was the uncontroverted evidence
that this work scheme, that this pay scheme was created
at a time when they worked 40 hours.
Because the denominator under the law is all hours
for which it was intended to compensate,
it was our position at trial that 40 hours
was the proper denominator.
The judge disagreed.
And he made the denominator all hours worked.
That said, I admit that we're not an appellant in this case
and we are asking that the judgment be affirmed
because regardless of the denominator,
we believe that the 1.5 multiplier was necessary in law.
-: Can you explain the last part?
I am a little confused now.
So if under federal law, you worked 41 hours,
that last hour should be compensated at one and a half.
If you were paid for one hour,
you only get to collect the half hour, right?
-: So, I thought that was an excellent question.
I think the answer to it illustrates why the court
should do one and a half years.
So if I'm paid, if I work 41 hours in a non-exempt job
and I am being paid on a true salary basis,
then my compensation is for those 40,
is going to be for all hours worked.
And a true salary basis means if I work 35 hours,
I get my salary.
If I work 45 hours, I get my salary
and a 0.5 overtime premium.
However, if I'm an hourly employee,
let's say I'm paid $20 an hour.
I'm not gonna get paid for 40 hours when I work 35.
But when I work over the 40, I'm getting the 1.5.
And if this court looks at the cases concerning-
-: And the factual findings here are what?
That they worked how many...
How were they paid?
I'm just-
-: Sure.
They were paid certain sums for certain days of the week,
Monday through Friday, one sum typically.
And Saturday and Sunday, which were shorter days,
a different sum.
But there were things that the employer did here
that made it such that this wasn't a real day rate.
They weren't actually being paid for the whole day.
So if this court looks at appendix three, page 35,
Ms. Devaney took half a day off on a Thursday
to go to the doctor.
If this was a true day rate scheme,
she would have gotten the full day.
If we look at appendix three, page 34,
it actually says she worked from 3:00 to 9:30
and she was paid for six and a half hours.
So these records show that this wasn't a real day rate.
-: So it's not a day rate, nor is it...
Is it treated as an hourly? What is it?
Is she an hourly employee or a day-rate employee?
-: I mean, I think she's really neither, the-
-: Okay, so if she's neither,
what does federal law tell us what to do?
Is that- -: Sure, so we take-
I'm starting to get even more confused.
-: Sure, and I mean, part of the reason for this confusion
is they didn't keep these records.
So the records I just produced,
we only have a few of them and we only have them
because my clients kept them.
It came across in the trial that some that they had
were never produced, but--
-: Can you answer Justice Kafker's question
'cause I'm also interested in that answer?
-: Yeah, absolutely.
So you take all of the hours that are worked in a week,
and then you have to calculate the premium paid for hours
in excess of 50.
So what we had asked the judge to do,
and what I think would have been correct
would be to take the amount paid,
divided by 40 and do one and a half.
Here, recognizing-
-: So Ms. May, did the judge then convert this
into an hourly employment structure
and then apply federal FLSA
hourly employee rules to this, rather than...
It's not a rhetorical question 'cause I'm just now confused
'cause I've gotta go back and learn.
I don't remember the record.
-: Yeah, the FLSA is complex
and there are places where it can be clear as mud.
And I think a thorough understanding
of this is very helpful.
So first the court has to calculate the regular rate.
So, you take all of the compensation paid for the week,
and that would include additional compensation,
if they received commissions, et cetera,
all types of compensation that they receive
that are calculated in the regular rate
under the statute and the regulations.
And then it's divided by the number of hours per week
for which that compensation is intended to compensate.
But that device,
that number at the bottom only becomes all hours worked
when very strict criteria are met, that were not met here.
And I would really, I would ask the court to look
at an analogy to the regulation.
-: You're drilling at Carnegie Hall
and we're still trying to learn how to hold the boat.
So, tell me,
are we dealing with the hourly employee rules
or are we dealing with something else?
And if we're dealing with the hourly employee rules,
how many hours did she work according to,
and how many overtime hours were there
and were they paid at 1.5 or one?
I'm just trying to-
-: Sure.
Sure, it was resolved on summary judgment
that they were paid no overtime whatsoever.
So I think that the idea that they were already paid
for this time contradicts that.
The summary judgment is not on appeal-
-: No, no, no, wait, wait, wait, wait.
Please, I'm sorry.
So they weren't paid overtime,
meaning they weren't paid one and a half times
the overtime hours, right?
So I mean, that's what that means,
but if you could just go back and explain to us
what we're working with here.
If it wasn't hourly and it wasn't salary or day rate,
what is it?
You said that the FLSA gives you instructions on how to do-
-: It does, it does.
So I would, I would say it's effectively
like kind of a hybrid scheme.
They attempt to get a day rate
in after the fact calculations at trial.
But I think a fair reading of what they were actually doing
is making an attempt to compensate for hours worked.
And that was problematic because there was no overtime,
there was no effort to pay them.
They were working on the record between 52,
and I would say about 77 hours a week.
-: Right, but you said that the judge did attempt
to get a regular rate to go by.
-: So what he did was he gave an instruction
on how to calculate the regular rate.
And that was up to, ultimately to the jury
to decide how to do based on the instructions given.
-: And after they...
Did those instructions include multiplying by 1.5?
-: Yes, your honor.
-: Why would that be correct?
Why wouldn't it just be 0.5
when you figure out what the overtime hours are.
-: Sure, for a few reasons.
I won't repeat it at length,
but the evidence about the 40 hours,
the summary judgment finding that there was no overtime.
But I think the key here is that under section 7A
of the FLSA, an overtime premium of 1.5 is the default.
The circumstances under which a 0.5 premium are allowed
are narrow and they're few-
-: Counsel, Counsel, just for my own edification,
there's nothing right in the FLSA
that says you offset that compensation against the overtime.
Is that right?
So that's why overtime cannot be offset
by ordinary compensation that was included
in the calculation of the regular rate, isn't that correct?
So that's why you get the one...
Well, it's from a case, Miley versus Dupoint, DuPont rather,
sorry, third circuit case from 2016.
And basically that overtime,
it says overtime may not be offset
with ordinary compensation that was included
in the calculation of the regular rate.
So isn't that where in part, we get the 1.5
rather than the 0.5 lack of offset.
-: Yeah, I mean, I think that's a very critical principle.
And one thing I really want to point out
is that if a 0.5 premium is allowed here,
it undoes the distinction between,
and I realize I'm getting into the nitty-gritty,
but it undoes the distinction, for example,
between the fluctuating work week and a fixed salary basis.
It renders a whole lot of tests where a 0.5 premium
can be permissible, essentially moot.
Any employer can kind of estimate a little bit
how much they're working and say 0.5 premium.
But that's not what the FLSA does.
And I think that's a really important point to understand.
If your honors would give me the Liberty,
I would like to address the Donnas case
and how this matter is distinguishable.
So in Donnas, both in the opinion itself,
and in the oral argument,
this court was very concerned
with the comprehensive remedial scheme
that is the prevailing Wage Act.
That it was a scheme that was well negotiated
between powerful parties that resulted in
a very powerful mechanism for these workers.
This comes under a very different light.
The Massachusetts Overtime Law was created to expand
the overtime rights of workers.
It was not created to limit those workers' rights.
This is the case of the Wage Act doing exactly
what it's supposed to do.
If this court decides that the Wage Act has no interest
in overtime under the FLSA,
it ignores that wages
by their plain meaning include overtime.
It ignores this court's language in summers,
where any concerns about a windfall are really concerns
that restaurants that don't follow the law,
get a windfall.
There's a lot of employees who never come forward.
This is an industry that is rife,
with wage and hour violations.
And, when a restaurant like Rice Barn here
doesn't follow the law,
it makes it much more difficult for the restaurants
that do to-
-: Can I ask you a question about that?
So then when the state,
when our Wage Act exempts restaurant workers from overtime,
any restaurant worker then could just file a complaint
under the FLSA, right?
And then they would get the triple damages due
under the Wage Act.
And so then that would just sort of be circumventing
part of the Wage Act that says
that restaurant workers don't get overtime.
Is that correct?
-: The Wage Act itself does not exempt restaurant workers.
Restaurant workers are covered by the Wage Act.
When the legislature amended the Wage Act
to include treble damages in or around 2008, it did so
at a backdrop in which restaurant workers
were entitled to FLSA overtime.
This court should not read constraints into the Wage Act
that are not within its text.
-: So there's nothing in the Wage Act that says that,
the overtime portion doesn't extend
to restaurant workers.
I misunderstood that.
-: The Wage Act chapter 148 section...
I'm sorry, 149 section 148 does not have any,
says nothing about exempting restaurant workers.
-: Is there anything in the overtime?
Yeah, in the overtime.
-: The overtime statute does exempt restaurant workers.
But again, the cases that are cited, for example, Crocker.
The Crocker plaintiff did not bring an FLSA claim.
It wasn't before this court,
whether that was part of their wages.
In Donnas, it was a very different claim.
I think it's important to understand that,
if I'm a restaurant worker and I work 60 hours
and my employee doesn't pay me,
I need to be able to go to one place-
-: I just wanna make sure that I got the answer
to my question, which is,
any restaurant worker who feels like they didn't get
their overtime can sue under the FLSA
and then get the treble damages under the Wage Act.
And that's your-
-: They can Sue under the FLSA if it's an FLSA violation.
There are certain, for example,
there has to be enough gross revenue.
If you have a very small restaurant-
-: Okay, but assuming you have all of that,
like your clients did, right?
So they stood under the FLSA
and they're now getting, wanting to get treble damages
under the provision of the Wage Act.
And by that, in that way they can,
they're getting their overtime money under the FLSA,
and then getting it trebled under the Wage Act
where they would not be able to do that
if they were suing solely under the state's statutes.
-: That is accurate,
they're not getting double and treble to be clear.
And I also wanna point out that the FLSA
does not preempt more liberal state laws.
So there's nothing inconsistent with the FLSA.