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Parham v. Wendy's Co.

United States District Court, D. Massachusetts

March 17, 2015

BILLY PARHAM, JR., Plaintiff, individually and on behalf of all others similarly situated,
v.
THE WENDY'S COMPANY, WENDY'S RESTAURANTS, LLC, and WENDY'S INTERNATIONAL, LLC, Defendants.

MEMORANDUM AND ORDER

ALLISON D. BURROUGHS, District Judge.

I. Introduction

In this putative class action, the plaintiff, Billy Parham, Jr. ("Mr. Parham"), a former maintenance technician for the Wendy's restaurant system, seeks to recover unpaid wages pursuant to the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, for a class of all service technicians who worked for Wendy's at any time beginning in December 2011. (Compl. (ECF No. 1), Count I.) Individually, Mr. Parham seeks unpaid wages pursuant to the Massachusetts overtime law, G.L. c. 151, § 1A (Compl., Count II), and the Massachusetts wage law, G.L. c. 149, § 148 (Compl., Count III). Mr. Parham also brings an individual claim for unlawful retaliation in violation of G.L. c. 149, § 148A (Compl., Count IV).

In their counterclaim, the defendants, The Wendy's Company, Wendy's Restaurants, LLC, and Wendy's International, LLC, on their own behalf and on behalf of Mr. Parham's former direct employer, Wendy's Old Fashioned Hamburgers of New York LLC (collectively, "Wendy's"), assert five causes of action against Mr. Parham: fraud/deceit, misrepresentation (Countercl. (ECF No. 7), Count I), breach of contract (Countercl., Count II), breach of the implied covenant of good faith and fair dealing (Countercl., Count III), unjust enrichment (Countercl., Count IV), and breach of the duty of loyalty/conflict of interest (Countercl., Count V). The counterclaims arise from an allegation that Mr. Parham recorded work hours when he was not actually performing work for Wendy's, causing Wendy's to pay him for time when he was not working.

Before the Court are both parties' partial motions to dismiss. Wendy's has moved to dismiss Count II of the complaint, which alleges a violation of the Massachusetts overtime law, G.L. c. 151, § 1A ("Section 1A"), on behalf of Mr. Parham individually. Wendy's argues that Mr. Parham is precluded from bringing this claim because he worked "in a restaurant, " one of the exemptions to overtime pay enumerated in the statute. (Defendants' Partial Motion to Dismiss (ECF No. 5).) Mr. Parham has moved to dismiss four of the five counterclaims asserted against him: fraud/deceit, misrepresentation (Counterclaim Count I), breach of the implied covenant of good faith and fair dealing (Counterclaim Count III), unjust enrichment (Counterclaim Count IV), and breach of the duty of loyalty/conflict of interest (Counterclaim Count V). (Plaintiff's Partial Motion to Dismiss (ECF No. 11).)

For the reasons discussed herein, Wendy's motion is denied, and Mr. Parham's motion is granted in part and denied in part, as detailed in Part III-C.

II. Summary of Relevant Factual Allegations

Mr. Parham alleges the following facts, which the Court accepts as true for purposes of a motion to dismiss. Mr. Parham worked for Wendy's for nearly 19 years as a maintenance technician. (Compl. ¶ 3.) He reported to a regional maintenance manager (id. ¶ 9), and maintenance technicians and their regional maintenance managers reported to the National Director of Facilities, who oversaw all of Wendy's maintenance personnel across the country (id. ¶ 10).

The principal duty of maintenance technicians is to maintain the physical plant of Wendy's restaurants. (Id. ¶ 11.) Other regular duties include taking inventory of truck stock, purchasing parts from various suppliers, attending or participating in online or in-person trainings or meetings, managing truck maintenance, responding to questions and inquiries from managers, writing self-evaluations, analyzing whether and when to replace equipment, and preparing timecards and other records. (Id. ¶ 13.)

Maintenance technicians billed their time to individual Wendy's restaurants or recorded their time to the maintenance department, depending upon the type of work involved. (Id. ¶¶ 13-14.) Due to conflicting pressures, maintenance technicians regularly recorded less time than their actual working hours, resulting in a loss of regular and overtime wages. (Id. ¶ 16.) Additionally, maintenance technicians routinely did not take meal breaks but nonetheless were required to record a 30-minute meal break each day, for which they were not paid. (Id. ¶ 19.)

After complaining repeatedly to no avail, Mr. Parham lost patience with the pressure to record less time than he worked and began billing for all of his time. (Id. ¶ 21.) Shortly thereafter, he was accused of violating Wendy's policies and was terminated. (Id. ¶ 22.) Mr. Parham alleges that the accusation was false and pretextual, used to justify his termination. (Id.)

In its counterclaim, Wendy's alleges the following facts, which the Court accepts as true at this stage. Maintenance technicians have no office. (Countercl. ¶ 5.) They perform their work in Wendy's restaurants, traveling in vans supplied by Wendy's from restaurant to restaurant. (Id.) They are expected to be available and exclusively serving Wendy's during regular business hours, Monday through Friday, and when appropriate, are also expected to respond to calls and service needs of restaurants outside of those regular business hours, including weekends. (Id.)

Wendy's implemented Global Positioning System ("GPS") tracking on maintenance technicians' personal electronic devices in order to be able to review and manage their work patterns. (Id. ¶ 8.) In approximately May -, Wendy's compared Mr. Parham's time records and work orders with his GPS records and noticed that there were "red flags" about how and where he was spending his time. (Id. ¶ 9.)

Wendy's conducted an investigation into Mr. Parham's activities and found that he was spending time in a variety of locations that did not make sense in light of his work orders, including a particular commercial property ...


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