*1
removal
explanation for his
ya’s only
plainly provides the state
conspiracy
Holland
meeting is that
Holland from the
peti
violation of
to show a direct
essential
about
questions
to his
respond
equal pro
refused
tioner’s Fourteenth Amendment
Determining whether
there.
why
actions
he was
rights, whether or not the
tection
plausible,
more
Sebunya’s explanation is
officially authorized or
police
Knowles,
Sebunya is credi-
lawful.”);
necessarily whether
113 and
see also Johnson
(9th Cir.1997)
this
ble,
factfinder and is
(stating in
is for a
F.3d
simply
function
pri
proper
Court’s
against
section 1983 action
context of
“[bjecause
individuals,
summary judgment.
viewing
the Plaintiffs
a
vate
state action for
establish
light
most
Viewing the facts
[¶ 35]
claims,
constitutional
we
purposes of their
just the sort
conjures
favorable to Holland
requirement
the color-of-state-law
treat
actions seek
that section 1983
of scenario
requirement
equiv
as
and the state-action
through its
prevent:
government,
alent”); George v.
Work Fur
indi
private
Pacific-CSC
agents
conspiracy
or in
with
Cir.1996)
(9th
lough, 91 F.3d
viduals,
punish
or
seeking
prevent
(“In
actions,
law’ is
‘color
state
speech of
for otherwise lawful
citizen
action.”).
synonymous with state
When
See,
Helvey v.
disapproves.
e.g.,
which it
leave, Sebunya had him
Holland refused to
(8th Cir.
City Maplewood,
tionally financially. previously Mr. had con- Holland opin- Sebunya
fronted Mr.
with
Confining our review to
7(d) in fact reveals Sebun- statements 8, 1999); McNabb v. Star Cty., Nov. berland were consolidated cases that
1. The individual Basinger v. Wal-Mart appeal are: for this Inc., Stores, (Me.Super. Cum Ct. CV-98-351 *2 Resorts, Inc., wood Hotels & (Me.Super. CV-98-359 98-383 Cty., Ct. Cumberland Nov. (Me.Super. Cty., Ct. Cumberland 1999); Nov. Group, Newcomb v. The Newark CV- 1999); Burger v. King, Pelletier CV-98-344 (Me.Super. 98-192 Cty., Ct. Kennebec Nov. (Me.Super. Ct. Cty., Cumberland Nov. 1999). 1999); Inc., Hotels, Simpson Harper CV- *3 (orally), F. Petruccelli Petruccelli
Gerald Martin, LLP, Fontaine, F. Donald Jona- & Beal, than S.R. Nicolaas W. Groenenveld- Portland, Beal, P.A., Meijer, Fontaine & Case, McTeague Case Higbee W. James P.A., Whitney, Topsham, Cohen & Watson appellants. L. (orally), Ann Kayatta J. Jr. William Erdman, Rudisill, At- K. Pierce Douglas Messerschmidt, wood, Gregory Michael G. Preti, LaMourie, Hansel, J. P. Matthew LLC, Beliveau, Haley, Flaherty, Pachios & Sheils, III, Per- Rich J. H. William John P.A., kins, Hinckley Keddy, & Thompson, Kelly Chapman, Chapman, & John W. Moon, Moss, Shapiro, Philip J. Jonathan P.A., McGill, Moss, Shapiro, Hayes Portland, for appellees. General, Ketterer, Attorney
Andrew Gen., Thomas, Atty. Asst. Gwendolyn D. Bureau for amicus curiae Maine Augusta, of Labor Standards. CLIFFORD, RUDMAN,
Panel: dated motion dismiss. Although SAUFLEY, ALEXANDER, and motion was filed after defendants CALKINS, discovery occurred, parties JJ. some had agreed and the court to treat the cases
CLIFFORD, J.
procedure
under the
used for motions to
affidavits,
discovery,
stip-
No
dismiss.
appeal
[¶ 1] Five classes of employees
ulations of fact were
upon.
relied
judgments of
complaints
dismissal of their
J.)
(Crowley,
motion court
granted
their employers asserting that
employers’ motions
to dismiss in all
employers’
practice
paying
them
spects.
ap-
then filed this
a bi-weekly
basis created causes of
peal.
pursuant
to 26
*4
Supp.1998) (concerning
timely pay-
&
II. STANDARD OF REVIEW AND
P.L.1999,
of wages), repealed
ment
by
ch.
RULES OF CONSTRUCTION
465,
(effective
§
18, 1999),
1
September
and 26
Supp.
M.R.S.A.
complaint
3] Dismissal of a
[¶
1998) (concerning penalties
rights
only
proper
and
of
when the
to
complaint fails
action for
by employers),
violations
may
state a claim
which relief
(effec-
P.L.1999,
465,
by
12(b)(6).
§ 1
granted.
amended
ch.
See M.R.
“A
Civ. P.
18, 1999);
Sept.
tive
M.R.S.A.
26
664 motion to dismiss tests the legal sufficien
(1988 & Supp.1999) (proscribing
cy
complaint.”
minimum
of the
Livonia v. Town of
¶
wage requirements);
Rome,
39, 5,
83,
the Federal Fair La-
ME
1998
707 A.2d
85
Act,
268,
§§
bor Standards
29
v.
(citing
Soucy,
U.S.C.A.
201-219
Richards
610 A.2d
(1998);
(Me.1992)).
unjust
in
and
common law
enrich-
270
For
of a
purposes
Determining
12(b)(6),
ment.
Superior
pursuant
motion made
to Rule
(Cumberland
Court
allegations
and Kennebec Coun-
“the material
of the complaint
J.)
ties, Crowley,
Livonia,
properly dismissed their
taken
must be
as admitted.”
¶ 5,
complaints,
39,
we affirm judgments.
1998 ME
707
(citing
A.2d at 85
Foods, Inc.,
Larrabee v. Penobscot Frozen
(Me.1984)).
97,
I.
486 A.2d
98
When review
PROCEDURAL HISTORY
dismissal,
ing a
we examine
complaint
2] The
in
this case are
in
most
light
plaintiff
favorable to the
hourly
industry
workers in the service
to
whether
it
determine
sets forth ele
who were
employers
their
on a
ments of a cause of action or
facts
alleges
bi-weekly basis. The defendants are ser-
entitle the
relief
plaintiff
would
industry corporations.
vice
The five law-
pursuant
legal
to some
Livo
theory. See
suits that
ap-
constitute this consolidated
nia,
¶39, 5,
ME
“A
1998
raised, we then consider the statute’s his
TIMELY
PAYMENT
III.
WAGE
tory, underlying policy, and other extrinsic
STATUTE
legislative
intent.
factors
ascertain
allege that
¶
Crossman,
92, 7,
ME
Arsenault v.
practice
paying
them
employers’
legisla
In ascertaining
bi-weekly
a violation of 26
basis is
intent,
interpret
section of the
tive
we
Because of these
626-A.2
statutory
statute
the context of the
violations,
they
they
are enti
contend
City
which it is found. See
scheme
a civil
tled
enforce
forfeiture
$100
¶
Doud,
Rockland
1998 ME
and,
addition,
re
per violation
$500
Moreover, although
costs,
damages,
attorney
cover treble
agency’s interpretation
of a statute it is
fees.
charged
administering
binding
with
is not
Court,
on this
we will
that interpre
accord
For-
Rights
A
of Action
Civil
Private
tation substantial
“unless the
deference
*5
feitures
plainly compels
contrary
statute
a
result.”
that
The
the mo-
[¶ 6]
contend
Maine Bankers Ass’n v. Bureau
Bank
of
1304,
(Me.1996);
ing,
holding
tion
erred
in
see
court
provide:
wages.
2. The statutes
of
This subsection shall not
those
permit nonpayment
be
or
construed
§
payment
621. Time of
wages
withholding
payment
of
due.
of
when
employers; weekly payment
1. Certain
(1988
Supp.1998),
§
&
re-
M.R.S.A.
required. Every
person
corporation,
or
P.L.1999,
465, §
pealed by
1.
ch.
partnership engaged
mechanical,
manufacturing,
in a
§ 626-A. Penalties
mercantile,
mining, quarrying,
provisions
any
the
of
Whoever violates
of
hotel,
restaurant,
camp, beauty
summer
626,
sections 621 to 623 or section
628 or
amusement,
parlor,
business;
telephone
telegraph or
subject
629 shall be
to a forfeiture of not
trades;
any
building
of the
in
$500
each
$100 nor more than
for
less than
logging
lumbering operation; upon pub-
or
violation.
works,
repair
lic
roads,
in the
or
construction or
of
Any employer
liable
the em-
shall be
sewers,
bridges,
gas, water or elec-
ployee
the
or
for
amount of
works,
lines;
light
pipes
every
tric
or
incor-
being
unpaid wages. Upon
judgment
porated express
compa-
company water
or
employee
any
favor
em-
of
or
rendered
ny;
every
company
steam railroad
or
any
brought
ployees, in
action
to recover
corporation
pay weekly
employee
shall
each
wages
subchapter,
unpaid
under this
such
engaged
wages
in his or its business the
include,
the
judgment shall
in addition to
by
employee
days
earned
the
to within
of
due,
wages adjudged
be
rea-
unpaid
payment; every county
the date of that
.
interest,
of
an
rate
additional
sonable
city
pay
employee
every
shall so
who is
equal
such
to twice the amount of
amount
engaged
wages
salary
or
in its business the
liquidated damages
of
wages as
and costs
him,
by
employee
earned
unless the
attorney’s fee.
including a
suit
reasonable
quests writing
paid
in a different
be
wages
may be
action for
The
pay
Every
manner.
town shall so
each
brought by
employee
either
affected
or
the
employee
by
in its business if so
by
Department
employees or
of Labor.
employee.
An
who is absent
Department of Labor is further autho-
place
employment
regular
from
at a
his
of
judg-
supervise
payment
rized to
ment,
payment
paid
time fixed for
shall be
there-
judgment
on behalf of the
collect
after on demand.
employees and
fines
employers;
employee or
collect
payment
of balance of
All
through
subchap-
hourly
Any
regardless
of this
employer,
of
violation
incurred
brings
Department
of Labor
whether enumerated
shall
ter. When
in subsection
unpaid wages,
an
this action and
employee,
before
action for
its
on or
may
to collect a civil forfeiture
ployee's
regularly
payday,
next
scheduled
action
proceeding.
joined in
employee's
hourly
earned
be
the same
the balance of the
both
Supp.1998),
§
26 M.R.S.A.
626-A
due to be
which
P.L.1999,
§
by
normally
payment
amended
ch.
on the date
scheduled
§
Whittier,
M.R.S.A.
626-A
harmoniously.
does not allow for a
See Estate
of
private right
of action
A.2d at 2.
against
employers.
collect forfeitures
Moreover,
17-A,
4-B
title
section
626-A provides
Section
for a forfeiture of
“civil
states that
violations ... are enforce
for each
to be
violation
en-
$100
$500
General,
by
Attorney
repre
able
party
party
forced
is
any
sentative
other appropriate public
623, 626,
of
violation
sections
official in a civil action
what
to recover
or 629. See 26
626-A.
M.R.S.A.
fine,
may
designated a
penalty
be
or other
statute, however,
does not state to
sanction,
toor
secure the
forfeiture
whom that
payable.
forfeiture is
may
17-A
decreed
the law .”
§ 4-B
civil
(Supp.1999).
M.R.S.A.
[¶ 7] Because
does
forfeiture referenced
section 626-A
private
not state that a
right of action
“civil
exists,
type
solely
of
violation” that is
right
such a
of
can
enforceable
un
Attorney
In
General
implied.
Larrabee v. Penobscot Frozen
Larrabee,
Foods, Inc.,
specified.
less
(Me.1984),
otherwise
6. fact civil The that no forfeiture sought Attorney against were the General
225 policy congressional undermine the would FEDERAL FAIR LABOR VI. STANDARDS ACT in all states. uniformity of enforcement 98-334-P-H, slip op. at Basinger, See No. Wal-Mart, Basinger v. one [¶ 21] this ap consolidated for the five cases removed to the United States peal, was Thus, magistrate’s adopting [¶ 23] District of Maine. District Court for the full, States in the United recommendation (Hornby, The States District Court United found no violation District Court C.J.) adopted the recommendation in That court’s decision Basinger. FLSA {Cohen) Magistrate Judge United States in no persuasive and we find error is summary that was entitled Wal-Mart adopt its ra- Superior Court’s decision judgment employees’ on the Fair Labor as to the other class tionale all of pursuant Act claims filed 29 Standards §§ Basinger 201-219. v. U.S.C.A case. present Stores, Inc., No. Wal-Mart 98-334-P-H entry is: (D.Me. 1999). Mar.9, The United States subsequently District Court declined ex Judgments affirmed. supplemental jurisdiction and re ercise Superior the case to Court. manded CALKINS, J., dissenting. 1367(a) (1993) (provid See 28 U.S.C.A. ing supplemental jurisdiction). This I III-A of the concur Part [¶24] decision is the law of the case as § 626-A opinion holding that 26 M.R.S.A Basinger plaintiffs. Alley, See Blance v private provide employees right not does (Me.1979). 589 employers their to collect of action The magistrate judge reasoned in I that v. forfeitures.7 believe Larrabee “ ‘[t]here recommendation that is noth- Inc., Foods, Penobscot Frozen 486 97 ing says pay period [FLSA] in the (Me.1984) I compels holding. also has employees to be one week must IV, V, concerning VI ” concur Parts paid weekly.’ Basinger, No. 98-334- wage, unjust employees’ minimum en- P-H, op. 7 slip (quoting at Marshall v. richment, and Federal Fair Labor Stan- Ford, Inc., F.Supp.
Allen-Russell I dissent in respectfully Act claims. dards (E.D.Tenn.1980)). Moreover, III-B I conclude that 26 Part because court held that violations of section granted and 626-A trigger insufficient to a violation of the ployees, who were entitled to be 98-334-P-H, Basinger, No. FLSA. See weekly paid weekly, not slip op. at concluded that court to collect their bring governed FLSA claims are in Serapion First Circuit’s decision (1st Martinez, Cir.1997), F.3d “ requirement I start with the [¶25] ought
which that court stated that ‘courts in this employers case interpretation of a presume weekly. have were to dependant federal statute is state ’ disputes that basic litigation No in this one 98-334-P-H, slip Basinger, op. law.” No. disagreement whether premise. 988). at at (quoting Serapion, F.3d statutory enforce their can *9 The District held that the Court to right by an action collect those bringing to of the attempt peg enforcement FLSA weekly. wages paid Act not Prompt Wage Payment to the State P.L.1999, dissent, repealed by ch. and 7. I refer to the versions was In this P.L.1999, §§ at 621 and 626-A effect the ch. M.R.S.A. time the M.R.S.A. was amended section 626-A 465, complaints were filed. (see (Supp. § 1 26 M.R.S.A. Supp. and 626-A 2000)). 1998). opinion, As section 621 noted the statutes, In the I interpreting paid [¶ 26] note which not paid were on the date the fact that sections 621 and 626-A were normally scheduled for of those payment statutes, remedial wage obviously intended wages.” The section assumed a regularly remedy problems to faced by low-wage scheduled at which payday employees time living workers paycheck paycheck. from to generally were was paid what due them. We have said such statutes must be if Common sense dictates that an employer liberally. construed Bu See Director of required employees weekly, was its pay to Cormier, reau Labor Standards employer the must have established a (Me.1987). 1297, 1300 621(2) weekly payday. Leg- In section employee [¶ 27] Section 626-A allows an was not authorizing employers, islature bring wages. an action unpaid for The quired pay weekly, regu- to establish a statute, as it was at worded the time these larly payday biweekly scheduled on a or filed, actions implicitly were referred to basis, monthly any or basis other than a violations of section as as other well Yet, weekly exactly basis. that is what the statutory provisions, as basis for an ac- employers in they this case did: estab- tion for unpaid wages, by referring to biweekly regular lished a for their payday paragraph. those sections the first employers whom the were re- opinion concludes the wages of these quired pay weekly. “unpaid,” they were not “late,” merely spite were of the fact that 621(2) simply Section with 30] dealt statutory scheme makes no distinction nonrecurring not wages situation wages between “unpaid” wages. “late” and regularly on the payday, scheduled fact, In there no mention the statutes and it employer pay on the of “late” fact, 621(2) next In fur- payday. opinion wages [1128] The decides that ther it stated that “shall not be construed (1) “unpaid” are in two situations: when an permit nonpayment withholding or fails to employer pay employee after payment of wages opin- due.” The employment is employ- terminated and the ion employers weekly allows to ignore the wages, ee has made demand and payment requirement long they pay so as (2) employer pay when an fails to employees by next regularly payday pay- on the following it payday, scheduled whenever is. Such day when the wages were due. We are plain result was not authorized not concerned with the former situation statute, and, therefore, meaning of the it dealing because we are not with terminat- Legislature was not what intended. employees. ed opinion suggests that an em- opinion determines, [1129]The with re- ployer biweekly who payday established a gard employees, current employees, its who were supposed “unpaid” payday when not on the paid weekly, the employer’s did so at after the payday they on which are due. peril Department because the of Labor only portion statutory scheme sought could have forfeiture payment payday that allowed on the next however, employer. Department, If the 621(2). was section That section stated weekly pay failed require- to enforce that an employer employ- “shall to its ment, remedy ee, employees were if on or without employee’s regu- before the next larly they payday, bring scheduled the balance of allowed to an action employee’s hourly wages earned due to wages.8 sale, “Every person, injury completely for an done him in his and and de without without immunities, person, reputation, property nial, promptly delay.” and without Maine law; remedy by shall have due course of I, § art. Const. justice freely shall be administered *10 the dismissal I would vacate this reason meaning plain I that the 32] conclude unpaid claims for employees’ em- of sections 621 wages to these ployers and, were
weekly, weekly, they unpaid. proceed with their
ployees entitled wages. For
statutory remedy