Breach of Contract Cases

ROBERT PAUL MORRIS, Plaintiff v. SCENERA RESEARCH, LLC, and RYAN C. FRY, Defendants No. COA12-1481 Filed 20 August 2013 1. Employer and Employee — Wage and Honr Act — Retaliatory Employment Discrimination Act — bonus earned — bonus calculable The business court did not err in a case concerning a dispute regarding compensation and ownership rights between plaintiff and his employer by denying defendants’ motions for directed verdict on plaintiff’s Wage and Hour Act (WHA) and Retaliatory Employment Discrimination Act (REDA) claims and for JNOV. Plaintiff presented more than a scintilla of evidence in support of his position that he earned the $675,000 in issuance bonuses under his employer’s bonus policy. Furthermore, the question of calculability under the WHA was properly presented to the jury for review, the formula offered by plaintiff was at least one reasonable way to calculate those bonuses, and the evidence relied on for that formula was supported in the record. 2. Employer and Employee — Wage and Hour Act — liquidated damages — notice of change in bonus plan — lack of good faith or objective reasonableness The business court did not err in a case concerning a dispute regarding compensation and ownership rights between plaintiff and his employer by awarding plaintiff $210,000 in liquidated damages under the Wage and Hour Act (WHA). Defendants failure to provide plaintiff with notice of the change in his bonus plan constituted sufficient evidence to support the business court’s finding that defendants did not act in good faith or with objective reasonableness and, therefore, justified the business court’s award of liquidated damages in this case. 3. Employer and Employee — Wage and Hour Act — liquidated damages — good faith and objective reasonableness The business court did not err in a Wage and Hour Act (WHA) case by failing to grant liquidated damages in response to the jury’s award of issuance bonuses for the 150 patents pending with the patent office. Defendant employer made a proper showing of good faith and objective reasonableness as to its failure to pay the issuance bonuses. 4. Damages and Remedies — treble—Retaliatory Employment Discrimination Act — no willful violation The business court did not err by declining to treble plaintiffs $390,000 jury award under the Retaliatory Employment Discrimination Act (REDA). There was competent evidence to support the business court’s determination that defendant did not willfully violate REDA. 5. Attorney Fees — Wage andHour Act — Retaliatory Employment Discrimination Act — apportionment—common nucleus of facts The business court’s award of attorneys’ fees in a Wage and Hour Act (WHA) and Retaliatory Employment Discrimination Act (REDA) case was reversed and remanded to the trial court for further findings of fact and conclusions of law regarding whether plaintiff’s claims arose from a common nucleus of operative fact and, thus, whether he was entitled to all of his attorneys’ fees. 6. Employer and Employee — Wage and Hour Act — election of remedies The trial court erred in its summary judgment order in a Wage and Horn- Act (WHA) case by foreclosing plaintiff’s right to elect between money damages or rescission of the patent assignments. The case was remanded to the trial court with instructions that plaintiff is entitled to elect between his WHA [damages] award or rescission of his patent assignments. 7. Appeal and Error — issue not reached Plaintiff’s final argument in a Wage and Hour Act (WHA) case was not reached because the Court of Appeals remanded the case on the question of election of remedies between rescission and damages. Appeal by Defendants from order entered 27 June 2012 and judgment entered 14 May 2012 by Judge James L. Gale in Wake County Superior Court. Appeal by Plaintiff from order entered 27 June 2012, judgment entered 14 May 2012, and memorandum opinion and order entered 4 January 2012 by Judge James L. Gale in Wake County Superior Court. Heard in the Court of Appeals 21 May 2013. Young Moore and Henderson P.A., by Walter E. Brock, Jr., and Andrew P. Flynt, for Plaintiff. Kilpatrick Townsend & Stockton LLP, by Adam H. Chames and John M. Moye; and Womble Carlyle Sandridge & Rice, by Burley B. Mitchell, Jr., for Defendants. STEPHENS, Judge. Procedural History and Factual Background This case concerns a dispute regarding compensation and ownership rights between Plaintiff Robert Paul Morris (“Morris”) and his employer, Scenera Research, LLC (“Scenera”), for inventions developed by Morris during his employment with Scenera. On 25 September 2009, Morris filed a complaint against Scenera and its chief executive officer, Ryan C. Fry (“R. Fry”) — collectively, “Defendants” — in Wake County Superior Court, alleging violations of the North Carolina Wage and Hour Act (“WHA”) and the Retaliatory Employment Discrimination Act (“REDA”) as well as claims for fraud, unjust enrichment, and breach of contract. R. Fry is the son of Stan Fry (“S. Fry”), who founded Scenera under the name “IPAC, LLC.” On 6 October 2009, Defendants filed notice of removal to the United States District Court for the Eastern District of North Carolina. Sixteen months later, on 16 February 2011, the District Court remanded the case for lack of subject matter jurisdiction to Wake County Superior Court, where it was designated a complex business case and assigned to the Honorable James L. Gale of the North Carolina Business Court (“the business court”). Defendants filed their second amended answer and counterclaims on 31 March 2011, denying Morris’s material allegations and, inter alia, seeking declaratory judgments that Morris: (1) was not entitled to rescind any patent ownership assignment he had already made to Scenera, (2) was obligated to assign ownership of unassigned inventions to Scenera, and (3) had resigned his employment and was not entitled to further bonus payments. Scenera also asserted claims that Morris breached his fiduciary duties and breached his obligation to continue assigning patents to Scenera. On 24 October 2011, Morris moved for partial summary judgment, and Scenera moved for summary judgment. Morris sought to dismiss certain of Scenera’s counterclaims and defenses, and Scenera sought to have the business court declare that Morris was “hired to invent” and, thus, that Scenera owned the rights to the inventions Morris had developed while working there. Scenera also sought to dismiss Morris’s claims of fraud, unjust enrichment, and retaliatory discrimination. The business court addressed those motions on 4 January 2012 and described the background facts as follows: Morris was aformer [International Business Machines Corporation] employee with substantial training in software. He later was employed by Flashpoint Technologies, a company founded by S. Fry. S. Fry had also formed a company... known as IPAC. IPAC later became known as Scenera. While employed by Flashpoint, Morris and IPAC entered a [c]onfidentiality [agreement which included mutual non-disclosure obligations and pursuant to which any confidential information remained the property of the disclosing party. . . . Morris was not at that time an IPAC employee[,] but contracted with IPAC. S. Fry hired Morris in 2004 as Scenera’s first employee. Morris had a series of discussions with S. Fry preceding this employment, the extent, nature, and significance of which are disputed [as to Morris’s ownership rights over the inventions he developed at Scenera]. Morris testified that he expressed an interest in inventing but was neither obligated to nor expected to invent as a part of the regular employment duties he would undertake for Scenera, and that his base salary was for the substantial duties other than inventing for which he was responsible. Morris and Scenera did not sign a written employment agreement. Morris contends that the [pjarties understood that the ownership provisions of the [c]onfidential[ity] [agreement that Morris signed while employed by Flashpoint continued. Scenera contends that there was no such agreement and that once Morris was hired to invent for Scenera, he had no ownership rights in inventions made during the course of that employment. ... It is undisputed that during certain times of Morris’s employment, in addition to his base salary, Morris was entitled to receive up to $10,000.00 for each of his inventions on which Scenera pursued patents, with $5,000.00 being earned when a patent application was submitted and $5,000.00 being earned when a patent issued____ Morris proved to be a prolific inventor. By July 2009 when Morris’s employment with Scenera ended, Morris contends that the unpaid amount that had accrued under his bonus compensation plan was $210,000.00. . . . While Morris concedes that he voluntarily suspended bonus payments beginning at the end of 2007 as Scenera undertook to formulate an alternative compensation program, he contends that the bonus program was not cancelled, and that he continued to make patent assignments during 2008 only because he knew he was entitled to compensation in addition to his base salary. Morris contends that R. Fry promised . . . the offered alternative compensation would be tied to Scenera’s profitability[,] more favorably reflect Morris’s contribution to that profitability, and better reflect Morris’s risk and his reward. Morris alternatively claims that even if the bonus program had been terminated at year-end 2007, R. Fry in July 2008 promised that the bonus system would be re[-]implemented for Morris if Scenera did not meet certain conditions ..., such as providing Morris with an individual written employment contract and an appropriate incentive compensation program, and that these conditions were then not met. Scenera contests Morris’s recollection of these conversations, and further claims that if R. Fry made promises, he kept them by proposing a[n] employment contract and an employee incentive program. Ultimately, no agreement on any alternative compensation plan was ever reached and no written employment agreement was executed. Morris claims that these proposals did not satisfy promises R. Fry made and that other documents prove that R. Fry never had any intention of keeping his promises. Scenera claims R. Fry had never made promises specific enough to be enforceable [,] but rather had only agreed to make a proposal for further negotiation, which he did, and that essentially Morris seeks to enforce “an agreement to agree.” Morris testified to his frustration with the lack of progress toward the promised incentive plan and written employment agreement and that he began in 2008 to press R. Fry for progress. He continued to press in 2009, ultimately hiring a lawyer who threatened on Morris’s behalf to bring a wage claim under [the WHA] . . . for the $210,000.00 bonus compensation that had accrued and which Scenera refused to pay after Morris’s demand. The parties disagree both on the facts leading up to the end of Morris’s employment in July [of] 2009 and whether that end should be treated as a resignation or a termination. Morris claims that he was terminated in retaliation for his threat to bring a wage claim, which is a protected activity, such that he is entitled to recover under [REDA], Scenera contends that Morris had made clear his intention to leave the company and his attorney had indicated that the only option was to negotiate a severance agreement, so that, as a result, Morris had [“]effectively resigned[”j and Scenera accepted [this] resignation. Scenera alternatively contends that even if it had terminated [Morris], the termination was not retaliatory because [Scenera] had an independent right to terminate him because he refused to make any further invention assignments to Scenera while being legally obligated to do so. Scenera further claims that Morris, during the course of his employment, breached fiduciary duties owed to Scenera.... In that context, the business court denied Morris’s motion for partial summary judgment in its entirety. It granted Scenera’s motion on the question of whether Morris was “hired to invent” and on Morris’s fraudulent inducement, and unjust enrichment claims. The business court otherwise denied Scenera’s motion. The remaining claims — Morris’s breach of contract, WHA, and REDA claims plus Scenera’s patent ownership and breach of assignment counterclaims — were tried before a jury beginning 30 January 2012. In its judgment entered after the trial, the business court described the evidence as follows: ... Morris was employed by Scenera and ... his employment ended on July 10, 2009. . . . [B]oth Scenera and Defendant [R. Fry] were Morris’s employers under the [WHA] and [REDA]. ... [0]n the date Morris’s employment ended[,] July 10, 2009, Scenera had 150 pending patent applications on inventions for which Morris was the inventor. . . . Morris, by the time of trial, had assigned executed written agreements on all but a few of these inventions. [A]ny . . . bonus which [was] owed qualifie[d] as “wages” under the [WHA], . . . The evidence for both parties indicated that Morris and Scenera reached [an] agreement on some changes to be implemented as of January 1, 2008, in consideration of Defendants potentially implementing a company-wide incentive compensation plan---- Morris contended that he [was] entitled to recover $210,000 for application and issuance bonuses which [accrued on 10 July 2009].... . •.. [Negotiations over disputed bonuses were undertaken in 2009 when Scenera requested that Morris execute a written employment agreement. [T]hroughout these negotiations, Morris consistently made clear his belief that he was entitled to bonuses that had continued to accrue after January 1, 2008. . . . [L]ate in the negotiations for an employment agreement^ however,] Morris also demanded that he [should] be paid future patent issuance bonuses irrespective of whether he remained employed. . . . [D]uring [those] negotiations [,] Scenera considered payment of [the] $210,000 without admitting that this sum was being paid as earned wages, but. . . refused to consider paying patent issuance bonuses on patents issued after Morris’s employment ended. Rather, Defendants’ evidence was that Scenera had a consistent policy [, which] applied to all employees, including Morris, that payment of issuance bonuses was conditioned on continued employment.... As related to the REDA claim, Morris presented evidence that he had during the term of his employment asserted claims that he was entitled to issuance bonuses irrespective of his continued employment. The evidence also established that he refused to assign further inventions or sign further patent applications until the wage dispute was resolved. [W]hen the parties could not agree on ... terms ... for a written employment agreement, Morris advised Scenera that an employment agreement appeared out of reach and that he would only consider a severance agreement whereby [he] would continue to support the patent portfolio as an independent contractor. Morris [also] suggested that he was entitled to challenge Scenera’s ownership of patents or applications based on [his] inventions. Ultimately, Morris’s employment ended and no independent contractor agreement was ever [established],... Morris introduced evidence that Scenera has enjoyed a [90%] average rate of patents issued from patent applications, and that the success rate on applications for Morris’s inventions was somewhat higher.... Morris’s [WHA] claim was for the wages he contended were due, along with statutory penalties. His REDA claim was to recover damages from his retaliatory termination. Defendants denied any liability under [both]. ... Scenera... counterclaimed for damages because of Morris’s failure to support Scenera’s patent rights. Defendants . . . submitted expert evidence to prove their damages. Defendants further contended that Morris refused to seek alternative employment after July 10,2009, such that any recovery for retaliatory discharge must be reduced for failure to mitigate damages. At the close of all the evidence, the business court granted Defendants’ motion for directed verdict on the issue of patent ownership and . denied Defendants’ motion for directed verdict as to Morris’s WHA and REDA claims. The jury reached a unanimous verdict on 15 February 2012, awarding Morris: (1) $210,000 in patent bonuses for patent applications filed or patents issued between 1 Januaiy 2008 and 17 June 2009; (2) $675,000 in patent bonuses for patent applications pending as of 17 June 2009; and (3) $390,000 under REDA after a reduction for Morris’s failure to mitigate damages. Following that verdict, Morris requested judgment for the amount awarded plus supplemental relief, including liquidated damages and attorneys’ fees under the WHA as well as treble damages and attorneys’ fees under REDA. On 14 May 2012, the business court issued its judgment on the jury award and Morris’s motion for supplemental relief, declining to treble Morris’s $390,000 in damages under REDA, but granting $450,000 for all attorneys’ fees and $210,000 in liquidated damages under the WHA because “Defendants [did not] demonstrate[] good faith or reasonable grounds for a belief that their failure to pay application and issuance bonuses accruing during the period of January 1, 2008 through July 10, 2009 was not a violation of the [WHA].” The court also declared that: (1) “Scenera is the owner of each of the inventions, patent applications, and patents identified in . . . Morris’s [c]omplaint [because o]wnership of those inventions vested in Scenera at the time of invention”; (2) Morris shall assign any unassigned patent applications to Scenera; and (3) Scenera will not recover any damages for its patent ownership and breach of assignment counterclaims. On 30 May 2012, Defendants moved for judgment notwithstanding the verdict (“JNOV”) or, in the alternative, for a new trial. The business court denied that motion on 27 June 2012. Both parties appealed. Discussion . I. Defendants’Appeal Defendants make three arguments on appeal. First, they contend that the business court erred in denying their motions for directed verdict on Plaintiffs WHA and REDA claims and for JNOV. Second, Defendants contend the business court erred by awarding $210,000 in liquidated damages under the WHA. Third, Defendants assert that, if the business court’s judgment is reversed, its grant of attorneys’ fees should be vacated. We find no error. A. Directed Verdict and JNOV “The standard of review of directed verdict [or JNOV] is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991) (citations omitted); Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 498-99, 524 S.E.2d 591, 595 (2000). “[A n]on-movant’s evidence which raises a mere possibility or conjecture cannot defeat a motion for directed verdict. If, however, the non-movant shows more than a scintilla of evidence, the court must deny the motion.” McFetters v. McFetters, 98 N.C. App. 187, 191, 390 S.E.2d 348, 350, disc. review denied, 327 N.C. 140, 394 S.E.2d 177 (1990) (citation omitted); see also Norman Owen Trucking, Inc. v. Morkoski, 131 N.C. App. 168, 172, 506 S.E.2d 267, 270 (1998) (“The [JNOV] motion should be denied if there is more than a scintilla of evidence supporting each element of the non-movant’s claim.”). i. Evidence that Morris Earned the Issuance Bonuses Under the WHA In support of their argument that the business court should have granted their motions for directed verdict and JNOV, Defendants assert that Morris presented “no evidence” that he “earned [the $675,000 in issuance] bqnuses under Scenera’s bonus policy____” We disagree. “[T]he [WHA] requires an employer to ... pay those w

Cyrus D. Lipsitt vs. Joseph J. Plaud & another. Worcester. April 2, 2013. August 12, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Massachusetts Wage Act. Common Law. Contract, Employment, Performance and breach. Damages, Quantum meruit. Practice, Civil, Statute of limitations, Motion to dismiss, Motion to amend. Limitations, Statute of. Attorney General. Corporation, Corporate disregard. This court concluded that G. L. c. 149, §§ 148 and 150, were not intended by the Legislature to be the exlusive remedy for the recovery of unpaid wages under Massachusetts law and, therefore, did not preempt common-law breach of contract and quasi-contract claims. [244-252] In a civil action in which the plaintiff asserted common-law breach of contract and quasi-contract claims for unpaid wages against a defendant corporation and its president, the Superior Court judge erred in dismissing the claims against the individual defendant on the ground that the plaintiff failed to plead sufficient facts to pierce the corporate veil and hold the individual defendant personally liable for the corporation’s liabilities, where the factual allegations in the complaint were sufficient to survive a motion to dismiss [252-254]; further, the judge erred in denying the motion to amend the complaint to plead such facts with more specificity [254-255]. Civil action commenced in the Superior Court Department on September 20, 2010. A motion to dismiss was heard by Dennis J. Curran, J., and a motion to amend the complaint was considered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Mark I. Zarrow for the plaintiff. Brandon H. Moss for the defendants. Franklin D. Roosevelt American Heritage Center, Inc. (Heritage Center). Cordy, J. In this case, we are asked to decide whether G. L. c. 149, §§ 148 and 150 (Wage Act), are intended to be the exclusive remedy for the recovery of unpaid wages under Massachusetts law, preempting common-law breach of contract and related quasi-contract claims. We conclude that they are not. Cyrus D. Lipsitt filed suit against the defendants, the Franklin D. Roosevelt American Heritage Center, Inc. (Heritage Center), and its president, Joseph J. Plaud, for failing to pay approximately $117,500 in compensation he claimed was owed to him under an employment contract. The complaint asserted claims for breach of contract, quantum meruit, and violations of the Wage Act, among others. A judge in the Superior Court dismissed all but Lipsitt’s claim under the Wage Act, reasoning that the Wage Act is the exclusive remedy for the recovery of unpaid wages, thereby preempting his common-law claims. Further, because Wage Act claims are subject to a three-year statute of limitations, G. L. c. 149, § 150, the judge ruled that Lipsitt’s potential recovery would be limited to wages earned but unpaid during the three-year period preceding the filing of the suit. After voluntarily dismissing the remaining portion of his Wage Act claim with prejudice, Lipsitt appealed from the earlier dismissal, and we transferred his appeal to this court on our own motion. We reverse. 1. Background. We review the allowance of a motion to dismiss de novo, accepting as true all factual allegations in the complaint and favorable inferences drawn therefrom. Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011), and cases cited. We may also consider exhibits attached to the complaint and items appearing in the record. Melia v. Zenhire, Inc., 462 Mass. 164, 165-166 (2012), citing Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). Plaud founded the Heritage Center in 2004 for the purpose of establishing a museum to showcase his collection of memorabilia focused on President Franklin D. Roosevelt. Just prior to the Heritage Center’s opening, Plaud offered Lipsitt the position of museum director, and the parties agreed that Lipsitt would be paid $2,000 per month for June and July, 2004, after which his salary would increase to $4,167 per month. Payments were to be made on the 15th and 30th of each month. The parties memorialized their agreement in October, 2004. The Heritage Center experienced financial difficulties from its inception. Lipsitt never received the full salary due to him under the contract, but continued to work for the Heritage Center based on Plaud’s continuing representations to Lipsitt that the arrearages would be paid in full once debts owed to Plaud by third parties were paid. Most of the salary Lipsitt did in fact receive was paid from Plaud’s personal checking account. Based on his desire to see the Heritage Center succeed and his belief that Plaud would honor his repeated promises to pay the back salary in full, Lipsitt continued to work for the Heritage Center through the summer of 2007. In July, 2007, the city of Worcester, which owned the building where the Heritage Center was located, decided not to renew its lease with the Center and the Center closed its doors. Initially, Plaud intended to reopen the Center at a new location in Chicopee in late 2007, and Lipsitt continued to work for the Center performing tasks relative to the intended relocation. Ultimately, Plaud abandoned the relocation plan, and the Center never reopened. On September 17, 2008, Lipsitt filed a complaint with the Attorney General for nonpayment of wages pursuant to G. L. c. 149, § 150. On April 22, 2010, after an investigation, the Attorney General settled various Wage Act complaints with the Heritage Center and, on the same day, issued Lipsitt a right-to-sue letter. Lipsitt filed this action in Superior Court on September 20, 2010, seeking damages of approximately $117,500, a figure that apparently represents the roughly $127,000 he claims he is owed, minus the $9,000 in restitution he received from the Heritage Center pursuant to the terms of its settlement with the Attorney General. The complaint asserted claims for breach of contract, quantum meruit, fraud and deceit, violations of the Wage Act, and violations of G. L. c. 93A, § 11. The defendants moved to dismiss the complaint in its entirety pursuant to Mass R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), arguing that the Wage Act creates a comprehensive statutory remedy for the recovery of unpaid wages, thereby precluding Lipsitt’s common-law claims for breach of contract, quantum meruit, and fraud and deceit. As to the Wage Act claim, the defendants argued it was time barred because more than three years had elapsed since the termination of Lipsitt’s employment with the Heritage Center, which they contend occurred on July 31, 2007. Further, the defendants argued that G. L. c. 93A does not apply to employment relationships. Finally, Plaud argued that Lipsitt had failed to allege sufficient facts to pierce the corporate veil, which is a prerequisite to imposing individual liability on Plaud for the common-law claims. A judge in the Superior Court granted the motion to dismiss as to the common-law claims and the G. L. c. 93A claim, but not as to any portion of the Wage Act claim that alleged nonpayment of wages within the three-year period preceding the filing of the complaint. Following the dismissal of the majority of his claims, Lipsitt moved to amend his complaint to plead sufficient facts to pierce the corporate veil and hold Plaud individually liable. The judge denied the motion principally on the basis that the amendment was futile where Lipsitt’s common-law claims had aheady been dismissed as preempted. Subsequent depositions in the case cast doubt on the viability of Lipsitt’s claim that he was employed by the Heritage Center (and thus owed salary) as of September 17, 2007 (three years prior to the commencement of the action), and Lipsitt moved to voluntarily dismiss the remaining Wage Act claim with prejudice so that he could appeal the dismissal of his common-law claims. Given the much longer six-year statute of limitations for contract claims, G. L. c. 260, § 2, and the fact that the majority of Lipsitt’s damages in the form of unpaid salary accrued between six and three years prior to the commencement of the Superior Court action, the survival of the contract claim was vital to any meaningful recovery. Lipsitt appeals from the dismissal of his contract and quantum meruit claims, and from the dismissal of Plaud as a defendant in his individual capacity. 2. Discussion, a. Dismissal of common-law claims. The Wage Act requires “[ejvery person having employees in his service” to pay “each such employee the wages earned” within a fixed period after the end of each pay period. G. L. c. 149, § 148. While acknowledging that there is “scant precedent” regarding whether the Wage Act preempts common-law claims for the recovery of unpaid wages, the motion judge nonetheless con-eluded that “[i]n enacting the Wage Act, the legislature created a comprehensive vehicle for recovering unpaid wages” and, accordingly, intended to preempt Lipsitt’s common-law claims. We disagree. “It is well established that ‘an existing common law remedy is not to be taken away by statute unless by direct enactment or necessary implication.’ ” Eyssi v. Lawrence, 416 Mass. 194, 199-200 (1993), quoting Ferriter v. Daniel O’Connell’s Sons, 381 Mass. 507, 521 (1980). Where the statute does not contain any express language concerning the availability of common-law remedies, we consider the possibility of implied preemption. Elyssi v. Lawrence, supra. This court has “long held that a statutory repeal of the common law will not be lightly inferred; the Legislature’s ‘intent must be manifest.’ ” Passatempo v. McMenimen, 461 Mass. 279, 290 (2012), quoting Comey v. Hill, 387 Mass. 11, 20 (1982). “The purpose of the Wage Act is ‘to prevent the unreasonable detention of wages.’ ” Melia v. Zenhire, Inc., 462 Mass. 164, 170 (2012), quoting Boston Police Patrolmen’s Ass’n v. Boston, 435 Mass. 718, 720 (2002). See American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 147 (1959). The Wage Act “was intended and designed to protect wage earners from the long-term detention of wages by unscrupulous employers as well as protect society from irresponsible employees who receive and spend lump sum wages.” Melia v. Zenhire, Inc., supra, quoting Cumpata v. Blue Cross Blue Shield of Mass., Inc., 113 F. Supp. 2d 164, 167 (D. Mass. 2000). When the Wage Act was first enacted in 1886, its application “was initially limited to employees of a ‘manufacturing, mining or quarrying, mercantile, railroad, street railway, telegraph, telephone and municipal corporation and every incorporated express company and water company.’ ” Melia v. Zenhire, Inc., supra at 171 & n.6, quoting St. 1886 c. 87, § 1. Since that time, the “Legislature has broadened the scope of employees covered, the type of eligible compensation, and the remedies available to employees whose rights have been violated” (footnotes omitted). Melia v. Zenhire, Inc., supra at 171. The private right of action that is at issue here, however, did not exist until the Legislature amended the Wage Act in 1993. Statute 1993, c. 110, § 182, codified at G. L. c. 149, § 150, “dramatically increased” the remedies available to employees, by authorizing a private right of action, including provisions for treble damages and attorney’s fees and costs. Melia v. Zenhire, Inc., supra at 171 n.8. The Legislature later made treble damages mandatory by St. 2008, c. 80, § 5, superseding our decision in Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 709 (2005). Thus, despite the arguably “comprehensive” nature of the Wage Act in its current form, the earliest the Legislature collectively could have formed or manifested an intent to preempt common-law remedies was on the creation of the private right of action by the 1993 amendments. Unfortunately, the legislative record of the 1993 amendments sheds little light on the question. Instead, it demonstrates that the driving force behind the 1993 amendments was a desire to transfer enforcement of the Wage Act from the Department of Labor and Industries (department) to the Attorney General, amid criticism that the department was not aggressively enforcing the Wage Act for political reasons. See St. 1993, c. 110, § 269 (transferring enforcement of Wage Act to office of Attorney General). It is inferable that the Legislature contemporaneously created the private right of action as a means further to ensure rigorous enforcement of the Wage Act, but this underlying purpose does not by itself suggest an intent to abrogate the common law. Essentially, where there is no indication of legislative intent to preempt the common law, the question is one of practicality. We must decide whether the common-law remedy is preempted by “necessary implication.” Eyssi v. Lawrence, 416 Mass. 194, 199-200 (1993), quoting Ferriter v. Daniel O’Connell’s Sons, 381 Mass. 507, 521 (1980). Virtually all the cases on which the defendants (and the judge below) rely are distinguishable because they find an implied preclusion of common-law actions where “the legislature creates a new right or duty that ‘is wholly the creature of statute [and] does not exist at common law.’ ” Mansfield vs. Pitney Bowes, Inc., U.S. Dist. Ct., No. 12-1031-DJC, slip op. at 6 (D. Mass. Mar. 12, 2013) (Mansfield), quoting School Comm. of Boston v. Reilly, 362 Mass. 334, 338 (1972). In contrast, the right of an employee to sue for breach of contract or on a quasi-contract theory arising from the nonpayment of wages is so long standing and fundamental that it requires no citation. Lipsitt’s claims for breach of contract, or, in the alternative, quantum meruit, do not depend on proving a violation of some statutorily created right. His claims for unpaid wages due him under an employment agreement were cognizable well prior to the creation of the Wage Act’s private right of action in the 1993 amendments. Indeed, for much of the Wage Act’s existence before then, an employee’s principal recourse for the nonpayment of wages would have been to file a contract or quasi-contract action. As previously stated, “statutory repeal of the common law will not be lightly inferred; the Legislature’s ‘intent must be manifest. ’ ” Passatempo v. McMenimen, 461 Mass. 279, 290 (2012). Had the Legislature intended the Wage Act — which was designed to enhance the rights of employees with respect to the payment of wages, see Melia v. Zenhire, Inc., 462 Mass. 164, 171 & n.8 (2012) — to abrogate these long-standing common-law causes of action, “we think it would have done so explicitly.” Eyssi v. Lawrence, 416 Mass. 194, 200 (1993). In Passatempo v. McMenimen, supra, we considered whether a provision of G. L. c. 175, § 181, which grants to buyers of insurance the right of rescission against insurance companies whose officers or agents induced the sale of insurance by fraud, was intended to exclude other “long-standing” common-law remedies against insurance companies and their agents for fraud or misrepresentation. As to the right to bring suit against an agent individually, we reasoned: “Given the Legislature’s expansion of the types of misrepresentation for which agents and employees could be criminally sanctioned, the heightened criminal sanctions it imposed on them, and its approval of expanded civil liability against the companies for which they sold insurance, it seems most unlikely that the Legislature intended to change course by insulating agents from this long-established right of action.” Passatempo v. McMenimen, supra at 289. As to the ability of an insured to seek remedies other than rescission against the companies themselves, we stated: “[T]he Legislature’s desire to enhance deterrence makes it doubtful that the Legislature would have intended to preempt civil remedies other than rescission against insurance companies.” Id. Analogous in purpose to G. L. c. 175, § 181, the Wage Act is clearly intended to deter the nonpayment of wages through the imposition of enhanced penalties and remedies not available at common law. See Melia v. Zenhire, Inc., supra. Where, as is the case with the Wage Act, a statute is designed to enhance certain rights, we will not read it to abrogate common-law actions aimed at perfecting those same rights unless the statute requires such a reading by express language or necessary implication. Eyssi v. Lawrence, supra. The minimal practical impact that the continued existence of a common-law right to recover unpaid wages will have on the enforcement scheme established by the Wage Act further supports our conclusion that the Wage Act does not preempt the common law by necessary implication. On this point, the defendants argue that the continued existence of a common-law cause of action for unpaid wages will frustrate the purposes of the Wage Act’s requirement that an employee report a Wage Act claim to the Attorney General’s office before proceeding in court. We disagree. First, we note that the reporting requirement in G. L. c. 149, § 150, “is intended simply to ensure that the Attorney General receives notice of the alleged violations, so that she may investigate and prosecute such violations at her discretion.” Depianti v. Jan-Pro Franchising Int’l, Inc., 465 Mass. 607, 612 (2013), citing Nahigian v. Leonard, 233 F. Supp. 2d 151, 164 (D. Mass. 2002). “[Ujnlike the filing requirement in [the Massachusetts antidiscrimination statute, G. L. c. 151B], the filing requirement in § 150 triggers no mandatory agency investigation or administrative adjudicatory action” and therefore does not operate “as the necessary first step in a comprehensive remedial scheme. ...” Depianti v. Jan-Pro Franchising Int’l, Inc., supra at 613-614. See G. L. c. 151B, § 5 (filing of complaint with Massachusetts Commission Against Discrimination [MCAD] triggers mandatory “prompt investigation” by that agency, after which, if allegations prove credible, MCAD shall “immediately endeavor to eliminate the unlawful practice complained of . . .by conference, conciliation and persuasion”). Although we will not speculate on every single reason an employee might chose to pursue a common-law contract or quasi-contract claim in lieu of a Wage Act claim, we suspect this will largely occur only in cases such as this one, where an employee’s Wage Act claims are time barred. This is true for the simple reason that it would be foolhardy for an employee to forgo the mandatory award of treble damages and attorney’s fees provided by the Wage Act in the event the employee prevails on such a claim. Some plaintiffs may choose to plead common-law claims in addition to or in the alternative to Wage Act claims, if, for instance, there is some dispute over the applicability of the Wage Act that cannot be resolved at the pleadings stage. See Mansfield, supra at 8 n.5. Moreover, for cases where an employee’s Wage Act claims are time barred, the employee would have little reason to report the claim to the Attorney General’s office in the first place, as he or she would be unable to bring the claim in court. We therefore doubt that our holding today will have any appreciable effect on the reporting of Wage Act claims or the enforcement scheme generally. The fact that, in cases like the present one, an employer whose Wage Act liability for treble damages and attorney’s fees has been extinguished will nonetheless be exposed to simple contract liability for an additional three-year period is consistent with both the public policy objectives underlying the Wage Act and the status of an employment agreement as a contract like any other. In Crocker v. Townsend Oil Co., 464 Mass. 1, 6-7 (2012), we held that an employee whose claim for unpaid overtime pursuant to G. L. c. 151, § 1A, was time barred under that statute’s two-year statute of limitations could nonetheless assert a claim for unpaid wages under the Wage Act, with his recovery limited to uncompensated time worked at the reg

AMY M. HORNE, Plaintiff, v. CUMBERLAND COUNTY HOSPITAL SYSTEM, INC., d/b/a CAPE FEAR VALLEY HEALTH SYSTEM, a/k/a CAPE FEAR VALLEY MEDICAL CENTER, Defendant No. COA12-1276 Filed 2 July 2013 Employer and Employee — termination from employment — failure to state claim — claims properly dismissed The trial court did not err in an action based on plaintiff’s termination from her employment by granting defendant’s motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Plaintiff’s failure to include in her complaint a specific no-discharge-except-for-cause allegation was fatal to her breach of contract claim; plaintiff’s complaint failed to sufficiently allege that her termination violated the public policy of this State and failed to sufficiently allege facts establishing the first and third elements of negligent infliction of emotional distress; and plaintiff’s claim for defamation was barred by the statute of limitations. As the trial court properly dismissed all of plaintiffs substantive claims, she was precluded from recovering punitive damages and her claim for punitive damages was properly dismissed. Appeal by plaintiff from order entered 1 August 2012 by Judge Douglas B. Sasser in Cumberland County Superior Court. Heard in the Court of Appeals 12 March 2013. Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for plaintiff-appellant. K&L Gates LLP, by Amie Flowers Carmack and, Brian C. Fork, for defendant-appellee. DAVIS, Judge. Amy M. Home (“plaintiff’) appeals from the trial court’s order dismissing her complaint against Cumberland County Hospital System, Inc. (“CCHS”) pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. After careful review, we affirm. Factual Background We have summarized the pertinent facts below using plaintiff’s own statements from her complaint, which we treat as true in reviewing the trial court’s order dismissing her complaint under Rule 12(b)(6). See, e.g., Stein v. Asheville City Bd. of Educ., 360 N.C. 321, 325, 626 S.E.2d 263, 266 (2006) (“When reviewing a complaint dismissed under Rule 12(b)(6), we treat a plaintiff’s factual allegations as true.”). Plaintiff began working part time for CCHS in April 2001 as a registered radiologic technologist. In May 2001, she switched to full-time employment in the same position. On 30 December 2010, plaintiff was hired as a CT technologist. In early February 2011, plaintiff attended an employee orientation, where she acknowledged in writing that she had received a copy of CCHS’s employee handbook, which provided certain grievance procedures for employees. On 16 March 2011, an incident occurred during a procedure that resulted in the wrong scan being performed on a patient. Although plaintiff did not perform the scan, a student intern involved with the procedure wrote plaintiff’s initials on the form memorializing the procedure. On 21 March 2011, plaintiff was “written up” by her supervisor as a result of this incident. The write-up cited the policy violation as being a “failure of the employee to perform his/her assigned tasks to include neglect, carelessness in duty, or failure to adequately document work activities.” On 22 March 2011, plaintiff received a second write-up. Plaintiff’s supervisor expressed concerns about “ ‘issues noticed during orientation/probation period’ relating to being a team player, and doing more paperwork than physical work, taking smoke breaks, poor organizational skills regarding workflow and prioritizing work____” Plaintiff was written up a third time on 29 March 2011 for allegedly “walk[ing] out of a procedure ....” A final write-up occurred on 29 March 2011 for “a statement that [plaintiff] allegedly said during the middle of a procedure____” Plaintiff’s employment with CCHS was terminated on 18 April 2011. The documentation evidencing her dismissal referenced “four incidents of scanning exams incorrectly, alleged delay in patient care, scanning the wrong anatomy, alleged complaint on a patient survey, peer reviews of which [plaintiff] knew nothing, and alleged complaints from co-workers.” Plaintiff’s supervisor told her that she was not allowed to contest any of the incidents contained in her personnel file due to the fact that she was in her probationary period at the time. After her termination, plaintiff applied for, and received, unemployment benefits. On 17 April 2012, plaintiff filed a complaint against CCHS, asserting four causes of action: (1) breach of contract; (2) wrongful discharge in violation of public policy; (3) negligent infliction of emotional distress; and (4) defamation. In addition to compensatory damages, plaintiff sought punitive damages, costs, interest, and attorney’s fees. On 15 June 2012, CCHS filed a motion to dismiss plaintiff’s complaint pursuant to Rule 12(b)(6) of North Carolina Rules of Civil Procedure for failure to state a claim upon which relief may be granted. After conducting a hearing, the trial court entered an order on 1 August 2012 granting the motion and dismissing plaintiff’s complaint with prejudice. Plaintiff timely appealed to this Court. Analysis Plaintiff’s sole argument on appeal is that the trial court erred in dismissing her complaint pursuant to Rule 12(b)(6). “When a party files a motion to dismiss pursuant to Rule 12(b)(6), the question for the court is whether the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theoiy, whether properly labeled or not.” Enoch v. Inman, 164 N.C. App. 415, 417, 596 S.E.2d 361, 363 (2004). “A complaint may be dismissed pursuant to Rule 12(b)(6) where (1) the complaint on its face reveals that no law supports a plaintiff’s claim, (2) the complaint on its face reveals the absence of facts sufficient to make a good claim, or (3) the complaint discloses some fact that necessarily defeats a plaintiff’s claim.” Toomer v. Garrett, 155 N.C. App. 462, 468, 574 S.E.2d 76, 83 (2002), appeal dismissed and disc. review denied, 357 N.C. 66, 579 S.E.2d 576 (2003). An appellate court reviews de novo a trial court’s dismissal of an action under Rule 12(b)(6). Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1,4, aff'd per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003). I. Breach of Contract Claim Initially, plaintiff argues that the trial court erred in dismissing her breach of contract claim. Under North Carolina law, unless the employer and employee have entered into a contract specifying a definite term of employment, the employment relationship “is presumed to be terminable at the will of either party without regard to the quality of performance of either party.” Kurtzman v. Applied Analytical Indus., Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997). Plaintiff does not allege that a contract specifying a definite period of employment existed between her and CCHS. Instead, she asserts that certain contractual rights regarding termination and grievance procedures arose out of CCHS’s “Employee Handbook.” CCHS’s failure to follow those procedures in terminating her employment, she argues, constitutes a breach of contract. We disagree. Plaintiff relies entirely on Trought v. Richardson, 78 N.C. App. 758, 338 S.E.2d 617, disc. review denied, 316 N.C. 557, 344 S.E.2d 18 (1986), with regard to her breach of contract claim. In Trought, this Court reversed the trial court’s dismissal of the plaintiff’s wrongful discharge claim, which was premised on the plaintiff’s assertion that her employer’s policy manual had become part of her employment contract. Id. at 762, 338 S.E.2d at 620. The plaintiff in Trought alleged that (1) the defendant’s policy manual provided that employees could be discharged only for cause; (2) when the plaintiff was hired, she was required to sign a statement acknowledging that she had read the policy manual; and (3) she was discharged without cause. Id., 338 S.E.2d at 619-20. As this Court has recognized, Trought is “[t]he only North Carolina case that has upheld a breach of contract claim based on an employee manual....” Guarascio v. New Hanover Health Network, Inc., 163 N.C. App. 160, 164, 592 S.E.2d 612, 614, disc. review denied, 358 N.C. 375, 597 S.E.2d 130 (2004). In Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987), our Supreme Court “limited the rule in Trought to its narrow facts.” Guarascio, 163 N.C. App. at 164, 592 S.E.2d at 614. The plaintiff in Harris - in contrast to the plaintiff in Trought - failed to allege that his employer’s procedure manual expressly represented that an employee could be discharged only for cause. Harris, 319 N.C. at 631, 356 S.E.2d at 360. In the absence of such an allegation, the Supreme Court held that the plaintiff in Harris could not rely on Trought in order to survive the defendant’s motion to dismiss for failure to state a valid claim for breach of contract. Id. at 633, 356 S.E.2d at 360. As we are bound by our Supreme Court’s decision in Harris, we conclude that plaintiff has failed to state a valid claim for breach of contract. Nowhere in plaintiff’s complaint does she allege that CCHS’s employee handbook provided that an employee could be terminated only for cause. Instead, she merely alleges that, “[a]s part of [CCHS’s] employee orientation, [plaintiff] was required to acknowledge in writing the receipt of the Employee Handbook that set forth the grievance procedures that were available to employees of [CCHS]” and that she was likewise “required to acknowledge in writing the receipt of Standards of Performance for Employees.” Thus, as in Harris, plaintiff’s failure to include in her complaint a “specific no-discharge-except-for-cause allegation” is fatal to her claim. Id. at 631, 356 S.E.2d at 360. Accordingly, the trial court properly dismissed plaintiff’s breach of contract claim. II. Wrongful Discharge in Violation of Public Policy Claim The trial court’s dismissal of plaintiff’s claim for wrongful discharge in violation of public policy was also correct. Under the employment-at-will doctrine, employees may be discharged for any reason, for no reason at all, or for an irrational or arbitrary reason. Coman v. Thomas Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 446 (1989). However, an exception to this doctrine is that employers are prohibited from discharging employees for reasons that violate the public policy of our State. Garner v. Rentenbach Constructors Inc., 350 N.C. 567, 571, 515 S.E.2d 438, 441 (1999). Claims for wrongful discharge in violation of public policy have been recognized in circumstances where the employee was terminated: “(1) for refusing to violate the law at the employer[’]s request, (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy.” Ridenhour v. Inter’l Bus. Mach. Corp., 132 N.C. App. 563, 568-69, 512 S.E.2d 774, 778 (citations omitted), disc. review denied, 350 N.C. 595, 537 S.E.2d 481 (1999). With respect to claims for wrongful termination in violation of public policy, this Court has explained that “notice pleading is not sufficient to withstand a motion to dismiss; instead a claim must be pled with specificity.” Gillis v. Montgomery County Sheriff’s Dep’t, 191 N.C. App. 377, 379, 663 S.E.2d 447, 449, appeal dismissed and disc. review denied, 362 N.C. 508, 668 S.E.2d 26 (2008). In order to maintain such a claim, therefore, the plaintiff must allege “specific conduct by a defendant that violated a specific expression of North Carolina public policy . . ..” Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 321-22, 551 S.E.2d 179, 184 (emphasis added), aff’d per curiam, 354 N.C. 568, 557 S.E.2d 528 (2001). Plaintiff contends that her complaint sufficiently alleges that her termination violated the public policy of this State in four ways: (1) CCHS violated her constitutional rights to procedural and substantive due process; (2) CCHS failed to comply with its own internal grievance procedures; (3) CCHS breached the covenant of good faith in the employer-employee relationship; and (4) CCHS violated numerous statutory expressions of public policy. We discuss each of these arguments in turn. i. Due Process It is well established that in order for an employee to be entitled to procedural due process protection, the employee must possess a property interest or right in continued employment with a public employer. Soles v. City of Raleigh Civil Serv. Comm’n, 345 N.C. 443, 446, 480 S.E.2d 685, 687 (1997). Because CCHS is a private employer, plaintiff did not have any constitutional protections. See Teleflex Info. Sys., Inc. v. Arnold, 132 N.C. App. 689, 693-94, 513 S.E.2d 85, 88 (1999) (rejecting plaintiffs arguments that his discharge violated his constitutional rights because such rights were not “implicated in a dispute between an employee and a private employer”). Moreover, this Court has expressly held that an at-will employee, such as plaintiff, even if a government employee, “does not have a constitutionally protected right to continued employment and does not have the benefit of the protections of procedural due process.” Wuchte v. McNeil, 130 N.C. App. 738, 740, 505 S.E.2d 142, 144 (1998). As such, plaintiff cannot rely on procedural due process principles to support her wrongful discharge claim. With regard to her substantive due process claim, plaintiff, in her brief, fails to cite any legal authority in support of her contention on this issue. We, therefore, deem this argument abandoned on appeal pursuant to Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure. ii. Failure to Follow Internal Grievance Policies Plaintiff’s second ground for her wrongful discharge claim is that CCHS violated its own internal policies by preventing plaintiff from using CCHS’s grievance procedures to (1) challenge her termination; or (2) pursue her complaints against her supervisor. Plaintiff, however, failed to identify in her complaint any express public policy violated by a private employer’s failure to comply with its own internal procedures. The failure to include such an allegation warrants dismissal of plaintiff’s claim. See Considine, 145 N.C. App. at 319, 551 S.E.2d at 183 (affirming dismissal of claim for wrongful discharge in violation of public policy where “[p]laintiff’s complaint d[id] not assert that defendant’s . . . conduct violated any public policy that has been established by our state’s statutes or constitution”). Moreover, plaintiff’s assertion that CCHS failed to follow the grievance procedures set out in its policy handbook is not the same as an allegation that she was terminated for a reason that violates the public policy of our State - the essence of a claim for wrongful discharge in violation of public policy. See Garner, 350 N.C. at 572, 515 S.E.2d at 441 (“In order to support a claim for wrongful discharge of an at-will employee [in violation of public policy], the termination itself must be motivated by an unlawful reason or purpose that is against public policy.”). iii. Bad Faith Plaintiffs third basis for her wrongful discharge claim is that CCHS terminated her employment in bad faith. However, our Supreme Court has made clear that North Carolina “d[oes] not recognize a separate claim for wrongful discharge in bad faith.” Amos v. Oakdale Knitting Co., 331 N.C. 348, 360, 416 S.E.2d 166, 173 (1992). Accordingly, this claim was properly dismissed. iv. Statutory Violations Finally, plaintiff makes the blanket assertion that her discharge contravenes “important” public policy statements expressed in North Carolina’s: (1) “unemployment compensation laws”; (2) “labor relations laws”; (3) “ ‘[b]lacklisting’ and ‘[j]ob [references’ laws”; and (4) “the compliance and good business practices laws embodied within the corporate laws ....” However, in making these allegations, plaintiff merely refers generally to various topics addressed in the North Carolina General Statutes without citing any specific statutory provisions. Such oblique references are insufficient to put CCHS “on notice of what public policy [its] termination of plaintiff violated.” Gillis, 191 N.C. App. at 381, 663 S.E.2d at 450; accord Considine, 145 N.C. App. at 321-22, 551 S.E.2d at 184 (affirming dismissal of wrongful discharge claim based on caselaw requiring allegations of “specific conduct by a defendant that violated a specific expression of North Carolina public policy”) (emphasis added). Given the absence of such allegations, we conclude that the trial court properly dismissed plaintiffs claim for wrongful discharge in violation of public policy pursuant to Rule 12(b)(6). III. Negligent Infliction of Emotional Distress Claim Plaintiff also contends that the trial court erred in dismissing her claim for negligent infliction of emotional distress (“NIED”). In order to state a claim for NIED, a plaintiff must allege that (1) the defendant negligently engaged in conduct; (2) it was reasonably foreseeable that such conduct would cause the plaintiff to suffer severe emotional distress; and (3) the conduct did, in fact, cause the plaintiff to suffer severe emotional distress. Johnson v. Ruark Obstetrics & Gynecology Assoc., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). Plaintiffs complaint fails to sufficiently allege facts establishing the first and third elements. The first element of an NIED claim requires allegations that the “defendant failed to exercise due care in the performance of some legal duty owed to [the] plaintiff under the circumstances[.]” Guthrie v. Conroy, 152 N.C. App. 15, 25, 567 S.E.2d 403, 410-11 (2002). Nowhere, however, in her complaint does plaintiff reference any duty owed to her by CCHS. The failure to allege such a duty owed by the defendant to the plaintiff is fatal to an NIED claim on a motion to dismiss. See id., 567 S.E.2d at 411 (“[Plaintiff alleges no duty that [defendant] owed plaintiff .... Absent a breach of duty of care, plaintiff’s suit against [defendant] for NIED cannot be maintained.”). Moreover, plaintiff’s NIED claim is premised on allegations of intentional - rather than negligent - conduct. Beyond the conclusory assertion that “[CCHS] negligently engaged in the aforementioned conduct against [plaintiff],” plaintiffs complaint recounts only intentional conduct on the part of CCHS. Indeed, plaintiff alleges: “[CCHS’s] action[] toward [plaintiff] constitutes extreme and outrageous conduct which was intended to - and did in fact - cause her severe emotional distress.” (Emphasis added.) The complaint elsewhere alleges that plaintiff became a “target” of her supervisor’s “deliberate, vicious, malicious, and outrageous campaign and conspiracy of harassment....” Allegations of intentional conduct, such as these, even when construed liberally on a motion to dismiss, cannot satisfy the negligence element of an NIED claim. See Sheaffer v. County of Chatham, 337 F.Supp.2d 709, 734 (M.D.N.C. 2004) (“Even taking all these allegations as true, they demonstrate intentional acts for which Plaintiff has made other claims; they do not show negligent acts required for a claim of negligent infliction of emotional distress.”). Plaintiff, therefore, has failed to properly plead an element essential to her NIED claim. In addition, in order to plead a valid NIED claim, a plaintiff must allege severe emotional distress, which has been defined as “any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.” Johnson, 327 N.C. at 304, 395 S.E.2d at 97. Here, the complaint merely asserts that CCHS’s actions were the “direct and proximate cause of [plaintiff’s severe emotional distress” - without any factual allegations regarding the type, manner, or degree of severe emotional distress she clai

MACOMB COUNTY v AFSCME COUNCIL 25 LOCALS 411 AND 893 Docket No. 144303. Argued March 5, 2013 (Calendar No. 2). Decided June 12, 2013. AFSCME Council 25 Locals 411 and 893, the International Union UAW Locals 412 and 889, and the Michigan Nurses Association filed unfair labor practice complaints with the Michigan Employment Relations Commission (MERC) against Macomb County, the Macomb County Road Commission, and the 16th Judicial Circuit Court, asserting that by changing the method for calculating pension benefits, respondents had lowered their pension benefits without bargaining on the issue as required by the public employment relations act (PERA), MCL 423.201 et seq. The parties’ .collective-bargaining agreements (CBAs) provided employees with various pension-plan options, including one in which payments terminated at the death of the employee (straight-life pension) and another in which pension benefits continued until the death of both the employee and his or her beneficiary (joint-and-survivor pension). A Macomb County Retirement Ordinance mandated that the optional joint-and-survivor benefit be the actuarial equivalent of the standard straight-life benefit. In 1982, respondents switched from using gender-based actuarial tables to calculate the joint- and-survivor benefit to using a female actuarial table for all retirees. In 2006, respondents adopted a different mortality table for calculating those benefits after determining that use of the female mortality table resulted in higher pension benefits for those employees who chose the joint-and-survivor option. The hearing referee recommended that the MERC dismiss the unfair labor practice charge. She determined that a retirement plan’s actuarial assumptions were mandatory subjects of bargaining under the PERA, but concluded that the duty to bargain had been satisfied because the CBAs covered the issue of retirement benefit calculations and the parties had agreed to have those benefits calculated as provided in the retirement ordinance. The referee determined that although the term “actuarially equivalent” in the ordinance was a matter of contract interpretation, the issue should be resolved through the grievance arbitration procedures, and did not constitute an unfair labor practice. The charging parties filed exceptions to the hearing referee’s proposed decision and the MERC rejected the recommendation, concluding that the actuarial assumptions at issue were never memorialized in the retirement ordinance or any of the CBAs referring to the ordinance. The MERC reasoned that although the ordinance did not define the phrase “actuarial equivalent,” the parties had tacitly agreed to continue the use of the female actuarial table and that respondent’s change in the table used violated the duty to bargain. In a split opinion, the Court of Appeals, Fitzgerald and Shapiro, JJ., (Markey, E J., dissenting), affirmed the MERC’s decision, 294 Mich App 149 (2011), concluding that actuarial assumptions were mandatory subjects of bargaining, that the term actuarial equivalence did not unambiguously mean equal in value and that the parties’ past practice of using the female actuarial table constituted a tacit agreement to continue using it absent modification by collective bargaining. The Supreme Court granted respondents’ application for leave to appeal. 491 Mich 915 (2012). In Em opinion by Chief Justice Young, joined by Justices Markman, Kelly, and Zahra, the Supreme Court held-. Disputes over the terms or conditions of employment that are covered by a CBA are subject to arbitration through the grievance process. When the CBA grants the retirement commission discretion to use actuarial tables to establish pension benefits, the commission’s decision to alter a long-standing method used to calculate those benefits, by itself, does not constitute the clear and unmistakable evidence necessary to overcome the CBA’s coverage and the change in calculation method does not create a new term or condition of employment that would trigger the need to bargain. Instead, the remedy for this dispute lies in the grievance and arbitration system that the parties chose to adopt. 1. MCL 423.215(1) requires a public employer to engage in collective bargaining with its employees with respect to wages, hours, and other terms and conditions of employment; the calculation of retirement benefits is a mandatory subject of collective bargaining. While the parties do not need to reach sm agreement on a subject of mandatory collective bargaining, neither party may take unilateral action on the subject absent an impasse in the negotiation. When the parties reach a negotiated agreement for a provision in the CBA that fixes the parties’ rights, further mandatory bargaining is foreclosed because the matter is covered by the agreement and because the parties must be able to rely on their agreements. In determining whether the MERC may resolve an unfair labor practice claim involving a breach of contract, it initially must determine whether the subject of the claim is covered by the contract. If a CBA covers the term or condition in dispute, then the details and enforceability of the provision are left to arbitration through the grievance process that the parties agreed to and memorialized in the CBA. As a result, when the parties have agreed to a separate grievance or arbitration process, the MERC’s review of a CBA in the context of a refusal-to-bargain claim is limited to determining whether the agreement covers the subject of the claim. In this case, UAW 412, Units 39, 46, 49, 55, and 75, UAW Local 889, AFSCME Local 411, and the Michigan Nursing Association’s CBAs incorporate the terms of the retirement ordinance in the definition of retirement benefits. As a result, those charging parties’ claims challenging the change in the long-standing method used to calculate pension benefits are covered by the CBAs and the grievance procedure is the appropriate avenue to determine the charging parties’ rights under their respective CBAs. In addition, the Macomb County Road Commission and AFSCME Local 893 CBA implicitly incorporated the retirement ordinance to the extent that the ordinance governs optional joint-and-survivor benefits and the grievance procedure is the appropriate forum in which to challenge the calculation of those pension benefits as well. 2. A charging party may pursue an unfair labor practice complaint regarding the changing of a term or condition of employment even when a CBA controls, but only when the new term or condition amounts to an amendment of the CBA. Where a party claims that an employer unilaterally changed a term or condition of employment that is covered by unambiguous language in the CBA, that party must present clear and unmistakable evidence establishing the parties’ affirmative intent to revise the CBA and establish new terms or conditions of employment; doubt about whether a subject matter is covered should be resolved in favor of having the parties arbitrate the dispute, not the MERC. The charging party must show that the parties had a meeting of the minds with regard to the new terms or conditions such that there was an agreement to modify the contract. An affirmative intent to revise the terms of the CBA must be shown; a past practice must be so widely acknowledged that it creates an amendment to the contract. In this case, the retirement ordinance expressly provides the retirement commission with discretion to adopt actuarial calculations that apply to the retirement system. The commission’s decision to alter a long-standing method used to calculate pension benefits, by itself, does not constitute the clear and unmistakable evidence necessary to overcome the CBA’s coverage and the change in calculation method does not create a new term or condition of employment that would trigger the need to bargain. There was no evidence of a mutual commitment that the retirement commission would continue using the female actuarial table. In addition, the description in the CBA of the current actuarial table does not indicate an intent to limit the retirement commission’s discretion to adopt a different table in the future and does not create an ambiguity in their discretion to make such changes. 3. Doubt about whether a subject matter is covered by the CBA is resolved in favor of having the parties arbitrate the dispute. The arbitrator, not the MERC, is best equipped to decide whether a past practice has matured into a new term or condition of employment for purposes of a CBA. In this case, the Court of Appeals erred by affirming the MERC decision that the respondents violated the terms of the CBAs when they changed the actuarial table used to calculate pension benefits. The retirement ordinance grants the retirement commission discretion to adopt actuarial calculations that apply to the retirement system. When calculating pension benefits, actuarial equivalence is a term of art that unambiguously means a benefit of equal value. Because the ordinance requires that the pension benefits be actuarially equivalent, the commission properly altered the long-standing method used to calculate the optional joint-and-survivor benefit to ensure that they were equal in value to those received for straight-life benefits. Reversed and remanded to the MERC for dismissal of the charging parties’ unfair labor practice claims. Justice McCormack, joined by Justice Cavanagh, dissenting, would have affirmed the Court of Appeals’ decision and concluded that the parties’ 24-year intentional practice of using a very specific formula for achieving actuarial equivalence amended the contract and required bargaining anew before a unilateral change could be made. Although actuarial equivalence is an unambiguous term of art, the retirement commission knew that the 100% female/0% male mortality table would not achieve actuarial equivalence. On the suggestion of the actuarial firm, the retirement commission amended the retirement ordinance to indicate a specific interest rate and data set that referred to the 100% female/0% male mortality table. This deliberate choice and longstanding past practice thereby modified the unambiguous CBA language. Justice Viviano took no part in the decision of this case because he was the Chief Judge of the 16th Judicial Circuit Court before his appointment to this Court. 1. Labor Relations — Collective Bargaining — New Terms or Conditions of . Employment. In determining whether the Michigan Employment Relations Commission (MERC) may resolve an unfair labor practice ULP claim involving a breach of contract, it initially must determine whether the subject of the claim is covered by the contract; where a party claims that an employer unilaterally changed a term or condition of employment that is covered by unambiguous language in the collective bargaining agreement (CBA), that party must present clear and unmistakable evidence establishing the parties’ affirmative intent to revise the CBA and establish new terms or conditions of employment; doubt about whether a subject matter is covered should be resolved in favor of having the parties arbitrate the dispute, not the MERC. 2. Labor Relations — Collective Bargaining — Past Practices — Amendments of Contracts. When a collective-bargaining agreement (CBA) covers the subject matter of an unfair labor practice dispute and grants the retirement commission discretion to alter what would otherwise be a mandatory subject of collective bargaining, the fact that the commission decided to alter a long-standing practice, by itself, does not constitute the clear and unmistakable evidence necessary to overcome the CBA’s coverage of the matter and to create a new term or condition of employment that would trigger the need to bargain. 3. Labor Relations — Collective Bargaining Agreements — Pension Plan Options — Actuarially Equivalent — Words and Phrases. When calculating pension benefits under different plan options, a requirement that the plans be “actuarially equivalent” unambiguously means that the benefit plans must be of equal value. McConaghy & Nyovich, LLC (by Timothy K. McCo-naghy), for Macomb County, Macomb County Road Commission, and the 16th Judicial Circuit Court. Miller Cohen PLC (by Bruce A. Miller, Richard G. Mack, and Ada Verloren) and Ava Barbour, for AFSCME Council 25 Locals 411 and 893 and International Union UAW Locals 412 and 889. Anita Szczepanski for Michigan Nurses Association. Amici Curiae: Plunkett Cooney (by Mary Massaron Ross) for the Michigan Municipal League, Michigan Township Association, Michigan Association of Counties and the State Bar Public Corporation Law Section. Young, C.J. The public employment relations act (PERA) requires public employers to bargain with their employees’ designated representatives concerning the “terms and conditions of employment,” including the calculation of retirement benefits. Failure to do so constitutes an unfair labor practice. The unfair labor practice complaints at issue in this case arise out of the Macomb County Retirement Commission’s decision to change the actuarial table used to calculate joint and survivor retirement benefits for employees retiring after July 1, 2007. We hold that the respondents did not commit an unfair labor practice when they refused to bargain with the charging parties over this decision and that the remedy for this dispute lies in the grievance and arbitration system these parties have created. If a collective bargaining agreement covers the term or condition of employment in dispute, “the details and enforceability of the provision are left to arbitration.” The unfair labor practice complaints in this case concern subject matters covered by the collective bargaining agreements. Thus, the grievance process contemplated in the collective bargaining agreements is the appropriate avenue to challenge respondents’ actions. The collective bargaining agreements grant the retirement commission discretion to establish actuarial tables to calculate joint and survivor benefits. The retirement commission’s 24-year practice of using the same actuarial table to calculate those benefits does not, on its own, constitute the clear and unmistakable evidence necessary to overcome the collective bargaining agreements’ coverage of the matter and create a new term or condition of employment. As a result, none of the unfair labor practice charges can be sustained. We reverse the decision of the Court of Appeals and remand this case to the Michigan Employment Relations Commission for dismissal of the unfair labor practice complaints. I. FACTS AND PROCEDURAL HISTORY The Macomb County Board of Commissioners enacted the retirement ordinance and established the Macomb County Employees Retirement System to “provid[e] pension and retirement benefits for the employees of the County of Macomb ... .” The ordinance vests the seven-member Macomb County Retirement Commission with “the general administration, management and responsibility for the proper operation of the Retirement System, and for construing and making effective the provisions of [the] Ordinance.” The retirement ordinance grants a retiring county employee the option of receiving a monthly retirement allowance payable only until the employee’s death, or receiving a reduced allowance during the retiree’s life, the payment of which continues after this death and through the life of a named beneficiary. If the retiree chooses to allow a surviving beneficiary to receive payments in addition to his or her own “straight life benefit,” the monthly “joint and survivor” payment is reduced to ensure that it is “the actuarial equivalent.. . of [the employee’s] straight life retirement allowance . . . .” The retirement ordinance does not define the term “actuarial equivalent.” This case focuses on the method that the retirement system uses to calculate the joint and survivor benefit as compared to the straight life benefit. Until 1982, the county used gender-based actuarial tables to calculate the joint and survivor benefit. However that year, in response to a United States Supreme Court decision and a Michigan Attorney General opinion, the commission concluded that it could not continue to use gender-based actuarial tables. It sought the advice of its actuary, Gabriel, Roder, Smith & Company (GRS), in selecting a single, gender-neutral actuarial table to calculate the joint and survivor payment without regard to either the employee’s or the beneficiary’s gender. GRS outlined several alternative approaches and noted that the only approach “designed to make sure that no participant will receive a lesser benefit than under [existing] procedures,” would be to adopt the female actuarial table for all retirees. Ultimately, the retirement commission chose to adopt the female actuarial table for all retirees. For 24 years, the retirement system applied the female actuarial table when calculating its retirees’ monthly joint and survivor payments. However, GRS studied the retirement system over a five-year period (2001-2005) and concluded that the joint and survivor benefit was “more valuable than the single life annuity form of payment.” To ensure that the optional joint and survivor payment would “have the same present value, on average, as the straight life normal form of payment,” GRS proposed a different actuarial table for the commission to adopt. GRS determined that a blended table that assumed 60% male retirees and 40% female retirees would best approximate benefits that are equal in value among all the options. At its November 17, 2006 meeting, the commission voted 4-3 to adopt this 60% male actuarial table, to take effect for all employees who retire on or after July 1, 2007. The charging parties demanded collective bargaining over the change. Respondents rejected this demand and claimed that the existing collective bargaining agreements gave the commission discretion to adopt new actuarial tables. The charging parties then filed unfair labor practice complaints with the Michigan Employment Relations Commission (MERC). After conducting a three-day hearing, the hearing referee recommended that the MERC dismiss the unfair labor practice charges. She determined that a retirement plan’s actuarial assumptions are mandatory subjects of bargaining under the PERA. However, because the underlying collective bargaining agreements “contain extensive provisions ‘covering’ pension benefits,” and because “the parties were satisfied, and agreed, to have these benefits calculated as provided in the ordinance,” she concluded that the respondents had already fulfilled their statutory duty to bargain over the retirement system’s actuarial assumptions. While “the meaning of the term ‘actuarial equivalent’ in the ordinance involved bona fide questions of contract interpretation,” those questions “are properly subject to resolution through the grievance arbitration procedures set out in the parties’ contracts,” not in litigation over unfair labor practices. The charging parties filed exceptions to the hearing referee’s proposed decision. The MERC agreed with the charging parties and rejected the referee’s decision and recommended order. It concluded that “[t]he actuarial assumptions at issue here were never memorialized in the Retirement Ordinance or any of the collective bargaining agreements referencing the Retirement Ordinance.” Although the ordinance did not define the actuarially equivalent benefits promised to retirees and their beneficiaries, the term’s meaning “has been subordinated to the question of whether the parties have amended their agreements by the longstanding practice of calculating optional pension benefits that are not the actuarial equivalent of straight life benefits ....” On this question, the MERC determined that the parties “tacitly agreed that joint and survivor benefits would continue to be calculated as they had [been] in the past.”

Heather Fraelick vs. PerkettPR, Inc., & another. No. 11-P-1832. Essex. June 4, 2012. June 6, 2013. Present: Katzmann, Brown, & Sullivan, JJ. Massachusetts Wage Act. Labor, Wages. Employment, Retaliation. Contract, Employment, Misrepresentation, Interference with contractual relations. Unlawful Interference. Declaratory Relief. Practice, Civil, Dismissal. Discussion of the Wage Act, G. L. c. 149, §§ 148 et seq., which commands every employer to pay an employee the wages earned by the employee at regular intervals and within a set number of days after the termination of the pay period during which the wages were earned; which prohibits exemption by means of a special contract; which prohibits retaliation against an employee for seeking his or her rights under the Wage Act; and which permits an aggrieved employee a private right of action to recover wages wrongfully withheld or detained by an employer. [703-705] In a civil action brought by an employee (plaintiff) against her employer, alleging violation of the Wage Act, G. L. c. 149, §§ 148 et seq., the judge erred in dismissing the action for failure to state a claim on which relief could be granted, where, with regard to a claim that the plaintiff’s employment was terminated in retaliation for her speaking out to senior management about the employer’s failure to pay timely sums due under the plaintiff’s contract, the complaint, fairly read, alleged that an otherwise permissible expense reimbursement arrangement designed to benefit employees had been abandoned and replaced with a policy and practice that required the employee, under penalty of discharge, to advance, indefinitely, expenses for the employer’s benefit [705-708]; where a claim of tortious interference with contractual relations (brought against an individual defendant) required an assessment of state of mind and should be evaluated on the basis of a factual record [708]; where, with regard to a claim of misrepresentation, the complaint set forth questions (e.g., whether the plaintiff actually relied on promises made by the individual defendant and whether the plaintiff’s reliance was reasonable) that could not be resolved on a motion to dismiss [708-709]; and where, likewise, with regard to the plaintiff’s request for a judgment declaring that the noncom-petition provision in her contract was unenforceable, the complaint set forth allegations sufficient to survive a motion to dismiss [709]. Civil action commenced in the Superior Court Department on April 13, 2011. A motion to dismiss was heard by Robert A. Cornetia, J. Joseph L. Sulman for the plaintiff. William J. Royal, Jr., for the defendants. Christine Perkett. Brown, J. Just days after an at-will employee reiterated her displeasure to her employer at having long been denied a part of her compensation, she was fired. A complaint, filed by the aggrieved employee (plaintiff), set out a series of interlinked facts, sufficiently detailed, which, when read together, suggested the corporate employer and its president had violated § 148A of the Massachusetts Wage Act, G. L. c. 149, §§ 148 et seq. (Wage Act), by terminating the plaintiff’s employment in retaliation for her speaking out to senior management about the employer’s failure to pay timely the sums due under her employment contract. In addition to the Wage Act claim, the plaintiff also sought compensatory relief, on common-law liability theories, and declaratory relief (see G. L. c. 231 A), from a written noncompete agreement that she had signed, at the behest of the employer, as a condition of employment. Contesting the legal viability of the complaint, the defendants jointly filed a Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), motion. A judge of the Superior Court allowed the motion and dismissed the complaint in its entirety. On appeal from the dismissal of her complaint by the judge, the plaintiff argues that her complaint alleges plausible entitlements to relief against PerkettPR, Inc. (PPR), and Christine Perkett, PPR’s president (collectively, the defendants). We conclude, for the reasons set forth herein, that the motion to dismiss was improvidently allowed. A rule 12(b)(6) motion may be allowed only when the complaint’s factual allegations (and reasonable inferences therefrom), accepted as true, do not plausibly suggest an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008); Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). “Factual allegations must be enough to raise a right to relief above the speculative level. . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Iannacchino v. Ford Motor Co., supra at 636, quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Assertions set out in a motion to dismiss are not part of the rule 12(b)(6) review equation. Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 285 n.6 (2007). Romano v. Sacknoff, 4 Mass. App. Ct. 862, 863 (1976). We conclude, for the reasons set forth herein, that the complaint plausibly suggested an entitlement to remedial relief for violation of § 148A of the Wage Act, and declaratory relief as to a written noncompete agreement, which allegedly was unreasonably burdensome as to restrain unduly her right to secure gainful employment in her field of expertise (public relations). Claims for tortious interference and misrepresentation also were plausibly stated. A. Background. 1. Complaint. The complaint alleges the following: PPR, a private corporation doing business in this Commonwealth, hired the plaintiff, Heather Fraelick, as a full-time senior account executive, on written terms and conditions, which PPR had offered and which Fraelick, in turn, accepted in June, 2007. PPR holds itself out as a “virtual” public relations firm, since it neither owns nor rents commercial space, a business model that PPR purportedly promotes as a benefit to its clients insofar as lower overhead costs are said to yield lower client fees. PPR required Fraelick to work at home as well as pay a wide variety of business-related overhead costs out of her own pocket before being reimbursed by PPR. Specifically, memorialized by a written offer letter, PPR promised Fraelick an annual base salary of $60,000, plus other compensation and the benefit of the company’s “paid expenses program.” The agreed-to offer letter (or “contract” such as it is alleged) expressly stated the employment was “on an at-will basis.” The company’s paid expenses program called for PPR to reimburse fully an eligible employee, like Fraelick, for the business overhead costs incurred by her in performing her job, including but not limited to: telephone service fees,* ** laptop computer, basic office supplies, postage fees, and expenses associated with business travel undertaken on behalf of PPR. Based on its written offer, Fraelick believed the expense program was a component of her agreed-to compensation package. In December, 2009, PPR ceased to hold to its side of the bargain, by failing to compensate or reimburse Fraelick for costs that she had incurred in the course of her employment. On a number of occasions, throughout 2010, Fraelick took up this compensation issue with PPR’s president, Christine Perkett, who at all times acknowledged the debt owed and unequivocally promised to pay all outstanding expenses as soon as possible. Allegedly, in November, 2010, PPR paid Fraelick for some portion of the business expenses she had incurred some twelve months prior (in December, 2009). However, as late as December 31, 2010, PPR had not repaid Fraelick for overhead expenses that she paid, on behalf of PPR, throughout calendar year 2010, in the regular course of performing her job and attending to PPR client matters. This was of considerable concern to Fraelick, and particularly so in January, 2011, when a PPR client asked that she attend an upcoming meeting or event in Atlanta, Georgia. On February 3, 2011, Fraelick, once again, raised the matter of her unpaid expenses, directly with Perkett. The matter was weighing on Fraelick, both financially and otherwise. Some portion of her costs allegedly extended as far back as 2009. Fraelick expressed concerns that, due to financial hardship, she was then presently unable to travel to Georgia, or meet with other out-of-town clients, until PPR paid her what was due and owing. Two days later, on February 5, PPR delivered a check to Fraelick for the monies owed — some $3,000, more or less — and, on February 8, PPR fired Fraelick, citing her “unwillingness” to continue paying for the firm’s business expenses associated with her traveling to meet with PPR’s clients, without receiving timely reimbursement. Contemporaneously with the termination of Fraelick’s employment, PPR and Perkett directed a letter to Fraelick advising of the latter’s “continuing” contractual obligations under the noncompetition agreement, including its unqualified ban on soliciting (or attempting to solicit) PPR’s existing or prospective clients, for a period of one year from her separation from the company. PPR has clients nationwide and it seeks out business opportunities world-wide. Fraelick took seriously the implied threat of PPR to seek enforcement of its noncompete agreement, and the prospect of substantial costs in defending against such a claim. Fraelick claims to have suffered damages, including loss of future wages and benefits, and compensable emotional harm. This account is, essentially, the sum and substance of the factual allegations contained in the plaintiff’s complaint, allegations we accept as true and from which we draw every reasonable inference in her favor. 2. Motion to dismiss. The plaintiff caused each defendant to be duly served and commenced an action in the Superior Court. Pursuant to rule 12(b)(6), the defendants moved to dismiss the complaint, arguing (among other contentions) that the plaintiff’s allegations “do not rise to colorable claims on any of this scattershot eight (8) count complaint.” After a hearing, the judge allowed the defendants’ motion, ruling: “[1] business expenses are not covered under the Massachusetts Wage Act” and [2] “plaintiff’s claims fail to satisfy pleading standards set out under Iannacchino v. Ford Motor Co., 451 Mass. 623 (2008).” B. The Wage Act. It is common ground that the Wage Act, G. L. c. 149, §§ 148 et seq., lies at the heart of this case. It is useful to identify provisions of this long-standing statutory scheme, arguably implicated here, so as to frame the plaintiff’s factual statement, in light of the well-settled public policies advanced by this comprehensive law. 1. Payment of wages. Section 148 of the Wage Act (§ 148) commands “[ejvery” employer to pay an employee “the wages earned” by the employee at regular intervals and within a set number of days after “the termination of the pay period during which the wages were earned.” § 148, first par., as amended through St. 1992, c. 133, § 502. See Boston Police Patrolmen’s Assn. v. Boston, 435 Mass. 718, 720 (2002), citing American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 147 (1959). The Wage Act does not define “wages” other than to provide they “shall include any holiday or vacation payments due an employee under an oral or written agreement.” § 148, first par., inserted by St. 1966, c. 319. Nor is “earn” defined, but it is commonly understood to mean “[t]o acquire by labor, service, or performance.” Awuah v. Coverall N. America, Inc., 460 Mass. 484, 492 (2011), quoting from Black’s Law Dictionary 584 (9th ed. 2009). For purposes of construing the Wage Act, when an employee has “completed the labor, service, or performance required of him [or her],” it necessarily follows that he or she has “earned” his or her due “wage.” Awuah v. Coverall N. America, Inc., supra. 2. No exemption by means of a special contract. Section 148 of the Wage Act further provides, in relevant part: “No person shall by a special contract with an employee or by any other means exempt himself from this section.” § 148, sixth par., as appearing in St. 1956, c. 259. The legislative intent, again, is to prevent the unlawful detention of wages, including, as alleged here, by agreement between the employer and employee. 3. Antiretaliation. Section 148A of the Wage Act (§ 148A), in no uncertain terms, commands that an employer shall not “penalize[]” an employee, in any way, due to or as a result of “any action” by the employee “to seek his or her rights” under the Wage Act. This is, in effect, a stiff antiretaliation law, which is strictly applied for the protection of employees who suffer adverse employment consequences for engaging in protected activity. “A complaint made to an employer (or a manager of the employer) by an employee who reasonably believes that the wages he or she has been paid violate such laws readily qualifies as such [a protected] action.” Smith v. Winter Place LLC, 447 Mass. 363, 367 (2006). 4. Private right of action. “The basic purpose of the [Wage A]ct is ‘to prevent the unreasonable detention of wages.’ ” Weems v. Citigroup Inc., 453 Mass. 147, 150 (2009), quoting from Boston Police Patrolmen’s Assn. v. Boston, 435 Mass. at 720. An aggrieved employee has a private cause of action to recover “wages” wrongfully withheld or detained by the employer. G. L. c. 149, §§ 148 & 150. Of clear import here, § 148 provides that the “president and treasurer of a corporation and any officers or agents having the management of such corporation shall be deemed to be the employers of the employees of the corporation within the meaning of this section. . . . Whoever violates this section shall be punished ....”§ 148, sixth par. § 148, ninth par., as appearing in St. 1998, c. 236, § 10. Here, at all events, Perkett had served as PPR’s president, and thus, under the Wage Act, she is deemed, for purposes of this litigation, an “employer” of PPR’s employees. See Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 711 (2005) (under Wage Act’s plain language, “individuals may be held liable”). And, in 1999, prior to the commencement of the present action, the Legislature created a private right of action for employees aggrieved by an employer’s violation of § 148A, the antiretaliation law. See § 150 of the Wage Act (§ 150), second par., as amended by St. 1999, c. 127, § 145. See also Smith v. Winter Place LLC, 447 Mass. at 368 n.12. After filing a written complaint with the Attorney General, an employee may bring an action against her employer “for injunctive relief, for any damages incurred, and for any lost wages and other benefits. An employee so aggrieved who prevails in such an action shall be awarded treble damages . . . and shall also be awarded the costs of the litigation and reasonable attorneys’ fees.” § 150, second par., as amended by St. 2008, c. 80, § 5. See Awuah v. Coverall N. America, Inc., 460 Mass. at 490 n.15. The plaintiff alleges she received written authorization from the Attorney General prior to the time she commenced the underlying action in Superior Court. C. Discussion. 1. Section 148A retaliation claim. Without any explanation, the motion judge ruled, as matter of law, that “business expenses” are not covered by the Wage Act, in ordering the dismissal of the plaintiff’s statutory claims. In effect, the judge’s ruling implicitly failed to acknowledge the somewhat intricate § 148 claim that underlies this action. The judge’s ruling cannot stand. Section 148A of the Wage Act commands, “No employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter.” § 148A, first par., inserted by St. 1977, c. 590. Section 148A provides that an employer “who discharges or in any other manner discriminates against any employee because such employee has made a complaint to the attorney general or any other person . . . shall have violated [§ 148A] and shall be punished” (emphasis added). § 148A, second par., as appearing in St. 1999, c. 127, § 144. The legislative policy advanced by § 148A is clear: “to encourage enforcement of the wage laws by protecting employees who complain about violations of the same.” Smith v. Winter Place LLC, 447 Mass. at 368. In order to maintain an actionable claim under § 148A, a plaintiff is not obliged to successfully prove her right to seek recovery of the untimely paid “wages” in question. It is enough that a plaintiff, as here, reasonably believed the remuneration in question fell within the scope of the Wage Act. Id. at 367. See id. at 364 n.4, quoting from Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000) (viability of retaliation claim “does not depend on the success of the underlying . . . claim, so long as the plaintiff can prove that [she] ‘reasonably and in good faith believed the [employer] was engaged in wrongful [conduct under the Wage Act]’ and that the ‘[employer’s] desire to retaliate against [her] was a determinative factor in its decision to terminate [her] employment’ ”). In the instant matter, the complaint alleges the existence of an expense reimbursement arrangement in which the employee is reimbursed for business expenses incurred on behalf of the employer. In the ordinary course, the violation of a standard expense reimbursement arrangement would not constitute a violation of the Wage Act because the reimbursement is not compensation “earned” by “labor, service or performance.” Massachusetts State Police Commissioned Officers Assn. v. Commonwealth, 462 Mass. 219, 226 (2012), quoting from Awuah v. Coverall N. America, Inc., 460 Mass. at 492. However, this complaint alleges that the employer engaged in a pattern of nonpayment, coupled with continued demands that the employee advance expense monies in ever-increasing amounts, and fired her when she refused to advance any more money for the employer’s benefit. The Wage Act prohibits an employer from exempting itself from the timely and complete payment of wages by “special contract ... or by any other means.” § 148, sixth par. This provision is strictly enforced. In Awuah, supra, the employer unlawfully classified workers as independent contractors. The Supreme Judicial Court determined that the employer’s policy of treating employee’s wages as “interest-free advances” constituted an impermissible “special contract” under § 148, and that the “chargebacks” — amounts employees were required to repay when customers failed to pay the employer — constituted improper deductions that were not valid setoffs under § 150. Id. at 490, 492-493. The requirement that employees maintain liability insurance, for the employer’s benefit, also was determined to be a “ ‘special contract’ that [had] the effect of exempting the employer from the obligations to pay earned wages in full.” The court observed, “An employer’s insurance costs, when borne by an employee, reduce wages just as effectively as if the employer had obtained the policy and deducted funds from the wages.” Id. at 497 n.22. See ibid., quoting from 29 C.F.R. § 531.35 (2010) (“ ‘wages’ cannot be considered to have been paid . . . unless they are paid finally and unconditionally or ‘free and clear,’ [and not] ‘kick[ed]-back’... to another person for the employer’s benefit”). In Camara v. Attorney Gen., 458 Mass. 756 (2011), the employer maintained a written policy permitting it to make deductions from the wages of truckers involved in accidents, based on the employer’s “unilateral assessment of liability [and the] amount of damages.” Id. at 763. The Supreme Judicial Court likewise found a violation of the Wage Act’s prohibitions against special contracts and all but “valid set-off[s],” holding that no such unilateral deduction could take place without an adjudication of fault that is procedurally fair. Id. at 763-764. To be sure, these cases invo