125 N.E.3d 759
Mass. App. Ct.2019Background
- Plaintiffs were waste‑truck "shakers" employed by American Waste Services (AWS) under municipal contracts (Foxborough, Franklin, Medway, Wrentham) that incorporated prevailing wage/stipulation required by G. L. c.149, §27F.
- Plaintiffs worked from 2006–2011; suit filed Aug. 1, 2012; damages stipulated for certain periods; department of labor standards later produced retroactive prevailing wage determinations for years where a concurrent schedule had not been requested.
- Department rates (2009–2011) ranged ~$20–24.81/hr; defendants paid $16–17/hr. Plaintiffs claimed violations of §27F (prevailing wage), the Wage Act (G. L. c.149, §148), and breach of contract as third‑party beneficiaries.
- Trial court granted partial summary judgment on statutory liability, excluded defendants’ challenges to department determinations and most day‑rate evidence, and entered judgment on stipulated damages; defendants appealed.
- Key contested legal questions included whether a concurrent rate schedule is a prerequisite to §27F liability and whether §27F preempts a common‑law third‑party breach claim (affecting the limitations period).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of §27F to refuse‑collection contracts and "shakers" | §27F covers municipal refuse contracts and qualifies shakers as "operators" entitled to prevailing wage | §27F does not apply because disposal sites were private or workers aren’t "operators" | Applied §27F; Perlera controls — municipal refuse contracts and shakers are covered |
| Whether an awarding authority must obtain a concurrent rate schedule for §27F liability | No concurrent schedule is required; employer remains bound by contract stipulation to pay prevailing wage | Employer not liable when awarding authority failed to request/provide a contemporaneous schedule | Rejected defendants; concurrent schedule not a prerequisite; strict liability and contract stipulation control |
| Ability to challenge department wage determinations in the private action | Department determinations could be challenged as arbitrary/capricious in court | Same; defendants sought to challenge determinations | Defendants should have used administrative or certiorari review; court properly refused to entertain the late, insufficient challenge |
| Day‑rate defense / mitigation via showing fewer than 8 hours worked | Day‑rate payments (8 hrs/day) satisfied prevailing wage because defendants paid for 8 hours even if fewer worked | Employers may rely on day‑rate evidence to negate liability or reduce damages | Rejected: defendants failed to meet recordkeeping/ hourly‑calculation requirements; court properly excluded imprecise reconstructions |
| Personal liability of company officers (Carney, Galvin) | Officers not liable under §27F; plaintiffs improperly recast claim under Wage Act | Officers not personally liable because §27F lacks officer‑liability provision | Officers held liable under Wage Act §148; Wage Act claims and §27F claims are distinct and pleading was proper |
| Whether §27F preempts a breach‑of‑contract claim as third‑party beneficiaries (limitations period) | Plaintiffs may bring common‑law breach to recover six‑year damages (2006–2009) as third‑party beneficiaries | §27F preempts such contract claims because the duty/claim arises solely from the statute | §27F impliedly preempts third‑party breach claims that depend on the statutory stipulation; breach award for older period reversed |
Key Cases Cited
- Perlera v. Vining Disposal Serv., 47 Mass. App. Ct. 491 (1999) (municipal refuse contracts are public works and refuse workers are "operators" under §27F)
- Mullally v. Waste Mgmt. of Mass., 452 Mass. 526 (2008) (§27F requires prevailing wage payment to waste disposal employees under municipal contracts)
- Lighthouse Masonry, Inc. v. Division of Admin. Law Appeals, 466 Mass. 692 (2013) (prevailing wage law is strict liability)
- Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) (burden shifting where employer fails to keep proper time records)
- Lipsitt v. Plaud, 466 Mass. 240 (2013) (analyzed implied preemption of common‑law claims by statutory wage remedies)
- Cook v. Patient Edu, LLC, 465 Mass. 548 (2013) (Wage Act supports individual officer liability under civil remedies)