Wage Theft Cases

Michael Mullally & another vs. Waste Management of Massachusetts, Inc. Norfolk. September 4, 2008. November 6, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Labor, Public works, Overtime compensation, Wages. Public Works, Wage determination. Municipal Corporations, Contracts, Refuse collection and disposal. Statute, Construction. Administrative Law, Agency’s interpretation of statute. Words, “Regular rate.” Discussion of G. L. c. 151, § 1A, the statute governing overtime compensation, and G. L. c. 149, § 27F, which mandates a particular minimum wage for certain public works contracts. [528-529] In the circumstances of a civil action brought by representatives of a class of waste disposal truck drivers and laborers currently or formerly employed by the defendant, alleging improper calculation of overtime compensation, the defendant’s payroll formula, in which the employer calculated employees’ overtime wages using a base pay rate less than the applicable prevailing wage, and then averaging the employees’ nonovertime and overtime pay in order to meet or exceed the prevailing wage rate after making certain deductions, violated G. L. c. 151, § 1A, where the formula frustrated the statute’s purposes of reducing the number of hours of work, encouraging the employment of more persons, and compensating employees for the burden of a long work week. [530-533] In the circumstances of a civil action brought by representatives of a class of waste disposal truck drivers and laborers currently or formerly employed by the defendant, alleging improper calculation of overtime compensation, this court concluded that the term “regular rate” in G. L. c. 151, § 1A, referred to the prevailing wage set by the director of the Department of Labor for waste disposal employees performing under municipal contracts. [534-536] Civil action commenced in the Superior Court Department on May 25, 2006. Motions for summary judgment were heard by Charles M. Grabau, J., and questions of law were reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Paul E. Nemser for the defendant. F. Henry Ellis, III, for the plaintiffs. Donald Siegel & Nicole Horberg Decter, for Massachusetts Building Trades Council, amicus curiae, submitted a brief. Karla E. Zarbo, Assistant Attorney General, for the Commonwealth & another, amici curiae, submitted a brief. Steven Neitlich. Spina, J. The plaintiffs, who represent a class of waste disposal truck drivers and laborers currently or formerly employed by the defendant, Waste Management of Massachusetts, Inc. (Waste Management), commenced a suit against Waste Management alleging, inter alia, that its payroll formula violated G. L. c. 149, § 27F, which mandates a particular minimum wage for certain public works contracts, and G. L. c. 151, § 1A, which governs overtime compensation. On cross motions for summary judgment, the judge ruled that Waste Management’s payroll formula complied with G. L. c. 149, § 27F, but violated G. L. c. 151, § 1A. The judge, on Waste Management’s unopposed motion, reported the following two questions of law to the Appeals Court pursuant to Mass. R. Civ. R 64, as amended, 423 Mass. 1410 (1996): “1) Whether the defendant complied with prevailing wage law [G. L. c. 149, § 27F,] by paying wages which, when averaging overtime and straight earnings, meet the prevailing wage rate; “2) Whether the defendant violated prevailing overtime [wage] law [G. L. c. 151, § 1A,] by calculating overtime wages using a regular hourly rate less than the prevailing wage eligible employees must be paid.” We granted Waste Management’s application for direct appellate review. Because the judge concluded that there was no violation of the prevailing wage law and the plaintiffs did not challenge that ruling or brief it on appeal, we find it unnecessary to answer the first question. Statutory framework. General Laws c. 151, § 1A, provides, in relevant part: “Except as otherwise provided in this section, no employer in the commonwealth shall employ any of his employees ... for a work week longer than forty hours, unless such employee receives compensation for his employment in excess of forty hours at a rate not less than one and one half times the regular rate at which he is employed.” General Laws c. 149, § 27F, which is set out in the margin, requires that the prevailing wage rate set by the director of the Department of Labor be paid to waste disposal employees performing under municipal contracts. See Perlera v. Vining Disposal Serv., Inc., 47 Mass. App. Ct. 491, 496 (1999) (§ 27F applies to municipal waste disposal contracts). An employer may prorate on an hourly basis qualifying health and welfare benefits paid on behalf of an employee and deduct that amount from the prevailing wage rate. G. L. c. 149, § 27F. Facts. We summarize the undisputed material facts. Waste Management provides solid waste disposal services to various municipalities. Waste Management must pay employees the prevailing wage rate for work performed under contracts with those municipalities. Waste Management utilizes a complicated payroll formula that assigns employees engaged in prevailing wage work a “base pay rate” below the applicable prevailing wage rate. It determines the base pay rate based on an assumption as to how many hours, including overtime hours, an employee typically works each week, and uses the base pay rate to calculate overtime pay, paying the employee the base pay rate for the first forty, “straight time” hours worked and one and one-half times the base pay rate for each overtime hour. Waste Management then averages the employee’s nonovertime and overtime pay in order to meet or exceed the prevailing wage rate after the deduction of qualifying health and welfare benefits. By using this base pay rate, Waste Management uses overtime compensation to “influence” an employee’s gross wages. When an employee’s average hourly rate in a given week falls below the prevailing wage rate because the employee has worked fewer hours than projected, Waste Management issues a “buffer check” payment to bring the employee’s earnings into compliance with G. L. c. 149, § 27F., Discussion. Waste Management contends that so long as employees are paid an hourly wage not less than the prevailing wage after qualifying deductions for all hours worked, including overtime, the requirements of G. L. c. 151, § 1A, are satisfied. We disagree. We interpret G. L. c. 151, § 1A, “according to the intent of the Legislature, as evidenced by the language used, and considering the purposes and remedies intended to be advanced.” Glasser v. Director of the Div. of Employment Sec., 393 Mass. 574, 577 (1984). “We do not overlay the words of a statute with a convention of statutory construction that ‘would frustrate the general beneficial purposes of the legislation.’ ” Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 454-455 (2007), quoting Harborview Residents’ Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432 (1975). Waste Management’s use of a base pay rate below the prevailing wage rate frustrates the purposes of G. L. c. 151, § 1A. General Laws c. 151, § 1A, was “intended to be ‘essentially identical’ ” to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 207(a)(1) (2000). Swift v. AutoZone, Inc., 441 Mass. 443, 447 (2004), quoting Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 40 (1st Cir. 1999). Compare 29 U.S.C. § 207(a)(1) (2000) with G. L. c. 151, § 1A. Accordingly, we ascribe the legislative purposes underlying the FLSA to G. L. c. 151, § 1A, see Poirier v. Superior Court, 337 Mass. 522, 527 (1958) (“The adjudged construction by the Federal courts is to be given to the subsequent enactment by the Legislature”), and conclude that G. L. c. 151, § 1A, aims to reduce the number of hours of work, encourage the employment of more persons, and compensate employees for the burden of a long workweek. See Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 423-424 (1945). In light of the purposes underlying G. L. c. 151, § 1A, Waste Management’s payroll formula is untenable. Waste Management evades the economic disincentive to have an employee work more than forty hours a week in that it ultimately pays the employee an hourly wage equal to or nearly equal to the prevailing wage rate regardless of whether the employee works overtime. Using the hypothetical in note 10, supra, an employee would receive $22 per hour regardless of whether the employee worked forty or fifty hours. Even if an employee received slightly more than $22 per hour for having worked some overtime, that marginal increase hardly provides Waste Management with the economic disincentive intended by G. L. c. 151, § 1A. Moreover, unlike employers who may hire more employees in order to avoid paying existing employees overtime, Waste Management obviates the need to hire additional employees by using the “influence” of overtime compensation on an employee’s gross earnings to produce an average hourly wage equal or nearly equal to the prevailing wage rate, which Waste Management would otherwise pay to additional employees. Waste Management’s payroll formula also does not compensate employees for longer work weeks, as illustrated by the fact that an employee performing prevailing wage work receives approximately the same hourly wage regardless whether the employee works overtime. The frustration of the purpose of G. L. c. 149, § 27F, provides yet another reason for rejecting Waste Management’s payroll formula. See Larson v. School Comm. of Plymouth, 430 Mass. 719, 724 (2000) (related statutes should be construed harmoniously and to implement intent of Legislature). The prevailing wage law endeavors to achieve parity between the wages of workers engaged in public construction projects and workers in the rest of the construction industry. See McCarty’s Case, 445 Mass. 361, 377 (2005) (Sosman, J., concurring); Felix A. Marino Co. v. Commissioner of Labor & Indus., 426 Mass. 458, 460 (1998). Waste Management’s formula subverts the purpose of G. L. c. 149, § 27F, by enabling Waste Management to offer its services for less than what is customarily charged by its competitors for nonpublic works contracts. In the hypothetical in note 10, supra, Waste Management may offer its services for substantially less ($20 per hour for straight time and $30 for each overtime hour) than other similarly situated service providers (who pay employees $22 per hour for straight time and $33 for overtime) by using a base pay rate lower than the prevailing wage rate to calculate overtime compensation. In so doing, Waste Management undermines the wage protections embodied in the prevailing wage laws. See McCarty’s Case, supra at 377 (Sosman, J., concurring); Felix A. Marino Co. v. Commissioner of Labor & Indus., supra at 460. Our conclusion that Waste Management’s payroll scheme violates G. L. c. 151, § 1A, is consistent with an opinion letter issued by the division of occupational safety, the division of the Department of Labor charged with implementing G. L. c. 149, § 27F, and G. L. c. 151, § 1A, during this litigation. The division concluded that Waste Management’s payroll formula violated G. L. c. 151, § 1A, because G. L. c. 149, § 27F, required Waste Management to pay its employees an hourly wage equal to the prevailing wage rate minus qualifying deductions and that overtime compensation should have been calculated based on that figure. Because the agency’s interpretation is not contrary to the plain language of the statutes or their underlying purposes, it is entitled to deference. See Teamsters Joint Council No. 10 v. Director of the Dep’t of Labor & Workforce Dev., 447 Mass. 100, 109-110 (2006). Contrast Swift v. AutoZone, Inc., supra at 450 (opinion letter not entitled to deference because it was contrary to law). One final issue warrants discussion. The parties have expended considerable energy debating the meaning of the term “regular rate” in G. L. c. 151, § 1A. Title 455 Code Mass. Regs. § 2.02(3) (2003) provides that the overtime rate, subject to certain exemptions not relevant here, shall be “[o]ne and one half times an employee’s regular hourly rate, such regular hourly rate not to be less than the basic minimum wage . . . ,” “Regular hourly rate” refers to “[t]he amount that an employee is regularly paid for each hour of work.” 455 Code Mass. Regs. § 2.01 (2003). The regulation further explains: “When an employee, other than an employee exempt from overtime under [G. L.] c. 151, § 1A, is paid on a piece work basis, salary, or any basis other than an hourly rate, the regularly [szc] hourly rate shall be determined by dividing the total hours worked during the week into the employee’s total weekly earnings. Regardless of the basis used, whether time rate, commission basis or piece rate, an employee shall be paid not less than the applicable minimum wage each week. The regular hourly rate shall include all remuneration for employment paid to, or on behalf of, the employee, but shall not include: ...(b) sums excluded under 29 U.S.C. § 207(e).” (Emphasis added.) Id. “[I]nterpret[ing] [the] regulation in the same manner as a statute, and according to traditional rules of construction,” Warce-wicz v. Department of Envtl. Protection, 410 Mass. 548, 550 (1991), the clear implication of 455 Code Mass. Regs. § 2.01 is that the rate paid to hourly employees forms the basis for calculating overtime and that that rate shall not be less than the “applicable minimum wage.” See id. The applicable minimum wage for public works contracts is the prevailing wage. This interpretation finds support in other sections of G. L. c. 149 that describe the prevailing wage rate as a minimum wage rate. See G. L. c. 149, § 26 (minimum wage rate). See also G. L. c. 149, § 27 (minimum rate or rates of wages). If, as Waste Management contends, the term “applicable minimum wage” was intended to refer to the basic minimum wage, see G. L. c. 151, § 1; 455 Code Mass. Regs. § 2.02(1), then the regulations would have explicitly stated so. This is especially true where, as here, the regulations use the term “basic minimum wage,” 455 Code Mass Regs. § 2.02(1), to refer to the absolute floor on wages set by G. L. c. 151, § 1. See Ginther v. Commissioner of Ins., 427 Mass. 319, 324 (1998) (“Where the Legislature used different language in different paragraphs of the same statute, it intended different meanings”). Even if the regulations do not expressly require an employer to calculate overtime using the prevailing wage rate, we will not interpret the regulations “in a way that produces a result which ‘is contrary to the plain language of [G. L. c. 151, § 1A,] and its underlying purpose.’ ” TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 13 (2000), quoting Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997). Conclusion. For the foregoing reasons, we answer the second question, “Yes,” and find it unnecessary to answer the first question. The case is remanded to the Superior Court for further proceedings consistent with this opinion. So ordered. Two of the plaintiffs’ other claims are derivative of their claim under G. L. c. 151, § 1A. After concluding that Waste Management violated G. L. c. 151, § 1A, the judge allowed the plaintiffs’ motion for summary judgment on those claims. The judge denied Waste Management’s motion for summary judgment as to whether its violation of G. L. c. 151, § 1A, was wilful, see G. L. c. 151, § IB (permitting award of treble damages, costs, and attorney’s fees for wilful violations); G. L. c. 149, § 150 (same), reasoning that there was a genuine issue of material fact. We acknowledge the amicus briefs submitted in support of the plaintiffs by the Attorney General, on behalf of the Commonwealth and the Department of Labor’s division of occupational safety, and the Massachusetts Building Trades Council. Waste Management does not contend that any of the statutory exemptions set forth in G. L. c. 151, § 1A (l)-(20), apply in this case. General Laws c. 149, § 27F, states, in pertinent part: “No agreement of lease, rental or other arrangement, and no order or requisition under which a truck or any automotive or other vehicle or equipment is to be engaged in public works by the commonwealth or by a county, city, town or district, shall be entered into or given by any public official or public body unless said agreement, order or requisition contains a stipulation requiring prescribed rates of wages, as determined by the commissioner, to be paid to the operators of said trucks, vehicles or equipment. Any such agreement, order or requisition which does not contain said stipulation shall be invalid, and no payment shall be made thereunder. Said rates of wages shall be requested of said commissioner by said public official or public body, and shall be furnished by the commissioner in a schedule containing the classifications of jobs, and the rate of wages to be paid for each job. Said rates of wages shall include payments to health and welfare plans, or, if no such plan is in effect between employers and employees, the amount of such payments shall be paid directly to said operators." Although G. L. c. 149, § 27F, refers to the “commissioner," the statute defines “commissioner” as “the director of the department of labor.” G. L. c. 149, § 1. In the plaintiffs’ case, Waste Management determined the base pay rate by projecting that the plaintiffs would work approximately 55.6 hours per week. Based on this assumption, Waste Management set the plaintiffs’ base pay rate at $18.98 per hour, which results in an average hourly rate of $21.64, the prevailing wage rate applicable to the plaintiffs after the deduction of qualifying health and welfare benefits [(40 x $18.98) + (15.6 x [$18.98 x 1.5])]/55.6 = $21.64], General Laws c. 149, § 27F, does not state specifically that the prevailing wage rate is the hourly rate employees are to be paid for the first forty hours of weekly wages. Waste Management contends that because the statute does not equate the two rates, § 27F may be construed as requiring payment of the prevailing wage rate for the total number of hours each week, including overtime hours. Under this approach, the prevailing wage rate is a fixed rate, and the “base pay rate,” the hourly rate for the first forty hours, is actually a floating weekly rate, depending on the number of overtime hours actually worked. Waste Management’s use of the “buffer check” is an artificial device designed to keep the base pay rate floating in the same place each week. The effect is to make the base pay rate appear fixed, or “regular,” when in fact it is not. A buffer check payment also includes payment of an overtime premium on the payment needed to bring the employee’s wages into compliance with the prevailing wage statute. To illustrate Waste Management’s formula, we offer the following hypothetical. The prevailing wage rate for waste removal services for a hypothetical municipality is set at $25 per hour. Waste Management may deduct $3 per hour from the prevailing wage rate for qualifying health and welfare benefits, and therefore must pay the employee $22 per hour. Waste Management anticipates that its employee will work exclusively on the contract with the municipality for fifty hours every week. Based on these assumptions, Waste Management will set its base pay rate at $20 per hour to ensure that the employee receives an average wage of at least $22 per hour for all hours worked, paying the employee $20 per hour for the first forty “straight time” hours and $30 per hour for each overtime hour. Waste Management will determine the base pay rate, B, as follows: [(40 hours x B) + 10 hours (1.5 B)]/50 = $22 per hour [ 55 B]/50 = $22 per hour B = $20 per hour If the employee works only forty hours one week,

MARK HUEBNER, Plaintiff v. TRIANGLE RESEARCH COLLABORATIVE, a North Carolina Corporation, and THADDEUS K. SZOSTAK, Defendants No. COA08-70 (Filed 21 October 2008) Appeal and Error— notice of appeal — tolling of time requirement — actual notice of judgment Plaintiff could not use Appellate Rule 3(c) to toll the time for filing his notice of appeal based on lack of service where he had actual notice of entry of the judgment. The language of a Rule 60(b) motion, filed almost three years before plaintiffs notice of appeal, indicated actual notice of the underlying order and judgment, and that motion was denied approximately two years and nine months before notice of appeal. Appeal by plaintiff from an order and judgment entered 12 August 2004 by Judge Donald W. Stephens in Durham County Superior Court. Heard in the Court of. Appeals 23 September 2008. McDaniel & Anderson, L.L.P., by John M. Kirby, for plaintiff - appellant. Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for defendant-appellees. PER CURIAM. Mark Huebner (“plaintiff’) appeals from an order dismissing his complaint involuntarily and from a judgment in favor of Triangle Research Collaborative and Thaddeus K Szostak (“defendants”). For the reasons stated below, we dismiss this appeal. I. Background On 12 July 2002, plaintiff filed a complaint against defendants seeking: (1) unpaid wages, liquidated damages, and attorney’s fees pursuant to North Carolina’s Wage and Hour Act (N.C. Gen. Stat. §§ 95-25.1 to 95-25.25); and (2) an injunction, reinstatement to employment, and compensation for lost wages, benefits and other economic losses pursuant to North Carolina’s Retaliatory Employment Discrimination Act (N.C. Gen. Stat. §§ 95-240 to 95-245). On 16 September 2002, defendants filed an answer and counterclaim alleging that plaintiff had breached the confidentiality agreement contained in his employment contract. On 4 October 2002, Jeffrey L. Starkweather filed a notice of appearance on plaintiffs behalf, and Elizabeth P. McLaughlin filed a motion to withdraw as plaintiffs counsel. The trial court allowed Ms. McLaughlin’s motion to withdraw on 24 April 2003. On 16 May 2003, defendants filed a motion to continue and a motion for partial summary judgment. On 20 May 2003, the trial court entered an order continuing the trial; the court administrator rescheduled trial for 11 August 2003; and defendants’ counsel and Mr. Starkweather agreed to extend the deadline for mediation until 21 July 2003. On 21 May 2003, defendants served Mr. Starkweather with notice that their motion for partial summary judgment would be heard on 17 July 2003. Neither plaintiff nor Mr. Starkweather appeared for a scheduled 14 July 2003 mediation, and on 23 July 2003, defendants filed a motion for sanctions. On that same date, plaintiff filed a notice of voluntary dismissal without prejudice pursuant to N.C.R. Civ. P. 41. In response, on 30 July 2003, defendants filed a motion to dismiss plaintiff’s complaint involuntarily. In support, defendant Triangle Research Collaborative asserted it had a pending compulsory counterclaim that it had not dismissed, and therefore, plaintiffs notice of yoluntary dismissal was ineffectual as it amounted to a failure to prosecute the action. Although Judge Stafford Bullock heard defendants’ motion to dismiss on 22 August 2003, he did not enter a ruling upon the motion. In a letter dated 12 May 2004, the court notified the parties that the case was set for trial on 28 June 2004. A notation on the letter indicated that-copies were sent to Ms. McLaughlin (plaintiff’s former counsel) and to Mr. Starkweather (plaintiff’s counsel at that time). Neither Mr. Starkweather nor plaintiff attended the 28 June 2004 hearing. During the hearing, Judge Donald Stephens stated that “[w]e’ve left messages with Jeffrey Starkweather’s office all morning and notified his office that this matter would be called this afternoon. He is not here. We’re proceeding without him. He certainly had notice from the printed calendar.” Judge Stephens further noted that Judge Bullock had signed an order on 28 June 2004 relinquishing jurisdiction over the motions which Judge Bullock had heard on 22 August 2003. After hearing defendants’ motion to dismiss, Judge Stephens allowed the defendant’s motion in open court. Defendants then presented evidence as to their counterclaim, and Judge Stephens found that plaintiff had violated the confidentiality terms of the parties’ employment contract. After permanently enjoining plaintiff from disclosing certain confidential information, Judge Stephens awarded $3,000.00 in attorney’s fees to defendants. On 28 June 2004, Judge Stephens signed one copy of an order dismissing plaintiff’s complaint; this order was entered on 12 August 2004. On 6 July 2004, he signed a duplicate copy of the same order which was entered on 29 October 2004. In a judgment signed on 6 July 2004 and entered on 19 October 2004, Judge Stephens ruled in defendants’ favor on the counterclaim. This copy also has a handwritten notation stating “Duplicate Copy Entered 12 Aug 04[.]” Judge Stephens signed a second copy of the same judgment on 12 August 2004, nunc pro tunc, 28 June 2004; however, the filing date for the second copy is unclear as the file stamp on the document provided in the record is illegible. This copy also contains a handwritten notation stating that “copies [were] mailed to atty” on 18 August 2004. In correspondence dated 17 September 2004 and file-stamped 22 September 2004, plaintiff informed Court Administrator Kathy Shuart that he was terminating the services of Mr. Starkweather. On 27 October 2004, attorney Michael A. Jones filed a motion on plaintiff’s behalf pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 60(b) (2007). The Rule 60(b) motion sought relief from the “Order Dismissing Plaintiff’s Complaint Involuntarilyf,]” filed on 12 August 2004 and from the “Findings of Fact, Conclusions of Law, and Judgment on Counterclaimf,]” filed on 12 August 2004. This language exactly tracked the labels in Judge Stephens’ order and judgment. Following a November 2004 hearing on the Rule 60(b) motion, Judge Anthony M. Brannon entered an order denying said motion on 2 December 2004. On 11 September 2007, plaintiff gave notice of appeal from the order and judgment “filed on or about August 12, 2004” by Judge Stephens, which was approximately three years subsequent to the filing of his Rule 60(b) motion and approximately two years and nine months after entry of the order denying said motion. In the notice of appeal, plaintiff asserted that the order and judgment had “never been served as required by Rule 58.” On 27 March 2008, defendants filed a motion to dismiss plaintiff’s appeal asserting that the notice of appeal was untimely. Plaintiff contends that he was never served with Judge Stephens’ order and judgment in accordance with Rule 58 of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 58 (2007). Defendants do not contest plaintiffs assertion, and the record before us.does not show that defendants ever served plaintiff with Judge Stephens’ underlying judgment and order in accordance with Rule 58. II. Analysis Plaintiff argues that defendants’ failure to serve him with Judge Stephens’ order and judgment in accordance with Rule 58 triggered Rule 3(c) of the North Carolina Rules of Appellate Procedure which tolled the time for the filing of his notice of appeal, consequently rendering his notice of appeal timely. N.C.R. App. P. 3(c). Appellate Rule 3(c) states: In civil actions ... a party must file and serve a notice of appeal . . . within 30 days after entry of judgment if the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 . . . or . . . within 30 days after service upon the party of a copy of the judgment if service was not made within that three-day periodf.] N.C.R. App. P. 3(c). In other words, the operation of Appellate Rule 3(c) is directly tied to Rule 58, which governs entry of judgment. “[T]he purposes of the requirements of Rule 58 are to make the time of entry of judgment easily identifiable, and to give fair notice to all parties that judgment has been entered.” Durling v. King, 146 N.C. App. 483, 494, 554 S.E.2d 1, 7 (2001) (citations omitted). The relevant part of Rule 58 states: Subject to the provisions of Rule 54(b), a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5. If service is by mail, three days shall be added to the time periods prescribed by Rule 50(b), Rule 52(b), and Rule 59. All time periods within which a party may further act pursuant to Rule 50(b), Rule 52(b), or Rule 59 shall be tolled for the duration of any period of noncompliance with this service requirement, provided however that no time period under Rule 50(b), Rule 52(b) or Rule 59 shall be tolled longer than 90 days from the date the judgment is entered. N.C.R. Civ. P. 58. In other words, like Appellate Rule 3(c), Rule 58 has its own tolling provision, which expands the time in which a party can bring certain post-trial motions when the judgment is not properly served in accordance with Rule 58. Id. However, Rule 58 explicitly caps the tolling of time for bringing these motions at ninety days from entry of judgment. Id. In addition, under Rule 58, the issue of whether service of the judgment is proper does not affect whether judgment was entered. Durling, 146 N.C. App. at 493, 554 S.E.2d at 7. Plaintiff argues that Rule 3(c)’s language establishes that the time for filing notice of appeal is tolled until a party is properly served with the judgment pursuant to Rule 58 regardless of the amount of time that passes between entry of judgment and the filing of the notice of appeal. Plaintiff further contends that this Court’s opinion in Davis v. Kelly, 147 N.C. App. 102, 554 S.E.2d 402 (2001), conclusively establishes that this is true even if: (1) the time and entry of judgment is easily identifiable; (2) an appellant has actual notice of entry of judgment; and (3) an appellant has actual notice of the content of the judgment. Plaintiff also claims that Davis holds that an appellant does not waive the benefit of Rule 3(c)’s tolling provision by improperly filing a notice of appeal without first objecting to improper service of the judgment. In sum, plaintiff argues that Davis conclusively establishes that his notice of appeal was timely. For the reasons discussed below, we reject plaintiff’s arguments. In Davis, judgment was entered against the defendant on 24 August 2000, and the defendant was served with the judgment on 1 September 2000. Id. at 105, 554 S.E.2d at 404. On 20 September 2000, the defendant served a proper notice of appeal on the plaintiff but filed the notice of appeal in the wrong court. Id. The defendant corrected the mistake on 10 October 2000; however, the plaintiff filed a motion to dismiss alleging that the 10 October notice of appeal was untimely because it was filed outside the thirty day period mandated by Appellate Rule 3(c). Id. The Court rejected the plaintiff’s argument, noting that the “plaintiff [had] not fully complied] with the service requirements of Rule 58 ... until 26 October 2000” because he had not filed a certificate of service as required by N.C. Gen. Stat. § 1A-1, Rule 5(d) until that date. Id. The Court concluded that “[t]he running of the time for filing and serving a notice of appeal was tolled pursuant to N.C.R. App. P. 3 until plaintiff’s compliance [with Rule 58], and defendant’s notice of appeal is, therefore, timely.” Id. Contrary to plaintiff’s assertions, we do not read Davis as conclusively resolving the issues of actual notice and waiver. While it appears that similar to plaintiff here, the defendant in Davis had actual notice of entry of judgment and the judgment’s content, the Court did not discuss the issue of actual notice. In addition, while the defendant in Davis had filed a notice of appeal without objecting to the improper proof of service, the Court also did not discuss or address waiver. Furthermore, unlike in the instant case, the defendant in Davis actually filed and served a proper notice of appeal (albeit in the wrong court), that would have been timely without the benefit of Appellate Rule 3(c)’s tolling provision. Even more importantly, in Davis, the defendant corrected his filing mistake approximately forty days after receiving service of the judgment and twenty days after filing the notice of appeal in the wrong court. Here, plaintiff did not file his notice of appeal until almost three years after he filed his Rule 60(b) motion and approximately two years and nine months after the entry of the order, denying said motion. Based on the lack of discussion of actual notice and waiver in Davis and the critical factual distinctions between that case and the instant one, we do not believe that Davis forecloses dismissal of an appeal based on waiver due to an appellant’s extended delay in filing the notice of appeal where the record clearly indicates that an appellant has actual notice of the entry of judgment and its content. Furthermore, we do not believe the purposes of Rule 58 are served by allowing a party with actual notice to file a notice of appeal and allege timeliness based on lack of proper service when almost three years had passed since the party had filed its Rule 60(b) motion and the entry of an order denying it. Hence, we conclude that because: (1) the language of plaintiff’s Rule 60(b) motion demonstrates that he had actual notice of the time and entry of Judge Stephens’ order and judgment as well as their content; (2) almost three years had passed between the time plaintiff respectively filed his Rule 60(b) motion and his notice of appeal; and (3) approximately two years and nine months had passed between the entry of the order denying the Rule 60(b) motion and the filing of the notice of appeal, plaintiff cannot now utilize Appellate Rule 3(c) to toll the time for filing his notice of appeal. Thus, plaintiff has waived the benefit of Rule 3(c) by failing to take timely action with regard to his notice of appeal. Without the benefit of the tolling provision, plaintiff’s notice of appeal is untimely. “Failure to give timely notice of appeal in compliance with . . . Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and -an untimely attempt to appeal must be dismissed.”' Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99-100 (1983) (citations omitted). Plaintiff asks us to “exercise [our] discretion ... to accept this case under [our] powers of certiorari” in the event that we “ha[ve] any substantial question about the timeliness of this appeal[.]” N.C.R. App. P. 21(a)(1) permits this Court to issue a writ of certiorari to allow us to review a trial court’s judgments and orders “when the right to prosecute an appeal has been lost by failure to take timely action[.]” However, N.C.R. App. P. 21(c) provides that a party’s “petition [for writ of certiorari] shall be filed without unreasonable delay[.]” Under the facts here, we conclude that defendant’s request for certiorari has not been filed without unreasonable delay. Consequently, we decline to exercise our discretionary powers pursuant to Appellate Rule 21 to review plaintiff’s appeal. Accordingly, we allow defendants’ motion to dismiss plaintiff’s appeal. Appeal dismissed. Panel consisting of Judges HUNTER, ELMORE, and GEER.

BUCKLEY v PROFESSIONAL PLAZA CLINIC CORPORATION Docket No. 277028. Submitted August 12, 2008, at Detroit. Decided October 2, 2008, at 9:10 a.m. Leave to appeal sought. Alice Buckley filed a complaint in the Department of Labor and Economic Growth (DLEG), Wage and Hour Division, alleging that Professional Plaza Clinic Corporation (PPCC), for whom Buckley provided medical services pursuant to an employment agreement, had failed to pay her wages that she was owed. DLEG determined that Buckley was entitled to back pay, with interest, under the payment of wages and fringe benefits act, MCL 408.471 et seq. PPCC appealed to a DLEG hearing referee, arguing that Buckley was an independent contractor and not an employee. The hearing referee applied the economic reality test and ruled that, although the employment agreement made references to Buckley as an independent contractor, Buckley was in fact an employee. PPCC appealed in the Wayne Circuit Court, Michael J. Callahan, J., which reversed the ruling of the hearing referee. DLEG and Buckley appealed by leave granted. The Court of Appeals held: 1. The correct legal test to determine whether Buckley was an employee or an independent contractor, for purposes of the payment of wages and fringe benefits act, is the economic reality test, because the act is remedial in nature and the economic reality test is consistent with the act’s purposes. Accordingly, the circuit court applied an incorrect principle of law when it failed to use the economic reality test to review the hearing referee’s decision. 2. The circuit court clearly erred by ignoring the substantial evidence on which the hearing referee relied in ruling that Buckley was an independent contractor rather than an employee. A reviewing court may not set aside factual findings that are supported by the evidence merely because alternative findings could also have been supported by the evidence, or because the court might have reached a different result. Reversed. Administrative Law — Payment of Wages and Fringe Benefits Act — Employer-Employee Relationship - Economic Reality Test. The correct standard for determining whether a person is an employee under the payment of wages and fringe benefits act is the economic reality test, whose nonexclusive factors include the control of the worker’s duties; the payment of wages; the right to hire, fire, and discipline; and the performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal (MCL 408.471 et seq.). Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and Susan Przekop-Shaw and Richard P. Gartner, Assistant Attorneys General, for the appellants. Aziz Khondker for the appellee. Before: MURRAY, EJ., and WHITBECK and TALBOT, JJ. Per Curiam. This case involves a wage dispute under Michigan’s payment of wages and fringe benefits act (payment of wages act). Appellant Alice Buckley, M.D., sought allegedly unpaid wages from appellee Professional Plaza Clinic Corporation (PPCC), which PPCC refused to provide. Appellant Department of Labor and Economic Growth agreed with Dr. Buckley and awarded her $15,979.14 in back pay, plus 10 percent annual interest and a $1,000 civil penalty. PPCC appealed the department’s determination and order to a hearing referee, who affirmed. The trial court reversed, ruling that Dr. Buckley was an independent contractor and was not entitled to any unpaid wages under the payment of wages act. The department and Dr. Buckley now appeal by leave granted. We reverse the judgment of the circuit court and reinstate the decision of the hearing referee. I. BASIC FACTS AND PROCEDURAL HISTORY Dr. Buckley is an internal medicine physician. On November 19, 2004, Dr. Buckley entered into an employment agreement (the agreement) with PPCC to provide medical services to patients at the facility. Under the agreement, PPCC was to pay Dr. Buckley $130,000 for a one-year term, which equaled $2,500 a week. The agreement contained references to both “employee” and “independent contractor.” More specifically, the agreement contained the following relevant provisions: EMPLOYEE: In its usual sense employee is a person over whom Employer has control as to time or attendance and the employee is engaged in furtherance of Employer’s business. This Employment Agreement (hereinafter Agreement) deals with an agreement between a corporate employer and an Independent Contractor unless otherwise noted. INDEPENDENT CONTRACTOR: Employee is encouraged to consult IRS code related to an independent contractor, mainly “whose control” and “whose business” tests. PREAMBLE Agreement made on November 01. 2004[] between Professional Plaza Clinic Corporation, a corporation organized and existing under the laws of the State of Michigan, with its principal office located at 3800 Woodward Avenue. Detroit. Wavne County. Michigan, referred to in this agreement as employer, and Dr. Alice Buckley of3800 Woodward Avenue. Detroit. Wayne County. Michigan, referred to in this agreement as employee. The agreement provided that the employer would determine the “employee’s specific duties” and that the employer had discretion in “setting the days of the week and hours in which employee is to perform employee’s duties [.]” The remaining sections of the agreement also used the term “employee.” However, the term “independent contractor” occurred again at the signature line. Dr. Buckley did not sign the agreement itself, but rather an amendment of the agreement. On November 23, 2004, Dr. Buckley also signed a W-9 (usually supplied to independent contractors and other self-employed workers). Under this arrangement, PPCC did not withhold any money from Dr. Buckley’s paycheck, and she was responsible for paying taxes herself. Dr. Buckley paid her state and federal income taxes using a 1099 form (for independent contractors). During the time that she worked at PPCC, Dr. Buckley received three checks, each for $2,500, and two others for $3,300 and $1,450, for a total of $12,250. However, Dr. Buckley voluntarily stopped working for PPCC on February 11, 2005, allegedly because PPCC was behind in paying her and she did not want to work without getting paid. Dr. Buckley filed a complaint with the department’s Wage and Hour Division, alleging that PPCC failed to pay her wages owed. The department agreed with Dr. Buckley and awarded her $15,979.14 in back pay for “wages earned from November 1, 2004 to February 11, 2005.” The department also ordered PPCC to pay 10 percent annual interest and a $1,000 civil penalty if the amount was not voluntarily paid. PPCC appealed that determination before a department hearing referee, contending that Dr. Buckley was an independent contractor and had been paid in full. Dr. Buckley maintained that she was an employee entitled to unpaid wages. During an August 2006 hearing before the hearing referee, Andrea McBride, PPCC’s chief executive officer, testified that the employment agreement that Dr. Buckley signed was created as a general document to be used “for employment of the doctors ... as they [came] in.” As in Dr. Buckley’s case, an amendment was then prepared detailing each particular doctor’s salary. Contrary to Dr. Buckley’s testimony, McBride testified that Dr. Buckley started working on November 20,2004, and then worked again on November 23, 29, and 30. In December 2004, McBride testified, Dr. Buckley worked 11 days. McBride further stated that Dr. Buckley worked six days in January 2005, and six days in February 2005. McBride stated that Dr. Buckley worked an average of seven hours a day on the days that she worked in November through February McBride believed that although Dr. Buckley was not paid the whole monthly salary in November, December, January, or February, PPCC did pay Dr. Buckley in full for the services provided on the days she worked. However, McBride testified that doctors at the clinic are paid the same rate, whether they go over or under a few hours, because it balances out over the long run. McBride stated that she did not dictate what time Dr. Buckley came to work and that Dr. Buckley had full control over her patients. McBride also admitted that she could have fired Dr. Buckley for allegedly unruly conduct (McBride testified that Dr. Buckley “would get upset, fly off the handle, walk out of the clinic, [and] curse”), but she did not because Dr. Buckley told her that “she was going through some issues.” PPCC’s office manager, Linda Foster, testified that Dr. Buckley started working at PPCC during the first week of November 2004. Foster also testified that Dr. Buckley was to be paid on a weekly basis while employed and that she was expected to work 40 hours each week. According to Foster, Dr. Buckley worked 40 hours a week in November and December, and for only a couple of weeks in January and “not that much” in February because Dr. Buckley was not getting paid. However, Foster noted that no time sheets were kept and that she did not know exactly how many hours Dr. Buckley worked. Foster testified that she believed that Dr. Buckley was a salaried employee. Dr. Buckley also testified during the hearing. According to Dr. Buckley, she began working for PPCC on November 2, 2004, as a salaried employee. Dr. Buckley confirmed that she signed the W-9 form and that PPCC did not withhold taxes from her paychecks, but she claimed that PPCC told her that it would start withholding taxes once it got a payroll system in place. She asserted that she controlled her own hours, but she claimed that she was supposed to, and did, work from 9:00 a.m. to 5:00 p.m. for all four weeks in November, excluding the Thanksgiving holiday. She believed that as a salaried employee she was supposed to be paid for the holiday. She stated that she also worked full time in December, or 4V2 weeks, with the understanding that she would be paid for the days she took off for personal reasons and holidays. Dr. Buckley explained that she began limiting her hours in January 2005, working only just over 50 hours, because PPCC was behind in paying her and she did not see the sense in working and not getting paid. In his written decision, the hearing referee determined that Dr. Buckley worked at PPCC from November 2, 2004, through February 11, 2005. Although acknowledging that there was some reference to “independent contractor” in the agreement, the hearing referee applied the economic reality test and found it significant that the employment agreement outlined the parties’ responsibilities and set forth Dr. Buckley’s duties, hours, compensation, and vacation time. Therefore, the hearing referee determined that Dr. Buckley was a PPCC employee for the entire period in question. On the basis of his calculations of Dr. Buckley’s time worked, the hearing referee adjusted the amount that PPCC owed Dr. Buckley to “$15,500.00 at the rate of 10% per annum, together with a civil penalty in the amount of $1000.00 if payment is not voluntarily made.” PPCC thereafter appealed to the circuit court, arguing that the evidence and testimony established that Dr. Buckley was an independent contractor. PPCC conceded that Dr. Buckley worked at PPCC from November 2, 2004, through February 11, 2005, but it argued that the hearing officer erred in awarding Dr. Buckley two entire months’ pay for November and December 2004, because she only worked 4 days in November and 12 days in December. PPCC further argued that the proper test to determine whether Dr. Buckley was an employee or an independent contractor was the test used by the Internal Revenue Service (IRS), which examined behavioral control, financial control, and the relationship of the parties. Therefore, PPCC asserted, the hearing referee erred in applying the economic reality test. The department maintained that Dr. Buckley was an employee, pointing to the repeated use of the term “employee” in the agreement. Further, the department pointed out, the agreement gave PPCC the power to set forth Dr. Buckley’s duties and hours, and provided that PPCC was responsible for supplying Dr. Buckley with an office and all necessary equipment. The department also argued that the termination for cause and noncompete clauses in the agreement supported the existence of an employer-employee relationship, noting that such clauses would not have been necessary for an independent contractor. The circuit court found it significant that PPCC did not withhold income taxes for Dr. Buckley and that she paid her own taxes as an independent contractor. The circuit court also noted, despite the language of the employment agreement, that “[t]he clinic clearly treated her as an independent contractor by not dictating her professional duties, by not dictating her hours;” Accordingly, the circuit court reversed, ruling that Dr. Buckley was an independent contractor. The department and Buckley now appeal. II. CONTRACTUAL AMBIGUITY AND THE ECONOMIC REALITY TEST A. STANDARD OF REVIEW The department and Dr. Buckley contend that the circuit court exceeded the scope of its appellate review and applied the wrong legal standard when it ruled that Dr. Buckley was not PPCC’s employee. This Court’s review of a circuit court’s ruling on an appeal from an administrative decision is limited. “This Court must determine whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.” This standard is synonymous with the clear-error standard of review. Under this standard, this Court will only overturn the circuit court’s decision if, on review of the whole record, it is left with a “definite and firm conviction that a mistake has been made.” A circuit court’s review of administrative proceedings is limited to determining whether the decision was authorized by law and supported by competent, material, and substantial evidence on the whole record. “Substantial evidence is that which a reasonable mind would accept as adequate to support a decision. It is more than a mere scintilla but less than a preponderance of the evidence.” When there is sufficient evidence, the circuit court must not substitute its discretion for that of the administrative tribunal even if the court might have reached a different result. It does not matter that alternative findings also could have been supported by substantial evidence on the record. The circuit court must give deference to the agency’s findings of fact. [Algency interpretations are entitled to respectful consideration, but they are not binding on courts and cannot conflict with the plain meaning of the statute. While the agency’s interpretation may be helpful in ascertaining the legislative intent, courts may not abdicate to administrative agencies the constitutional responsibility to construe statutes. Giving uncritical deference to an administrative agency would be such an improper abdication of duty.[] B. EMPLOYEE’S RIGHT TO RECOUP UNPAID WAGES UNDER THE PAYMENT OF WAGES ACT The payment of wages act provides, in pertinent part, regarding voluntary termination of employment: “An employer shall pay to an employee voluntarily leaving employment all wages earned and due, as soon as the amount can with due diligence be determined.” Concomitantly, the act allows an employee to file a complaint with the department to recoup any allegedly unpaid wages. C. DEFINITIONS The payment of wages act defines “employee” as an “individual employed by an employer.” It defines “employer” as “an individual, sole proprietorship, partnership, association, or corporation, public or private ... who employs 1 or more individuals.” And it defines “employ” as “to engage or permit to work.” It prescribes a number of rules that employers must follow, such as withholding of taxes and timing of pay period days. This Court has defined an independent contractor as “ ‘one who, carrying on an independent business, contracts to do work without being subject to the right of control by the employer as to the method of work but only as to the result to be accomplished.’ ” D. DETERMINATION OF CORRECT LEGAL PRINCIPLE “As this Court has repeatedly recognized when interpreting the terms ‘employ,’ ‘employer,’ or ‘employee’ in different statutory and factual contexts, the existence of an employment relationship is typically determined by examining a number of factors.” Our governmental agencies and courts have developed different tests, depending on the circumstances, to ascertain the true nature of an employment relationship. For example, “[a] contract between the parties which states that their relationship is that of an independent contractor is. . . a. factor to be considered, although it is not determinative. ” The economic reality test is the most common tool for discerning whether an employee-employer relationship exists. Although primarily applied in the context of remedial legislation, like workers’ compensation matters, courts have found the test instructive in other contexts as well. For example, in Coblentz v City of Novi, the Michigan Supreme Court held that under the Freedom of Information Act provision allowing recovery of costs associated with employees, the economic reality test was the proper analytical framework. This test takes into account the totality of the circumstances around the work performed, with an emphasis on the following factors: “(1) [the] control of a worker’s duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.”[] Under this test, no one factor is dispositive; indeed, the list of factors is nonexclusive and a court may consider other factors as each individual case requires. However, “[w]eight should be given to those factors that most favorably effectuate the objectives of the statute in question.” E. APPLICATION OF CORRECT LEGAL PRINCIPLE Here, the hearing referee applied the economic reality test. Again, Michigan courts have consistently applied the economic reality test in the context of social remedial legislation. A “remedial law” is “[a] law providing a means to enforce rights or redress injuries” or “[a] law passed to correct or modify an existing law ... .” The payment of wages act is remedial in that it provides a means to enforce rights with respect to wages and fringe benefits and prescribes remedies for violations of these rights. Further, application of the economic reality test, which takes into account the payment of wages, does not conflict with the plain meaning of the statute. Thus, the hearing referee appropriately applied the test in this case because the test is consistent with the purposes of the payment of wages act. Conversely, in the present matter, the circuit court did not explicitly articulate any principle of law that aided it in determining that Dr. Buckley was an independent contractor. Rather, the circuit court looked only to the facts that PPCC did not withhold any taxes from Dr. Buckley’s paychecks and that PPCC lacked control over Dr. Buckley’s duties and hours. Thus, we conclude that the circuit court clearly erred because it failed to apply, or misapplied, the economic reality test. We note that PPCC attempts to support its position with reliance on the IRS’s test for determining whether an individual is an independent contractor. However, PPCC cites no authority that this test should be applied in place of this jurisdiction’s longstanding reliance on the economic reality test. And, more importantly, there is no indication in the record that the circuit court relied on the IRS test in making its determination. F. SUBSTANTIAL EVIDENCE As previously stated, a circuit court’s review of administrative proceedings is limited to determining whether the decision was authorized by law and supported by competent, mate

Crystal Salvas & another vs. Wal-Mart Stores, Inc. Middlesex. May 7, 2008. September 23, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Labor, Wages. Evidence, Expert opinion, Business record. Practice, Civil, Class action, Statute of limitations. Rules of Civil Procedure. Contract, Performance and breach, Damages. Limitations, Statute of. In a putative class action alleging that the defendant employer wrongfully withheld from certain employees compensation for time worked and denied or cut short rest and meal breaks to which the employees were entitled, the judge abused his discretion in allowing the defendant’s motion to exclude as unreliable the testimony of the plaintiffs’ expert reconstructing and summarizing the defendant’s timekeeper records, where the business records at issue satisfied all of the requirements to be afforded the usual presumption of reliability, and the expert’s methods for reconstructing and summarizing the contents of the records were uncontested [356-360]; further, the defendant’s arguments concerning the admissibility of conclusions that the plaintiffs’ expert drew from the defendant’s records went to the weight of the evidence, not its admissibility [360-361], Discussion of the standard applicable to determining whether a judge’s decision to certify or decertify a class constituted an abuse of discretion. [361] Discussion of the predominance requirement of Mass. R. Civ. P. 23 (b) in class actions. [361-364] A Superior Court judge abused his discretion in allowing the defendant’s motion to decertify a class of current and former hourly workers employed by the defendant in Massachusetts for more than a ten-year period, where the essential factual questions of liability rested on a sufficient constellation of common issues to bind the class members together, and where the judge imposed inapposite and onerous burdens of proof on the plaintiffs. [364-372] In a civil action brought by members of a class of the defendant’s present and former employees alleging that the defendant deprived them of their meal periods, the judge properly concluded that G. L. c. 149, § 100, did not create a private right of action for such deprivation [372-373]; however, the judge erred in granting summary judgment in favor of the defendant, where the lack of a private right of action under that statute did not bar the plaintiffs’ claim that the defendant violated a contractual duty to provide meal periods to the plaintiff class [373-375], In a civil action seeking class certification for claims of unpaid wages under G. L. c. 149, § 148, the plaintiffs failed to show that the limitations period should equitably have been tolled based on a theory of fraudulent concealment [375-376], but did establish a disputed issue of material fact on the question whether a reasonable person in the position of a class member would have known or could reasonably have been expected to know that he or she was being denied compensation [376-378]. Civil action commenced in the Superior Court Department on August 21, 2001. Following certification of a class, motions for exclusion of certain expert testimony, for decertification of the class, and for partial summary judgment were heard by Thomas R. Murtagh, J., and questions of law were reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Carolyn Beasley Burton, of California, & Robert J. Bonsig-nore for the plaintiffs. Charles R. Eskridge, III, of Texas, & Donald R. Frederico (Kathryn P. Hoek with them) for the defendant. Ben Robbins, Martin J. Newhouse, & Jo Ann Shotwell Kaplan, for New England Legal Foundation & another, amici curiae, submitted a brief. Shannon Liss-Riordan, Hillary Schwab, Philip J. Gordon, Audrey R. Richardson, & Catherine K. Ruckelshaus, for Massachusetts Employment Lawyers Association & others, amici curiae, submitted a brief. Elaine Polion, on behalf of themselves and all others similarly situated. Marshall, C.J. In this putative class action, the named plaintiffs are former employees of the defendant, Wal-Mart Stores, Inc. (Wal-Mart), who were paid by the hour (hourly employees). On behalf of themselves and others similarly situated they allege that Wal-Mart wrongfully withheld compensation for time worked and denied or cut short rest and meal breaks to which they were entitled. The plaintiffs appealed from a Superior Court judge’s allowance of summary judgment on certain counts of their complaint and also filed an application for direct appellate review. The judge reported the case to the Appeals Court. See Mass. R. Civ. R 64, as amended, 423 Mass. 1410 (1996), and G. L. c. 231, § 111. See also note 40, infra. Wal-Mart also filed an application for direct appellate review. We granted both applications. In essence we are asked to determine (1) whether the judge abused his discretion by (a) allowing Wal-Mart’s motion to exclude the testimony of the plaintiffs’ principal expert, Dr. Martin Shapiro, as unreliable, and (b) allowing Wal-Mart’s motion to decertify the class of approximately 67,500 current and former hourly workers employed by Wal-Mart in Massachusetts for more than a ten-year period; and (2) whether the judge erred in granting summary judgment to Wal-Mart on all of the plaintiffs’ claims concerning meal breaks, as well as certain of the plaintiffs’ claims under the payment of wages law, G. L. c. 149, § 148, for failure to compensate the plaintiffs for the time they worked. For the reasons set forth below, we vacate the judge’s orders. We conclude, inter alla, that the judge abused his discretion in allowing Wal-Mart’s motions to exclude the testimony of the plaintiffs’ expert and to decertify the class. We further conclude that the judge erred in granting partial summary judgment to Wal-Mart. We remand the case for the entry of an order certifying the class and for further proceedings consistent with this opinion. 1. Facts.' Wal-Mart is a national mass-merchandising retail chain headquartered in Bentonville, Arkansas (home office), with stores located throughout Massachusetts. The operations of individual Wal-Mart stores, including payroll controls, are directed by corporate-wide policies established, disseminated, and carefully controlled by the home office. The central labor policies and payroll controls relevant to this litigation include the following. Wal-Mart policy required all hourly employees (called “associates” by Wal-Mart) to adhere to stringent timekeeping procedures, including clocking in and out at the beginning and end of each shift and at other prescribed times. Wal-Mart’s uniform timekeeping requirements were communicated to hourly employees from their first day of work and consistently throughout their employment at Wal-Mart through, among other channels: an employee handbook intended for every hourly employee nationwide, oral and written materials presented in orientation sessions designed by the home office that newly hired hourly employees were required to attend, oral and written “coaching” (disciplinary) actions, and posters and other materials posted near store time clocks and elsewhere throughout Wal-Mart stores. The timekeeping instructions given to hourly employees embodied the substance of two corporate-wide Wal-Mart policy directives applicable uniformly to all hourly employees. The policy directives were known internally as PD-07 and PD-43. PD-07 provided that, unless otherwise required by State law, all hourly employees were entitled to one paid, fifteen-minute rest break for every three hours of consecutive time worked (to a maximum of two rest breaks), and an unpaid meal break of at least thirty minutes for work in excess of six consecutive hours. A version of PD-07 in effect until February 10, 2001, stated that hourly employees “whose break or meal period is interrupted to perform work would receive compensation for the entire period at their regular rate of pay and be allowed an additional break or meal period.” Until that date, PD-07 required employees to clock in and out for both rest and meal breaks. Thereafter, employees were required to clock in and out for meal breaks but not for rest breaks. Neither PD-07 nor any other Wal-Mart policy directive has ever expressly permitted hourly employees to waive breaks. PD-43 stated that hourly employees should never be required to work “off-the-clock,” that is, work when the employees’ hours are not being recorded for compensation. The same policy directive also generally prohibited employees from working overtime. PD-43 obligated store managerial personnel to investigate every instance where it was determined that an employee worked off-the-clock and to complete a working off-the-clock notice, to be signed by the supervisor or manager, the employees, and a “witness” who was required to be a salaried employee. Wal-Mart repeatedly warned its hourly employees that they would be subject to an escalating series of disciplinary “coaching,” including termination, for violating company policy concerning breaks and off-the-clock work. The plaintiffs introduced numerous policy directives and other internal documents, as well as affidavits and deposition testimony, specifying that Wal-Mart’s policies regarding work breaks (as well as its policies regarding off-the-clock work) were, in the words of an internal Wal-Mart memorandum, among the company’s “non-negotiables.” The day-to-day responsibility for ensuring that hourly employees followed company timekeeping policies fell on individual store managers. For store managers, the responsibility for payroll came with considerable pressure from the home office to boost profits by, among other things, minimizing labor costs, one of the corporation’s largest controllable expenses. Store managers were rewarded for keeping payroll costs low. Conversely, if they exceeded Wal-Mart’s stringent labor cost guidelines, they might lose their bonuses or lose their jobs. According to documents proffered by the plaintiffs, Wal-Mart informed Massachusetts store managers of the precise margins by which their payrolls exceeded the labor cost guidelines and ordered the store managers to cut those payroll costs accordingly. At least since 1989, senior Wal-Mart home office executives have been made aware that, despite the written policy directives to the contrary, store managers were sometimes “[ajltering time cards to decrease reported payroll expenses” and “[ijnstructing associates to work off the clock . . . .” Further, at least since 1998, the home office was aware that some hourly employees “are not receiving scheduled breaks and lunches.” One Wal-Mart payroll audit, known as the “Shipley audit,” dated July 17, 2000, surveyed 128 Wal-Mart stores nationwide. Among other things, the Shipley audit documented that in a two-week period, 127 “[s]tores were not in compliance with company and state regulations concerning the allotment of breaks and meals as 76,472 exceptions were noted.” Wal-Mart was also aware, during the class period, of allegations of “time shaving” by store managers. Two time-shaving techniques in particular feature prominently in this litigation. The first was the insertion by Wal-Mart supervisors of meal break periods into hourly employees’ time records, allegedly when no meal break had in fact been taken. This effectively deprived hourly employees of compensation for the amount of time of the inserted meal break period., The second was a practice known as the “one-minute clock-out,” in which a manager inserted a “clock-out” one minute after the hourly employee had clocked in (either for a shift, or on returning from a break) even though the employee had actually worked for longer than one minute., The plaintiffs, Crystal Salvas and Elaine Polion, averred that, as hourly employees at Wal-Mart during the class period, they worked off-the-clock and were denied rest and meal breaks. The plaintiffs augmented their affidavits with evidence from other hourly employees. This evidence includes, among other things, letters, records of telephone calls to an internal “grass roots” complaint hotline for hourly employees, and other communications to superiors from Massachusetts hourly employees in various Wal-Mart stores throughout the Commonwealth complaining about time-shaving practices and missed rest and meal breaks. Wal-Mart submitted countervailing affidavits from Massachusetts hourly employees stating that they did not work off-the-clock and were not denied rest or meal breaks. Some of the evidence proffered by the plaintiffs consists of an expert’s analysis of Wal-Mart’s business records, which were obtained by the plaintiffs through discovery from Wal-Mart’s home office. See part 3, infra. As noted, the home office closely monitored the payroll activities of all of its stores, including its Massachusetts stores. For example, each store’s electronic time clock, which was programmed and maintained by the home office, transmitted each employee’s time clock punches to the home office every fifteen minutes. Wal-Mart required that payroll and timekeeping data be recorded on a uniform set of forms. Some of these forms factor into this litigation. Among these is Wal-Mart’s time clock exception report (exception report), in effect after 2001. The exception report consists of a list of all hourly employees whose records revealed timekeeping anomalies, such as missed punches at the end of the day or an overly long or overly short lunch period. Managers at each Wal-Mart store are required to investigate every item generated by an exception report. If an exception report showed that an hourly employee had not taken a lunch or a rest break or had otherwise missed a punch, the manager was expected to inquire of the hourly employee and, if a punch or punches had been missed, to complete a time adjustment request (TAR) that both the hourly employee and the manager were required to sign, or later, to use an electronic time adjustment system. Another report, the time clock archive report (archive report), recorded and transmitted to the home office the total number of times each hourly employee swiped in and out during every shift of each pay period, and tallied the hourly employee’s total hours of work recorded for the pay period. Store managers were required to investigate and resolve any discrepancies appearing on the archive report before the payroll was finalized. Hourly employees were required to review and sign off on the accuracy of the archive report prior to receiving their paychecks. Wal-Mart’s time clock punch error report (punch error report) also captured daily punch errors in hourly employees’ timekeeping. The home office would not finalize daily store payroll until the errors on the punch error report were corrected. These reports, along with others, together comprise the business records analyzed by the plaintiffs’ expert, Shapiro, as discussed more fully infra. 2. Procedural history. On August 21, 2001, two former WalMart hourly employees filed a complaint against Wal-Mart alleging multiple causes of action in implied-in-fact contract, tort, and Massachusetts wage statutes for wrongful failure to compensate hourly employees for time worked and to provide them with rest breaks and meal breaks to which they were entitled. The plaintiffs sought to represent a class of approximately 67,500 current and former Wal-Mart hourly employees who worked at forty-seven Wal-Mart stores in Massachusetts during the class period. In January, 2004, a Superior Court judge allowed the plaintiffs’ motion to certify the class. See Mass. R. Civ. P. 23 (a) and (b), 365 Mass. 767 (1974). Wal-Mart appealed from the decision to the Appeals Court. In June, 2004, a single justice of the Appeals Court vacated the class certification order and remanded the matter to the Superior Court. Among other things, the single justice concluded that the Superior Court judge had erroneously side stepped his obligation to determine whether the statistical proffer that the plaintiffs proposed as a justification to proceed on a class rather than an individual basis was “reliable enough to be admissible” and whether its admission would infringe Wal-Mart’s rights of due process. The single justice faulted the motion judge for failing to “give careful consideration” to whether, in light of the tactical decision by the named plaintiffs to waive any claim under G. L. c. 149, § 148, in order to avoid removal to Federal Court, they could adequately represent the class. Following the single justice’s order, and after they claimed to have discovered new evidence of Wal-Mart’s allegedly wrongful labor practices, the plaintiffs renewed a motion previously denied to amend their complaint a second time to add a claim for violation of G. L. c. 149, § 148. They also made a second motion for class certification. A second Superior Court judge allowed the motion to amend the complaint., On remand of the class certification issue, the judge who allowed the initial certification motion declined to revisit his findings concerning predominance and concluded that the plaintiffs had met their burden of proving the requirements for class certification for their claims under G. L. c. 149, § 148. Thus, in December, 2004, he again certified the class, now expanded to cover claims under § 148. Two years later, on September 21, 2006, a third Superior Court judge allowed in part and denied in part a motion by Wal-Mart for partial summary judgment. Specifically, the judge allowed Wal-Mart’s motion on all claims concerning missed, interrupted, or shortened meal periods, on the ground that, because meal breaks were unpaid, the plaintiffs would be unable to show harm for meal breaks that were shortened or eliminated. As for the claims predicated on missed, interrupted, or shortened rest breaks, the judge granted summary judgment on the counts alleging breach of the implied covenant of good faith and fair dealing (count three), unjust enrichment (count four), promissory estoppel (count five), and conversion (count six). In addition, the judge allowed Wal-Mart’s motion to shorten the class period to between August 21,1998, and December 31, 2005 (shortened class period), on the remaining § 148 claim (count nine), on the ground that defining the class period to begin earlier would violate the three-year statute of limitations under § 148. See G. L. c. 149, § 150. Thus, what remained of the plaintiffs’ second amended complaint after summary judgment was (1) the breach of implied contract claim (count one) for failing to provide or compensate the plaintiffs for their earned rest breaks; (2) at the plaintiffs’ election, the breach of implied contract claim (count two) or the unjust enrichment claim (count four) for failure to provide compensation for off-the-clock work, and (3) damages, including treble damages, (a) under G. L. c. 151, § 1A, for failure to pay overtime (count seven); (b) under G. L. c. 151, § l, for failure to pay minimum wage (count eight); and (c) under G. L. c. 149, § 148, for failure to provide compensation for certain off-the-clock work, limited to the shortened class period (count nine). On November 7, 2006, the same Superior Court judge who had ruled on the motion for partial summary judgment allowed an earlier filed motion by Wal-Mart to exclude the testimony of the plaintiffs’ expert, Shapiro, and to decertify the class, a decision we discuss in detail infra. The judge stayed both decisions pending resolution of the questions he reported to the Appeals Court. We granted both parties’ application for direct appellate review. We consider first the judge’s decision to allow Wal-Mart’s motion to exclude the plaintiffs’ expert and to decertify the class. We begin with the portion of that motion seeking to exclude Shapiro’s expert testimony as unreliable. 3. The plaintiffs’ expert witness, a. Standard of

MARILYN WILLIAMS, Plaintiff v. NEW HOPE FOUNDATION, INC., Defendant No. COA08-19 (Filed 2 September 2008) Employer and Employee— retaliatory discharge — ratio of damages to attorney fees — no abuse of discretion The trial court did not abuse its discretion in a retaliatory discharge action by awarding $25,000.00 in attorney fees and $2,534.14 in costs to plaintiff pursuant to N.C.G.S. § 95-25.22(d) on damages of $72.00 (for unpaid wages and liquidated damages). .The purpose of the statute is to provide relief for a person who has sustained damage so small that defendant would have an unjustly superior bargaining position in settlement negotiations. Appeal by defendant from order entered on or after 18 June 2007 by Judge J. Richard Parker in Hertford County Superior Court. Heard in the Court of Appeals 20 August 2008. Glenn, Mills, Fisher & Mahoney, P.A., by Stewart W. Fisher, for plaintiff-appellee. Hairston Lane Brannon, P.A., by Anthony M. Brannon, for defendant-appellant. TYSON, Judge. New Hope Foundation, Inc. (“defendant”) appeals from order entered, which awarded Marilyn Williams (“plaintiff’) attorney’s fees and costs. We affirm. I. Background On or about 18 June 2005, plaintiff was discharged from her employment with defendant. Plaintiff filed an employment discrimination complaint with the North Carolina Department of Labor Workplace Retaliatory Discrimination Division (“DOL”). On or about 16 September 2005, the DOL issued a “Right to Sue” letter, to enable plaintiff the right to file a lawsuit under the North Carolina Retaliatory Employment Discrimination Act (“REDA”). On 26 November 2005, plaintiff filed a complaint, which alleged claims for relief under REDA and the North Carolina Wage and Hour Act (“Wage Act”). Defendant denied all allegations. An order allowing plaintiff to file an amended complaint, to add a claim for wrongful discharge, was granted on 26 February 2007. The case was tried the week of 9 April 2007 and the jury awarded plaintiff $36.00 in unpaid wages incurred as a result of unpaid travel expenses. The trial court then awarded an additional $36.00 in liquidated damages. Defendant did not appeal the jury’s verdict nor the judgment entered thereon. On 22 May 2007, plaintiff moved “for an award of attorney’s fees and costs[]” pursuant to N.C. Gen. Stat. § 95-25.22(d). Plaintiff requested $50,100.00 in attorney’s fees and $3,982.19 in costs. The trial court awarded plaintiff attorney’s fees of $25,000.00 and costs of $2,534.14 on 18 June 2007. Defendant appeals. II.Issue Defendant argues the trial court erred when it granted plaintiffs motion for attorney’s fees and costs. III.Standard of Review “The case law in North Carolina is clear that to overturn the trial judge’s determination [of attorney’s fees and costs], the defendant must show an abuse of discretion.” Hillman v. United States Liability Ins. Co., 59 N.C. App. 145, 155, 296 S.E.2d 302, 309 (1982) (citation omitted), disc. rev. denied, 307 N.C. 468, 299 S.E.2d 221 (1983). To show an abuse of discretion, the defendant must prove that the trial court’s ruling was “manifestly unsupported by reason. A ruling committed to a trial court’s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (internal citation omitted). IV.N.C. Gen. Stat. $ 95-25.22 Defendant argues the trial court abused its discretion when it awarded $25,000.00 in attorney’s fees and $2,534.14 in costs when a judgment of only $72.00 was awarded to plaintiff and the remaining claims for violation of REDA and wrongful discharge were dismissed with prejudice. We disagree. “The general rule is that attorney fees may not be recovered by the successful litigant as damages or a part of the court costs, unless expressly authorized by statute or a contractual obligation.” Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 466-67, 553 S.E.2d 431, 443 (2001) (citing Stillwell Enterprises, Inc. v. Interstate Equip. Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814 (1980)), disc. rev. denied, 356 N.C. 315, 571 S.E.2d 220 (2002). N.C. Gen. Stat. § 95-25.22(d) (2005) states, “[t]he court, in any action brought under this Article may, in addition to any judgment awarded plaintiff, order costs and fees of the action and reasonable attorneys’ fees to be paid by the defendant.” (Emphasis supplied). Before awarding attorney’s fees, the trial court must make specific findings of fact concerning: (1) the lawyer’s skill; (2) the lawyer’s hourly rate; and (3) the nature and scope of the legal services rendered. In re Baby Boy Searce, 81 N.C. App. 662, 663-64, 345 S.E.2d 411, 413, disc. rev. denied, 318 N.C. 415, 349 S.E.2d 590 (1986); see also Kelly v. N.C. Dep’t of Env’t & Natural Res., 192 N.C. App. 129, -, - S.E.2d -, - (2008) (“Although the award of attorney’s fees is within the discretion of the trial judge . . ., the trial court must make findings of fact ‘as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney.’ ” (Quoting N.C. Dep’t of Corr. v. Myers, 120 N.C. App. 437, 442, 462 S.E.2d 824, 828, aff'd per curiam, 344 N.C. 626, 476 S.E.2d 364 (1996))). In Whiteside Estates, Inc., the defendant appealed attorney and expert witness fees awarded under the Sedimentation Pollution Control Act of 1973. 146. N.C. App. at 468, 553 S.E.2d at 444. The record on appeal revealed that “detailed invoices for legal fees were submitted to the trial court along with an affidavit of . . . [the] plaintiff’s counsel, which set forth the hourly rates for the legal services rendered, the fact that the hourly rates charged were commensurate with the type of work involved, and [were] within the range of such fees and charges customarily charged in the community.” Id. This Court affirmed the trial court’s award of attorney’s fees and stated, “[the] [defendant . . . presented no evidence that the trial court ignored its motion, responses, or arguments. Absent such a showing by [the] defendant, we cannot find an abuse of discretion.” Id. at 469, 553 S.E.2d at 444. Here, defendant concedes that the trial court’s factual findings with regard to the skill and hourly rate of plaintiff’s counsel are adequate, but disputes the trial court’s findings with regard to the nature and scope of the legal services rendered: (6) That the hours expended by [plaintiff’s counsel in order to obtain a verdict in [p]laintiff’s favor were reasonable considering the issues in this case and the manner in which the case was defended. (7) That the Court has taken into consideration the jury’s verdict on the [REDA] claim and the fact that the jury ultimately ruled in favor of [defendant on its affirmative defense. That the Court is not awarding fees for this cause of action. (8) That the Court has taken into account the nature of the settlement negotiations between the parties and finds that it was reasonable and necessary for [p]laintiff to seek a jury trial of her case. (9) That the fees being awarded by the Court were necessary to the prosecution of this case and the rendering of a final judgment in favor of [p]laintiff on her claim for unpaid wages under the Wage and Hour Act. Defendant has failed to show that the trial court, in making these findings: (1) did not hear all of the attorneys’ arguments; (2) observe their litigation strategies; (3) watch their examination of witnesses; (4) rule on their evidentiary objections; (5) read their briefs; (6) listen to their summations of the evidence; and (7) consider their post-trial motions. “Absent such a showing by defendant, we cannot find an abuse of discretion.” Id. Adopting the position advocated by defendant could hinder future parties from litigating claims when attorney fees and costs might outweigh the award received. In Hicks v. Albertson, our Supreme Court reviewed an award of attorney’s fees in a property damage claim case. 284 N.C. 236, 200 S.E.2d 40 (1973). Our Supreme Court affirmed the trial court’s award and stated: The obvious purpose of th[e] statute [at issue was] to provide relief for a person who has sustained injury or property damage in an amount so small that, if he must pay his attorney out of his recovery, he may well conclude that is not economically feasible to bring suit on his claim. In such a situation the Legislature apparently concluded that the defendant, though at fault, would have an unjustly superior bargaining power in settlement negotiations. Id. at 239, 200 S.E.2d at 42. Here, although plaintiff’s claim for attorney’s fees and costs stemmed from a jury’s verdict awarding plaintiff unpaid wages, the same reasoning articulated by our Supreme Court in Hicks is equally applicable. 284 N.C. at 239, 200 S.E.2d at 42. Based upon our Supreme Court’s reasoning in Hicks and this Court’s reasoning in Whiteside Estates, Inc., defendant has failed to show the trial court abused its discretion when it awarded to plaintiff attorney’s fees and costs pursuant to N.C. Gen. Stat. § 95-25.22. Hicks, 284 N.C. at 239, 200 S.E.2d at 42; Whiteside Estates, Inc. -, 146 N.C. App. at 469, 553 S.E.2d at 444. This assignment of error is overruled. V. Conclusion Defendant failed to show that the trial court’s order “was so arbitrary that it could not have been the result of a reasoned decision.” White, 312 N.C. at 777, 324 S.E.2d at 833. The trial court’s order, which awarded attorney’s fees and costs to plaintiff, is affirmed. Affirmed. Judges CALABRIA and ELMORE concur.