Superior Court of Massachusetts, Suffolk, Business Litigation Session
Laura Bassett et al. on Behalf of Themselves and all Others Similarly Situated
Triton Technologies, Inc. et al No. 136593
MEMORANDUM AND ORDER DENYING DEFENDANTS' MOTION
TO DISMISS COUNT III
Kenneth W. Salinger, Justice of the Superior Court.
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.
Framing the Issues
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
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, 382 N.E.2d 1050
(1978); Whitehall Co. Ltd. v. Merrimack Valley
Distributing, 56 Mass.App.Ct. 853, 853-56, 780 N.E.2d
479 (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,
220-21, 967 N.E.2d 626 (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, 667 N.E.2d 292, rev. denied, 423 Mass.
1108, 671 N.E.2d 952 (1996), quoting Isaac v.
Schwartz, 706 F.2d 15, 17 (1st Cir. 1983).
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, 693 N.E.2d
153 (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, 981 N.E.2d 710 (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,
779-80, 955 N.E.2d 884 (2011).
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, 910 N.E.2d 965, rev. denied, 455 Mass.
1104, 916 N.E.2d 767 (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. 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, 114
S.Ct. 855, 127 L.Ed.2d 183 (1994); accord, e.g., National
R.R. Passenger Corp. v. National Ass'n of R.R.
Passengers, 414 U.S. 453, 455-56, 465 n.13, 94 S.Ct.
690, 38 L.Ed.2d 646 (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).
Private Right of Action
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.
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, 20 N.E.3d
229 (2014). quoting Awuah v. Coverall N. Am., Inc.,
460 Mass. 484, 492, 952 N.E.2d 890 (2011). " The purpose
of the Wage Act is 'to prevent the unreasonable detention
of wages.'" Melia v. Zenhire, Inc., 462
Mass. 164, 170, 967 N.E.2d 580 (2012), quoting Boston
Police Patrolmen's Ass'n v. City of Boston, 435
Mass. 718, 720, 761 N.E.2d 479 (2002).
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, 769-70, 829
N.E.2d 1153 (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).
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, 989 N.E.2d 517 (2013). The
Legislature amended § 150 in 1993 to " authorize[e]
a private right of action, including provisions for treble
damages and attorneys fees and costs." Lipsitt v.
Plaud, 466 Mass. 240, 246, 994 N.E.2d 777 (2013).
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
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
seek 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, 563 N.E.2d 693 (1990), rev. denied, 409 Mass. 1102, 566
N.E.2d 1131 (1991). But that is beside the point. Plaintiffs
are not seeking an injunction that would force Triton ...