Wage Theft Cases

Nicholas J. DeSantis vs. Commonwealth Energy System & another. No. 06-P-538. Worcester. December 14, 2006. April 26, 2007. Present: Lenk, Armstrong, & Cypher, JJ. Contract, Performance and breach, Employment. Damages, Breach of contract, Interest. Labor, Wages, Failure to pay wages. Federal Preemption. Statute, Federal preemption. Employee Retirement Income Security Act. Employment, Employee benefit plan. Judgment, Interest. Practice, Civil, Interest. In an action brought by an employee against a former employer, alleging breach of contract and violation of the wage act, G. L. c. 149, § 148, arising from the employer’s failure to pay commissions to the employee for his securing contracts for the sale of natural gas, the judge did not err in denying the employer’s motion for judgment notwithstanding the verdict (or, in the alternative, for a new trial), where the evidence supported the judge’s conclusion that an agreement existed to pay commissions to the employee upon his sale of a supply contract, and not at some later date [763-766]; further, the evidence was sufficient to support the judge’s determination that the commissions fell within the scope of the wage act, and the judge did not abuse his discretion in trebling the damages under the act, given the employer’s intentional and wilful violation of the parties’ agreement and the employer’s conduct showing a reckless indifference to the employee’s rights [766-769]. In an action brought by an employee against a former employer, seeking pension-related damages arising from the employer’s failure to pay commissions to the employee, there was no merit to the employer’s argument that the claim was preempted by the Federal Employee Retirement Income Security Act of 1974, where the employee’s claim did not require the interpretation of any retirement plan document [769-770]; however, the trial court judge erred in denying the employer’s motion for judgment notwithstanding the verdict (or, in the alternative, for a new trial) insofar as it requested amendment of the award of prejudgment interest, where the interest had been improperly calculated on the present value of future lost pension benefits [770-772], Civil action commenced in the Superior Court Department on February 7, 2002. Claims for breach of contract were tried before John S. Mc-Cann, J.; claims for treble damages, loss of pension benefits, and attorney’s fees were heard by him; and a motion for judgment notwithstanding the verdict was heard by him. Christopher Novello for the defendants. Paul M. Stein for the plaintiff. COM/Energy Marketing, Inc. (CEM Co.), a subsidiary of Commonwealth Energy System (System). Cypher, J. This case arose from a challenge by the plaintiff, Nicholas J. DeSantis, to the method his former employer, COM/ Energy Marketing, Inc. (CEM Co.), used in paying him commissions for his securing contracts (supply contracts) for the sale of “natural gas commodity.” DeSantis’s complaint contained two counts alleging breach of express and implied contract for severance benefits, and two counts alleging breach of express and implied contract for sales commissions. A fifth count alleged violation of G. L. c. 149, § 148 (the wage act), for nonpayment of commissions. By agreement of the parties, the case was bifurcated. A jury trial was conducted to address the questions whether there was an agreement for a severance package, or “lifeline,” and whether any commissions were owed. The jury were also asked special questions related to whether the commissions fell within the parameters of the wage act. The matters reserved for the jury-waived portion of the trial were whether any damages for lost commissions would be tripled pursuant to the wage act, whether the value of DeSantis’s pension had been diminished, and attorney’s fees. After a seven-day trial in November, 2004, the jury determined that there was no lifeline severance agreement, but that CEM Co. was in breach of its employment contract with DeSantis. The jury awarded damages for commissions due of $79,598.10. Subsequently, the judge addressed the matters that had been reserved to him. Based on the jury’s answers to special questions, the judge concluded that the wage act had been violated by the failure to pay commissions and, pursuant to G. L. c. 149, § 150, trebled the damages, to $238,794.30. The judge also found that, as a result of the commissions not paid, DeSantis suffered a loss of $42,841.56 in pension benefits from October 1, 2001, when he began receiving benefits, up to the date of trial. The present value of lost pension benefits from the date of trial for the duration of DeSantis’s life expectancy was determined to be $209,422.54. The judge thereafter ordered judgment for total damages of $491,058.48, and also awarded DeSantis attorney’s fees of $60,932.10, and costs of $2,346.55. The defendants submitted a combined motion for judgment notwithstanding the verdict (judgment n.o.v.); to amend the judgment; or alternatively for a new trial. The combined motion was denied by the judge on December 30, 2005. This appeal by both parties followed. The defendants argue that the judge abused his discretion in denying their combined motion for judgment n.o.v. and other relief, principally claiming that (1) DeSantis was not owed further commissions; (2) the judge erroneously ruled that the wage act was applicable; (3) DeSantis’s claim for pension damages was preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq. (ERISA); and (4) the calculation of prejudgment interest was incorrect. In his cross appeal, DeSantis agrees that prejudgment interest was incorrectly determined and proposes an alternative calculation. Background. In 1997, Commonwealth Energy System (System) formed CEM Co. to sell natural gas supply contracts to commercial and industrial customers in the market that resulted from the deregulation of the gas industry in the 1990’s. DeSantis, who had been an employee of Commonwealth Gas Company (another subsidiary of System) since 1985, was offered a position in CEM Co. as a sales representative by Robert T. Bucknell, CEM Co. vice-president of sales. DeSantis accepted in July, 1997. During the course of his employment with CEM Co., DeSantis sold some seventy-five single- and multiple-year supply contracts. On February 23, 1999, CEM Co. was sold to Reliant Energy Retail, Inc. (Reliant), and DeSantis’s employment with CEM Co. was terminated effective a few days later. DeSantis thereafter accepted employment with Reliant as a salesman. During his employment with CEM Co., DeSantis received monthly salary payments, but he received no commissions until October, 1998, followed by two additional payments, one in December, 1998, and another in June, 1999, after he had left CEM Co. Occupied with his sales work, and thinking CEM Co. would pay, DeSantis did not complain about the delayed payment of commissions. Beginning in October, 1998, CEM Co. informed its employees that a buyer was being sought for the company. In that month, DeSantis was asked to meet with Victor DiNardo, director of human resources, and Carol Cormier, benefits administrator, to discuss the effect of the sale on his future employment. DeSantis was informed of benefits available upon termination; when he was told about company policy on severance payments, he said that it was not what he expected from earlier discussions with Bucknell. Particularly concerned that he had sold nearly seventy-five supply contracts for which commission payments had been delayed, DeSantis stated that those commissions had to be paid. DeSantis was told that his commissions would be paid only as long as he remained an employee of CEM Co. He testified that he did not recall what his response was, but that “I had a funny feeling in the pit of my stomach, to say the least.” DeSantis contacted an attorney soon after that meeting. Discussion. We recite the familiar standard: “When acting on a defendant’s motion for judgment notwithstanding the verdict, the judge’s task, ‘taking into account all the evidence in its aspect most favorable to the plaintiff, [is] to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff.’ ” Tosti v. Ayik, 394 Mass. 482, 494 (1985), S.C., 400 Mass. 224, cert. denied sub nom. United Auto Wkrs., Local 422 v. Tosti, 484 U.S. 964 (1987), quoting from Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass. App. Ct. 252, 254 (1983). “Conflicting evidence alone does not justify judgment notwithstanding the verdict. . . . The court may not substitute its judgment of the facts for that of the jury.” Tosti v. Ayik, supra. It is unavailing for a defendant to argue that there was evidence warranting a contrary finding by the jury. CurtissWright Corp. v. Edel-Brown Tool & Die Co., 381 Mass. 1, 4 (1980). “[W]e inquire . . . whether from the evidence it was possible to draw enough reasonable inferences to make out the elements of the plaintiffs case.” Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84, 89-90 (1987), and cases cited. 1. Breach of contract — payment of commissions. The defendants argue that there was no evidence of a contractual agreement to pay DeSantis’s commission upon his sale of a supply contract rather than at a later date. The judge stated, “There was evidence from which the jury could reasonably conclude that, according to the terms of DeSantis’[s] employment, commissions were due and payable when DeSantis booked a sales contract.” The judge also referred to evidence relating to the “nature of trading natural gas commodity futures” and “CEM Co.’s method of recording [supply] contracts and its calculation of commissions based on this method.” Our examination of the evidence supports the judge’s conclusion. The terms of DeSantis’s compensation were stated in a letter dated July 1, 1997, from John R. Williams, vice-president of COM/Energy Services Company. It confirmed the offer of a position made by Bucknell, and stated: “You will maintain your current base salary of $64,372 plus a commission equal to 20% of gross margins earned on sales of natural gas commodity.” It was DeSantis’s contention that this language indicated that he would earn commissions upon the sale of a supply contract, and that the commissions were to be paid “up front,” based on the “gross margin” determined at the beginning of the supply contract. DeSantis introduced the following evidence explaining how gross margins were determined in the sale of supply contracts for natural gas commodity in the unregulated market. Sales in the unregulated market generally were made through longer term “requirements contracts” with larger commercial and industrial users. The customer obtained a fixed price for gas supplied for the contract term. CEM Co. purchased the gas for that term in the “energy futures market.” Accordingly, a gross margin of profit could be determined at the beginning of the supply contract, and the contract had an “intrinsic value” which was “booked” in CEM Co.’s financial records and treated as an asset. The evidence established that “gross margin” was a term that had meaning only when determined at the beginning of a supply contract, and had no significance in how customers later were charged for the gas actually used. When DeSantis sold a supply contract, he prepared a worksheet containing data on quantities of gas sold, the cost to CEM Co., and the price to be charged the customer, all in the ordinary course of his duties. The gross margin was determined for each customer. At that time his work was completed and, DeSantis claimed, his commission had been earned. He performed no further work on those supply contracts. DeSantis also kept a summary of all the supply contracts he sold, based on the worksheets, from which he could determine the commission due him from the gross margin applicable to each sale. DeSantis began preparing the summary at the end of 1997 or the beginning of 1998. The defendants did not dispute any of the data in the worksheets or in the summary. There was also no dispute over the meaning or significance to CEM Co. of “gross margin.” According to Bucknell, gross margin is “the difference between the price we sold the gas at and what we actually paid for the gas.” He also described a “booking” as “essentially a projection of revenue expectations from a sale of a contract,” and stated that “[a] booking means[] it’s on the books,” i.e., the total value of a supply contract over its term has been entered in CEM Co.’s financial records. According to Michael Collins, another sales representative, it was his understanding that commissions were earned when a supply contract was sold and executed by the parties, and commissions were paid at that point. He described the contract worksheet as the basis for how his commissions were paid. According to Bucknell, after hiring the sales force, there were no discussions about how they would be paid, but there were discussions about when they would be paid. He agreed that it was their expectation that they would receive commissions regularly with monthly paychecks. Bucknell testified that after calculating the gross margin on a sale, the “sales representative who signed that contract would be paid a percentage of [the gross] margin, and that payment would be made once the customer had received the gas and had actually paid ... for the gas.” Robert Paul, president of CEM Co., testified similarly, and also stated that commissions could not be paid earlier because, in accordance with CEM Co.’s business plan, it had to have cash flow to operate. No one in the sales force was paid commissions for at least one year after CEM Co. began operations. Bucknell was sure that DeSantis and others were concerned that the commissions were not timely paid. Bucknell stated that a major reason for the delay was the unavailability of computer software to process payments, and that commissions could not be calculated until customer invoices and payments could be examined. DeSantis never received any regular reports, documentation, or computer runs on his commissions. The commission checks he received in October and December, 1998, were not accompanied by any documentation. It was not until June, 1999, that DeSantis saw any documentation indicating how his commissions were calculated and, in an exchange with DiNardo, disagreed with the amount presented; DeSantis subsequently accepted a different amount as partial payment. There was no error in the denial of the defendants’ motion for judgment notwithstanding the verdict, as the evidence readily supported a finding that commissions were due and payable when DeSantis booked a sales contract. 2. The wage act. The defendants argue that the evidence was insufficient to support a finding that the wage act applied to De-Santis’s commissions. General Laws c. 149, § 150, second par., as amended by St. 1999, c. 127, § 145, states in relevant part: “Any employee claiming to be aggrieved by a violation of section 148 . . . may, at the expiration of ninety days after the filing of a complaint with the attorney general . . . and within three years of such violation, institute and prosecute in his own name and on his own behalf . . . , a civil action for injunctive relief and any damages incurred, including treble damages for any loss of wages and other benefits. An employee so aggrieved and who prevails in such an action shall be entitled to an award of the costs of the litigation and reasonable attorney fees.” General Laws c. 149, § 148, third par., as appearing in St. 1956, c. 259, is violated where an employer fails to pay commissions “when the amount of such commissions . . . has been definitely determined and has become due and payable to [an] employee.” Special questions were developed for the jury, formulated to address the elements of the wage act. The jury were to determine the underlying factual grounds for the applicability of the act; that is, (1) whether DeSantis’s commissions were “definitely determined” and “due and payable” at the time of the sale of a supply contract; (2) whether the commissions were a significant part of his compensation; and (3) whether the commissions should have been paid on a regular basis. The jury answered “yes” to all of these questions, implicitly finding in addition that (1) DeSantis’s commissions were determined on the basis of the gross margin calculated and booked at the time DeSantis completed his work on a supply contract; and (2) the offer of commissions was stated together with the salary offered DeSantis. Accordingly, the jury’s findings were sufficient to provide the factual underpinnings for the judge’s determination that the commissions fell within the scope of the wage act. The jury found the defendants in breach of DeSantis’s employment contract, and assessed damages of $79,598.10, the difference between DeSantis’s calculation of the commissions due him of $139,033.40, and the $59,435.30 he had received. The judge summarily trebled the damages to $238,794.30, relying on the language in G. L. c. 149, § 150, second par., that an employee may prosecute a “civil action for injunctive relief and any damages incurred, including treble damages for any loss of wages and other benefits.” Subsequently, in his memorandum of decision on the defendants’ combined posttrial motion, the judge reconsidered the trebling of the damages in light of the decision in Wiedmann v. The Bradford Group, Inc., 444 Mass. 698 (2005), decided some seven months after his January, 2005, decision (see note 11, supra). In Wiedmann, the court stated that “[bjecause the plain language of [G. L. c. 149, § 150,] does not require a judge to award treble damages, we decline to create such a requirement and conclude that such an award is in a judge’s discretion.” Id. at 710. The Wiedmann court further stated: “Our conclusion is similar to the conclusion in Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 178-179 (2000), and cases cited . . . [, where t]he court stated that treble damages are punitive in nature, . . . and appropriate where conduct ‘is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.’ ” Wiedmann, supra. In reviewing the evidence in light of the decision in Wiedmann, the judge stated, “[I]t is clear that the award of treble damages in the instant case remains in this Court’s discretion.” He found that the defendants knew DeSantis was to receive commissions regularly but sought to excuse the lack of payments because of a shortage of funds resulting from the start-up of a new business, and because no automated financial system was available. The judge concluded, however, that because CEM Co. was managed by experienced employers such as Bucknell, and was a subsidiary of System, an established business, these reasons were without merit and the defendants acted in knowing and wilful disregard of DeSantis’s rights. The judge did not abuse his discretion in trebling the damages. Here, CEM Co.’s business plan placed a controlling priority in its favor on cash flow rather than paying commissions. Moreover, where the sale of CEM Co. inevitably resulted in cutting off full payment of DeSantis’s commissions, there was an intentional and wilful violation of the parties’ contract, and conduct showing a reckless indifference to DeSantis’s rights. 3. Alleged ERISA preemption of pension damages claim. De-Santis, who had a “defined benefit” pension plan, alleged that his pension benefits had been reduced as a result of the failure to pay his commissions. The claim was reserved as a jury-waived issue, and a hearing was held to determine the present value of the lost benefits. The defendants argue that DeSantis’s claim for pension damages was preempted by ERISA. They invoke the broad preemp

ROBERT A. LEVERETTE, RICKY WHITEHEAD, and JOHN ALLEN CLARK, both individually and on behalf of all other similarly situated persons, Plaintiffs v. LABOR WORKS INTERNATIONAL, LLC, LABOR WORKS INTERNATIONAL d/b/a LABOR WORKS SOURCE-RALEIGH, LLC, LABOR WORKS SOURCE-GREENSBORO, LLC, LABOR WORKS SOURCE-DURHAM, LLC, and BATTS, TEMPORARY SERVICES, INC., LABOR WORKS SOURCE-RALEIGH, LLC, LABOR WORKS SOURCE-DURHAM, LLC, LABOR WORKS SOURCE-GREENSBORO, LLC, BATTS TEMPORARY SERVICES, INC. d/b/a LABOR WORKS OR LABOR WORLD, BILL C. SCHLEUNING, and SEAN FORE, Defendants No. COA06-78 (Filed 7 November 2006) 1. Class Actions— ruling on summary judgment before deciding motion for class certification The trial court did not abuse its discretion by ruling on defendants’ motion for summary judgment before it decided plaintiffs’ motion for class certification. 2. Employer and Employee— hours worked — waiting to be transported to jobs — rental of safety equipment — submission to breathalyzer exam Time that day laborers spent waiting at defendant temporary employment agencies’ offices for transportation to job sites, time spent in defendants’ vans going to and from job sites, and time spent at defendants’ offices taking breathalyzer tests and renting safety equipment for the jobs were not compensable “hours worked” under the N.C. Wage and Hour Act or under the federal Portal to Portal Act, 29 U.S.C. § 254, because: (1) the Portal to Portal Act provides that employers must compensate employees for time spent waiting and traveling only when it is part of a principal activity or for those duties integral and indispensable to the employer’s business, but not if it is a preliminary or postliminary activity; (2) no laborer was required to rent or purchase safety equipment as each could either provide his own equipment or decline any job ticket on which equipment was required, and no specialized safety equipment or tools weré required on the jobs offered by defendants; (3) the van transportation provided by defendants was essentially home-to-work travel not compensable under the FLSA or NCWHA as “hours worked” and not “an incident of and necessary to the employment;” (4) submission to a breathalyzer exam was not an activity which laborers were hired to perform and was a precondition to employment; and (5) defendants did not require potential employees to arrive at their offices at any particular time. Furthermore, wage deduction authorization forms used by defendants for transportation and safety equipment rental met the requirements of the N.C. Wage and Hour Act. 3. Employer and Employee— enterprise — summary judgment The trial court did not err by determining there was no genuine issue of material fact that corporate defendants were not part of an enterprise under N.C.G.S. § 95-25.2(18) and by granting summary judgment in their favor, because deposition testimony that each of the limited liability companies ultimately deposited their funds into an account maintained by one company does not give rise to an issue of fact as to whether these entities engaged in related activities performed through a unified operation or common control for a common business purpose as required by FLSA. Appeal by plaintiffs from an order entered 12 September 2005 by Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard in the Court of Appeals 23 August 2006. Robert J. Willis for plaintiff-appellants. Bailey & Dixon, LLP, by David, Wisz and Kenyann Brown Stanford, for defendant-appellees. Carol Brooke for North Carolina Justice Center, amicus curiae. BRYANT, Judge. Robert A. Leverette, Ricky Whitehead and John Allen Clark (plaintiffs) appeal from an order entered 12 September 2005 granting Labor Works International, L.L.C., Batts Temporary Services, Bill C. Schleuning and Sean Fore (collectively defendants’) motion for summary judgment. For the reasons stated below, we affirm. Facts/Procedural History Defendants operate as “daily work, daily pay” temporary services with locations in Raleigh, Durham, and Greensboro, North Carolina. Defendants’ offices provide additional workers for jobs which entail temporary light industrial labor and hire day laborers on a first come, first served basis. The Raleigh office opens at 5:30 a.m. to begin dispensing job tickets to those individuals in search of work. First time applicants are asked to complete an employment application provided by defendants. Defendants make van transportation available to employees to and from the job site; use of van transportation is voluntary and based upon each employee’s transportation needs. A section of the employment application allows an applicant to sign the “Voluntary Payroll Deduction for Van Use”: I understand that I am not required by Batt’s [sic] to use the Van Service offered by Batt’s [sic], I further understand and acknowledge that if I voluntarily elect to ride in the Batt’s [sic] van, that I will be charged $4.00 and hereby authorize these deductions. I also understand that the amount charged for Van Transportation is subject to vary without notice. The amount of the fee deducted from an individual’s wages for transportation service is further stated on signs posted in the Raleigh office as well as inside each transportation van and updated accordingly. Defendants’ clients often required safety equipment such as goggles, hard hats, gloves, and boots for employees to use while working at a particular job site. Those individuals employed by defendants who do not own this type of safety equipment may elect to purchase or rent the equipment from defendants and must sign the “Voluntary Payroll Deduction for Safety Equipment” section of the Batts employment application. The purchase price or rental fee is then deducted from the individual’s daily wages at the end of the workday. The amount of the fee to be deducted is stated in the employment application itself, as well as on signs posted in defendants’ offices. In addition to signing the wage deduction forms for transportation and equipment purchase/rental, it is defendants’ policy to submit every prospective employee to a breathalyzer exam prior to sending the employee to the job site. An individual whose breathalyzer result is positive for alcohol will not be permitted to work on that day. After having passed the breathalyzer examination, an employee may use their own transportation, walk to the assigned job site, or board defendants’ transportation van if desired. Once a workday is complete, defendants’ van returns to each job site to pick up any employees desiring to use the transportation service. These employees are returned to defendants’ office and are then issued a paycheck according to the time listed on their job tickets by the supervisor on the job site. Employees axe paid an hourly wage in accordance with the North Carolina Wage and Hour Act (NCWHA) and the Federal Wage and Hour Laws for the amount of time they spend under the client’s supervision on the job site. Deductions are made from each daily paycheck, as appropriate, for any transportation and/or equipment rental or purchase charges. An individual who performs well on a job site may return the next day for work on a “repeat ticket.” When an individual earns a “repeat ticket,” defendants request the individual return to defendants’ office the next day one hour prior to the start time of the job to take the mandatory breathalyzer as a pre-condition to employment that day. There is no specific requirement that the employee comply with this request, however, or even that they work the “repeat ticket” the next day. In the instant case, plaintiffs worked exclusively through defendants’ Raleigh office. Plaintiff Leverette first sought work with defendants on 6 November 2000. On that date, Leverette filled out defendants’ employment application, signing the “Voluntary Payroll Deduction for Van Use” section. However, Leverette did not sign the “Voluntary Payroll Deduction for Safety Equipment” section of the application and no deductions were ever taken from his wages for the rental or purchase of safety equipment. Leverette worked numerous temporary jobs through defendants’ Raleigh office from November 2000, through approximately 20 June 2001, utilizing the transportation service frequently. During that seven month time period, defendants deducted a total of $549.00 for Leverette’s use of the transportation service. Plaintiff Whitehead also sought temporary work through defendants in November 2000. At that time, Whitehead filled out the employment application, but did not sign the “Voluntary Payroll Deduction for Van Use” or “Voluntary Payroll Deduction for Safety Equipment” sections of the application. Whitehead testified that he had no knowledge as to why those sections were unsigned and stated the sections were neither knowingly nor intentionally left unsigned. Whitehead worked temporary jobs through defendants on six days between 3 November 2000 and 10 November 2000, utilizing the transportation service each day. During that time, defendants deducted a total of $18.00 for his use of the transportation service. No deductions were ever made for the rental or purchase of safety equipment. Plaintiff Clark first sought temporary work through defendants on 15 August 2003. On that date, he filled out the employment application, signing both the “Voluntary Payroll Deduction for Van Use” and “Voluntary Payroll Deduction for Safety Equipment” sections of the application. Clark worked temporary jobs through defendants’ Raleigh office on twenty-six days between 15 August 2003 and 6 July 2004, utilizing the van service several times. A total of $40.00 was deducted during this time for Clark’s use of defendants’ transportation service, and a total of $5.50 was deducted for four occasions on which Clark elected to rent safety equipment. None of the plaintiffs held a North Carolina driver’s license at the time of their employment with defendants. None of them had access to a vehicle or other means of transportation. Plaintiffs relied on either public transportation or defendants’ van service to travel to and from the job site. Plaintiff Robert Leverette (Leverette) instituted this action on 21 February 2002. Batts Temporary Service, Inc., Lorraine Schleuning, Bill C. Schleuning, and Sean Fore were initially named as defendants. On two different occasions, the complaint was amended to add Ricky Whitehead (Whitehead) and John Allen Clark (Clark) as additional plaintiffs; and Labor Works International, L.L.C., Labor Works Source-Raleigh, L.L.C., Labor Works Source-Greensboro, L.L.C., and Labor Works Source-Durham, L.L.C. were added as additional defendants. The complaint was also amended to dismiss the action as to Lorraine Schleuning. On 15 March 2005, plaintiffs filed a Motion for Partial Summary Judgment as to liability. Defendants filed an Answer in response to plaintiffs’ Second Amended Complaint on 18 March 2005. Defendants’ Motion for Summary Judgment and plaintiffs’ Motion for Class Certification were scheduled for hearing on 3 May 2005. The trial court declined to hear the class certification motion at that time. Instead, the class certification motion was heard on 27 July 2005, but was never ruled on by the trial court. By Order dated 12 September 2005, the trial court denied plaintiffs’ Motion for Partial Summary Judgment and granted defendants’ Motion for Summary Judgment. Plaintiffs appeal. On appeal plaintiffs argue the trial court erred: (I) by ruling on defendants’ motion for summary judgment before it decided plaintiffs’ motion for class certification; (II) in granting defendants’ motion for summary judgment; and (III) in determining there was no genuine issue of material fact that Labor Works International, L.L.C., Labor Works Source-Raleigh, L.L.C., Labor Works Source-Durham, L.L.C. and Labor Works Source-Greensboro, L.L.C. were not part of an “enterprise” under N.C. Gen. Stat. § 95-25.2(18). On cross-appeal, defendants argue the trial court erred: (IV) in denying defendants’ motion for summary judgment as to plaintiff Whitehead based on statute of limitations; and (V) denying defendant Schleuning and Fore’s motion for summary judgment where plaintiffs failed to forecast any evidence of individual liability. I Plaintiffs first argue the trial court erred by ruling on defendants’ motion for summary judgment before it decided plaintiffs’ motion for class certification. We disagree. The trial court’s determination of the sequence in which motions will be heard is reviewed on an abuse of discretion standard. Berkeley Fed. Sav. & Loan Ass’n v. Terra Del Sol, 111 N.C. App. 692, 710, 433 S.E.2d 449, 458 (1993). The trial court has discretion in addressing summary judgment arguments prior to class certification. See Gaynoe v. First Union Corp., 153 N.C. App. 750, 756, 571 S.E.2d 24, 28 (2002). In Reep v. Beck, 360 N.C. 34, 619 S.E.2d 497 (2005), our Supreme Court recently rejected any argument that dispositive motions cannot properly be considered until after ruling on a motion for class certification, and further recognized the wide latitude that trial judges are given in this regard. As the Court stated, “ [t]his Court is confident that, in determining the sequence in which motions will be considered, North Carolina judges will continue to be mindful of longstanding exceptions to the mootness rule and other factors affecting traditional notions of justice and fair play.” Id. at 40, 619 S.E.2d at 501. In the instant case, plaintiff Leverette filed an initial motion for class certification in April 2002, which was not calendared for hearing until December 2002, after plaintiffs’ complaint was amended to add plaintiff Whitehead. A ruling was not issued on plaintiffs’ initial class certification motion. Plaintiffs voluntarily withdrew their second class certification motion in January 2003. After this matter was dismissed and remanded by this Court, plaintiffs amended their complaint a second time to add plaintiff Clark and the Labor Works Source defendants. See Leverette v. Batts Temp. Servs., 165 N.C. App. 328, 598 S.E.2d 192, disc. rev. denied, 359 N.C. 69, 604 S.E.2d 666 (2004). Plaintiffs filed their third motion for class certification on 21 February 2005, but did not calendar that motion for hearing until 3 May 2005. Also scheduled for hearing on that date was defendants’ motion for summary judgment and plaintiffs’ motion for partial summary judgment. The trial court declined to hear the class certification motion on 3 May 2005, so plaintiffs calendered the class certification motion for 27 July 2005, before a different judge. No ruling was issued on the class certification motion prior to the issuance of a ruling on the pending summary judgment motions by Order dated 12 September 2005. In light of this procedural history and the nature of plaintiffs’ claims, the trial court properly exercised its discretion to refrain from ruling on the motion for class certification until first deciding the cross motions for summary judgment. Plaintiffs have failed to establish that the trial court abused its discretion. This assignment of error is overruled. II Plaintiffs argue the trial court erred in granting defendants’ motion for summary judgment because plaintiffs. contend genuine issues of material fact and law existed. Specifically, plaintiffs argue the trial court erred in determining the meaning of the term “hours worked.” We disagree. A trial court’s ruling on a motion for summary judgment is reviewed de novo. Coastal Plains Utils, Inc. v. New Hanover County, 166 N.C. App. 333, 340-41, 601 S.E.2d 915, 920 (2004). All evidence must be considered in the light most favorable to the non-movant. Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 124 (2002). Plaintiffs claim they should have received wages for the time they spent waiting at defendants’ offices to be transported to the job site, as well as for any time spent traveling to and from each job site in defendants’ van, arguing this time was part of “hours worked” under the North Carolina Wage and Hour Act (NCWHA). North Carolina General Statutes, Section 95-25.6, part of the NCWHA, provides that “[e]very employer shall pay every employee all wages and tips accruing to the employee on the regular payday.” The NCWHA further provides that the term “hours worked” means “all time an employee is employed,” and the term “employ” in turn means “suffer or permit to work.” N.C. Gen. Stat. § 95-25.2 (3) & (8); 29 U.S.C. § 203 (g). Defendants concede they intended to pay plaintiffs for all hours considered to be work under federal or North Carolina law, however there is disagreement between the parties that time spent waiting or traveling to the job site was compensable. Job applications completed by plaintiffs do not indicate plaintiffs would receive compensation for the time they spent waiting to work or traveling to a job site. The evidence also shows plaintiffs were free to do as they wished prior to receiving a job assignment and afterward, even while waiting for defendants’ van to transport them. The recent cases of Whitehead v. Sparrow Enter., 167 N.C. App. 178, 605 S.E.2d 234 (2004) and Hyman v. Efficiency, Inc., 167 N.C. App. 134, 605 S.E.2d 254 (2004) address whether such waiting to work time is compensable under the law. In both cases, this Court considered class action claims by day laborers against their temporary agency employers alleging violations of the NCWHA based on the withholding of wages for transportation and failure to compensate for waiting and travel time. Pursuant to the Portal to Portal Act (PPA), 29 U.S.C. § 254, employers must compensate employees for time spent waiting and traveling only when it is part of a principal activity or for “those duties integral and indispensable to the employer’s business, . . . but not if it is a preliminary or postlimi-nary activity.” Whitehead, 167 N.C. App. at 189, 605 S.E.2d at 241 (citations omitted); Hyman, 167 N.C. App. at 145, 605 S.E.2d at 262 (citations omitted). Two factors should be considered in determining whether an employee’s waiting time is compensable under the PPA: (a) “whether the time spent is predominantly to benefit the employer and integral to the job;” and (b) whether the employee “is able to use the time for their own personal activities.” Whitehead, 167 N.C. App. at 190, 605 S.E.2d at 241-42. As this Court stated: The class members’ time spent waiting directly correlates to their choice of transportation. They are free to spend that time as they wish. It is neither beneficial nor indispensable to defendant’s business. We decline to extend “hours worked” to include the class members’ waiting time prior to arrival at the job site and at the end of the day. Id. As in Whitehead and Hyman, defendants hire individuals on a daily basis based upon their customers’ demands on that particular day. These individuals receive assignments only if work is available that day. After an employee receives a job ticket, the individual can choose to ride the company transportation van to the job site or utilize a private or public alternative means of transportation to the job site. Individuals have free time while they wait to ride in defendants’ transportation van. Any employee who chose to use defendants’ van for transportation to the job site remained at defendants’ office to hear their name called for the van similar to the Whitehead plaintiffs. See Whitehead, 167 N.C. App. at 190, 605 S.E.2d at 242. The employer in Whitehead, as here, encouraged those employees with “repeat tickets” to show up one hour before their transportation time if they were using the employer’s van. Id. at 188, 605 S.E.2d at 240. Here, defendants made the purchase or rental of protective clothing and equipment available to employees if customers required the employees to be equipped with such gear and the employees did not possess their own protective equi

Samantha Smith & others vs. Winter Place LLC & others. Suffolk. April 3, 2006. - August 1, 2006. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Statute, Construction. Administrative Law, Agency, Agency’s interpretation of statute. Labor, Wages. Employment, Retaliation. Attorney General. This court concluded that G. L. c. 149, § 48, prohibits employers from retaliating against employees who complain to the management of the employer with a reasonable belief that the wages they have been paid violate the laws governing wages and hours, and that the statute’s protective reach is not limited to those employees who make an official complaint to a person involved in the civil or criminal enforcement of those laws. [366-368] A maitre d’ who merely conveyed to higher management complaints of the servers at the restaurant at which the maitre d’ and the servers were employed was not asserting the servers’ rights or complaining on their behalf, and therefore, the maitre d’ could not claim that his subsequent firing constituted retaliation prohibited under G. L. c. 149, § 48. [368-369] Civil action commenced in the Superior Court Department on March 7, 2002. A motion for summary judgment was heard by Nancy Staffier Holtz, J., and a question of law was reported to the Appeals Court by Ralph D. Gants, J. The Supreme Judicial Court granted an application for direct appellate review. Shannon Liss-Riordan for the plaintiffs. Gordon P. Katz for the defendants. The following submitted briefs for amici curiae: John E. Coyne & Kevin P. Sweeney for Massachusetts Restaurant Association. Ingrid Nava, Audrey R. Richardson, Patti A. Prunhuber, & Donald J. Siegel for Greater Boston Legal Services & others. Julia J. Carabillo & Andrea C. Kramer for The Women’s Bar Association of Massachusetts. Charles Kimball, Pierre Sosnitsky, and the administratrix of the estate of Bruce Porter. Doing business as Locke-Ober Company. Paul Licari and Lydia Shire, owners of the Locke-Ober Company. Cordy, J. Samantha Smith, Bruce Porter, and Charles Kimball were servers at the landmark Boston restaurant Locke-Ober; Pierre Sosnitsky was the maitre d’ and a manager. They contend that the defendants terminated their employment in violation of the retaliation provision of the Massachusetts wage laws, G. L. c. 149, § 148A, for complaining about what they perceived to be violations of the statute’s tip pooling provision, G. L. c. 149, § 152A. A Superior Court judge granted the defendants’ motion for summary judgment with respect to Kimball and Sosnitsky because their “complaints” about the alleged wage law violations were made only internally to management and not to the Attorney General’s office. The judge denied the motion for summary judgment as to Smith and Porter because there was evidence that they had each complained to the Attorney General’s office before being terminated. Subsequent to the ruling on the motion for summary judgment, another judge granted the plaintiffs’ motion to report the central legal question in the case to the Appeals Court pursuant to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996). We granted the plaintiffs’ application for direct appellate review. The question now before us is: “Does G. L. c. 149, § 148A, prohibit employers from retaliating against employees for making internal allegations of wage violations, even if those employees never brought their allegations to the attention of the Attorney General?” For the reasons set forth below, we answer the question in the affirmative. Accordingly, we reverse the entry of summary judgment against Kimball, and affirm the denial of summary judgment against Smith and Porter. We also affirm summary judgment against Sosnitsky, insofar as his conduct, the mere passing on of the servers’ complaints to the defendants, was not activity protected by the retaliation statute.* ** 1. Background. We recite the evidence in the summary judgment record, in its light most favorable to the plaintiffs. LockeOber reopened in November, 2001, under the ownership of the defendants Paul Licari and Lydia Shire. Sosnitsky was hired as the maitre d’. When the restaurant reopened, it instituted a tip pooling system. The system was proposed and designed by Sosnitsky, based on his experience working in another Boston restaurant. It required servers to share their tips with busboys, bartenders, and the maitre d’ at each shift according to a point system. The system met with immediate controversy; servers complained that they were not receiving all of their tips, and in particular, they complained that Sosnitsky should not be sharing in their tip pool. Based on the publicity that tip pooling had received in other contexts, and a pamphlet prepared and distributed by the Attorney General’s office entitled Commonly Asked Questions about the Massachusetts Wage and Hour Laws, the servers believed that the policy adopted by the defendants violated the Massachusetts wage laws. Smith and Porter complained about the tip pooling system to the Attorney General’s office prior to their termination. All of the server plaintiffs complained about the tip system to Sosnitsky. Sosnitsky advised Licari that the servers were upset about the tip pooling system, were upset that a manager was receiving a portion of their tips, and believed that the tip system was illegal. Licari’s response was that “we should just get rid of them.” The servers were subsequently fired by Sosnitsky. Shortly thereafter, Licari fired Sosnitsky. Sosnitsky claims that Licari was unhappy with him for bringing the servers’ complaints to his attention and that he was fired as a result. 2. Discussion, a. The reported question. General Laws c. 149, § 148A, provides: “No employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter. “Any employer who discharges or in any other manner discriminates against any employee because such employee has made a complaint to the attorney general or any other person, or assists the attorney general in any investigation under this chapter, or has instituted, or caused to be instituted any proceedings under or related to this chapter, or has testified or is about to testify in any such proceedings, shall have violated this section and shall be punished or shall be subject to civil citation or order as provided in [§] 27C” (emphasis added). The plain language of the first paragraph of § 148A extends the protection of the statute to employees who are penalized for taking “any action” to seek their rights under the laws governing wages and hours. A complaint made to an employer (or a manager of the employer) by an employee who reasonably believes that the wages he or she has been paid violate such laws readily qualifies as such an “action.” See, e.g., Simon v. State Examiners of Electricians, 395 Mass. 238, 242 (1985) (“starting point of our analysis is the language of the statute”). We decline the defendants’ invitation to interpret the second paragraph as narrowing the statute’s protective reach to those employees who make an official complaint to a person involved in the civil or criminal enforcement of the wage and hour laws. Statute 1998, c. 236, § 11, which added the second paragraph to G. L. c. 149, § 148A, is consistent with, and indeed expands the range of employees whose actions are protected in the first paragraph. Of particular significance, it protects employees from retaliation for making a “complaint to the attorney general or any other person.” While we need not decide whether the Legislature intended this provision to include complaints made to persons unrelated to either the business enterprise or the enforcement of the wage laws, it certainly includes complaints made to the management of the employer. The Attorney General’s office has also interpreted G. L. c. 149, § 148A, as amended, to protect both employees who make complaints to the Attorney General and those who take “any other action to seek statutory wage and hour rights.” Advisory 2004/3, at 5, Attorney General’s fair labor and business practices division. Insofar as the Attorney General’s office is the department charged with enforcing the wage and hour laws, its interpretation of the protections provided thereunder is entitled to substantial deference, at least where it is not inconsistent with the plain language of the statutory provisions. See Dahill v. Police Dep’t of Boston, 434 Mass. 233, 239 (2001) (State agency charged with enforcement of statute entitled to “substantial deference” in interpretation of statute through its issued guidelines). The defendants’ interpretation of § 148A, in addition to being contrary to its plain language, would discourage employees from bringing complaints to their employers’ attention directly and attempting informally and amicably to resolve disputes regarding the wage laws. Rather, it would encourage employees immediately to lodge official complaints with the Attorney General’s office and begin adversary proceedings. It would also encourage employers to terminate employees as soon as they caught wind of any internal concerns about potential wage violations, so that they might obviate potential penalties and retaliation claims under provisions of G. L. c. 149, § 148A. Such outcomes would directly contravene the purpose of the statute, to encourage enforcement of the wage laws by protecting employees who complain about violations of the same. b. Summary judgment. Having concluded that the complaints made by the plaintiff servers to Sosnitsky fall within the actions protected under § 148A, we reverse the grant of summary judgment as to Kimball, and affirm the denial of summary judgment as to Smith and Porter. We decline, however, to conclude that the conduct of Sosnitsky, the maitre d’, is covered by G. L. c. 149, § 148A. The plain language of the first paragraph protects only actians taken by an employee “to seek his or her rights” and does not provide similar protection for actions undertaken by a third party on behalf of another employee. Although the language of the second paragraph expands the range of persons and conduct protected by the statute, and likely would protect an employee (or manager) from being punished for asserting the right of another employee or complaining to management on that employee’s behalf, that is not this case. There is no evidence that Sosnitsky did either of these things, or took any other action protected under § 148A before his termination. See note 11, supra. The mere conveying of employee complaints by Sosnitsky to higher management (about a system Sosnitsky himself created and implemented) does not amount to asserting their rights, or complaining on their behalf. Cf. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2004) (under Title IX of Education Amendments of 1972, public high school girls’ basketball coach who complained that his team was not receiving equal funding and access to equipment and facilities and who was eventually fired could assert retaliation claim even though he was not victim of discrimination that was subject of his original complaints). 3. Conclusion. The answer to the reported question is, “Yes.” The judgment is affirmed in part and reversed in part, and the case is remanded to the Superior Court for further proceedings consistent with this opinion. So ordered. The judge also granted summary judgment for the defendants on the plaintiff servers’ claims that the defendants had violated G. L. c. 149, § 152A. That ruling has not been appealed, and the plaintiffs have now explicitly waived those claims. In the context of a retaliation claim brought under our discrimination laws, G. L. c. 151B, § 4 (4), we have held that a claim for “[retaliation is a separate and independent cause of action” from a claim of discrimination. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000). Its viability does not depend on the success of the underlying discrimination claim, so long as the plaintiff can prove that he “reasonably and in good faith believed the [employer] was engaged in wrongful discrimination,” and that the “[employer’s] desire to retaliate against [him] was a determinative factor in its decision to terminate [his] employment.” Id., quoting Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995). We see no reason to inteipret the retaliation provision of the wage laws differently. In granting the plaintiffs’ application for direct appellate review, we stated that we would review “all issues addressed by the interlocutory order.” Insofar as the plaintiffs have waived their claims under G. L. c. 149, § 152A, we only consider the summary judgment decisions regarding the retaliation claims. We had solicited amicus briefs and acknowledge briefs filed by Greater Boston Legal Services, Western Massachusetts Legal Services, and the Massachusetts AFL-CIO; the Massachusetts Restaurant Association, and The Women’s Bar Association of Massachusetts. Each position received a number of points and the tips were distributed to the servers, busboys, bartenders and the maitre d’ in proportion to the number of points designated for his or her respective position. In the Attorney General’s pamphlet, the following question was posed: “Can service employees be required to pool their tips?” The answer: “No. Under [G. L. c. 149, § 152A], it is illegal for an employer to require an employee in the service of food or beverage to pool, split or share their tips with management or other employees. . . .” General Laws c. 149, § 152A, was amended in 2004. See St. 2004, c. 125, § 13. It now permits an employer to set up a tip pool for the purpose of tip sharing among “wait staff employee[s],” “service employee[s],” and “service bartender[s],” who have “no managerial responsibility.” The amended statute does not apply to this case. The defendants contest the plaintiffs’ evidence on this point and had presented evidence that each server was terminated for other reasons, such as absence from work, unsatisfactory performance, and disciplinary issues. As disputed issues of material facts, these are for the fact finder to resolve. The defendants assert that Sosnitsky was fired because of complaints from customers and the servers about his performance and because Licari wanted to change the organization of the dining room to eliminate the maitre d’ position. For example, the category of “employee” protected from retaliation for making a complaint is not limited to an employee acting to “seek his or her rights.” Also protected is any person who “assists the attorney general in any investigation,” or has “testified” or is “about to testify” in proceedings brought under the statute. This would presumably include employees (and managers) whose own wages are not violative of the statute, and who have not filed a complaint with the Attorney General or anyone else, but are cooperating with the Attorney General’s investigation or have agreed to testify in enforcement proceedings. Prior to 1999, only the Attorney General could bring an action against an employer for violating the provisions of G. L. c. 149, § 148A. In 1999, the Legislature amended G. L. c. 149, § 150, adding § 148A to the list of sections that permit a private right of action for aggrieved employees. The present action is brought under G. L. c. 149, § 150. Summary judgment against Smith and Porter was denied in the Superior Court. They have joined in this appeal because, although there is evidence that they complained to the Attorney General’s office, they contend that the internal complaints they made to management are central to their claims of retaliation.

ARLENE KING, Plaintiff v. WINDSOR CAPITAL GROUP, INC., Defendant No. COA05-1354 (Filed 1 August 2006) Employer and Employee— hotel manager — manual labor — no overtime A manager in a hotel housekeeping services department who did manual labor when she was short-staffed nevertheless was primarily a manager, and the trial court correctly granted summary judgment against her in her action for overtime wages under the Fair Labor Standards Act. Appeal by plaintiff from an order entered 29 June 2005 by Judge Charles P. Ginn in Buncombe County Superior Court. Heard in the Court of Appeals 12 April 2006. Wimer & Jobe, by Michael G. Wimer, for plaintiff-appellant. Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Stephen B. Williamson, for defendant-appellee. JACKSON, Judge. Arlene King (“plaintiff’) appeals an order granting summary judgment in favor of Windsor Capital Group, Inc. (“defendant”). From June 1999 through March 2004, the Renaissance Hotel in Asheville, North Carolina employed plaintiff as Director of Services. In plaintiff’s complaint, she alleged that she is entitled to overtime wages for hours worked during her employment. Plaintiff testified in her deposition that she was hired as a manager in the housekeeping services department. Plaintiff was one of eight managers working for the general hotel manager. As Director of Services, plaintiff managed approximately twenty-five employees, including three supervisors. Plaintiff regularly worked as the manager on duty, supervising the entire hotel. Plaintiff worked approximately forty to fifty hours per week without being paid overtime wages. In addition, she testified that it was not her understanding that she would earn overtime when she was hired. Plaintiff maintained no record of the hours that she actually worked. She never had a conversation with any of the other managers about overtime wages. As Director of Services, plaintiff managed the housekeeping, laundry, public area, and turndown service for the hotel. Plaintiff had the authority to fire employees, approve leave time, resolve guests’ complaints, and handle employees’ disciplinary matters. She did not, however, have the authority to hire housekeepers, although she made hiring recommendations. Plaintiff provided the general hotel manager with information regarding her department’s budget needs. In addition, plaintiff, as manager, was provided an office with computer equipment with which to perform her duties. She made a weekly schedule for her supervised employees, and posted the schedule without receiving prior approval from the hotel general manager. Plaintiff did not schedule herself for manual labor or housekeeping work. Furthermore, she did not have to punch a time clock when she arrived or departed from work, although the employees she managed were required to do so. Moreover, plaintiff provided performance reviews for her staff. In addition, plaintiff completed daily time sheets for the employees she supervised, then compiled the daily time sheets into weekly time sheets. On a daily basis, she arrived at work around 7:00 a.m. Plaintiff attended a daily meeting of her department, although her supervisors led the meeting. Occasionally, she inspected rooms after supervisors cleaned the rooms, she sent laundry personnel to clean the rooms, or she helped clean the rooms. In addition, she also performed manual labor such as making beds, inspecting and cleaning rooms, doing laundry, and completing seamstress work on an as needed basis. Plaintiff testified that until 2001, she spent approximately fifty percent of her time performing manual labor, and between 2001 and 2004, she spent approximately eighty percent of her time performing manual labor. Defendant terminated plaintiff in March 2004. On 30 August 2004, plaintiff filed a complaint against defendant alleging violation of payday and overtime wages under “state and/or federal overtime wage laws” and breach of contract. Defendant filed a timely answer. On 21 June 2005, defendant filed a motion for summary judgment. On 29 June 2005, after a hearing on the motion, the Honorable Charles P. Ginn entered an order granting summary judgment in favor of defendant. Plaintiff appeals to this Court. On appeal, plaintiff argues only that the trial court erred in granting summary judgment in favor of defendant because genuine issues of material fact exist regarding whether the Fair Labor Standards Act requires that defendant pay plaintiff overtime wages. We disagree. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). The moving party bears the burden of showing that no triable issue of fact exists. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). This burden can be met by proving: (1) that an essential element of the non-moving party’s claim is nonexistent; (2) that discovery indicates the non-moving party cannot produce evidence to support an essential element of his claim; or (3) that the non-moving party cannot surmount an affirmative defense which would bar the claim. Collingwood v. G.E. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Once the moving party has met its burden, the non-moving party must forecast evidence that demonstrates the existence of a prima facie case. Id. In deciding a motion for summary judgment, a trial court must consider the evidence in the light most favorable to the non-moving party. See Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). If there is any evidence of a genuine issue of material fact, a motion for summary judgment should be denied. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 471, 597 S.E.2d 674, 694 (2004). “On appeal, an order allowing summary judgment is reviewed de novo.” Id. at 470, 597 S.E.2d at 693. The Fair Labor Standards Act (“FLSA”) requires employers to pay their employees time and a half for work over forty hours a week unless they are “employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. §§ 207(a)(1), 213(a)(1) (2005). In determining whether an employee is a bona fide executive, employees must satisfy either the “long test” or the “short test.” See Donovan v. Burger King Corp., 675 F.2d 516, 517-18 (2d Cir. 1982). On appeal, the parties agree that the United States Department of Labor’s “short test” applies in determining whether plaintiff was exempt from overtime pay under the Fair Labor Standards Act (“FLSA”) as an “executive employee.” As the Fourth Circuit has explained: An employee will be exempt under the executive exemption’s short test if: (1) the employee’s primary duty consists of the management of the enterprise or of a customarily recognized department or subdivision thereof; and (2) includes the customary and regular direction of the work of two or more other employees therein. Smith v. First Union Nat’l Bank, 202 F.3d 234, 250 (4th Cir. 2000). See also 29 C.F.R. § 541.1(f) (2003) (setting out the “short test”). In this case, there is no dispute that plaintiff engages in the customary and regular direction of the work of two or more other employees in a customarily recognized department or subdivision of the Renaissance Hotel. Further, the record establishes — and plaintiff does not seriously dispute — that she performed management functions. The Department of Labor states that whether a particular type of work constitutes managerial and supervisory functions is usually “easily recognized.” 29 C.F.R. § 541.102(a) (2003). Falling squarely within the Department’s list of types of work constituting exempt management work, 29 C.F.R. § 541.102(b) (2003), are (1) plaintiff’s supervision of 25 employees and the firing, evaluating, and disciplining of those employees; (2) her work as a manager on duty for the entire hotel; (3) her interviewing and recommendation of prospective employees; and (4) her scheduling of work in her department. The sole dispute on appeal relates to the existence of a genuine issue of material fact regarding whether plaintiffs primary duty as an employee consisted of carrying out these managerial tasks. The Department of Labor’s regulations specify that “[a] determination of whether an employee has management as his primary duty must be based on all the facts in a particular case.” 29 C.F.R. § 541.103 (2003). We are, therefore, required to apply a “totality of the circumstances” test. See Counts v. S.C. Elec. & Gas Co., 317 F.3d 453, 456 (4th Cir. 2003) (“It is clear from this language [in 29 C.F.R. §§ 541.103, 541.206 (2003)] that primary duty is meant to be assessed by the totality of the circumstances. ”). The regulations set forth five factors for determining whether management is a primary duty, although these factors appear to be non-exclusive: (1) the amount of time spent in the performance of managerial duties; (2) the relative importance of the managerial duties as compared with other types of duties; (3) the frequency with which the employee exercises discretionary powers; (4) the employee’s relative freedom from supervision; and (5) the relationship between the employee’s salary and the wages paid other employees for the kind of nonexempt work performed by the manager. 29 C.F.R. § 541.103 (2003). See also Jones v. Va. Oil Co., 69 Fed. Appx. 633, 636-37, 2003 U.S. App. LEXIS 14676, **8-9 (4th Cir. July 23, 2003) (per curiam) (setting forth and applying the “primary duty” test to a convenience store manager who spent seventy-five to eighty percent of her time helping employees when short-staffed); Donovan v. Burger King Corp., 675 F.2d 516, 520-21 (2d Cir. 1982) (Donovan I) (noting that 29 C.F.R. § 541.103 (2003) “lists five factors to be weighed in determining an employee’s primary duty”). In arguing that management was not her “primary duty,” plaintiff relies almost exclusively on the first factor: the time spent on managerial duties. In doing so, she overlooks the fact that the Department of Labor’s regulations stress that “[t]ime alone ... is not the sole test, and in situations where the employee does not spend over 50 percent of his time in managerial duties, he might nevertheless have management as his primary duty if the other pertinent factors support such a conclusion.” 29 C.F.R. § 541.103 (2003). As the Fourth Circuit has explained: Thus, the amount of time spent on nonmanagement tasks is not dispositive, “particularly when nonmanagement duties are performed simultaneous to the supervision of employees or other management tasks and other factors support a finding that the employee’s primary duty is managerial.” Horne v. Crown Central Petroleum, Inc., 775 F. Supp. 189, 190 (D.S.C. 1991). In other words, an employee will have management as her primary duty if while engaged in nonexempt work, the employee also “supervises other employees, directs the work of warehouse and delivery men, . . . handles customer complaints, authorizes payment of bills, or performs other management duties as the day-to-day operations require.” 29 C.F.R. § 541.103. Jones, 69 Fed. Appx. at 637, 2003 U.S. App. LEXIS 14675, **9-10. Similarly, in leading decisions in this area, both the First Circuit and Second Circuit have held that a strict time division is not necessarily a valid test. As the First Circuit explained “a strict time division is somewhat misleading here: one can still be ‘managing’ if one is in charge, even while physically doing something else.” Donovan v. Burger King Corp., 672 F.2d 221, 226 (1st Cir. 1982) (Donovan II). According to the First Circuit, a focus on the percentage of time “seems better directed at situations where the employee’s management and non-management functions are more clearly severable than they are here.” Id. The Second Circuit similarly has held that an allocation of time spent on management and non-management duties is not dispositive when “much of the oversight of the operation can be carried out simultaneously with the performance of non-exempt work.” Donovan I, 675 F.2d at 521. See also Scherer v. Compass Group USA, Inc., 340 F. Supp. 2d 942, 953 (W.D. Wis. 2004) (holding that even though the plaintiff spent seventy-five percent of his day preparing food and only twenty-five percent engaged in managerial duties, management still was his primary duty since “it is undisputed that plaintiff monitored the performance of other staff working in the kitchen during the time he spent preparing food”). Here, plaintiff’s affidavit stated that she spent fifty percent to eighty percent of her time on “manual” tasks because she was shorthanded. Her deposition, however, indicates that this work was not performed independently of her managerial oversight, but rather was done in conjunction with her managerial work, as was true in Jones, the two Donovan decisions, and Scherer. She did not schedule herself for manual labor, but rather pitched in whenever and however she deemed necessary in order to ensure that the hotel continued functioning. Courts have declined to view a manager as non-exempt simply because he or she filled in for regular employees while short-staffed, even when the lack of staffing was a chronic situation. See, e.g., Jones, 69 Fed. Appx. at 635, 2003 U.S. App. LEXIS 14675, **3-4 (noting that the plaintiff spent seventy-five to eighty percent of her time doing basic line-worker tasks, when, due to frequent short-staffing, the store otherwise would not have been able to serve its customers); Moore, 352 F. Supp. 2d at 1276 (noting that the plaintiff had to perform many non-exempt functions because payroll constraints kept him from hiring more staff). Thus, a bald statement that fifty to eighty percent of her time was spent in “manual” tasks without taking into account simultaneously performed management functions does not accurately address the time factor. See Jones, 69 Fed. Appx. at 637, 2003 U.S. App. LEXIS 14675, **11 (“[E]ven assuming that Jones spent the bulk of her time performing such line-worker tasks as cooking, cleaning the store, and manning the cash register, the record reflects that Jones could simultaneously perform many of her management tasks. That is, while Jones was doing line-worker tasks, she also engaged in the supervision of employees, handled customer complaints, dealt with vendors, and completed daily paperwork.”); Donovan II, 672 F.2d at 226 (“[A]n employee can manage while performing other work, and . . . this other work does not negate the conclusion that his primary duty is management.”). Accordingly, plaintiffs assertion regarding the division of her labor — disputed by defendant — is not sufficient to defeat summary judgment in light of the other factors specified by the Department of Labor, as numerous courts, addressing similar evidence, have held. See, e.g., Smith, 202 F.3d at 251 (employee claimed that eighty to ninety percent of her time was spent on non-management duties); Moore, 352 F. Supp. 2d at 1274 (surveying cases holding that even though an employee spent the majority of his or her time performing non-exempt work, management was still his or her primary duty). Instead of applying a simple clock standard, we must, looking at all the circumstances, decide whether an issue of fact exists as to what was plaintiffs “principal” or “chief’ responsibility, Donovan II, 672 F.2d at 226 (holding that “the more natural reading of ‘primary’ is ‘principal’ or ‘chief,’ not ‘over one-half’ [the employee’s time]”). Alternatively, as one federal district court has held, “[u]nder the ‘short test,’ the employee’s primary duty will usually be what he does that is of principal value to the employer, not the collateral tasks that he may also perform, even if they consume more than half his time.” Kastor v. Sam’s Wholesale Club, 131 F. Supp. 2d 862, 866 (N.D. Tex. 2001). After the time factor, the second factor is the relative importance of an employee’s managerial tasks as compared to her non-managerial work. With respect to this factor, courts have typically looked at the significance of the managerial tasks to the success of the business. Jones, 69 Fed. Appx. at 637-38, 2003 U.S. App. LEXIS 14675, **11-12. See also Donovan I, 675 F.2d at 521 (stating, as to the second factor, that “it is clear that the restaurants could not operate successfully unless the managerial functions of Assistant Managers . . . were performed”). While plaintiff talks in her affidavit about the need to keep rooms cleaned and laundry done so that guests may use the rooms, a review of her deposition leads to only one conclusion: the hotel could not function without plaintiffs performing her managerial responsibilities. She testified that she supervised twenty-five employees, including three mid-level supervisors, and was “in charge of the back of the house: housekeeping, public area, turndown service.” She was solely responsible for scheduling the staff performing those services, for doing performance reviews of those employees, and for firing those employees when necessary. Plaintiff reported directly to the General Manager for the hotel and sometimes the controller and identified no one else who performed any aspect of her job as Director of Services. Compare Meyer v. Worsley Cos., Inc., 881 F. Supp. 1014, 1020 (E.D.N.C. 1994) (noting that the plaintiff had identified other individuals who were the “real” managers of the store). Without plaintiff, the “back of the house” would have had no oversight or, phrased differently, there would have been no one steering the ship. See Shockley v. City of Newport News, 997 F.2d 18, 26 (4th Cir. 1993) (distinguishing “between a manager of a recognized subdivision and a mere supervisor of subordinate employees”). Further, plaintiff was one of a limited number of managers who regularly served as a manager on duty, on which occasions she supervised the entire hotel. One cannot reasonably read this record without concluding that the hotel could not function without plaintiff’s managerial role. See Jones, 69 Fed. Appx. at 638, 2003 U.S. App. LEXIS 14675, **12-13 (holding that a fast-food restaurant manager’s managerial tasks were more important than her nonmanagerial work, even though it took up as much as seventy-five to eighty percent of her time, when “the Dairy Queen could not have operated successfully unless Jones performed her managerial functions, such as ordering inventory, hiring, training, and scheduling employees, and completing the daily paperwork”). Plaintiffs principal value to the hotel and, indeed, the very purpose of her employment was to manage the “back of the house.” It was not to make beds. See Kastor, 131 F. Supp. 2d at 866-67 (“Although [plaintiff] contends that he spent [ninety] percent of his time performing non-managerial tasks, that was not the purpose of his employment. [Plaintiff] was hired by [the employer] to manage the bakery department.”). The third and fourth factors — frequency of use of discretionary powers and relative freedom from supervision — are related considerations. There can be no serious dispute regarding plaintiffs exercise of discretionary powers. She testified: “I was the one that did the firing.” See 29 C.F.R. §§ 541.1, 541.101 (2003) (providing that an executive has the authority to hire or fire employees or is also someone whose suggestions and recommendations as to the hiring or firing will be given particular weight). Discretion also was used by plaintiff in, among other areas, scheduling, performance reviews, and resolving complaints. See Jones, 69 Fed. Appx. at 638, 2003 U.S. App. LEXIS 14675, **14 (holding that the third and fourth factors supported exemption when the employee “had the discretion to hire, train, schedule, discipline, and fire employees” and had the dis