We transferred this case from the Appeals Court on our own motion to consider whether undifferentiated
Facts and procedure. We present the essential facts found by the judge after a jury-waived trial.
In 1983, the city appointed the plaintiff as a director of a city-owned nursing home, where the plaintiff worked until March, 2007. Although a city ordinance provided for successive two-year terms оf appointment, the city did not formally reappoint the plaintiff to his position after 1996. He continued working in a “holdover capacity,” apparently under a provision in a city ordinance providing that appointed officials hold office “until a successor shall be chosen and qualified.” As a city employee, the plaintiff was entitled to a certain number of vacation days each year, based on years of service.
In December, 2006, the plaintiff was notified that his position at the nursing home was going to be discussed at a meeting of the city’s board of health, the appointing authority for the plaintiff’s position. The plaintiff and his counsel attended. Although the board unanimously approved a motion not to reappoint the plaintiff, at the request of his counsel, it agreed to negotiate with the plaintiff over retirement and severance issues. No settlement agreement was in place before the plаintiff was informed that a successor, who was to begin March 20, 2007, had been appointed. In a letter dated March 21,2007, the plaintiff was instructed that he was relieved of all responsibilities and should turn in his keys, leave the facility immediately, and
At the time of his departure, the plaintiff had accrued fifty days of unused vacation time, amounting to $13,615.54. The plaintiff was not paid for these vacation days on the day of his termination. Although the city asserted that it terminated the plaintiff for cause,
The plaintiff filed an action in the Superior Court alleging, insofar as relevant here, that the city violated the Wage Act when it failed to pay him for his accmed vacation days on March 20, 2007, the day he was terminated.
In his written findings of fact, conclusions of law, and order of judgmеnt, the judge found, and the parties do not dispute, that the parties’ employment agreement included the benefit of vacation time. The judge noted that the plaintiff was terminated prior to our decision in Electronic Data Sys. Corp. v. Attorney Gen.,
The plaintiff moved to reconsider. In his memorandum and order on the plaintiff’s motion, the judge stated, among other things, that the plaintiff’s salary continuation “more than mitigated [his] damages for unpaid vacation”; that the “any damages incurred” clause in G. L. c. 149, § 150, did not allow the plaintiff to be awarded damages in these circumstances; and that the plaintiff was not entitled to attorney’s fees.
Discussion. 1. Statutory framework. We begin by setting forth the relevant statutes. General Laws c. 149, § 148, provides, in relevant part,
“[A]ny employee discharged from . . . employment shall be paid in full on the day of his discharge .... The word “wages” shall include any holiday or vacation payments due an employee under an oral or written agreement .... No person shall by a special contract with an employee or by any other means exempt himself from this section.” (Emphases added.)
The version of G. L. c. 149, § 150, applicable to this case
“An employee claiming to be aggrieved by a violation of section 148 . . . may . . . institute and prosecute in his own name ... a civil action for injunctive relief and any damages incurred, including treble damages for any loss*450 of wages and other benefits. An employee so aggrieved and who prevails in such an action shall be entitled to an award of the costs of litigation and reasonable attorney fees.” (Emphasis added).
We interpreted the language of the Wage Act in Electronic Data Sys. Corp. (No. 2), supra. In that case, we concluded that the Wage Act plainly states that wages “shall include any holiday or vacation payments due an employee under an oral or written agreement,” id. at 67, and that employers must pay unused, earned vacation time to employees who have been involuntarily discharged. Id. at 71. See Electronic Data Sys. Corp. v. Attorney Gen.,
In reaching our conclusion in Electronic Data Sys. Corp. (No. 2), supra at 71, we deferred to the guidance of the Attorney General, who has exclusive authority to enforce this statute.
2. Weekly payments as substitute for vacation pay. The city’s
The city’s payment of salary and benefits after the plaintiff’s termination, however, does not provide a substitute for payment for accrued vacation time. Thе city did not characterize the continued salary payments as payment for vacation accrual, and the city did not communicate in any way that the salary continuation was payment for accrued vacation time. In fact, the plaintiff’s final pay stub from the city reflects a balance of fifty hours of vacation accrual, a balance which was “still tallied” and “carried on” by the city’s payroll system through the pay period ending on June 29, 2007. The vacation balance on the pay stubs was not decreased when the city paid the salary continuation. Rather, the city continued to make salary paymеnts in “an attempt to settle [the plaintiff’s] claims.”
Moreover, the Wage Act requires employers to pay discharged employees earned wages “on the day of [their] discharge.” G. L. c. 149, § 148. Here, the city paid the plaintiff on a continuing basis after his last day in the city’s employ. The plaintiff’s receipt of salary and benefits after his termination does not diminish the fact that the plaintiff was not paid for his accrued vacation time on the day of his discharge. No provision of the statute allows an employer, after terminating an employee with or without cause, to claim that later payments, in the form of salary and other benefits, compensate for earned and unused vacation time. G. L. c. 149, § 148. See Electronic Data Sys. Corp. (No. 2), supra at 70-71 (legislative history of Wage Act does not show intent to “allow employers free rein to deny or condition earned ‘vacation payments’ in any way they choose”).
We conclude that the failure to pay unpaid wages, as defined by G. L. c. 149, § 148, cannot be mitigated by gratuitous, after-the-fact payments, and that employees who have not received payment for unused vacation time to which they are entitled may seek relief pursuant to G. L. c. 149, § 150. See Electronic Data Sys. Corp. (No. 2), supra at 71.
3. Failure of proof of damages. The city asserts that the judge properly concluded that G. L. c. 149, § 150, requires a plaintiff to show he suffered actual damages. The city relies on several cases that do not have precedential value to support its argument that damages inсurred can be mitigated by payments made after an employee’s termination and that the plaintiff must affirmatively show actual damages to succeed in a Wage Act claim. These cases are distinguishable on their facts.
Contrary to the city’s assertion, a violation of the Wage Act results in damages. It is settled law that the Wage Act “impose[s] strict liability on employers.” Somers v. Converged Access, Inc.,
4. Litigation costs, attorney’s fees, and treble damages.
The Wage Act provides that an employee aggrieved by a violation of G. L. c. 149, § 148, who prevails in a civil action for any damages incurred is entitled to an award of the costs of the litigation and reasonable attorney’s fees. G. L. c. 149, § 150. See Electronic Data Sys. Corp. (No. 1), supra at 1021 (“Wherе [the plaintiff is] owed vacation time under the employment agreement, payment for that unused vacation time is a form of ‘wages’ that must be paid pursuant to § 148”). Because it did not pay the plaintiff his wages in contravention of the Wage Act, the city must pay the plaintiff litigation costs and reasonable attornеy’s fees.
The Wage Act, as it existed when this action commenced, gave the judge discretion to award treble damages. See Goodrow v. Lane Bryant, Inc.,
Conclusion. For the reasons set forth above, we reverse judgment and remand the case to the Superior Court to award the plaintiff vacation pay, litigation costs, and reasonable attorney’s fеes.
So ordered.
Notes
According to city ordinance § 8.9(5), the city of Malden (city) will not pay vacation pay equivalent to employees who are terminated for fault: “[a]ny employee who is eligible for earned vacation leave under this Section whose service is terminated by lay-offs, resignations, [or] dismissal through no fault or delinquency of their own . . . shall be paid vacation pay equivalent to any unused earned vacation leave available as of the termination date. No vacation pay equivalent shall be granted to any employee whose services are terminated for reasons other than as statеd in this paragraph.”
The plaintiff pursued his private action claim by attaining the Attorney General’s assent in writing pursuant to G. L. c. 149, § 150. See Melia v. Zenhire, Inc.,
The mayor testified at trial that the plaintiff was paid after his termination in “an attempt to settle [his] claims.” The judge interpreted this statement to mean “he hoped [the plaintiff] would consider himself fairly treated and would abandon any claims he had.” There was no written settlement agreement between the parties concerning the plaintiff’s termination.
Subsequent to the filing of the complaint in this case, G. L. c. 149, § 150, was amended to mandate treble damages when an employer violates G. L. c. 149, § 148. St. 2008, c. 80, § 5. See Melia v. Zenhire, Inc., supra at 171 n.8. This amendment does not apply retroactively. Rosnov v. Molloy,
The city argues that Electronic Data Sys. Corp. v. Attorney Gen.,
In its brief, the city maintains that sections of the city ordinance granting benefits such as vaсation time, sick leave, and retirement benefits, as well as the ordinance section requiring an involuntarily terminated employee to forfeit accrued vacation pay, act “in tandem” with G. L. c. 149, § 148. At oral argument, however, the city conceded that the forfeiture clause was in contravention of the Wage Act. We note that city ordinances, like employment policies, if found to violate State laws, may be struck down. See, e.g., Electronic Data Sys. Corp. (No. 2), supra at 64. Here, city ordinance § 8.9(5) withholding accrued vacation pay appears similar to the invalid policy that took away an employee’s accrued vacatiоn time in Electronic Data Sys. Corp. (No. 2), supra at 66-67. The trial judge correctly found this ordinance invalid. Because the ordinance is invalid, we need not determine whether the judge erred by not permitting the city to submit evidence at trial that the plaintiff was terminated for fault.
The city also argues that when coupled with payment for vacation pay, the plаintiff’s salary continuation would create a windfall for the plaintiff. We have discussed “windfall” in the context of G. L. c. 149, § 148B, and have noted that “[t]he ‘windfall’ the Legislature appeared most concerned with is the ‘windfall’ that employers enjoy from the misclassification of employees as independent contractors [such as] the avoidance of holiday, vacation, and overtime pay” (emphasis added). Somers v. Converged Access, Inc.,
We note that had the city paid the plaintiff payments labeled as vacation pay, and merely been late in those payments, the city would not have been foreclosed from offsetting those payments from what was owed.