Aviad Dagan & another vs. Jewish Community Housing for the Elderly
Case Details
- Citation
- 45 Mass. App. Ct. 511
- Procedural Posture — the stage the case had reached
- summary judgment
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The court granted summary judgment for the employer, holding that on-call time when employees were free to pursue personal activities in their own residence was not compensable working time under Massachusetts minimum wage law, despite the requirement to remain on premises.
Excerpt
Aviad Dagan & another vs. Jewish Community Housing for the Elderly. No. 96-P-1978. Suffolk. June 4, 1998. September 28, 1998. Present: Lenk, Gillerman, & Smith, JJ. Minimum Wage. Labor, Minimum wage, Overtime compensation, On-call time. This court concluded that, in an action to recover back wages and overtime compensation, the question whether the plaintiffs’ “on-call” time was compensable under the Minimum Fair Wage and Overtime Law, G. L. c. 151, §§ 1 and 1A, could be resolved as a matter of law where the underlying facts were undisputed. [518-519] In an action against an employer seeking back wages and overtime compensation, uncontroverted evidence demonstrated that the plaintiff employees, who were required to remain on the employer’s premises during on-call time, used that time, when not engaged in work for the employer, for their exclusive, personal benefit: accordingly, such time was not compensable under the Minimum Fair Wage and Overtime Law, G. L. c. 151, §§ 1 and 1 A, and the trial judge correctly granted summary judgment in favor of the defendant employer [519-521]; further, the compensation provided to the plaintiffs by the employer, in the form of a rent-free apartment located on the employer’s premises, effectively provided the plaintiffs with the minimum wage for the on-call hours they actually worked [522], Civil action commenced in the Superior Court Department on September 27, 1994. The case was heard by John C. Cratsley, J., on motions for partial summary judgment. Paul L. Nevins for the plaintiffs. David F. Grunebaum for the defendant. Vered Dagan. Gillerman, J. From October 1, 1991, through June 13, 1994, Aviad Dagan and Vered Dagan, husband and wife, were employed as the “site representatives” at the Golda Meir House, an apartment complex owned and operated by Jewish Community Housing for the Elderly IV, Inc., a corporation organized under G. L. c. 180 and exempt from Federal income tax under § 501(c)(3) of the Internal Revenue Code (the corporation). The corporation is affiliated with the defendant in this case. The parties have agreed, solely for the purpose of this case, to accept the defendant, Jewish Community Housing for the Elderly (JCHE), as the party legally responsible. In exchange for their services (described below) the plaintiffs were provided with a rent-free apartment including utilities, and were initially paid $25.00 per month for basic telephone service, later increased to $30.00 per month. They received no other compensation. Following the termination of their employment effective June 13, 1994, the plaintiffs brought suit, with a jury claim, alleging violations of the Minimum Fair Wage and Overtime Law, G. L. c. 151, §§ l and 1A (count I), and the Weekly Payment of Wages Act, G. L. c. 149, § 148 (count II). The judge allowed the defendant’s motion for partial summary judgment on count I. The judge, sua sponte, was of the opinion that the dismissal of count I also disposed of count II. Thereafter a final judgment was entered in favor of the defendant dismissing both counts of the complaint. The plaintiffs have appealed from that final judgment. The Golda Meir House (house) is an apartment building. The units are leased to individuals and couples over the age of sixty-two who meet certain eligibility standards set by the Federal government. Most residents pay rent equal to thirty percent of their adjusted gross annual income, with the result that those tenants pay below-market rent for their apartments. Eighty percent of the tenants receive so-called “Section 8” rental subsidies from the Federal government. Private charitable contributions subsidize additional health and social programs offered to the residents. The mission statement of the defendant states that its basic purpose is to promote, encourage, and support the independence, safety, and security of its residents. To that end the defendant is a provider of “quality of life services.” and an organizer of “support services.” These include safe and attractive facilities, meals, transportation, and social, cultural, and educational activities as well as home health and nursing care, special clinical diets, and personnel to assist the residents. Identical employment agreements were signed by each plaintiff. The agreement recites that the rent-free apartment is the “work site” for the job and, together with the provision of utilities and basic telephone service, is in exchange for the duties required to be performed. The agreement includes a job description of a “site representative.” The job description sets out the duties to be performed. Each site representative is required to be “on call” one hundred twenty-three hours weekly. The central issue in this controversy is the need to determine the working hours of the plaintiffs for the purpose of applying the minimum wage and overtime provisions of G. L. c. 151. More particularly, the question is: when does “on-call” time — that is to say, time when the site representative is on duty but not actually working — constitute working time for the purpose of applying the minimum wage and overtime provisions of G. L. c. 151? An agreement to work for less than the minimum wage is unenforceable. G. L. c. 151, § 20. Since the plaintiffs, who oppose the defendant’s motion for summary judgment, will have the burden of proof at trial, the defendant is entitled to summary judgment “if [it] demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case. To be successful, a moving party need not submit affirmative evidence to negate one or more elements of the other party’s claim.” (Emphasis added.) Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). If the moving party makes such a showing, then the party opposing the motion — here, the plaintiffs — must “respond by settling] forth specific facts showing that there is a genuine issue for trial” (citations omitted). Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397 (1994). If the moving party makes the demonstration required by Kourouvacilis, and the party opposing the motion does not meet that showing, the moving party will also have satisfied its obligation to demonstrate “the absence of a genuine issue of material fact on every relevant issue . . . .” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 127 (1997). With that standard in mind, we review the submissions of the parties. The defendant’s submissions. 1. The employment agreement (described above) includes a job description which states that the “[h]ours of Site-Rep. duty are as follows[:] . . . Monday through Thursday — 5:00 p.m. to 8:00 a.m. . . . Friday through Monday — 5:00 p.m. Friday eve. to 8:00 a.m. Monday morning,” and a full day of duty on Jewish and legal holidays as specified by management. Holidays aside, the job description required each plaintiff to be on call one hundred twenty-three hours weekly. The duties of a site representative, as stated in the job description and a handbook for site representatives, include the following: regular security rounds of the facility are to be maintained, and miscellaneous housekeeping tasks are to be performed regularly, such as monitoring and changing trash containers, and cleaning up the results of accidental spills. A log, or incident report, of all maintenance and social problems and other events which occur during duty hours is to be maintained. The overarching duty is to “[r]espond[] immediately to resident emergency call[s] or alarms [and to] [c]all[] emergency medical help as needed.” Also included is the need to “[r]espond[] to ALL resident calls to determine the nature of said call.” “Site Representatives ... are responsible for supplying reasonable and courteous service to our residents in every situation.” The job description also includes the following, to which the plaintiffs subscribed: “I understand that when I am on duty as a JCHE Site Representative I may be required to perform services for the entire length of my shift if situations arise to warrant so” (emphasis added). 2. The plaintiffs maintained a log of each call received from a resident. In the year 1993, for example, by which time the plaintiffs were familiar to the residents, the log showed ninety calls over the twelve months, or an average of 1.73 calls per week. There was no record kept of the time needed to respond to the calls. 3. Excerpts from the deposition of the plaintiff Vered Dagan, which consist only of nine pages, include Vered’s (Aviad Dagan’s wife) testimony that weekday nightly rounds were “never” performed by both plaintiffs together; that the rounds were performed twice a night — at 8:00 p.m. and 10:00 p.m. — and required about “15 to 20 minutes . . . walking fast.” 4. Excerpts from the deposition of the plaintiff Aviad Dagan, which are more extensive but are frequently disjointed, include the following testimony: Aviad worked Monday through Thursday, during the day, at another job. On Fridays, during the day, there was a period of unknown duration when he and a “partner” attempted to conduct a business — never described — which was “wholesale market to the blind.” The business came to nothing. Aviad made the weekday nightly rounds with considerable care. He did the regular rounds at 8:00 and 10:00 p.m. and a brief round at 5:00 p.m. when he returned from his daytime job. The 5:00 p.m. round took about thirty to forty-five minutes; the 8:00 and 10:00 p.m. rounds took not more than an hour or an hour and a quarter. When he was on call he was either in his apartment or someplace in the building. Either Vered or Aviad responded to calls, depending on who was available at the time of the call. All meals were regularly prepared and eaten in their apartment. While on call the plaintiffs were free to sleep, watch television, listen to the radio, play games on the computer, entertain friends (although done only infrequently), and take care of miscellaneous personal responsibilities such as paying bills and doing laundry. The plaintiffs’ submissions. 1. The “Site Representative HAND BOOK — GUIDELINES — Golda Meir House” states the same on-call hours as appear in the job description. The handbook contains additional information, including the following: “Weekday evening rounds must be done every 2 hours, starting at 6:00 p.m. through 10:00 p.m., unless determined otherwise by Management. When on duty it may be necessary, due to circumstances or as determined by Management, for the site representative on duty to remain ‘active’ for the entire length of one’s scheduled shift. Additional duties and/or patrols may be required at the sole discretion of the Management.” The handbook continues by describing the manner in which the security rounds are to be executed. The handbook also contains detailed provisions instructing site representatives how to respond to medical emergencies, fire alarms, elevator calls, and calls from the residents, namely, “NEVER argue with the resident. They need compassion, understanding, and reassurance from the staff.” 2. A document on the stationery of the defendant, captioned “LIVE-INS RESPONSIBILITIES,” which appears to have been prepared for the benefit of the residents, states that “LIVE-INS ARE EXPECTED TO RESPOND TO ALL MEDICAL, SECURITY AND MAINTENANCE EMERGENCY; THEY ARE ON CALL FROM 5:00 p.m. TO 8:00 a.m. ON WEEKDAYS AND THROUGHOUT THE ENTIRE WEEKEND AND HOLIDAYS. DURING THESE TIMES THEY ALWAYS REMAIN ON THE PREMISES. ... IN THE EVENINGS, THE LIVE-INS ARE ONLY REQUIRED TO STAY AWAKE UNTIL 10:00 p.m. [emphasis added], THEY WILL OF COURSE RESPOND TO EMERGENCIES AT ANY TIME DURING THE NIGHT.” 3. A document, captioned “Wage Calculation for Live-in Coverage by JCHE Paid Staff,” states: “Live-in hrs defined as follows: Weekdays: 5 p.m. - 11 p.m. plus 7 a.m. - 8 a.m. = 7 hours[;] Weekend: Fri (5 p.m. - 11 p.m. = 6 hours) + Sat/Sun (7 a.m. - 11 p.m., 2 days, = 16 x 2 = 32 hrs) + Mon (7-8 a.m. = 1 hr) = 39 hours total weekend[.] Full week: 1 Wkend (39 hrs) + 4 Wkdays (28 hrs) = 67 hours.” We now consider whether the defendant has made the showing required by Kourouvacilis, and if so, whether the plaintiffs have met that showing by setting forth facts which demonstrate that there is a genuine issue for trial. The essential facts put forward in the defendant’s submission are these: (i) under the provisions of the job description, the on-call hours of a site representative were one hundred twenty-three hours weekly; (ii) during on-call hours, the plaintiffs were required to remain on the premises, subject to the demands of management and the residents; (iii) the plaintiffs’ actual working time consisted of making nightly rounds of the facility, Monday through Friday, and responding to emergency calls from the residents at the experienced rate of one to two calls weekly; the plaintiffs were subject to calls by the residents and by management for the remainder of the on-call hours; (iv) the plaintiffs’ on-call hours included time the plaintiffs required for sleeping and eating; (v) the plaintiffs’ weekday and weekend on-call hours, when not spent making rounds or answering calls from the residents, were available to, and in fact were used by, the plaintiffs for their exclusive, personal benefit, but subject to their remaining on the premises; and (vi) while both plaintiffs signed employment agreements, the site representative position was a “one-person” job, and none of the required tasks were performed by both plaintiffs at the same time. These facts are not disputed by the plaintiffs’ submissions or by any other material available under Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974) (pleadings, answers to interrogatories, etc.), and no additional facts are proffered by the plaintiffs regarding their use of on-call, non-working time other than the defendant’s notice to the residents that the plaintiffs were not to be disturbed after 10:00 p.m. except in the case of an emergency. Given the absence of any contrary showing by the plaintiffs regarding the facts proffered by the defendant, those facts are undisputed. There being no genuine issue as to any material fact, the case is ripe for summary judgment. Mass.R.Civ.P. 56(c). More particularly, we must decide, as matter of law on the undisputed facts, whether the defendant’s submission sufficiently demonstrates that the plaintiffs have no reasonable expectation of establishing their statutory claims. The plaintiffs, citing Skidmore v. Swift & Co., 323 U.S. 134, 136-137 (1944), and DeCourcey v. Weston Racquet Club, Inc., 15 Mass. App. Ct. 373 (1983), assert simply that whether, or the extent to which, on-call time is compensable time under the minimum wage law is a question of fact (or a mixed question of law and fact) which must be submitted to the jury. In Skidmore, the Supreme Court considered the question whether on-call time was compensable under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. (1938) (employees must be compensated at no less than the minimum wage and one and one-half times their regular rate for overtime work). The Court stated that “[w]hether in a concrete case such [on-call] time falls within or without the Act is a question of fact to be resolved by appropriate findings of the trial court.” Skidmore, 323 U.S. at 136-137. However, a number of Federal circuit court opinions have held that where the facts are undisputed, Skidmore does not preclude the resolution of the question as matter of law. See Bright v. Houston N.W. Med. Center Survivor, Inc., 934 F.2d 671, 674-675 (5th Cir. 1991), cert. denied, 502 U.S. 1036 (1992) (“[T]he undisputed facts show that the on-call time is not working time”; Skidmore distinguished; summary judgment for the defendant affirmed); Martin v. Ohio Turnpike Commn., 968 F.2d 606 (6th Cir. 1992), cert. denied, 506 U.S. 1054 (1993) (summary judgment for the defendant employer affirmed); Birdwell v. Gadsden, Ala., 970 F.2d 802, 807-808 (11th Cir. 1992) (“Whether a certain set of facts and circumstances constitute work for purposes of the FLSA is a question of law” [emphasis added]; Skidmore explained); Owens v. Local No. 169, Assn. of Western Pulp & Paper Workers, 971 F.2d 347, 356 (9th Cir. 1992) (plaintiffs failed to contest or rebut the defendant employer’s proffered evidence, or to present any evidence of the plaintiffs’ personal use of on-call time, thereby permitting summary judgment for the defendant). Contrast Cross v. Arkansas Forestry Commn., 938 F.2d 912, 916-917 (8th Cir. 1991) (summary judgment for employer reversed where record contained evidence of “significant interference with . . . employees’ private activities” during “subject-to-call” hours). Further, DeCourcey does not provide any assistance to the plaintiffs. The case did not come to us on undisputed facts, see DeCourcey, 15 Mass. App. Ct. at 374-375, and thus the issue in the instant case was not presented in DeCourcey. There remains the pivotal question: whether, as a matter of law on the undisputed facts, the plaintiffs’ entire on-call time (one hundred twenty-three hours) — i.e., working and waiting, as contrasted with working time only — constituted working time for purposes of applying the minimum wage and overtime provisions of c. 151. We think not. The central fact of this case is that when not actually engaged in the nightly rounds, or responding to calls from the residents — a weekly total for both tasks of not more than eighteen and one-quarter hours, see note 14, infra, and related text — the plaintiffs were at home either sleeping, eating, or pursuing other desired personal or recreational activities which had no connection with — much less a benefit to — the defendant. While the plaintiffs’ freedom of movement after 5:00 p.m. on weekday evenings until 8:00 a.m. the following morning, and during the entire weekend beginning at 5:00 p.m. on Friday until 8:00 a.m. on the following Monday, was limited by the requirement that they remain on the corporation’s premises during all on-call hours, the plaintiffs’ home was within those premises and there was no limitation on the amount of on-call time the plaintiffs could spend at home. There is no Massachusetts appellate decision which bears directly on this case, but numerous Federal cases that arose under die cognate Fair Labor Standards Act support the conclusion reached by the judge. A United States District Court judge recently summarized the Federal case law. Recognizing that on-call time necessarily restricts in some measure the freedom of the employee, the judge wrote, “[E]very case that has addressed this issue, tells us that without some significant additional restriction on the employee’s off-duty [i.e., on-call but nonworking] time, such that the time can be said to have been spent primarily for the employer’s benefit, the time will not be compensable.” Darrah v. Missouri Hy. & Transp. Commn., 885 F. Supp. 1307, 1313 (W.D. Mo. 1995). The case before us is similar to Kelly v. Hines-Rinaldi Funeral Home, Inc., 847 F.2d 147 (4th Cir. 1988), cert. denied, 493 U.S. 835 (1989), where the facts were undisputed. There the plaintiff was engaged by a funeral home to perform light housekeeping from 9:00 p.m. to 12:00 midnight and 6:30 a.m. to 8:30 a.m., six days a week. He was provided a rent-free apartment on the premises of the funeral home, and was required to stay on the premises during the night hours. Between midnight and 6:30 a.m. the plaintiff’s only duty was to answer the telephone, and to go out and pick up a corpse if required. The plaintiff claimed overtime under the FLSA on the theory that he was employed to work from 9:00 p.m. to 8:30 a.m. The Court of Appeals concluded that nighttime interruptions were infrequent, and that the plaintiff was merely required to stay in his own residenc
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