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Casseus v. Eastern Bus Co., Inc.

Supreme Judicial Court of Massachusetts, Middlesex

February 8, 2018

IBNER CASSEUS[1] & another[2]
v.
EASTERN BUS COMPANY, INC., & another.[3]

          Heard: October 2, 2017.

         Civil action commenced in the Superior Court Department on May 30, 2014.

         Motions for summary judgment were heard by Dennis J. Curran, J.

         An 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.

          Damien M. DiGiovanni (Joseph P. McConnell also present) for the defendants.

          Ian O. Russell for the plaintiffs.

          Peter 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.

          LENK, J.

         This 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.

         The 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.

         The bus 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.

         The 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.

         Additionally, 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 statute.[4]

         1. Background.

         a. Statutory framework.

         Enacted 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.

         Both 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, §§ 10, 11A.[5]

         To 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).[6] Id.

         The 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.

         b. Factual history.

         "Because 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.

         Eastern 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."[7] See id.

         c. Prior proceedings.

         The bus 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.[8] 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.

         Eastern 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.[9] 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 [ยง 1A (11)], regardless of the particular duties ...


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