Tremayne Smith-Berry et al., Individually and as Class Representatives
National Amusements, Inc. et al. 
August 29, 2017
MEMORANDUM AND ORDER ON DEFENDANTS' PARTIAL
MOTION TO DISMISS
P. Leibensperger, Justice
motion presents an issue of apparent first impression, i.e.,
whether a movie theater company must pay its hourly employees
who work on Sunday and certain holidays one and one-half
times their regular pay.
bring this action as a putative class action on behalf of
hourly employees at Showcase Cinemas movie theaters. The
named plaintiffs work as a wait staff employee and bartender,
respectively. First Amended Complaint (" FAC")
¶ ¶ 5, 6. Both plaintiffs provide food and beverage
services to Showcase's patrons. FAC ¶ ¶ 33, 35.
The FAC alleges two counts (Counts I and II) of violation of
Massachusetts law regarding the handling of service charges
or tips. Count III of the FAC alleges violation of the Wage
Act, G.L.c. 149, § § 149, 150, for failure to pay
plaintiffs for work on Sunday and holidays at the rate of one
and one-half times their regular hourly rate. This partial
motion to dismiss concerns only Count III.
asserts the following facts which, for purposes of this
motion, I accept as true. Defendants, referred to
collectively as " Showcase, " operate a chain of
movie theaters at eleven locations in Massachusetts. The
movie theaters are open for business on Sundays and holidays.
Plaintiffs are employed by one or both of the corporate
defendants to work in the movie theaters. Showcase regularly
requires plaintiffs and other hourly employees to work on
Sunday and holidays. Showcase does not pay hourly employees
the premium of one and one-half times their regular hourly
rate (" premium pay") for their work on Sunday and
the movie theaters are open for the business of exhibiting
motion pictures, they sell food and beverages to patrons for
consumption on the premises. FAC ¶ 38. The food items
include fresh popped popcorn, chips, candy, ice cream
novelties, confectionaries, fountain soft drinks and
alcoholic beverages. Id.
resolution of the issue regarding pay for work on Sunday
requires an analysis of the statutory scheme. G.L.c. 136 is
commonly referred to as the Sunday closing or "
Blue" laws. Zayre Corp. v. Attorney General,
372 Mass. 423, 424, 362 N.E.2d 878 (1977). " The general
philosophy of the various enactments and versions of the
Sunday law up to and including the present G.L.c. 136 is to
begin with a general prohibition of all work, labor and
amusements on Sunday and then to engraft on that general
prohibition the exemptions which the Legislature deems
required by necessity or the general purpose of the
statute." Id. at 429. A the time of the
decision in Zayre, there were 49 exemptions in c.
136, § 6, thirteen of which concerned the performance of
retail sales. Id. at 431-32. The plaintiffs in
Zayre were large and small retailers of various
goods challenging the constitutionality of exemptions
authorizing some retail sale activity on Sunday but not all.
Their constitutional challenge failed.
Zayre, the Legislature enacted a fiftieth exemption.
By St. 1977, c. 722, clause (50) of c. 136, § 6 was
enacted into law. That clause provides an exemption from
the Sunday closing law for " a store or shop"
engaged in the " sale at retail of goods." At the
same time, the Legislature imposed the requirement that a
" store or shop which qualifies for exemption under this
clause  or under clause (25) or clause (27) and which
employs more than a total of seven persons" pay
non-executive employees " at a rate of not less than one
and one-half times the employee's regular rate."
50 exemptions to the Sunday closing law that existed upon the
passage by the Legislature of St. 1977, c. 722, there are
numerous exemptions for retail activity or the sale of goods
or services at retail. Nevertheless, the Legislature
designated only three exemptions that would trigger an
obligation to pay premium pay for work on
Sundays. Only an employee working at an
establishment that " qualifies for exemption" under
clauses (25), (27) and (50) is entitled to premium pay.
G.L.c. 136, § 6(50). For example, the exemption in
clause (28) allows the " retail sale of greeting cards
and photographic films and the processing of photographic
films" on Sunday. G.L.c. 136, § 6(28). Thus, a
retail store selling greeting cards " qualifies for
exemption" under clause (28), not (50), and is not
subject to the premium pay requirement. Likewise, a
restaurant, qualified to open on Sunday by clause (42), is
not subject to the premium pay requirement. That is because,
applying basic principles of statutory construction requiring
that (a) the words of a statute should be given their plain
meaning, and (b) subsections of a statute should be
interpreted harmoniously, it must be concluded that the
Legislature intended that a retail business authorized to
operate on Sunday by a statutory provision other
than clauses (25), (27) and (50), is not required to pay
premium pay. If the Legislature intended to require premium
pay for all retail activity allowed on Sunday, it
would have attached the premium pay requirement explicitly to
all the clauses of c. 136, § 6 allowing retail business
to operate on Sunday. Instead, the Legislature elected to
use the words " qualifies for exemption under this
clause " in clause (50) (emphasis added) to limit
the application of the premium pay requirement.
operation of movie theaters on Sunday and holidays is
authorized by a separate section of the General Laws. Under
G.L.c. 140, § 181, local authorities may grant a license
to a movie theater " for the exhibition of motion
pictures . . . seven days per week." The Sunday closing
laws in c. 136 specifically recognize that the "
exhibition of motion pictures by a movie theater" on
Sunday and holidays is governed by c. 140, § 181, and
not by c. 136. See G.L.c. 136, § 4(8A). Consistent with
that statutory structure, the operation of a movie theater is
not mentioned in any of the 55 exemptions authorized by c.
136, § 6. In short, the operation of a movie theater on
Sunday does not " qualify for exemption" under
clauses (25), (27) or (50) of c. 136.
that there is no other statutory obligation to pay Sunday
workers premium pay (the statute allowing movie theaters to
obtain a license for seven days per week does not impose a
premium pay obligation), Showcase succeeds on its argument
that its operation as a movie ...