Bassett, et al. v. Triton Technologies, Inc., et al. (Lawyers Weekly No. 12-032-17)

1684CV03475-____________________ BLS2
ALEXIS CRAMER, on behalf of themselves and all others similarly situated
Plaintiffs claim that they and other employees of Triton Technologies, Inc.,
are owed unpaid wages. Part of their claim, in Count III of the complaint, is that
Triton breached its statutory obligation, as a business that sells goods at retail,
to pay employees who work on Sunday “one and one-half times the employee’s
regular rate.” See G.L. c. 136, § 6(50). Defendants move to dismiss Count III under
Mass. R. Civ. P. 12(b)(1) and 12(b)(6). They argue that Plaintiffs lack standing to
bring this claim, and the Court therefore lacks subject matter jurisdiction to hear it,
because the Legislature did not create any private right of action to enforce the
Sunday pay statute. This framing of the issues is not quite right; the jurisdictional
question of whether a plaintiff has standing is separate and distinct from whether
they have stated a viable claim. In any case, both parts of Defendants’ argument are
without merit. The Legislature created a private right of action under the Wage Act
to enforce all of an employer’s legal obligations to pay wages earned by an employee.
That right of action encompasses claims for non-payment of extra wages earned by
working on a Sunday. And Plaintiffs have standing because they are seeking
payment of wages they say are owed but have not been paid by Triton.
1. Framing the Issues. Defendants mistakenly conflate the question of
whether there is a private right of action to recoup unpaid Sunday premium pay
with the separate issue of whether particular plaintiffs have standing to assert, and
thus a court has the power to resolve, such a claim against a particular defendant.
Whether a complaint states a cognizable cause of action goes to the ultimate
merits of the claim. If a plaintiff asserts a statutory rather than a common law
claim, as in this case, a motion to dismiss on the ground that the plaintiff has no
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valid cause of action is still an assertion that the plaintiff has not alleged facts
plausibly suggesting that the plaintiff is entitled to relief. See Swartz v.
Department of Banking and Ins., 376 Mass. 593, 600 (1978); Whitehall Co. Ltd. v.
Merrimack Valley Distributing, 56 Mass. App. Ct. 853, 853-856 (2002). Indeed, the
specific question raised by this motion to dismiss—whether an employee can bring a
private right of action under the Wage Act to enforce a duty created to employees
created by some other statute—concerns a Rule 12(b)(6) issue of whether the
plaintiff has stated a viable claim. See Massachusetts State Police Commissioned
Officers Ass’n v. Commonwealth, 462 Mass. 219, 220-221 (2012). And if a claim is
dismissed under Rule 12(b)(6) that will “operate[] as a dismissal on the merits …
with res judicata effect,” thereby barring the plaintiff from ever reasserting claim.
Mestek, Inc. v. United Pacific Ins. Co., 40 Mass. App. Ct. 729, 731, rev. denied,
423 Mass. 1108 (1996), quoting Isaac v. Schwartz, 706 F.2d 15, 17 (1st Cir. 1983).
In contrast, a challenge to standing, like all questions of subject matter
jurisdiction, “goes to the power of the court to hear and decide the matter.” Ginther
v. Commissioner of Ins., 427 Mass. 319, 322 n.6 (1998). “[A] plaintiff must establish
standing in order for a court to decide the merits of a dispute or claim.” HSBC Bank
USA, N.A. v. Matt, 464 Mass. 193, 199 (2013). A dismissal on the ground that the
plaintiff lacks standing therefore resolves only one issue, “the absence of subject
matter jurisdiction” over that particular claim; it “is not an adjudication on the
merits” and does not bar the same plaintiff from bringing other claims regarding
the same dispute. Bevilacqua v. Rodriguez, 460 Mass. 762, 779-780 (2011).
Defendant’s assertion that Plaintiffs lack standing because they have no
private right of action to enforce the Sunday premium pay statute “confuses the
merits of the plaintiffs’ claim with the standing inquiry.” See Cayuga Nation v.
Tanner, 824 F.3d 321, 332 (2d Cir. 2016). “The threshold question whether
[a plaintiff] has standing is different than the ultimate merit of [its] allegations.”
Hoffman v. Bd. of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804, 809, rev.
denied, 455 Mass. 1104 (2009). Thus, “the existence of a private right of action is an
issue ‘separate and distinct’” from the issue of standing … and ‘is not
jurisdictional.’ ” Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1293 (11th Cir.
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2010), quoting The Wilderness Society v. Kane County, Utah, 581 F.3d 1198, 1215
(10th Cir. 2009), and Northwest Airlines, Inc. v. County of Kent, Michigan, 510 U.S.
355, 365 (1994); accord, e.g., National R.R. Passenger Corp. v. National Ass’n of R.R.
Passengers, 414 U.S. 453, 455-456 & 465 n.13 (1974); Louisiana Landmarks Soc.,
Inc. v. City of New Orleans, 85 F.3d 1119, 1122 n.3 (5th Cir. 1996); Liberty Nat. Ins.
Holding Co. v. Charter Co., 734 F.2d 545, 553 n.19 (11th Cir. 1984).
2. Private Right of Action. The statutory right of action created under
the Wage Act encompasses claims that an employee who worked on a Sunday has
not been paid the higher wage required under G.L. c. 136, § 6(50). Defendants’
assertion that Plaintiffs have no private right of action to enforce the Sunday pay
law is therefore without merit.
The Massachusetts Wage Act imposes a statutory obligation upon employers
to make timely payment of all wages earned by their employees. It provides that
“[e]very person having employees in his service shall pay weekly or biweekly each
such employee the wages earned by him….” G.L. c. 149, § 148. “When an employee
‘has completed the labor, service, or performance required of him … he has “earned”
his wage.’ ” Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 125 n.6 (2014),
quoting Awuah v. Coverall N. Am., Inc., 460 Mass. 484, 492 (2011). “The purpose of
the Wage Act is ‘to prevent the unreasonable detention of wages.’ ” Melia v. Zenhire,
Inc., 462 Mass. 164, 170 (2012), quoting Boston Police Patrolmen’s Ass’n v. City of
Boston, 435 Mass. 718, 720 (2002).
The Wage Act requires prompt payment of all wages earned by an employee,
including higher wages earned under G.L. c. 136, § 6(50), for work on Sundays.
Section 148 applies to all wages earned, whether the obligation to pay the wage is
solely a function of a private contractual arrangement or arises in whole or in part
under a statute. A failure to pay one and one-half times an employee’s regular wage
when such bonus pay is required by statute is therefore a violation of the Wage Act.
See Drive-O-Rama, Inc. v. Attorney General, 63 Mass. App. Ct. 769, 769-770 (2005)
(failure to pay time and a half for work on legal holidays, as required by G.L. c. 136,
§ 13, violated the Wage Act).
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The Legislature has expressly authorized employees to sue their employer for
violating the Wage Act by not paying earned wages. Under G.L. c. 149, § 150,
“[a]n aggrieved employee has a private cause of action to recover ‘wages’ wrongfully
withheld or detained by the employer. Fraelick v. PerkettPR, Inc., 83 Mass. App.
Ct. 698, 704–05 (2013). The Legislature amended § 150 in 1993 to “authorize[e] a
private right of action, including provisions for treble damages and attorney’s fees
and costs,” Lipsitt v. Plaud, 466 Mass. 240, 246 (2013).
Since Plaintiffs have an explicit right to sue for violations of the Wage Act,
and failure to pay wages for work on Sundays as required by G.L. c. 136, § 6(50), is
a violation of the Wage Act, the private right of action created by G.L. c. 149, § 149,
allows Plaintiffs to sue for non-payment of the higher wages they claim to have
earned for working on Sundays.
It is irrelevant that Plaintiffs may not be able to enforce other aspects of the
statute that governs commercial operations on Sundays. Defendants correctly note
that Plaintiffs could not seeking an injunction barring an employer from doing
business on Sundays in violation of the so-called blue laws, because that
enforcement power is reserved by statute to the Attorney General. See Local 1445,
United Food & Commercial Workers Union v. Police Chief of Natick, 29 Mass. App.
Ct. 554 (1990), rev. denied, 409 Mass. 1102 (1991). But that is beside the point.
Plaintiffs are not seeking an injunction that would force Triton not to open on
Sundays. They are seeking payment of wages earned by working on a Sunday.
Plaintiffs may do so by asserting a cause of action under G.L. c. 149, § 150.
3. Standing. To the extent that Defendants are actually challenging
Plaintiffs’ standing, rather than merely seeking dismissal on the theory that
Plaintiffs have not stated a claim for Sunday pay upon which relief can be granted,
that part of the motion to dismiss is without merit as well.
Where a defendant asserts that the allegations of a complaint demonstrate
that the plaintiff has no standing, that motion will fail if the facts alleged in the
complaint plausibly suggest that the defendant owed a legal duty to the plaintiff,
breached that duty, and the plaintiff suffered injury as a result; breach of legal duty
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causing injury is generally all that is needed to have standing. See Sullivan v. Chief
Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15, 21-23 (2007).
The allegations of the complaint show that Plaintiffs and the putative class
members have standing to assert their Sunday wage claim. Plaintiffs have alleged
facts plausibly suggesting that Triton owed a duty to pay Plaintiffs one and one-half
times their regular hourly wage when they worked on Sunday, that Triton breached
that duty, and that Plaintiffs and the putative class members were injured as a
result. They have also alleged facts plausibly suggesting that the individual
Defendants are personally liable for Triton’s alleged breach of the Wage Act. Cf.
G.L. c. 149, § 148 (“officers or agents having the management” of corporation “shall
be deemed to be the employers of the corporation” for purposes of Wage Act); Cook
v. Patient Edu, LLC, 465 Mass. 548, 549, (2013) (under § 148, corporate officer or
manager “who ‘controls, directs, and participates to a substantial degree in
formulating and determining’ the financial policy of a business entity” is personally
liable for non-payment of wages) (quoting Wiedmann v. The Bradford Group, Inc.,
444 Mass. 698, 711 (2005). Nothing more is required to show that Plaintiffs have
standing to assert the Sunday wage claim set forth in Count III of the complaint.
Defendants’ partial motion to dismiss Count III is DENIED.
March 6, 2017
Kenneth W. Salinger
Justice of the Superior Court

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