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Palacio v. Job Done, LLC

Superior Court of Massachusetts, Suffolk, Business Litigation Session

June 14, 2018

Marleny PALACIO, On Behalf of Herself and All Others Similarly Situated
v.
JOB DONE, LLC et al.

          File Date: June 15, 2018

          MEMORANDUM AND ORDER DENYING FULFILLMENT AMERICA’S 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 FA’s 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.

         FA has 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 Done’s employees for transportation. FA argues in the alternative that Ms. Palacio’s claims are barred by a release she granted to FA in settling a prior action seeking unpaid overtime.

         The Court will DENY this motion because: (1) a reasonable jury could find that Job Done was acting directly or indirectly in FA’s interest when it transported workers to FA’s 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.

         1. Whether Job Done Was Acting in FA’s Interest

         The 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.[1]

         1.1. Legal Background

         By statute, it is unlawful for "a staffing agency or work site employer or a person acting directly or indirectly in either’s 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 employee’s total daily wages below the minimum wage earned for the day, or that exceeds three percent of the employee’s total daily wage. See G.L.c. 149, § 159C(c)(5) and (d).[2]

          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.

         FA 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 FA’s 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 FA’s interest when it provided and charged its employees for transportation services.

         The 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 Workers’ Compensation Act), quoting Williams v. Westover Finishing Co., 24 Mass.App.Ct. 58, 60 (1987).

         The 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 their jobs.

         The "acting directly or indirectly in either’s 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 either’s interest") with 29 U.S.C. § 203(d) (defining employer as "any person acting ...


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