Wage Theft Cases

RYMAL v BAERGEN Docket Nos. 243795, 248124. Submitted March 9, 2004, at Detroit. Decided June 8, 2004, at 9:05 A.M. Penny Rymal brought an action against Herman Baergen, MTD Systems, Inc., Clark Products, Inc., and Clark Foodservice, Inc., in the Macomb Circuit Court, alleging quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliation in violation of the Civil Rights Act (cra), MCL 37.2101 et seq., as well as a claim for wrongful withholding of sales commissions, MCL 600.2961. At the time of the alleged conduct, the plaintiff and Baergen were employed by Clark Products and Clark Foodservice (collectively Clark), and Baergen was her supervisor. Also, during that time, the plaintiff and Baergen were working for MTD, and Baergen was the plaintiffs supervisor. Clark entered into a financial settlement with the plaintiff with respect to all claims. Baergen and MTD, however, filed a motion for summary disposition with respect to all the plaintiffs claims. The circuit court, Mary A. Chrzanowski, J., granted summary disposition in favor of Baergen on the basis that there could not be individual, supervisor liability for sexual harassment, sex discrimination, or retaliation under the cra, and the plaintiff failed to establish her retaliation claim against MTD because she failed to show that she engaged in a protected activity and that, if she did participate in a protected activity, the plaintiff failed to show that there was a causal connection to MTD’s employment action against her. Regarding the claims of sexual harassment and hostile work environment against MTD, the court held that the plaintiff failed to show that her rejection of defendant Baergen’s sexual proposition was a factor in MTD’s employment action against the plaintiff or that the rejection created an intimidating, hostile, or offensive work environment. Finally, with respect to the wrongful withholding of sales commissions claim, the court ruled that the plaintiff failed to prove she acted as a sales representative for MTD. The plaintiff appealed only the court’s rulings on her quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliation claims. As a related matter, before the settlement between Clark and the plaintiff, Baergen and MTD brought a cross-motion against Clark that sought to disqualify Clark’s counsel for a conflict of interest. Baergen and MTD claimed that during the initial procedural aspects of the litigation, Clark’s counsel also represented Baergen and MTD, and that subsequent events established that Clark’s interests were materially adverse to those of Baergen and MTD, and Clark’s counsel used privileged information obtained during the common representation against the defendants with respect to Clark’s cross-claim against Baergen and MTD. Therefore, a conflict of interest existed, which Baergen and MTD did not waive, and required the disqualification of Clark’s counsel. After an evidentiary hearing, the court granted Baergen and MTD’s cross-motion. Clark filed an appeal. The plaintiffs appeal and Clark’s appeal were consolidated. The Court of Appeals held: 1. The circuit court erred, in part, in ruling on the basis of the decision in Jager v Nationwide Truck Broker, Inc, 252 Mich App 464 (2002), that the CRA precludes any claim of individual liability under the CRA. The Jager ruling must be kept in its context. To the extent that Jager addressed specifically the antidiscrimination provision in the CRA, MCL 37.2202, along with MCL 37.2103(i), and considered the terms “employer” and “agent” to reach the conclusion that the CRA provides only for employer liability, and that a supervisor engaging in prohibited activity could not be held individually liable for violating a plaintiffs civil rights, that decision supports the circuit court’s ruling that Baergen could not be held individually hable for sexual harassment claims asserted by the plaintiff. The Jager decision does not extend to support the circuit court’s decision that Baergen could not be held individually hable for retaliation under the CRA, MCL 37.2701, because the Jager Court did not address the unambiguous language used in that section, and that Court’s broad brush language is not implicated with respect to the antiretabation provision, § 2701. Section 2701 clearly prohibits a “person” from retaliating against another person who opposes a violation of the CRA, and MCL 37.2103(g), for purposes of the entire CRA, defines a “person” to include an “individual” like Baergen. 2. The circuit court erred by granting summary disposition of plaintiffs claims of sexual harassment and hostile work environment against MTD and of her claim of retaliation against Baergen on the basis of an insufficiency in the documentary evidence. The plaintiff submitted sufficient documentary evidence to show a significant causal connection between a protected activity and the alleged quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliatory acts. In this regard, Baergen’s actions toward the plaintiff while at Clark is circumstantial evidence available to support her claims against the defendants because Baergen was the significant actor for both Clark and MTD, and work for MTD was conducted on Clark premises, using Clark assets and employees, and while on the clock for Clark. The documentary evidence showed that the plaintiff and Baergen worked together, in an employee-supervisor relationship, at Clark, that they worked together to launch and run MTD, that Baergen propositioned the plaintiff, that the plaintiff rejected the sexual advance, and that Baergen, after the rejection of the sexual advance, initiated a campaign of hostility towards the plaintiff and made adverse decisions with respect to the plaintiffs job duties, responsibilities, and pay. Further, the plaintiff complained to a Clark executive that Baergen was harassing her and being abusive and discriminatory, but the executive failed to meet with the plaintiff as he had promised. 3. There is a factual issue with respect to the plaintiffs claim of quid pro quo sexual harassment against MTD sufficient to survive summary disposition, in particular, whether the plaintiffs rejection of Baergen’s advances was a significant factor in the adverse employment decisions respecting the plaintiff. The documentary evidence shows that there was a close temporal proximity between the rejection of the sexual overture and the reduction of the plaintiffs duties for MTD and pay. Also, there was extensive evidence showing a significant causal connection between the verbal abuse after the rejection, a letter written by Baergen that could be construed as threatening, and Baergen’s adverse employment actions against the plaintiff with respect to her work for MTD. 4. There is a factual issue, sufficient to survive a motion for summary disposition, with respect to the plaintiffs claim of a hostile work environment at MTD. There is sufficient evidence to show a hostile environment based on the abusive behavior closely following the plaintiffs rejection of Baergen’s unwelcome communication and based on Baergen’s numerous sexually oriented comments and questions directed at the plaintiff. For the purpose of establishing a hostile MTD work environment, evidence of Baergen’s conduct and communications that occurred on Clark premises could be considered because there was evidence that MTD work was regularly conducted on Clark premises, and Baergen was the significant supervisory actor for both Clark and MTD. 5. There is sufficient evidence to survive summary disposition in regard to the plaintiffs retaliation claim against Baergen and MTD. With respect to Baergen, there was a close temporal proximity between the plaintiffs complaint to the Clark executive and Baergen’s verbal abuse and adverse employment actions directed at the plaintiff, whether related to MTD or Clark, which together with Baergen’s letter threatening retribution provided circumstantial evidence of a significant causal connection to the adverse employment actions sufficient to show that any reasons for those employment decisions were a pretext. Similarly, with respect to MTD, although the evidence is more attenuated, when the totality of the circumstances are considered, there is a connection between the complaint to the Clark executive and the reduction in the plaintiffs MTD duties and pay. 6. The plaintiffs complaint to the Clark executive was a protected activity under the CRA even though she did not specify the sexual nature of Baergen’s conduct. Regardless of the plaintiffs failure to formally invoke the protection of the cra, her claims of demeaning conduct, harassment, and discrimination by a male boss when made to the executive, who was an attorney, created a factual issue concerning whether she raised the specter of a discrimination complaint and was engaged in protected activity. 7. Clark has standing to challenge the circuit court’s order disqualifying its counsel on the basis of a conflict of interest. Although Clark settled the litigation with the plaintiff, Clark’s right to select counsel has been invaded and therefore it is an aggrieved party to the circuit court’s order. The order of disqualification was not limited just to the current litigation, but precluded counsel from representing Clark in any matter against the defendants. Consequently, if Clark failed to challenge the order, the doctrine of collateral estoppel would require in any future litigation that Clark’s counsel be disqualified. 8. Clark’s counsel limiting its representation of the defendants to filing an answer and affirmative defenses was proper. MRPC 1.2(b). 9. The circuit court erred by finding that there was a conflict of interest. Clark’s counsel obtained Baergen and MTD’s consent to continue representing Clark after consultation in accordance with MRPC 1.9. Clark’s counsel fully explained the nature of the limited representation and that continuing representation required a lack of any conflict of interest with Clark. Baergen signed an agreement providing that if a conflict were discovered, counsel could continue to represent Clark. While the consent was given before the conflict was discovered, the agreement fully anticipated that event. Also, although counsel did not discuss any specific conflict of interest, Baergen was aware of MTD and its activities and his noncompete agreement with Clark when he executed the agreement approving Clark’s continued representation by counsel in the event of a conflict. Finally, there was no evidence that counsel used confidential information obtained during the limited representation to the disadvantage of Baergen and MTD because Clark’s cross-claim against them was filed several months after the limited representation ceased and after Baergen’s deposition testimony. Therefore, Baergen and MTD failed to meet their burden of proving grounds for disqualification. Affirmed in part, reversed in part, and remanded for further proceedings. Kelly, J., concurred in part and dissented with respect to the majority’s decision that the circuit court erred in granting summary disposition of the plaintiffs retaliation claim against Baergen and MTD. The plaintiffs fairly cursory complaint used the term “retaliation” merely to describe the sexual discrimination that violated the CRA. Although there is no requirement that a complaint contain a specific statutory reference to MCL 32.2701 in order to put the defendants on notice of a retaliation claim, the plaintiff failed to allege that she engaged in a protected activity or that there was a causal connection between that activity and the adverse employment action. With respect to MTD, the plaintiffs contact with the Clark executive was not protected activity. She never indicated that she was being sexually harassed, and generic nonsex-based allegations are insufficient to raise the specter of unlawful discrimination under the CRA. The plaintiff also failed to show that her participation in a protected activity was a significant factor in the adverse employment action. Baergen’s conduct, which had preceded the plaintiffs contact with the Clark executive and which had begun after the plaintiffs rejection of defendant Baergen’s sexual proposition, merely continued in a similar and like fashion after that contact. Thus, the evidence indicates that the adverse employment action was directly attributable to the rejection. In the context of employment discrimination, articles 2 and 7 of the CRA do not permit actions for retaliation against an individual. The Jager decision affects the application of article 7 of the CRA within the context of employment discrimination. The use of the term “person” in MCL 37.2701 must be viewed in light of its purpose in the CEA as a whole. Article 7 uses the term “person” because it protects people in pursuance of claims brought under the other articles of the CRA, i.e., against employers, places of accommodation, educational institutions, persons engaged in real estate transactions, etc. Therefore, the use of the term “person” in article 7 in relation to a claim brought under article 2, which prohibits employers from discriminating, must be construed to apply only to an employer. This conclusion is buttressed by the observation that, in the context of this case, a retaliation claim cannot exist independently of a discrimination claim brought under article 2. Because article 2 does not permit a sexual harassment claim against an individual, article 7 likewise cannot provide a cause of action for retaliation against an individual. Civil Rights - Civil Rights Act - Retaliation - Employer and Individual Liability. The antiretaliation provision of the Civil Rights Act defines the term “person” to include an individual; therefore, a plaintiff can bring a cause of action against her supervisor, individually, for retaliation for the plaintiffs opposition to a violation of the act, or for making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing under the act (MCL 37.2701). Mazur, Morgan, Meyers & Kittel, PLLC (by Linda M. Galante and Courtney E. Morgan, Jr.), for Penny Rymal. Vercruysse Murray & Calzone, PC. (by Daniel J. Bernard and Susan Hartmus Hiser), for Herman Baergen and MTD Systems, Inc. Butzel Long, EC. (by Marcia L. Proctor) and Kienbaum, Opperwall, Hardy & Pelton, P.L.C. (by Elizabeth Hardy and Robert Bruce Brown), for Clark Products, Inc., and Clark Foodservice, Inc. Before: KELLY, PJ., and MURPHY and NEFF, JJ. MURPHY, J. In Docket No. 248124, plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendants Herman Baergen and MTD Systems, Inc., with respect to plaintiffs claims of sexual harassment and retaliation in the workplace brought pursuant to the Civil Rights Act (CRA), MCL 37.2101 et seq. In Docket No. 243795, defendants Clark Products, Inc., and Clark Foodservice, Inc., (hereinafter collectively referred to as Clark) appeal by leave granted an order disqualifying Clark’s counsel for a conflict of interest. Because there exists genuine issues of material fact in regard to all of plaintiffs claims against defendants Baergen and MTD, and because Baergen can be held individually liable solely for the retaliation claim in spite of this Court’s decision in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464; 652 NW2d 503 (2002), we affirm in part and reverse in part the grant of summary disposition in Docket No. 248124 and remand for further proceedings. Because there was a lack of evidence showing a conflict of interest or improper use of confidential information requiring disqualification, and because Baergen expressly consented to counsel’s continued participation should a conflict be discovered, we reverse the order disqualifying Clark’s counsel in Docket No. 243795. I. FACTUAL ALLEGATIONS and PROCEDURAL HISTORY A. PLAINTIFF’S COMPLAINT On July 26, 2001, plaintiff filed a two-count complaint against all defendants. The complaint alleged that plaintiff commenced her employment with Clark in 1983 as an accounts receivable manager. She later became an office manager, assistant division manager, acting division manager, and subsequently, in 1993, a sales manager. Baergen was an employee-supervisor of Clark having authority over plaintiff. During plaintiffs and Baergen’s tenure with Clark, they formed MTD Systems, which plaintiff refers to as her employer, along with Clark. MTD is in the business of picking up movies from distribution points and delivering the movies to various theaters. Plaintiff alleged that in October 1999, Baergen propositioned plaintiff to have a sexual relationship, and she declined. Shortly thereafter, Baergen asked plaintiff to sign a noncompete agreement that would reflect a promise not to engage in any business that was competitive with Clark. Plaintiff alleged that the request was an act of harassment and was made because of plaintiffs refusal to comply with Baergen’s sexual advances. Plaintiff did not sign the noncompete agreement. Further, plaintiff averred that, beginning in November 1999, Baergen started reassigning plaintiffs duties to other persons. These duties included creation of advertisements, approval of vacation requests, and assignment of new account leads to sales people. Additionally, plaintiff alleged that Baergen removed her as liaison with several customers, thereby interfering with sales commissions, questioned her about her work hours, and pressured plaintiff to relinquish her management position. Moreover, Baergen became verbally abusive and once became so enraged, because he thought plaintiff was on the phone too long, that he punched a wall in plaintiffs office, requiring him to seek medical attention. Plaintiff averred that Baergen started accusing her of having sexual relations with customers to obtain their business and that she spent her lunch hours having sex with various men. The complaint alleged that in January 2000, plaintiff demanded a sales review and a formal description of her job duties and responsibilities in response to a complaint that she was inadequately performing, but Baergen refused. It was asserted that plaintiff contacted a Clark executive about her ongoing problems with Baergen and that the executive promised to, but did not, meet with plaintiff. After this failed attempt by plaintiff to rectify the situation, Baergen refused to pay an expense voucher for plaintiff and removed her expense account entirely. Her duties were lowered to those of an administrator. Plaintiff additionally averred that the claimed reasons for these actions were that, on March 1, 2000, she had been demoted to a sales person. In July 2000, Baergen informed plaintiff that the sales manager job was given to a male. Plaintiff alleged that she left her employment on July 27, 2000, as she had been constructively discharged. We note that with respect to the alleged retaliatory actions, discriminatory practices, and other events, plaintiffs complaint does not distinguish whether the actions were in the context of her employment with Clark or MTD Systems. Count I of the complaint, which is fairly cursory, asserted a cause of action predicated on the CRA. The count provided, in relevant part: 22. Plaintiff was sexually harassed and retaliated against by defendants’ agent and employee, Defendant Baergen, throughout the course of her employment. 23. This sexual harassment and retaliation included, but is not limited to, unwelcome comments and conduct of an offensive and sexual nature directed at plaintiff, the creation of a hostile work environment, as described herein[,] and constructively terminating plaintiff s employment and withholding pay commissions due to her, based on her refusal to engage in a sexual relationship .... Count II of the complaint alleged violations of

Joseph Swift & another vs. AutoZone, Inc. Suffolk. February 5, 2004. April 13, 2004. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Labor, Wages, Overtime compensation. Discussion of the legislative history of the Fair Labor Standards Act of 1938, 29 U.S.C. § 207 (2000), and that of its State counterpart, G. L. c. 151, § 1A. [445-449] This court concluded that under G. L. c. 136, § 6 (50), and G. L. c. 151, § 1A, Massachusetts employers could offset or credit Sunday premium payments they provided to employees in any week toward overtime pay they provided to those employees under G. L. c. 151, § 1A, for working in excess of forty hours in that week. [449-450] Civil action commenced in the Superior Court Department on February 5, 2002. The case was heard by Allan van Gestel, J. on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Judith A. Malone (Robert G. Young with her) for the defendant. Charles E. Tompkins, of the District of Columbia (Richard M. Gelb, Tamara R. Pizer & Herbert E. Milstein with him) for the plaintiffs. Robert P. Joy & Robert P. Morris, for Associated Industries of Massachusetts & others, amici curiae, submitted a brief. Edward Cove. Marshall, C.J. A judge in the Superior Court reported the following question to the Appeals Court, pursuant to Mass. R. Civ. R 64, as amended, 423 Mass. 1410 (1996): “Under G. L. c. 136, [§] 6 (50),[] and G. L. c. 151, [§] 1A,[] may a Massachusetts employer offset or credit a Sunday premium payment it provides to an employee in any week toward overtime pay it provides to that employee under G. L. c. 151, [§] 1A, for working in excess of forty hours in that week?” The question arose when two employees, Joseph Swift and Edward Cove, filed a complaint against their employer, AutoZone, Inc. (AutoZone), an auto parts retailer, challenging its system of “crediting” premium rate payments due for Sunday work to wages due for overtime work. In April, 2001, AutoZone informed its Massachusetts employees that it was changing its policy regarding the compensation of employees who work both on Sunday and for more than forty hours in any week. Because of what AutoZone termed a “calculations error,” Massachusetts employees had been paid “time-and-a-half pay” for work on Sunday (or paid holiday), in addition to any overtime hours. This overpayment, AutoZone said, was not “in line” with other Massachusetts employers, and the “calculations error” would be “corrected.” On February 5, 2002, the plaintiffs, who are hourly, nonexempt employees who work in two of AutoZone’s retail stores, filed a class action complaint in the Superior Court seeking a judgment declaring that AutoZone’s new policy violated G. L. c. 151, § 1A, injunctive relief, treble damages, and attorney’s fees. On cross motions for summary judgment, the judge allowed the plaintiffs’ motion and denied the defendant’s motion, determining that neither of the two statutes at issue permitted such crediting. The judge reported the aforementioned question to the Appeals Court. We granted the parties’ applications for direct appellate review. Four months after summary judgment entered for the plaintiffs, and before briefing had concluded in this appeal, the Legislature enacted emergency legislation to take immediate effect. Statute 2003, c. 140, § 37, an amendment to G. L. c. 151, § 1A, expressly permits crediting: “In any work week in which an employee of a retail business is employed on a Sunday or certain holidays at a rate of one and one-half times the regular rate of compensation at which he is employed ... the hours so worked . . . shall be excluded from the calculation of overtime pay as required by this section.” We conclude that, even prior to the 2003 amendment, neither G. L. c. 151, § 1A, nor G. L. c. 136, § 6 (50), prohibited employers from crediting Sunday premium rate payments toward overtime payments. We vacate the grant of summary judgment in favor of the plaintiffs, and remand the matter to the Superior Court where judgment shall enter for the defendant. Discussion. The plaintiffs argue that the plain language of G. L. c. 151, § 1A, before it was amended in 2003, did not permit crediting. They point out that G. L. c. 151, § 1A, unlike its Federal counterpart, the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 207 (2000), did not previously contain express language permitting crediting, and that the recent amendment to G. L. c. 151, § 1A, expressly permitting crediting is evidence that the practice was previously unlawful. Turning first to the statutes themselves, James J. Welch & Co. v. Deputy Comm’r of Capital Planning & Operations, 387 Mass. 662, 666 (1982), an employer who credits premium rate payments for Sunday hours against overtime wages in fact satisfies the express language of both statutes, as illustrated by the following example. An employee who works for forty-eight hours, eight hours each day, Sunday through Friday, is paid at the regular rate of pay for forty hours, and one and one-half times for eight hours worked on Sunday. The employer has compensated the employee for work “in excess of forty hours at a rate not less than one and one-half times the regular rate,” G. L. c. 151, § 1A, because the employee has been paid one and one-half times for eight hours of work. The employer has also compensated the employee for “the work performed on Sunday ... at a rate not less than one and one-half times the employee’s regular rate,” because the employee has been paid one and one-half times for eight hours worked on Sunday. If two statutes require an employer to do the same thing, there is no rule of statutory construction that compels the employer to do so twice. The respective legislative histories of the two statutes confirm that, even before the 2003 amendment, the Legislature did not intend to grant any employee double one and one-half times payments, both for overtime and for Sunday work. The overtime provision of the minimum wage law, G. L. c. 151, § 1A, inserted by St. 1960, c. 813, was expressly intended to provide comparable overtime compensation “for all workers not now covered by Federal law.” 1960 Senate Doc. No. 1, at 22. Because the overtime provisions under State law were intended to be “essentially identical” to Federal law, Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 40 (1st Cir. 1999), the history concerning “crediting” under the cognate Federal statute, 29 U.S.C. § 207(a), is relevant to understanding the intent of the Massachusetts Legislature in 1960. We briefly describe that legislative history. Following the FLSA’s enactment in 1938, employers generally credited contractually based overtime pay (including premium rate pay for work on weekends and holidays) against their statutory overtime obligation under the FLSA. See S. Rep. No. 402, 81st Cong., 1st Sess. (1949), reprinted in 1949 U.S.C. C.A.N. 1617, 1619-1620. Then, in 1943, the administrator of the wage and hour division (administrator) advised the war shipping administration that the FLSA did not permit employers to credit contractually-based overtime premiums against statutory overtime. Id. at 1620-1621. However, other government agencies disagreed with the administrator’s interpretation. As a result, the administrator refrained from taking any action on his decision, and crediting continued. Id. at 1621. Thereafter, however, employees in the shipping industry began filing suits challenging the practice of crediting, and in 1948, the Supreme Court declared the practice invalid. Bay Ridge Operating Co. v. Aaron, 334 U.S. 446 (1948). Congress responded quickly, and within months of the Supreme Court’s decision, amended the FLSA expressly to permit crediting. 29 U.S.C. § 207(e)(6), (h). See S. Rep. No. 402, 81st Cong., 1st Sess. (1949), reprinted in 1949 U.S.C.C.A.N. 1617. 8The amendment defined “ ‘regular rate’ of pay,” and stated that “extra compensation provided by . . . premium rates” was creditable toward statutory overtime obligations. Id. at 1617-1618, 1627-1628. See note 6, supra. Two years before the 1949 amendment to the FLSA, the Massachusetts Legislature enacted the minimum wage law, G. L. c. 151, inserted by St. 1947, c. 432, § 1, in order “to correct inequities and to create a floor below which no employer may go in payment of wages to his employees.” 1959 House Doc. No. 2666, at 6. The statute contained no provision for overtime compensation, so the issue of “crediting” did not arise. Only in 1958, did the Legislature begin to consider mandatory overtime compensation. See 1958 House Doc. No. 3018 (resolve providing for investigation and study relative to overtime pay). Notwithstanding a recommendation by the Department of Labor and Industries to the contrary, in his 1960 annual address, the Governor urged the Legislature to enact a “State Fair Labor Standards Law” to provide overtime compensation for those Massachusetts workers not covered by Federal law. 1960 Senate Doc. No. 1, at 22. The Legislature responded affirmatively, and St. 1960, c. 813, providing for overtime compensation, was enacted later that year. G. L. c. 151, § 1A. The Massachusetts overtime legislation was substantially similar to its Federal counterpart, 29 U.S.C. § 207(a), but unlike the FLSA, which (as described above) had been amended in 1949, did not expressly address “crediting.” See St. 1960, c. 813. The plaintiffs argue that this omission in the 1960 Massachusetts legislation is evidence of a legislative intent to prohibit crediting. It is more likely, however, that, in 1960, the Legislature deemed unnecessary an express provision to permit crediting. The Legislature was likely aware that Congress intended the original FLSA to permit crediting, and that the Federal statute had been amended only after the Supreme Court of the United States ruled otherwise, Bay Ridge Operating Co. v. Aaron, supra. There is nothing in the legislative history to suggest that the Massachusetts Legislature intended to provide more generous overtime or premium rate compensation than Federal law, see 1960 Senate Doc. No. 1, at 22 (extending statutory overtime compensation to employees not covered by FLSA), and in light of Congress’s response to the ruling of the Supreme Court, the Massachusetts Legislature would have no reason to believe that any Massachusetts court would rule against crediting. Lest there be any doubt as to legislative intent in 1960, the 2003 amendment to permit crediting was swift legislative action in the wake of the Superior Court judge’s ruling to the contrary in this case. That action is strongly suggestive of the Legislature’s intent in 1960. See Fitz-Inn Auto Parks, Inc. v. Commissioner of Labor & Indus., 350 Mass. 39, 42 (1965) (logical to interpret recent statutory amendment as “clarification of an ambiguity and a legislative interpretation of the original act”). See also note 7, supra. It is also consistent with the actions of other State Legislatures confronted with court decisions prohibiting crediting. We address one final point raised by the plaintiffs. In October, 2001, the division of occupational safety of the Department of Labor and Workforce Development, the agency charged with the administration of G. L. c. 151, § 1A, issued an opinion letter to the effect that crediting violated G. L. c. 151, § 1A. “In general, we grant substantial deference to an interpretation of a statute by the administrative agency charged with its administration.” Massachusetts Hosp. Ass’n v. Department of Med. Sec., 412 Mass. 340, 345-346 (1992). But where the agency’s interpretation is “contrary to plain language of the statute and its underlying purpose,” no deference is warranted. Id. at 346. The case is remanded to the Superior Court where judgment shall enter for the defendant. So ordered. General Laws c. 136, § 6 (50), the premium rate payment provision of the so-called “Sunday” law, states in relevant part: “Any store or shop which qualifies for exemption under this clause. . . and which employs more than a total of seven persons . . . shall compensate all employees engaged in the work performed on Sunday . . . at a rate not less than one and one-half times the employee’s regular rate.” Pursuant to G. L. c. 136, § 13, employers must also compensate hourly, nonexempt employees for the holidays listed in that section, at the same rate as Sunday work. General Laws c. 151, § 1A, the overtime provision of the minimum wage law, states in relevant part: “[N]o employer in the commonwealth shall employ any of his employees in an occupation . . . for a work week longer than forty hours, unless such employee receives compensation for his employment in excess of forty hours at a rate not less than one and one half times the regular rate at which he is employed.” AutoZone is based in Memphis, Tennessee, and sells automobile and light truck parts, chemicals, and accessories nationwide. AutoZone presently operates fifty-five retail stores in Massachusetts, employing approximately 760 employees. A notice concerning the policy change sent to all AutoZone employees gave the following examples of the “corrected” policy: “1. An AutoZoner works 8 hours on Sunday and 32 hours Monday-Saturday. The AutoZoner will receive 32 hours regular pay and 8 hours at time-and-a-half. “2. An AutoZoner works 8 hours on Sunday and 40 hours Monday-Saturday. The AutoZoner will receive 40 hours regular pay and 8 hours at time-and-a-half. “3. An AutoZoner works 8 hours on Sunday and 42 hours Monday-Saturday. The AutoZoner will receive 40 hours regular pay and 10 hours at time-and-a-half. “4. An AutoZoner works 0 hours on Sunday and 42 hours Monday-Saturday. The AutoZoner will receive 40 hours regular pay and 2 hours at time-and-a-half.” Title 29 U.S.C. § 207 (2000) states in relevant part: “(a)(1) [N]o employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. ... (e)... As used in this section the ‘regular rate’ at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include... (5) extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because such hours are hours worked in excess of eight in a day or in excess of the maximum workweek applicable to such employee under subsection (a) of this section or in excess of the employee’s normal working hours or regular working hours, as the case may be; (6) extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in nonovertime hours on other days .... (h)(2) Extra compensation paid as described in paragraphs (5), (6), and (7) of subsection (e) of this section shall be creditable toward overtime compensation payable pursuant to this section.” A report submitted to the United States Senate by the committee on labor and public welfare stated that the amendment to the FLSA was intended to “correct a situation” that “has become particularly acute” in the wake of Bay Ridge Operating Co. v. Aaron, 334 U.S. 446 (1948). See S. Rep. No. 402, 81st Cong., 1st Sess. (1949), reprinted in 1949 U.S.C.C.A.N. 1617, 1617. On the committee’s recommendation, the amendment was made retroactive. The committee clearly believed that Congress always had intended to permit crediting under the original version of the FLSA, and that crediting had become unlawful only because of what Congress viewed as erroneous administrative and judicial interpretations. See id. at 1623-1626. As explained in the United States Department of Labor’s regulations interpreting the FLSA “extra compensation provided by a Premium rate of at least time and one-half which is paid for work on Saturdays, Sundays, holidays, or regular days of rest or on the sixth or seventh day of the workweek (hereinafter referred to as ‘special days’) may be treated as an overtime premium for the purposes of [FLSA].” 29 C.F.R. § 778.203 (2004). In a Special Report of the Department of Labor and Industries Relative to Clarifying the Hours of Labor for Women and Children and Relative to Overtime Compensation for Work in Excess of Forty Hours a Week and Certain Related Matters, submitted in December, 1958, to the House of Representatives, the department noted that more than one-half of Massachusetts employees were being paid overtime pursuant to union contract, the department’s wage orders, or the FLSA. 1959 House Doc. No. 2666, at 7. The department concluded that its own wage orders eventually would provide overtime compensation to most Massachusetts employees not otherwise covered, and recommended against legislation to provide for such compensation. Id. at 7-8. The amendment did not adopt the generic language of the 1949 Federal crediting amendment, but crafted language explicitly addressing the premium rate payment provision of the “Sunday” laws, G. L. c. 136, § 6 (50), the statute at issue in this case. Many States do not have overtime laws comparable to Massachusetts, and few States require premium rate compensation for hours worked on Sundays and holidays. See Finkel, State Wage-and-Hour Law Class Actions: The Real Wave of FLSA Litigation?, 7 Employee Rts. & Employment Pol’y J. 159, 163-165 (2003). However, in two States where courts have ruled that crediting was prohibited, see Narragansett Food Servs. v. Rhode Island Dep’t of Labor, 420 A.2d 805 (R.I. 1980), and Pullano v. Bluefield, 176 W. Va. 198 (1986), the respective State Legislatures eventually responded by amending the State overtime statutes to permit crediting. 1987 R.I. Pub. Laws c. 553, § 1; 1992 W. Va. Acts c. 118 (House Bill No. 4190).

ALLEN v MGM GRAND DETROIT, LLC Docket No. 241350. Submitted October 7, 2003, at Detroit. Decided December 18, 2003, at 9:00 A.M. Leave to appeal denied, 470 Mich 866. Robert Allen and Randal Lefevers brought an action in the Wayne Circuit Court against MGM Grand Detroit, LLC, seeking unpaid overtime compensation pursuant to the Minimum Wage Law of 1964 (mwl), MCL 408.381 et seq. The defendant moved for summary disposition, arguing that the plaintiffs’ claim is subject to the Fair Labor Standards Act (flsa), 29 USC 201 et seq., instead of the mwl. The court, Edward M. Thomas, J., denied the motion, ruling that the mwl applied pursuant to MCL 408.394 because application of the minimum wage provisions of the flsa results in a lower minimum wage than that provided by the mwl inasmuch as the plaintiffs’ action would be subject to a two-year statute of limitations under the flsa but to a three-year statute of limitations under the mwl. The defendant appealed by leave granted. The Court of Appeals held: MCL 408.394 provides that the mwl “does not apply to an employer who is subject to the minimum wage provisions of the [flsa], 29 U.S.C. 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 [the mwl].” As used in MCL 408.394, “those federal minimum wage provisions” refers only to 29 USC 201 to 216 and 217 to 219. The application of the two-year statute of limitations in the flsa, 29 USC 255, is not an application of one of “those federal minimum wage provisions.” Reversed. Statutes — Minimum Wage Law — Fair Labor Standards Act. The Minimum Wage Law of 1964 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 those federal minimum wage provisions would result in a lower minimum wage provided in the Minimum Wage Law; the application of the two-year statute of limitations in the Fan- Labor Standards Act, which provides for a shorter period than that provided in the Minimum Wage Law, is not an application of a minimum wage provision of the Fair Labor Standards Act (29 USC 255; MCL 408.394). Roy, Shecter & Vocht, RC. (by Michelle E. Vocht, Lynch H. Shecter, and Brian P Swanson), for the plaintiffs. Dickinson Wright PLLC (by Lawrence G. Campbell and David R. Deromedi) for the defendant. Before: Fitzgerald, P.J., and Zahra and Fort Hood, JJ. Zahra, J. Defendant, MGM Grand Detroit, LLC, appeals by leave granted the trial court’s order denying its motion for summary disposition of plaintiffs’ claim for unpaid overtime under the Minimum Wage Law of 1964 (mwl), MCL 408.381 et seq. Under MCL 408.394, if application of the “minimum wage provisions” of the federal Fair Labor Standards Act (flsa), 29 USC 201 et seq., results in “a lower minimum wage” than that provided by the mwl, the mwl is applicable. In this case, the hourly minimum wage rate and overtime provisions of the FLSA and the mwl were identical. We must decide whether application of the flsa minimum wage provisions nonetheless results in a lower minimum wage because the statute of limitations under the flsa is two years while the limitations period under the mwl is three years. We hold that the flsa statute of limitations, 29 USC 255, is not an flsa “minimum wage provision” as defined under MCL 408.394. Therefore, application of the federal limitations period cannot result in “a lower minimum wage” than that provided by the mwl. The trial court improperly denied defendant’s motion for summary disposition. We reverse. I. PLAINTIFFS’ ALLEGATIONS AND PROCEDURAL HISTORY Plaintiffs are, or were at one time, full-time slot machine floor supervisors at the Detroit MGM Grand Casino. They were required to arrive at work fifteen minutes before each eight-hour shift and remain at work at least twenty to thirty minutes after each shift. From August 1999 to early 2000, defendant paid plaintiffs their regular rate of pay for time worked over forty hours a week. In early 2000, defendant stopped paying plaintiffs for hours worked over forty hours a week. Also, plaintiffs were required to attend training sessions without being paid. Plaintiffs filed a complaint asserting that defendant violated the MWL by failing to pay overtime compensation at the rate of IV2 times their regular rate of pay. Defendant moved for summary disposition based on the applicability provision of the MWL, MCL 408.394. Defendant argued that it is governed by the FLSA, that the FLSA and the MWL provided the same minimum hourly wage rate during the time of the alleged violations, and that it was therefore entitled to summary disposition. The parties agree that defendant is governed by the FLSA. However, the trial court denied defendant’s motion, finding that because the FLSA had a shorter statutory limitations period than that provided under the mwl, application of “federal minimum wage provisions would result in a lower minimum wage than provided [by the mwl].” Defendant filed an application for leave to appeal, which this Court granted. n. ANALYSIS A. STANDARD OF REVIEW This Court reviews de novo a trial court’s decision on a motion for summary disposition. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003); Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Under MCR 2.116(C)(8), a motion for failure to state a claim for which relief can be granted tests the legal sufficiency of the pleadings. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995). “All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant.” Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). Summary disposition under MCR 2.116(C)(8) is proper when a claim is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery. Simko, supra at 654. Further, the proper interpretation of a statute is a question of law subject to review de novo. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003). B. ANALYSIS This Court long ago established that the mwl parallels the flsa. Saginaw Firefighters Ass’n v City of Saginaw, 137 Mich App 625, 631-632; 357 NW2d 908 (1984). There is, however, one discrepancy between the MWL and the flsa. That is, the mwl provides for a three-year statute of limitations while the flsa generally provides for a two-year statute of limitations. The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Gladych v New Family Homes, Inc, 468 Mich 594, 597; 664 NW2d 705 (2003); Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). Initially, we review the language of the statute itself. In re MCI, 460 Mich 396, 411; 596 NW2d 164 (1999). If the statute is unambiguous on its face, the Legislature is presumed to have intended the meaning plainly expressed and further judicial interpretation is not permissible. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992); Colucci v McMillin, 256 Mich App 88, 94; 662 NW2d 87 (2003). “Only where the statutory language is ambiguous may a court properly 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). An ambiguity in statutory language does not exist merely because a reviewing court questions whether the Legislature intended the consequences of the language under review. An ambiguity can be found only where the language of a statute as used in its particular context has more than one common and accepted meaning. Thus, where common words used in their ordinary fashion lead to one reasonable interpretation, the statute cannot be found to be ambiguous. Colucci, supra at 94. The trial court apparently found the phrase “a lower minimum wage” in MCL 408.394 ambiguous because of its interaction with other statutes. In applying MCL 408.394, the trial court read it together with MCL 408.384a(6), which provides: For purposes of administration and enforcement, an amount owing to an employee which is withheld in violation of this section shall be considered to be unpaid minimum wages under this act. From the phrase “unpaid minimum wages” in MCL 408.384a(6), the trial court, like the United States District Court for the Western District of Michigan in its unpublished decision in Zimmer v Bergstrom, Quinn & Oole, 1989 WL 223111 (October 16, 1989), concluded that the “mwl is concerned with more than just the determination of the hourly rate to be paid to an employee; its scope encompasses the total sum which may be owing to an employee.” Id., at * 3 (emphasis in Zimmer). Like the Zimmer court, the trial court also concluded that “because the statute of limitations would allow plaintiff[s] to bring [their] entire employment period within the scope of [the] complaint, application of the mwl does result in a higher ‘minimum wage’ as defined by the mwl.” Id. Thus, the trial court held that “application of [] federal minimum wage provisions would result in a lower [total amount payable to an employee] than provided in [the mwl].” MCL 408.394. We conclude that the trial court erroneously interpreted MCL 408.394. MCL 408.394 provides, in relevant part: This act does not apply to an employer who is subject to the minimum wage provisions of the fair labor standards act of 1938,... 29 U.S.C. 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. The MWL does not apply “unless application of those federal minimum wage provisions would result in a lower minimum wage than provided in this act.” MCL 408.394 (emphasis added). “[T]hose federal minimum wage provisions” plainly refers to the expressly identified provisions that are enumerated in the previous phrase. In reaching its result, the trial court determined that application of the flsa statute of limitations, 29 USC 255, would result in a lower minimum wage than that provided by the mwl. However, 29 USC 255 is not one of those federal minimum wage provisions” expressly identified by the Michigan Legislature that should be applied to determine whether the FLSA results in a lower minimum wage than that provided by the mwl. Therefore, the flsa statute of limitations is irrelevant to whether the mwl is applicable, and the trial court improperly denied defendant summary disposition. III. conclusion The Michigan Legislature specifically precluded application of the mwl to employers subject to the FLSA, 39 USC 201 et seq., unless application of “29 U.S.C. 201 to 216 and 217 to 219” results in a lower minimum wage than provided under the mwl. Defendant is an employer subject to the FLSA and application of the above referenced provisions to the present case does not result in a lower minimum wage. Defendant is entitled to summary disposition. Reversed. Plaintiffs have also asserted class action allegations as representatives of all similarly situated employees. There is no indication from the lower court record that the class has been certified. Plaintiffs’ complaint also alleges violations of the wages and fringe benefits act, MCL 408.471 et seq. The flsa contains a parallel provision, 29 USC 218(a), which provides that “[n]o provision of this Act or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this Act. . . .” Notably, the flsa provides a three-year statute of limitations for claims involving a willful violation of the act. 29 USC 255(a). Plaintiffs do not claim and we do not address whether there were willful violations of the FLSA. In reaching its conclusion, the trial court expressly adopted the reasoning found in an unpublished opinion, Zimmer v Bergstrom, Quinn & Oole, 1989 WL 223111 (WD Mich, October 16, 1989). However, federal district court opinions have no precedential value. Moreover, the persuasiveness of federal district court opinions is further diminished where, as here, the issue addressed by the federal court involves interpretation of a state statute and the federal court elected not to publish the opinion. We note that the Legislature did not include two provisions, 29 USC 216a (repealed) and 29 USC 216b, that are within this series of nineteen consecutive flsa “minimum wage provisions.” These provisions concern liability for overtime work performed before 1949. See 29 USC 216a (repealed) and 29 USC 216b. Given the particularity with which these provisions were not included, we find that their absence supports the position that the Legislature intended that only expressly identified flsa provisions be considered “minimum wage provisions” under MCL 408.394.

Stephen Prozinski vs. Northeast Real Estate Services, LLC. No. 01-P-994. Middlesex. February 12, 2003. October 16, 2003. Present: Cypher, Mason, & McHugh, JJ. Contract, Employment, Severance agreement, Performance and breach. Employment, Severance agreement, Sexual harassment. Labor, Wages. Damages, Breach of fiduciary duty. In a civil action alleging that the defendant’s refusal to pay the plaintiff severance upon termination of his employment with the defendant, according to the terms of a letter of employment, was a violation of the wage act, G. L. c. 149, § 148, the judge properly granted summary judgment in favor of the defendant, where the wage act did not refer to severance pay or similar terms; where the severance pay was not earned but was contingent upon severance, and thus was outside the scope of the wage act; and where there was no need to resort to the popular meaning of the term “wages,” to secondary authorities, or to other statutes using the term. [602-605] In a civil action arising from the defendant’s refusal to pay the plaintiff severance upon termination of his employment with the defendant, according to the terms of a letter of employment, the judge correctly determined that a contract existed between the parties and that the severance pay provision was unambiguous [605-606]; however, the judge erred in granting summary judgment in favor of the plaintiff on this claim, where the defendant’s affirmative defense and counterclaim that the plaintiff’s alleged “gross misconduct” in the performance of his duties constituted a material breach of his fiduciary duty to the defendant that operated as a breach of contract created a genuine issue of material fact to be resolved by a fact finder [606-610]. This court did not reach the question whether to rely on the “after-acquired” evidence in a civil action arising from the defendant’s refusal to pay the plaintiff severance upon termination of his employment with the defendant, according to the terms of a letter of employment. [610-612] Civil action commenced in the Superior Court Department on June 2, 1999. The case was heard by Allan van Gestel, J., on motions for summary judgment, and a proceeding on damages was heard by Margaret R. Hinkle, J. George A. McLaughlin, III (Theodore E. Daiber with him) for the defendant. Todd A. Newman (Terence P. McCourt with him) for the plaintiff. Cypher, J. This appeal arises from the alleged failure of Northeast Real Estate Services, LLC (Northeast), to pay to Stephen Prozinski severance pay and benefits in accordance with the terms of a letter, signed by both parties, which offered employment to Prozinski. Northeast employed Prozinski as the firm’s chief operating and financial officer from April, 1998, until February, 1999. In the fall of 1998, the principals who had formed Northeast learned that morale among the women employees was poor. On November 23, 1998, three female Northeast employees wrote a letter to the principals. The women complained that Prozinski had created a working environment that was so unfair and discriminatory that they were considering seeking other employment. On February 2, 1999, Northeast discharged Prozinski on grounds of financial misconduct and sexual discrimination and harassment. After Prozinski’s employment was terminated, Northeast learned of allegations that Prozinski had also sexually harassed a fourth female employee. They also learned that he had used company computers to distribute pornography to employees and to exchange obscene electronic mail with men in and out of the office. Prozinski filed a complaint against Northeast, alleging (1) violation of the wage act, G. L. c. 149, § 148; (2) breach of an employment agreement; (3) breach of an implied covenant of good faith and fair dealing; (4) wrongful termination of his employment; and (5) unjust enrichment or quantum meruit. Northeast asserted counterclaims alleging breach of fiduciary duty and fraud. The parties filed cross motions for summary judgment. A Superior Court judge allowed summary judgment (1) against Prozinski on his claim under the wage act; (2) for Prozinski on his claim of breach of an employment agreement; (3) against Northeast on its counterclaims for breach of fiduciary duty and fraud; and (4) against Prozinski on his remaining claims. A hearing on damages was conducted by a different Superior Court judge. She denied Northeast’s request to offer “after-acquired” evidence of Prozinski’s sexual misconduct in mitigation of his damages and ordered that judgment enter in favor of Prozinski in the sum of $104,431.76, with interest and costs, on his claim for breach of an employment agreement. A second amended judgment entered disposing of all claims as discussed. Prozinski appeals the dismissal of his claim for violation of the wage act, G. L. c. 149, § 148. Northeast appeals (1) the grant of summary judgment in favor of Prozinski on his count of breach of employment contract; (2) the dismissal of its counterclaim for breach of fiduciary duty; and (3) the exclusion of the “after-acquired” evidence. We affirm in part and reverse in part. 1. Background. On April 6, 1998, William F. Rand, HI, the chief operating officer of the Saracen Companies, Inc., delivered a letter to Prozinski offering to employ him as chief operating officer-chief financial officer (COO-CFO) of a “to be formed” property management company. The letter detailed approximately nine terms of employment, including “severance.” The “severance” provision stated, “During the first 24 months of employment if your employment is terminated by the Company then the Company will pay you the equivalent of 1 full year’s pay including benefits.” The letter also provided, under a category titled “Other Matters”: “We will work with you on a plan that address[es] the following matters: “— How your bonus from year to year [ajffects your base salary in the following year. “— How your bonus will be earned after you are vested. “— your ownership interest can be bought back once you are vested. “— How you will receive ownership in real estate deals in the future that the Company will have a direct involvement in. “— Defining what the termination language will be for the contract.” The letter provided a space for Prozinski to sign under the phrase “Accepted By.” Prozinski signed the letter, returned it to Rand, and began his employment shortly after April 6, 1998. Saracen Companies, Inc., paid Prozinski until Northeast was formed. Northeast paid Prozinski in accordance with the terms in the April 6 letter until it terminated him by a letter dated February 2, 1999. The letter referred to improper reimbursement requests, financial mismanagement, and complaints from female employees concerning their treatment by Prozinski. The letter indicated that Northeast considered Prozinski’s conduct to be a breach of his fiduciary duty to the company and stated that it was, therefore, not obligated to pay severance to Prozinski. 2. Standard of review. The standard of review for a grant of summary judgfnent requires that we take the evidence in the light most favorable to the nonmoving party to determine whether any genuine issues of material fact existed and whether the moving party was entitled to judgment as a matter of law. Harrison v. NetCentric Corp., 433 Mass. 465, 468 (2001). See Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). 3. Prozinski’s claim for nonpayment of wages. Prozinski claims that Northeast’s refusal to pay him severance was a violation of G. L. c. 149, § 148, the wage act, which requires timely payment of wages. No material facts are in dispute; the question presented is whether Northeast was entitled to judgment as matter of law. Under the wage act, an employee whose employment is terminated involuntarily must be paid in full on the day of discharge. Violations of the provision may result in injunctive relief, damages, treble damages, attorney’s fees and costs, and criminal penalties. G. L. c. 149, §§ 27C, 148, 150. The general purpose of the statute is “to assure that employees are paid their wages on a weekly basis.” Commonwealth v. Savage, 31 Mass. App. Ct. 714, 714 (1991). See American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 145 (1959). “The statute was intended and designed to protect wage earners from the long-term detention of wages by unscrupulous employers as well as protect society from irresponsible employees who receive and spend lump sum wages.” Cumpata v. Blue Cross Blue Shield of Mass., Inc., 113 E Supp. 2d 164, 167 (D. Mass. 2000). We have construed the wage act narrowly. See Commonwealth v. Savage, 31 Mass. App. Ct. at 716. Although the statute expressly refers to holiday pay, vacation pay, and definitely determined commissions, it does not refer to “severance pay” or similar terms. Prozinski argues that severance pay falls within the statute because his severance pay was “definitely determined” and therefore had “become due and payable.” A plain reading of the statute reveals that the quoted statutory terms refer solely to commissions. Prozinski next argues that the severance pay provided for in the agreement is governed by the wage act because the wage act is intended to deter employers from denying bargained-for compensation to terminated employees and that the severance pay was a bargained-for component of his wage package. Prozinski relies on Cumpata v. Blue Cross Blue Shield of Mass., Inc., supra, to support his argument. Cumpata does not assist Prozinski. In Cumpata, the court considered whether the wage act applied to an incentive commission, which was above and beyond the employee’s base salary. Id. at 168. The court concluded that the commission in question was triggered by a contingency and was, therefore, outside the scope of the wage act. Ibid. We think the same reasoning applies here. Prozinski’s severance pay was not earned but contingent upon severance. Furthermore, as the court observed, “there is no evidence that the Legislature intended to provide treble damages and attorneys fees and costs to professionals enforcing their asserted contract rights.” Ibid. Prozinski also argues that we should apply to the wage act the reasoning of Jancey v. School Comm. of Everett, 421 Mass. 482, 490-493 (1995), in which the court considered what types of compensation and benefits should be included in the term “wages” as used by the equal pay act, G. L. c. 149, § 105A. The equal pay act in Jancey did not define the term “wages” or provide any guidance as to its scope. The court resorted, therefore, to Black’s Law Dictionary and to other statutes for a definition of wages. The court quoted a definition from Black’s Law Dictionary that included the term “dismissal wages.” Id. at 490-491. In contrast, G. L. c. 149, § 148, refers to “weekly” or “biweekly” wages having been earned during a particular pay period and specifically includes in its definition “holiday or vacation pay” as well as definitely determined commissions. There is, therefore, no need to resort to the popular meaning of the term “wages,” to Black’s Law Dictionary, or to other statutes using the term “wage.” Furthermore, contrary to the suggestion in Prozinski’s brief, the court in Jancey did not consider or include severance payments within the meaning of the term “wages.” Prozinski also argues that we should turn to the definition of the word “wages” in the unemployment compensation statute, G. L. c. 151 A, § l(s). The unemployment compensation statute refers to severance pay as “remuneration.” However, the term “severance pay” was added by the Legislature only after the Supreme Judicial Court had held that, in the absence of that language, “remuneration” did not include severance pay. Compare Bolta Prods. Div., Gen. Tire & Rubber Co. v. Director of Div. of Employment Security, 356 Mass. 684, 688-689 (1970), with Ruzicka v. Commissioner of Dept. of Employment & Training, 36 Mass. App. Ct. 215, 217 n.5 (1994). In light of the narrow construction that has been afforded the wage act and considering the foregoing discussion, it is unnecessary to reach Prozinski’s argument that some jurisdictions have interpreted similar statutes to include severance pay within the meaning of the term “wages.” Finally, Prozinski relies on a policy argument, maintaining that to exempt severance pay from § 148 would vitiate the purpose of the statute by permitting employers to characterize compensation as something other than “wages.” Such an argument is more properly addressed to the Legislature. We therefore affirm the dismissal of this claim. 4. Prozinski’s claim for breach of contract. Northeast argues that summary judgment should not have been granted in favor of Prozinski on his count of breach of contract against Northeast. According to Northeast, the contract language contained inconsistent and ambiguous terms regarding the circumstances in which severance would be payable, because the April 6 letter expressly contemplated future negotiation of a more detailed contract. The letter provided, under the categorical label “Severance,” that “[djuring the first 24 months of employment if your employment is terminated by the Company then the Company will pay you the equivalent of 1 full year’s pay including benefits.” Northeast claims that this language is cast into ambiguity by language under the categorical label “Other Matters” that stated that the company “will work with you on a plan that address[es] . . . [djefining what the termination language will be for the contract.” The severance provision is unambiguous, as it is not “susceptible of more than one meaning.” Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998). The provision plainly states that if Northeast terminated Prozinski’s employment within twenty-four months, Northeast would pay Prozinski one year’s pay and benefits. See Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999) (“In interpreting a contract, the court must construe all words that are plain and free from ambiguity according to their usual and ordinary sense”). The reference to future negotiations did not change the plain meaning of the provision. Rather, the reference merely provided that the parties could negotiate another provision in a future contract. That , was not done. Furthermore, in all other ways, Northeast adhered to the letter of agreement, indicating an intent to abide by the plain meaning of its terms. See Martino v. First Natl. Bank of Boston, 361 Mass. 325, 332 (1972) (no surer way to find out what parties meant than to see what they have done). We conclude, therefore, that the judge correctly determined that a contract existed between the parties and that the severance pay provision was unambiguous. However, summary judgment should not have been granted for Prozinski because, as we discuss below, Northeast’s affirmative defense and counterclaim for breach of fiduciary duty created a genuine issue of material fact to be resolved by a fact finder. 5. Northeast’s affirmative defense and counterclaim that Prozinski was in material breach of his contract through a breach of his fiduciary duty. Northeast contends that an issue of material fact exists as to whether Prozinski’s “gross misconduct” in the performance of his duties constituted a material breach of his employment agreement, excusing Northeast from its contractual obligation to give Prozinski severance pay. According to Northeast, Prozinski’s sexually discriminatory management and financial misconduct, as summarized in the termination letter, was sufficient in itself to create an issue of material fact as to whether Prozinski had committed a material breach of contract, thereby excusing Northeast from performance. Northeast contends that Prozinski’s conduct constituted a breach of fiduciary duty. The judge rejected Northeast’s affirmative defense and counterclaim because he concluded that Prozinski’s conduct did not rise to the level of a breach of his fiduciary duty to the company. The judge also concluded that even if Prozinski’s conduct did constitute a breach of fiduciary duty which operated as a breach of contract, Northeast waived any defense because it acquiesced to the conduct by taking seventy days after the employee complaints to terminate Prozinski’s employment and because it did not assert those grounds in the termination letter. As we will discuss, we do not agree that Prozinski’s conduct, as matter of law, could not rise to the level of breach of fiduciary duty. We also do not agree that Northeast waived its affirmative defense by not detailing more specific legal theories in its letter. First, it appears to us that Northeast did assert in the letter a breach of fiduciary duty as a reason for termination. Second, we are aware of no authority requiring an employer to detail every legal theory in a letter of termination. Finally, whether the passage of seventy days from notice of Prozinski’s conduct to the decision to terminate Prozinski constituted acquiescence to his conduct is a question of a fact to be decided by a fact finder. See M.J.G. Properties, Inc. v. Hurley, 27 Mass. App. Ct. 250, 252-253 (1989). To prove waiver, Prozinski would be required to show “clear, decisive and unequivocal conduct on the part of [Northeast] indicating that it would not insist on adherence to the agreement.” Glynn v. Gloucester, 9 Mass. App. Ct. 454, 462 (1980). Given the practical and legal complexities of the modem workplace, whether seventy days is an unreasonable period of time to investigate the allegations and determine the best course of action is a question for a fact finder. With regard to Northeast’s claim that Prozinski committed a breach of his fiduciary duty that operated as a breach of contract, we conclude that there exists a genuine issue of material fact. A material breach of an agreement occurs when there is a breach of “an essential and inducing feature of the contract.” Lease-It, Inc. v. Massachusetts Port Authy., 33 Mass. App. Ct. 391, 396 (1992), quoting from Bucholz v. Green Bros., 272 Mass. 49, 52 (1930). See Restatement (Second) of Contracts § 237 (1981). “Whether a breach is material or immaterial normally is a question for the jury to decide.” Lease-It, Inc. v. Massachusetts Port Authy., supra, citing 6 Wilhston, Contracts § 841, at 159 (3d ed. 1962). The record in this case reflects a genuine issue of material fact on the question whether Prozinski’s conduct amounted to a material breach of his contract with Northeast and not simply what the motion judge characterized as “boorish conduct” and “sloppy record keeping.” As COO-CFO, Prozinski owed Northeast the duties of loyalty, of utmost good faith, and of protecting Northeast’s interests. See Swaney v. Clark-Wilcox Co., 331 Mass. 471, 475-476 (1954); Chelsea Indus., Inc. v. Gaffney, 389 Mass. 1, 11-12 (1983). Viewed in the light most favorable to Northeast, Prozinski’s breach of his fiduciary obligations comes from several directions. First, Northeast alleged, with some support, that Prozinski knowingly submitted false expense reports. Second, for his own purposes, Prozinski fostered an environment within the workplace that was hostile to its female employees. Third, Prozinski allegedly embarked on a course of sexual harassment of the receptionist. Fourth, Prozinski used the office computers to send obscene electronic mail and pornography. Prozinski’s placement of his own interests above those of the company he served could be found by a fact finder to constitute an act of disloyalty. See Quinn v. Burton, 195 Mass. 277, 279 (1907) (person who acts in representative capacity is not permitted to put himself in position antagonistic to interests of those whom he represents); Geller v. Allied-Lyons PLC, 42 Mass. App. Ct. 120, 122 (1997) (fiduciary must refrain from promoting his own interests in manner injurious to corporation). One claim of sexual harassment or discrimination