Wage Theft Cases

ALEXANDER v PERFECTION BAKERIES, INC Docket No. 253048. Submitted April 5, 2005, at Lansing. Decided June 28, 2005, at 9:00 a.m. Leave to appeal denied, 474 Mich 975. David Alexander and others, who in their work for Perfection Bakeries, Inc., deliver baked goods to retail stores, brought an action in the Jackson Circuit Court against their employer, seeking overtime pay for work performed in excess of forty hours a week. The plaintiffs claimed that although the defendant is exempt from paying overtime wages under the motor carrier exemption of the Fair Labor Standards Act (FLSA), 29 USC 213(b)(1), they are entitled to overtime pay under the Minimum Wage Law (MWL), MCL 408.381 et seq., because application of the FLSA would result in a lower minimum wage. MCL 408.394. The court, Edward J. Grant, J., granted summary disposition for the defendant, ruling that the plaintiffs failed to state a cause of action under the MWL. The plaintiffs appealed. The Court of Appeals held: The FLSA, 29 USC 201 et seq., and the MWL both regulate the minimum wage. The motor carrier exemption of the FLSA exempts from overtime compensation any employee with respect to whom the Secretary of Transportation has the power to establish qualifications and maximum hours of service pursuant to 49 USC 31502. The MWL, in MCL 408.394, provides that it does not apply to an employer who is subject to the minimum wage provisions of the FLSA unless application of those provisions would result in a lower minimum wage than provided in the MWL. The term “minimum wage,” in its plain and ordinary meaning in the MWL, unambiguously does not include overtime pay, which is a benefit distinct from the minimum wage. The trial court did not err in holding that the plaintiffs failed to state a claim under the MWL because the plaintiffs would receive the same minimum wage under the MWL and the FLSA. Affirmed. Master and Servant — Minimum Wage Law — Minimum Wage — Overtime. The term “minimum wage,” in its plain and ordinary meaning in the Minimum Wage Law, unambiguously does not include overtime pay, which is a benefit distinct from the minimum wage (MCL 408.381 et seq.). Chambers, Steiner & Sturm, P.L.C. (by Martin R. Sturm), for the plaintiffs. Pilchak Cohen & Tice, P.C. (by Daniel G. Cohen and Robert C. Tice), for the defendant. Amici Curiae: Robert Labrant for the Michigan Chamber of Commerce. Walter G. Heinritzi for the Michigan Trucking Association. Before: CAVANAGH, P.J., and JANSEN and GAGE, JJ. Per Curiam. Plaintiffs appeal by leave granted the trial court order granting defendant partial summary disposition and holding that plaintiffs failed to state a cause of action under the Minimum Wage Law (MWL), MCL 408.381 et seq. We affirm. Plaintiffs, who are employees of defendant, deliver bread and bakery products to retail stores and place stock on the shelves. They are paid a base wage plus commissions, which are based on the amount of product delivered and sold at the retail stores. Plaintiffs routinely work in excess of forty hours a week, but they have never been paid compensation for overtime in excess of forty hours a week. Plaintiffs argue that the trial court erred in granting defendant summary disposition because the MWL applies to defendant. We review de novo a grant of summary disposition based on a failure to state a claim. Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004). A motion pursuant to MCR 2.116(C)(8) tests the legal sufficiency of a claim on the basis of the pleadings alone, and the motion may not, therefore, be supported with documentary evidence. “ ‘All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. ’ ” Adair, supra at 119, quoting Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). A motion pursuant to MCR 2.116(C)(8) should be granted only when the claim is “ ‘so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.’ ” Adair, supra at 119, quoting Maiden, supra at 119. We also review de novo questions of statutory application and construction. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002). The regulation of minimum wage is governed by parallel state and federal statutes, the MWL and the Fair Labor Standards Act (FLSA), 29 USC 201 et seq., respectively. Allen v MGM Grand Detroit, LLC, 260 Mich App 90, 93; 675 NW2d 907 (2003). Both laws require the payment of a minimum hourly wage of $5.15, which began on September 1, 1997. MCL 408.384(c); 29 USC 206(a)(1). Both acts also provide that work in excess of forty hours a week must be compensated at a rate of IV2 times the regular wage rate. MCL 408.384a(1); 29 USC 207(a)(1). Both statutes provide a list of exemptions from the requirement of overtime pay. MCL 408.384a(4); 29 USC 213(b). Specifically, the FLSA exempts from the overtime compensation requirements “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of [49 USC 31502.]” 29 USC 213(b)(1). This is commonly referred to as the federal “motor carrier exemption.” Bilyou v Dutchess Beer Distributors, Inc, 300 F3d 217, 223 (CA 2, 2002). The MWL does not contain a comparable exemption. Congress has expressly provided for overlapping regulation in this area, stating that the FLSA does not excuse noncompliance with any state law or municipal ordinance providing for a higher minimum wage or lower maximum workweek. 29 USC 218. The MWL expressly states that, it “does not apply to an employer who is subject to the minimum wage provisions of the fair labor standards act of 1938 ... unless application of those federal minimum wage provisions would result in a lower minimum wage than provided in this act.” MCL 408.394. It is undisputed that the FLSA applies to defendant and that defendant is exempt from paying overtime wages under the FLSA because plaintiffs fall under the motor carrier exemption. Plaintiffs, however, argue that they are entitled to overtime pay under the MWL because application of the FLSA would result in a lower minimum wage. Defendant argues that plaintiffs do not receive a greater minimum wage under the MWL, but simply would be entitled to overtime pay, a benefit distinct from the minimum wage. This issue raises a question of statutory interpretation. We must determine the meaning of the term “minimum wage” and decide whether it includes overtime pay. An undefined term in a statute is generally construed according to its common and approved usage, and it is appropriate for a court to consult a dictionary to give meanings to words used in a statute. Lee v Robinson, 261 Mich App 406, 409-410; 681 NW2d 676 (2004). Random House Webster’s College Dictionary (1997) defines the term “minimum wage” as “the lowest hourly wage that may be paid to an employee, as fixed by law or by union contract.” (Emphasis added.) Black’s Law Dictionary (6th ed) similarly defines “minimum wage” as the “minimum hourly rate of compensation for labor, as established by federal statute and required of employers engaged in businesses which affect interstate commerce.” (Emphasis added.) The term “minimum wage” is therefore unambiguous and does not include overtime pay. Applying the plain language of the statute, plaintiffs would receive the same “minimum wage” under the MWL and the FLSA. Accordingly, the trial court did not err in holding that plaintiffs failed to state a claim under the MWL. Plaintiffs maintain that, when read in conjunction with MCL 408.394, MCL 408.384a(6) effectively defines “minimum wage” to include overtime compensation. MCL 408.384a(6) provides: “For purposes of administration and enforcement, an amount owing to an employee that is withheld in violation of this section is unpaid minimum wages under this act.” However, MCL 408.382, the definitions section for the MWL, does not include the term “minimum wage.” Moreover, MCL 408.384a(6) addresses only an amount that is withheld in violation of the overtime compensation section. Thus, we are not persuaded by plaintiffs’ argument. Plaintiffs present another argument with respect to MCL 408.394, which provides that the MWL “does not apply to an employer who is subject to the minimum wage provisions of the fair labor standards act,... 29 USC 201 to 216 and 217 to 219, unless application of those federal minimum wage provisions would result in a lower minimum wage than provided in this act.” While the Allen Court established that the phrase “those federal minimum wage provisions” refers to the FLSA provisions identified in the previous phrase, it is obvious that the phrase “minimum wage” also modifies the term “provisions.” The entire FLSA is identified except for two sections, 29 USC 216a and 29 USC 216b. Although the absence of these two provisions may support the inference that the Legislature intended that only the identified FLSA provisions be considered minimum wage provisions, Allen, supra at 96 n 6, the great majority of the sections are not related to minimum wage in any way. We are not persuaded that the mere identification of the FLSA overtime compensation section, 29 USC 207, supports plaintiffs’ proposed definition of “minimum wage.” Plaintiffs urge us to examine amendments to the MWL. Because we have concluded above that the language of the statute is unambiguous, we may not go beyond the words of the statute to ascertain legislative intent. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). Plaintiffs also cite Allison v The Pepsi Bottling Group, Inc, unpublished opinion of the United States District Court for the Western District of Michigan (Docket No. 5:03-cv-244, June 28, 2004), in support of their definition of the term “minimum wage.” That court failed, however, to give the term “minimum wage” its plain and ordinary meaning, as described above, and we are not bound by its decision because it involves only questions of state law. Sharp v City of Lansing, 464 Mich 792, 802-803, 817; 629 NW2d 873 (2001). Affirmed. These two sections concern liability for overtime work performed before 1949, and 29 USC 216a has been repealed. Allen, supra at 96 n 6. See, e.g., 29 USC 205 (special industry committees for American Samoa); 29 USC 208 (court review of wage orders in American Samoa), 29 USC 210 (court review of wage orders in Puerto Rico and the Virgin Islands); and 29 USC 212 (child labor provisions).

Drive-O-Rama, Inc. vs. Attorney General. No. 04-P-657. Barnstable. March 16, 2005. June 28, 2005. Present: Kantrowitz, Smith, & Graham, JJ. Labor, Wages. Attorney General. General Laws c. 136, § 13, the Holiday Pay Law, which requires employers to pay employees time and one-half if they work on New Year’s Day, Columbus Day, or Veteran’s Day, applied to a retail store employing persons on those days but claiming exemption under a previously enacted statute, where the Holiday Pay Law made no exception for retailers of any kind, and did not provide for “grandfather” rights. [771-773] Civil action commenced in the Superior Court Department on December 15, 2000. The case was heard by Richard F. Connon, J., on motions for summary judgment. Robert C. Chamberlain for the plaintiff. Karla E. Zarbo, Assistant Attorney General, for the defendant. Doing business as Mill Stores. Graham, J. The plaintiff, Drive-O-Rama, Inc., doing business as Mill Stores (Mill Stores), appeals from a judgment entered in the Superior Court, granting the Attorney General’s motion for summary judgment and declaring that G. L. c. 136, § 13 (Holiday Pay Law), is applicable to Mill Stores. The judgment declares that Mill Stores is obligated to pay holiday pay to its nonexempt employees who work on the holidays enumerated in G. L. c. 136, § 13, and that failure to do so violates G. L. c. 149, § 148 (Wage Payment Act). As part of the judgment, Mill Stores was ordered both to comply prospectively with its legal obligations to pay holiday pay and to make payment of back wages due its employees in an amount to be determined following a restitution hearing. On appeal, Mill Stores contends that the Holiday Pay Law is inapplicable to its business because its stores operate on holidays pursuant to the Sunday law “gift shop” exception contained in G. L. c. 136, § 6(29), which predates the holiday pay requirements of G. L. c. 136, § 13. We affirm. The facts are not in dispute. Under the Commonwealth’s wage and hour laws, including laws that regulate trade and commerce on Sundays and legal holidays, retail establishments may open for business any time on Sundays and on most legal holidays with some restrictions. See G. L. c. 136, §§ 13, 16. These restrictions include the requirement that in certain circumstances retailers pay wages to their nonexempt employees for Sunday or holiday work at one and one-half times their regular hourly wage (this Sunday or holiday pay is also known as premium pay); the law additionally specifies that work performed on those days must be voluntary, and that workers are protected from retaliatory action arising from refusal to work on Sundays or legal holidays. G. L. c. 136, §§ 6(50), 6(52), 13, 16. The statutory requirement for premium pay applies solely to work performed by “nonexempt,” typically hourly, employees, as distinguished from exempt bona fide executive, administrative, or professional employees who receive a salary each week regardless of the number of hours of work performed. See G. L. c. 151, § 1A(3). Mill Stores employs several hundred nonexempt hourly workers at its nine Massachusetts retail locations. These employees work on legal holidays, including New Year’s Day, Columbus Day, and Veteran’s Day, and at all relevant times, Mill Stores has not paid its workers holiday pay. This matter arose after an employee complained to the Attorney General that Mill Stores failed to pay holiday pay for work performed on Veteran’s Day, 1999. In response to the employee’s complaint, the Attorney General notified Mill Stores that it was legally obligated to provide holiday pay to its nonexempt employees for work performed on the holidays referenced in G. L. c. 136, § 13. After disclosing to the Attorney General the appropriate payroll information he had requested, and prior to the Attorney General initiating any enforcement action, Mill Stores filed the declaratory judgment action which forms the basis for this appeal. Discussion. Mill Stores maintains that its authority to open on legal holidays is derived from the Sunday law “gift shop” exemption contained in G. L. c. 136, § 6(29), and further that § 6(29) does not require the payment of time and one-half. It also contends that since the Legislature has treated legal holidays in the same way that it treats Sundays, Mill Stores’ exemption under G. L. c. 136, § 6(29), is equally valid for both Sundays and legal holidays; therefore, it is not required to pay holiday pay to any of its workers who work on New Year’s Day, Columbus Day, or Veteran’s Day. Significantly, G. L. c. 136, § 6(29), does not authorize any holiday business openings, nor does it permit performance of work on any legal holidays but rather applies only to Sunday openings. The statutory authority that permits Mill Stores, as well as other retailers, to operate on certain enumerated holidays is solely derived from G. L. c. 136, § 13. Moriearty, Adkins, Rubin & Jackson, Employment Law § 14.12-13 (2d ed. 2003). It is clear that pursuant to paragraph two of G. L. c. 137, § 13, an employer must pay its employees time and one-half if they work on New Year’s Day, Columbus Day, or Veteran’s Day. This unambiguous statutory language manifests the legislative intent to require all retailers to provide holiday pay under G. L. c. 136, § 13. See Commonwealth v. Chavis, 415 Mass. 703, 708 (1993) (“Where the legislative purpose is expressed in clear statutory language, we must construe the statute in accordance with its terms”). Mill Stores also maintains that since G. L. c. 136, § 6(29), the gift shop exemption to the Sunday opening law, was enacted prior to G. L. c. 136, § 13, second par., the Holiday Pay Law, Mill Stores has a pre-existing right to avoid the requirement to pay holiday pay. This argument is unsupported. In 1962, the Legislature repealed the existing Sunday closing laws and enacted a complete revision of those laws for the purpose of preserving the original legislative goals while taking into account changing mores. See St. 1962, c. 616, § 2; 1962 Senate Doc. No. 404 at 3, 33-38, 45-48; Zayre Corp. v. Attorney Gen., 372 Mass. 423, 430-431 (1977). Prior to 1962, business openings were restricted to certain holidays. See 1962 Senate Doc. No. 404 at 31-33. Under the 1962 revisions, businesses could open on Presidents Day, Evacuation Day, Patriot’s Day, and Bunker Hill Day. St. 1962, c. 616, § 2. Later, Veteran’s Day was added by St. 1972, c. 271, § 2, with a requirement that employers provide holiday pay for that day. In 1988, the Holiday Pay Law was amended to apply to “retail establishments” operating on holidays enumerated in G. L. c. 136, § 13 (New Year’s Day, Columbus Day, and Veteran’s Day). St. 1988, c. 311, § 3. When the Legislature amends an existing statute by changing some of its provisions, the revised portions and the earlier unchanged portions must be read as if all the provisions were enacted as together. See Commonwealth v. Connor C., 432 Mass. 635, 640 (2000). In 1988, when the Legislature amended G. L. c. 136, § 13, to include a provision requiring retailers to provide holiday pay, the revision made no exception for retailers of any kind, nor did it provide for “grandfather” rights. See e.g., G. L. c. 40A, § 6 (express language grandfathers zoning amendments); G. L. c. 131, § 40 (express provision grandfathers certain projects affecting wetlands protections). The absence of such express language from the holiday pay requirement shows that the Legislature did not intend to create any such exemption. Judgment affirmed. General Laws c. 136, § 13, as amended through St. 1989, c. 287, § 58, provides, in pertinent part: “The provisions of sections five to eleven, inclusive [prohibiting conducting business on Sunday], shall except as provided in section 14 [permitting sporting and other events on holidays], apply to all legal holidays, except [the holidays referenced above], . . . “Any retail establishment which operates on January first, or November eleventh, the second Monday in October, under the exemption granted by this section, shall pay to those employees working on any of said days, time and one-half, or such larger sum as may be determined by contract; such work shall be voluntary and refusal to work for any retail establishment on such legal holidays shall not be grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty.” General Laws c. 136, § 6(29), as amended through St. 1979, c. 296, states in pertinent part that G. L. c. 136, § 5, penalizing conducting business on Sunday, shall not prohibit the following: “[t]he sale, at retail, of gifts, souvenirs, antiques, secondhand furniture, handcrafted goods and art goods, in an establishment primarily engaged in the sale of such merchandise, or on the premises of a licensed common victualler.” Since approximately 1959, Mill Stores, a Massachusetts corporation, has operated at various locations throughout the Commonwealth, and is engaged in the retail sale of furniture, gifts, souvenirs, handcraft goods, and other general merchandise. See, e.g., G. L. c. 4, § 7, Eighteenth (1956) (openings permitted on Memorial Day, Veteran’s Day, and Columbus Day for retailers); St. 1960, c. 812, § 3, enacting G. L. c. 136, §§ 33-37 (1960) (permitting openings on Columbus Day, Presidents Day, Patriot’s Day, Evacuation Day, Bunker Hill Day, and on Memorial Day only for florists); St. 1961, c. 338, § 1, amending G. L. c. 136, § 33 (prohibiting openings New Year’s Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran’s Day, Thanksgiving Day, and Christmas Day).

DONALD ARNDT, Plaintiff v. FIRST UNION NATIONAL BANK, FIRST UNION CORPORATION and WACHOVIA CORPORATION, Defendants No. COA04-807 (Filed 7 June 2005) 1. Employer and Employee— bank vice president — annual bonus — oral contract Evidence presented by both parties presented an issue of fact for the jury as to whether an oral contract existed between plaintiff bank vice president and defendant bank under which plaintiff would receive an annual bonus of twenty percent of all net income he generated for the bank in the “structured products group.” 2. Employer and Employee— Wage and Hour Act — modification of annual bonus — failure to give notice The evidence supported the jury’s finding that defendant bank modified plaintiff bank vice president’s annual bonus formula without giving plaintiff notice of the change in violation of N.C.G.S. § 95-25.13(3) of the N.C. Wage and Hour Act. Although defendant bank gave plaintiff notice of the bank’s incentive compensation program (ICP) which began and ended each calendar year, these notices did not apply to plaintiff because the evidence showed that plaintiffs bonus and compensation structure was unique to him and different from the generic ICP plans applicable to defendant bank’s other employees. 3. Employer and Employee— breach of contract — instructions — existence of contract — acquiescence—estoppel— spoliation The trial court did not err in a breach of contract and violation of the North Carolina Wage and Hour Act case by its instruction to the jury on the existence of a contract, by instructing that defendant was required to prove plaintiff acquiesced to the bonus formal change, by failing to instruct the jury on estoppel, and by instructing the jury on spoliation of the evidence. 4. Employer and Employee— liquidated damages — North Carolina Wage and Hour Act The trial court did not abuse its discretion in a breach of contract and violation of the North Carolina Wage and Hour Act (NCWHA) case by awarding plaintiff liquidated damages pursuant to N.C.G.S. § 95-25.22, because: (1) even if an employer shows that it acted in good faith and with the belief that its action did not constitute a violation of the NCWHA, the trial court may still in its discretion award liquidated damages in any amount up to the amount due for unpaid wages; (2) defendants neither offer evidence showing nor argue how the trial court’s decision to award liquidated damages was so arbitrary that it could not have been the result of a reasoned decision; and (3) a review of the record did not indicate the trial court’s decision to impose liquidated damages was manifestly unsupported by reason. Appeal by defendants from orders and judgment entered 31 October 2003 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 2 February 2005. Robert M. Elliot and J. Griffin Morgan, for plaintiff-appellee. Robinson, Bradshaw & Hinson, P.A., by Charles E. Johnson and Daniel F. Basnight, for defendants-appellants. TYSON, Judge. First Union National Bank (“First Union”), First Union Corporation, and Wachovia Corporation (“Wachovia”) (collectively, “defendants”) appeal the trial court’s orders and judgment filed 31 October 2003 finding: (1) Donald Arndt (“plaintiff’) and First Union entered into a contract where First Union would pay plaintiff an annual bonus; (2) First Union modified plaintiff’s bonus formula without his consent; (3) First Union breached its contract with plaintiff concerning his bonus formula; (4) First Union failed to give plaintiff notice of the change in the bonus formula; and (5) Wachovia owes plaintiff $837,243.40 plus interest and costs. We find no error. I. Background Plaintiff worked as a senior vice president in the “Structured Products Group” for First Union from 3 June 1996 to 9 February 2001. Plaintiff’s initial compensation was $90,000.00 per year in salary plus a “guaranteed minimum incentive payment of $90,000.00.” After starting employment, plaintiff and Brian Simpson (“Simpson”), manager of the Structured Products Group, orally agreed plaintiff would be paid twenty percent of all net income he earned for First Union. The formula to compute the bonus was not discussed. In 1996, 1997, and 1998, plaintiff was paid twenty percent of the income he generated for First Union. In 1998, First Union decided to change its bonus formula to a more “subjective” determination.. Despite this change, plaintiff’s bonus for year 1999 remained at twenty percent of the net income he produced for First Union. However, plaintiff’s bonus for year 2000 fell to roughly ten percent, half of the usual amount. Simpson contended the decrease was due to a financial loss First Union suffered on a project upon which plaintiff was working on, and his poor ratings in “teamwork... leadership ... [and] inability to work well with others.” Plaintiff contacted Deidre Bradshaw (“Bradshaw”) in First Union’s Human Resources Department, to discuss the decrease in his compensation. When it became apparent that First Union would not pay plaintiff according to the prior bonus structure, plaintiff informed Bradshaw that he would seek “appropriate remedies.” Plaintiff filed a complaint against defendants on 12 March 2002 for: (1) breach of contract; (2) violation of the North Carolina Wage and Hour Act (“NCWHA”); and (3) fraud. Defendants answered on 28 May 2002 and simultaneously filed a motion to dismiss the claim for fraud. Plaintiff voluntarily dismissed without prejudice his fraud claim. Throughout the discovery process, Bradshaw “represented the company” as the person on “point” and assisted defendants’ counsel in responding to discovery requests. The case was tried by jury from 22 to 26 September 2003 and 29 September to 1 October 2003. The jury found: (1) plaintiff and First Union entered into a contract where First Union would pay plaintiff an annual bonus; (2) First Union modified plaintiffs bonus formula without his consent; (3) First Union breached its contract with plaintiff concerning payment of his bonus compensation; (4) First Union failed to give plaintiff notice of the change in the bonus formula; and (5) Wachovia owes plaintiff $837,243.40 plus interest and costs. Plaintiff moved the trial court for liquidated damages, attorneys’ fees, costs, and interest. Defendants moved the trial court for judgment notwithstanding the verdict or new trial. The trial court ordered: (1) “Wachovia shall pay to Plaintiff the amount of $837,243.40 in liquidated damages;” (2) “Plaintiff shall recover interest on the amount awarded by jury in its verdict at the rate of 8% per annum from February 15, 2001, until the Judgment is satisfied;” and (3) “Wachovia shall pay to Plaintiff the amount of $5,377.31 in costs.” The trial court denied plaintiff’s motion for attorneys’ fees and defendants’ motion for judgment notwithstanding the verdict or new trial. Defendants appeal. II. Issues Defendants argue the trial court erred in: (1) denying defendants’ motion for directed verdict and judgment notwithstanding the verdict or new trial; (2) its instructions to the jury; and (3) abusing its discretion in awarding plaintiff liquidated damages. ITT. Directed Verdict and Judgment, Notwithstanding the Verdict Defendants argue the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict after plaintiff failed to offer sufficient evidence to establish: (1) an enforceable contract or subsequent breach; and (2) a violation of the NCWHA. We disagree. A. Standard of Review Our Supreme Court has set forth the standard of review of a trial court’s ruling on motions for a directed verdict and judgment notwithstanding the verdict. The standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury. When determining the correctness of the denial for directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party’s favor, or to present a question for the jury. Where the motion for judgment notwithstanding the verdict is a motion that judgment be entered in accordance with the movant’s earlier motion for directed verdict, this Court has required the use of the same standard of sufficiency of evidence in reviewing both motions. Davis v. Dennis Lilly Co., 330 N.C. 314, 322-23, 411 S.E.2d 133, 138 (1991) (internal citations and quotations omitted) (emphasis supplied). B. Analysis 1. Breach of Contract In Overall Co. v. Holmes, our Supreme Court stated, “[a] contract is ‘an agreement, upon sufficient consideration, to do or not to do a particular thing.’ ” 186 N.C. 428, 431, 119 S.E. 817, 818 (1923). The contract may be “express or implied, executed or executory, [and] results from the concurrence of minds of two or more persons . . . [I]ts legal consequences are not dependent upon the impressions or understandings of one alone of the parties to it. It is not what either thinks, but what both agree.” Id. at 431-32, 119 S.E. at 818-19 (quoting Prince v. McRae, 84 N.C. 675 (1881)). “In the construction of a contract, the parties’ intentions control, Cordaro v. Singleton, 31 N.C. App. 476, 229 S.E.2d 707 (1976)[,] and their intentions may be discerned from both their writings and actions.” Walker v. Goodson Farms, Inc., 90 N.C. App. 478, 486, 369 S.E.2d 122, 126 (1988) (citing Bank v. Supply Co., 226 N.C. 416, 38 S.E.2d 503 (1946); Zinn v. Walker, 87 N.C. App. 325, 361 S.E.2d 314 (1987); Heater v. Heater, 53 N.C. App. 101, 280 S.E.2d 19 (1981)), disc. rev. denied, 323 N.C. 370, 373 S.E.2d 556 (1988). Plaintiff offered evidence that: (1) when initially hired, he and Simpson orally agreed that plaintiff would receive twenty percent of the Structured Product Group’s net income; (2) the agreement did not include an expiration date; (3) this agreement was separate from incentive plans offered to other employees; (4) defendants paid plaintiff’s bonuses from 1997 to 1999 according to the terms of the agreement; (5) at no time did defendants modify the agreement, orally or in writing; and (6) defendants breached this agreement by retroactively reducing plaintiffs year 2000 bonus. This evidence was presented to the jury through plaintiffs testimony and exhibits, including email correspondence between plaintiff and Simpson. Plaintiff contends that the oral agreement with Simpson and the subsequent performance by defendants was evidence that “by both their words and actions the parties . . . had reached a ‘meeting of the minds.’ ” Fulk v. Piedmont Music CTR, 138 N.C. App. 425, 430, 531 S.E.2d 476, 480 (2000) (citation omitted). Defendants argue the “sketchy” discussions between plaintiff and Simpson did not comprise a valid contract, and they assert plaintiff failed to show thé parties agreed to the terms of the contract. Defendants also argue that if a contract existed between plaintiff and Simpson, it expired at the end of 1997 and was not perpetual. Defendants assert the true contract defining plaintiffs compensation was the annual Incentive Compensation Program (“ICP”) which began and ended each calendar year. As an at-will employee, defendants contend plaintiff accepted the terms of this agreement by not “quitting.” The evidence presented by both parties creates an issue of fact concerning the existence of a contract. Whether a contract existed is a question for the jury. See Goeckel v. Stokely, 236 N.C. 604, 607, 73 S.E.2d 618, 620 (1952) (issues of fact concerning terms of a contract are for the jury to consider). Based upon plaintiffs testimony, as corroborated by the emails and the twenty percent bonuses defendants paid and plaintiff received in 1997, 1998, and 1999, a jury could find that the parties reached a clear and definite agreement regarding the details of the contract. See Walker, 90 N.C. App. at 486, 369 S.E.2d at 126 (the parties intentions may be shown through their agreement and subsequent actions). Conflicts in the evidence are to be resolved in plaintiffs favor, and he “must be given the benefit of every inference reasonably to be drawn in his favor.” Williams v. Jones, 322 N.C. 42, 48, 366 S.E.2d 433, 437 (1988) (citing Daughtry v. Turnage, 295 N.C. 543, 246 S.E.2d 788 (1978) (conflicts, contradictions, and inconsistencies are to be resolved in the non-movant’s favor)). Plaintiff has offered sufficient evidence to present a question of fact for the jury in regards to the existence of an oral contract and to sustain a jury’s verdict in his favor. Davis, 330 N.C. at 323, 411 S.E.2d at 138 (citing In re Housing Authority, 235 N.C. 463, 70 S.E.2d 500 (1952)). The trial court properly denied defendants’ motions for directed verdict and judgment notwithstanding the verdict. This portion of defendants’ assignment of error is overruled. 2. Violation of the NOWHA The jury found defendants’ actions violated the NCWHA, N.C. Gen. Stat. § 95-25.1 et seq. Specifically, plaintiff proffered evidence that: (1) he was promised wages by the oral agreement with Simpson under N.C. Gen. Stat. § 95-25.2(16); and (2) defendants changed his compensation plan without prior notice under N.C. Gen. Stat. § 95-25.13. N.C. Gen. Stat. § 95-25.13(3) (2003) provides that every employer shall “[njotify its employees, in writing or through a posted notice maintained in a place accessible to its employees, of any changes in promised wages prior to the time of such changes except that wages may be retroactively increased without the prior notice required by this subsection.” See Narron v. Hardee’s Food Systems, Inc., 75 N.C. App. 579, 583, 331 S.E.2d 205, 208 (“[T]he Wage and Hour Act requires an employer to notify the employee in advance of the wages and benefits which he will earn and the conditions which must be met to earn them, and to pay those wages and benefits due when the employee has actually performed the work required to earn them.”), disc. rev. denied, 314 N.C. 542, 335 S.E.2d 316 (1985). “Wages” include “ ‘compensation for labor or services rendered by an.employee whether determined on a time, task, piece, job, day, commission, or other basis of calculation . . . For the purposes of G.S. 95-25.6 through 95-25.13 “wage” includes sick pay, vacation pay, severance pay, commissions, bonuses, and other amounts promised when the employer has a policy or practice of making such payments.’ ” Murphy v. First Union National Bank, 152 N.C. App. 205, 208, 567 S.E.2d 189, 191-92 (2002) (quoting N.C. Gen. Stat. § 95-25.2(16)) (emphasis supplied). Defendants assert: (1) they did not decrease plaintiff’s “promised wages;” and (2) they gave plaintiff notice of the applicable 1999 and 2000 ICP plans. We have held that plaintiff offered sufficient evidence to support the jury’s finding that a contract existed between plaintiff and defendants concerning plaintiff’s bonus structure that was ongoing beyond 1997. In addition, the evidence showed plaintiff’s bonus and compensation structure was unique to him and different from the generic ICP plans applicable to defendants’ other employees. The notices defendants assert were provided in accordance with the NCWHA did not apply to plaintiff. Defendants’ arguments are without merit. This assignment of error is overruled. IV. Jury Instructions Defendants assert the trial court erred in: (1) its instruction to the jury on the existence of a contract; (2) instructing the jury that First Union was required to prove plaintiff acquiesced to the bonus formula change; (3) failing to instruct the jury on estoppel; and (4) instructing the jury on spoliation of the evidence. A.Standard of Review On appeal, this Court must review and consider jury instructions “in their entirety.” Estate of Hendrickson v. Genesis Health Venture, 151 N.C. App. 139, 150-51, 565 S.E.2d 254, 262 (citing Robinson v. Seaboard System R.R., Inc., 87 N.C. App. 512, 361 S.E.2d 909 (1987), disc. rev. denied, 321 N.C. 474, 364 S.E.2d 924 (1988)), disc. rev. denied, 356 N.C. 299, 570 S.E.2d 503 (2002). The “appealing party must show not only that error occurred in the jury instructions but also that such error was likely, in light of the entire charge, to mislead the jury.” Id. The trial court is “required to instruct a jury on the law arising from the evidence presented.” Lusk v. Case, 94 N.C. App. 215, 216, 379 S.E.2d 651, 652 (1989); N.C. Gen. Stat. § 1A-1, Rule 51 (2003). B.Existence of a Contract The trial court instructed and presented to the jury the following query: “Did the plaintiff, Donald Arndt and the defendant, First Union National Bank enter into a contract by which First Union National Bank agreed to pay plaintiff an annual bonus, for 1997 and succeeding years, based on 20 percent of the annual net income, of the tax related securities group?” The court’s instruction continued by detailing the elements of a contract that plaintiff must prove by a greater weight of the evidence. We have already held that plaintiff proffered sufficient evidence to show a contract existed between himself and defendants concerning an annual bonus to survive defendants’ motions for directed verdict and judgment notwithstanding the verdict. This portion of defendants’ assignment of error is overruled. C.Acquiescence The second instruction to the jury concerned plaintiff’s alleged acquiescence to the changed bonus structure. Defendants assert the trial court “erroneously ignored [plaintiff]’s status as an at-will employee and [defendants’] right to modify the incentive programs affecting its at-will employees at any time.” Our review of the transcript indicates the trial court properly instructed the jury on plaintiffs at-will employment with defendants and its legal effect to . changes in compensation: The parties to this action have agreed that the plaintiff is an employee at will. [An] employee at will is an employee whose employment can be determined, at any time, by the employee [or] the employer. There is no definite length of employment. The employment relationship continues until it is terminated by either party. The terms of the employment remain in effect until they are modified, by either — either agreement of the parties or by the employer, unilaterally. The employer, in an at will relationship, can modify, unilaterally the future compensation to be paid to an employee. If the employer modifies the terms of an employed, at will; and, the employee knows of the change, the employee is deemed to have acquiesced to the modified terms, if he continues in the employment relationship. (Emphasis supplied). The trial court properly charged the jury on the issues of plaintiff’s at will employment and his possible acquiescence to changes defendants alleged concerning his compensation package. This portion of defendants’ assignment of error is overruled. D. Estoppel The trial court denied defendants’ request for an instruction on estoppel. Specifically, defendants argued plaintiff was estopped from asserting that the generic ICP plan did not apply to him after acceptance of the benefits of the ICP plan, his annual bonuses. The trial court’s instructions to the jury, when viewed “in their entirety,” sufficiently present defendants’ arguments to the jury whether: (1) the generic ICP plan applied to plaintiff; and (2) the bonuses he received after 1997 were provided in accordance with that generic ICP plan. Defendants do not argue and our review of the transcript does not show how the trial court’s decision to not instruct the jury on estop-pel was error, and in light of the entire charge, likely to mislead the jury. See Estate of Hendrickson, 151 N.C. App. at 150-51, 565 S.E.2d at 262. This portion of defendants’ assignment of error is overruled. E. Spoliation of the Evidence Defendants argue plaintiff’s evidence did not support an instruction to the jury on spoliation of evidence and that they were unfairly p

CABRERA v EKEMA Docket No. 250854, Submitted December 7, 2004, at Grand Rapids. Decided March 10, 2005, at 9:00 a.m. Mayra Cabrera and Norma Portillo brought an action in the Kalamazoo Circuit Court against Linda Ekema and Blanche Taylor, doing business as Five Star Cleaning, to recover back pay for cleaning work the plaintiffs performed as employees of the defendants. The plaintiffs’ complaint alleged violations of the Fair Labor Standards Act (FLSA), 29 USC 201 et seq.; violations of the Employee Right to Know Act, MCL 423.501 et seq.; breach of contract; unjust enrichment; and conversion. Ekema served interrogatories and requests for documents on the plaintiffs, seeking discovery of their social security numbers and immigration documents. The plaintiffs asserted that the information requested was' irrelevant and was sought for the improper purpose of intimidating them. The court, J. Richardson Johnson, J., granted in part Ekema’s subsequent motion to compel discovery, requiring the plaintiffs to disclose their social security numbers, but limiting the defendants’ use of the social security numbers to matters in the case before the court and inquiries to the Social Security Administration to determine the amount credited to the plaintiffs social security accounts as a result of work performed for the defendants. The court denied the plaintiffs’ motion for reconsideration. The plaintiffs appealed by leave granted. The Court of Appeals held: The production of the plaintiffs’ social security numbers is irrelevant to determining the defendants’ liability for unpaid wages. Pursuant to the requirements of federal law, an employer is required to report wages to the appropriate federal agencies, including the Social Security Administration. Thus, Ekema already knows the information sought through discovery and the discovery order is irrelevant to the purpose for which it was ordered. Federal law further prohibits the knowing employment of unauthorized aliens and establishes verification and recordkeep- ' ing procedures, 8 USC 1324a. Consistent with federal case law, immigration status is not relevant in an action under the FLSA by an employee seeking wages for work already performed, and the trial court abused its discretion by compelling production of the plaintiffs’ social security numbers. Moreover, the discovery was sought for the improper purpose of intimidating the plaintiffs to withdraw their lawsuit and forgo their rights to recover unpaid wages for work already performed. Reversed. Pretrial Procedure — Discovery — Fair Labor Standards Act — Social Security Numbers — Immigration Status. Discovery of a plaintiffs social security number or immigration status is irrelevant in an action under the Fair Labor Standards Act, 29 USC 201 et seq., for work the plaintiff already performed. Michigan Migrant Legal Assistance Project, Inc. (by Mariza Gamez-Garcia), for Mayra Cabrera and Norma Portillo. Ed Annen, Jr., for Linda Ekema. Before: HOEKSTRA, PJ., and GRIFFIN and BORRELLO, JJ. GRIFFIN, J. Plaintiffs Mayra Cabrera and Norma Por-tillo appeal by leave granted a discovery order that compels plaintiffs to provide their social security numbers to counsel for defendant Linda Ekema “for the limited purpose of determining the amount of funds that have been credited to the Plaintiffs’ social security numbers as a result of work the Plaintiffs performed specifically for the Defendants, and not for other employers.” We reverse and hold that the trial court abused its discretion in compelling production of plaintiffs’ social security numbers because (1) the information sought was not relevant and (2) discovery was for the improper purpose of intimidating plaintiffs from exercising their rights. MCR 2.302(C). i Defendant-appellee Linda Ekema and defendant Blanche Taylor own Five Star Cleaning. In February 2001, plaintiffs orally agreed to perform maintenance services for defendants for $8 an hour. In mid-April 2001, Ekema laid plaintiffs off for several days so that she could resolve problems she was having with other employees. On April 19, 2001, Ekema informed plaintiffs that they could return to work, but that they would now be paid for each apartment cleaned. Plaintiffs allege that defendants failed to pay them for work performed between March 9 and April 26, 2001. Cabrera claims that she is owed $960 in wages earned for this period; Portillo claims she is owed $2,094. In May 2001, Ekema sent Cabrera a check for $244.53 and Portillo a check for $421.81, writing “final paycheck paid in full” on the face of each check. Plaintiffs did not cash these checks. On January 30, 2002, plaintiffs brought suit against Ekema and Taylor to recover back pay for wages actually earned. Plaintiffs’ complaint alleges: (1) violations of the Fair Labor Standards Act (FLSA), 29 USC 201 et seq., (2) violations of the Employee Right to Know Act, MCL 423.501 et seq., (3) breach of contract, (4) unjust enrichment, and (5) conversion. On April 30, 2003, Ekema served on plaintiffs interrogatories and requests for documents seeking discovery of plaintiffs’ social security numbers and immigration documents, including the date on which they were obtained. Plaintiffs’ answers asserted that the information requested was not discoverable because it was irrelevant to the subject matter and to Ekema’s defenses. On May 20, 2003, Ekema filed a motion to compel interrogatory answers, arguing that the requested information was either relevant or might lead to relevant information. Plaintiffs filed their response on May 30, 2003, arguing that (1) their immigration status is irrelevant to any material aspect of the case, (2) they are entitled to the wages, regardless of immigration status, and (3) discovery of the requested information was sought for the improper purpose of intimidating plaintiffs to withdraw the lawsuit. The trial court heard Ekema’s motion June 2, 2003. At the hearing, Ekema’s defense counsel represented that his client asked for and received social security numbers from plaintiffs when they were hired, but that his client had since become concerned about plaintiffs’ immigration status. Defense counsel also asserted that there was a factual dispute between the parties regarding whether plaintiffs stopped working for defendants on either April 3 or April 26, 2002. Defense counsel emphasized that plaintiffs needed to have “clean hands” to succeed on either their unjust enrichment or conversion claims. Concerning the breach of contract count, defense counsel argued that there were potential questions regarding whether an illegal alien could contract for employment or allege a breach of an employment contract. Regarding the FLSA count, defense counsel queried whether illegal aliens were entitled to liquidated damages. Finally, in the words of counsel for Ekema, if plaintiffs could not produce legitimate social security numbers or immigration documents, “we have a much more complicated lawsuit than ... plaintiff[s] would like you to believe.” Plaintiffs’ counsel responded that the issue underlying all counts of the complaint was “the fact that the plaintiffs worked and they did not receive wages for work that has already been performed.” From the bench, the trial court granted Ekema’s motion in part. The trial court ordered plaintiffs to disclose their social security numbers, but ordered that defendants could use them only in a limited manner. Plaintiffs were not compelled to provide defendants with copies of their green cards or alien work permits. The trial court’s June 2, 2003, bench ruling was effectuated by an order entered August 20, 2003. In its partial protective order, the trial court ordered the following with regard to plaintiffs’ social security numbers: i. Said social security numbers may be used by Defendants for the purposes of this litigation only; ii. The Defendants may use said social security numbers to inquire in writing with the Social Security Administration for the limited purpose of determining the amount of funds that have been credited to the Plaintiffs’ social security numbers as a result of work the Plaintiffs performed specifically for the Defendants, and not for other employers; iii. The Defendants may not use or communicate said social security numbers or in any other way release said social security numbers to any other entity other than: this Court for the purposes of this litigation, only; the U.S. Social Security Administration for the reasons set forth in [ii] above, and if necessary to substantiate a business expense on any tax return for Defendants to the U.S. Department of Internal Revenue Service and to comply with other rules and regulations of the IRS. Following the denial of their motion for reconsideration, plaintiffs sought leave to appeal. ii On appeal, plaintiffs argue that their social security numbers are not relevant in determining the amount of their unpaid wages for work already performed. We agree. This Court reviews rulings on motions to compel discovery for an abuse of discretion. Ligouri v Wyandotte Hosp & Med Ctr, 253 Mich App 372, 375; 655 NW2d 592 (2002). Further, our court rules implement “an open, broad discovery policy..." Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 616; 576 NW2d 709 (1998). Parties are permitted to obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the lawsuit, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of another party. MCR 2.302(B)(1). However, a trial court should also protect the interests of the party opposing discovery so as not to subject that party to excessive, abusive, or irrelevant discovery requests. In re Hammond Estate, 215 Mich App 379, 386; 547 NW2d 36 (1996). In this regard, MCR 2.302(C) provides, in pertinent part: Protective Orders. On motion by a party or by the person from whom discovery is sought, and on reasonable notice and for good cause shown, the court in which the action is pending may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following orders: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters .... In the present case, the production of plaintiffs’ social security numbers is clearly not relevant in determining liability for unpaid wages for the reason that it is the duty of the employer, not the employee, to report earned wages to the federal Wage and Hour Division. 29 USC 211(c). Further, by operation of 29 CFR 516.2, all records of employment must be maintained and preserved by the employer. Accordingly, the amount of wages earned by plaintiffs as reported to the appropriate federal agencies, including the Social Security Administration, would have been reported by defendants, not the plaintiffs. Because this information is known to Ekema and within her possession, the discovery order is irrelevant to the purpose ordered. Further, we note that the Immigration Reform and Control Act (IRCA) makes it unlawful to knowingly employ undocumented aliens. 8 USC 1324a(a). At the time of hiring, employers are required to verify that each employee is authorized to work in the United States and to complete an employment eligibility verification form, attesting that the employer has examined certain types of documents and has verified that the potential employee is not an unauthorized alien. 8 USC 1324a(b). Civil fines may be imposed on an employer that violates the verification requirements or knowingly employs an unauthorized alien. 8 USC 1324a(e)(4) and (5). A pattern or practice of knowingly employing unauthorized aliens may result in the infliction of criminal punishment. 8 USC 1324a(f). In addition, the IRCA provides that the provisions of 8 USC 1324a preempt any state from imposing civil or criminal sanctions upon those who employ unauthorized aliens. 8 USC 1324a(h)(2). An employer is required to “make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him ....” 29 USC 211(c). For an alien to be “authorized” to work in the United States, the alien must possess a valid “social security account number card,” 8 USC 1324a(b)(l)(C)(i), or “other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for purposes of this section.” 8 USC 1324a(b)(l)(C)(ii). Plaintiffs’ complaint alleges, in part, a violation of the FLSA. Therefore, federal case law on the discovery question is instructive. Auto Club Ins Ass’n v Frederick & Herrud, Inc (After Remand), 443 Mich 358, 373 n 24; 505 NW2d 820 (1993); 2 Longhofer, Michigan Court Rules Practice, pp 192-193. In Liu v Donna Karan Int’l, Inc, 207 F Supp 2d 191 (SD NY, 2002), a class of Chinese immigrant workers brought an action against their employer, seeking an FLSA award of unpaid wages. The employer moved to discover the workers’ immigration status. The federal district court held that evidence of the Chinese workers’ immigration status was not relevant in an FLSA action, emphasizing the difference between an award of post-termination back pay for work not actually performed and FLSA awards of unpaid wages. The court in Liu noted that “even if such discovery were relevant, and at this juncture it appears not to be, the risk of injury to the plaintiffs if such information were disclosed outweighs the need for its disclosure.” Id. at 192-193. Indeed, the court ruled that, even if the parties were to enter into a confidentiality agreement restricting the disclosure of such discovery, as the employer suggested, there would still remain the danger of intimidation and the danger of destroying the cause of action that would inhibit the plaintiffs in pursuing their rights. Id. at 193. Second, in Flores v Amigon, 233 F Supp 2d 462 (ED NY, 2002), the case upon which plaintiffs relied heavily, the employee sought unpaid wages under the FLSA and the employer sought discovery of the employee’s immigration documents, social security number, and passport. Like the Liu court, the federal district court held that discovery of the employee’s immigration status was not relevant to an FLSA claim for unpaid wages for work already performed and that the potential for prejudice from disclosure far outweighed whatever minimal value the information might have. The court reasoned that enforcing the FLSA’s provisions requiring employers to pay proper wages to undocumented aliens when the work has been performed actually furthers the goal of the IRCA, which requires the employer to discharge any worker upon discovery of the worker’s undocumented alien status. 8 U.S.C. § 1324a(a)(2). If employers know that they will not only be subject to civil penalties, 8 U.S.C. § 1324a(e)(4)(A), and criminal prosecution, 8 U.S.C. § 1324a(f)(l), when they hire illegal aliens, but they will also be required to pay them at the same rates as legal workers for work actually performed, there are virtually no incentives left for an employer to hire an undocumented alien in the first instance. Whatever benefit an employer might have... gained by paying less than the minimum wage is eliminated and the employer’s incentive would be to investigate and obtain proper documentation from each of his workers. [Id. at 464 (citations omitted).] On the basis of the distinction between undocumented workers seeking back pay for wages actually earned and those seeking back pay for work not performed, both the Liu and Flores courts found the cases at bar distinguishable from the decision of the United States Supreme Court in Hoffman Plastic Compounds, Inc v Nat’l Labor Relations Bd, 535 US 137, 149; 122 S Ct 1275; 152 L Ed 2d 271 (2002), in which the Court held that awarding back pay to an undocumented alien “for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud” ran counter to the federal immigration policy. We agree with the distinction noted by the federal district courts and hold that plaintiffs’ social security numbers are not relevant to the limited purpose ordered by the trial court. For this reason, the trial court abused its discretion by compelling production of plaintiffs’ social security numbers. Ill As their second issue, plaintiffs argue that the discovery order was an abuse of discretion because discovery was sought for an improper purpose. Again, we agree. The ostensible purpose of Ekema’s discovery request was to determine the amount of plaintiffs’ wages that defendants reported to the Social Security Administration. Because defendants already have this information, the facial purpose of the discovery request was patently disingenuous. The true motivation for the attempted discovery of plaintiffs’ immigration documents and social security numbers can be discerned from defense counsel’s statement at the June 2, 2003, hearing that if plaintiffs were unable to produce legitimate immigration documents and social security numbers, “we [will] have a much more complicated lawsuit... than plaintiff[s] would like you to believe.” After our review, we conclude that the discovery request by Ekema was made for the improper purpose of intimidating plaintiffs to withdraw their lawsuit and forgo their legal rights to recover unpaid wages for work already performed. Because our courts will not sanction discovery for improper purposes, MCR 2.302(C), we hold that the trial court abused its discretion by compelling production of plaintiffs’ social security numbers. IV Finally, at appellate oral argument, counsel for Ekema appeared to have conceded that the limited purpose for discovery specified in the lower court’s order is not legitimate. Nonetheless, counsel argued that plaintiffs’ social security numbers could have been ordered for purposes of impeachment. In general, issues not preserved and ruled upon by the trial court will not be decided on appeal. Etefia v Credit Technologies, Inc, 245 Mich App 466, 471-472; 628 NW2d 577 (2001). Further, the issue counsel raises on appeal is based on speculation and conjecture. Collateral impeachment need not be entertained by either the trial court or this Court. Wigginton v City of Lansing, 129 Mich App 53, 63; 341 NW2d 228 (1983); Cook v Rontal, 109 Mich App 220, 229; 311 NW2d 333 (1981); MRE 403. Reversed. Subrule C is based on FR Civ P 26(c). See 1985 staff comment to MCR 2.302. This Court has examined Hoffman within the context of a worker’s compensation appeal. See Sanchez v Eagle Alloy, Inc, 254 Mich App 651, 670-673; 658 NW2d 510 (2003). During oral argument, appellee’s counsel conceded that, after further investigation of the facts and law, the sole issue is one of credibility. MRE 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

RICKY WHITEHEAD, on behalf of himself and all other similarly situated persons, Plaintiff v. SPARROW ENTERPRISE, INC., d/b/a LABOR FINDERS, Defendant No. COA04-208 (Filed 7 December 2004) 1. Jurisdiction— North Carolina Wage and Hour Act — no exemption for temporary employment agency The trial court did not err by concluding that defendant temporary employment agency is not exempt from the jurisdiction of the North Carolina Wage and Hour Act, because plaintiffs claims arise from N.C.G.S. §§ 95-25.6 and 95-25.8 which address wage payment and withholding of wages respectively. 2. Employer and Employee— wage withholding — transportation deduction — specific authorization A de novo review revealed that the trial court did not err by granting summary judgment in favor of defendant temporary employment agency based on defendant withholding class members’ wages to pay for an optional transportation service to and from job sites, because: (1) defendant’s house rules comply with the requirements of N.C.G.S. § 95-25.8(2)(a) as a specific authorization even though there is a range given for the dollar amount since it is sufficiently narrow to provide adequate notice to the class members, the deductions for transportation expenses are not automatic and are conditioned upon the class members specifically requesting use of the van pool each morning, and class members receive frequent and sufficient notice of the cost to use defendant’s van pool; (2) defendant’s house rules satisfy the formatting and content requirements under N.C. Admin. Code tit. 13, r. 12.0305(b) since the authorization form is written, signed by the class members on or before the payday for the pay period from which the deduction is made, includes the date signed, and states the reason for the deduction; and (3) the optional transportation service offered to the class members is not an incident of nor is it necessary to the employment, and it does not matter that the trip is between defendant’s home office and the job sites. 3. Employer and Employee— wage withholding — waiting and traveling to work A de novo review revealed that the trial court did not err by granting summary judgment in favor of defendant temporary employment agency based on class members not being entitled to compensation under N.C.G.S. § 95-25.6 for time spent waiting for and traveling on defendant’s optional transportation service, because: (1) plaintiff testified that defendant never told him that hours worked included wait time or travel time to and from the job site, and the employment contract does not provide for the compensation the class members seek; (2) the class members’ wait or travel time is not a principal activity requiring compensation, but instead is preliminary and postliminary activity since the class members’ idle time either before or after the workday is personal; and (3) the receipt of general protective equipment does not make travel time compensable under 29 C.F.R. § 785.38. Appeal by plaintiff from order entered 21 November 2003 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 14 October 2004. Law Offices of Robert J. Willis, by Robert J. Willis, for plaintiff - appellant. Richardson, Patrick, Westbrook & Brickman, LLC, by James L. Ward, Jr., and Rogers Townsend & Thomas, PC., by Paul M. Platte, for defendant-appellee. TYSON, Judge. Ricky Whitehead (“plaintiff’) on behalf of those similarly situated (collectively, “the class members”) appeal from entry of summary judgment in favor of Sparrow Enterprise, Inc. (“defendant”) after the trial court found no violations of the North Carolina Wage and Hour Act (“the NCWHA”), N.C. Gen. Stat. § 95-25.1 et seq. (2003)). We affirm. I. Background Defendant is a temporary employment agency that hires individuals on a daily basis for casual labor. Defendant markets and provides the temporary labor to businesses that periodically need additional workers. Defendant’s hiring policy is structured on a first come first serve basis. Individuals seeking work must arrive at defendant’s office early in order to be considered available for employment. At their first hiring, the class members are required to sign the “House Rules.” The “House Rules” discloses defendant’s hiring process, the details and rules of employment, hours of operation, the hourly wage, hours worked, and standard deductions which include optional transportation expenses. Plaintiff signed the “House Rules” on 2 January 2001. Upon arrival in the morning, the class members write their names on a sign-in sheet and wait for an assignment of available jobs. The “House Rules” specifically states such time is not compensable, “Hours worked and pay are determined from the time the worker starts working at the customer’s establishment And (sic) ends when the work is completed at the customer’s establishment.” While waiting, the class members often eat breakfast, read a newspaper, watch television, talk, or sleep. The class members who are offered work are called to the assignment desk and provided a description of the job and pay. If they accept the position, they are asked whether they have transportation available. If they do not, the class members will ride with either a fellow employee or in defendant’s van. The cost to the class members is $1.00 each way. The “House Rules” explains the transportation program and cost to the participant. After receiving work assignments, defendant provides general safety equipment like hard hats, boots, and gloves to those employees who would need them. The class members either wait for the van pool or secure their own transportation to the job site. They are allowed to do whatever they want during this period, so long as they arrive at the job site on time. Those who select defendant’s van pool are not given any instructions about the job during the ride. Plaintiffs have the option to be paid at the end of the workday or at a later time. On 12 June 2002, plaintiff, acting on behalf of himself and the class members, filed a class action complaint under Rule 23 of the North Carolina Rules of Civil Procedure asserting two claims. First, plaintiff argued the wage deductions for the communal transportation were illegal under N.C. Gen. Stat. § 95-25.8. Second, plaintiff argued employees who elect to use the optional transportation should be paid for time spent while both waiting for the van and riding to and from the job sites under N.C. Gen. Stat. § 95-25.6. Plaintiff sought redress solely under the NCWHA. Defendant answered on 16 January 2003. Defendant filed a Motion for Summary Judgment on 16 September 2003. It asserted: (1) plaintiff agreed to both situations by signing enforceable contracts; (2) defendant is exempt from the jurisdiction of the NCWHA; and (3) plaintiff is not an adequate class representative to allow the class action to proceed. On 21 November 2003, the trial court found the “material facts regarding these claims are not in significant dispute [and] [t]he issue ... is whether or not the undisputed material facts of record establish a violation of the Wage and Hour Act.” The trial court held plaintiff made no showing of a violation of the NCWHA and granted defendant’s motion for summary judgment on both claims. Plaintiff appeals. II. Issues The issues on appeal are whether: (1) defendant is exempt from the jurisdiction of the NCWHA; (2) the trial court properly granted summary judgment in favor of defendant on the class members’ transportation deduction claim; and (3) the trial court erred in granting summary judgment in favor of defendant on the class members’ time spent both waiting and traveling claim. III. Federal Statutes. Regulations, and Cases as Guidance We note at the outset that the issues before us arise from employment and labor law, a substantive area monopolized by federal statutes, regulations, and case law. Plaintiff’s claims are based on the NCWHA, N.C. Gen. Stat. § 95-25:1 et. seq. The NCWHA is modeled after the Federal Fair Labor Standards Act (“the FLSA”), 29 U.S.C. § 201 et seq. Laborers’ Int’l Union of North America, AFL-CIO v. Case Farms, Inc., 127 N.C. App. 312, 314, 488 S.E.2d 632, 634 (1997). The North Carolina Administrative Code (“the Code”) states that “judicial and administrative interpretations and rulings established under [] federal law” may serve as a guide for interpreting North Carolina laws when our Legislature has adopted provisions of the FLSA. N.C. Admin. Code tit. 13, r. 12.0103 (June 2004). We are not bound by decisions of Federal circuit courts other than those of the United States Court of Appeals for the Fourth Circuit arising from North Carolina law. Haynes v. State, 16 N.C. App. 407, 409-10, 192 S.E.2d 95, 97 (1972) (citing State v. Barber, 278 N.C. 268, 179 S.E.2d 404 (1971)). IV. Standard of Review We review a trial court’s entry of summary judgment de novo. Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 167, 571 S.E.2d 849, 851 (2002) (citing Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999)). Under de novo review, a reviewing court considers the matter anew, and it may substitute its own judgment for that of the trial court. Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (citation omitted). A grant of summary judgment is proper when: “(1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law.” Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000) (quotation omitted), affdper curiam, 353 N.C. 445, 545 S.E.2d 210 (2001). The moving party has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 572, 515 S.E.2d 438, 441 (1999). Both this Court and the trial court must view the evidence in the light most favorable to the non-moving party and all inferences from that evidence must be drawn against the moving party and in favor of the non-moving party. Id. After a review of the record and hearing the parties’ oral arguments, we conclude no genuine issues of material fact exist. We review the trial court’s conclusions of law. V. Exemption from the NCWHA Defendant asserts, as an enterprise engaged in interstate commerce, its relationships with the class members are covered by the FLSA and not within the jurisdiction of the NCWHA. We disagree. N.C. Gen. Stat. § 95-25.14(a) (2003) provides exemptions to employers from the NCWHA in limited circumstances, which states: The provisions of G.S. 95-25.3 (Minimum Wage), G.S. 95-25.4 (Overtime), and G.S. 95-25.5 (Youth Employment), and the provisions of G.S. 95-25.15(b) (Record Keeping) as they relate to these exemptions, do not apply to: (1) Any person employed in an enterprise engaged in commerce or in the production of goods for commerce as defined in the Fair Labor Standards Act.... Plaintiff’s claims arise from N.C. Gen. Stat. §§ 95-25.6 and 95-25.8 which address Wage Payment and Withholding of Wages respectively. The statute defendant relies upon for exemption does not cover either section of the NCWHA. Defendant’s argument is overruled. VI. Transportation Deduction Claim Plaintiff asserts defendant failed to comply with the North Carolina statutes and the Code, which provide when and how employers may deduct wages from employees’ paychecks. We disagree. A. Specific Authorization of Wage Withholding N.C. Gen. Stat. § 95-25.1 et seq. comprise the NCWHA. N.C. Gen. Stat. § 95-25.8 (2003) addresses wage withholding, which states: An employer may withhold or divert any portion of an employee’s wages when: (1) The employer is required or empowered to do so by State or federal law, or (2) The employer has a written authorization from the employee which is signed on or before the payday for the pay period from which the deduction is to be made indicating the reason for the deduction. Two types of authorization are permitted: (a) When the amount or rate of the proposed deduction is known and agreed upon in advance, the authorization shall specify the dollar amount or percentage of wages which shall be deducted from one or more paychecks, provided that if the deduction is for the convenience of the employee, the employee shall be given a reasonable opportunity to withdraw the authorization; (b) When the amount of the proposed deduction is not known and agreed upon in advance, the authorization need not specify a dollar amount which can be deducted from one or more paychecks, provided that the employee receives advance notice of the specific amount of any proposed deduction and is given a reasonable opportunity to withdraw the authorization before the deduction is made. The statute offers employers two options of written authorization to deduct wages. First, N.C. Gen. Stat. § 95-25.8(2)(a) addresses deductions of a “known” sum of money, a specific authorization. N.C. Admin. Code tit. 13, r. 12.0305 (June 2004). Employees who agree to specific authorizations must receive from their employers an opportunity to withdraw the authorization before the deduction is made, “if the deduction is for the convenience of the employee ....” N.C. Gen. Stat. § 95-25.8(2)(a). Second, N.C. Gen. Stat. § 95-25.8(2)(b) refers to a blanket authorization, one made for an unknown amount of money. N.C. Admin. Code tit. 13, r. 12.0305. Before a deduction may be completed under a blanket authorization, the employee must receive notice of the specific amount and a reasonable opportunity to withdraw the authorization. N.C. Gen. Stat. § 95-25.8(2)(b). The Code further requires valid wage deduction authorizations by employees to be: (1) written; (2) signed by the employee on or before the payday for the pay period for which the deduction is made; (3) show the date of signing by the employee; and (4) state the reason for the deduction. N.C. Admin. Code tit. 13, r. 12.0305(b). If the authorization is specific, the dollar amount or percentage of wages withheld must be provided. Id. Before an employer may deduct wages under a blanket authorization, it must first provide the employee: (1) advance notice of the specific amount of the proposed deduction; (2) a reasonable opportunity of at least three calendar days from the employer’s notice of the amount to withdraw the authorization. N.C. Admin. Code tit. 13, r. 12.0305(d). Each employee hired by defendant must read and sign defendant’s form, the “House Rules.” It includes the following language: Anyone choosing to accept transportation from Labor Finders, to one of our job sites, will be charged no less than .50 to and .50 from and no more than $1.00 to and $1.00 from the job site. Worker understands that this offer of transportation is for the worker’s benefit and if worker chooses to accept transportation, worker authorizes Labor Finders to deduct the cost of that transportation in both overtime and non-overtime weeks. This provision qualifies as a specific authorization under N.C. Gen. Stat. § 95-25.8(2)(a). The optional transportation service offered by defendant and its associated cost is explained. Although a range is given for the dollar amount, we hold it is sufficiently narrow to provide adequate notice to the class members. We further note the deductions for transportation expenses are not automatic. They are conditioned upon the class members specifically requesting use of the van pool each morning. Only then are wages withheld. The class members receive frequent and sufficient notice of the cost to use defendant’s van pool. We hold the “House Rules” complies with the requirements of N.C. Gen. Stat. § 95-25.8(2)(a) as a specific authorization. Finally, the “House Rules” satisfies the Code’s formatting and content- requirements. The authorization form is written, signed by the class members on or before the payday for the pay period from which the deduction is made, includes the date signed, and states the reason for the deduction. N.C. Admin. Code tit. 13, r. 12.0305(b). We hold that defendant’s “House Rules” form and wage deduction procedure complies with N.C. Gen. Stat. § 95-25.8 and N.C. Admin. Code tit. 13, r. 12.0305. This portion of plaintiff’s assignment of error is overruled. B. Incident of and Necessary to Employment Plaintiff contends the optional transportation services offered by defendant to its employees benefit defendant and are considered neither wages nor deductible. We disagree. Employers may “count as wages the reasonable cost ‘of furnishing [an] employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees.’ ” Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228, 1236 (2002) (quoting 29 U.S.C. § 203(m)). The employer may deduct the reasonable cost from the employee’s paycheck, even if the net amount falls below the minimum wage. 29 C.F.R. § 531.27 (2004). The United States Department of Labor (“USDOL”) defines “other facilities” as: Meals furnished at company restaurants or cafeterias or by hospitals, hotels, or restaurants to their employees; meals, dormitory rooms, and tuition furnished by a college to its student employees; housing furnished for dwelling purposes; general merchandise furnished at company stores and commissaries (including articles of food, clothing, and household effects); fuel (including coal, .kerosene, firewood, and lumber slabs), electricity, water, and gas furnished for the noncommercial personal use of the employee; transportation furnished employees between their homes and work where the travel time does not constitute hours worked compensable under the Act and the transportation is not an incident of and necessary to the employment. 29 C.F.R. § 531.32(a) (2004) (emphasis supplied). If the “facilities” are primarily for the benefit of the employer, the cost may not be included in computing wages and the employer must “reimburse the expense up to the point the FLSA minimum wage provisions have been met.” Arriaga, 305 F.3d at 1241-42; 29 C.F.R. § 531.3(d)(1) (2004). The issue here is whether the optional transportation service offered to the class members is “an incident of and necessary to the employment” and primarily for the benefit of defendant. 29 C.F.R. § 531.32(a). Plaintiff cites Arriaga as persuasive authority to show the optional transportation service was “an incident of and necessary to” defendant’s business and primarily for defendant’s own benefit. 305 F.3d at 1228. There, domestic agricultural employers hired nonimmi-grant aliens from Mexico as farm laborers to work on a seasonal basis. Id. at 1232. Laborers who passed the interview process paid for their own passage to the United States, visa costs, and various recruiting fees. Id. at 1234. After deducting these expenses from wages earned, the net income fell below the statutory minimum wage. Id. at 1231-32. The Eleventh Circuit held the transportation costs were “an incident of and necessary to the employment” and the employers must reimburse the laborers for expenses paid in coming to the employment. Id. at 1242. The court noted the determining factor was the transportation costs were “an inevitable and inescapable consequence of having foreign .. . workers employed in the United States.” Id. The court carefully distinguished that situation from one where an employer “hires from its locale.” Id. Further, the court distinguished between costs “arising from the employment itself and those that would arise in the course of ordinary life” by interpreting “other facilities” as meaning “employment-related costs . . . that would arise as a normal living expense.” Id. at 1242-43. We find Arriaga persuasive, but not as plaintiff argues. The paramount distinction between the facts

ROY C. HYMAN, on behalf of himself and all other similarly situated persons, Plaintiff v. EFFICIENCY, INC., d/b/a TROJAN LABOR, Defendant No. COA04-246 (Filed 7 December 2004) 1. Employer and Employee— wage withholding — transportation deduction — specific authorization A de novo review revealed that the trial court did not err by granting summary judgment in favor of defendant temporary employment agency after the trial court found no violations of the North Carolina Wage and Hour Act under N.C.G.S. § 95-25.8 and N.C. Admin. Code tit. 13, r. 12.0305 based on defendant withholding class members’ wages to pay for an optional transportation service to and from job sites, because: (1) defendant’s daily log complies with the requirements of N.C.G.S. § 95-25.8(2)(a) as a specific authorization since the log provides class members with advance notice of the specific deduction amount, and the deductions for transportation expenses are not automatic and are conditioned upon the class members specifically requesting use of the van pool each morning; (2) defendant’s daily log specific authorization form satisfied the formatting and content requirements under N.C. Admin. Code tit. 13, r. 12.0305(b) since the daily log is written, signed by the class members on or before the payday for the pay period for which the deduction is made, includes the date signed, and states the reason for the deduction; (3) while administrative opinion letters from the North Carolina Department of Labor are not binding on the Court of Appeals, they are recognized as evidence of defendant’s good faith to comply with the statute; and (4) the optional transportation service offered to the class members is neither an incident of nor necessary to the employment, and it is not primarily for the benefit of defendant who hired from its locale even though the trip the class members pay for is between defendant’s home office and the job sites. 2. Employer and Employee— wage withholding — waiting and traveling to work A de novo review revealed that the trial court did not err by granting summary judgment in favor of defendant temporary employment agency based on class members not being entitled to compensation under N.C.G.S. § 95-25.6 for time spent waiting for1 and traveling on defendant’s optional transportation service, because: (1) plaintiff testified that defendant never told him that hours worked included wait time or travel time to and from the job site, and the employment contract does not provide for the compensation the class members seek; (2) the class members’ wait or travel time is not a principal activity requiring compensation, but instead is preliminary and postliminary activity since the class members’ idle time either before or after the workday is personal; and (3) the receipt of general protective equipment does not make travel time compensable under 29 C.F.R. § 785.38. Appeal by plaintiff from order entered 21 November 2003 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 14 October 2004. Law Offices of Robert J. Willis, by Robert J. Willis, for plaintiff-appellant. Cranfill, Sumner & Hartzog, L.L.P., by M. Robin Davis and Alycia S. Levy, for defendant-appellee. TYSON, Judge. Roy C. Hyman (“plaintiff’), on behalf of those similarly situated (collectively, “the class members”) appeal entry of summary judgment in favor of Efficiency, Inc., d/b/a Trojan Labor (“defendant”) after the trial court found no violations of the North Carolina Wage and Hour Act (“the NCWHA”), N.C. Gen. Stat. § 95-25.1 et seq. We affirm. I. Background Defendant is a temporary employment agency that hires individuals on a daily basis for casual labor. Defendant markets and provides the temporary labor to businesses that periodically need additional workers. Defendant’s hiring policy is structured on a first come first serve basis. The class members arrive at defendant’s office early in the morning to receive available employment. Upon arrival, the class members receive a time ticket indicating their place in line for job assignments. The time between receiving a number in line and departure to job sites is considered unpaid personal time. After receiving assignments, the class members may either transport themselves to the job sites or participate in defendant’s van pool. Defendant deducts $2.00 each way from a participant’s paycheck for optional van transportation. With their initial employment application, all the class members sign authorization forms that disclose the optional transportation program and related expenses. Each morning, the class members interested in using the van pool sign an additional form authorizing a wage deduction from their paycheck. The class members are not paid while waiting for the van pool at either defendant’s office or for return from the job site. Plaintiff filed a complaint in state court on 26 April 2002. Defendant removed the case to federal court alleging federal question subject matter jurisdiction under the Federal Fair Labor Standards Act (“the FLSA”), 29 U.S.C. § 201 et seq. On 25 September 2002, the federal court granted plaintiff’s motion to remand to state court as the claims were based solely under substantive state law. On 24 February 2003, the trial court granted plaintiff’s uncontested motion to file an amended complaint. This complaint alleged two class action claims under the NCWHA. First, plaintiff alleged defendant withheld illegal wage deductions. Second, defendant failed to honor an express agreement to pay plaintiff for all daily wages due. On 11 April 2003 and 3 June 2003, plaintiff moved for and was granted class certification of two classes of plaintiffs: (1) the transportation deduction class; and (2) the waiting to work class. Defendant answered on 16 June 2003. Defendant moved for summary judgment, or in the alternative for partial summary judgment, on 28 August 2003. The motion alleged: (1) plaintiff failed to state a claim upon which relief could be granted under the NCWHA and N.C. Gen. Stat. § 95-25.1 et seq.) (2) plaintiff’s claims under the NCWHA and N.C. Gen. Stat. § 95-25.1 et seq. are preempted by the FLSA; (3) plaintiff was paid the agreed upon wage for “hours worked” under the FLSA; and (4) defendant’s wage deduction authorization forms fully complied with the NCWHA, specifically N.C. Gen. Stat. § 95-28.8(2). On 21 November 2003, the trial court found the “material facts regarding these claims are not in significant dispute [and] [t]he issue ... is whether or not the undisputed material' facts of record establish a violation of the Wage and Hour Act.” The trial court found plaintiff failed to show a violation of the NCWHA and granted defendant’s motion for summary judgment. Plaintiff appeals. II.Issues The issues on appeal are whether the trial court properly granted: (1) summary judgment in favor of defendant on plaintiffs transportation deduction claim; and (2) summary judgment in favor of defendant on plaintiffs waiting to work claim. III.Federal Statutes. Regulations, and Cases as Guidance The issues before us arise from Employment and Labor Law, an area substantively monopolized by federal law. Plaintiffs claims are based on the NCWHA, N.C. Gen. Stat. § 95-25.1 et. seq. The NCWHA is modeled after the FLSA. Laborers’ Int’l Union of North America, AFL-CIO v. Case Farms, Inc., 127 N.C. App. 312, 314, 488 S.E.2d 632, 634 (1997). The North Carolina Administrative Code (“the Code”) provides that “judicial and administrative interpretations and rulings established under [] federal law” may guide us when interpreting North Carolina laws that are identical to provisions of the FLSA. N.C. Admin. Code tit. 13, r. 12.0103 (June 2004). We are not bound by decisions of Federal circuit courts other than those of the United States Court of Appeals for the Fourth Circuit arising from North Carolina law. Haynes v. State, 16 N.C. App. 407, 409-10, 192 S.E.2d 95, 97 (1972) (citing State v. Barber, 278 N.C. 268, 179 S.E.2d 404 (1971)). IV.Standard of Review We review a trial court’s entry of summary judgment de novo. Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 167, 571 S.E.2d 849, 851 (2002) (citing Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999)). Under de novo review, a reviewing court considers the matter anew, and it may substitute its own judgment for that of the trial court. Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (citation omitted). Summary judgment is proper when: “(1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law.” Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000) (quotation omitted), aff’dper curiam, 353 N.C. 445, 545 S.E.2d 210 (2001). The moving party has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 572, 515 S.E.2d 438, 441 (1999). The evidence must be viewed in the light most favorable to the non-moving party and all inferences from that evidence must be drawn against the moving party and in favor of the non-moving party. Id. After reviewing the record and considering the parties’ oral arguments, we conclude no genuine issues of material fact exist. We review the trial court’s conclusions of law. V. Transportation Deduction Claim Plaintiff asserts defendant failed to comply with the North Carolina statutes and the Code, which provide when and how employers may deduct wages from employees’ paychecks. We disagree. A. Blanket and Specific Authorizations of Wage Withholding N.C. Gen. Stat. § 95-25.1 et seq. comprise the NCWHA. N.C. Gen. Stat. § 95-25.8 (2003) addresses wage withholding, which states: An employer may withhold or divert any portion of an employee’s wages when: (1) The employer is required or empowered to do so by State or federal law, or (2) The employer has a written authorization from the employee which is signed on or before the payday for the pay period from which the deduction is to be made indicating the reason for the deduction. Two types of authorization are permitted: (a) When the amount or rate of the proposed deduction is known and agreed upon in advance, the authorization shall specify the dollar amount or percentage of wages which shall be deducted from one or more paychecks, provided that if the deduction is for the convenience of the employee, the employee shall be given a reasonable opportunity to withdraw the authorization; (b) When the amount of the proposed deduction is not known and agreed upon in advance, the authorization need not specify a dollar amount which can be deducted from one or more paychecks, provided that the employee receives advance notice of the specific amount of any proposed deduction and is given a reasonable opportunity to withdraw the authorization before the deduction is made. The statute offers employers two options of written authorization to deduct wages. First, N.C. Gen. Stat. § 95-25.8(2)(a) addresses deductions of a “known” sum of money, a specific authorization. N.C. Admin. Code tit. 13, r. 12.0305 (June 2004). Employees who agree to specific authorizations must receive from their employers an opportunity to withdraw the authorization before the deduction is made, “if the deduction is for the convenience of the employee . ...” N.C. Gen. Stat. § 95-25.8(2)(a). Second, N.C. Gen. Stat. § 95-25.8(2)(b) refers to a blanket authorization, one made for an unknown amount of money. N.C. Admin. Code tit. 13, r. 12.0305. Before a deduction may be completed under a blanket authorization, the employee must receive notice of the specific amount and a reasonable opportunity to withdraw the authorization. N.C. Gen. Stat. § 95-25.8(2)(b). The Code requires wage deduction authorizations to be: (1) written; (2) signed by the employee on or before the payday for the pay period for which the deduction is made; (3) show the date of signing by the employee; and (4) state the reason for the deduction. N.C. Admin. Code tit. 13, r. 12.0305(b). A specific authorization must provide the exact dollar amount or percentage of wages withheld. Id. Before wages may be deducted under a blanket authorization, the employee must be provided: (1) advance notice of the specific amount of the proposed deduction; and (2) a reasonable opportunity of at least three calendar days from the employer’s notice of the amount to withdraw the authorization. N.C. Admin. Code tit. 13, r. 12.0305(d). Defendant’s policy requires each individual hired to read and sign an employment contract that includes a provision entitled, “Acknowledgment of Transportation Expense and Request to Deduct Transportation Expenses from Wages,” which states: I HEREBY ACKNOWLEDGE that to be eligible for employment with THE COMPANY that I provide my own transportation to a job site. If I am unable to provide my own transportation to a job site, I request THE COMPANY to arrange such transportation for me. I acknowledge that such transportation is for my benefit, and that without THE COMPANY arranging the transportation to the job site, I would not be able to accept employment with THE COMPANY. If THE COMPANY or another employee provides transportation for me, or if I am advanced funds to provide for my own transportation, I hereby request and authorize THE COMPANY to deduct the actual and reasonable cost, not to exceed specific state law, of that transportation from my wages. This provision authorizes defendant to withhold wages for the class members use of the van pool. It does not specify a dollar amount for the van pool service and is a blanket authorization under N.C. Gen. Stat. § 95-25.8(2)(b). If this were the only wage deduction authorization form, defendant must provide the class members: (1) advance notice of the specific amount of the proposed deduction; and (2) a reasonable opportunity of at least three calendar days from the employer’s notice of the amount to withdraw the authorization. N.C. Admin. Code tit. 13, r. 12.0305(d). In addition to the employment contract blanket authorization, defendant presents another form to the class members every day. Each work morning, defendant offers the class members transportation to the job sites. Those interested sign a daily log which includes the following language: I HEREBY ACKNOWLEDGE that I am accepting transportation from a co-employee in order to report to. my assigned work site. If I did not accept such transportation, I would be unable to report to the job site assigned, or I would have to use public transportation, if available. I further acknowledge that my share of the cost of transportation shall be $4.00 per round trip, and I agree that this amount is reasonable. Trojan Labor does not set this fee and will not receive any part of the $4.00 cost of transportation. I acknowledge that the cost of transportation reimbursement amount will be credited in full to the co-employee who provides transportation for me to the job site. For each day that I accept as described herein, I agree that Trojan Labor provided transportation to me. I acknowledge and agree that this deduction of the transportation reimbursement from my paycheck by Trojan Labor is reasonable and is an accommodation to me, I ACKNOWLEDGE AND AGREE that I have a choice to accept the transportation from my co-employee and pay to him/her as explained herein the cost of transportation fee of $4.00 or travel to the job site on public transportation. With full knowledge that I have such a choice, I have elected to accept transportation from my co-employee and to reimburse him/her the cost of transportation as described herein. As a result of this election, I WAIVE any right to bring any action against Trojan Labor under State or Federal law relating to the cost of transportation to a job site. This daily log authorizes defendant to withhold wages for the class members use of the van pool. Unlike the blanket authorization above, the daily log provides the class members advance notice of the specific deduction amount, $2.00 each way, and qualifies as a specific authorization under N.C. Gen. Stat. § 95-25.8(2)(a). We further note the deductions for transportation expenses are not automatic. They are conditioned upon the class members specifically requesting use of the van pool each morning. Only then are wages withheld. The class members receive frequent and sufficient notice of the cost to use defendant’s van pool. We hold the daily log complies with the requirements of N.C. Gen. Stat. § 95-25.8(2)(a) as a specific authorization. Defendant’s daily log specific authorization form satisfies the Code’s formatting and content requirements. The daily log is written, signed by the class members on or before the payday for the pay period for which the deduction is made, includes the date signed, and states the reason for the deduction. N.C. Admin. Code tit. 13, r. 12.0305(b). On 3 July 2003, defense counsel requested and received an opinion letter from the North Carolina Department of Labor (“the NCDOL”) concerning defendant’s two authorization forms. In that opinion letter, the NCDOL concluded defendant’s daily log form satisfied the statutory and regulatory guidelines concerning wage withholding under a specific authorization. It also determined defendant’s employment contract was a blanket authorization under N.C. Gen. Stat. § 95-25.8(2)(b). Accordingly, defendant would need to provide the class members both advance notice of the specific deduction amount and at least three calendar days from the date of the notice of the deduction to withdraw the authorization. N.C. Gen. Stat. § 95-25.8(2)(b); N.C. Admin. Code tit. 13, r. 12.0305(d). The opinion letter also reiterated that defendant need not provide both a specific and blanket authorization form. While administrative opinion letters are not binding on this Court, we recognize it as evidence of defendant’s good faith to comply with the statute. Brooks, Comr. of Labor v. Grading Co., 303 N.C. 573, 581, 281 S.E.2d 24, 29 (1981) (although not binding, interpretations of a statute by the agency created to administer that statute are provided some deference by appellate courts) (citing In re Appeal of North Carolina Savings and Loan League, 302 N.C. 458, 466, 276 S.E.2d 404, 410 (1981)). Defendant’s daily log satisfies the requirements of both N.C. Gen. Stat. § 95-25.8(2)(a) and N.C. Admin. Code tit. 13, r. 12.0305(b) as a specific authorization. We decline to consider whether defendant’s employment contract meets the statutory and Code requirements as a blanket authorization. This portion of plaintiff’s assignment of error is overruled. B. Incident of and Necessary to Employment Plaintiff contends the optional transportation services offered by defendant to the class members are a benefit to defendant and thus are considered neither wages nor deductible. We disagree. “An employer is allowed to count as wages the reasonable cost ‘of furnishing [an] employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees.’ ” Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228, 1236 (2002) (quoting 29 U.S.C. § 203(m)). The employer may then deduct the reasonable cost from the employee’s paycheck, even if the net sum is below the minimum wage. 29 C.F.R. § 531.27 (2004). The United States Department of Labor (“the USDOL”) defines “other facilities” as [m]eals furnished at company restaurants or cafeterias or by hospitals, hotels, or restaurants to their employees; meals, dormitory rooms, and tuition furnished by a college to its student employees; housing furnished for dwelling purposes; general merchand