Superior Court of Massachusetts, Suffolk, Business Litigation Session
Marleny PALACIO, On Behalf of Herself and All Others Similarly Situated
JOB DONE, LLC et al.
Date: June 15, 2018
MEMORANDUM AND ORDER DENYING FULFILLMENT AMERICAâS
MOTION FOR SUMMARY JUDGMENT
Kenneth W. Salinger, Justice of the Superior Court
Marleny Palacio and the other class members were employed by
Job Done, LLC to do work for Fulfillment America, Inc.
("FA") in Billerica, Massachusetts. Plaintiffs
allege that Job Done transported them to and from FAâs
facility in vans and charged them $4.00 per round trip for
that transportation. They claim that this charge exceeded
three percent of their total daily wages, and that Job Done
and its owner Jorge Rios therefore violated G.L.c. 149,
§ 159C, by assessing and collecting this charge. And
they claim that FA is jointly liable for this violation.
now moved for summary judgment in its favor. FA contends that
it cannot be held liable for any violation of § 159C by
Job Done, because "neither FA nor anyone acting directly
or indirectly in its interest" charged any fee to Job
Doneâs employees for transportation. FA argues in the
alternative that Ms. Palacioâs claims are barred by a release
she granted to FA in settling a prior action seeking unpaid
Court will DENY this motion because: (1) a reasonable jury
could find that Job Done was acting directly or indirectly in
FAâs interest when it transported workers to FAâs facility,
and that FA is therefore jointly liable for the alleged
violation of the transportation fee statute; and (2) there is
no reason to reconsider prior rulings in this case that the
release cited by FA only released claims for unpaid overtime
and did not release claims for violation of the
transportation fee statute.
Whether Job Done Was Acting in FAâs Interest
Legislature enacted and then amended G.L.c. 149, § 159C,
to limit the fees that temporary or part-time works may be
assessed by staffing agencies or the businesses for whom they
provide workers. It is undisputed that Job Done hired
temporary or part-time employees to work at FA, under the
supervision and direction of FA. It is also undisputed that
Job Done therefore is a "staffing agency" within
the meaning of § 159C, FA is a "work site
employer" for purposes of that statute, and Ms. Palacio
and the other plaintiff class members are or were all
"employees" as defined in that
statute, it is unlawful for "a staffing agency or work
site employer or a person acting directly or indirectly in
eitherâs interest" to charge a fee for transporting
employees "to or from the designated worksite" that
exceeds the actual cost of such transportation services, that
has the effect of reducing the employeeâs total daily wages
below the minimum wage earned for the day, or that exceeds
three percent of the employeeâs total daily wage. See G.L.c.
149, § 159C(c)(5) and (d).
Plaintiffs claim that Job Done charged a daily transportation
fee that exceeded three percent of their total daily wage,
and that FA is jointly and severally liable for this alleged
violation of § 159C.
argues that it cannot be held liable for the alleged
violation because it never charged any transportation fee and
Job Done was not acting in FAâs interest when it provided and
charged its employees for transportation to the FA facility.
FA implicitly concedes, however, that it would be jointly
liable for the alleged violation if Plaintiffs could
demonstrate that Job Done was "acting directly or
indirectly" in FAâs interest when it provided and
charged its employees for transportation services.
Court construes the "acting directly or indirectly"
language of § 159C to mean that where workers are
jointly employed by a staffing agency and a work site
employer, because they simultaneously did work for and were
subject to the direction and control of both, the two joint
employers will be jointly liable for any unlawful fee charged
by either of them to transport workers to or from the
designated work site. "Joint employment, where a person
under the simultaneous control of two employers
simultaneously performs services for both, is a
well-recognized phenomenon," and results in both
employers being liable under statutory requirements imposed
to protect workers. See Case of Whitman, 80
Mass.App.Ct. 348, 355 (2011) (applying Workersâ Compensation
Act), quoting Williams v. Westover Finishing Co., 24
Mass.App.Ct. 58, 60 (1987).
Legislature recognized in § 159C that joint employment
occurs when a staffing agency provides temporary or part-time
employees to provide services to a work site employer that
controls where and when the employees work and how they do
"acting directly or indirectly in eitherâs
interest" language in this statute comes directly from
the federal Fair Labor Standards Act. Compare G.L.c. 149,
§ 159C(d) (imposing liability on "a staffing agency
or work site employer or a person acting directly or
indirectly in eitherâs interest") with 29 U.S.C. §
203(d) (defining employer as "any person acting ...