Wage Theft Cases

Workers' compensation—Industrial Commission has authority to terminate wage-loss compensation as long as "some evidence" of record supports that claimant is no longer qualified for compensation as of that date.

MINICUCI v SCIENTIFIC DATA MANAGEMENT, INC Docket No. 212439. Submitted April 4, 2000, at Detroit. Decided October 20, 2000, at 9:00 A.M. Anthony Minicuci brought an action in the Macomb Circuit Court against Scientific Data Management, Inc.,' alleging, among other claims, breach of contract and violation of MCL 600.2961(4) and (5), MSA 27A.2961(4) and (5) with respect to sales commissions the defendant allegedly owed to the plaintiff. Before bringing his action, the plaintiff had filed a claim under the wages and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq., with the Michigan Department of Labor, now the Department of Consumer and Industry Services, seeking the same unpaid sales commissions. The department issued a determination order against the plaintiff, prompting him to seek an appeal hearing. The plaintiff then requested that his appeal be dismissed without prejudice. A hearing officer dismissed the appeal with prejudice. The plaintiff did not seek judicial review of the order of dismissal, as allowed under MCL 408.481(9); MSA 17.277(H)(9). In the plaintiffs action, the circuit court, George E. Montgomery, J., granted summary disposition for the defendant, ruling that relief at common law was not available inasmuch as the plaintiff had elected to pursue, and was limited to, the administrative remedy made available by the wages and fringe benefits act. The plaintiff appealed. The Court of Appeals held-. The circuit court correctly granted summary disposition for the defendant, albeit for the wrong reason. Collateral estoppel precludes the claims raised in the plaintiffs action. 1. Generally, for collateral estoppel to apply, a question of fact essential to the judgment must have been actually litigated and determined by a valid final judgment. In addition, the same parties must have had a full opportunity to litigate the issue, and there must be mutuality of estoppel. Three additional requirements must be satisfied where a defendant seeks relitigation preclusion on the basis of an administrative decision. The administrative determination must have been adjudicatory in nature and provide a right to appeal, and the Legislature must have intended to make the decision final absent an appeal. 2. In this case, all the requirements for application of collateral estoppel were met. The issue of the plaintiffs entitlement to commissions was litigated in the department, which issued a final determination against the plaintiff. The parties had a full opportunity to litigate the issue. There is mutuality of estoppel because the defendant would have been bound by a department decision against it. The department’s consideration and investigation of the plaintiff’s claim was adjudicatory in nature. The wages and fringe benefits act accorded the plaintiff a right of appeal from the administrative decision, and the act reflects legislative intent that an administrative decision be final absent an appeal. Affirmed. Estoppel — Collateral Estoppel — Actions — Administrative Decisions. Collateral estoppel precludes an action after an administrative decision where a question of fact essential to a judgment was actually litigated and determined in a final decision, the same parties had a full opportunity to litigate the issue, there is mutuality of estoppel, the administrative determination was. adjudicatory in nature, a right of appeal was provided, and the Legislature intended to make the administrative decision final absent an appeal. Lipson, Neilson, Jacobs & Cole, P.C. (by Joseph P. Garin), for the plaintiff. Strobl Cunningham Caretti & Sharp, PC. (by Rieran F. Cunningham), for the defendant. Before: Hood, P.J., and Gage and Whitbeck, JJ. Gage, J. Plaintiff Anthony Minicuci appeals as of right from a trial court order granting defendant summary disposition of plaintiffs breach of contract and statutory sales commissions claims pursuant to MCR 2.116(C)(4) and (C)(7) (res judicata). We affirm. i In January 1991, plaintiff commenced employment with defendant Scientific Data Management, Inc., working as a commissioned sales representative. On February 24, 1995, plaintiff voluntarily ended this employment. Defendant in March 1995 provided plaintiff a check covering the February 1995 commissions due plaintiff. According to plaintiff, however, defendant still owed him approximately $11,000, which represented unpaid commissions and bonuses, illegal deductions, and overrides. In October 1995, plaintiff filed with the Michigan Department of Labor a claim for the allegedly unpaid commissions pursuant to the wages and fringe benefits act (wage act), MCL 408.471 et seq.) MSA 17.277(1) et seq. Defendant responded that under the terms of its employment agreements with plaintiff, the permissible net write offs, including plaintiffs customers’ canceled orders and bad debt losses, exceeded “the modest sum of commissions” due plaintiff. In April 1996, the department issued a determination order concluding that plaintiff was entitled to no further wages for the December 31, 1994, through February 24, 1995, period, in essence agreeing with defendant. The order advised plaintiff of his right to appeal the determination within fourteen days. Plaintiff timely appealed the determination, and the department scheduled an August 8, 1996, hearing date for plaintiff’s appeal. On August 6, 1996, plaintiff moved that his appeal “be withdrawn/dismissed without prejudice.” An August 16, 1996, department order granted plaintiff’s motion to dismiss, but ordered dismissal with prejudice. Although plaintiff denied that he ever received the order, a department “memorandum of transmittal” reflects that a copy of the order was properly sent. According to plaintiff, on August 7, 1996, the department verbally advised his counsel that plaintiff’s appeal would be “withdrawn and dismissed without prejudice.” While the wage act provided plaintiff the right to appeal to the circuit court the hearing referee’s order of dismissal, MCL 408.481(9); MSA 17.277(H)(9), plaintiff averred that “[b]ased on this oral statement . . . Plaintiff did not further pursue his [wage act] claim.” Plaintiff thus did not appeal the administrative determination and order of dismissal regarding his wage act claim, but instead in November 1996 filed the instant circuit court action alleging (count i) defendant’s breach of express and implied contracts, (count n) that defendant refused to pay plaintiff’s commissions in violation of MCL 600.2961(4) and (5); MSA 27A.2961(4) and (5), and (count m) defendant’s violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq. Defendant sought summary disposition of counts I and n under MCR 2.116(C)(4) and (7). Defendant alleged that counts I and ii represented the same claims for unpaid commissions that plaintiff raised before the department in his wage act claim, and that the department rejected in a final administrative determination. Defendant argued that the circuit court therefore lacked jurisdiction to consider counts I and n because plaintiff was prohibited from choosing to pursue his claims in a different, judicial forum after unsuccessfully seeking recompense from the department. Defendant also suggested that because a final administrative determination existed regarding plaintiff’s claim for unpaid commissions, res judicata precluded relitigation of this issue in the circuit court. Plaintiff countered that his November 1996 complaint asserted different common-law and statutory claims than his administrative claim, which raised only wage act violations, and that the circuit court possessed jurisdiction over all these separate claims. Plaintiff also suggested that res judicata would not preclude litigation of plaintiffs instant claims because the department’s dismissal with prejudice did not constitute a final, binding determination regarding his claim and plaintiff never received the department’s order of dismissal. On June 19, 1997, the trial court granted defendant’s. motion for summary disposition. The court determined that counts I and II represented the same claims for unpaid commissions that plaintiff raised before the department. The court, citing dicta in Murphy v Sears, Roebuck & Co, 190 Mich App 384, 388; 476 NW2d 639 (1991), explained that plaintiff had the option to elect either the wage act’s administrative remedy or other relief available at common law, but that once plaintiff chose to seek the administrative remedy, plaintiff had to pursue that remedy exclusively. n Plaintiff contends that the trial court erred in granting defendant summary disposition because the court relied on the Murphy Court's nonbinding statement in dicta that “once an employee chooses to pursue the administrative remedy, that remedy must be utilized exclusively.” Id.) see Faulkner v Flowers, 206 Mich App 562, 566; 522 NW2d 700 (1994) (recognizing the quoted statement as dicta). We note that although defendant’s brief on appeal urges that we decline consideration of claim preclusion issues, defendant invokes the cited Murphy dicta as the proper basis for our affirmation of the trial court’s grant of summary disposition. While neither the trial court nor the Murphy opinion dicta expressly considered the doctrines of claim preclusion, we find that collateral estoppel represents the doctrine correctly applied in and controlling of the outcome of the instant case, and the basis for the Murphy Court’s suggestion that “once an employee chooses to pursue the administrative remedy, that remedy must be utilized exclusively, including an appeal to the circuit court.” Murphy, supra at 388. The preclusion doctrines serve an important function in resolving disputes by imposing a state of finality to litigation where the same parties have previously had a full and fair opportunity to adjudicate their claims. By putting an end to litigation, the preclusion doctrines eliminate costly repetition, conserve judicial resources, and ease fears of prolonged litigation. Whether the determination is made by an agency or court is inapposite; the interest in avoiding costly and repetitive litigation, as well as preserving judicial resources, still remains. At issue in this case is the doctrine of collateral estoppel. Generally, “[fjor collateral estoppel to apply, a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment. In addition, the same parties must have had a full opportunity to litigate the issue, and there must be mutuality of estoppel.” However, because defendant is seeking to preclude relitigation on the basis of an administrative decision, three additional requirements must be satisfied. The administrative determination must have been adjudicatory in nature and provide a right to appeal, and the Legislature must have intended to make the decision final absent an appeal. [Nummer v Dep’t of Treasury, 448 Mich 534, 541-542; 533 NW2d 250 (1995) (citations omitted).] Application of a preclusion doctrine represents a question of law that we review de novo. Pierson Sand & Gravel, Inc v Keeler Brass Co, 460 Mich 372, 379; 596 NW2d 153 (1999). While plaintiff denies that his wage act administrative claim is related to his instant breach of contract count and his claim under MCL 600.2961(4) and (5); MSA 27A.2961(4) and (5), plaintiff ignores that all three claims allege and seek reimbursement for defendant’s wrongful retention of commissions owed plaintiff. Plaintiff’s wage act claim asserted defendant’s nonpayment of approximately $11,000 in commissions, bonuses, and illegal deductions. Plaintiff’s instant complaint likewise alleges that when he left defendant’s employ, defendant intentionally and unreasonably failed to provide plaintiff more than $10,000 in unpaid commissions and unauthorized deductions. The department’s initial “Determination Order” expressly “determined that no wages are due” for the period plaintiff alleged defendant’s nonpayment. Accordingly, the department clearly determined the fact essential to the instant action whether defendant unlawfully failed to provide plaintiff any outstanding commissions. See Dearborn Heights School Dist No 7 v Wayne Co MEA/NEA, 233 Mich App 120, 125; 592 NW2d 408 (1998) (“noting that a key determination concerning whether an earlier proceeding controls a later one is whether ‘the same facts or evidence are essential to the maintenance of two actions’ ”), quoting Jones v State Farm Mut Automobile Ins Co, 202 Mich App 393, 401; 509 NW2d 829 (1993). Every indication exists that plaintiff’s alleged entitlement to unpaid commissions was “ ‘actually litigated and determined by a valid and final judgment.’ ” Nummer, supra at 542, quoting Storey v Meijer, Inc, 431 Mich 368, 373, n 3; 429 NW2d 169 (1988). Though the record does not reveal exactly when plaintiff retained counsel to represent him with respect to the wage act claim, the available record does indicate that by some point during the administrative proceedings both parties had retained counsel. Nummer, supra. Before the Wage Hour Division of the department’s Bureau of Safety and Regulation initially determined the matter, the parties had the opportunity to submit evidence substantiating their positions, which the bureau then investigated before issuing the determination. MCL 408.481(2), (3); MSA 17.277(H)(2), (3). Moreover, plaintiff invoked his right to an appellate evidentiary hearing before a hearing referee, but then voluntarily dismissed the appeal. The referee’s August 16, 1996, order dismissing plaintiff’s wage act claim with prejudice represents an adjudication on the merits for claim preclusion purposes. Limbach v Oakland Co Bd of Co Rd Comm’rs, 226 Mich App 389, 395; 573 NW2d 336 (1997). Plaintiff insists, however, that the department did not issue a final, binding determination. Plaintiff asserts that he requested that the hearing referee dismiss his wage act claim without prejudice, that neither he nor his attorney received or learned of the referee’s dismissal with prejudice until defendant filed its motion for summary disposition, and that therefore “it would be inequitable to preclude Plaintiff from obtaining a final adjudication of his case.” Even assuming plaintiffs allegations are true, no relevant issue of fact precludes a grant of summary disposition based on collateral estoppel. Neither plaintiffs wish for a dismissal without prejudice nor the extent of plaintiff’s knowledge concerning the referee’s conclusion to enter an order of dismissal with prejudice alters the facts that both the administrative claim and the instant claims sought plaintiff’s entitlement to commissions and that the referee’s order dismissing plaintiff’s administrative claim constitutes a final adjudication on the merits. See MCR 2.504, Brownridge v Michigan Mut Ins Co, 115 Mich App 745, 748; 321 NW2d 798 (1982). Furthermore, we observe that “an unappealed [administrative agency’s] determination . . . that plaintiff is not entitled to ‘back pay’ . . . operates as collateral estoppel to the subsequent maintenance of a suit in circuit court to recover the same reimbursement as ‘damages’ for breach of contract” when “the questions of fact necessary for determination of ‘damages’ by the circuit court . . . would be identical to questions of fact already determined by the [administrative agency] in concluding ‘back pay’ was improper.” Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 399 Mich 449, 453, 457-459; 249 NW2d 121 (1976) (emphasis added); see also Champion's Auto Ferry, Inc v Public Service Comm, 231 Mich App 699, 712; 588 NW2d 153 (1998) (“Collateral estoppel applies to unappealed administrative determinations that are adjudicatory in nature and where ... a method of appeal is provided.”) (emphasis added). To the extent plaintiff suggests that this Court should craft some equitable remedy for him, plaintiff does not explain this suggestion and cites no authority in support of it; therefore, we decline to further address it. Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998). Furthermore, both the administrative proceedings and the instant case involve the same parties, and mutuality of estoppel exists because it appears that defendant would have been bound by an administrative determination that it violated the wage act. Barrow v Pritchard, 235 Mich App 478, 481; 597 NW2d 853 (1999) (“Collateral estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it, had it gone against him.”). In light of the department’s consideration and investigation of information supplied by the parties in making its initial determination regarding the merits of plaintiff’s claim, the department’s initial determination appears adjudicatory in nature. See MCL 408.481(3); MSA 17.277(H)(3) (“If the department is unable to informally resolve the dispute, the department shall notify the employer and employee .... The notification shall include a determination of the merits of the complaint. . . .”) (emphasis added). No indication exists that the initial determination occurred summarily or constituted a “decision to dismiss for ‘insufficient evidence.’ ” Nummer, supra at 543, n 7. Moreover, MCL 408.481(4)-(7); MSA 17.277(11)(4)-(7), affords the parties to the administrative proceeding the opportunity for appellate review of the department’s initial determination before a hearing referee, which appellate proceedings “shall be conducted pursuant to the procedures applicable to the trial of contested cases under . . . [MCL] 24.201 to 24.315[MSA 3.560(101) to 3.560(215)].“ Subsection 9 makes available, circuit court judicial review of the hearing referee’s conclusions. Because the administrative proceedings plaintiff initially invoked are adjudicatory in nature and provide a method of appeal, the last consideration in determining whether the agency’s action precludes the instant reconsideration of defendant’s alleged liability for unpaid commissions becomes whether the Legislature clearly intended to make the agency’s determination final in the absence of an appeal. Storey, supra at 373. In Nummer, supra at 545, the Supreme Court examined whether the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., reflected the Legislature’s intent concerning the finality of administrative proceedings involving it. The Court considered that the Legislature explicitly provided only one remedy from an adverse agency determination, a direct appeal to the circuit court, and that the Civil Rights Act otherwise contained no language concerning the preclusive effect of the Civil Rights Commission’s findings or conclusions. Hummer, supra at 547, 551. The Court therefore concluded that the Legislature intended to permit only an appeal and that “[i]f the Legislature intended anything else, it would have said so more directly.” Id. at 551. In Dearborn Heights, supra, the plaintiff school district in 1994 filed a complaint concerning the defendant teacher with the State Tenure Commission, pursuant to the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. The commission affirmed the hearing referee’s preliminary decision that the defendant teacher had assaulted a colleague and ordered the defendant teacher to serve a three-semester suspension, which decision this Court subsequently affirmed. The defendant teacher’s union then filed grievances alleging that the plaintiff’s suspension of the defendant teacher violated the school district’s collective bargaining agreement. The arbitrator revisited the defendant teacher’s alleged misconduct, disregarding the commission’s earlier decision and concluding that the defendant teacher did not commit a battery and should receive only a one-month suspension. The plaintiff then filed a circuit court complaint seeking to vacate the arbitrator’s award. The defendant teacher’s union filed a countercomplaint to enforce the a

Mandamus to compel city of Mentor et al. to provide respondents access to certain Mentor Police Department internal affairs investigative reports, and city payroll and overtime records—Writ granted in part and denied in part—Relators entitled to award of attorney fees only insofar as their public records claims had merit.

Kelli K. Goodrow vs. Lane Bryant, Inc. Suffolk. April 6, 2000. July 31, 2000. Present: Abrams, Greaney, Ireland, Spina, & Cowin, JJ. Statute, Construction, Federal preemption. Administrative Law, Regulations. Labor, Overtime compensation, Damages. Words, “Bona fide executive.” A Superior Court judge correctly concluded that a salaried employee was not employed as a “bona fide executive,” as that is defined in Federal regulations interpreting 29 U.S.C. § 213(a)(1), and that the employee was not exempt from the overtime provisions of G. L. c. 151, § 1A. [171-173] Discussion of the calculation of the “regular rate of pay” for salaried employees whose weekly work hours vary. [173-176] The application of the “fluctuating work week” method of calculating overtime pay for nonexempt salaried employees, described in 29 C.F.R. § 778.114, is permissible under G. L. c. 151, § 1A, and regulations promulgated thereunder, and an employer’s use of a standard calculation based on forty hours rather than the actual number of hours worked did not prejudice the employee. [176-177] This court concluded that where the “fluctuating work week” method is used to calculate overtime there must be a “clear mutual understanding” as defined in 29 C.F.R. § 778.114 between the employer and employee that that method will be used; to the extent that 455 Code Mass. Regs. § 2.02, tenth par., does not require such a “clear mutual understanding,” it is preempted by the Federal regulation. [177-178] In an action brought by an employee against an employer under G. L. c. 151, § 1A, for overtime compensation, nothing in the record supported a finding that the employer intentionally or wilfully violated State law or that it had an “evil motive” or was recklessly indifferent to employees’ rights, such as would support an award of treble damages. [178-179] Civil action commenced in the Superior Court Department on July 7, 1995. The case was heard by Allan van Gestel, J., and a motion to file a late notice of cross-appeal was heard in the Appeals Court by Kenneth Laurence, J. The Supreme Judicial Court granted an application for direct appellate review. R. Robert Popeo (Kenneth M. Bello with him) for the defendant. Thomas V. Urmy, Jr. (Christine E. Morin & Theodore M. Hess-Mahan with him) for the plaintiff. The following submitted briefs for amici curiae: Thomas E. Shirley & David C. Kurtz for Retailers Association of Massachusetts & another. Loretta M. Smith for New England Legal Foundation. Spina, J. Kelli K. Goodrow (Goodrow) commenced a class action against Lane Bryant, Inc. (Lane Bryant), for failing to pay overtime compensation at the rate of one and one-half times her hourly rate for the hours she worked in excess of forty in any work week, contrary to G. L. c. 151, § 1A. She also sought individually triple damages under G. L. c. 151, § IB. After a jury-waived trial, a Superior Court judge found for Goodrow and awarded her damages in the amount of $3,773.58, plus interest, costs, and reasonable attorney’s fees. Lane Bryant appealed, claiming (1) Goodrow was exempt from the provisions of § 1A because she was a “bona fide executive”; (2) the judge’s method of calculating overtime compensation for Goodrow, a salaried employee, was incorrect; and (3) G. L. c. 151, §§ 1A and IB, are unconstitutionally vague as applied. We granted its application for direct appellate review. The judge further found, as a matter of discretion, that individually Goodrow was not entitled to triple damages. Goodrow appealed, claiming the judge lacked discretion to deny triple damages after finding a violation of § 1A. We granted her application for direct appellate review. We reverse the'judgment for Goodrow and affirm the judgment denying punitive damages. 1. Background facts. We summarize the facts found by the judge. Lane Bryant operates a nationwide chain of retail stores that sell clothing and related goods to larger women. Goodrow began working at the Lane Bryant store in the Greendale Mall in Worcester on November 9, 1993. After a brief period of training Goodrow was transferred to the Lane Bryant store in Auburn, where she remained until she resigned, on April 10, 1995. On an average day, two or three employees worked in the Auburn store: a store sales manager, a cosales manager, and a sales associate. Goodrow’s job title was “co-sales manager.” Store sales managers and cosales managers were paid on a weekly salary basis. Sales associates, who were generally part-time workers, were paid on an hourly basis. Goodrow never worked less than forty hours per week, and ordinarily worked forty-six to forty-seven hours per week. During holiday seasons, Goodrow worked an additional five to seven hours per week. Her initial salary was $320 per week. On March 6, 1994, Good-row’s pay was raised to $325 per week. On March 12, 1995, her pay was raised again to $342 per week. Goodrow’s daily duties were as follows. She arrived at approximately 9:30 a.m., when she would turn on the cash registers, put cash in the registers, and examine the “register mail.” At 10 a.m. the store opened to customers. For the rest of the day she and the other employees performed retail sales work, including such tasks as waiting on and assisting customers, ringing up sales, setting up special promotional sales displays, replacing sold items on shelves, racks, or hangers, and keeping the store neat and presentable. Goodrow’s other duties included cleaning bathrooms, putting out trash, and providing on-the-job guidance and assistance to sales associates. At about 12:30 p.m. the part-time sales associate would go home and another cosales manager would arrive and stay until closing while Goodrow remained until 6:30 p.m. When Goodrow was the cosales manager who arrived at 12:30 p.m., she would stay until the store closing process was completed at about 9:30 p.m. The closing process included cleaning up the premises, vacuuming the floor, replacing light bulbs, washing mirrors, dusting, closing the cash registers, putting away the day’s receipts, making bank deposits, and locking the store for the night. Whenever Goodrow left the store her pocketbook and bags were checked by another employee pursuant to a company policy designed to minimize employee theft. Cosales managers such as Goodrow did not have authority to hire, fire, or discipline other employees. During the period Goodrow worked in the Auburn store, the position of store sales manager was left unfilled on two occasions that lasted approximately four and ten weeks, respectively. Goodrow, the cosales manager with seniority on those occasions, assumed some of the responsibilities ordinarily held by the sales manager. Her assumption of those duties was unofficial and resulted in no increase in compensation. During those two periods the Lane Bryant district manager visited the store more often, sometimes as many as three or four times each week. Prior to the time of Goodrow’s employment cosales managers were paid on a salary basis plus some overtime. Then, in 1991, they were paid only straight salary with no overtime. The United States Department of Labor (DOL) investigated Lane Bryant’s overtime payment practices to determine whether they complied with the Federal Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201-219. In November, 1992, one year before Goodrow joined Lane Bryant, the company reached an accord with the DOL. Under the terms of that agreement Lane Bryant was to “pay [its] co-managers on a fluctuating workweek basis” beginning November 15, 1992. That agreement further provided that, “in order to avoid weekly computations and to provide additional compensation, co-managers, in accordance with [Field Operations Handbook] § 32b04b(a),[] will receive an extra half-time based on their salary divided by 40 hours.” Goodrow testified that, at the time she was hired in 1993, the Lane Bryant district manager who interviewed her told her that she would receive eight dollars per hour, which “averaged out to $320 a week for forty hours,” and that, for all hours she worked in excess of forty, she would be paid at half of her hourly rate. On March 15, 1995, Goodrow signed a memorandum explaining the compensation scheme as it applied to her first pay raise. In pertinent part, the memorandum read: “As a Co-Sales Managers [szc] (‘CSM’) of Lane Bryant, you are an Exempt, Salaried associate. This means that you will be paid a weekly salary for hours worked each week. For all hours worked in excess of 40 per week, you will receive a supplemental rate of pay equal to one-half (.5) your regular rate of pay. . . . Please note that any benefits to which you may be entitled (sick, vacation, holiday, etc.) are paid based on a 40-hour week, or 8 hours per day.” The memorandum also included the following example: “Example (Based on 45 hour workweek): Your Personal Calculation: Base Weekly Salary: $308.00/week $325.60/week Supplemental Rate: $3.85/hour ($308/40 X .5) $4.07/hour $308.00 X 52 wks = $16,016.00 $325.60X52 = $16,931.20 $3.85 X 52 wks X 5 = $1,001.00 $4.07 X52X5 = $1,058.20 Annual Target Salary: $17,017.00 $17,989.40 Your Paycheck Should Show (Gross Pay): Base Weekly Salary (Regular Pay @ 40 hrs): $325.60 Supplemental Pay (Overtime Pay @ 5hrs): $20.35.” Goodrow resigned, voluntarily, on April 10. 2. “Bona fide executive” exemption. Lane Bryant argues that Goodrow was exempt from the overtime provisions of G. L. c. 151, § 1A, because she was a “bona fide executive” within the meaning of G. L. c. 151, § 1A (3), especially during the periods of time when she temporarily assumed the responsibilities of a store manager. Lane Bryant contends that, because neither the statute nor the corresponding regulations define “bona fide executive,” and absent any Massachusetts appellate decision construing the term, we should look to the ELSA and the Federal regulations to determine whether Goodrow was an exempt employee. Lane Bryant further argues that employees who have limited control or discretion in the workplace and who spend the majority of their time on nonexempt tasks may nevertheless be considered exempt as bona fide executives under the FLSA, and should receive similar treatment under G. L. c. 151, § 1A (3). Generally, the party claiming an exemption from the provisions of a statute has the burden to show that it is entitled to the exemption. Cf. New England Legal Found. v. Boston, 423 Mass. 602, 609 (1996) (burden on taxpayer claiming exemption to prove entitlement); Burnham v. Mark IV Homes, Inc., 387 Mass. 575, 580 (1982) (burden on party claiming exemption under G. L. c. 93A to prove entitlement). Where a “statute does not effectively define [terms] we have said that the Legislature should be supposed to have adopted the common meaning of the word, as assisted by a consideration of the historical origins of the enactment.” Jancey v. School Comm. of Everett, 421 Mass. 482, 490 (1995), S.C., 427 Mass. 603 (1998), quoting Westinghouse Broadcasting Co. v. Commissioner of Revenue, 382 Mass. 354, 357, appeal dismissed, 452 U.S. 933 (1981). The legislative history of G. L. c. 151, § 1A, provides no guidance as to the meaning of the term “bona fide executive.” See St. 1960, c. 813; 1960 Senate Doc. No. 1; 1960 House Doc: Nos. 1348, 2414, 3100; 1959 House Doc. No. 2666. In such instances we may look to interpretations of analogous Federal statutes for guidance, see Tate v. Department of Mental Health, 419 Mass. 356, 361 (1995), but we are not bound by them. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995); College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163 (1987). There is also the matter of preemption. Title 29 U.S.C. § 218(a) makes clear that the wage and hour standards set forth in the FLSA are the floor, and that “the FLSA does not preempt any existing state law that establishes a higher minimum wage or a shorter workweek than the federal statute.” Cosme Nieves v. Deshler, 786 F.2d 445, 452 (1st Or.), cert. denied, 479 U.S. 824 (1986). Conversely, a State law may be preempted by the FLSA if it conflicts with the FLSA, or if it is impossible for a third party to comply with both the FLSA and the State law. See Commonwealth Elec. Co. v. Department of Pub. Utils., 397 Mass. 361, 375-376 (1986), cert. denied, 481 U.S. 1036 (1987). Title 29 U.S.C. § 213(a)(1) provides: “[S]ection 207 of this title shall not apply with respect to . . . any employee employed in a bona fide executive, administrative, or professional capacity.” This provision is nearly identical to G. L. c. 151, § 1A (3). However, unlike its State counterpart, it is illuminated by interpretive regulations defining and delimiting the terms “executive, administrative, or professional.” See 29 C.F.R. §§ 541.0 et seq. (1999). To determine whether an employee is an “executive,” 29 C.F.R. § 541.1 establishes a “long test” for employees who earn between $155 and $250 a week, and 29 C.F.R. § 541.119 establishes a “short test” for those earning more than $250 a week. Goodrow was not a bona fide execu-five under either test. Her primary duty at Lane Bryant did not consist of “management of the enterprise” or a subdivision thereof, nor did it involve determining Lane Bryant’s over-all course or policies. See Bratt v. County of Los Angeles, 912 F.2d 1066, 1070 (9th Cir. 1990), cert. denied, 498 U.S. 1086 (1991); 29 C.F.R. § 541.1(a). Despite her temporary assumption of managerial duties at the Auburn store, Goodrow did not spend more than fifty per cent of her time at Lane Bryant performing managerial duties. “As a ‘rule of thumb,’ for tasks to constitute an employee’s primary duty, ‘the employee must devote more than fifty percent of [her] time to these duties.’ ” West v. Anne Arundel County, 137 F.3d 752, 763 (4th Cir.), cert. denied, 525 U.S. 1048 (1998), quoting Shockley v. Newport News, 997 F.2d 18, 26 (4th Cir. 1993). See 29 C.F.R. §§ 541.103, 541.206(b). At best, Goodrow customarily and regularly directed the work of only one part-time sales associate at the store, not the two or more required by 29 C.F.R. § 541.1(b) and (f). Goodrow had no authority or influence over any decision to hire, fire, promote or demote any other employee in the store. See 29 C.F.R. § 541.1(c). She did not exercise any discretionary powers in the execution of her job because all decisions she made concerning the business of the store were subject to the approval of upper level managers. See 29 C.F.R. § 541.1(d). Finally, Goodrow spent well over forty per cent of her time at Lane Bryant engaged in nonmanagerial activity. See 29 C.F.R. § 541.1(e). She was primarily occupied with carrying out the day-to-day affairs of the retail business. Nor do we think that Goodrow was a bona fide executive within the common understanding of those words. Webster’s Third New Int’l Dictionary 794 (1993) defines “executive” as “one who holds a position of administrative or managerial responsibility in a business or other organization.” “Administrative” pertains to “the management of public affairs [or] the principles, practices, and rationalized techniques employed in achieving the objectives or aims of an organization.” Id. at 28. To “manage” is “to control and direct.” Id. at 1372. In a related context, the Legislature defined a managerial employee as one who “participate [s] to a substantial degree in formulating or determining policy.” G. L. c. 150E, § 1. “Bona fide” is defined as “in good faith without fraud or deceit. . . . [synonym] authentic.” Webster’s Third New Int’l Dictionary, supra at 250. Although her title was “co-manager,” Goodrow did not hold a position of managerial responsibility within the Lane Bryant organization. She did not have any significant control or discretion over the principles, practices, and strategies applied by Lane Bryant in achieving its business objectives, and she did not participate to any degree whatsoever in formulating or determining Lane Bryant’s policies. She performed the duties of the sales manager on two occasions for a total of only fourteen weeks, but they were not her regular duties, she received no pay differential for the extra work, and the district manager could be seen as the actual temporary manager in light of her stepped up visits to the store. A manager in name does not a manager make. Goodrow’s duties and her modest level of compensation do not comport with what is commonly understood as an “executive” position. The common understanding of the term, which we apply in the absence of any Massachusetts statutory or regulatory definition, is at least as beneficial to the employee as the Federal definition. Consequently, there is no preemption of our gloss. The judge correctly concluded that Goodrow was not employed as a bona fide executive at Lane Bryant and thus was not exempt from the overtime provisions of G. L. c. 151, § 1A. 3. Calculation of overtime. Lane Bryant argues that the judge erred in calculating Goodrow’s overtime pay because the method he used to define her regular rate of pay was inconsistent with the applicable Massachusetts regulation, 455 Code Mass. Regs. § 2.02, tenth par. (1993), as well as the Federal regulations. Lane Bryant further argues that because G. L. c. 151, § 1A, is largely based on 29 U.S.C. § 207(a)(1), and application of the “fluctuating workweek” method of calculating overtime as described in 29 C.F.R. § 778.114 is an acceptable means of complying with Federal law, its application also must be permissible under Massachusetts law. The judge concluded that G. L. c. 151, § 1A, requires that all employees receive overtime at the rate of one and one-half times the hourly rate they earn in a forty-hour week. His interpretation is more beneficial to the employee than the method of payment permitted under the Federal regulations, but it ignores the Massachusetts regulations. General Laws c. 151, § 1A, provides that “no employer in the commonwealth shall employ any of his employees ... for a work week longer than forty hours, unless such employee receives compensation for his employment in excess of forty hours at a rate not less than one and one half times the regular rate at which he is employed.” The corresponding regulation in effect during Goodrow’s employment provided that the basic minimum overtime rate was “1 Vz times the employee’s regular rate of pay.” 455 Code Mass. Regs. § 2.03(1) (1993). The term “regular rate of pay,” however, is defined neither in the statute nor in the regulation. Title 455 Code Mass. Regs. § 2.02 defines “[r]egular [h]ourly [w]age rate” as “the amount that the employee is regularly paid for each hour of work. When an employee is paid on a piece work basis, salary, or any basis other than an hourly rate, the regular hourly rate shall be determined by dividing the total hours worked during the week into the employee’s total earnings.” This regulation recognizes that a salaried employee’s regular hourly rate may fluctuate on a weekly basis depending on the number of hours worked, and is inversely proportional to the number of hours worked. The nonexempt salaried employee is still entitled under 455 Code Mass. Regs. § 2.03(1) (1993) to receive one and one-half times that rate for overtime hours worked, but that requirement is satisfied by paying the employee an additional fifty percent of the regular hourly rate for the overtime hours worked. This is so because the employee’s salary is considered to include “straight time” for all hours worked, including the overtime hours. Had this not been the case the regulation would have provided that the regular hourly rate be determined by dividing weekly salary by forty hours. The check on this method of payment is found in the same regulation, which provides that “[r]egardless of the basis used, whether time rate, commission basis or piece rate, the employee shall be paid not less than the applicable minimum wage e

Workers' compensation—Court of appeals' grant of writ of mandamus ordering Industrial Commission to vacate its order and to recalculate claimant's wage loss based upon the difference between claimant's actual weekly earnings and the full weekly wage or average weekly wage affirmed.

DiBENEDETTO v WEST SHORE HOSPITAL Docket No. 112083. Argued October 12, 1999 (Calendar No. 11). Decided February 9, 2000. Margaret DiBenedetto suffered a work-related injury, for which her employer voluntarily paid worker’s compensation benefits. More than two years after her injury, a magistrate awarded plaintiff increased benefits under MCL 418.356(1); MSA 17.237(356)(1). The Second Injury Fund, which was responsible for paying the increased benefit amount, appealed to the Worker’s Compensation Appellate Commission, which affirmed the magistrate’s decision. After the plaintiff gained subsequent employment, the fund petitioned for termination of plaintiff’s wage loss benefits under MCL 418.301(5)(c); MSA 17.237(301)(5)(c), arguing that she earned more from her subsequent employment than the average weekly wage she received before the date of her injury. A magistrate denied the petition, concluding that the plaintiff’s average weekly wage had been revised by the award of increased benefits under subsection 356(1), and that her wage loss benefits should be determined by comparing her earnings from subsequent employment to her revised average weekly wage. The fund appealed to the wcac, arguing that the plain language of subsection 301(5)(c) required termination of the plaintiff’s wage loss benefits for the duration of her subsequent employment. The wcac agreed, holding that when an employee is involved in subsequent work, the offset is to be determined using the wage the employee received before the date of the injury. Thus, because, under subsection 301(5)(c) the average weekly wage is more than the plaintiff received before the date of her injury, she is not entitled to any benefits for the duration of her employment. The Court of Appeals, Fitzgerald, P.J., and Hood and Sawyer, JJ., reversed, holding that when an employee successfully obtains an acjjustment in compensation pursuant to subsection 356(1) by demonstrating that a greater wage would have been earned but for the injury, the imputed higher wage should be substituted for the preinjuiy wage when applying subsection 301(5). 229 Mich App 223 (1998) (Docket No. 200754). The Second Injury Fund appeals. In an opinion by Justice Markman, joined by Chief Justice Weaver, and Justices Taylor, Corrigan, and Young, the Supreme Court held: On the basis of the plain and unambiguous language of MCL 418.301(5)(c); MSA 17.237(301)(5)(c), the Court of Appeals erred as a matter of law when it substituted the imputed higher wage awarded the plaintiff under subsection 356(1) for the average weekly wage that the plaintiff received before the date of injury. 1. There was no error in the wcac’s interpretation of subsections 356(1) and 301(5)(c). The plain language of subsection 301(5)(c) requires a magistrate to compare the average weekly wage of an employee from subsequent employment with the average weekly wage the employee received before the date of injury. This language is unambiguous, and does not permit the magistrate to consider increased benefits a plaintiff may have been awarded more than two years after injury under subsection 356(1). A plain reading of the statutory language is susceptible of only one meaning. 2. Applying the plain statutory language of subsection 301(5)(c) would not produce an absurd and unjust result. There is nothing absurd or unjust about the statutory distinction between injured employees who are able to work postinjury and those who are unable to do so. When an injured employee gains subsequent employment and earns as much or more than was earned before the date of injury, there has been no compensable wage loss. Subsection 301(5)(c) treats recipients of subsection 356(1) enhanced benefits no differently than all other classes of injured employees. In this case, the plaintiff’s average weekly wage from subsequent employment was far in excess of the average weekly wage she was earning before the date of her injury, and her benefits were properly terminated for the duration of subsequent employment. 3. Nor would application of the plain language of subsection 301(5)(c) be clearly inconsistent with the purposes and policies of the worker’s compensation act. An injured employee is entitled to worker’s compensation benefits only if the work-related injury resulted in a wage loss. The plain language of subsection 301(5)(c) effects the general purposes and policies of the act by terminating wage loss benefits for injured employees who cease to suffer a compensable wage loss. Reversed. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that subsection 301(5)(c) must be construed in consolidation with subsection 356(1). When so read, it becomes clear that a literal interpretation of subsection 301(5)(c) would render subsection 356(1) meaningless by disqualifying persons from receiving subsection 356(1) benefits once they return to the same job or have earning capacity equivalent to the wages they earned at the time of injury. The purpose of subsection 356(1) is to alleviate the inequities that may result when an employee is injured at a job paying much less than the employee would be able to command in the marketplace or would soon be able to command because of education, training, and so forth. Once a rate adjustment has been made on the basis that a particular person would be earning more money because of education or experience, it would be illogical to return that employee to the prior rate of pay. The statute, when viewed as a whole, contemplates a rate increase based on earnings an employee would have made but for the injuries. The Court of Appeals read subsection 301(5)(c) in conjunction with subsection 356(1) and found incongruity. In response, it considered legislative intent, and arrived at a logical interpretation. Frederick W. Bleakley for the plaintiff-appellee. Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Rose A. Houk, Assistant Attorney General, for the defendant-appellant. Markman, J. In this case, we must decide whether the Worker’s Compensation Appellate Commission (wcac) properly analyzed two statutory provisions of the Worker’s Disability Compensation Act (wdca), MCL 418.101 et seq.-, MSA 17.237(101) et seq. The first provision allows an injured employee the opportunity to request an increased benefit rate after two years of continuous disability if the employee’s earnings would have been expected to increase because of certain enumerated factors. MCL 418.356(1); MSA 17.237(356)(1). The second provision requires termination of an injured employee’s wage loss benefits when the employee’s average weekly wage (aww) from subsequent employment exceeds the aww the employee received before the date of injury. MCL 418.301(5)(c); MSA 17.237(301)(5)(c). The question this Court must resolve is whether subsection 301(5)(c) permits the worker’s compensation magistrate to compare an injured employee’s aww from subsequent employment to the aww imputed to the injured employee under subsection 356(1) more than two years after the date of injury. This question is clearly resolved by the plain language of subsection 301(5)(c), which requires the magistrate to compare the “average weekly wage of the employee” from subsequent employment with the “average weekly wage the employee received before the date of injury.” MCL 418.301(5)(c); MSA 17.237(301)(5)(c) (emphasis added). The language “before the date of injury” precludes comparison between an injured employee’s AWW from subsequent employment and the Aww imputed to the employee under subsection 356(1) more than two years after the date of the injury. We therefore reverse the decision of the Court of Appeals and reinstate the order of the WCAC. On August 26, 1986, plaintiff Margaret DiBenedetto was injured in the course of her part-time employment as a licensed practical nurse at West Shore Hospital. Plaintiff’s employer voluntarily paid her worker’s compensation benefits at a rate of $108.12 a week. On May 17, 1989, more than two years after her injury, plaintiff requested an increased benefit rate under subsection 356(1) of the wdca. MCL 418.356(1); MSA 17.237(356)(1) provides, in pertinent part: An injured employee who, at the time of the personal injuiy, is entitled to a rate of compensation less than 50% of the then applicable state average weekly wage as determined for the year in which the injury occurred pursuant to section 355, may be entitled to an increase in benefits after 2 years of continuous disability. After 2 years of continuous disability, the employee may petition for a hearing at which the employee may present evidence, that by virtue of the employee’s age, education, training, experience, or other documented evidence which would fairly reflect the employee’s earning capacity, the employee’s earnings would have been expected to increase. Upon presentation of this evidence, a worker’s compensation magistrate may order an adjustment of the compensation rate up to 50% of the state average weekly wage for the year in which the employee’s injury occurred. The adjustment of compensation, if ordered, shall be effective as of the date of the employee’s petition for the hearing. . . . There shall be only 1 adjustment made for an employee under this subsection. The worker’s compensation magistrate determined that plaintiff was totally disabled as a result of her work-related injuries and was therefore entitled to benefits. The Aww plaintiff received from her employment in 1986, before the date of her injury, was $141.61. The magistrate determined that plaintiff’s aww would have been expected to increase from $141.61 to $365.38 by the time she filed her 1989 petition, but for her 1986 work-related injury. Applying subsection 356(1), the magistrate awarded plaintiff benefits at fifty percent of the 1986 state aww, $207.35. Defendant Second Injury Fund (sif), which was responsible for paying the increased benefit amount to plaintiff, appealed to the WCAC, which affirmed the magistrate’s decision. Plaintiff subsequently returned to work at West Shore Hospital, although not in her skilled employment as a licensed practical nurse. She worked a part-time schedule until late 1990 or early 1991, when she began full-time work. Her weekly wage from this employment fluctuated between $250 and $370. In March 1993, the SIF petitioned for termination of plaintiffs wage loss benefits under subsection 301(5)(c), arguing that plaintiff earned more from her subsequent employment than the aww she received before the date of her injury. MCL 418.301(5)(c); MSA 17.237(301) (5) (c) provides, in pertinent part: If disability is established pursuant to subsection (4), entitlement to weekly wage loss benefits shall be determined pursuant to this section and as follows: * * * (c) If an employee is employed and the average weekly wage of the employee is equal to or more than the average weekly wage the employee received before the date of injury, the employee is not entitled to any wage loss benefits under this act for the duration of such employment. The worker’s compensation magistrate denied the SiF’s petition to terminate benefits, concluding that plaintiffs AWW had been revised by the subsection 356(1) award and that her wage loss benefits should be determined by comparing her earnings from subsequent employment to her revised aww. The sif appealed to the WCAC, arguing that the decision to terminate wage loss benefits under subsection 301(5)(c) requires a comparison between the injured employee’s aww received from her subsequent employment and the aww she “received before the date of injury.” Under this construction, the amount plaintiff earned from her subsequent employment, between $250 and $370 a week, would be compared to the AWW she received before her 1986 injury, $141.61. The SIF argued that, given this comparison, the plain language of subsection 301(5)(c) provides that plaintiff would not be entitled to any additional wage loss benefits for the duration of such employment. The wcac agreed with the SlF’s position, holding as follows: Both of those sections are very explicit. When an employee is involved in subsequent work, the offset is to be determined using the wage the employee received before the date of the injury. In this case, that was $141.00 a week. Thus, under Section 301(5)(c), since the average weekly wage is more than plaintiff received before the date of her injury, she is not entitled to any benefits for the duration of her employment. The Magistrate’s conclusion of law is corrected[,] Abbey v Campbell, Wyant & Cannon Foundry [On Remand], 194 Mich App 341, 351 [468 NW2d 131] (1992), his decision is reversed, and the Fund’s Petition to Stop [benefits] is granted. [1997 Mich ACO 6, 10 (emphasis in original).] Plaintiff sought leave to appeal in the Court of Appeals, arguing that the worker’s compensation magistrate properly compared the Aww that plaintiff received from her subsequent employment to the aww imputed to her more than two years after the date of her injury under subsection 356(1), $365.38. Under this construction, subsection 301(5)(c) would eliminate plaintiff’s wage loss benefits only when her aww received from subsequent employment exceeded $365.38. The Court of Appeals reversed the decision of the wcac and agreed with plaintiff’s position, holding as follows: We agree with plaintiff that the Legislature cannot have intended § 301(5)(c) to be applied as it has been in this case in light of the legislative decision embodied in § 356(1). That section allows a disabled employee under certain circumstances to prove that, but for her injury and disability, she would be earning a greater wage than she was earning at the time of the injury. Presumably this section is meant to alleviate the inequities that may result when an employee is injured at a job paying much less than the employee would be able to command in the marketplace or would soon be able to command because of education, training, and so forth. A person might work part-time, like plaintiff, for a variety of reasons, but might have expected to work full-time and received much greater compensation in the near future. If the wcac’s interpretation of § 301(5)(c) were correct, then the purpose underlying § 356(1) would be defeated. Even if plaintiff earns only $142 a week, she would lose all benefits because her present weekly wage would exceed the weekly wage she earned at the time of her injury by thirty-nine cents. Moreover, if plaintiff were to refuse the offer of a job paying $142 a week, she would forfeit her right to benefits pursuant to § 301(5)(a). In order to avoid this illogical result and to give effect to both sections, we hold that, when an employee successfully obtains an adjustment in compensation pursuant to § 356(1), by demonstrating that the employee would have earned a greater wage but for the injury, the imputed higher wage should be substituted for the preiryury wage when applying § 301(5). An injured employee will thereby receive the benefit of § 356(1) while unemployed, will receive no benefits if wages from favored work exceed the augmented wage rate, and will receive eighty percent of the difference up to the statutory maximum if the favored work pays less than the augmented wage rate. [229 Mich App 223, 228-229; 581 NW2d 766 (1998) (emphasis in original).] We granted the SlF’s application for leave to appeal. This Court reviews questions of law involved in any final order of the wcac under a de novo standard of review. Oxley v Dep’t of Military Affairs, 460 Mich 536, 540-541; 597 NW2d 89 (1999). Findings of fact made or adopted by the wcac within the scope of its powers are conclusive on appeal, in the absence of fraud, but a decision of the WCAC is subject to reversal if it is based on erroneous legal reasoning or the wrong legal framework. MCL 418.861a(14); MSA 17.237(861a)(14); Goff v Bil-Mar Foods, Inc (After Remand), 454 Mich 507, 512; 563 NW2d 214 (1997); Taylor v Second Injury Fund, 234 Mich App 1, 13; 592 NW2d 103 (1999). When reviewing questions of statutory construction, our purpose is to discern and give effect to the Legislature’s intent. Murphy v Michigan Bell Telephone Co, 447 Mich 93, 98; 523 NW2d 310 (1994). We begin by examining the plain language of the statute. Where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed—no further judicial construction is required or permitted, and the statute must be enforced as written. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). We must give the words of a statute their plain and ordinary meaning, and only where the statutory language is ambiguous may we look outside the statute to ascertain the Legislature’s intent. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). The primary goal of judicial interpretation of statutes is to ascertain the intent of the Legislature. The first criterion in determining intent is the specific language of the statute. The Legislature is presumed to have intended the meaning it plainly expressed. If the plain language of the statute is clear, no further judicial interpretation is necessary. [In re Worker’s Compensation Lien (Ramsey v Kohl), 231 Mich App 556, 561; 591 NW2d 221 (1998) (internal citations omitted).] Finally, the wdca is a remedial statute that should be “ ‘liberally construed to grant rather than deny benefits.’ ” Goff, supra, 454 Mich 511, quoting Sobotka v Chrysler Corp (After Remand), 447 Mich 1, 20, n 18; 523 NW2d 454 (1994) (opinion of Boyle, J.). We find no error in the wcac’s interpretation of subsections 356(1) and 301(5)(c). The plain language of subsection 301(5)(c) requires the magistrate to compare the “average weekly wage of the employee” from her subsequent employment with the “average weekly wage the employee received before the date of injury.” MCL 418.301(5)(c); MSA 17.237(301)(5)(c) (emphasis added). The plain statutory language is unambiguous, and it does not permit the magistrate to consider the increased benefits a plaintiff may have been awarded more than two years after her injury under subsection 356(1). A plain reading of the statutory language at issue is susceptible of only one meaning. The average weekly wage that plaintiff received “before the date of injury” was clearly $141.61, not the subsequent benefit rate of $365.38. Plaintiff concedes that subsection 301(5)(c) is unambiguous. However, she contends that an ambiguity appears when subsections 301(5)(c) and 356(1) are considered together because the application of subsection 301(5)(c) would eliminate the employee’s “entitlement to an enhanced wage” awarded under subsection 356(1). Plaintiff views this as an absurd and unjust result, citing Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976), for the proposition that a departure from the rules of literal construction is justified when such construction would produce an absurd and unjust result. The full quotation to which plaintiff refers is as follows: [W]e must keep in mind the fundamental rule of statutory construction that departure from the literal construction of a statute is justified when such construction would produce an absurd and unjust result and would be clearly inconsistent with the purposes and policies of the act in question. [Id.] The dissent likewise believes that applying the plain language of subsection 301(5)(c) would produce an absurd and unjust result because such a construction would give “no effect” to subsection 356(1), and would somehow render that subsection meaningless. The dissent concludes that subsection 301(5)(c) cannot be viewed “in isolation,” but must be construed “in consolidation with” subsection 356(1) and that employees who have received a subsection 356(1) wage adjustment after two years of continuous disability must be accorded different treatment under subsection 301(5)(c) than other inj

Workers' compensation—Mandamus sought ordering Industrial Commission to vacate its denial of claimant's application for wage-loss compensation—Court of appeals' judgment affirmed in part and reversed in part.

STEPHEN D. McCULLOUGH, Plaintiff v. BRANCH BANKING & TRUST CO., INC., Defendant No. COA99-149 (Filed 18 January 2000) 1. Disabilities— Equal Employment Practices Act — definition of handicap — alcoholism The trial court did not err in an employment termination case by instructing the jury that the term “handicapped” has been defined to exclude active alcoholism or in its definition of active alcoholism. Reading other statutes relating to the same subject with the Equal Employment Practices Act, N.C.G.S. § 143-422.2, “handicap” as used in the Act includes alcoholism but not active alcoholism and, using the common and ordinary meaning, an “active alcoholic” is an alcoholic who is currently engaged in the use of alcohol or was in the immediate past. 2. Employer and Employee— bonus — termination The trial court did not err in an action arising from an employment termination by denying plaintiff’s request for instructions regarding plaintiff’s claim for an unpaid wage bonus. Although there was no notification to plaintiff that termination of his employment could result in forfeiture of his bonus, the decision to require forfeiture of the bonus did not constitute a change in the benefits plan and no notice was required. 3. Venue— change — convenience of witnesses — motion after answer The trial court did not err by considering a motion for change of venue filed after the answer where the motion was based on the convenience of the witnesses. Appeal by plaintiff from order allowing defendant’s motion for change of venue filed 15 July 1994 by Judge Narley L. Cashwell in Wake County Superior Court, from oral order from the bench on 5 September 1997 denying plaintiffs motion for a directed verdict, from order denying plaintiffs motion for a new trial filed 18 December 1997, from order allowing defendant’s motion for costs filed 18 December 1997, from order denying plaintiff’s first and second motions to compel defendant to pay plaintiff’s expert reasonable fee for traveling to and from his deposition filed 18 December 1997, and from jury instructions given at trial, by Judge G.K. Butterfield, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 16 November 1999. Robert J. Willis, for 'plaintiff-appellant. Constangy, Brooks & Smith, LLC, by Edward Katze and Timothy R. Newton, and Narron & Holdford, P.A., by I. Joe Ivey, for defendant-appellee. GREENE, Judge. Stephen D. McCullough (Plaintiff) appeals a jury verdict and final judgment in favor of Branch Banking & Trust Company, Inc. (Defendant) finding Defendant did not wrongfully terminate the employment of Plaintiff and Defendant did not fail to pay Plaintiff a wage bonus established for the work of Plaintiff and other employees of Defendant. Plaintiff also appeals a 15 July 1994 order transferring venue from Wake County to Wilson County and an 18 December 1997 order denying him a new trial. Wrongful Termination Claim The evidence reveals Plaintiff was hired by Defendant in June 1986 with an agreement that either party could terminate the relationship “for any reason, whenever either chooses to do so.” Although none of his co-workers observed him under the influence of alcohol while at work throughout his employment with Defendant, Plaintiff regularly abused alcohol, frequently used marijuana, occasionally arrived at work with a hangover, and had trouble getting to work on time. Plaintiff testified, however, that his substance abuse did not interfere with his job performance. In 1986 and 1987, Plaintiff was charged with public intoxication twice and was arrested and charged three times for Driving While Impaired (DWI) in Wake, Durham, and Wilson Counties. The Wilson County DWI arrest, on 4 December 1987, also resulted in Plaintiff being arrested for Driving While License Revoked. Defendant learned of the Wilson County arrest through a newspaper article in The Wilson Daily Times. Consequently, Plaintiff was counseled by his supervisor Rodney Hughes (Hughes) and told Defendant’s medical plan would pay expenses for counseling and rehabilitation, leave would be available for rehabilitation, to seek help now while he recognized his problem, and Defendant would help him overcome his problem. Hughes stressed that Defendant would not tolerate a future occurrence of Plaintiffs alcohol related problems, and if another occurred, Plaintiff would be terminated. Plaintiff was ultimately convicted of DWI for both the Durham and Wilson County arrests. His driver’s license was permanently revoked, and he had to serve seven days in jail. Plaintiff concealed his jail term and his other arrests, and Defendant did not learn of Plaintiff’s jail term or his driver’s license permanent revocation until Plaintiff’s termination. On 20 October 1990, Plaintiff was arrested for DWI and Driving While License Permanently Revoked in Wake Forest, North Carolina. Plaintiff gave the arresting officer Horace Macon (Macon) a Florida driver’s license, because he was permanently banned from driving in this State. In connection with these charges, Plaintiff appeared for a hearing at the Department of Motor Vehicles (DMV) in February 1991. Plaintiff told the DMV hearing officer he lived at a Florida address, and his attorney told the DMV hearing officer Plaintiff had been living in Florida for the past three years and was in North Carolina visiting his girlfriend. As a result of these events, Macon, who was present at the DMV hearing, contacted Billy Montague (Montague), then Human Resources Director for Defendant, to verify Plaintiff’s employment in North Carolina. During this conversation, Macon told Montague what had transpired at the DMV hearing. Following his conversation with Macon, Montague contacted Hughes and Hughes’ superior Scott Reed (Reed) and conducted his own investigation into Plaintiff’s criminal record. This investigation uncovered Plaintiffs DWI arrests and his driver’s license permanent revocation. Montague was concerned about Plaintiffs trustworthiness and whether the surety bond required by law on all bank employees would terminate for Plaintiff, because the bond under which Plaintiff was covered would terminate as to any employee whenever the bank “learns of any dishonest or fraudulent act committed by such person at any time, whether in the employment of the insured or otherwise . . . On 12 March 1991, Defendant notified Plaintiff he was terminated effective 13 March 1991. Plaintiff filed this action in November of 1993 alleging Defendant wrongfully discharged him on the basis of his handicap, his alcoholism, in violation of the public policy of North Carolina as set forth in N.C. Gen. Stat. 143-422.2. Over Plaintiffs objection, the trial court instructed the jury, concerning Plaintiffs wrongful termination claim in pertinent part that: [Defendant was not entitled to terminate [P]laintiff if to do so violated public policy. A public policy violation would occur if a person is terminated from employment substantially because of a qualifying handicap when the person is capable of performing the essential functions of the job, with or without reasonable accommodation. In order to prevail on this First Issue, []the [P]laintiff must prove . . . the following three things: [] .... First,'that the [P]laintiff was handicapped by reason of being an alcohol dependent person. Now, ladies and gentlemen, the term “handicapped” is defined to mean any person who has a physical or mental impairment which substantially limits one or more major life activities. []The term “physical or mental impairment” has been defined to exclude active alcoholism, or drug addiction, or both.[] .... Following the previous instruction, Plaintiff requested and the trial court rejected the following instruction to the jury. “ ‘Physical or mental behavior that is directly caused by or a direct manifestation of a particular physical or mental impairment should be considered to be a part of that handicap.’ ” Over Plaintiffs objection, the trial court further instructed the jury in pertinent part: []In making the determination as to whether the [P]laintiff was handicapped, I instruct you that the handicap law expressly excludes individuals who are active alcoholics. Thus, a person who is an active alcoholic is not handicapped under North Carolina law. Now, you may evaluate a variety of factors in determining whether [P]laintiff was an active alcoholic at the time of his termination.... I instruct you, however, that if the evidence presented shows that the [P]laintiff, given his admission of alcoholism], was using alcohol at the time of his termination, you may find that the [P]laintiff was an active alcoholic. The term “using alcohol” is not intended to be limited to the use of alcohol within a matter of days or weeks before the [Plaintiff’s discharge. Rather, the terms appl[y] to the use of alcohol that has occurred recently enough to indicate that an individual is actively engaged in the use of alcohol. Or, the use of alcohol is an ongoing problem. [] An alcoholic employee who is using alcohol in a periodic fashion during the weeks and months prior to his termination is an active alcoholic. [] Wage Bonus Claim In 1990, Plaintiff convinced Defendant to start an incentive program for the overnight funding function he and two other employees operated for Defendant. In 1990, Plaintiff was paid his bonus at the end of the 1990 plan year after 28 November 1990. At the end of the 1990 plan year, Hughes advised Plaintiff the 1990 incentive compensation plan for the overnight funding would be renewed for the 1991 plan year. The 1991 plan year began on 29 November 1990. Hughes advised Plaintiff the standard or method for calculating the amount and share of the bonus Plaintiff would divide with his team would remain the same as in 1990. Plaintiff was not advised his right to receive this 1991 incentive compensation was subject to forfeiture on any grounds or conditioned on his tenure with Defendant, however, he testified Hughes “hadn’t decided what to do [about the paying of the bonus] if somebody leaves” before the end of the plan year. Plaintiffs employment with Defendant was terminated 13 March 1991, and he did not receive a bonus for the 1991 plan year. Plaintiffs complaint seeks payment of the unpaid wage bonus from Defendant under N.C. Gen. Stat. 95-25.22. The trial court instructed the jury in pertinent part as follows: The Fifth Issue in this case reads as follows: “Did [Defendant fail to pay the [P]laintiff a wage bonus established for the work of the [PJlaintiff and other employees from November 28, 1990 to March 1, 1991?” On this Fifth Issue, the burden of proof is on the [P]laintiff. The [PJlaintiff must prove, by the greater weight of the evidence, that [he] was entitled to a wage bonus at the time of his termination from employment. Whether [PJlaintiff was entitled to a bonus at the time of his termination depends upon the terms of the [DJefendant’s bonus plan which existed at the time of the [PJlaintiff’s termination. . . . If you find that under the [DJefendant’s bonus plan, the [PJlaintiff was entitled to a bonus at the time of his termination, you must answer this Fifth Issue “yes” in favor of the [PJlaintiff. If, on the other hand, you fail to so find, then you will answer the Fifth Issue “no” in favor of the [DJefendant. Plaintiff requested and the trial court rejected the following instruction to the jury regarding Plaintiffs wage bonus claim. “Under North Carolina law, the terms of the Defendant’s bonus plan which existed at the time of the Plaintiff’s termination do not include terms which provided for the loss or forfeiture of that bonus if certain events did or did not occur unless those terms were disclosed to the Plaintiff in writing by either providing him with a copy of those terms before the Plaintiff earned any part of that bonus or by [posting] those terms in a place accessible to the Plaintiff.” Change of Venue After filing its answer, Defendant filed a motion to change venue, pursuant to section 1-83(2), based on the convenience of the witnesses. In support of the motion, Defendant submitted an affidavit showing that all of the acts complained of occurred in Wilson County and the managers of Defendant and most of the witnesses lived in Wilson County. The trial court allowed the motion and transferred the case from Wake County to Wilson County. It should noted that Plaintiffs assignments of error numbers 1, 4, 6, 10, 13 and 16 are deemed abandoned, because they are not presented and discussed in Plaintiffs brief. N.C.R. App. P 28(a). The issues are whether: (I) the definition of a “handicapped person” given in section 168A-3(4) is properly used to determine the legislative intent of a “handicap” within the meaning of section 143-422.2; if so, (II) the jury instructions given by the trial court are consistent with the section 168A-3(4) definition; (III) the trial court erred in instructing the jury concerning Plaintiffs wage bonus claim; and (IV) the trial court erred in hearing and allowing Defendant’s motion for change of venue. Wrongful Termination At-will employees may be terminated for no reason or for arbitrary or irrational reasons, but they may not be terminated for an “ ‘unlawful reason or purpose that contravenes public policy.’ ” Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (citation omitted). The State’s “public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.” Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992). Plaintiff, acknowledging he is an at-will employee, argues his termination of employment was in violation of this State’s public policy prohibiting discrimination on account of a person’s handicap or disability. Plaintiff specifically contends his termination was in consequence of his alcoholism and alcoholism qualifies as a handicap within the meaning of section 143-422.2. I The Equal Employment Practices Act of North Carolina (the Employment Act) provides in pertinent part: “It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of. . . handicap . . . .” N.C.G.S. § 143-422.2 (1999). The Employment Act does not define “handicap” and therein lies the basis for the dispute in this case. Plaintiff points to the federal Vocational Rehabilitation Act (Rehabilitation Act) which excludes from its definition of an “individual with a disability” alcoholics “whose current use of alcohol prevents such individual from performing the duties of the job in question.” 29 U.S.C. § 706 (8)(C)(v) (1994). Defendant directs our attention to the North Carolina Handicapped Persons Protection Act (Handicapped Act) which specifically excludes “active alcoholism” from the definition of a handicapped person. N.C.G.S. § 168A-3(4)(a)(iii)(B) (1995). In determining our legislature’s intent of the meaning of “handicap” as used in the Employment Act, it is appropriate to consider other North Carolina statutes which relate to the same subject matter, although enacted at different times. Carver v. Carver, 310 N.C. 669, 674, 314 S.E.2d 739, 742 (1984). If related to the same subject matter, the statutes “must be construed together in order to ascertain [the] legislative intent.” Id. The Employment Act, enacted in 1977, protects the rights and opportunities of persons to “seek, obtain and hold employment without discrimination or abridgement on account of . . . handicap.” N.C.G.S. § 143-422.2. The Handicapped Act, enacted in 1985, encourages all handicapped persons “to engage in remunerative employment” and finds that “the practice of discrimination based upon a handicapping condition is contrary to the public interest and to the principles of freedom and equality of opportunity.” N.C.G.S. § 168A-2 (1995). These statutes, although enacted at different times, relate to the same subject matter, employment discrimination against handicapped persons, and, thus, must be construed together to ascertain legislative intent. Reading these statutes in pari materia, “handicap” as used in the Employment Act includes alcoholism but not “active alcoholism.” The trial court, thus, correctly instructed the jury that “the term ‘handicapped’ . . . has been defined to exclude active alcoholism.” II “Active alcoholism” is not defined in the Handicapped Act or any other North Carolina statute. Having no statutory definition, not having acquired a technical meaning, and a different meaning not being apparent from the statute, the phrase “active alcoholism” must be construed in accordance with its common and ordinary meaning, Supply Co. v. Motor Lodge, 277 N.C. 312, 319, 177 S.E.2d 392, 396 (1970), which can be gained from dictionaries, State v. Martin, 7 N.C. App. 532, 533, 173 S.E.2d 47, 48 (1970). Dictionaries define “active” to include “[e]ngaged in activity; participating,” American Heritage College Dictionary 13 (3d ed. 1997), and “alcoholism” is defined as “a dependence on alcohol” and “a chronic disease . . . caused by the excessive and habitual consumption of alcohol,” id. at 32. Thus, an “active alcoholic” is an alcoholic who is currently engaged in the use of alcohol or was in the immediate past engaged in the use of alcohol. In this case, the trial court instructed the jury that an “active alcoholic” employee is an alcoholic who was “using alcohol in a periodic fashion during the weeks and months prior to his termination.” This instruction is sufficiently consistent with the definition of “active alcoholism” herein approved and, therefore, does not constitute error. See Barnard v. Rowland, 132 N.C. App. 416, 427, 512 S.E.2d 458, 466 (1999) (trial court must instruct on the law of the case). Wage Bonus Claim III North Carolina’s Wage and Hour Act, section 95-25.13, provides in pertinent part: Every employer shall: (3) Notify its employees, in writing or through a posted notice maintained in a place accessible to its employees, of anv 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 .... N.C.G.S. § 95-25.13(3) (1999) (emphasis added). We have construed this statute to permit an employer to make changes in an employee’s benefits, but the change applies only to those benefits accruing after written notice is given the employee or notice is posted in a place accessible to the employees. Narron v. Hardee’s Food Systems, Inc., 75 N.C. App. 579, 583, 331 S.E.2d 205, 207-08, disc. review denied, 314 N.C. 542, 335 S.E.2d 316 (1985), overruled on other grounds by J&B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812 (1987). Employees who have not been properly notified of changes in their benefits “are not subject to loss or forfeiture” of those benefits. N.C.G.S. § 95-25.7 (1999). Plaintiff argues the trial court erred in its jury instmctions because it failed to inform the jury Plaintiff was entitled to receive his bonus unless he was notified of the forfeiture provisions prior to the accrual of the bonus. Defendant argues forfeiture notification under section 95-25.13 is required only when there occurs a change in an employee benefit. In this case, Defendant contends, no change occurred in Plaintiff’s bonus plan because an employee’s entitlement to the bonus had not been determined if their employment ceased before the end of the plan year. The evidence in this record provides details of how the bonus would be computed in a plan year. There is no evidence, however, on the issue of entitlement to the bonus if employment was terminated before the expiration of the plan year. Plaintiffs employment was terminated before the end of the plan year and Defendant refused to pay any bonus. Although there was no notific