Wage Theft Cases

Ronald Plourde vs. Police Department of Lawrence. No. 13-P-650. Essex. January 7, 2014. - April 9, 2014. Present: Katzmann, Fecteau, & Milkey, JJ. Massachusetts Wage Act. Governmental Immunity. Public Employment, Collective bargaining, Compensatory time. Employment. Contract, Employment, Collective bargaining contract. Labor, Collective bargaining, Failure to pay wages. Police, Collective bargaining, Compensation, Municipality’s liability. Municipal Corporations, Police, Governmental immunity, Special act. In a civil action in which a former police officer asserted, among other things, a claim for unpaid compensatory time under G. L. c. 149, § 148, and G. L. c. 151 (collectively, Wage Act) against the defendant police department, a Superior Court judge erred in granting summary judgment in favor of the defendant, where it is well settled that municipalities are subject to the Wage Act [180-181], and where a special act, which set forth a procedure requiring each of the municipality’s departments to work within its budgeted allocation and to provide notice to the municipality if certain expenses exceeded that allocation, could not be read to absolve the defendant’s obligations under the Wage Act [181-188]. Civil action commenced in the Superior Court Department on September 26, 2011. The case was heard by Robert A. Cornetta, J., on motions for summary judgment, and a motion for reconsideration was considered by him. Corinne Hood Greene for the plaintiff. Charles D. Boddy, Jr., City Attorney, for the defendant. Harold Lichten, for Professional Firefighters of Massachusetts, amicus curiae, submitted a brief. Fecteau, J. The plaintiff, Ronald Plourde, a former captain of the Lawrence police department (department or defendant), appeals from the denial of his motion for summary judgment and the allowance of the department’s motion for summary judgment, by a judge in the Superior Court. The plaintiff had sued the city of Lawrence for the value of compensatory time that he had earned and accrued prior to being injured on duty in 2006. He retired due to his disability in 2010 without ever having returned to active duty. In granting the defendant’s motion for summary judgment, the motion judge dismissed the plaintiff’s claims for breach of contract, breach of good faith and fair dealing, and a claim under G. L. c. 149, § 148, and G. L. c. 151 (collectively, Wage Act). Following the allowance of summary judgment in favor of the defendant, the plaintiff filed a motion for reconsideration, which the judge denied, confirming his previous ruling that the plaintiff’s Wage Act claim was barred by sovereign immunity and the provisions of St. 1990, c. 41 (Lawrence Act), which established financial conditions for Lawrence. Because sovereign immunity is inapplicable to this case and because the Lawrence Act cannot be read to negate the defendant’s obligations under the Wage Act, we reverse. 1. Background. The summary judgment records contain the following undisputed facts. The plaintiff was employed by the defendant as a police officer from 1985 through 2010. The plaintiff was promoted to captain in 2002 and remained in that position until he retired in 2010. As a captain, he was a party to a collective bargaining agreement (CBA) between Lawrence and the Lawrence Police Superior Officer’s Association. During the course of his employment, and pursuant to the terms of the CBA, the plaintiff was permitted and elected to work additional shifts. The additional shifts were separate and distinct from his salaried administrative role. The CBA referred to these additional shifts as “overtime” and defined them as “work performed over and above his . . . regular tour of duty.” The defendant’s policies and practices, governed by the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. (2012), permit officers to elect compensatory time in lieu of wages for overtime hours. Throughout his employment, the plaintiff elected to take compensatory time for many of his overtime shifts. In 2006, the plaintiff was injured in the workplace and was unable to work. He remained out of work on disability leave until his retirement, approved in June, 2010. At the time of his injury, he had accrued 261.5 hours of compensatory time. At the time of his retirement, the plaintiff was paid accumulated sick leave under the parties’ CBA (see note 9, infra), but the defendant refused to pay the plaintiff his accrued compensatory time. Consequently, in August, 2011, the plaintiff brought suit against the defendant for its failure to pay his wages, claiming a violation of the Wage Act, breach of contract, and breach of good faith and fair dealing. On September 26, 2013, the parties filed cross motions for summary judgment. The motion judge denied the plaintiff’s motion for summary judgment, and granted the defendant’s motion. The judge’s decision stated that the Wage Act claim was dismissed based on sovereign immunity, the breach of contract claim was dismissed based on the past practices doctrine, and the breach of good faith and fair dealing claim was dismissed based on the Lawrence Act. Subsequently, the plaintiff filed a motion for reconsideration, which the judge denied, affirming his previous ruling and finding that the plaintiff’s Wage Act claim was barred by sovereign immunity, and by an expanded analysis of the Lawrence Act., The plaintiff’s notice of appeal timely followed this denial. 2. Analysis, a. Sovereign immunity. First, the plaintiff claims the judge erred in dismissing his Wage Act claim based on the theory of sovereign immunity. We need not dwell on the question of sovereign immunity, the lead basis for the judge’s decision, as it is well settled that municipalities are subject to the Wage Act, a matter of law which Lawrence does not contest. See Dixon v. Malden, 464 Mass. 446, 447 (2013) (holding Malden employee entitled to damages for Malden’s violation of Wage Act). See also Treasurer of Worcester v. Department of Labor & Indus., 327 Mass. 237, 241-242 (1951) (requiring Worcester to comply with requirements set forth in Wage Act); Boston Police Patrolmen’s Assn. v. Boston, 435 Mass. 718, 720 (2002) (Boston employees can bring claim for unpaid wages under Wage Act); Newton v. Commissioner of the Dept. of Youth Servs., 62 Mass. App. Ct. 343, 349 (2004) (holding State employees have right to timely payment of wages under Wage Act). Thus, the judge’s ruling was a clear error of law. b. The Lawrence Act. Second, the plaintiff claims the judge erred in dismissing his claims based on an alleged misinterpretation of the Lawrence Act. That act was meant to ensure the fiscal stability of Lawrence. To that end, the Lawrence Act sets forth a procedure requiring each of Lawrence’s departments to work within its budgeted allocation and to provide notice to Lawrence if certain expenses exceed that allocation. The Lawrence Act creates five allotment periods for the fiscal year, with each period lasting either two or three months. The law states that if a department “has exhausted its time period allotment and any amounts unexpended in previous periods,” notice will be given to the mayor and the fiscal oversight board. St. 1990, c. 41, § 3. The mayor then has ten days to decide whether to waive the additional expenses. If the overspending is waived, the relevant department must reduce subsequent allotments. If the overspending is not waived, the relevant department has to immediately reduce personnel expenses. Lawrence and its employees, however, maintain the right to negotiate about the method of implementing the reduction subject to a valid collective bargaining agreement. Section 3 of the Lawrence Act also states that all collective bargaining agreements entered into after its enactment are subject to its terms. The judge and the defendant focused on § 3 of the Lawrence Act: “No personnel expenses earned or accrued within any department, board, commission, agency or other unit of city government shall be charged to or paid from any allotment of a subsequent period without the written approval of the mayor, except for subsequently determined retroactive compensation adjustments, or in the case of an emergency involving the health or safety of the people or their property.” The judge determined that the above language created a “use it or lose it” policy where Lawrence employees had to obtain mayoral approval to carry over accrued compensatory time from a previous allotment period. Consequently, the judge determined that the plaintiff’s Wage Act claim was barred by the Lawrence Act because he never received mayoral approval to carry over his compensatory time from previous allotment periods, and therefore his compensatory time was “lost.” Thus, the defendant argues that under the Lawrence Act, absent mayoral approval, “the plaintiff was entitled to nothing.” This interpretation is in error. The Wage Act requires employers to pay each “employee the wages earned by him.” G. L. c. 149, § 148. That act states: “The word ‘wages’ shall include any holiday or vacation payments due an employee under an oral or written agreement.” Id. “The word ‘earn’ is not statutorily defined, but its plain and ordinary meaning is ‘[t]o acquire by labor, service, or performance . . . [wjhere an employee has completed [what is] required of him.’ ” Awuah v. Coverall N. Am., Inc., 460 Mass. 484, 492 (2011), quoting Black’s Law Dictionary 584 (9th ed. 2009). However, the defendant argues that because the Lawrence Act is incorporated into the parties’ CBA, Lawrence is shielded from its obligations under the Wage Act. Such an interpretation is in direct conflict with the terms of the Wage Act, which expressly states, “No person shall by a special contract with an employee or by any other means exempt himself from this section or from section one hundred and fifty.” G. L. c. 149, § 148. Therefore, despite the defendant’s arguments to the contrary, the Lawrence Act, as interpreted by the judge and the defendant, is clearly inconsistent with the Wage Act. Nonetheless, the defendant argues the judge was correct in dismissing the plaintiff’s claim because, even if the Lawrence Act and the Wage Act are inconsistent, the Lawrence Act supersedes the Wage Act. In support of this argument the defendant cites Pirrone v. Boston, 364 Mass. 403, 413 (1973), where the Supreme Judicial Court stated, “ ‘[Ojur well established principle of construction’ that, absent a clearly expressed legislative intent to the contrary, a Special Act ‘made in regard to a place, growing out of its peculiar wants, condition, and circumstances,’ must prevail over a conflicting general act.” However, in context, this principle is further qualified: “[Ajbsent a clear legislative intent to the contrary the provisions of a special charter generally prevail over conflicting provisions of a subsequently enacted general law” (emphasis added). School Comm. of Boston v. Boston, 383 Mass. 693, 700 (1981). See Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 374 (2012) (“It is well established that ‘the provisions of a special act generally prevail over conflicting provisions of a subsequently enacted general law, absent a clear legislative intent to the contrary’ ”). Here, the Lawrence Act was enacted in 1990, subsequent to the Wage Act; without some expression by the Legislature of its intention that the special act override the provisions of the Wage Act, Lawrence’s reliance upon a principle of statutory construction that gives the Lawrence Act priority over the Wage Act does not apply. Given that the motion judge’s interpretation of the Lawrence Act conflicts with the Wage Act and that the Legislature cannot be seen to have intended a repeal, the Lawrence Act cannot be read as to absolve the defendant’s obligations under the Wage Act. “Our jurisprudence has not favored repeal of a statutory enactment by implication.” Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., supra. See, e.g., Emerson College v. Boston, 393 Mass. 303, 306-307 (1984) (Boston Zoning Code, St. 1956, c. 665, was not impliedly repealed by St. 1975, c. 808, codified at G. L. c. 40A, where both had coexisted without problems since 1976, and where zoning in Boston not intended to be governed by c. 40A); Commonwealth v. Feodoroff, 43 Mass. App. Ct. 725, 728 (1997) (St. 1968, c. 738, § 1, did not supersede and repeal G. L. c. 271, § 17B). See generally 1A N.J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 23:10 (7th ed. 2009) (discussing judicially created presumption against repeal of prior laws by implication). This presumption is overcome only when the earlier statute “is so repugnant to and inconsistent with the later enactment covering the subject matter that both cannot stand.” Doherty v. Commissioner of Admin., 349 Mass. 687, 690 (1965). “Where the repealing effect of a statute is doubtful, the statute is strictly construed to effectuate its consistent operation with previous legislation.” Commonwealth v. Hayes, 372 Mass. 505, 512 (1977), quoting from 1A C. Sands, Sutherland Statutory Construction § 23.10 (4th ed. 1972). “As a starting point for our analysis we assume, as we must, that the Legislature was aware of the existing statutes in enacting the above legislation, and that if possible a statute is to be interpreted in harmony with prior enactments to give rise to a consistent body of law.” Hadley v. Amherst, 372 Mass. 46, 51 (1977) (citation omitted). “Additionally, where two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose.” Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514 (1975). “We are obliged to give ambiguous, imprecise, or faultily drafted statutes ‘a reasonable construction,’ with the primary goal of ‘construing] the statute to carry out the legislative intent.’ ” Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass. App. Ct. 282, 286 (1996), quoting from Massachusetts Commn. Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 190 (1976). Interpreting the Lawrence Act so as to nullify the Wage Act and arguably violate the FLSA is not a reasonable construction of the special act. The Lawrence Act requires Lawrence to exhaust its current allotment if necessary before turning to the mayor for a waiver or to the union to negotiate about reducing subsequent allotments. In this case, there was no evidence that, at the time the plaintiff’s earned wages became due, the defendant was unaware of its obligations, had exhausted its budgeted allocation, or would exceed its allotment at the time of the plaintiff’s retirement by paying the plaintiff’s personnel expenses. Furthermore, we note that it is unclear whether the plaintiff’s compensatory time was a personnel “expense,” as intended by the special legislation, at the time it was accrued. “We interpret statutes to carry out the Legislature’s intent, determined by the words of a statute interpreted according to ‘the ordinary and approved usage of the language.’ ” Goodridge v. Department of Pub. Health, 440 Mass. 309, 319 (2003), quoting from Hanlon v. Rollins, 286 Mass. 444, 447 (1934). Arguably, compensatory time becomes an “expense” in its usual meaning when an employee actually uses that time. In other words, Lawrence would only have to expend money to cover the employee in question when he or she is absent and using his or her compensatory time. While he was on “injured on duty” status, the plaintiff never had a chance to utilize this accrued time, and he apparently did not request payment until he retired. Whether and when Lawrence’s obligation ripened into an expense is unclear. Alternatively, the Lawrence Act could also be viewed as requiring the department head, if intending not to request carry-over permission, to pay the accrued time. In this way, the' two statutes can be reconciled. Additionally, if Lawrence’s interpretation of the Lawrence Act is correct, and if drawn to its logical conclusion, employees would be forced to use all earned vacation, sick, and compensatory time before the end of each two- or three-month allotment period if the department heads and mayor refused to allow them to be carried over. “[Cjourts enforce the statute according to its plain wording ... so long as its application would not lead to an absurd result.” Worcester v. College Hill Properties, LLC, 465 Mass. 134, 138 (2013), quoting from Martha’s Vineyard Land Bank Commn. v. Assessors of W. Tisbury, 62 Mass. App. Ct. 25, 27-28 (2004). “If a sensible construction is available, [a court] shall not construe a statute to make a nullity of pertinent provisions or to produce absurd results.” Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374, 375-376 (2000). As explained above, the Lawrence Act prescribes five allotment periods for each fiscal year, each period lasting either two or three months. Our record is silent as to the manner in which mayoral approval would be sought; moreover, it is certainly unclear from the Lawrence Act what mechanism was intended by which such approval would be requested, assuming it is even applicable to the carry-over of compensatory time. In other words, was it the responsibility of every individual employee to request approval directly from the mayor, or the responsibility of the department head, as the keeper of its department’s records, including those for its employees’ accrued time, to request mayoral authorization to carry it over. Either way, on a practical level, it strains credulity to suggest that a special act designed to ensure Lawrence’s fiscal health would mandate such bureaucratic inefficiency, forcing each of Lawrence’s numerous department heads, or their employees, to obtain the mayor’s signature, every two or three months, for all Lawrence’s employees to keep their accrued sick, vacation, and compensatory time and, in default thereof, potentially unsuspecting employees falling into a “use it or lose it” trap whereby earned but accrued compensatory time, in lieu of wages, would be lost. See Fleet Natl. Bank v. Commissioner of Rev., 448 Mass. 441, 448 (2007) (“Courts must ascertain the intent of a statute from all its parts and from the subject matter to which it relates, and must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense”). Last, the defendant paid the plaintiff’s accrued sick time upon his retirement, even though the time had been accrued over the course of several fiscal periods. At oral argument, the defendant attempted to explain this apparent inconsistency by arguing that the accrued sick time was “contractual” and, therefore, since the mayor signed “the contract” the sick time was authorized for carrying over. By “contractual” we can only assume that the defendant is referring to the CBA. We fail to see how the same argument would not apply to the plaintiff’s compensatory time. Therefore, construing the Lawrence Act as the defendant suggests would lead not only to inconsistent and absurd results, but a form of selective enforcement. It appears that the defendant is relying on one interpretation of the CBA as “mayoral authorization” to pay the plaintiff’s accrued sick time while at the same time relying on an altogether different interpretation of the CBA as incorporating the Lawrence Act to bar the payment of the plaintiff’s compensatory time. “We will not adopt an interpretation of a statute which relies upon selective enforcement of the statutory provisions.” Worcester v. College Hill Properties, LLC, 465 Mass, at 145. The defendant cannot arbitrarily invoke the Lawrence Act as a shield to avoid its statutory obligations to pay the plaintiff’s compensatory time. 3. Conclusion. For the reasons stated above, we reverse the motion judge’s denial of the plai

Clifton SANDIFER, et al., Petitioners v. UNITED STATES STEEL CORPORATION. No. 12-417. Supreme Court of the United States Argued Nov. 4, 2013. Decided Jan. 27, 2014. Eric Schnapper, Seattle, WA, for Petitioners. Lawrence C. DiNardo, Chicago, IL, for Respondent. Anthony A. Yang, for the United States, as amicus curiae, by special leave of the Court, supporting the Respondent. Eric Schnapper, Counsel of Record, University of Washington School of Law, Seattle, WA, Aaron B. Maduff, Michael L. Maduff, Walker R. Lawrence, Maduff & Maduff, LLC, Chicago, IL, Robert F. Childs, Jr., Abby Morrow Richardson, Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, AL, David L. Kern, Kern Law Firm, El Paso, TX, for Petitioners. J. Michael Jarboe, The Law Department of United States Steel Corporation, Pittsburgh, PA, Amy E. Dias, Warren D. Postman, Jones Day, Washington, D.C., Lawrence C. DiNardo, Counsel of Record, Brian J. Murray, Jones Day, Chicago, IL, Brian M. Jorgensen, Jones Day, Dallas, TX, for Respondent. Justice SCALIA delivered the opinion of the Court. The question before us is the meaning of the phrase "changing clothes" as it appears in the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq. (2006 ed. and Supp. V). I. Facts and Procedural History Petitioner Clifton Sandifer, among others, filed suit under the Fair Labor Standards Act against respondent United States Steel Corporation in the District Court for the Northern District of Indiana. The plaintiffs in this putative collective action are a group of current or former employees of respondent's steelmaking facilities. As relevant here, they seek backpay for time spent donning and doffing various pieces of protective gear. Petitioners assert that respondent requires workers to wear all of the items because of hazards regularly encountered in steel plants. Petitioners point specifically to 12 of what they state are the most common kinds of required protective gear: a flame-retardant jacket, pair of pants, and hood; a hardhat; a "snood"; "wristlets"; work gloves; leggings; "metatarsal" boots; safety glasses; earplugs; and a respirator. At bottom, petitioners want to be paid for the time they have spent putting on and taking off those objects. In the aggregate, the amount of time-and thus money-involved is likely to be quite large. Because this donning-and-doffing time would otherwise be compensable under the Act, U.S. Steel's contention of noncompensability stands or falls upon the validity of a provision of its collective-bargaining agreement with petitioners' union, which says that this time is noncompensable. The validity of that provision depends, in turn, upon the applicability of 29 U.S.C. § 203(o ) to the time at issue. That subsection allows parties to decide, as part of a collective-bargaining agreement, that "time spent in changing clothes ... at the beginning or end of each workday" is noncompensable. The District Court granted summary judgment in pertinent part to U.S. Steel, holding that donning and doffing the protective gear constituted "changing clothes" within the meaning of § 203(o ). No. 2:07-CV-443 RM, 2009 WL 3430222, *4-*10 (N.D.Ind., Oct. 15, 2009). The District Court further assumed that even if certain items-the hardhat, glasses, and earplugs-were not "clothes," the time spent donning and doffing them was "de minimis " and hence noncompensable. Id., at *6. The Court of Appeals for the Seventh Circuit upheld those conclusions. 678 F.3d 590, 593-595 (2012). We granted certiorari, 568 U.S. ----, 133 S.Ct. 1240, 185 L.Ed.2d 177 (2013), and now affirm. II. Legal Background The Fair Labor Standards Act, enacted in 1938, governs minimum wages and maximum hours for non-exempt "employees who in any workweek [are] engaged in commerce or in the production of goods for commerce, or [are] employed in an enterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. § 206(a) (minimum wages); § 207(a) (maximum hours); see § 213 (exemptions). The Act provides that "employee" generally means "any individual employed by an employer," § 203(e)(1), and, in turn, provides that to "employ" is "to suffer or permit to work," § 203(g). The Act did not, however, define the key terms "work" and "workweek"-an omission that soon let loose a landslide of litigation. See IBP, Inc. v. Alvarez, 546 U.S. 21, 25-26, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). This Court gave those terms a broad reading, culminating in its holding in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), that "the statutory workweek includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace." Id., at 690-691, 66 S.Ct. 1187. That period, Anderson explained, encompassed time spent "pursu[ing] certain preliminary activities after arriving ..., such as putting on aprons and overalls [and] removing shirts." Id., at 692-693, 66 S.Ct. 1187."These activities," the Court declared, "are clearly work" under the Act. Id., at 693, 66 S.Ct. 1187. Organized labor seized on the Court's expansive construction of compensability by filing what became known as "portal" actions (a reference to the "portals" or entrances to mines, at which workers put on their gear). "PORTAL PAY SUITS EXCEED A BILLION," announced a newspaper headline in late 1946. N.Y. Times, Dec. 29, 1946, p. 1. Stating that the Fair Labor Standards Act had been "interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees," Congress responded by passing the Portal-to-Portal Act of 1947, 61 Stat. 84, as amended, 29 U.S.C. § 251 et seq. (2006 ed. and Supp. V). § 251(a). The Portal-to-Portal Act limited the scope of employers' liability in various ways. As relevant here, it excluded from mandatorily compensable time "activities which are preliminary to or postliminary to [the] principal activity or activities [that an employee is employed to perform], which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities." 61 Stat. 87, 29 U.S.C. § 254(a)(2). The Department of Labor promulgated a regulation explaining that the Portal-to-Portal Act did not alter what is known as the "continuous workday rule," under which compensable time comprises "the period between the commencement and completion on the same workday of an employee's principal activity or activities ...[,] whether or not the employee engages in work throughout all of that period." 12 Fed.Reg. 7658 (1947) ; 29 CFR § 790. 6(b) (2013). Of particular importance to this case, a Labor Department interpretive bulletin also specified that whereas "changing clothes" and "washing up or showering" "would be considered 'preliminary' or 'postliminary' activities" when "performed outside the workday and ... under the conditions normally present," those same activities "may in certain situations be so directly related to the specific work the employee is employed to perform that [they] would be regarded as an integral part of the employee's 'principal activity.' " 12 Fed.Reg. 7659, and n. 49; 29 CFR § 790.7, and n. 49. In 1949, Congress amended the Fair Labor Standards Act to address the conduct discussed in that interpretive bulletin-changing clothes and washing-by adding the provision presently at issue: "Hours Worked.-In determining for the purposes of [the minimum-wage and maximum-hours sections] of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee." 63 Stat. 911, 29 U.S.C. § 203(o ). Simply put, the statute provides that the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining. In Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956), the Court echoed the Labor Department's 1947 regulations by holding that "changing clothes and showering" can, under some circumstances, be considered "an integral and indispensable part of the principal activities for which covered workmen are employed," reasoning that § 203(o )"clear[ly] impli[ed]" as much. Id., at 254-256, 76 S.Ct. 330. And in IBP, we applied Steiner to treat as compensable the donning and doffing of protective gear somewhat similar to that at issue here, 546 U.S., at 30, 126 S.Ct. 514. We said that "any activity that is 'integral and indispensable' to a 'principal activity' is itself a 'principal activity' " under § 254(a), id., at 37, 126 S.Ct. 514. As relevant to the question before us, U.S. Steel does not dispute the Seventh Circuit's conclusion that "[h]ad the clothes-changing time in this case not been rendered noncompensable pursuant to [§] 203(o ), it would have been a principal activity." 678 F.3d, at 596. Petitioners, however, quarrel with the premise, arguing that the donning and doffing of protective gear does not qualify as "changing clothes." III. Analysis A. "Clothes" We begin by examining the meaning of the word "clothes." It is a "fundamental canon of statutory construction" that, "unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). Dictionaries from the era of § 203(o )'s enactment indicate that "clothes" denotes items that are both designed and used to cover the body and are commonly regarded as articles of dress . See Webster's New International Dictionary of the English Language 507 (2d ed. 1950) (Webster's Second) (defining "clothes" as "[c]overing for the human body; dress; vestments; vesture"); see also, e.g., 2 Oxford English Dictionary 524 (1933) (defining "clothes" as "[c]overing for the person; wearing apparel; dress, raiment, vesture"). That is what we hold to be the meaning of the word as used in § 203(o ). Although a statute may make "a departure from the natural and popular acceptation of language," Greenleaf v. Goodrich, 101 U.S. 278, 284-285, 25 L.Ed. 845 (1880) (citing Maillard v. Lawrence, 16 How. 251, 14 L.Ed. 925 (1854) ), nothing in the text or context of § 203(o ) suggests anything other than the ordinary meaning of "clothes." Petitioners argue that the word "clothes" is too indeterminate to be ascribed any general meaning but that, whatever it includes, it necessarily excludes items designed and used to protect against workplace hazards. That position creates a distinction between "protection," on the one hand, and "decency or comfort," on the other-a distinction that petitioners appear to have derived from Webster's Second, which elaborates that "clothes" is "a general term for whatever covering is worn, or is made to be worn, for decency or comfort ." Webster's Second 507 (emphasis added). But that definition does not exclude, either explicitly or implicitly, items with a protective function, since "protection" and "comfort" are not incompatible, and are often synonymous. A parasol protects against the sun, enhancing the comfort of the bearer-just as work gloves protect against scrapes and cuts, enhancing the comfort of the wearer. Petitioners further assert that protective items of apparel are referred to as "clothing" rather than "clothes." They point out that, when introduced by the adjective "protective," the noun "clothing" is used more commonly than "clothes." That is true enough, but it seems to us explained by euphonic preference rather than difference in meaning. We see no basis for the proposition that the unmodified term "clothes" somehow omits protective clothing. Petitioners' proffered distinction, moreover, runs the risk of reducing § 203(o ) to near nothingness. The statutory compensation requirement to which § 203(o ) provides an exception embraces the changing of clothes only when that conduct constitutes "an integral and indispensable part of the principal activities for which covered workmen are employed." Steiner, 350 U.S., at 256, 76 S.Ct. 330. But protective gear is the only clothing that is integral and indispensable to the work of factory workers, butchers, longshoremen, and a host of other occupations. Petitioners' definition of "clothes" would largely limit the application of § 203(o ) to what might be called workers' costumes, worn by such employees as waiters, doormen, and train conductors. Petitioners insist that their definition excludes only items with some specific work-hazard-related protective function, but that limitation essentially abandons the assertion that clothes are for decency or comfort, leaving no basis whatever for the distinction. Petitioners' position is also incompatible with the historical context surrounding § 203(o )'s passage, since it flatly contradicts an illustration provided by the Labor Department's 1947 regulations to show how "changing clothes" could be intimately related to a principal activity. See 29 CFR § 790.7, and n. 49. Those regulations cited the situation in which "an employee in a chemical plant ... cannot perform his [job] without putting on certain clothes" and specified that "[s]uch a situation may exist where the changing of clothes on the employer's premises is required by law, by rules of the employer, or by the nature of the work." 12 Fed.Reg. 7660, and n. 65; 29 CFR § 790.8(c), and n. 65. And petitioners' position contradicts this Court's only prior opinion purporting to interpret § 203(o ). Steiner, announced less than a decade after the statute's passage, suggested in dictum that, were there a pertinent provision of a collective-bargaining agreement, § 203(o ) would have applied to the facts of that case-where workers "ma[d]e extensive use of dangerously caustic and toxic materials, and [we]re compelled by circumstances, including vital considerations of health and hygiene, to change clothes" on the job site. 350 U.S., at 248, 254-255, 76 S.Ct. 330. Petitioners contend that any attempt at a general definition of "clothes" will cast a net so vast as to capture all manner of marginal things-from bandoliers to barrettes to bandages. Yet even acknowledging that it may be impossible to eliminate all vagueness when interpreting a word as wide-ranging as "clothes," petitioners' fanciful hypotheticals give us little pause. The statutory context makes clear that the "clothes" referred to are items that are integral to job performance; the donning and doffing of other items would create no claim to compensation under the Act, and hence no need for the § 203(o ) exception. Moreover, even with respect to items that can be regarded as integral to job performance, our definition does not embrace the view, adopted by some Courts of Appeals, that "clothes" means essentially anything worn on the body-including accessories, tools, and so forth. See, e.g., Salazar v. Butterball, LLC, 644 F.3d 1130, 1139-1140 (C.A.10 2011) ("clothes" are "items or garments worn by a person" and include "knife holders"). The construction we adopt today is considerably more contained. Many accessories-necklaces and knapsacks, for instance-are not "both designed and used to cover the body." Nor are tools "commonly regarded as articles of dress." Our definition leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices. Respondent and its amici, by contrast, give the term in question a capacious construction, effectively echoing the Courts of Appeals mentioned above. On this view, "clothes" encompasses the entire outfit that one puts on to be ready for work. That interpretation is, to be sure, more readily administrable, but it is even more devoid of a textual foundation than petitioners' offering. Congress could have declared bargainable under § 203(o )"time spent in changing outfits, " or "time spent in putting on and off all the items needed for work ." For better or worse, it used the narrower word "clothes." "The role of this Court is to apply the statute as it is written-even if we think some other approach might accord with good policy." Burrage v. United States, --- U.S. ----, ----, 134 S.Ct. 881, 187L.Ed.2d 729 (2014) (internal quotation marks and brackets omitted). B. "Changing" Having settled upon the meaning of "clothes," we must now consider the meaning of "changing." Petitioners assert that when used with certain objects-such as "tire," "diaper," or, indeed, "clothes"-the term "changing" connotes substitution. That is undoubtedly true. See Webster's Second 448 (defining "change" as "to make substitution of, for, or among, often among things of the same kind ...; as, to change one's clothes"). One would not normally say he has changed clothes when he puts on an overcoat. Petitioners conclude from this that items of protective gear that are put on over the employee's street clothes are not covered by § 203(o ). We disagree. Although it is true that the normal meaning of "changing clothes" connotes substitution, the phrase is certainly able to have a different import. The term "changing" carried two common meanings at the time of § 203(o )'s enactment: to "substitute" and to "alter." See, e.g., 2 Oxford English Dictionary 268 (defining "change," among other verb forms, as "to substitute another (or others) for, replace by another (or others)" and "[t]o make (a thing) other than it was; to render different, alter, modify, transmute"). We think that despite the usual meaning of "changing clothes," the broader statutory context makes it plain that "time spent in changing clothes" includes time spent in altering dress. The object of § 203(o ) is to permit collective bargaining over the compensability of clothes-changing time and to promote the predictability achieved through mutually beneficial negotiation. There can be little predictability, and hence little meaningful negotiation, if "changing" means only "substituting." Whether one actually exchanges street clothes for work clothes or simply layers garments atop one another after arriving on the job site is often a matter of purely personal choice. That choice may be influenced by such happenstances and vagaries as what month it is, what styles are in vogue, what time the employee wakes up, what mode of transportation he uses, and so on. As the Fourth Circuit has put it, if the statute imposed a substitution requirement "compensation for putting on a company-issued shirt might turn on something as trivial as whether the employee did or did not take off the t-shirt he wore into work that day." Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 216 (2009). Where another reading is textually permissible, § 203(o ) should not be read to allow workers to opt into or out of its coverage at random or at will. C. Application Applying the foregoing principles to the facts of this case, we hold that petitioners' donning and doffing of the protective gear at issue qualifies as "changing clothes" within the meaning of § 203(o ). Petitioners have pointed to 12 particular items: a flame-retardant jacket, pair of pants, and hood; a hardhat; a snood; wristlets; work gloves; leggings; metatarsal boots; safety glasses; earplugs; and a respirator. The first nine clearly fit within the interpretation of "clothes" elaborated above: they are both designed and used to cover the body and are commonly regarded as articles of dress. That proposition is obvious with respect to the jacket, pants, hood, and gloves. The hardhat is simply a type of hat. The snood is basically a hood that also covers the neck and upper shoulder area; on the ski slopes, one might call it a "balaclava."

SIU S. TONG, et al., Plaintiffs v. DAVID DUNN, TIMOTHY KRONGARD, ED MASI, SOPHIA WONG and JANET WYLIE, Defendants No. COA12-1261 Filed 17 December 2013 1. Appeal and Error — motion to dismiss appeal — denied Defendants’ motion to dismiss the appeal under Hill v. West, 177 N.C. App. 132, was denied by the Court of Appeals. Hill has been repeatedly limited to its specific, unusual facts, which were not present here. 2. Collateral Estoppel and Res Judicata — claim splitting— federal and state actions — separate wrongs The trial court erred in an action by the founder of a company arising from a merger by concluding that the doctrines of claim-splitting and res judicata applied. A separate wrong was asserted in the federal action and in this case; plaintiff’s claims in the federal action involved claims arising out of his position as an employee while the current action involved a wrong inflicted upon plaintiff in his capacity as a common shareholder. Appeal by plaintiff from order entered 25 May 2012 by Judge James L. Gale in Orange County Superior Court. Heard in the Court of Appeals 9 April 2013. Poyner Spruill LLP, by Steven B. Epstein and Andrew H. Erteschik, for plaintiff-appellant. Kilpatrick Townsend & Stockton LLP, by John M. Moye, for defendants-appeUees. GEER, Judge. Plaintiff Siu S. Tong appeals from an order granting judgment on the pleadings to defendants David Dunn, Timothy Krongard, Ed Masi, Sophia Wong, and Janet Wylie on Mr. Tong’s claim for breach of fiduciary duty. Defendants contended and the trial court agreed that Mr. Tong’s claim in this case was barred by res judicata because the claim in this case arose from the same set of operative facts as the claims in Mr. Tong’s earlier employment action. We hold that the order is contrary to our Supreme Court’s holding in Bockweg v. Anderson, 333 N.C. 486, 428 S.E.2d 157 (1993), and, therefore, reverse and remand. Facts Mr. Tong was the founder of Engineous Software, Inc. (“Engineous”). During the events that gave rise to this action, Mr. Tong continued to be a key employee of Engineous, a common shareholder of Engineous, and a member of the Board of Directors of Engineous elected to represent the common shareholders. The common shareholders collectively owned a minority interest in the company. In Spring 2006, the Engineous Board of Directors, amajority of which were preferred shareholders, hired Wachovia Bank to explore opportunities to sell Engineous. Ultimately, Dassault Systems S.A. (“Dassault”) offered $35-40 million for Engineous. Although Mr. Tong believed that Dassault’s offer was not in the best interests of the common shareholders, the Board ultimately agreed to a merger with Dassault in which Dassault acquired Engineous for approximately $40 million and merged Engineous into ENG Acquisition, Inc. (“ENG”), a wholly-owned subsidiary of Dassault. On 11 July 2011, Mr. Tong filed suit in Wake County Superior Court against Dassault, Engineous, Dassault Systemes Simulia K.K. formerly known as Engineous Japan, Inc., Janet Wylie, Edward Masi, Tim Krongard, David Dunn, Sophia Wong, and Charles Johnson. This action was ultimately removed to federal court (“the federal action”). In an amended complaint, Mr. Tong alleged that the individual defendants knew that the proposed merger agreement between Engineous and Dassault made Mr. Tong’s continued employment a condition of Dassault purchasing Engineous. On 10 June 2008, however, Mr. Tong resigned from the Engineous Board of Directors because of his concerns regarding the manner in which the proposed sale of Engineous to Dassault would affect the common shareholders. On 13 June 2008, three days before the execution of the merger agreement, Engineous, acting through defendant Krongard with the knowledge and consent of the other individual defendants (all of whom were members of Engineous’ Board of Directors), promised Mr. Tong a payment of at least $300,000.00 (the “carve-out payment”) if he would execute an employment agreement agreeing to continue to work for Dassault after the merger. The amended complaint alleged that Mr. Krongard knew that Mr. Tong would have to also sign a release agreement in order to receive the carve-out payment, but Mr. Krongard intentionally or negligently, with the knowledge and consent of the other individual defendants, failed to inform Mr. Tong of that requirement. Mr. Tong asserted that Mr. Krongard’s offer of the carve-out payment without mention of the required release was intended to fraudulently induce Mr. Tong into signing an employment agreement with Dassault. Further, Mr. Tong alleged that Engineous and the individual defendants knew that he would likely exercise his rights as a minority shareholder to challenge the sale. On 16 June 2008, Mr. Tong signed the employment agreement with Dassault. On the same day, after Mr. Tong signed the employment agreement, Engineous and Dassault signed the merger agreement. The merger agreement required that Mr. Tong, as well as certain other Engineous employees, have active and valid employment agreements with Dassault at the time the merger closed in order for the deal to be consummated. On 8 July 2008, the shareholders approved the merger agreement. Mr. Tong did not vote in favor of the merger agreement and preserved his rights as a common shareholder to object to the merger. On 14 July 2008, however, defendant Janet Wylie, the CEO of Engineous, notified Mr. Tong for the first time that in order to receive the $300,000.00 carve-out payment, he would have to sign a release extinguishing any claims he had as a common shareholder to challenge the sale of Engineous. Because Mr. Tong refused to sign the release, he was not paid the $300,000.00 carve-out payment. On 21 July 2008, the merger closed and other Engineous executives who had signed employment contracts and releases were paid the promised carve-out payments. The federal amended complaint further alleged that Mr. Tong complied with his employment agreement by commencing work for Dassault. Mr. Tong alleged, however, that Dassault breached the employment agreement by not paying him performance bonuses and by undermining Mr. Tong’s ability to earn compensation specified in the agreement as part of an incentive plan. The amended complaint alleged that Dassault terminated Mr. Tong’s employment on 13 January 2010, but refused, in breach of the terms of the employment agreement, to pay reasonable business expenses and severance pay. Dassault also failed to pay a Japanese retirement allowance that Mr. Tong alleged was due for his service as a director of Engineous Japan, Inc. Mr. Tong asserted claims in the federal action against the individual defendants (defendants Krongard, Wylie, Masi, Dunn, Wong, and Johnson) and Engineous for fraudulent inducement and negligent misrepresentation based on Mr. Tong’s having been induced to sign the employment agreement in exchange for $300,000.00 without being told that receipt of the sum was conditioned on his signing a release of his claims as a common shareholder. Mr. Tong also alleged a claim for breach of contract against Engineous for failure to pay the $300,000.00 and against Dassault for tortious interference with the agreement to pay Mr. Tong $300,000.00. In addition, Mr. Tong sued Dassault for breach of the employment agreement, violation of the North Carolina Wage and Hour Act, and breach of contract and/or quantum meruit for failure to pay the Japanese retirement allowance. Mr. Tong stated in his amended complaint that he consented to arbitrate the claims brought against Dassault for breach of contract and violation of the Wage and Hour Act. On 20 July 2011, 10 days after he filed his first lawsuit, Mr. Tong and 47 other plaintiffs, all common shareholders of Engineous, filed this action in Orange County Superior Court against individual defendants David Dunn, Timothy Krongard, Ed Masi, Sophia Wong, and Janet Wylie, all of whom were preferred shareholders of Engineous and members of Engineous’ Board of Directors. Also joined as a defendant was ENG in its own capacity and as the successor to Engineous. The Orange County Superior Court complaint alleged that the individual defendants owed the common shareholders a fiduciary duty, which included a duty to maximize the value to all shareholders, including the common shareholders, in connection with Dassault’s acquisition of Engineous. The complaint alleged that “[t]he Individual Defendants breached these duties by knowingly and recklessly placing their own interests above those of all shareholders, self-dealing, and failing to adequately oversee the Engineous[] officers, failing to maximize the value of the sale of Engineous, thereby actually and proximately causing Mr. Tong and the other Common Shareholders to suffer damages in an amount to be proven at trial.” The complaint further asserted a claim for aiding and abetting these breaches of fiduciary duty against ENG. In support of these claims, plaintiffs alleged that Mr. Tong agreed to work with Mr. Krongard and Wachovia Bank to explore opportunities to sell Engineous. Although Mr. Tong’s efforts resulted in four well-known potential buyers expressing interest, with two of them entering a bidding process, the board of directors cut off Mr. Tong’s interactions with the potential buyers. The complaint further alleged that during board meetings, statements were made reflecting that certain board members were placing their own interests ahead of the common shareholders. Mr. Tong refused to sign board minutes for one of the key board meetings because, the complaint alleged, of “the omission of many statements and the failure to acknowledge the apparent agreement between the preferred board members that their individual interests should and would drive the decision making process going forward (casting aside the common shareholders’ interests).” The board and Engineous’ executive management then attempted to block Mr. Tong’s interaction with the potential buyer, Dassault, so as to limit the flow of information to Mr. Tong and the other common shareholders. Although board members recognized that Engineous was not in a strong position to sell and although Mr. Tong urged the board to wait until after the roll out of Engineous’ new enterprise product because it would likely significantly improve the company’s sale value, the board refused to wait. The board members justified that refusal by expressing concern about a potential cash flow shortage in the future, and yet awarded substantial executive bonuses to company officers, including the individual defendants. The complaint further alleged that the preferred stock board members, including the individual defendants, voted to set aside funds to reward employees and executives who supported the merger that favored preferred shareholders and to buy general releases from certain key employees. Dassault initially made an offer of $35 million to $40 million for Engineous. Mr. Dunn, a member of the board representing preferred shareholders, proposed that the board accept the sale price, while Mr. Tong proposed that the board wait for a competing offer from Siemens. Mr. Tong expected that an additional bidder would offer a higher price. The complaint alleged that the board, however, showed little interest in attempting to negotiate a higher sale price, but rather were more interested in proceeding to a closing that would benefit the preferred shareholders. The complaint alleged that Mr. Krongard stated that particular terms offered by Dassault -- including the speed at which the preferred shareholders would collect the sale proceeds, the size of the escrow, and the timing of the closing - were of paramount importance. Those terms did not, however, assist the common shareholders or protect the value of the common shareholders’ interests in Engineous. In addition, according to the complaint, throughout the merger and acquisition process, the individual defendants Ms. Wylie and Mr. Krongard interfered with Mr. Tong’s right, as a director representing common shareholders and as a common shareholder himself, to interact with participants and gather information about ongoing developments. Dassault acquired Engineous by merger with ENG for approximately $40 million. The complaint alleged that several board members made false representations to common shareholders to represent that the deal accorded with their fiduciary responsibilities when, in fact, the individual defendants “were considering their own self-interest first.” The complaint also asserted that had defendants acted in accord with their fiduciary responsibilities, the ultimate valuation of Engineous would have been higher which would have benefitted the common shareholders. Further, according to the complaint, “in closing this transaction in the manner described above, and as they did, the Defendants were not acting in the best interests of the Company and all its shareholders, but rather in their own self-interest, causing harm to Mr. Tong and the Common Shareholders.” As relief, the Orange County complaint sought a declaration that the Engineous board’s actions constituted breaches of fiduciary duty. The complaint also sought compensatory damages suffered as a result of defendants’ wrongdoing. The individual defendants filed an answer dated 19 September 2011. Defendant ENG filed a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure on 29 September 2011. In the federal action, on 7 October 2011, Mr. Tong filed a stipulation of dismissal with prejudice of his claims against Engineous and the individual defendants for fraudulent inducement to contract and negligent misrepresentation, as well as his claims against Engineous for breach of contract and against Dassault for tortious interference with the contract to pay the carve-out payment. On 24 October 2011, the individual defendants in the Orange County action filed an amended answer adding an affirmative defense that “[p]laintiff Tong’s claims against the Individual Defendants are barred by the doctrines of res judicata and claim splitting, given that Plaintiff Tong filed a prior action against the Individual Defendants . . . and that action was dismissed with prejudice.” The answer contended that “[u] nder the doctrines of res judicata and claim splitting, the prior disposition of the Federal Action operates as a bar on Plaintiff Tong’s present action against the Individual Defendants, and thus Plaintiff Tong’s claims are subject to dismissal as a matter of law.” The individual defendants then moved for judgment on the pleadings as to Mr. Tong’s claims on 30 November 2011. The trial court granted ENG’s motion to dismiss on 26 March 2012. On 25 May 2012, the trial court also granted the individual defendants’ motion for judgment on the pleadings as to Mr. Tong’s claims. The court concluded “that issues Tong now seeks to litigate in the Present Action were raised by the pleadings in the [federal action] and res judicata applies. Rather than asserting different injuries arising from independent successive acts, Tong complains that Individual Defendants set out on a concerted course of action designed to complete the Merger, including buying Tong’s consent through false pretenses and at the same time extinguishing the rights of common shareholders, including Tong’s. While other shareholders . . . were not party to the [federal action] and are not then subject to res judicata, Tong’s claims are barred by his dismissal of the [federal action] with prejudice.” On 5 August 2012, the remaining plaintiffs other than Mr. Tong filed a notice of voluntary dismissal without prejudice. Mr. Tong filed a notice of appeal from the order granting judgment on the pleadings on 7 August 2012. Motion to Dismiss Anneal We first address defendants’ motion to dismiss Mr. Tong’s appeal. Defendants contend that this Court must dismiss the appeal under Hill v. West, 177 N.C. App. 132, 627 S.E.2d 662 (2006). This Court has, however, repeatedly limited Hill to the specific, unusual facts present in that case. The circumstances present in Hill are not found in this case and, therefore, Hill is not controlling here. In Hill, the plaintiffs filed a negligence action arising out of a traffic accident. Id. at 133,627 S.E.2d at 662-63. The trial court entered an order granting two defendants’ Rule 12(b)(6) motion to dismiss and a subsequent order granting summary judgment to three other defendants, with claims against one defendant remaining unresolved. Id. at 133-34, 627 S.E.2d at 663. This Court dismissed the plaintiffs’ appeal from the partial summary judgment order as interlocutory, noting in addition that the plaintiffs had failed to include a statement of grounds for appellate review in violation of the Rules of Appellate Procedure. Id. at 133, 627 S.E.2d at 663. On remand, the trial court entered a consent order that purported to be a voluntary dismissal pursuant to Rule 41(a)(1) of the Rules of Civil Procedure of the claims against the remaining defendant. Hill, 177 N.C. App. at 135, 627 S.E.2d at 664. The order, however, included a special provision stating that the trial court “ ‘specifically order[ed], with the consent of all parties, that if this case is remanded for trial, all claims against [the remaining defendant] may be reinstated as the Plaintiffs deem necessary and that the prior dismissals without prejudice will not be pled as a bar to said claims.’ ” Id. In other words, contrary to Rule 41(a)(1), the claims against the remaining defendant could be reinstated at any time without regard to the one-year limitation contained in Rule 41(a)(1). When the plaintiffs then appealed the summary judgment order a second time, this Court first noted that the plaintiffs had again violated the Rules of Appellate Procedure by failing to include a statement of the grounds for appellate review. Hill, 177 N.C. App. at 134, 627 S.E.2d at 633. Relying on Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005), the Court found no basis for suspending the Rules of Appellate Procedure under Rule 2. Hill, 177 N.C. App. at 134, 627 S.E.2d at 663-64. The Court then pointed out, in addition, that the unique consent order was a “manipulation of] the Rules of Civil Procedure in an attempt to appeal the 2003 summary judgment that otherwise would not be appealable” and was not a final judgment within the meaning of Rule 54 of the Rules of Civil Procedure. Id. at 135, 627 S.E.2d at 664. Based on both the appellate rules violation and the attempt to manipulate the Rules of Civil Procedure, this Court dismissed the second appeal. Id. at 136, 627 S.E.2d at 664. In subsequent cases, this Court has declined to dismiss appeals under Hill under circumstances identical to those in this case. In Curl v. Am. Multimedia, Inc., 187 N.C. App. 649, 654, 654 S.E.2d 76, 80 (2007), this Court limited Hill’s holding “to the facts of that case,” noting that “Hill did not attempt to distinguish its holding from the significant body of case law holding contra” and that “the holding in Hill was apparently based in part on the appellants’ ‘manipulative’ behavior and failure to follow the Rules of Appellate Procedure[.]” See also Goodman v. Holmes & McLaurin Attorneys at Law, 192 N.C. App. 467, 472, 665 S.E.2d 526, 530 (2008) (declining to dismiss appeal based on Hill even though appeal followed voluntary dismissal without prejudice of claims surviving trial court’s order because plaintiff followed Rules of Appellate Procedure). This Court also rejected an identical argument based on Hill in Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 651 S.E.2d 261 (2007). This Court explained: “The stipulation of dismissal did not contain any additional language purporting to give plaintiff any time beyond that permitted by Rule 41(a)(1) to pursue her claim against Days Inn. The procedural posture of this case does not

Rachid Karatihy vs. Commonwealth Flats Development Corp. No. 12-P-1353. Suffolk. June 4, 2013. September 18, 2013. Present: Cypher, Graham, & Agnes, JJ. Employment, Termination, Retaliation. Practice, Civil, Prima facie case. In a civil action in which the plaintiff alleged that his termination from his employment was the result of retaliation by the defendant employer for the plaintiff’s being a named plaintiff in a separate lawsuit claiming that the employer violated the Wage Act and the Tips Act, the judge properly granted summary judgment in favor of the employer, where the plaintiff failed to demonstrate that the termination was causally related to his protected activity of participating in the separate lawsuit. [255-257] Civil action commenced in the Superior Court Department on November 24, 2009. The case was heard by Geraldine S. Hines, J., on a motion for summary judgment, and a motion to reconsider was considered by her. Scott Adams for the plaintiff. Andrew C. Pickett (Kevin M. Sibbernsen with him) for the defendant. ‘Doing business as Seaport Hotel and World Trade Center. Cypher, J. A Superior Court judge granted summary judgment in favor of Commonwealth Flats Development Corp., doing business as Seaport Hotel and World Trade Center (hotel), after Rachid Karatihy filed a complaint alleging retaliation by the hotel. Karatihy alleged that the hotel terminated him in retaliation for being a named plaintiff in a lawsuit claiming that the hotel violated G. L. c. 149, §§ 148 & 150 (Wage Act), and c. 149, § 152A (Tips Act). The judge ruled in favor of the hotel because Karatihy did not meet his burden on causation, and thus would be unable at trial to prove an essential element of the retaliation claim. Karatihy maintains that there are disputes of material fact and there was sufficient evidence for a jury to find a causal connection and pretext for his termination, and therefore summary judgment was not proper. We disagree and affirm summary judgment for the hotel. Background. We summarize the facts in the light most favorable to the nonmoving party, Karatihy, reserving some facts for later discussion. See Chervin v. Travelers Ins. Co., 448 Mass. 95, 96 (2006). Karatihy worked as a banquet server at the hotel from 2000 until his termination in 2009. As a server, his duties included setting up for events and serving food and beverages. Because attendance is imperative to the job and efficiency is key in serving its customers, the hotel implemented an attendance policy. Employees are required to “call-out” and notify the hotel at least four hours in advance if they will be late or will miss a shift so the hotel can find a replacement. All of the “call-outs” are recorded and tracked for each employee. The attendance policy also placed limits on the number of allowable absences in a given period. This attendance policy is located in the hotel’s employee handbook, of which Karatihy acknowledged receipt on November 21, 2000, and again on January 20, 2006. Karatihy did not comply with the policy and began to have attendance issues in 2005, receiving his first written warning on August 30, 2006, and a second on September 7, 2007. After receiving multiple additional warnings and poor yearly evaluations because of his attendance, and after violating the attendance policy through the next two years, Karatihy was terminated in August, 2009. In December, 2007, Karatihy became a named plaintiff in a suit brought by banquet workers against the hotel for violating their rights under the Wage Act and the Tips Act. The lawsuit was settled in favor of the banquet workers in May, 2009, and the award was dispersed in August of the same year. No other named plaintiffs from the Wage Act and Tips Act suit have been terminated since the conclusion of the lawsuit. Other employees having attendance and tardiness issues have been terminated according to the records provided by the hotel. Discussion. Summary judgment decisions are reviewed de novo to decide “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Karatihy argues that he was treated differently while the lawsuit was pending, that the hotel selectively enforced its attendance policy by terminating him but not others with similar violations, and that the hotel’s attendance records are incorrect. Karatihy’s arguments are deficient in showing causation, an essential element of a retaliation claim, even when the facts are viewed in the light most favorable to his case. The hotel demonstrated that Karatihy could not prove the essential elements of the claim at trial. See Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539, 544 (2004) (summary judgment appropriate when moving party demonstrates that nonmoving party has no reasonable expectation of proving essential elements of claim at trial). The elements Karatihy must establish to prove a retaliation claim are that: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) the adverse employment action was causally related to the protected activity. Mole v. University of Mass., 442 Mass. 582, 591-592 (2004). The first element, participating as a named plaintiff in the lawsuit, and the second element, being terminated from his job, are not disputed by either party. Karatihy argues that there is sufficient evidence to show that the protected activity caused the adverse action, while the hotel maintains that there is no proof in the record to demonstrate causation. “[T]he mere fact that one event followed another is not sufficient to make out a causal link.” Id. at 592, quoting from MacCormack v. Boston Edison Co., 423 Mass. 652, 662 n.11 (1996). That an employer knows of an employee’s protected activity and thereafter takes some adverse employment action against that employee does not, alone, establish causation. Ibid. Otherwise, an employee could inhibit a “well-deserved discharge” by participating in protected activity. Ibid. Here, causation cannot be inferred by a jury because Karatihy violated the attendance policy before and during his protected activity, see id. at 594 (no causation Inference when adverse employment actions predated protected activity); others not named in the lawsuit were terminated for violating the policy, contrast O 'Brien v. Massachusetts Inst. of Technology, 82 Mass. App. Ct. 905, 907 (2012) (evidence of different standards for plaintiff); and, according to the hotel’s records, no other named plaintiffs in the lawsuit have been terminated. As support for his position, Karatihy points to O’Brien, where the employee “presented sufficient evidence to send” his retaliation claim to a jury, and summary judgment for the employer was vacated. Id. at 905. In O’Brien, the employee received only one disciplinary action in the eight years before he filed a complaint with the United States Department of Labor, but received a number of verbal and written warnings after filing the complaint. Id. at 906-907. The “unacceptable” conduct that occurred after the protected activity was one that other employees also had done, but for which none had been terminated; in fact, the conduct was “common practice” for other employees. Ibid. In contrast, Karatihy violated the hotel’s attendance policy multiple times before becoming involved with the protected activity, and continued to violate the policy multiple times during and after the suit. He received numerous warnings in writing, with two being called a “final written warning.” See Mole, supra at 600-602 (directed verdict for employer proper where employee received multiple subpar evaluations before and during his protected activity, resulting in his termination, and was not able to prove causation). Furthermore, when other employees of the hotel violated the attendance policy, they too were terminated. All of Karatihy’s evidence comes from his deposition and his bare assertions. Contrast O’Brien, supra (another employee submitted affidavit stating there were different standards for O’Brien compared to standards for coworkers). Karatihy has nothing to support his claims, and the Supreme Judicial Court has held that “the bare assertion of inferences . . . raises no genuine issue of material fact.” Community Natl. Bank v. Dawes, 369 Mass. 550, 559 (1976). No other employees involved in the lawsuit came forward to report that they had been treated differently or that they had information of Karatihy being treated differently. In addition, while Karatihy points to erroneous record-keeping by the hotel, he presents no evidence of errors. We see no viable way to infer causation. Karatihy has no expectation of proving that his involvement in a protected activity caused a retaliatory adverse action. Judgment affirmed. Order denying motion for reconsideration affirmed. He alleges that he was given more work and fewer hours, and that the managers had people following him. The hotel argues that even if Karatihy presented sufficient evidence of the required elements for his retaliation claim, he also must show that the hotel’s reason for the adverse employment action was a pretext for retaliation under the established three-step order of proof. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441-445 (1995); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116-118 (2000). See also Smith v. Winter Place LLC, 447 Mass. 363, 364 n.4 (2006) (court found “no reason to interpret the retaliation provision of the wage laws differently” from antidiscrimination retaliation laws under G. L. c. 151B). Because Karatihy did not prove the prima facie case for retaliation, we need not address this issue.

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