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Smith-Berry, et al. v. National Amusements, Inc., et al. (Lawyers Weekly No. 09-017-17)

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 MOTIONS FOR RECONSIDERATION Both plaintiffs and defendants ask the court to reconsider its decision dated August 29, 2017 (“Decision”), allowing, in part, and denying, in part, defendants’ motion to dismiss Count III of the First Amended Complaint. Plaintiffs re-argue their position that workers at Showcase Cinemas are entitled to be compensated at one and half times their regular pay (‘premium pay”) when they work on Sundays. After review of the argument, plaintiffs’ motion to reconsider is DENIED for the reasons stated in the Decision. Defendants, referred to collectively in the Decision and here as “Showcase”, move to reconsider that portion of the Decision that denied complete dismissal of Count III. In the Decision, I held that application of G.L. c. 136, § 13 required that Showcase pay premium pay to workers for work performed on three holidays: New Year’s Day, Columbus Day and Veteran’s Day (the “Holidays”). This somewhat odd result was directed by the decision of the Appeals Court in Drive-O-Rama, Inc. v. Attorney General, 63 Mass. App. Ct. 769 (2005) concerning 1 Cerco LLC, d/b/a Showcase Cinemas and Shari Redstone 1 retail establishments. Showcase now argues that its operation on the Holidays is governed by a different section of the General Laws that does not require premium pay. For the reasons stated below, I agree. Section 13 of c. 136 applies to a retail establishment that operates on the Holidays “under the exemption granted by this section.” Showcase now points out that movie theaters operate on the Holidays pursuant to another section of c. 136; i.e., § 14. Section 14 was enacted by the Legislature on the same day as § 13, and states that “[n]otwithstanding any provision of this chapter to the contrary” the activities of “sport, fair, exposition, play, entertainment or public diversion” may be conducted on any legal holiday. “[A]ny labor, business or work necessary or incidental thereto may be performed on any legal holiday . . . .” Section 14, unlike § 13, does not require premium pay for employees working on any legal holiday. As referenced in the Decision, a movie theater may be viewed as a retail establishment. At the same time, the operation of a movie theater is also a business providing “entertainment or public diversion” as described in § 14. That conclusion is consistent with the plain meaning of the words in § 14. Moreover, the conclusion is bolstered by the Legislature’s specific reference to “exhibition of motion pictures by a movie theater” in Clause 8A of […]

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 […]