United States District Court, D. Massachusetts
BADR BRAYAK, AHMED GHARRARI, HAMID KACI, ADIL ABDELJALIL, KHALID AKOUHAR, MOHAMED ESSAFI, and TAOUFIK BOUCHRIT, on behalf of themselves and all others similarly situated
NEW BOSTON PIE, INC., and CHARBEL RIZKALLAH
MEMORANDUM OF DECISION
ZOBEL, SENIOR UNITED STATES DISTRICT JUDGE
are former delivery drivers for a Domino's Pizza
franchise in East Boston. They bring this putative wage and
hour class action against their former employer, franchisee
New Boston Pie, Inc., and its owner-operator Charbel
Rizkallah. Before the court is plaintiffs' motion for
class certification (Docket # 19). For the following reasons,
plaintiffs' motion is ALLOWED IN PART and DENIED IN PART.
2013 and 2016, plaintiffs received an hourly wage of
$4.00-$5.00 plus tips, known as a “tipped minimum
wage.” Compl. ¶ 15, Docket #19, at 5 (Mot.
for Class Cert.). Defendants imposed on customers a delivery
charge of about $3.00, Compl. ¶ 17, of which they paid
drivers a flat amount ($1.25 as of May 2017) for gas mileage
and retained the remainder. Docket # 19-4, at 33:11-34:21
(Rizkallah Deposition). Plaintiffs regularly worked more than
40 hours per week but did not receive overtime compensation.
Compl. ¶¶ 27-29.
case is the most recent iteration of Domino's delivery
drivers' challenges to the wage practices of their
franchisee employers. See, e.g., Tigges v. AM
Pizza, Inc., Nos. 16-10136, 16-10474, 2016 WL 4076829
(D. Mass. Jul. 29, 2016); Mooney v. Domino's Pizza,
Inc., No. 14-13723, 2016 WL 5476996 (D. Mass. Sept. 1,
2016). In the instant action, plaintiffs allege three
violations of the wage laws. First, they claim that
defendants failed to pay overtime wages, in violation of the
Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201 et seq., and the Massachusetts Wage
Act, Mass. Gen. Laws ch. 149, § 148. They next contend
that defendants' practice of charging customers for
delivery without remitting that entire charge to drivers
constitutes a violation of the Massachusetts Tips Law, Mass.
Gen. Laws ch. 149, § 152A. Finally, plaintiffs allege
violations of state and federal minimum wage requirements
because defendants paid them tipped minimum wages even for
non-tipped “inside work” such as folding pizza
boxes in the store; failed to provide written notice of the
Tips Law; and unlawfully retained some of the drivers'
tips in the form of delivery charges, all in violation of
Mass. Gen. Laws ch. 149, § 152A and its implementing
regulations at 454 CMR § 27.03(2), and the FLSA.
delivery charge and inside work claims have received thorough
treatment in a recent decision of this court certifying a
nearly identical class. See Mooney, 2016 WL 5476996. I
fully adopt Judge Talwani's analysis and conclusions in
that case and ALLOW plaintiff's motion to certify the
driver class. Therefore, I examine here only the new claim
for overtime wages.
undisputed that plaintiffs, as restaurant workers, are exempt
from the state overtime law. Mass. Gen. Laws ch. 151A, §
1A(14) (defining the state overtime law and stating that
“[t]his section shall not be applicable to any employee
who is employed . . .as a restaurant worker”). They
nonetheless bring a state claim for overtime wages, but under
the state Wage Act, which provides, inter alia,
Every person having employees in his service shall pay weekly
or bi-weekly each such employee the wages earned by
him to within six days of the termination of the pay period
during which the wages were earned if employed for five or
six days in a calendar week, or to within seven days of the
termination of the pay period during which the wages were
earned if such employee is employed seven days in a calendar
week . . .
Mass. Gen. Laws ch. 149 § 148 (emphasis added).
Plaintiffs contend that defendants have violated this
provision by failing to timely remit all “wages earned,
” inclusive of payments required under federal
overtime law, 29 U.S.C. § 207.
rely for this proposition on another recent case of this
court, Carroca v. All Star Enterprises and
Collision Center, Inc., No. 12-11202, 2013 WL 3496537
(D. Mass. Jul. 10, 2013). In that case, the court allowed the
individual plaintiff's motion for summary judgment on two
counts of overtime violations. Id. at *2-3. The
plaintiff, an auto body repairman, was, like the instant
plaintiffs, exempt from state overtime protections.
See Mass. Gen. Laws ch. 151A, § 1A(15). To
vindicate his rights to federal overtime, he brought claims
under both the FLSA and the Massachusetts Wage Act.
Concluding that defendants had violated federal law, the
court further reasoned that the “garageman”
is not relevant where the plaintiffs are not
alleging a violation of the state overtime wage law,
Mass. Gen. L. c. 151 § 1A, but instead allege a
violation under Mass. Gen. L. c. 149 § 148 [the Wage
Act] governing the timing of wage payments of payments due
here under federal overtime law. Accordingly, the
Defendants are liable under Mass. Gen. L. c. 149 § 148,
where they did not pay all of ‘the wages earned by
him' within the statutory pay period.
Id. at *3 (emphasis in original). Holding that
plaintiff could recover under either the FLSA or Wage Act but
not both, the court permitted recovery pursuant to the state
statute's more generous provision of treble damages.
Id. at *4.
not persuaded that the same logic extends to the class action
context. It is well settled that federal overtime claims must
be brought as collective actions under 29 U.S.C. §
216(b) rather than as class actions under Fed.R.Civ.P. 23.
See Pike v. New Generation Donuts, LLC, No.
12-12226, 2016 WL 707361 at *1, n.1 (D. Mass. Feb. 20, 2016)
(citing Manning v. Boston Med. Ctr. Corp., 725 F.3d
34, 58 (1st Cir. 2013)). “Unlike Federal Rules of Civil
Procedure Rule 23 class actions, FLSA collective actions
require similarly situated employees to affirmatively opt-in
and be bound by any judgment.” Id. at *3
(quoting Iriarte v. Café 71, Inc., 2015 WL
8900875, at *2 (S.D.N.Y. Dec. 11, 2015). See 29
U.S.C. § 216(b) (“No employee shall be a party
plaintiff to any such action unless he gives consent in
writing to become such a party and such consent is filed in
the court in which such action is brought.”). See also
Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d
1240, 1248 (11th Cir. 2003) (discussing Congress's intent
to prevent Rule 23 class actions in adding the
“opt-in” language). And this is not the case in
which plaintiffs with independently valid state and federal
claims seek class certification of both together. See
Trezvant v. Fid. Employer Servs. Corp., 434 F.Supp.2d
40, 57-58 (D. Mass. 2006) (collecting cases granting Rule 23
class certification to state wage violations not contingent
on FLSA violations, where plaintiffs also alleged FLSA
violations). Instead, plaintiffs first cite federal ...