Supreme Judicial Court of Massachusetts, Middlesex
Heard: October 2, 2017.
action commenced in the Superior Court Department on May
for summary judgment were heard by Dennis J. Curran,
application for leave to prosecute an interlocutory appeal
was allowed by Gabrielle R. Wolohojian, J., in the
Appeals Court. The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.
M. DiGiovanni (Joseph P. McConnell also present) for the
Russell for the plaintiffs.
J. Pingitore, for School Transportation Association of
Massachusetts, Inc., amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
case requires us to construe an exemption to the
Massachusetts overtime statute. The overtime statute
generally requires employers to pay an overtime premium to
employees who work more than forty hours in a given week. G.
L. c. 151, § 1A. The statute, however, "shall not
be applicable to any employee who is employed . . . by an
employer licensed and regulated pursuant to [G. L. c. 159A],
" which governs motor vehicle common carriers of
passengers in Massachusetts. See G. L. c. 151, § 1A
(11); G. L. c. 159A.
plaintiffs are bus drivers whose employer, the defendant
Eastern Bus Company, Inc. (Eastern Bus), provides two types
of transportation: charter service, for which Eastern Bus
must hold a license under the common carrier statute; and
transportation of pupils between home and school, which does
not constitute charter service. See G. L. c. 159A, §
11A. The bus drivers perform both of these services. They
claim that they are entitled to overtime payment. Their
argument is twofold.
drivers first assert that Eastern Bus is only "licensed
and regulated" under the common carrier statute during
the hours when it is providing charter service. The
exemption, then, only applies during those hours, and not
when Eastern Bus is providing school transportation. The bus
drivers further argue that this overtime exemption should be
interpreted in the same manner as two similarly structured
Federal overtime exemptions. These Federal exemptions, for
certain employees of air and rail common carriers, are not
applied to employees who spend a substantial amount of time
on work that is unrelated to the statutory provisions
referenced in the exemptions. If a similar interpretation
were adopted here, the bus drivers argue, the common carrier
overtime exemption would not apply to them, because they
spend a substantial amount of time on work that is not
governed by the common carrier statute.
plain language of the overtime statute, however, exempts any
employee whose employer is licensed and regulated
pursuant to the common carrier statute, rather than any
employee who performs a service for which a license is
required under the common carrier statute. See G. L. c. 151,
§ 1A (11) (common carrier overtime exemption).
"Courts must follow the plain language of a statute when
it is unambiguous and when its application would not lead to
an absurd result, or contravene the Legislature's clear
intent" (citation and quotations omitted).
Commonwealth v. Kelly, 470 Mass. 682, 689 (2015).
Proper construction of the exemption therefore depends on
whether Eastern Bus is "licensed and regulated pursuant
to" the common carrier statute at all times, or only
during the hours when it provides charter service. Because
the common carrier statute imposes certain continuous
obligations on charter service providers, Eastern Bus is
"licensed and regulated" at all times.
neither legislative history nor a comparison with Federal law
indicates that the common carrier overtime exemption was
modeled on the Federal overtime exemptions that the bus
drivers argue are apt analogues. Although the Massachusetts
overtime statute was generally based on the Federal overtime
requirement, there is inadequate basis upon which to conclude
that this exemption was modeled on any particular Federal
provision. Accordingly, and absent any indication that doing
so would fly in the face of legislative intent or produce an
absurd result, the statutory language must be construed as
written. We thus conclude that the bus drivers are not
entitled to overtime payment because their employer is
licensed and regulated pursuant to the common carrier
in 1960, the overtime statute was intended to be
"essentially identical" to the 1938 Federal Fair
Labor Standards Act (FLSA). See Swift v. AutoZone,
Inc., 441 Mass. 443, 447 (2004), quoting Valerio v.
Putnam Assocs. Inc., 173 F.3d 35, 40 (1st Cir. 1999).
The overtime statute "aims to reduce the number of hours
of work, encourage the employment of more persons, and
compensate employees for the burden of a long workweek."
Mullally v. Waste Mgt. of Mass., Inc., 452 Mass.
526, 531 (2008). Like the FLSA, the overtime statute requires
employers to provide a premium to covered employees who work
more than forty hours in a given week. See 29 U.S.C. §
207(a)(1); G. L. c. 151, § 1A. Employers must compensate
employees for those hours at one and one-half times their
regular hourly wage. G. L. c. 151, § 1A.
the FLSA and the Massachusetts counterpart contain certain
exemptions to the overtime requirement. See 29 U.S.C. §
213(b); G. L. c. 151, § 1A. As relevant here, the
Massachusetts overtime statute exempts "any employee who
is employed . . . by an employer licensed and regulated
pursuant to [G. L. c. 159A]." G. L. c. 151, § 1A
(11). General Laws c. 159A (common carrier statute) is
administered by the Department of Public Utilities (DPU) and
governs, among others, motor vehicle common carriers that
provide charter bus service. See G. L. c. 159A, §§
understand the parties' arguments, it is helpful to
review the common carrier statute to which the relevant
overtime exemption refers. Section 11A of the common carrier
statute sets forth DPU's authority over charter service
providers, and defines "[c]harter service" as
"the transportation of groups of persons who, pursuant
to a common purpose and under a single contract, and at a
fixed charge for the vehicle have acquired the exclusive use
of the vehicle for the duration of a particular trip or
tour." See G. L. c. 159A, § 11A. "Charter
service" does not include "the transportation of
school children to and from school pursuant to a written
contract with a municipality or a municipal board or with the
authorities of such school, " provided that certain
conditions are met (school transportation). Id.
common carrier statute requires that charter service
providers obtain a license from DPU "certifying that the
rendering of such service is consistent with the public
interest, that public convenience and necessity require it
and that the applicant is fit, willing and able properly to
perform such service." Id. DPU also may
promulgate relevant rules, orders, and regulations.
Id. See 220 Code Mass. Regs. § 155.02 (2008).
DPU may suspend or revoke a charter service provider's
license for cause. See G. L. c. 159A, § 11A.
this is an appeal from an allowance of summary judgment, we
set forth the undisputed material facts." Kiribati
Seafood Co. v. Dechert LLP, 478 Mass. 111, 112
(2017). Eastern Bus is a Massachusetts corporation that
operates school buses in the Commonwealth. The defendant
Charles Winitzer established Eastern Bus in 1997, and is the
owner and president of the company. The plaintiffs represent
a class of bus drivers employed by Eastern Bus who provide
both charter service and school transportation, and who have
not received overtime payment for hours over forty worked per
week. In 1998, DPU granted Eastern Bus a charter service
license pursuant to § 11A of the common carrier statute,
subject to "such rules and regulations as [DPU] may from
time to time prescribe, and to the right of [DPU] to suspend
or revoke the [l]icense for violations" of the common
carrier statute or regulations promulgated thereunder. The
company has held its charter service license without
interruption since it was first licensed in 1998. The license
states that Eastern Bus must "at all times maintain
standards and conduct which in the opinion of [DPU] are
satisfactory to establish proof of its continuing fitness,
willingness and ability to perform the service
authorized." Eastern Bus incontestably provides some
charter service, although the parties dispute how much of the
company's work constitutes charter service.
Bus also has contracted with a number of Massachusetts
municipalities and school authorities to transport pupils to
and from school. In addition to this daily transport of
pupils, Eastern Bus also provides transportation to and from
school extracurricular activities, pursuant to contracts with
a number of municipalities and school authorities. Eastern
Bus characterizes this work as "charter service" as
defined under the common carrier statute. See G. L. c. 159A,
§ 11A. The bus drivers contend that these
extracurricular trips constitute school transportation and
are thus outside the definition of "charter
service." See id.
drivers filed a complaint in the Superior Court, asserting a
violation of the overtime statute because Eastern Bus does
not provide overtime payment to drivers who work more than
forty hours per week. The bus drivers sought class
certification; damages and restitution for overtime payment
allegedly due; statutory trebling of all wage-related
damages; attorney's fees and costs; and any other relief
that they are due.
Bus filed a motion for judgment on the pleadings, arguing
that, under the common carrier overtime exemption, the bus
drivers are not entitled to overtime pay because their
employer is licensed and regulated pursuant to the common
carrier statute. See G. L. c. 151, § 1A (11). The bus
drivers moved for class certification. A Superior Court
judge concluded that, although Eastern Bus holds a charter
service license under the common carrier statute, the
corporation does not enjoy "a blanket exemption
for all [c]ompany employees under [§ 1A (11)],
regardless of the particular duties ...