Brayek v. New Boston Pie, Inc.
1:16-cv-12322
D. Mass.Nov 14, 2017Background
- Plaintiffs are former Domino’s delivery drivers for New Boston Pie, paid a tipped hourly rate ($4–$5) plus customer delivery charges; employer kept most of the delivery charge and paid drivers a small flat reimbursement for mileage.
- Plaintiffs regularly worked over 40 hours/week and received no overtime pay; they assert claims under the FLSA and Massachusetts Wage Act and state Tips Law/regulations for: (1) unpaid overtime, (2) unlawful retention of delivery charges (tips), and (3) improper pay of tipped wage for non-tipped inside work.
- The court adopted prior reasoning in Mooney (certifying similar classes) and limited its analysis here to the novel overtime-class question while certifying the driver class on delivery-charge and inside-work claims.
- State law exempts restaurant workers from the Massachusetts overtime statute, but the Wage Act requires timely payment of "wages earned," and plaintiffs seek to recover federally mandated overtime as wages under the Wage Act.
- Plaintiffs argue they can use Mass. Gen. Laws ch. 149 § 148 (Wage Act) and Rule 23 class procedures to collect overtime owed under the FLSA; defendants argue federal law requires FLSA overtime claims be prosecuted as opt-in collective actions under 29 U.S.C. § 216(b).
- The court certified the Driver Class for the delivery-charge and inside-work claims (Counts I–II) but denied certification of the Overtime Class (Count V); it appointed class counsel and instructed counsel to propose notice and a notice plan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Certification of Driver Class (delivery charge and inside-work claims) | Drivers assert common classwide questions on delivery-charge retention, tip-law notice violations, and improper tipped wage for inside work; suitable for Rule 23 class | Defendants did not successfully oppose class certification on these claims | Certified: Rule 23 Driver Class allowed for Counts I–II |
| Certification of Overtime Class (recovery of FLSA overtime via Wage Act) | Wage Act permits recovery of "wages earned," including federally mandated overtime; thus plaintiffs may bring a Rule 23 class under state law to collect overtime | FLSA overtime claims must proceed as opt-in collective actions under 29 U.S.C. § 216(b); plaintiffs cannot use Rule 23 to evade opt-in requirements for federally created rights | Denied: Overtime Class certification denied (Count V) |
| Use of Mass. Wage Act to collect federally mandated overtime | Wage Act's timing/payment provisions apply to wages earned and could provide state remedy for overtime owed under federal law | Allowing Rule 23 class recovery of FLSA-mandated overtime would circumvent Congress’s opt-in scheme and procedural rules for FLSA collective actions | Court rejects use of Rule 23 to collect federal overtime via Wage Act in class action context; opt-in procedures control |
| Class administration (notice, counsel, representatives) | Plaintiffs proposed class counsel and notice plan | Defendants could respond to proposed notice/plan | Court appointed class counsel, named plaintiffs as representatives, and ordered submission of proposed notice/plan with opportunity for defendant response |
Key Cases Cited
- Manning v. Boston Med. Ctr. Corp., 725 F.3d 34 (1st Cir. 2013) (discusses FLSA collective-action opt-in requirement and limits on using Rule 23 for FLSA claims)
- Cameron–Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240 (11th Cir. 2003) (explains Congress’s intent to require opt-in procedure for FLSA collective actions)
- Machado v. System 4 LLC, 989 N.E.2d 464 (Mass. 2013) (recognizes policy rationales for Wage Act class proceedings under state law)
- Trezvant v. Fid. Employer Servs. Corp., 434 F. Supp. 2d 40 (D. Mass. 2006) (distinguishes situations where Rule 23 certification for state wage claims is appropriate when not dependent on FLSA violations)