¶ 1. Plaintiff Arthur Stowell appeals the superior court’s order denying penalties and attorney’s fees under 21 V.S.A. § 347, claiming his employer, defendant Action Moving & Storage, Inc., improperly withheld commission payments in violation of § 342. We affirm the court’s order to the extent it held that commission payments are wages within the meaning of Vermont’s wages-and-medium-of-payment law. We reverse the court’s order, however, to the extent it held that defendant did not violate § 342 and plaintiff was not entitled to penalties under § 347. We hold that plaintiff is entitled to double damages under § 347 and remand for a determination of costs and attorney’s fees pursuant to that statute.
¶ 2. The facts are as follows. Defendant employed plaintiff as a truck driver from January to November 2002. Plaintiff initially performed local hauling jobs, for which he was paid an hourly wage. In April 2002, plaintiff began performing long-haul trucking jobs, for which he was paid by commission, until he voluntarily resigned in November 2002.
¶ 3. In 2002, defendant was an agent of Atlas Van Lines, Inc. (“Atlas”). Atlas divided moving jobs between defendant and other agents and distributed the revenue accordingly. After each move, Atlas provided defendant a moving-distribution sheet showing the amount of money paid each agent for each aspect of the job. Upon receiving the moving-distribution sheet, defendant would determine the commission payment due plaintiff after subtracting advances and other expenses. Defendant completed a driver’s commission sheet each week which provided plaintiff with a running total of commission payments, advances, and expenses.
¶ 4. Plaintiff received expense and commission advances of $900 per week
¶ 6. After two days of trial, the superior court found that plaintiff was entitled to $280.24 on a common law breach-of-contract theory. The court first found that defendant’s “bookkeeping records . . . [were] wanting to say the least” and that for many of the commission calculations there were no explanations for the figures. It went through an item-by-item analysis of each party’s claims and found the net underpayment to be $280.24. The court arrived at this figure by subtracting “pick and hold” charges ($1,015.00), fuel charges ($1,197.25), Federal Express shipping charges ($118.12), and damage claims ($727.67) from the total of all commission payments due plaintiff over the period of his employment. It subtracted from the net total the commission payments and advances actually paid to plaintiff to arrive at the final number. The court concluded that plaintiffs commission payments were wages under 21 V.S.A. § 342, but did not find a violation of that section and refused to assess penalties and attorney’s fees for nonpayment as provided in 21 Y.S.A. § 347. In response to plaintiffs post-trial motion, the court struck the original judgment of $280.24 and entered judgment for plaintiff in the amount of $2,740.72. The new amount reflected the entire unpaid commission including a part that was to be paid to a third party at plaintiffs direction. The superior court ordered defendant to pay plaintiff this amount, but denied plaintiffs renewed request for penalties and attorney’s fees under § 347. Plaintiff appealed.
¶ 7. On appeal, plaintiff claims the court erred in denying penalties under § 347. To resolve this question, we address four issues in turn: (1) whether plaintiffs commission payments were wages under § 342;
I.
¶ 8. This case arises out of Vermont’s wages-and-medium-of-payment statutes, see 21 V.S.A. §§ 341-347, the overriding intent of which is to ensure that workers are paid in a timely manner. See State v. Carpenter,
¶ 9. The superior court concluded that plaintiffs commission payments were wages under § 342. The various subsections of that section specify when an employer must pay “the wages earned by such employee.” 21 V.S.A. § 342(a). Whether commission payments are wages is a question of statutory interpretation which we review de novo. Wright v. Bradley,
¶ 10. Although § 342 regulates the payment of wages, the term “wages” is not defined in that statute or in the surrounding ones. The term is defined, however, in other employment-related statutes in the same title. Thus, 21 V.S.A. § 1301(12), which governs unemployment compensation, defines wages as “all remuneration paid for services rendered by an individual, including commissions.” The inclusion of commission payments within “wages” is consistent with the traditional use of the word. See Black’s Law Dictionary 1610 (8th ed. 2004) (“Wages include every form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, bonuses ...” (emphasis added)). Moreover, this Court has broadly defined wages in other contexts to include most forms of compensation for services rendered. Quinn v. Pate,
¶ 11. In addition, most jurisdictions view commission payments as wages for purposes of wage-payment statutes. This is true of jurisdictions with statutes that define wages to include commission payments. See Ariz. Rev. Stat. Ann. § 23-350(5); Colo. Rev. Stat. § 8-4-101(8)(a)(II); Kan. Stat. Ann. §44-313(c); Md. Code Ann., Lab. & Empl. § 3-501(c)(2); Minn. Stat. §§ 181.13(b), 181.145; Neb. Rev. Stat. § 48-1229(4). More importantly, it is true of states with statutes, like ours, that do not include a definition of wages. See Licocci v. Cardinal Assocs.,
¶ 12. If there is an argument to be made that commission payments were not intended to be wages under § 342, it lies in the requirements set forth by the statute. Section 342 requires an employer to pay wages to employees “each week . . . the wages earned by such employee to a day not more than six days prior to the date of such payment.” 21 V.S.A. § 342(a). On proper notice and consent of the employee, however, it allows an employer to pay “bi-weekly or semi-monthly . . . wages earned by the employee to a day not more than six days prior to the date of the payment.” Id. § 342(b).
II.
¶ 13. The next issue is whether defendant violated § 342. Here, plaintiff argues that defendant violated § 342(c)(1) by failing to pay him “on the last regular pay day.” Defendant responds that it did not violate § 342(e)(1) because the last regular pay day did not occur until after suit was brought.
¶ 14. Initially, we note that this argument does not fit the facts. This is not a case where plaintiff lost his right to receive his commission once he resigned. It is undisputed that plaintiff was entitled to a commission for long hauls made before he resigned, irrespective of when the calculation of the commission amount was made. Nor is this a case in which plaintiff
¶ 15. In making this point, we understand that the superior court held that on the day plaintiff brought suit the unpaid commission amount was not due because defendant still had “to account for any potential claims against [plaintiffs] final shipment.” The court found that the final accounting did not occur until several months later, and thus defendant had not violated the act when suit was brought. It found both that defendant did not violate § 342 and, in any event, was not liable for penalties under §347.
¶ 16. We analyze the court’s reasoning with respect to § 342 here and will address its § 347 reasoning below. Regarding § 342, we find the court’s analysis flawed in a number of respects. By the date of suit, defendant had decided not to make any further commission payments, and the possibility of future damage claims was not the reason for the nonpayment. Further, the court found that the amount of the claims-reserve account was $1,000, and this was below the amount of the unpaid commission.
¶ 17. The central point of the trial court’s analysis was that “[defendant] did not owe [plaintiff] any of the remaining commission at the time he filed suit.” That conclusion is plainly inconsistent with the court’s finding that, other than withholding the damage reserve, defendant would pay the balance of the commission owed “about six weeks after a move was complete,” when defendant had all the relevant information from plaintiff and Atlas. Over six weeks had expired before plaintiff brought suit, and it is undisputed that defendant had all the information from which to calculate the remaining commission. Indeed, defendant calculated the remaining commission, and its calculation was close to the amount the court eventually accepted.
¶ 18. Apart from the above analysis, we decline to specify when the statute required defendant to pay the remaining commission. We recognize that defendant has an argument that the statute requires it to make commission payments only when it otherwise would have made them had plaintiff not resigned, and some other courts have accepted this argument in interpreting similar statutory language. See, e.g., J Squared, Inc. v. Herndon,
III.
¶ 19. We turn then to the third question: whether plaintiff is entitled to penalties, along with costs and attorney’s fees, under § 347 due to defendant’s violation of § 342. See 21 V.S.A. § 347 (providing penalties for violations of §§ 342, 343). The superior court found that § 347 did not apply, apparently because of the last sentence of the section: “no action may be maintained under this section unless at the time the action is brought the wages remain unpaid or improperly paid.” The court held that at the time plaintiff brought suit no wages were unpaid or improperly paid.
¶ 20. We have addressed much of this analysis above under § 342. We here add two points relevant to applying the statutory language to this case. First, we construe the statute in light of the common law and consistent with its evident purpose. See Swett v. Haig’s, Inc.,
¶ 21. Second, it is clear that plaintiff had a claim for his unpaid commission when he brought suit, a claim that was validated by the findings of the superior court that defendant owed plaintiff additional commission payments. As discussed above, there was no written employment agreement specifying how each commission was to be paid. In the absence of a written agreement, the superior court had to rely on extrinsic evidence to determine when plaintiff earned his commission. See Houben v. Telular Corp.,
¶ 22. Beyond the specific issue of compliance with the language of § 347, we note that decisions from other jurisdictions are clear that where a commission is earned before resignation and the employer does not pay the commission when it becomes due, the employer is liable for penalties. See id.; J Squared,
¶ 23. Ultimately, defendant argues that it is not liable under § 347 because Lanphear v. Tognelli,
¶ 24. The plain language of § 347 covers any violation of § 342. Since we have held that defendant violated § 342, § 347 necessarily applies.
IV.
¶ 25. Finally, we address plaintiffs argument that he is entitled to treble damages, plus costs and attorney’s fees, under § 347 because the statute awards an employee a penalty amount of twice the unpaid wages in addition to actual damages. Given its holding that plaintiff was not entitled to penalties at all, the superior court did not reach this issue. This is a pure question of statutory construction that we, in any event, review de novo. In re South Burlington-Shelburne Highway Project,
¶ 26. Section 347 states that an employer who violates § 342 or § 343
¶ 27. The statute providing for the investigation of unpaid-wage complaints by the Commissioner of the Department of Labor, 21 V.S.A. § 342a, informs our review. This statute gives the Commissioner authority to “collect from the employer the [unpaid wages] and remit them to the employee.” Id. § 342a(a). The Commissioner also has authority to collect penalties from an employer in “an additional amount not to exceed twice the amount of the unpaid wages, one-half of which will be remitted to the employee and one-half of which shall be retained by the commissioner.” Id. § 342a(b) (emphasis added). Thus, when the Commissioner enforces the statutory scheme, the employee receives the actual damages in addition to a penalty amount equal to the actual damages, or double damages. We conclude that the Legislature did not intend that employees receive a higher penalty amount when suing on their own. See In re Margaret Susan P.,
¶ 28. Our conclusion is reenforced by decisions in other jurisdictions interpreting wage-penalty statutes that do not specify whether actual damages are included in the penalty amount. See State v. Weller,
¶ 29. The same is true in states with statutes that award damages in the amount of three times the wages, yet fail to specify whether the penalty is in addition to, or inclusive of, the damages for unpaid wages. See Sanborn v. Brooker & Wake Prop. Mgmt., Inc.,
¶ 30. Statutes in other jurisdictions illustrate that when a legislature intends to provide for wage-payment penalties in addition to actual damages, it does so explicitly. See, e.g., Me. Rev. Stat. Ann. tit. § 26 626-A (employee may recover “in addition to the unpaid wages . . . adjudged to be due, [interest], [costs and attorney’s fees], and an additional amount equal to twice the amount of unpaid wages as liquidated damages.” (emphasis added)). Maine’s statute uses language similar to Vermont’s in that it awards the employee “twice the amount” of the wages, but it also uses language specifying that the damages are “in addition to the unpaid wages.” Id. Courts have predictably interpreted this to mean that the employee is entitled to, in effect, treble damages. See Burke,
¶ 31. These statutes also show the type of language generally employed by a legislature when the penalty award is not intended to include the amount of the unpaid wages. In fact, other Vermont statutes expressly specify when a penalty award is intended to be in addition to the actual damages. See 9 V.S.A. § 2461(b) (“Any consumer . . . may sue and recover . . . the amount of his damages . . . and exemplary damages not exceeding three times the value of the consideration given ...” (emphasis added)). Moreover, a review of Vermont statutes reveals that when the Legislature wishes to grant treble damages, as plaintiff urges it did here, it does so explicitly. See 10 V.S.A. § 4709 (treble damages for importation and stocking of wild animals); 12 V.S.A. §§ 4920, 4923 (treble damages for trespass); 13 V.S.A. § 3606 (treble damages for “conversion of trees or defacing marks on logs”); 24 V.S.A. § 3307 (treble damages for interference with water supply); 25 V.S.A. § 207 (treble damages for stopping or conversion of floating lumber); cf. 21 V.S.A. § 347 (damages for “twice the value” of unpaid wages).
¶ 32. Further, this Court has held that an award of treble damages as a penalty includes the amount of the original damages within the penalty. See State v. Singer,
¶ 33. In sum, we conclude that § 347 entitles an employee to double damages. We hold, therefore, that plaintiff is entitled to $5,481.44 in damages, consisting of
Affirmed in part, reversed in part, and remanded for further proceedings consistent with the views expressed herein.
Notes
Plaintiff directed defendant to pay $600 of the weekly advances to his partner, Donna Dowdy, because she reportedly assisted him on long-haul trips and because the arrangement would lower his child support obligation. Ms. Dowdy was not a party to this action. The superior court ultimately determined that all wages — advances and commission payments — were plaintiff’s for purposes of the suit.
The trial court found that clients could make claims several months after a move was complete. Defendant maintains, as plaintiff confirmed in his deposition, that customers had up to nine months to submit damage claims.
Plaintiff prevailed on this issue below and argues here that we should affirm the superior court on this point. We address this issue because defendant argues that the ruling was wrong. Defendant can do so, despite failing to file a timely cross-appeal, because if we rule that commission payments are not wages, we would reach the same result as the superior court with respect to plaintiff’s appeal issues, but on a different ground. See Huddleston v. Univ. of Vt.,
Pursuant to a collective bargaining agreement, the payment may be made “to a day not more than 13 days prior to the date of payment.” 21 V.S.A. § 342(b).
Defendant’s main position in the superior court, and in this Court, is that plaintiff cannot prevail under § 342 because the unpaid commission, if any, was owed to Ms. Dowdy, and not to him. See supra, note 1. The superior court originally ruled for defendant with respect to this point, holding that all but $280 was owed to Ms. Dowdy and not to plaintiff. Thereafter, in response to plaintiffs motion to amend the judgment, the court reversed itself and awarded all damages to plaintiff. Defendant attempted to file a cross-appeal challenging the amendment of the judgment, but the cross-appeal was filed too late, and we dismissed it. As we stated in supra, note 3, defendant can urge a different ground of affirmance without a cross-appeal. It cannot, however, urge that we reduce plaintiffs recovery without a cross-appeal. As a result, we do not consider defendant’s argument that the court erred in amending the judgment.
This was not true when the court rendered its original decision, but became true when it modified the recovery amount. Plaintiff sought reconsideration of the court’s ruling that defendant had not violated § 342, and was not liable under § 347, but the court denied the motion without explanation.
The only document representing an employment agreement was a letter submitted at trial which did not specify when commission payments were due; the only sentence pertaining to the issue is: “[defendant] also gave [plaintiff] the breakdown of how we pay drivers for interstate shipments.”