DeVito, et al. v. Longwood Security Services, Inc., et al. (Lawyers Weekly No. 12-169-16)

No. 2013-01724 BLS 1
DEAN DEVITO, JASON OLIVIERA, ALEX VELAZQUEZ, individually, and on behalf
of a class
On June 17, 2015, this court (Frison, J.) certified a class of plaintiffs consisting of
security officers employed, currently or in the immediate past, by defendant, Longwood Security
Services. The principal claim of plaintiffs and the class is that Longwood failed to pay them in
full for wages earned. The claim is brought under the Wage Act, G.L. c. 149, § 148. Briefly
stated, the claim is that for each eight hour shift, thirty minutes were deemed to be a meal break.
Longwood did not include in the employees’ hours worked the thirty minutes per shift for the
unpaid meal break. Plaintiffs claim that the thirty minutes should be compensated as wages
earned because they remained on duty during the meal breaks.
The issue presented by these motions is what legal standard should be applied to
determine whether the thirty minute meal break is compensable working time. Both sides agree
that the issue is one that no Massachusetts appellate court has addressed. Longwood contends
that the test for compensation should be whether the employee’s meal break time was spent
predominantly for the benefit of the employer (the “predominant test”). Plaintiffs, on the other
hand, contend that the test for compensation should be whether the employee was relieved of all
duties (the “relief from duties test”) during the meal break. Based upon Longwood’s view that
the predominant test is applicable, it moves for summary judgment and decertification of the
The parties’ Joint Statement of Material Facts (“SMF”) does not comply with Superior
Court Rule 9A. Instead of precise statements of undisputed fact, the SMF consists of broad,
argumentative statements of position and equally argumentative responses. Of the 82 numbered
paragraphs in the SMF, the vast majority are disputed, denied or qualified by the party opposing
the statement. On that basis alone, the court could conclude that because of the disputes over
material facts summary judgment should be denied. In fact, this court in two previous rulings
denied the parties’ attempts to obtain summary judgment. Nevertheless, the parties persuasively
presented at oral argument that it would aid resolution of the case, and would be necessary in any
event for the trial of the case, for the court to determine which test for compensable time should
be applied to plaintiffs’ claims under Massachusetts law.
Longwood provides private security services at numerous locations, such as housing
developments, hospitals and colleges. Longwood employed each of the plaintiffs as security
officers. Longwood maintains a policy whereby officers may take a meal break, called a “10-7″,
for the “max amount of time” of thirty minutes. Longwood does not pay the officers for the thirty
minute meal break.1 During the meal break, officers must remain in uniform and are not allowed
to leave their assigned sector without permission. Longwood’s written policy states that “you
must keep your radio on while on break and respond when called to, even if during your break.”
As referenced above, plaintiffs’ principal claim is under the Wage Act, G.L. c. 149,
§ 148. Plaintiffs also claim that Longwood’s failure to count the thirty minute meal breaks as
compensable, working time affected whether their hours per week exceeded forty. They allege
that the meal break time should be counted and, as a result, in some weeks they failed to receive
overtime pay in violation of G. L. c. 151, § 1A. For both claims,2 the issue is whether the meal
break time should be counted as compensable, working time.
The Wage Act mandates that an employer pay its employees “the wages earned” within a
certain time period. The statute does not define “wages earned.” The Massachusetts Department
of Labor Standards, however, promulgated applicable regulations. In 2003, the regulations were
codified at 455 Code Mass. Reg. §§ 2.00 et seq. In January 2015, the regulations were re-codified
at 454 Code Mass. Regs. § 27.01 et seq. The regulations were codified “[t]o clarify practices and
policies in the administration and enforcement of the Minimum Fair Wages Act.” Id. While the
Minimum Fair Wages Act refers to c. 151 of the General Laws ( see, § 22 of c. 151), Longwood
does not dispute that the regulations apply to plaintiffs’ Wage Act claim under c. 149. See
1 According to plaintiffs, Longwood assumes that officers take a thirty minute meal break
per shift and “automatically” deducts thirty minutes from hours worked. Longwood denies the
allegation but fails to state how it accounts for the unpaid meal breaks. SMF ¶ 79. It is
undisputed that the meal breaks are unpaid.
2 Plaintiffs also assert common law claims for breach of contract and unjust enrichment.
Longwood’s Reply to Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, p.
The regulations define “Working Time” at 454 Code Mass. Regs. § 27.02:4
Includes all time during which an employee is required to be on the employer’s
premises or to be on duty, or to be at the prescribed work site or at any other
location, and any time worked before or after the end of the normal shift to
complete the work. Working time does not include meal times during which an
employee is relieved of all work-related duties. Working time includes rest
periods of short duration, usually 20 minutes or less. (Emphasis added).
In addition, 454 Code Mass. Regs. § 27.04 provides the following:5
All on-call time is compensable working time unless the employee is not required
to be at the work site or another location, and is effectively free to use his or her
time for his or her own purposes.
Plaintiffs submit that these regulations and the predecessor regulations at 455 Code Mass. Regs.
§ 2.01 (the “regulations”) constitute the governing law with respect to the test to apply for
determining whether the thirty minute meal break provided by Longwood must be paid as wages
In Taggart v. Town of Wakefield, 78 Mass. App. Ct. 421 (2010), the Appeals Court
considered the regulations as a source of authority for determining whether certain types of hours
worked should be counted for the purposes of a claim for wages earned under the Wage Act,
3 See also, G.L. c. 23, § 1, empowering the department with authority and responsibility
over the administration and enforcement of c. 149, as well as c. 151.
4 The definition of “Working Time” in 455 Code. Mass. Regs. § 2.01 is identical in all
material respects. The definition in § 2.01 does not include the last sentence of § 27.02, and
omits a phrase irrelevant to the issue of this case.
5 The definition of on-call time in 455 Code. Mass. Regs. § 2.01 is “[a]n on-call employee
who is not required to be at the work site, and who is effectively free to use his or her time for his
or her own purposes, is not working while on call.”
G.L. c. 149, § 148. “Generally, the types of activities that are considered to be hours worked and
compensable are defined through the State regulatory process. The division of occupational
safety (DOS or division) administers and interprets the Minimum Fair Wage Law, G.L. c. 151,
and the regulations promulgated pursuant to that statute.” Id. at 423, citing the regulations. The
Appeals Court then noted that “[w]e apply the same rules of construction to regulations as to
statutes, and accordingly ascribe the ordinary and common meanings to undefined terms.” Id. at
425 (citation omitted). See also, DeSaint v. Delta Air Lines, Inc., 2015 WL 1888242 at *9 (D.
Mass. (O’Toole, J.) 2015)(applying the same Massachusetts “working time” regulations to claim
under Wage Act).
The definition set forth in the regulations for “working time” is exactly what plaintiffs
contend is the applicable test to determine whether their unpaid thirty minute meal time is
compensable as wages earned. There is no ambiguity that would cause the court to go any
further.6 The thirty minute meal time is compensable unless the employee is relieved of all workrelated
duties. It will be for the finders of fact to determine the terms, rules and practices of
plaintiffs’ employment and whether plaintiffs were relieved of all work-related duties during
their meal breaks. The regulations provide the governing law. Global NAP’s, Inc. v. Awiszus, 457
Mass. 489, 496 (2010)(“a properly promulgated regulation has the force of law and must be
6 I disagree with the federal court in Raposo v. Garelick Farms, LLC, 2014 WL
2468815*8 (D. Mass. 2014) that “all work-related duties” is a term that does not have a plain
given the same deference accorded to a statute”).78
Longwood counters with arguments based entirely on federal law developed under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Longwood cites several decisions of
federal courts of appeal9 and district courts holding that the test for whether an unpaid meal break
is compensable time is the predominant test. See e.g., Babcock v. Butler County, 806 F. 3d 153,
156 (3d Cir. 2015)(adopting the predominant benefit test which asks “whether the officer is
primarily engaged in work-related duties during meal periods” quoting Armitage v. City of
Emporia, 982 F. 2d 430, 432 (10th Cir. 1992)).
A combination of two reasons, unique to federal law, appears to underlie the adoption of
the predominant test by some federal courts. First, the federal cases reference a decades-old
decision of the United States Supreme Court interpreting the FLSA, Armour & Co. v. Wantock,
323 U.S. 126, 133 (1944). In Armour, the Court affirmed a judgment in favor of employees
seeking to be paid for time when they were on-call and on premises. In doing so, the Court stated
“[w]hether time is spent predominantly for the employer’s benefit or for the employee’s is a
question dependent upon all the circumstances of the case.” Id. The second reason arises from
the nature of a federal regulation. In 1961, the United States Department of Labor issued a
regulation to interpret the FLSA standard. In 29 C.F. R. § 785.19, the DOL stated that an
7 Longwood does not challenge that the regulations were properly promulgated.
8 Plaintiffs also cite opinion letters from the Department of Labor Standards and the
Attorney General supporting the conclusion that the applicable test is “relieved from all duties.”
Such letters are entitled to substantial deference by this court. Global NAP’s Inc., 457 Mass. at
9 The United States Court of Appeals, First Circuit has apparently not rendered a decision
as to which test to apply under the FLSA or Massachusetts law.
employee “must be completely relieved from duty” to have a bona fide, unpaid meal time.
Federal courts adopting the predominant test have “eschewed a literal reading of a Department of
Labor regulation.” Babcock, 806 F. 3d at 156. That is because the federal regulations, unlike the
Massachusetts regulations under G.L. c. 149, § 148, are considered for guidance, only, and not as
controlling law. O’Hara v. Menino, 253 F. Supp. 2d 147, 153 (2003).
Longwood urges this court to adopt the predominant test. It points to Massachusetts
authority holding that, in general, G.L. c. 151, § 1A was “intended to be essentially identical to”
the FLSA. Mullally v. Waste Management of Massachusetts, Inc., 452 Mass. 526, 531 (2008).
Longwood argues that this question of how to define working time should come out the same
way as under the FLSA. But the Supreme Judicial Court’s analysis in Mullally is illustrative. The
Court, having referenced the FLSA, proceeded to look to the Massachusetts regulations (455
Code Mass. Regs. § 2.02 (3)) to determine the relevant issue (calculation of base pay) not FLSA
precedent. Id. at 534-535. Stated another way, where the plain, unambiguous language of the
Massachusetts statute and the Massachusetts regulations governs the legal standard for liability,
there is no reason to draw on FLSA interpretation. See Goodrow v. Lane Bryant, Inc., 432 Mass.
165, 169-170 (2000)(where neither the Massachusetts statute nor the corresponding regulation, or
any Massachusetts appellate decision, defines a key term, the court should apply the common
meaning of words, legislative history, and then to interpretations of analogous federal statutes,
for guidance).
Here, the definition of “Working Time” in the Massachusetts regulations is unambiguous.
No further interpretive guidance is necessary or appropriate. The governing law is the “relieved
of all work-related duties” test as defined in the regulations.
Longwood’s argument for summary judgment depends entirely on the court adopting the
predominant test. In addition, Longwood’s motion to decertify the class is based on adoption of
the predominant test. Having rejected that test, both motions are DENIED.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
December 23, 2016

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