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DeVito v. Longwood Security Services, Inc.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

December 23, 2016

Dean DeVito et al., Individually and on Behalf of a Class
Longwood Security Services, Inc. et al No. 135847


          Edward P. Leibensperger, Justice

         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 class.


         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 Longwood's Reply to Plaintiffs' Opposition to Defendants' Motion for Summary Judgment, p. 2.[3]

         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 ...

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