Smith-Berry v. National Amusements, Inc.

          Filed August 29, 2017

          MEMORANDUM AND ORDER ON DEFENDANTS' PARTIAL MOTION TO DISMISS

          Edward P. Leibensperger, Justice

         This 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.

         BACKGROUND

         Plaintiffs 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.

         The FAC 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 holidays.

         When 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.

         ANALYSIS

         A. Sunday Pay

         The 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.

         Following Zayre, the Legislature enacted a fiftieth exemption. By St. 1977, c. 722, clause (50) of c. 136, § 6 was enacted into law.^[2] 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 [50] 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."

         Of the 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.^[3] 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.^[4] 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.

         The 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.

         Given 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 ...