Smith-Berry, et al. v. National Amusements, Inc., et al. (Lawyers Weekly No. 12-123-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2017-0491 BLS 1 TREMAYNE SMITH-BERRY and JESSA DAPRATO, individually and as class representatives vs. NATIONAL AMUSEMENTS, INC. et al1 MEMORANDUM AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS This motion presents an issue of apparent first impression; i.e., whether a movie theater company must pay its hourly employees who work on Sunday and certain holidays one and onehalf times their regular pay. BACKGROUND Plaintiffs bring this action as a putative class action on behalf of hourly employees at Showcase Cinemas movie theaters. The named plaintiffs work as a wait staff employee and bartender, respectively. First Amended Complaint (“FAC”) ¶¶ 5, 6. Both plaintiffs provide food and beverage services to Showcase’s patrons. FAC ¶¶ 33, 35. The FAC alleges two counts (Counts I and II) of violation of Massachusetts law regarding the handling of service charges or tips. Count III of the FAC alleges violation of the Wage Act, G.L. c. 149, §§ 149, 150, for failure to pay plaintiffs for work on Sunday and holidays at the rate of one and one half times their regular hourly rate. This partial motion to dismiss concerns only Count III. 1 Cerco LLC, d/b/a Showcase Cinemas and Shari Redstone 1 The FAC asserts the following facts which, for purposes of this motion, I accept as true. Defendants, referred to collectively as “Showcase”, operate a chain of movie theaters at eleven locations in Massachusetts. The movie theaters are open for business on Sundays and holidays. Plaintiffs are employed by one or both of the corporate defendants to work in the movie theaters. Showcase regularly requires plaintiffs and other hourly employees to work on Sunday and holidays. Showcase does not pay hourly employees the premium of one and one half times their regular hourly rate (“premium pay”) for their work on Sunday and holidays. When the movie theaters are open for the business of exhibiting motion pictures, they sell food and beverages to patrons for consumption on the premises. FAC ¶ 38. The food items include fresh popped popcorn, chips, candy, ice cream novelties, confectionaries, fountain soft drinks and alcoholic beverages. Id. ANALYSIS A. Sunday Pay The resolution of the issue regarding pay for work on Sunday requires an analysis of the statutory scheme. G.L. c. 136 is commonly referred to as the Sunday closing or “Blue” laws. Zayre Corp. v. Attorney General, 372 Mass. 423, 424 (1977). “The general philosophy of the various enactments and versions of the Sunday law up to and including the present G.L. c. 136 is to begin with a general prohibition of all work, labor and amusements on Sunday and then to engraft on that general prohibition the exemptions […]

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