WEBVTT 1 00:00:00.828 --> 00:00:02.790 SJC-13382, Matthew Sutton 2 00:00:02.790 --> 00:00:06.603 and another v. Jordan's Furniture Inc. 3 00:00:10.316 --> 00:00:11.370 May it please the court. 4 00:00:11.370 --> 00:00:13.773 Julie Brennan on behalf of Jordan's Furniture. 5 00:00:15.313 --> 00:00:16.343 I'm sorry? Sorry about that. 6 00:00:17.294 --> 00:00:20.044 (Julie chuckles) 7 00:00:22.182 --> 00:00:26.327 In the oral argument in this court, 8 00:00:26.327 --> 00:00:28.360 in the Sleepy's case in, 9 00:00:28.360 --> 00:00:30.850 Justice Kafker presented a hypothetical question 10 00:00:31.872 --> 00:00:35.269 to the attorney representing the plaintiff in that case. 11 00:00:35.269 --> 00:00:36.840 The attorney is with the same law firm 12 00:00:36.840 --> 00:00:39.960 that represents Mr. Sutton in this case, 13 00:00:39.960 --> 00:00:41.767 and the question was, 14 00:00:41.767 --> 00:00:44.610 "Sleepy's could have easily created a draw 15 00:00:44.610 --> 00:00:46.713 that met your requirements, right? 16 00:00:47.707 --> 00:00:49.590 They could have said, 'We will give you a draw 17 00:00:49.590 --> 00:00:54.590 that is the minimum wage times 40 and overtime at 1.5,' 18 00:00:56.997 --> 00:00:58.277 and we wouldn't be here, right?" 19 00:00:59.379 --> 00:01:02.930 That is the Jordan's pay plan. Well, is it really? 20 00:01:02.930 --> 00:01:05.700 Because the subtraction issue is, 21 00:01:05.700 --> 00:01:09.238 there's three parts to the Jordan's pay plan 22 00:01:09.238 --> 00:01:10.253 I think are interesting. 23 00:01:12.714 --> 00:01:15.207 One is the difference you just pointed out, 24 00:01:15.207 --> 00:01:18.828 that the draw there, unlike the draw in Sleepy's, 25 00:01:18.828 --> 00:01:21.434 which is 125 a day without a breakout, 26 00:01:21.434 --> 00:01:22.350 this one had a breakout, 27 00:01:22.350 --> 00:01:24.573 but there were two other parts to this. 28 00:01:25.824 --> 00:01:28.563 One's that you have to pay everything back, 29 00:01:32.268 --> 00:01:34.170 and if you don't get a commission, 30 00:01:34.170 --> 00:01:36.398 either the beds aren't selling 31 00:01:36.398 --> 00:01:39.843 or you're not a good salesperson, you owe the money back. 32 00:01:41.523 --> 00:01:43.484 That wasn't the case in Sleepy's. 33 00:01:43.484 --> 00:01:48.083 There was no money owed back, and secondly, in Footnote 8, 34 00:01:51.998 --> 00:01:55.547 in that you do have something you don't have to pay out, 35 00:01:55.547 --> 00:01:57.570 if you work on particular holidays, 36 00:01:57.570 --> 00:02:01.353 you get that time and a half, and it's not a subtraction. 37 00:02:03.934 --> 00:02:07.203 So you know exactly how to do it in Jordan's. 38 00:02:11.000 --> 00:02:13.895 The more you work, the more you owe in a certain way here, 39 00:02:13.895 --> 00:02:15.873 which seems troublesome. 40 00:02:17.131 --> 00:02:20.315 So why don't you address the three different facts, 41 00:02:20.315 --> 00:02:23.883 the one that helps you and the two that don't look so good. 42 00:02:24.750 --> 00:02:25.583 Understood. 43 00:02:26.421 --> 00:02:29.403 So the Sleepy's pay plan, $125 per day, 44 00:02:30.586 --> 00:02:32.280 it did not track or pay out separate 45 00:02:32.280 --> 00:02:35.550 and additional overtime pay or Sunday pay. 46 00:02:35.550 --> 00:02:37.173 So what Sleepy's had to do- 47 00:02:39.028 --> 00:02:42.483 You didn't lose. You were given that money. 48 00:02:43.351 --> 00:02:44.281 You got that money. 49 00:02:44.281 --> 00:02:46.394 By the way, that wasn't enough, obviously. 50 00:02:46.394 --> 00:02:48.037 That money was yours. 51 00:02:48.037 --> 00:02:50.142 It was the exact same system as Jordan's. 52 00:02:50.142 --> 00:02:51.390 It was a draw against future- 53 00:02:51.390 --> 00:02:53.942 They had no subtraction, did they? 54 00:02:53.942 --> 00:02:56.295 They did, Your Honor. In the Sleepy's case, what Sleepy's- 55 00:02:56.295 --> 00:02:58.793 Would fall behind in and owe money, 56 00:03:01.984 --> 00:03:05.220 meaning you went and got your payroll in that week, 57 00:03:05.220 --> 00:03:08.830 you would still owe them money that you had 58 00:03:09.667 --> 00:03:11.889 to pay back out of future commissions? 59 00:03:11.889 --> 00:03:15.660 The $125 per day in Sleepy's, 60 00:03:15.660 --> 00:03:17.470 the way that the plan operated 61 00:03:18.339 --> 00:03:23.333 was that Sleepy's admittedly didn't pay the statutory pay 62 00:03:23.333 --> 00:03:25.140 that was due, the overtime pay of the Sunday pay. 63 00:03:25.140 --> 00:03:29.130 Sleepy's argued, "We're gonna pay commissions later, 64 00:03:29.130 --> 00:03:31.890 and we're gonna retroactively count some 65 00:03:31.890 --> 00:03:35.974 of those commissions that we failed to meet. 66 00:03:35.974 --> 00:03:38.270 We failed to pay the Sunday pay and the overtime." 67 00:03:38.270 --> 00:03:41.048 So there was that retroactive application only. 68 00:03:41.048 --> 00:03:46.048 But if, in that time period, you earned commissions, 69 00:03:46.438 --> 00:03:47.271 they would subtract, 70 00:03:48.556 --> 00:03:52.143 like have it be a constantly ever accumulating debt, right? 71 00:03:54.265 --> 00:03:55.098 Maybe I'm wrong, but I- 72 00:03:55.098 --> 00:04:00.098 My understanding of the Sleepy's pay plan 73 00:04:00.225 --> 00:04:01.800 was that it operated identically. 74 00:04:01.800 --> 00:04:06.800 The $125 per shift was a draw against future commissions. 75 00:04:10.658 --> 00:04:14.423 That concept is the same at Jordan's but slightly different. 76 00:04:14.423 --> 00:04:17.250 It pays out a base hourly rate to employees. 77 00:04:17.250 --> 00:04:20.724 We pay the minimum wage times 40 hours. 78 00:04:20.724 --> 00:04:21.870 We pay a separate and additional payment 79 00:04:21.870 --> 00:04:26.271 that shows up as a line item on the pay stub, 80 00:04:26.271 --> 00:04:27.463 time and a- It's a draw. 81 00:04:30.118 --> 00:04:32.717 You're giving- The draw is- 82 00:04:32.717 --> 00:04:33.570 No matter what, Draw is- 83 00:04:33.570 --> 00:04:35.548 you have to pay it back, right? 84 00:04:35.548 --> 00:04:39.358 Draw is specifically defined in the Jordan's pay plan, 85 00:04:39.358 --> 00:04:42.790 and the definition of draw is an hourly base pay designed 86 00:04:43.890 --> 00:04:47.220 to provide sales employees despite fluctuations 87 00:04:47.220 --> 00:04:48.393 in commissions earned. 88 00:04:49.327 --> 00:04:50.460 So at Jordan's- That's how it's described. 89 00:04:50.460 --> 00:04:52.650 That's not how it actually works. 90 00:04:52.650 --> 00:04:57.074 When it works is if you work that overtime 91 00:04:57.074 --> 00:04:58.200 and get that draw, 92 00:04:58.200 --> 00:05:01.975 you gotta pay that money back outta your commissions. 93 00:05:01.975 --> 00:05:03.443 You don't get to keep that money. 94 00:05:04.515 --> 00:05:07.857 You have to pay it outta commissions back, right? 95 00:05:07.857 --> 00:05:10.585 And that was the same system in Sleepy's, 96 00:05:10.585 --> 00:05:12.240 and so in this case, 97 00:05:12.240 --> 00:05:16.830 the draw was specifically defined in the pay plan, 98 00:05:16.830 --> 00:05:21.413 and we received an opinion letter from the DOS in 2003 99 00:05:23.297 --> 00:05:26.664 that specifically said that that was permitted. 100 00:05:26.664 --> 00:05:28.727 Question number six was, 101 00:05:28.727 --> 00:05:31.410 "Can the employer count the premiums paid to the employee 102 00:05:31.410 --> 00:05:34.623 as a recoverable draw against future commissions?" 103 00:05:34.623 --> 00:05:35.460 And the answer was yes. 104 00:05:35.460 --> 00:05:38.773 The attorney general continues to take the position 105 00:05:38.773 --> 00:05:39.606 that that is permitted. 106 00:05:39.606 --> 00:05:42.210 In topical outlines that the Attorney General's Office 107 00:05:42.210 --> 00:05:44.040 publishes every few years, 108 00:05:44.040 --> 00:05:46.657 the most recent of which was published- 109 00:05:46.657 --> 00:05:47.490 Counsel, can I ask you to address 110 00:05:47.490 --> 00:05:52.370 how the Jordan's Furniture plan meets the goals 111 00:05:53.250 --> 00:05:55.685 of the overtime statute, 112 00:05:55.685 --> 00:05:58.225 the three goals that are set forth in Mullally? 113 00:05:58.225 --> 00:05:59.393 Yes. 114 00:05:59.393 --> 00:06:03.653 Of the $9 million judgment in this case, 97% is Sunday pay. 115 00:06:05.503 --> 00:06:07.260 Only 3% is overtime. 116 00:06:07.260 --> 00:06:09.543 Mr. Sutton, the plaintiff in this case, 117 00:06:10.461 --> 00:06:12.180 worked fewer than five minutes of overtime 118 00:06:12.180 --> 00:06:17.180 during the three-year window at issue in this case. 119 00:06:17.880 --> 00:06:20.043 A full one third of the class members, 120 00:06:21.298 --> 00:06:24.101 the average overtime of the class members 121 00:06:24.101 --> 00:06:27.063 over that three-year window was only four hours. 122 00:06:27.921 --> 00:06:31.121 There's a reason for that Jordan's testimony, 123 00:06:31.121 --> 00:06:31.954 which is in the record, 124 00:06:31.954 --> 00:06:36.003 was that they did not schedule employees to work. 125 00:06:36.910 --> 00:06:39.400 In fact, they dissuaded employees from doing so, 126 00:06:39.400 --> 00:06:41.130 and that's why it was such a rare occasion. 127 00:06:41.130 --> 00:06:45.480 And so this is not a case where this employer 128 00:06:45.480 --> 00:06:50.480 is seeking to avoid paying extra pay 129 00:06:51.091 --> 00:06:53.190 for employees working longer periods 130 00:06:53.190 --> 00:06:56.460 of time behind the overtime statute. 131 00:06:56.460 --> 00:06:59.910 So the overtime statute in this case applies 132 00:06:59.910 --> 00:07:02.250 to only 3% of the damages. 133 00:07:02.250 --> 00:07:06.206 The relevant statute is the blue laws, 134 00:07:06.206 --> 00:07:10.140 Chapter 136, Section 6 paragraphs, 135 00:07:10.140 --> 00:07:13.890 the payment obligation with respect to Sunday pay. 136 00:07:13.890 --> 00:07:16.443 That statute is four sentences long. 137 00:07:17.504 --> 00:07:19.830 The first two sentences create the obligation 138 00:07:19.830 --> 00:07:23.250 to pay the Sunday pay. 139 00:07:23.250 --> 00:07:27.213 The third sentence says, "The attorney," this paragraph. 140 00:07:28.280 --> 00:07:30.959 The fourth sentence says that the fines 141 00:07:30.959 --> 00:07:34.050 that are available under Chapter 149, the Wage Act, 142 00:07:34.050 --> 00:07:38.880 Section 180A, are available to enforce the blue laws. 143 00:07:38.880 --> 00:07:43.880 So for 97% of this case, it is Sunday pay, 144 00:07:43.963 --> 00:07:48.660 which is governed by Chapter 136, Section 6, Paragraph 50, 145 00:07:48.660 --> 00:07:52.953 and there is no private right of action under that statute. 146 00:07:53.796 --> 00:07:56.796 So can you address the argument, I don't know who made it, 147 00:07:57.904 --> 00:08:01.440 that the Wage Act gives that private right of action 148 00:08:01.440 --> 00:08:04.983 to collect wages and so including Sunday pay? 149 00:08:06.405 --> 00:08:07.386 Yes, Your Honor. 150 00:08:07.386 --> 00:08:11.260 Chapter 149, Section 150 of the Wage Act 151 00:08:12.323 --> 00:08:14.598 creates the private right of action, 152 00:08:14.598 --> 00:08:17.296 and the first sentence reads that an employee 153 00:08:17.296 --> 00:08:21.405 who is aggrieved by a violation of 12 specific statutes 154 00:08:21.405 --> 00:08:23.874 that are listed out in Section 150- 155 00:08:23.874 --> 00:08:26.460 And I take it the 12 do not include the Sunday. 156 00:08:26.460 --> 00:08:29.053 It does not include the Sunday pay law, 157 00:08:29.053 --> 00:08:30.742 and, obviously, that was intentional. 158 00:08:30.742 --> 00:08:32.610 This court in the decision that it issued 159 00:08:32.610 --> 00:08:37.560 in Donis in 2020 said that that language is controlling 160 00:08:37.560 --> 00:08:42.360 where Section 150 has a specific list of 12 statutes, 161 00:08:42.360 --> 00:08:46.145 violations for which can create a cause of action 162 00:08:46.145 --> 00:08:46.980 under Section 150. 163 00:08:46.980 --> 00:08:49.645 We have to follow that language. 164 00:08:49.645 --> 00:08:51.760 This court in the decision said, 165 00:08:51.760 --> 00:08:54.240 "We will not override the will of the legislature 166 00:08:54.240 --> 00:08:58.077 by reading into these statutes additional protections 167 00:08:58.077 --> 00:09:01.140 for employees that their authors did not choose to provide." 168 00:09:01.140 --> 00:09:04.860 The Sunday pay law for decades has been enforced 169 00:09:04.860 --> 00:09:06.780 by the Attorney General's Office. 170 00:09:06.780 --> 00:09:10.500 Today an employee can go online, fill out a complaint form, 171 00:09:10.500 --> 00:09:13.812 claim they weren't paid their Sunday pay, 172 00:09:13.812 --> 00:09:16.680 and the attorney general pursues that claim on their behalf. 173 00:09:16.680 --> 00:09:18.630 That's the reason why we have cases 174 00:09:18.630 --> 00:09:21.273 like Driverama versus Attorney General. 175 00:09:22.149 --> 00:09:24.330 In that case, the employee went to the attorney general, 176 00:09:24.330 --> 00:09:26.640 filed their complaint for Sunday pay, 177 00:09:26.640 --> 00:09:29.913 the attorney general ordered the employer to pay the pay, 178 00:09:30.848 --> 00:09:33.876 and then the employer then filed a lawsuit, 179 00:09:33.876 --> 00:09:35.610 and that's why the two parties there 180 00:09:35.610 --> 00:09:37.650 are Driverama versus Attorney General. 181 00:09:37.650 --> 00:09:41.363 Ms. Brennan, I'm not sure how much the 97, 182 00:09:41.363 --> 00:09:46.113 3% really resonates with me and for a couple of reasons. 183 00:09:47.089 --> 00:09:50.849 One is there's a lot of money in this case, and number two, 184 00:09:50.849 --> 00:09:53.637 depending on what the retroactive analysis is, 185 00:09:53.637 --> 00:09:56.200 it might be a really a lot of money 186 00:09:59.712 --> 00:10:02.891 and 3% of a really a lot of money. 187 00:10:02.891 --> 00:10:04.500 So the public policy concerns 188 00:10:04.500 --> 00:10:08.740 about people not working too many hours 189 00:10:10.004 --> 00:10:12.454 and also other people having opportunity for jobs 190 00:10:14.445 --> 00:10:19.178 is present in this case because 3% of a lot is a lot 191 00:10:19.178 --> 00:10:20.578 and 3% of retroactive a lot. 192 00:10:21.513 --> 00:10:24.240 The relevant public policy in this case 193 00:10:24.240 --> 00:10:27.339 is the public policy behind the blue laws, 194 00:10:27.339 --> 00:10:29.490 and that's why it's important for this court to understand 195 00:10:29.490 --> 00:10:33.873 that the 97% pertains to Sunday pay under the blue laws. 196 00:10:34.744 --> 00:10:35.725 So- Can I read you 197 00:10:35.725 --> 00:10:38.520 the AG's brief, like give you a chance to respond to it? 198 00:10:38.520 --> 00:10:41.700 That ignores the fact that Section 150 explicitly 199 00:10:41.700 --> 00:10:45.060 includes violations of 148 and the list of statutes 200 00:10:45.060 --> 00:10:48.390 for which it grants employees a private right of action. 201 00:10:48.390 --> 00:10:50.136 The next sentence, key. 202 00:10:50.136 --> 00:10:51.286 "The fact that GLC 136, 203 00:10:54.330 --> 00:10:56.030 Section 6 of the blue law is not a 204 00:10:57.637 --> 00:10:59.470 'cause it explained above that statute 205 00:10:59.470 --> 00:11:00.930 only determines the rate at which employees 206 00:11:00.930 --> 00:11:02.970 who work on Sunday must be paid. 207 00:11:02.970 --> 00:11:04.590 The failure to pay that rate 208 00:11:04.590 --> 00:11:06.567 is actionable under the Wage Act." 209 00:11:07.535 --> 00:11:11.691 I disagree with those statements obviously, 210 00:11:11.691 --> 00:11:14.250 and let me explain why. Why don't you tell me why? 211 00:11:14.250 --> 00:11:16.920 Section 148 is a statute 212 00:11:16.920 --> 00:11:19.653 that requires the timely payment of wages. 213 00:11:20.490 --> 00:11:21.903 Wages is not defined. 214 00:11:23.269 --> 00:11:25.610 This court has held repeatedly that, 215 00:11:25.610 --> 00:11:29.662 just because an employee claims that wages are due 216 00:11:29.662 --> 00:11:32.847 or some amount of money is due to them from their employer, 217 00:11:32.847 --> 00:11:35.373 it's within chapter 149, Section 148. 218 00:11:36.241 --> 00:11:38.791 This court has repeatedly narrowly interpreted that 219 00:11:39.684 --> 00:11:42.510 to exclude things like money that is supposedly due 220 00:11:42.510 --> 00:11:44.170 under the Prevailing Wage statute 221 00:11:45.016 --> 00:11:50.016 or discretionary bonuses or contingent commissions. 222 00:11:50.374 --> 00:11:53.460 There are many compensation, and particularly most recently, 223 00:11:53.460 --> 00:11:56.493 in this court's decision, in the Zucchini Gold case, 224 00:11:57.516 --> 00:12:00.930 an employee sought to pursue a Wage Act claim 225 00:12:00.930 --> 00:12:05.547 where the origin of the obligation to pay the time 226 00:12:05.547 --> 00:12:07.770 and a half was the FLSA, a different statute. 227 00:12:07.770 --> 00:12:11.733 In that decision, this court said, 228 00:12:12.573 --> 00:12:14.073 "Wages is not all encompassing 229 00:12:15.273 --> 00:12:18.723 of the obligation to pay that overtime comes from the FLSA. 230 00:12:19.595 --> 00:12:22.320 The employee can't shoehorn that into a Wage Act claim." 231 00:12:22.320 --> 00:12:25.335 That same analysis applies here. 232 00:12:25.335 --> 00:12:29.040 It is only under 136, Section 6 that an employer has 233 00:12:29.040 --> 00:12:33.000 to pay Sunday pay with no obligation 234 00:12:33.000 --> 00:12:34.223 to pay premium pay. To whom? 235 00:12:35.423 --> 00:12:38.103 To whom does the employer have to pay the Sunday pay? 236 00:12:39.249 --> 00:12:40.116 The employee. Okay. 237 00:12:40.116 --> 00:12:44.658 And it is for what? It is for pay on Sunday. 238 00:12:44.658 --> 00:12:48.003 For working on Sunday? For working on Sunday, yes. 239 00:12:48.974 --> 00:12:53.974 Wage an employer must pay an employee for work done. 240 00:12:56.202 --> 00:12:57.802 In what world is that not wages? 241 00:13:00.038 --> 00:13:01.500 In the world where this court has determined 242 00:13:01.500 --> 00:13:05.430 that wages has a very specific definition. 243 00:13:05.430 --> 00:13:08.703 Have we ever or not or did not include the payment, 244 00:13:09.732 --> 00:13:12.180 (laughs) the compensation owed 245 00:13:12.180 --> 00:13:14.283 to an employee for the work done? 246 00:13:15.480 --> 00:13:19.376 Yes, so, for example, in the Zucchini Gold case, 247 00:13:19.376 --> 00:13:21.612 the FLSA creates the obligation 248 00:13:21.612 --> 00:13:23.998 to pay time and a half in that case. 249 00:13:23.998 --> 00:13:26.365 The employee sought to bring a claim under the Wage Act. 250 00:13:26.365 --> 00:13:27.198 This court said, 251 00:13:28.546 --> 00:13:31.735 "The word wages in that section is not all encompassing," 252 00:13:31.735 --> 00:13:36.450 and because the origin of the obligation to pay that time 253 00:13:36.450 --> 00:13:41.149 and a half is in the FLSA, not under Massachusetts law- 254 00:13:41.149 --> 00:13:43.429 Well, wasn't that case really about whether 255 00:13:43.429 --> 00:13:45.913 or not you trouble the damages or you get 256 00:13:45.913 --> 00:13:48.821 to double them under the FLSA since the cause 257 00:13:48.821 --> 00:13:50.371 of action arose under that one? 258 00:13:51.493 --> 00:13:53.220 No, and that- It wasn't about wages 259 00:13:53.220 --> 00:13:57.183 not being compensation for work done. 260 00:13:58.284 --> 00:14:01.678 In the Zucchini Gold case, because it was a restaurant, 261 00:14:01.678 --> 00:14:04.252 restaurants are exempted from the overtime requirement 262 00:14:04.252 --> 00:14:05.426 under state law, 263 00:14:05.426 --> 00:14:08.310 the employee had no basis under any Massachusetts law 264 00:14:08.310 --> 00:14:10.552 to pursue a claim, right? 265 00:14:10.552 --> 00:14:13.187 And so the question was only whether the federal law 266 00:14:13.187 --> 00:14:16.590 provided the remedy or if the state law could be used 267 00:14:16.590 --> 00:14:19.413 as a vehicle to override the state law, 268 00:14:20.490 --> 00:14:23.943 presenting a supremacy clause problem, right? 269 00:14:25.176 --> 00:14:26.730 You don't have that same issue here. 270 00:14:26.730 --> 00:14:29.830 Well, the same analysis has been used 271 00:14:30.838 --> 00:14:33.758 with respect to various types of compensation 272 00:14:33.758 --> 00:14:35.520 that an employee can claim an entitlement to. 273 00:14:35.520 --> 00:14:39.453 So for example, where an employee claims an entitlement 274 00:14:39.453 --> 00:14:42.111 to wages under the Prevailing Wage Act, 275 00:14:42.111 --> 00:14:44.430 the Prevailing Wage Act creates the obligation 276 00:14:44.430 --> 00:14:47.403 to pay that pay, which is the Donis case. 277 00:14:50.531 --> 00:14:52.983 Even though the central thrust of this case, 278 00:14:52.983 --> 00:14:54.750 and that's the language that's used repeatedly, 279 00:14:54.750 --> 00:14:56.700 the central thrust of the claim 280 00:14:56.700 --> 00:14:58.800 is under the Prevailing Wage Act. 281 00:14:58.800 --> 00:15:01.434 In that case, this court said, 282 00:15:01.434 --> 00:15:03.251 because the Prevailing Wage Act 283 00:15:03.251 --> 00:15:05.387 creates the obligation to pay, 284 00:15:05.387 --> 00:15:07.239 you have to look to the Prevailing Wage Act 285 00:15:07.239 --> 00:15:08.113 for your remedies. 286 00:15:08.113 --> 00:15:11.506 You can't label it something other than what it is. 287 00:15:11.506 --> 00:15:14.569 It's a claim under the Prevailing Wage Act, and, therefore, 288 00:15:14.569 --> 00:15:17.430 you can't use the Wage Act to call it something different. 289 00:15:17.430 --> 00:15:20.278 In this case, in count two, 290 00:15:20.278 --> 00:15:21.630 that's exactly what the plaintiffs did. 291 00:15:21.630 --> 00:15:25.769 The Sunday pay is only due under Chapter 136. 292 00:15:25.769 --> 00:15:27.938 That is the only place in Mass general laws 293 00:15:27.938 --> 00:15:31.350 that creates the obligation, and it also creates the remedy. 294 00:15:31.350 --> 00:15:32.707 That third sentence says, 295 00:15:32.707 --> 00:15:37.152 "The attorney general shall enforce this section," 296 00:15:37.152 --> 00:15:38.640 and the attorney general does, in fact, 297 00:15:38.640 --> 00:15:40.833 regularly enforce that section. 298 00:15:42.810 --> 00:15:45.888 If I could- Can I get you two issues? 299 00:15:45.888 --> 00:15:48.600 'Cause they're not so simple either. Let me do this. 300 00:15:48.600 --> 00:15:50.940 A shorter one, the Lodestar, 301 00:15:50.940 --> 00:15:53.140 which I think you have a better argument on, 302 00:15:54.294 --> 00:15:58.350 that there's very little analysis of why this is done time. 303 00:16:01.365 --> 00:16:02.198 That is correct, Your Honor. 304 00:16:03.224 --> 00:16:06.388 He's gonna stand up and argue the opposite. 305 00:16:06.388 --> 00:16:10.320 Why don't you address why that's wrong 306 00:16:11.483 --> 00:16:13.499 what the judge did on the Lodestar? 307 00:16:13.499 --> 00:16:14.332 Yes. 308 00:16:16.380 --> 00:16:19.332 Court's unit star method should be applied 309 00:16:19.332 --> 00:16:22.167 with respect to a fee shifting claim like this is, 310 00:16:22.167 --> 00:16:26.280 and the Lodestar method is for the judge 311 00:16:26.280 --> 00:16:30.460 to determine an appropriate number of hours 312 00:16:31.425 --> 00:16:32.760 for which attorney's fees will be paid by it, 313 00:16:32.760 --> 00:16:35.280 and every case that you look at 314 00:16:35.280 --> 00:16:37.710 under any of these employment statutes, 315 00:16:37.710 --> 00:16:41.280 the judgment or the order is for that amount of money. 316 00:16:41.280 --> 00:16:44.297 There's never a multiplier applied. 317 00:16:44.297 --> 00:16:46.417 So to the extent that we're challenging the fee award- 318 00:16:46.417 --> 00:16:48.712 So here, the judge multiplies the rate 319 00:16:48.712 --> 00:16:50.190 or the hours times four or- 320 00:16:50.190 --> 00:16:54.183 He performed the calculation to come up with $160,000. 321 00:16:55.044 --> 00:16:58.710 So he analyzed how many hours and then analyzed the rate, 322 00:16:58.710 --> 00:17:01.833 said it comes out to approximately 160,000. 323 00:17:03.092 --> 00:17:05.337 Without any explanation or support or authority, he said, 324 00:17:05.337 --> 00:17:07.224 "I'm going to multiply that by four, 325 00:17:07.224 --> 00:17:08.057 and that's gonna be the fee award." 326 00:17:08.057 --> 00:17:11.760 So these people were billing out at how much per hour? 327 00:17:11.760 --> 00:17:16.256 I think the approved amounts were 400 and 500, 328 00:17:16.256 --> 00:17:17.526 and we're not challenging the amount 329 00:17:17.526 --> 00:17:18.449 So again, of the rate. 330 00:17:18.449 --> 00:17:21.007 so they're billing out at 400 and 500 an hour, 331 00:17:21.007 --> 00:17:23.333 and how many hours did it take to bring this case? 332 00:17:24.365 --> 00:17:26.187 400 from beginning all the way to judgment. 333 00:17:26.187 --> 00:17:28.866 And the judge gives a multiplier. 334 00:17:28.866 --> 00:17:30.660 What is his explanation or her explanation 335 00:17:30.660 --> 00:17:32.610 for why it's times four? 336 00:17:32.610 --> 00:17:34.770 'Cause I can't remember what it is. 337 00:17:34.770 --> 00:17:38.850 The judge somehow looked to a bunch of factors 338 00:17:38.850 --> 00:17:42.342 that are applicable in a common fund settlement case, 339 00:17:42.342 --> 00:17:44.010 which don't apply in a fee shifting arrangement. 340 00:17:44.010 --> 00:17:46.203 Why do they do it in a common fund case? 341 00:17:47.344 --> 00:17:50.356 Why do they multiply it by four in a common fund case? 342 00:17:50.356 --> 00:17:53.501 So when we settle a class action wage in our case, 343 00:17:53.501 --> 00:17:55.746 usually counsel agrees to an amount 344 00:17:55.746 --> 00:17:57.210 that's gonna go into the common fund, 345 00:17:57.210 --> 00:18:02.070 and then we negotiate what percentage is going to go 346 00:18:02.070 --> 00:18:03.753 to plaintiff's counsel. 347 00:18:05.111 --> 00:18:07.747 In order to get that class action settlement, 348 00:18:07.747 --> 00:18:10.210 we bring the settlement before the court, 349 00:18:10.210 --> 00:18:13.743 and the trial judge analyzes because the trial judge has 350 00:18:13.743 --> 00:18:15.703 to act in the interest of the members 351 00:18:15.703 --> 00:18:17.159 of the class who are not present 352 00:18:17.159 --> 00:18:20.659 to make sure that the contingency fee that's being taken 353 00:18:20.659 --> 00:18:21.930 from that common fund is appropriate. 354 00:18:21.930 --> 00:18:23.670 That's an entirely different analysis 355 00:18:23.670 --> 00:18:26.190 than the Lodestar methodology that applies 356 00:18:26.190 --> 00:18:28.320 in a fee shifting arrangement. 357 00:18:28.320 --> 00:18:29.671 Okay, can I- And so we're not- 358 00:18:29.671 --> 00:18:30.504 You're over. 359 00:18:30.504 --> 00:18:32.065 So can I ask you about the retroactive? 360 00:18:32.065 --> 00:18:33.885 One question, chief, with your permission. 361 00:18:33.885 --> 00:18:38.885 So the regulation is not the problem. 362 00:18:41.037 --> 00:18:44.910 This policy guidance thing is ambiguous enough 363 00:18:44.910 --> 00:18:48.213 that it can support your position somewhat, 364 00:18:50.400 --> 00:18:55.400 but we normally apply statutes, you know, 365 00:18:55.740 --> 00:19:00.327 as if we don't requesting and we need an exceptional reason. 366 00:19:00.327 --> 00:19:02.839 Is that alone the exceptional reason? 367 00:19:02.839 --> 00:19:05.089 Because, you know, somebody in the department 368 00:19:06.317 --> 00:19:09.480 issued guidance that may very well be inconsistent 369 00:19:09.480 --> 00:19:12.123 with the regulations but supports your position? 370 00:19:13.793 --> 00:19:15.301 I think there are quite a few reasons 371 00:19:15.301 --> 00:19:17.340 nobody shouldn't apply in this case. 372 00:19:17.340 --> 00:19:22.340 In this case, Jordan's was the good faith employer in 2003 373 00:19:22.886 --> 00:19:25.671 that said to me, "We wanna set up our commission plan 374 00:19:25.671 --> 00:19:27.671 in a manner that complies with the law." 375 00:19:30.138 --> 00:19:32.610 I went and started communications with Lisa Price 376 00:19:32.610 --> 00:19:35.130 to figure out how to properly structure this. 377 00:19:35.130 --> 00:19:36.840 As a result of that, she suggests- 378 00:19:36.840 --> 00:19:38.100 DOS is? 379 00:19:38.100 --> 00:19:40.765 Division of Occupational Safety, 380 00:19:40.765 --> 00:19:43.805 which, at the time, was the government agency. 381 00:19:43.805 --> 00:19:48.463 So it's not the AG's Office or the Department of Labor. 382 00:19:48.463 --> 00:19:51.000 It's this division of without this policy guidance. 383 00:19:51.000 --> 00:19:52.620 I also received a letter 384 00:19:52.620 --> 00:19:55.658 from the Attorney General's Office a month later, 385 00:19:55.658 --> 00:19:58.268 which was not in the record in the Sleepy's case. 386 00:19:58.268 --> 00:19:59.850 Is that in our record? It is in the record, 387 00:19:59.850 --> 00:20:03.250 and the Attorney General's Office agreed 388 00:20:04.257 --> 00:20:07.500 with the advice that was given by those two letters. 389 00:20:07.500 --> 00:20:08.850 And when we read those letters, 390 00:20:08.850 --> 00:20:12.400 do you reference the subtraction process in that letter 391 00:20:15.630 --> 00:20:17.260 that you can recoup all of this 392 00:20:18.206 --> 00:20:20.231 by subtracting it from commissions? 393 00:20:20.231 --> 00:20:22.650 Is that in those letters that we get? 394 00:20:22.650 --> 00:20:27.220 Section 6, I specifically asked the DOS to weigh in 395 00:20:27.220 --> 00:20:30.791 on whether a draw could be applied towards commissions 396 00:20:30.791 --> 00:20:32.520 because we were trying to structure this in a way 397 00:20:32.520 --> 00:20:34.920 that was appropriate and compliant with the law. 398 00:20:35.809 --> 00:20:38.220 We followed that advice, right? We incorporated- 399 00:20:38.220 --> 00:20:43.215 And that the subtractions go forward, that- 400 00:20:43.215 --> 00:20:44.515 Yes, yes. Okay. Okay. 401 00:20:45.630 --> 00:20:49.029 We'll read the letters. Yes, and to this day, 402 00:20:49.029 --> 00:20:50.280 the Attorney General's Office continues 403 00:20:50.280 --> 00:20:52.805 to say that a draw system like that 404 00:20:52.805 --> 00:20:53.940 is perfectly lawful and appropriate. 405 00:20:53.940 --> 00:20:55.353 We cite to many cases- 406 00:20:57.720 --> 00:21:00.668 Maybe that is. We don't have the AG argument. 407 00:21:00.668 --> 00:21:01.770 But the AG's brief says the opposite. 408 00:21:01.770 --> 00:21:05.715 So how am I gonna know that that's the case? 409 00:21:05.715 --> 00:21:07.020 They're saying what you do is fine, 410 00:21:07.020 --> 00:21:09.705 even though they're arguing against you in the case. 411 00:21:09.705 --> 00:21:12.870 In 2023, just two months ago in August, 412 00:21:12.870 --> 00:21:14.033 the attorney general published, 413 00:21:15.120 --> 00:21:16.710 it's a summary of employment laws 414 00:21:16.710 --> 00:21:18.900 that the AG's Office periodically publishes 415 00:21:18.900 --> 00:21:20.910 to give guidance to employers. 416 00:21:20.910 --> 00:21:24.780 Just two months ago in the topical guidance 417 00:21:24.780 --> 00:21:27.813 that they published, these are the two statements that they- 418 00:21:30.339 --> 00:21:31.533 It's in our appendix. 419 00:21:31.533 --> 00:21:34.053 After we filed the appendix in the briefs, 420 00:21:34.053 --> 00:21:35.970 but it is attached or excerpts of it are attached 421 00:21:35.970 --> 00:21:40.056 to the Retailer Association of Mass briefs. 422 00:21:40.056 --> 00:21:43.056 But these are the two statements that, as of August of 2023, 423 00:21:46.005 --> 00:21:48.903 the AG is still making paid as a recoverable draw, 424 00:21:49.773 --> 00:21:52.200 "may reduce future commissions provided the employees 425 00:21:52.200 --> 00:21:55.140 always receive at least minimum wage 426 00:21:55.140 --> 00:21:57.750 for all hours worked and overtime compensation 427 00:21:57.750 --> 00:22:02.194 when their hours exceed 40 in a given work week." 428 00:22:02.194 --> 00:22:03.067 They also make a statement. 429 00:22:03.067 --> 00:22:06.420 "100% commissioned employees must be paid 430 00:22:06.420 --> 00:22:08.640 at least the equivalent of minimum wage 431 00:22:08.640 --> 00:22:13.640 for the first 40 hours and time in one half minimum hours 432 00:22:13.794 --> 00:22:16.147 worked over 40 in a given work week." 433 00:22:16.147 --> 00:22:16.980 Can I ask you? 434 00:22:16.980 --> 00:22:19.560 Do we have cases that say that our analysis 435 00:22:19.560 --> 00:22:22.680 or the application is prospective as a matter 436 00:22:22.680 --> 00:22:27.680 of fundamental fairness of the statutory cases? 437 00:22:29.070 --> 00:22:32.265 Yeah, so it's a three-part task follows, 438 00:22:32.265 --> 00:22:34.982 and it looks to whether there was reasonable reliance. 439 00:22:34.982 --> 00:22:37.711 That's the first factor, and Jordan's easily meets that, 440 00:22:37.711 --> 00:22:40.440 given the opinion letters that it relied upon, 441 00:22:40.440 --> 00:22:41.400 the Attorney General's advice 442 00:22:41.400 --> 00:22:43.773 as of two months ago that it relied upon. 443 00:22:44.760 --> 00:22:47.160 The second factor is whether 444 00:22:47.160 --> 00:22:49.860 would further the purpose of the new interpretation. 445 00:22:49.860 --> 00:22:52.980 Keep in mind, Sunday pay in the state is now gone. 446 00:22:52.980 --> 00:22:55.920 It was phased out as part of the Grand Bargain legislation 447 00:22:55.920 --> 00:23:00.920 that was adopted in 2018, and, as of January 1, 2023, 448 00:23:03.642 --> 00:23:06.270 make that point because employees are not going 449 00:23:06.270 --> 00:23:09.993 to lose any rights under the, 450 00:23:10.911 --> 00:23:13.338 if this court were to determine that Sleepy's 451 00:23:13.338 --> 00:23:15.751 should be applied only prospectively. 452 00:23:15.751 --> 00:23:17.520 The statute of limitations is three years. 453 00:23:17.520 --> 00:23:21.480 So right now, if an employee claimed that they failed 454 00:23:21.480 --> 00:23:23.280 to be paid Sunday pay, 455 00:23:23.280 --> 00:23:25.740 they'd be limited to going back only three years. 456 00:23:25.740 --> 00:23:29.770 So the relevant window would be October 4th, 2020 457 00:23:30.644 --> 00:23:32.790 to today, October 4th, 2023. 458 00:23:32.790 --> 00:23:36.510 So if this court were to rule that the Sleepy's decision 459 00:23:36.510 --> 00:23:41.510 back in 2019 can only apply prospectively, 460 00:23:42.990 --> 00:23:44.910 that would be potentially impacted 461 00:23:44.910 --> 00:23:49.191 is if there's a current claim pending like Jordan's. 462 00:23:49.191 --> 00:23:54.191 And so Jordan's certainly satisfies this third criteria 463 00:23:54.360 --> 00:23:59.360 which says that if an injustice would result 464 00:23:59.490 --> 00:24:01.360 from the retro statute 465 00:24:02.540 --> 00:24:03.990 or a new interpretation of the statute, 466 00:24:03.990 --> 00:24:06.889 then this court will, on occasion, 467 00:24:06.889 --> 00:24:08.940 say that it will apply only prospectively. 468 00:24:08.940 --> 00:24:10.323 So let me give an example. 469 00:24:11.825 --> 00:24:13.207 I just wanna make sure I understand that. 470 00:24:13.207 --> 00:24:17.433 So Sleepy's is issued in what year? 471 00:24:18.282 --> 00:24:20.735 2019. So Sleepy's, 472 00:24:20.735 --> 00:24:23.313 Jordan's continues to do this, right? 473 00:24:24.164 --> 00:24:25.857 Only for a very short window of time. 474 00:24:25.857 --> 00:24:28.140 So the lawsuit that was filed by this law firm 475 00:24:28.140 --> 00:24:31.320 that represented Sleepy's in that case 476 00:24:31.320 --> 00:24:34.830 was filed in June of 2019. 477 00:24:34.830 --> 00:24:38.091 Immediately, Jordan's changed its pay plan. 478 00:24:38.091 --> 00:24:40.530 Looking at the period three years before that lawsuit. 479 00:24:40.530 --> 00:24:42.265 Yes. Okay. 480 00:24:42.265 --> 00:24:45.600 So that 2016 to 2019 period. Yes. 481 00:24:47.520 --> 00:24:50.493 Post Sleepy's. Okay. Correct. 482 00:24:51.757 --> 00:24:53.011 And as a result of Sleepy's, 483 00:24:53.011 --> 00:24:55.170 I'm sure many employers revisited their commission plans 484 00:24:55.170 --> 00:24:57.240 and changed them as a result 485 00:24:57.240 --> 00:25:00.303 of what was an foreshadowed new rule, 486 00:25:01.270 --> 00:25:05.507 and within months of the Sleepy's case coming down 487 00:25:06.360 --> 00:25:09.690 and hundreds of Sleepy's cases filed 488 00:25:09.690 --> 00:25:11.493 against retailers in Massachusetts, 489 00:25:12.332 --> 00:25:13.500 almost every car dealership, 490 00:25:13.500 --> 00:25:15.420 every furniture retailer was sued. 491 00:25:15.420 --> 00:25:19.140 And every one of them has won apparently, except for, 492 00:25:19.140 --> 00:25:23.112 and Jordan's is the last fighting this, is that right? 493 00:25:23.112 --> 00:25:24.840 There are a handful of cases that have been dismissed 494 00:25:24.840 --> 00:25:26.403 for a variety of reasons. 495 00:25:27.240 --> 00:25:29.490 Are there any cases going the way you want, 496 00:25:30.359 --> 00:25:31.320 any superior court cases or anything 497 00:25:31.320 --> 00:25:34.083 out there going your way? 498 00:25:36.100 --> 00:25:37.800 I have found that most retailers 499 00:25:39.540 --> 00:25:41.193 didn't do what Jordan's did. 500 00:25:42.598 --> 00:25:45.486 Most retailers follow tracking or paying separate 501 00:25:45.486 --> 00:25:47.730 and additional overtime and Sunday pay. 502 00:25:47.730 --> 00:25:51.628 Jordan's did it differently, and Jordan's decided, 503 00:25:51.628 --> 00:25:54.391 "We're gonna pay a base rate of pay 504 00:25:54.391 --> 00:25:56.407 that's equal to the minimum wage, 505 00:25:56.407 --> 00:25:59.557 a separate and additional payment for overtime, 506 00:25:59.557 --> 00:26:00.390 and as for Sunday pay." 507 00:26:00.390 --> 00:26:02.985 That makes all the difference because, 508 00:26:02.985 --> 00:26:04.440 as soon as we made those hourly payments, 509 00:26:04.440 --> 00:26:08.820 our entire obligation to pay statutory wage was done. 510 00:26:08.820 --> 00:26:11.640 We had completed and fulfilled that obligation. 511 00:26:11.640 --> 00:26:13.891 And subtracted, but that's a whole separate story. 512 00:26:13.891 --> 00:26:15.870 Okay. Okay. Are we all set? 513 00:26:15.870 --> 00:26:17.153 Thank you. Thank you. 514 00:26:19.458 --> 00:26:20.958 Okay, now, Attorney Cassavant. 515 00:26:29.748 --> 00:26:31.170 Chief justice and associate justices, 516 00:26:31.170 --> 00:26:33.016 may it please the court. 517 00:26:33.016 --> 00:26:33.930 Good morning. My name is Brant Cassavant. 518 00:26:33.930 --> 00:26:36.638 It's been my privilege to represent the plaintiff, 519 00:26:36.638 --> 00:26:37.471 Matthew Sutton, 520 00:26:38.473 --> 00:26:41.023 and the 250-plus Jordan's Furniture sales employees 521 00:26:42.013 --> 00:26:43.852 who are class members in this action. 522 00:26:43.852 --> 00:26:44.934 Address three topics, 523 00:26:44.934 --> 00:26:47.498 all of which have been touched upon here today. 524 00:26:47.498 --> 00:26:50.612 The first is why Jordan's pay plan absolutely 525 00:26:50.612 --> 00:26:53.800 does not comply with the overtime statute or the wage laws 526 00:26:56.280 --> 00:26:59.206 as this court has interpreted them in cases like Sleepy's. 527 00:26:59.206 --> 00:27:01.741 Second, the firm that Sleepy's does apply retroactively 528 00:27:01.741 --> 00:27:04.725 to conduct a rising prior to the date of that decision, 529 00:27:04.725 --> 00:27:08.326 as most of this court's decisions do, and third, 530 00:27:08.326 --> 00:27:09.840 I would like to explain why plaintiffs have a private right 531 00:27:09.840 --> 00:27:11.160 of action under the Wage Act 532 00:27:11.160 --> 00:27:13.683 to recover unpaid Sunday premium pay. 533 00:27:15.474 --> 00:27:16.307 So fundamentally, 534 00:27:16.307 --> 00:27:18.330 did Jordan's pay plan comply with the wage laws 535 00:27:18.330 --> 00:27:21.110 as those laws were interpreted in Sleepy's? 536 00:27:21.110 --> 00:27:23.371 The Superior Court held it did not, 537 00:27:23.371 --> 00:27:25.110 and the Superior Court was 100% correct. 538 00:27:25.110 --> 00:27:26.370 In Sleepy's, this court, 539 00:27:26.370 --> 00:27:28.830 we looked at the plain language of the statutes, 540 00:27:28.830 --> 00:27:32.490 the regulations, the case law, and concluded the following. 541 00:27:32.490 --> 00:27:36.611 Draws and commissions cannot be retroactively allocated 542 00:27:36.611 --> 00:27:38.640 as hourly wages for overtime in Sunday, 543 00:27:38.640 --> 00:27:41.157 even if those draws and commissions equal 544 00:27:41.157 --> 00:27:41.990 or exceed what the employees would- 545 00:27:41.990 --> 00:27:43.449 But- Here, 546 00:27:43.449 --> 00:27:48.117 the draws were not retroactively allocated. 547 00:27:50.053 --> 00:27:52.735 It sounded like, if I understand the program, 548 00:27:52.735 --> 00:27:57.550 Jordan's paid employees for their first 40 hours 549 00:27:59.580 --> 00:28:02.073 at the minimum wage, which Sleepy's prescribes, 550 00:28:03.040 --> 00:28:05.580 and then any overtime at time and a half. 551 00:28:05.580 --> 00:28:09.060 Incorrect, Your Honor. What it would actually do is this. 552 00:28:09.060 --> 00:28:10.740 Jordan's informed its sales employees 553 00:28:10.740 --> 00:28:12.690 that they would earn their commissions, 554 00:28:13.653 --> 00:28:16.260 they explicitly use the phrase "earn your commission," 555 00:28:16.260 --> 00:28:17.700 when an item was sold 556 00:28:17.700 --> 00:28:19.850 and the customer left the store with it or. 557 00:28:21.480 --> 00:28:25.620 Jordan's would purportedly pay the commission earned 558 00:28:25.620 --> 00:28:28.560 on that sale in week one in week two. 559 00:28:28.560 --> 00:28:30.750 Now what Sleepy's would require 560 00:28:30.750 --> 00:28:33.840 is that Jordan's pay the full value of that commission 561 00:28:33.840 --> 00:28:37.623 plus any additional sums, not on a draw basis, 562 00:28:39.120 --> 00:28:42.810 for any Sunday hours or overtime hours that employee worked, 563 00:28:42.810 --> 00:28:44.740 but that's not paid. 564 00:28:44.740 --> 00:28:46.600 Where does Sleepy's say that? 565 00:28:46.600 --> 00:28:50.133 Sleepy's in Dickson. Sleepy's is harder. 566 00:28:51.104 --> 00:28:53.643 Sleepy's is different from you in one respect. 567 00:28:54.688 --> 00:28:57.208 They just paid $125 a day. 568 00:28:57.208 --> 00:29:00.219 They didn't do this division, right? 569 00:29:00.219 --> 00:29:02.883 They just paid $125 a day. 570 00:29:04.635 --> 00:29:09.635 Jordan's, right? They do divide it up, right? 571 00:29:11.724 --> 00:29:14.403 They do have an hour regular pay, 572 00:29:15.312 --> 00:29:17.253 Sunday pay, and overtime pay. 573 00:29:18.182 --> 00:29:23.182 Now they don't really give you a check for that, right? 574 00:29:24.480 --> 00:29:26.280 They put something different, 575 00:29:26.280 --> 00:29:28.592 but it is different than Sleepy's. 576 00:29:28.592 --> 00:29:31.080 It is different from Sleepy's, but I have to emphasize. 577 00:29:31.080 --> 00:29:32.799 The difference between this case 578 00:29:32.799 --> 00:29:35.765 and Sleepy's is completely immaterial. 579 00:29:35.765 --> 00:29:37.690 The fact that Sleepy's paid $125 draw 580 00:29:39.450 --> 00:29:42.446 plus any commissions earned in excess of that draw, 581 00:29:42.446 --> 00:29:43.279 which was actually how Sleepy's paid people, 582 00:29:43.279 --> 00:29:44.670 is almost exactly how Jordan's did it 583 00:29:44.670 --> 00:29:47.430 except Jordan's calculated the draw by the hour. 584 00:29:47.430 --> 00:29:49.710 So- So why doesn't that 585 00:29:49.710 --> 00:29:51.678 comply with Sleepy's? 586 00:29:51.678 --> 00:29:53.715 It doesn't comply with Sleepy's because the hourly draw 587 00:29:53.715 --> 00:29:54.840 is still coming out of the employee's commissions, 588 00:29:54.840 --> 00:29:56.133 their earned commissions. 589 00:29:58.845 --> 00:30:00.300 So they earn a commission- Did Sleepy have 590 00:30:00.300 --> 00:30:02.940 a 100% commission employee? No. 591 00:30:02.940 --> 00:30:06.328 Under Sleepy's, you can have a 100% commissioned employees 592 00:30:06.328 --> 00:30:07.161 for- You also have to pay them 593 00:30:07.161 --> 00:30:09.423 the minimum wage for the first 40 hours? 594 00:30:12.298 --> 00:30:13.837 No. Okay. No. 595 00:30:13.837 --> 00:30:16.047 Under Sleepy's, you can pay a commission, 596 00:30:16.047 --> 00:30:17.340 a percent commission basis and use those commissions 597 00:30:17.340 --> 00:30:19.890 to satisfy your minimum wage obligations. 598 00:30:19.890 --> 00:30:23.605 What you cannot do is take those earned commissions earned 599 00:30:23.605 --> 00:30:27.087 in one week and, in the next week, withdraw a portion, 600 00:30:27.087 --> 00:30:28.781 hold back a portion of those commissions, 601 00:30:28.781 --> 00:30:30.450 and we're paying you for the overtime 602 00:30:30.450 --> 00:30:31.863 and Sundays that you work. 603 00:30:33.150 --> 00:30:35.850 So the way that it would work is if an employee 604 00:30:35.850 --> 00:30:37.950 in one week was owed $1,000 in commissions 605 00:30:41.345 --> 00:30:43.788 and was owed $200 in Sunday pay, let's say, 606 00:30:43.788 --> 00:30:46.236 so in total compensation, what Sleepy's would require 607 00:30:46.236 --> 00:30:48.136 in that instance is a $1,200 paycheck, 608 00:30:49.200 --> 00:30:51.930 which could include a draw from minimum wage 609 00:30:51.930 --> 00:30:55.200 plus separate additional 200 pay for Sundays. 610 00:30:55.200 --> 00:30:56.850 'Cause I'm behind you a second. 611 00:30:58.101 --> 00:31:00.151 So I'm a Sleepy's employee. I go to work. 612 00:31:01.547 --> 00:31:03.858 I sell beds or whatever I do there, 613 00:31:03.858 --> 00:31:05.608 and I don't sell a thing that week. 614 00:31:08.338 --> 00:31:10.958 Do I get a check for that week 615 00:31:10.958 --> 00:31:11.791 or are they paid on a bi basis? 616 00:31:11.791 --> 00:31:12.720 Jordan's? Yeah. 617 00:31:12.720 --> 00:31:13.950 They were paid on a weekly basis. 618 00:31:13.950 --> 00:31:16.863 So at that week, I haven't sold a thing, 619 00:31:18.859 --> 00:31:19.920 but I worked overtime. 620 00:31:19.920 --> 00:31:24.920 Do I get a check that says that I worked this many hours 621 00:31:27.212 --> 00:31:29.633 and this much over to that, and I, okay. 622 00:31:31.098 --> 00:31:33.798 And then the next week, I still haven't sold anything. 623 00:31:35.329 --> 00:31:37.991 So I get a check for my salary, 624 00:31:37.991 --> 00:31:41.343 my regular hours in overtime. 625 00:31:42.177 --> 00:31:46.637 Now owes Jordan's all that money, right? 626 00:31:47.596 --> 00:31:49.440 Yes. And that's the difference. 627 00:31:49.440 --> 00:31:51.662 When I worked at Sleepy's, 628 00:31:51.662 --> 00:31:54.513 I got a check for $125 a day times five, 629 00:31:56.400 --> 00:32:01.230 no matter what, but I didn't owe anything, right? 630 00:32:01.230 --> 00:32:03.473 Or did I owe Sleepy's? You did owe Sleepy. 631 00:32:05.220 --> 00:32:09.098 I think the essence of this confusion comes down to this 632 00:32:09.098 --> 00:32:11.490 is where the money is coming from and whether the employees 633 00:32:11.490 --> 00:32:13.888 are actually getting more money 634 00:32:13.888 --> 00:32:16.316 for having worked more hours, 635 00:32:16.316 --> 00:32:17.910 meaning overtime hours or Sundays. 636 00:32:17.910 --> 00:32:19.350 Under any- Okay, 637 00:32:19.350 --> 00:32:21.360 but let's pin that down. 638 00:32:21.360 --> 00:32:24.179 Sleepy's, they clearly didn't, right? 639 00:32:24.179 --> 00:32:26.583 There was no doubt they didn't, 640 00:32:27.872 --> 00:32:30.273 but an employee at Jordan's who, that week, 641 00:32:31.489 --> 00:32:33.540 got a check that had more money than an employee 642 00:32:33.540 --> 00:32:36.210 who didn't work overtime, right? 643 00:32:36.210 --> 00:32:38.460 Correct, yes, but then that money would be recovered 644 00:32:38.460 --> 00:32:39.693 from future commissions. 645 00:32:41.691 --> 00:32:45.332 I think that's where it gets harder because then, 646 00:32:45.332 --> 00:32:48.774 you're getting into another part of Sleepy's which says 647 00:32:48.774 --> 00:32:51.450 that that money needs to be secure and separate, 648 00:32:51.450 --> 00:32:53.043 and it's like there is, 649 00:32:54.108 --> 00:32:57.541 Jordan's does do that for this special holiday. 650 00:32:57.541 --> 00:32:58.588 In Footnote 8, 651 00:32:58.588 --> 00:33:00.060 there's a group that gets exactly what you're talking, 652 00:33:00.060 --> 00:33:03.118 there's a type of pay that's paid for that, exactly. 653 00:33:03.118 --> 00:33:04.084 Yeah, there are certain holidays 654 00:33:04.084 --> 00:33:05.100 that Jordan's paid separate in addition 655 00:33:05.100 --> 00:33:07.149 from any draws or commissions. 656 00:33:07.149 --> 00:33:08.557 And they didn't subtract from commissions. 657 00:33:08.557 --> 00:33:09.900 And there was no subtraction from the commissions. 658 00:33:09.900 --> 00:33:12.390 This really- So they didn't subtract, 659 00:33:12.390 --> 00:33:15.922 if you got that check every month from Jordan's 660 00:33:15.922 --> 00:33:17.940 and they didn't subtract later, 661 00:33:17.940 --> 00:33:20.193 would that have satisfied Sleepy's? 662 00:33:22.185 --> 00:33:24.470 Arguably yes because it would be separate from 663 00:33:24.470 --> 00:33:26.521 and in addition to any of the draws 664 00:33:26.521 --> 00:33:27.987 or commissions that the employees owe. 665 00:33:27.987 --> 00:33:30.720 Can I ask you, and you used the phrase essence 666 00:33:30.720 --> 00:33:32.399 of the confusion 667 00:33:32.399 --> 00:33:34.583 and had a great exchange with Justice Kafker. 668 00:33:35.593 --> 00:33:38.080 Doesn't this really illustrate why this should 669 00:33:40.715 --> 00:33:43.874 because the three-part test looks to unfairness 670 00:33:43.874 --> 00:33:46.524 and foreseeability, whether something's foreshadowed, 671 00:33:47.526 --> 00:33:51.427 and we have DOS in the AG's Office giving opinions. 672 00:33:51.427 --> 00:33:55.080 We have this confusion that you were just illustrating. 673 00:33:55.080 --> 00:33:58.203 Why shouldn't it be prospective? 674 00:34:01.260 --> 00:34:03.008 To get to some of the essence of the confusion 675 00:34:03.008 --> 00:34:04.260 that I referenced, it was not the essence of confusion 676 00:34:04.260 --> 00:34:06.420 of whether Jordan should get a pass 677 00:34:06.420 --> 00:34:07.950 for having flagrantly violated the law 678 00:34:07.950 --> 00:34:09.370 for the past several years 679 00:34:10.246 --> 00:34:12.630 on what is basically a good faith affirmative defense, 680 00:34:12.630 --> 00:34:14.103 which I would like to get to. 681 00:34:15.720 --> 00:34:17.120 The essence of the confusion 682 00:34:18.114 --> 00:34:21.424 is that we're using complex industry terminology 683 00:34:21.424 --> 00:34:23.227 like commissions and draws. 684 00:34:23.227 --> 00:34:26.498 In Sleepy's, this kit held in a single sentence unanimously. 685 00:34:26.498 --> 00:34:29.210 Employees are entitled to separate and additional payments 686 00:34:29.210 --> 00:34:30.060 of one and one half times the minimum wage 687 00:34:30.060 --> 00:34:33.243 for every hour the employee worked over 40 on Sundays. 688 00:34:34.950 --> 00:34:38.940 All of Jordan's sales employees' compensation came 689 00:34:38.940 --> 00:34:43.788 in the form of a commission, which is sales earnings, 690 00:34:43.788 --> 00:34:45.790 from which Jordan's would deduct sums 691 00:34:46.650 --> 00:34:49.119 that it was paying them that it was advancing them 692 00:34:49.119 --> 00:34:51.563 for the overtime and Sunday hours they were working. 693 00:34:52.697 --> 00:34:54.657 If you have an employee at Jordan's 694 00:34:54.657 --> 00:34:57.680 who works a particular week and works a Sunday 695 00:34:57.680 --> 00:35:00.324 and makes $1,000 in sales, the next week, 696 00:35:00.324 --> 00:35:02.617 that employee is going to get $1,000. 697 00:35:02.617 --> 00:35:05.435 Jordan's would allocate that $1,000 between a draw, 698 00:35:05.435 --> 00:35:07.080 which was an advance against the commissions they earned, 699 00:35:07.080 --> 00:35:08.820 plus whatever commissions were left over 700 00:35:08.820 --> 00:35:11.043 after the deduction of that draw. 701 00:35:12.514 --> 00:35:15.670 Let's say you had another employee work the same week 702 00:35:16.516 --> 00:35:19.142 but not work Sunday and also in pay. 703 00:35:19.142 --> 00:35:21.663 That employee- But he wouldn't earn $1,000. 704 00:35:24.180 --> 00:35:25.983 His draw would be lower, right? 705 00:35:26.999 --> 00:35:28.140 His draw would be lower than the employee 706 00:35:28.140 --> 00:35:29.967 who worked overtime. Yes, 707 00:35:29.967 --> 00:35:31.787 but he would still earn $1,000. 708 00:35:31.787 --> 00:35:32.670 He would earn the exact same amount as the employee 709 00:35:32.670 --> 00:35:36.030 who did work Sunday because they both generated $1,000 710 00:35:36.030 --> 00:35:37.260 in commissions. 711 00:35:37.260 --> 00:35:40.334 Jordan's would carry those commissions forward 712 00:35:40.334 --> 00:35:42.275 and then would deduct the draw from that. 713 00:35:42.275 --> 00:35:44.610 It's just that the employee who worked the Sunday 714 00:35:44.610 --> 00:35:46.980 would have more of a draw taken 715 00:35:46.980 --> 00:35:48.480 out of the 1,000 of the excess. 716 00:35:48.480 --> 00:35:51.416 So the employee who worked overtime 717 00:35:51.416 --> 00:35:52.650 and the employee who didn't work overtime 718 00:35:52.650 --> 00:35:55.351 would get paid the exact same amount. 719 00:35:55.351 --> 00:35:57.785 Exactly because the- That's the problem. 720 00:35:57.785 --> 00:36:00.046 That's the key. That is the key to Sleepy's. 721 00:36:00.046 --> 00:36:04.962 The key to Sleepy's is that the legislature, in its wisdom, 722 00:36:04.962 --> 00:36:07.848 and as this court noted, the legislature chose the carrot, 723 00:36:07.848 --> 00:36:09.030 not the stick approach to assuring compliance 724 00:36:09.030 --> 00:36:12.483 with the wage laws, and with respect to the overtime 725 00:36:12.483 --> 00:36:14.430 and Sunday pay law, what the legislature wanted 726 00:36:14.430 --> 00:36:19.430 was for employees to receive more pay for the burden 727 00:36:19.530 --> 00:36:23.426 of a longer week or for working on believed people's times 728 00:36:23.426 --> 00:36:26.790 would be better spent with family or resting or so forth. 729 00:36:26.790 --> 00:36:29.190 A system that ensures that employees 730 00:36:29.190 --> 00:36:33.207 don't actually receive more pay for working more hours 731 00:36:35.744 --> 00:36:38.547 or on Sundays does not comply with, 732 00:36:38.547 --> 00:36:42.413 Jordan's has cleverly, cleverly implemented this system 733 00:36:42.413 --> 00:36:44.109 where the employees' earnings 734 00:36:44.109 --> 00:36:45.493 were capped at their sales earnings. 735 00:36:45.493 --> 00:36:47.850 They would only make as much money as their sales earnings, 736 00:36:47.850 --> 00:36:49.890 but Jordan's would cannibalize more 737 00:36:49.890 --> 00:36:52.300 of those sales earnings in the form of a draw 738 00:36:53.210 --> 00:36:55.140 to cover its premium statutory obligations, and that's- 739 00:36:55.140 --> 00:36:58.023 Well, they could keep working and working and working. 740 00:37:00.053 --> 00:37:01.484 They'd build up a debt 741 00:37:01.484 --> 00:37:02.340 Yeah. Exactly, yes. that's higher, right? 742 00:37:02.340 --> 00:37:04.536 So they could get a higher draw. 743 00:37:04.536 --> 00:37:06.535 They could keep raising their draw, 744 00:37:06.535 --> 00:37:08.619 but they would also raise their debt. 745 00:37:08.619 --> 00:37:09.452 Exactly, yes. 746 00:37:09.452 --> 00:37:11.760 It was basically Jordan's system required the employees 747 00:37:11.760 --> 00:37:15.344 to pay for their own hourly labor, and then, 748 00:37:15.344 --> 00:37:18.390 once they had earned sufficient draw to cover that time, 749 00:37:18.390 --> 00:37:22.011 which Jordan's would take out of their earned commissions, 750 00:37:22.011 --> 00:37:22.844 Jordan's would pay them whatever commissions 751 00:37:22.844 --> 00:37:24.948 were left over after that recovery. 752 00:37:24.948 --> 00:37:27.148 And so back to Justice Gaziano's question. 753 00:37:29.130 --> 00:37:33.251 I understand the regulations said that's a no no, 754 00:37:33.251 --> 00:37:35.160 but they're issuing this department 755 00:37:35.160 --> 00:37:38.878 that your opposing counsel is communicating with 756 00:37:38.878 --> 00:37:41.343 is issuing statements that say, 757 00:37:42.662 --> 00:37:45.984 "If you do this, you can pay it outta your commissions. 758 00:37:45.984 --> 00:37:50.110 If you pay this amount for hourly 759 00:37:51.185 --> 00:37:52.743 and you keep track of overtime, 760 00:37:53.649 --> 00:37:56.696 you can use commissions to pay for it." 761 00:37:56.696 --> 00:37:58.170 Now they may not be fully informed 762 00:37:58.170 --> 00:38:01.020 of sort of all the cleverness of this, 763 00:38:01.020 --> 00:38:04.683 but does that give them, 764 00:38:07.751 --> 00:38:08.880 I mean, you call it a good faith defense, 765 00:38:08.880 --> 00:38:13.880 but it's not clear, right, that this is a no no. 766 00:38:14.400 --> 00:38:16.140 There's a lot of things in the law that aren't clear, 767 00:38:16.140 --> 00:38:17.970 and this court consistently 768 00:38:17.970 --> 00:38:19.410 applies its statutes retroactively, 769 00:38:19.410 --> 00:38:21.134 notwithstanding that fact. 770 00:38:21.134 --> 00:38:21.967 A couple points on these letters- 771 00:38:21.967 --> 00:38:25.320 But the Pioneer brief brings up a couple of cases 772 00:38:25.320 --> 00:38:28.732 where we, even in the statutory context, right? 773 00:38:28.732 --> 00:38:30.291 Certainly, yes, but this 774 00:38:30.291 --> 00:38:33.362 is not one of those cases. Not one of those cases. 775 00:38:33.362 --> 00:38:35.070 To address these letters, one, 776 00:38:35.070 --> 00:38:36.690 I would encourage the court to look 777 00:38:36.690 --> 00:38:39.150 in the record and read the letters again, 778 00:38:39.150 --> 00:38:41.490 including Jordan's requests for these letters. 779 00:38:41.490 --> 00:38:44.550 One of those requests is not even a request 780 00:38:44.550 --> 00:38:48.481 for an endorsement of its current pay plan. 781 00:38:48.481 --> 00:38:49.470 The question in that case was whether an employee 782 00:38:49.470 --> 00:38:51.945 who worked in two different roles, 783 00:38:51.945 --> 00:38:52.778 how would you compensate them 784 00:38:52.778 --> 00:38:54.293 for working those two different roles? 785 00:38:54.293 --> 00:38:56.880 So that is completely off in left field. 786 00:38:56.880 --> 00:38:57.980 The other two letters, 787 00:38:59.495 --> 00:39:01.745 as this court looked at and read in Sleepy's, 788 00:39:02.895 --> 00:39:04.857 caused some confusion but no direct conflict 789 00:39:04.857 --> 00:39:06.360 with the statute and include numerous statements 790 00:39:06.360 --> 00:39:08.760 that a reasonable party or reasonable lawyer 791 00:39:08.760 --> 00:39:12.628 might read and say, "Hmm, this is still a little ambiguous." 792 00:39:12.628 --> 00:39:13.461 But it was easier in Sleepy's 793 00:39:13.461 --> 00:39:15.693 because there wasn't any carve out. 794 00:39:16.955 --> 00:39:18.930 Sleepy's just is $125 a day. 795 00:39:18.930 --> 00:39:23.597 They didn't have this breakdown that starts looking more 796 00:39:23.597 --> 00:39:26.097 like what that guidance letter talks about, right? 797 00:39:30.810 --> 00:39:33.090 That's a form over substance position, Your Honor. 798 00:39:33.090 --> 00:39:36.942 So in Sleepy's, the employer did do what Jordan's did, 799 00:39:36.942 --> 00:39:38.190 which was advance them $125 800 00:39:38.190 --> 00:39:40.860 and then pay them any commissions earned in excess 801 00:39:40.860 --> 00:39:43.140 of the $125 so that their compensation 802 00:39:43.140 --> 00:39:45.630 was always capped at their sales earnings. 803 00:39:45.630 --> 00:39:47.970 Their paychecks didn't separately itemize it, 804 00:39:47.970 --> 00:39:50.980 but the mere fact that Jordan's separately itemized 805 00:39:51.854 --> 00:39:55.090 what it indisputably employee's paychecks 806 00:39:56.073 --> 00:39:58.118 so that the paychecks reflected commissions earned 807 00:39:58.118 --> 00:40:01.080 in excess of the draw plus the draw payment, 808 00:40:01.080 --> 00:40:02.310 the harm is still the same. 809 00:40:02.310 --> 00:40:04.750 The employee is not getting additional pay 810 00:40:04.750 --> 00:40:06.083 for the burden of additional work. 811 00:40:07.094 --> 00:40:10.293 It looks more like what that guidance letter said, right? 812 00:40:12.570 --> 00:40:17.570 It's paying commissions that total these two components, 813 00:40:17.751 --> 00:40:19.407 and they're broken out. 814 00:40:19.407 --> 00:40:22.632 So it looks a lot more like the guidance letter 815 00:40:22.632 --> 00:40:27.580 than Sleepy's did. Certainly it does, 816 00:40:27.580 --> 00:40:28.560 but Jordan's reliance on those letters 817 00:40:28.560 --> 00:40:30.780 is of absolutely no moment. 818 00:40:30.780 --> 00:40:32.831 So I have called it a good faith. 819 00:40:32.831 --> 00:40:33.664 These executive agencies, 820 00:40:33.664 --> 00:40:35.040 it is not their job to advise employers 821 00:40:35.040 --> 00:40:37.170 on how to shape their pay plans. 822 00:40:37.170 --> 00:40:38.700 Indeed, in the attorney general letter 823 00:40:38.700 --> 00:40:40.274 that Jordan's obtained, 824 00:40:40.274 --> 00:40:42.216 the attorney general says in the very second paragraph, 825 00:40:42.216 --> 00:40:43.049 "We don't have constitutional authority 826 00:40:43.049 --> 00:40:44.754 to tell you how to do this. 827 00:40:44.754 --> 00:40:46.140 This letter is purely informational." 828 00:40:46.140 --> 00:40:48.420 This court decides what the law requires, 829 00:40:48.420 --> 00:40:51.486 not executive agencies, and, in that regard, 830 00:40:51.486 --> 00:40:53.610 Jordan's going out and soliciting these opinion letters. 831 00:40:53.610 --> 00:40:58.140 It's arguably no different than any employer hiring experts 832 00:40:58.140 --> 00:40:59.340 in a particular field and asking them 833 00:40:59.340 --> 00:41:01.090 what their opinion is of something. 834 00:41:02.256 --> 00:41:03.230 And then- Well, it's a little 835 00:41:03.230 --> 00:41:04.907 different to say actually, "Go to the," 836 00:41:06.433 --> 00:41:10.163 when talk about the deference that's owed and we don't, 837 00:41:13.082 --> 00:41:15.932 again, those guidance letters look inconsistent with the. 838 00:41:16.786 --> 00:41:19.890 So in Sleepy's, we're not quite as deferential 839 00:41:19.890 --> 00:41:23.100 to that kind of stuff as we ordinarily are. 840 00:41:23.100 --> 00:41:25.409 I would argue that these letters are not 841 00:41:25.409 --> 00:41:27.405 in conflict with the statute at all. 842 00:41:27.405 --> 00:41:31.530 In the 2003 letter, the DLS noted specifically 843 00:41:31.530 --> 00:41:36.071 that inside salespeople are subject to state overtime law, 844 00:41:36.071 --> 00:41:36.904 even though the commission they receive 845 00:41:36.904 --> 00:41:38.220 is not included in the regular hourly rate 846 00:41:38.220 --> 00:41:39.810 for overtime purposes. 847 00:41:39.810 --> 00:41:43.101 Jordan's elides that statement entirely. 848 00:41:43.101 --> 00:41:44.100 Jordan's has always taken these letters 849 00:41:44.100 --> 00:41:48.542 and engaged in hiring where the letters themselves are, 850 00:41:48.542 --> 00:41:49.551 as this court observed, 851 00:41:49.551 --> 00:41:51.863 somewhat ambiguous and are not models of clarity. 852 00:41:53.648 --> 00:41:55.922 Jordan's somehow managed to divine perfect clarity 853 00:41:55.922 --> 00:41:56.977 out of them and, from that ambiguity, said, 854 00:41:56.977 --> 00:41:58.977 "Oh, our pay plan is entirely compliant. 855 00:42:00.660 --> 00:42:02.692 We have done nothing wrong, 856 00:42:02.692 --> 00:42:03.660 and we have not withstanding the fact that the regulations 857 00:42:03.660 --> 00:42:05.997 were subsequently amended and revised," 858 00:42:06.831 --> 00:42:09.118 and decisions like Dickson and Mullally came out, 859 00:42:09.118 --> 00:42:11.518 which foreshadowed this court's decisions. 860 00:42:11.518 --> 00:42:13.603 Sleepy's, where the court held employers 861 00:42:13.603 --> 00:42:16.330 can't retroactively reallocate wages 862 00:42:16.330 --> 00:42:17.970 for one purpose to another purpose. 863 00:42:17.970 --> 00:42:21.480 Setting all that aside, it decided to enforce our plan. 864 00:42:21.480 --> 00:42:23.462 That's a good faith defense, 865 00:42:23.462 --> 00:42:25.402 and there is no good faith defense on the Wage Act. 866 00:42:25.402 --> 00:42:26.682 This is a strict liability statute. 867 00:42:26.682 --> 00:42:28.590 But even if you engage in the retroactivity analysis, 868 00:42:28.590 --> 00:42:31.320 they can't prove any of the three prongs. (laughs) 869 00:42:31.320 --> 00:42:35.400 This outcome clearly was foreseeable in the sense 870 00:42:35.400 --> 00:42:36.600 that this could any precedent, 871 00:42:36.600 --> 00:42:38.400 reverse any of its prior decisions, 872 00:42:38.400 --> 00:42:40.320 hold that the letters or the regulations 873 00:42:40.320 --> 00:42:41.970 are in conflict with the statute. 874 00:42:43.316 --> 00:42:45.750 And again, the cases in one of the amicus brief 875 00:42:45.750 --> 00:42:49.563 where we don't apply a statute retroactive, 876 00:42:50.642 --> 00:42:51.960 were they all cases where, basically, 877 00:42:51.960 --> 00:42:53.400 we reversed ourselves 878 00:42:53.400 --> 00:42:58.400 or some more clarifying a very confusing area of the law? 879 00:42:59.353 --> 00:43:02.574 Yes, the case law, the cases where the court has done this 880 00:43:02.574 --> 00:43:03.407 have involved situations where it 881 00:43:03.407 --> 00:43:07.889 has been revisiting prior precedent or maybe is dealing 882 00:43:07.889 --> 00:43:11.100 with a regulation that is directly at odds with the statute, 883 00:43:11.100 --> 00:43:12.090 which is not the case here. 884 00:43:12.090 --> 00:43:14.820 This court held that the regulation looked at the regulation 885 00:43:14.820 --> 00:43:17.310 as a way of arriving as conclusion in Sleepy's, 886 00:43:17.310 --> 00:43:18.780 but then just to the other two quick points, 887 00:43:18.780 --> 00:43:21.120 'cause I see that my time is done, 888 00:43:21.120 --> 00:43:22.893 with regards to the retroactivity, 889 00:43:23.822 --> 00:43:25.380 the other two elements in this analysis 890 00:43:25.380 --> 00:43:29.370 are whether applying the case retroactively 891 00:43:29.370 --> 00:43:33.360 will advance the purpose of the overtime statute 892 00:43:33.360 --> 00:43:34.890 and the Sunday pay law is to ensure 893 00:43:34.890 --> 00:43:36.840 that employees receive compensation 894 00:43:36.840 --> 00:43:38.730 for the burden of the work that they've done. 895 00:43:38.730 --> 00:43:40.860 These 258 Jordan's sales employees 896 00:43:40.860 --> 00:43:43.980 have worked $8.8 million worth 897 00:43:43.980 --> 00:43:48.180 of Sunday hours and overtime hours. 898 00:43:48.180 --> 00:43:50.340 Paying them that money will obviously making sure 899 00:43:50.340 --> 00:43:51.720 that they are ultimately compensated 900 00:43:51.720 --> 00:43:53.040 for the work that they do. 901 00:43:53.040 --> 00:43:55.500 Jordan's response to that is, "Well, we can't fix the past. 902 00:43:55.500 --> 00:43:58.140 I mean, we can't unhave them work these hours, 903 00:43:58.140 --> 00:43:59.980 and, by the way, you know, 904 00:43:59.980 --> 00:44:02.220 the Sunday law has been legislatively abolished," 905 00:44:02.220 --> 00:44:06.510 but that's a nonsensical position as every other court 906 00:44:06.510 --> 00:44:08.040 to address this precise issue. 907 00:44:08.040 --> 00:44:10.290 The past may be unfixable, but this court can award damages, 908 00:44:10.290 --> 00:44:13.020 and that is in furtherance of the statute's purpose, 909 00:44:13.020 --> 00:44:18.020 and then lastly, Jordan's has really stridently argued 910 00:44:20.190 --> 00:44:21.360 that it was a good faith employer, 911 00:44:21.360 --> 00:44:25.952 and it was trying its very best and that it's untrue. 912 00:44:25.952 --> 00:44:27.810 Jordan's furniture has never, in this case, 913 00:44:27.810 --> 00:44:29.700 provided a single iota of evidence 914 00:44:29.700 --> 00:44:32.190 that requiring it to pay its its employees for hours 915 00:44:32.190 --> 00:44:34.920 that they worked is an undue hardship for Jordan's, 916 00:44:34.920 --> 00:44:36.330 a multimillion dollar company owned 917 00:44:36.330 --> 00:44:39.480 by a multi-billion dollar conglomerate 918 00:44:39.480 --> 00:44:42.157 that has fought this case quite methodically 919 00:44:42.157 --> 00:44:45.000 from the beginning. Okay, the Lodestar. 920 00:44:45.000 --> 00:44:50.000 I don't get how you get four times your rate and your hours. 921 00:44:51.546 --> 00:44:53.896 Your rate seems fair, your hours seem fair, but 922 00:44:54.930 --> 00:44:56.456 So in- 923 00:44:56.456 --> 00:44:57.289 have you been very successful? 924 00:44:59.823 --> 00:45:01.830 But why do you get four times? 925 00:45:01.830 --> 00:45:04.650 There's just almost no explanation for that. 926 00:45:04.650 --> 00:45:06.270 Well, there was plenty of explanation in the briefing, 927 00:45:06.270 --> 00:45:08.220 and the judge simply said that he agreed partly 928 00:45:08.220 --> 00:45:09.510 with each side. 929 00:45:09.510 --> 00:45:10.980 We wanted a five times multiplier, 930 00:45:10.980 --> 00:45:12.510 and he did not apply a five times multiplier 931 00:45:12.510 --> 00:45:14.760 because it's an abuse of discretion standard. 932 00:45:16.350 --> 00:45:17.500 This court- Hold up. 933 00:45:20.866 --> 00:45:23.220 You do a good job, you get five times the lodestar? 934 00:45:23.220 --> 00:45:24.240 Yes, there are. 935 00:45:24.240 --> 00:45:27.213 That aren't this common fund oddity? 936 00:45:28.200 --> 00:45:30.810 I would dispute that common fund settlement analysis 937 00:45:30.810 --> 00:45:34.340 of oddity, and I'm happy to address this 938 00:45:34.340 --> 00:45:36.150 if the court will indulge me. 939 00:45:36.150 --> 00:45:40.830 Held in LaChance versus Commissioner of Commission, 940 00:45:40.830 --> 00:45:44.100 a case we set on our brief from 2016 that the way, that, 941 00:45:44.100 --> 00:45:47.460 in a judgment case where a party prevails on judgment, 942 00:45:47.460 --> 00:45:52.260 the basic measure of a fee award is the fair amount 943 00:45:52.260 --> 00:45:53.790 was reasonably spent on the case. 944 00:45:53.790 --> 00:45:55.297 Then, quoting this court, 945 00:45:55.297 --> 00:45:57.660 "The judge may then adjust the Lodestar calculation 946 00:45:57.660 --> 00:46:00.480 upward or downward in light of the results achieved." 947 00:46:00.480 --> 00:46:03.120 In the court, in that case and in several other cases 948 00:46:03.120 --> 00:46:05.880 that we set in our brief, looks at a variety of factors, 949 00:46:05.880 --> 00:46:08.130 including the contingent nature of the agreement, 950 00:46:08.130 --> 00:46:09.870 of the fee agreement, the risk involved, 951 00:46:09.870 --> 00:46:10.920 the results obtained, 952 00:46:12.913 --> 00:46:14.040 whether the impact of the case affected more 953 00:46:14.040 --> 00:46:17.160 than just one or two parties, but had broader. 954 00:46:17.160 --> 00:46:19.440 We cited all those factors, we argued all those factors, 955 00:46:19.440 --> 00:46:22.036 Jordan's argued against all those factors, 956 00:46:22.036 --> 00:46:23.820 and this judge, in the exercise of his discretion 957 00:46:23.820 --> 00:46:26.100 and who was the same judge who decided summary judgment 958 00:46:26.100 --> 00:46:28.261 and so was very familiar with the case, 959 00:46:28.261 --> 00:46:29.094 was very familiar about how much work 960 00:46:29.094 --> 00:46:30.570 and dedication went into the case, 961 00:46:30.570 --> 00:46:32.467 looked at these factors and said, 962 00:46:32.467 --> 00:46:33.990 "I'm gonna give you a four times multiplier," 963 00:46:33.990 --> 00:46:36.330 which was consistent with several other cases 964 00:46:36.330 --> 00:46:37.470 that we cited here, 965 00:46:37.470 --> 00:46:41.070 both in and out of the class settlement context. 966 00:46:41.070 --> 00:46:45.923 We cite a case in our briefing where it was a judgment, 967 00:46:47.550 --> 00:46:48.660 and the court, 968 00:46:48.660 --> 00:46:51.213 in very similar circumstances to this multiplier, 969 00:46:52.380 --> 00:46:53.670 evaluating these factors, 970 00:46:53.670 --> 00:46:55.313 and then very briefly in the settlement content- 971 00:46:55.313 --> 00:46:57.180 In that case where you got four times, 972 00:46:57.180 --> 00:46:58.530 what did the judge say 973 00:46:58.530 --> 00:47:01.230 merited the four times multiplier? 974 00:47:01.230 --> 00:47:03.570 That it was a large institutional defendant 975 00:47:03.570 --> 00:47:07.023 against an individual, 976 00:47:09.971 --> 00:47:12.090 that it had a impact to a broader group of people. 977 00:47:12.090 --> 00:47:15.330 It was a consumer style class action, 978 00:47:15.330 --> 00:47:20.330 and other outcome he reached, 979 00:47:20.610 --> 00:47:22.920 but the court in that case did apply the factors 980 00:47:22.920 --> 00:47:23.760 that I was looking at. 981 00:47:23.760 --> 00:47:27.930 And then very briefly on this common fund issue, yes, 982 00:47:27.930 --> 00:47:30.900 courts apply these similar factors in evaluating 983 00:47:30.900 --> 00:47:34.500 whether a fee award in a common fund class action settlement 984 00:47:34.500 --> 00:47:37.830 is fair and reasonable, but the par basically the same. 985 00:47:37.830 --> 00:47:40.590 The courts want to check against the amount 986 00:47:40.590 --> 00:47:42.900 of money the plaintiff's attorneys are asking for, 987 00:47:42.900 --> 00:47:43.980 whether it's fair and reasonable, 988 00:47:43.980 --> 00:47:46.530 taking into consideration the court's interest, 989 00:47:46.530 --> 00:47:47.363 in short, you know, 990 00:47:47.363 --> 00:47:50.430 encouraging settlement that attorneys who take fee skilled 991 00:47:50.430 --> 00:47:54.060 and intelligent and enable attorneys who take fees 992 00:47:54.060 --> 00:47:56.350 on a contingency basis and who wait year 993 00:47:57.750 --> 00:48:01.470 ultimately receive the fair market price for their services. 994 00:48:01.470 --> 00:48:03.780 There's a district court decision we cite in our briefing 995 00:48:03.780 --> 00:48:06.000 where the courts specifically said that it 996 00:48:06.000 --> 00:48:10.920 would be irrational in our market-based fee shifting system 997 00:48:10.920 --> 00:48:13.820 for a prevailing attorney- Can I ask one last question? 998 00:48:15.469 --> 00:48:17.370 A fee in Sleepy's as well? 999 00:48:17.370 --> 00:48:19.620 So that was on this court in a certified question, 1000 00:48:19.620 --> 00:48:22.070 but then it settled when it went back to the district court. 1001 00:48:22.070 --> 00:48:26.910 So we don't have a decision. There was no judgment there. 1002 00:48:26.910 --> 00:48:29.100 So with that, I see my time is concluded 1003 00:48:29.100 --> 00:48:30.800 unless Your Honors have any other.