Wage Theft Cases

SAMMY E. ESTRIDGE, III, Plaintiff-Appellee v. HOUSECALLS HEALTHCARE GROUP, INC.; TERRY JUDSON WARD; CAROL WARD; and CHRISTINE STEWART, Defendants-Appellants No. COA97-1534 (Filed 29 December 1998) 1. Malicious Prosecution— co-employee and owner’s wife not liable Plaintiff former employee’s co-employee could not be held liable to plaintiff for malicious prosecution, although she reported to her employer that she believed that plaintiff was holding the employer’s cellular telephone and pager hostage until he received his final paycheck, where she reported plaintiff’s conduct to the magistrate at the employer’s direction, she had no knowledge that the phone and pager had been returned, and the magistrate issued a warrant charging plaintiff with conversion by a bailee. Nor could the wife of the employer’s owner be liable to plaintiff for malicious prosecution where there was no evidence that she had any part in the initiation of the criminal proceeding against plaintiff. 2. Malicious Prosecution— action against former employer and owner — sufficient evidence Plaintiff’s evidence was sufficient to be submitted to the jury in an action against his former employer and the employer’s owner for malicious prosecution of charges against plaintiff for conversion by a bailee of a cellular phone and a pager. 3. Damages and Remedies— compensatory damages — lump sum — new trial for two defendants A new trial must be awarded as to defendant employer and ' defendant owner on the damages issue in plaintiff former employee’s malicious prosecution action where the jury returned a compensatory damages verdict of $30,000 against all four defendants for malicious prosecution and abuse of process; the evidence was insufficient against all defendants on the abuse of process claim and against the other two defendants on the malicious prosecution claim; and it cannot be determined what portion of the damages was attributable to the malicious prosecution by defendant employer and defendant owner. 4. Abuse of Process— insufficient evidence Plaintiff’s evidence was insufficient to support his claim of abuse of process against his former employer’s owner and the owner’s wife (the Wards) where it tended to show only that, after an assistant district attorney stated that a charge against plaintiff for conversion by a bailee of a cellular telephone and a pager would be dismissed because the property had been returned to the employer, Mrs. Ward stated that “that’s not the point” and both of the Wards sought to have the assistant district attorney proceed with the trial, since there was no evidence of any improper use of the legal process after the issuance of the criminal summons. 5. Evidence— employer’s Medicaid over-billing — irrelevancy to unpaid wages, malicious prosecution, abuse of process Evidence of defendant employer’s alleged over-billing practices with respect to Medicaid and an investigation by the State of those practices was not relevant to plaintiff former employee’s claims for unpaid wages, abuse of process and malicious prosecution of a charge of conversion of a cellular phone and a pager owned by the employer where plaintiff offered no evidence to connect his information about the over-billing practices with the actions of defendants in causing a warrant to be issued against him for conversion of the employer’s property. Furthermore, the prejudicial effect of this evidence on the jury far outweighed its slight probative value. N.C.G.S. § 8C-1, Rule 403. 6. Evidence— corroboration — testimony beyond that corroborated — inadmissibility An expert’s testimony was inadmissible to corroborate plaintiff’s testimony concerning defendant employer’s alleged over-billing practices for Medicaid because his testimony about over-billing by submitting multiple bills for the same services and doubling up in subsequent billings and the total amount of the alleged over-billing went far beyond plaintiff’s testimony that defendant submitted multiple bills for the same services. Chief Judge Eagles dissenting. Appeal by defendants from judgment entered by Judge Peter M. McHugh on 23 May 1997 in Guilford County Superior Court. Heard in the Court of Appeals 24 August 1998. Tuggle Duggins & Meschan, P.A., by J. Reed Johnston, Jr., and Robert C. Cone for plaintiff appellee. Smith Helms Mulliss & Moore, L.L.P., by J. Donald Cowan, Jr., James G. Exum, Jr., and Paul K. Sun, Jr., for defendant appellants. HORTON, Judge. Sammy E. Estridge, III (plaintiff), is a Certified Public Accountant and a Certified Internal Auditor. Plaintiff instituted this action on 27 October 1995 against Housecalls Healthcare Group, Inc. (Housecalls), Terry Ward (Mr. Ward), Carol Ward (Mrs. Ward), and Christine Stewart (Ms.' Stewart) (collectively defendants), seeking damages for unpaid wages, malicious prosecution, and abuse of process. The facts in this case are as follows: Plaintiff was employed by Housecalls Home Health Care, a wholly owned subsidiary of Housecalls, in March 1995 as Assistant Controller. Several months later, he was promoted to Controller. Housecalls is a statewide provider of in-home health care services and primarily provides services for Medicaid-eligible patients utilizing part-time nurses. Housecalls pays the nurses and then bills Medicaid for reimbursement. At trial, plaintiff testified that Housecalls did not have an adequate accounting system so there was no assurance that receipts would be correctly recorded nor a system to prevent the possibility of double billing. Plaintiff made suggestions for improving the system but contends his suggestions were largely ignored. Mr. Ward, on the other hand, stated that many of the recommendations were implemented. On Saturday, 2 September 1995, Mr. Ward, the owner of Housecalls, required plaintiff to attend a meeting at the office and then remain at the office to complete a project. Later that afternoon, plaintiff and his wife discussed his employment with Housecalls, and plaintiff decided to resign. Plaintiff prepared a letter of resignation citing problems with the accounting system which caused him “multiple ethical dilemmas” and posted several copies of the letter in the office building. Plaintiff stated his resignation was effective immediately but offered to act as an independent consultant for an additional ten business days. According to plaintiff, Mr. Ward paged plaintiff the following morning and left a message on his voice mail directing plaintiff to return the company keys. Mr. Ward testified, however, that he also directed plaintiff to return any other property of Housecalls at once. Plaintiff testified that he returned Mr. Ward’s call and stated that he would bring the keys to Housecalls on Tuesday morning while Mr. Ward testified that plaintiff did not say anything about returning the company property. According to plaintiff, on the following Tuesday morning, he turned his keys over to Ms. Stewart. Plaintiff testified that he told Ms. Stewart that he would bring the pager and cell phone back on Friday when he received his paycheck, or earlier if they were needed. Plaintiff left a note with the keys requesting that he be informed whether he would be needed during the ensuing ten-day period and when he was to bring the equipment back. Ms. Stewart testified that plaintiff told her that he would not return the cell phone and pager until he received his final paycheck, and she believed that he was therefore holding the property hostage. ' Mr. Ward then instructed Ms. Stewart to go to a magistrate on that same Tuesday morning, 5 September 1995, and explain the situation. The magistrate issued a warrant charging conversion by a bailee of the pager and cell phone in violation of N.C. Gen. Stat. § 14-168.1 (1993). On Tuesday evening, plaintiff went to the Housecalls office and turned in all the equipment to Lisa Saunders and obtained a receipt from her. He was not aware of the warrant which had been issued at that time and did not learn about the warrant until 16 September 1995. When the criminal case came on for trial, Mr. Ward’s wife was present and discussed the case with the prosecutor. The Assistant District Attorney Mary Hedrick (Ms. Hedrick) dismissed the case because the property had been returned. Mrs. Ward testified that she did not want the case dismissed and informed Ms. Hedrick of this wish and asked if Mr. Ward could be contacted. Mr. Ward also informed Ms. Hedrick that he' wanted the case to be prosecuted, but understood that the decision was Ms. Hedrick’s to make. Plaintiff filed this civil action approximately two weeks after the criminal case was dismissed. The jury entered verdicts against defendants for $1,295.93 in unpaid wages and $30,000.00 for compensatory damages for the criminal prosecution. The jury awarded punitive damages against defendants as follows: Housecalls, $1.5 million; Mr. Ward,-$1.5 million; Mrs. Ward, $1.0 million; and Ms. Stewart, $1. The trial court denied defendants’ motions for judgment notwithstanding the verdict or a new trial, and entered judgment based on the jury verdict. Defendants appealed. The issues are whether: (I) the trial court erred in denying defendants’ motions for directed verdict and JNOV on the (A) malicious prosecution and (B) abuse of process claims and (II) the trial court erred in admitting evidence of Housecalls’ billing practices. I In reviewing the denial of a motion for directed verdict or a JNOV, this Court must determine whether substantial evidence of a claim was presented when all of the evidence is taken in the light most favorable to the non-moving party and all inconsistencies are resolved in the light most favorable to the non-moving party. Asfar v. Charlotte Auto Auction, Inc., 127 N.C. App. 502, 504, 490 S.E.2d 598, 600 (1997), disc. review denied, 347 N.C. 572, 498 S.E.2d 376 (1998). A Malicious Prosecution Claim The elements for a malicious prosecution claim are the following: “(1) defendant initiated the earlier proceeding; (2) malice on the part of defendant in doing so; (3) lack of probable cause for the initiation of the earlier proceeding; and (4) termination of the earlier proceeding in favor of the plaintiff.” Best v. Duke University, 337 N.C. 742, 749, 448 S.E.2d 506, 510, reh’g denied, 338 N.C. 525, 452 S.E.2d 807 (1994). Defendants contend that Ms. Stewart and Mrs. Ward did not engage in malicious prosecution because all of the elements of the action were not present. We agree. Although the fourth element of malicious prosecution, termination of the earlier proceeding in favor of plaintiff, was met, Ms. Stewart cannot be held liable for the claim because she did not initiate the action on her own accord. See Distributors, Inc. v. Dept, of Transportation, 41 N.C. App. 548, 551, 255 S.E.2d 203, 206, cert, denied, 298 N.C. 567, 261 S.E.2d 123 (1979) (employee is not liable to injury to third persons if employee is following instructions of employer unless employee knew or had reason to know that the acts would injure another). In this case, Ms. Stewart went to the magistrate’s office because she was instructed to do so by her employer, Mr. Ward, and she had no knowledge that the property had been returned or would be returned. Ms. Stewart did as instructed, and the magistrate issued a warrant charging plaintiff with conversion by a bailee of the pager and cell phone. There is no evidence in this record that Stewart acted with any malice toward the plaintiff. She reported the situation to her employer, and he made the decision to have her appear before the magistrate. Furthermore, there is no evidence that Mrs. Ward had any part in the initiation of the action. Plaintiff argues that Mrs. Ward caused the criminal prosecution against plaintiff to be “continued” by stating to Ms. Hedrick that insufficient evidence was “not the point,” and therefore this statement satisfies the initiation element of malicious prosecution. We disagree. Plaintiff has confused the tort of malicious prosecution with the tort of abuse of process which is discussed below. Improper actions taken after the issuance of process or initiation of an action are more properly considered under abuse of process. Stanback v. Stanback, 297 N.C. 181, 200, 254 S.E.2d 611, 624 (1979), overruled on other grounds by Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). Consequently, the trial court should have dismissed the claim for malicious prosecution against both Ms. Stewart and Mrs. Ward. Although defendants also contend that the trial court should have directed a verdict as to Housecalls and Mr. Ward, we disagree and hold that the trial court correctly allowed the claim to go to the jury as to those defendants. Whether probable cause existed for the initiation of the earlier proceeding is a jury question when the facts are in dispute. Allison v. Food Lion, Inc., 84 N.C. App. 251, 255, 352 S.E.2d 256, 258 (1987). Viewed in the light most favorable to plaintiff, there was evidence from which a jury could find malicious prosecution against the remaining defendants. There must be a new trial, however, as to Housecalls and Mr. Ward on the claim for malicious prosecution. The issues were submitted in such a manner that the jury found that all the defendants maliciously instituted the prosecution and abused process, entitling plaintiff to recover compensatory damages in the total sum of $30,000.00. Because the damages for malicious prosecution and abuse of process are lumped together in one sum and we cannot say what portion of those damages is attributable to the malicious prosecution by defendants Housecalls and Mr. Ward, there must be a new trial as to those defendants to determine damages. B Abuse of Process Claim “ ‘[A]buse of process is the misuse of legal process for an ulterior purpose. It consists in the malicious misuse or misapplication of that process after issuance to accomplish some purpose not warranted or commanded by the writ. It is the malicious perversion of a legally issued process whereby a result not lawfully or properly obtainable under it is attended (sic) to be secured.’ ” Stanback, 297 N.C. at 200, 254 S.E.2d at 624 (quoting Fowle v. Fowle, 263 N.C. 724, 728, 140 S.E.2d 398, 401 (1965)). Indeed, abuse of process “ ‘requires both an ulterior motive and an act in the use of the legal process not proper in the regular prosecution of the proceeding,’ and that ‘[b]oth requirements relate to the defendant’s purpose to achieve through the use of the process some end foreign to those it was designed to effect.’ ” Id. at 201, 254 S.E.2d at 624 (quoting R. Byrd, Malicious Prosecution in North Carolina, 47 N.C.L. Rev. 285, 288 (1969)). Plaintiff argues that the efforts of Mr. and Mrs. Ward to have Ms. Hedrick continue with the criminal prosecution of plaintiff, rather than dismissing the matter, support this cause of action. We disagree. In this case, there is no evidence of any improper use of the legal process after the issuance of the criminal summons. The reason given by Ms. Hedrick for the voluntary dismissal was “insufficient evidence.” The Wards merely disagreed with her decision and sought to have the trial of the criminal matter proceed in a normal fashion. Standing alone, the statements by the Wards, that “that’s not the point” in reply to Ms. Hedrick’s explanation for dismissing the case is not sufficient to prove a willful act outside the regular course of the proceedings. Indeed, our case law states that the “act” requirement of abuse of process requires a defendant to commit some “wilful act whereby he sought to use the existence of the proceeding to gain advantage of plaintiff in respect to some collateral matter.” Stanback, 297 N.C. at 201, 254 S.E.2d at 624. An example of such an improper willful act is the offer to discontinue a proceeding in return for the payment of money. Id. Because the elements of abuse of process were not met as to any of the defendants, the trial court erred in failing to dismiss the claim for abuse of process against all the defendants. II Over-billing Testimony Rule 402 of the North Carolina Rules of Evidence states that “[e]vidence which is not relevant is not admissible.” N.C. Gen. Stat. § 8C-1, Rule 402 (1992). Relevant evidence is defined as evidence which tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (1992). Defendants contend that evidence of Housecalls’ billing practices was irrelevant to the claims stated by plaintiff and should not have been admitted at trial. We agree that the trial court erred in allowing the evidence of billing practices and the testimony of Robert Nowell (Mr. Nowell), the Assistant Director of the State Division of Medical Assistance, Program Integrity Section. In his complaint, plaintiff alleged that defendants used the criminal process, “both before and after commencement of the criminal proceeding ... in an effort to compel the plaintiff to forego his valid claim for salary, ... in an effort to retaliate against the plaintiff for resigning from Housecalls, and in a deliberate effort to cause extreme embarrassment and expense to the plaintiff.” At trial, however, plaintiff offered voluminous evidence through his own testimony and the testimony of Mr. Nowell about Housecalls’ billing practices with respect to Medicaid. The testimony, which was admitted over defendants’ objections, had little relevance to plaintiff’s claims for unpaid wages, abuse of process, and malicious prosecution. The trial court apparently agreed with plaintiff’s contention that the evidence went to defendants’ motive in instituting criminal process against him. Plaintiff never offered any evidence, however, which would connect his information about the alleged over-billing practices with the actions of defendants in causing a warrant to be issued against him. As shown above in the quotation from his complaint, plaintiff did not allege any such motivation for defendants’ actions. Indeed, there was no evidence presented which indicated that plaintiff knew that there was an investigation by the State, or that he provided any information to the State in connection with its investigation. Plaintiff was not discharged in retaliation for any actions he might have taken; instead, plaintiff resigned on his own accord. The only evidence which remotely bears on the relevance of the over-billing evidence was plaintiff’s testimony that Mr. Ward told him that any over-billing of Medicaid would be reconciled. There is simply no competent evidence which would warrant the highly prejudicial evidence that Housecalls was investigated by the State for over-billing Medicaid in a large amount. Even had the evidence been admissible under some theory, its prejudicial effect on the jury verdict far outweighed its slight probative value. See N.C. Gen. Stat. § 8C-1, Rule 403 (even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice”). Finally, even assuming arguendo that plaintiff’s evidence about his knowledge of over-billing practices by Housecalls was relevant and that Mr. Nowell was properly qualified as an expert witness, the testimony of Mr. Nowell was erroneously admitted to corroborate the testimony of plaintiff. Testimony offered in corroboration of other evidence may not contain additional information which was not in the initial evidence. State v. Mayhand, 298 N.C. 418, 425, 259 S.E.2d 231, 236 (1979). In this case, plaintiff offered evidence about Housecalls submitting multiple bills to Medicaid for the same services. Mr. Nowell was allowed to testify at length that in his opinion Housecalls over-billed Medicaid in two ways: first, by submitting multiple bills for the same services; and second, by “doubling up” after an initial bill was paid by doubling units and costs in subsequent billings. Mr.

Aviad Dagan & another vs. Jewish Community Housing for the Elderly. No. 96-P-1978. Suffolk. June 4, 1998. September 28, 1998. Present: Lenk, Gillerman, & Smith, JJ. Minimum Wage. Labor, Minimum wage, Overtime compensation, On-call time. This court concluded that, in an action to recover back wages and overtime compensation, the question whether the plaintiffs’ “on-call” time was compensable under the Minimum Fair Wage and Overtime Law, G. L. c. 151, §§ 1 and 1A, could be resolved as a matter of law where the underlying facts were undisputed. [518-519] In an action against an employer seeking back wages and overtime compensation, uncontroverted evidence demonstrated that the plaintiff employees, who were required to remain on the employer’s premises during on-call time, used that time, when not engaged in work for the employer, for their exclusive, personal benefit: accordingly, such time was not compensable under the Minimum Fair Wage and Overtime Law, G. L. c. 151, §§ 1 and 1 A, and the trial judge correctly granted summary judgment in favor of the defendant employer [519-521]; further, the compensation provided to the plaintiffs by the employer, in the form of a rent-free apartment located on the employer’s premises, effectively provided the plaintiffs with the minimum wage for the on-call hours they actually worked [522], Civil action commenced in the Superior Court Department on September 27, 1994. The case was heard by John C. Cratsley, J., on motions for partial summary judgment. Paul L. Nevins for the plaintiffs. David F. Grunebaum for the defendant. Vered Dagan. Gillerman, J. From October 1, 1991, through June 13, 1994, Aviad Dagan and Vered Dagan, husband and wife, were employed as the “site representatives” at the Golda Meir House, an apartment complex owned and operated by Jewish Community Housing for the Elderly IV, Inc., a corporation organized under G. L. c. 180 and exempt from Federal income tax under § 501(c)(3) of the Internal Revenue Code (the corporation). The corporation is affiliated with the defendant in this case. The parties have agreed, solely for the purpose of this case, to accept the defendant, Jewish Community Housing for the Elderly (JCHE), as the party legally responsible. In exchange for their services (described below) the plaintiffs were provided with a rent-free apartment including utilities, and were initially paid $25.00 per month for basic telephone service, later increased to $30.00 per month. They received no other compensation. Following the termination of their employment effective June 13, 1994, the plaintiffs brought suit, with a jury claim, alleging violations of the Minimum Fair Wage and Overtime Law, G. L. c. 151, §§ l and 1A (count I), and the Weekly Payment of Wages Act, G. L. c. 149, § 148 (count II). The judge allowed the defendant’s motion for partial summary judgment on count I. The judge, sua sponte, was of the opinion that the dismissal of count I also disposed of count II. Thereafter a final judgment was entered in favor of the defendant dismissing both counts of the complaint. The plaintiffs have appealed from that final judgment. The Golda Meir House (house) is an apartment building. The units are leased to individuals and couples over the age of sixty-two who meet certain eligibility standards set by the Federal government. Most residents pay rent equal to thirty percent of their adjusted gross annual income, with the result that those tenants pay below-market rent for their apartments. Eighty percent of the tenants receive so-called “Section 8” rental subsidies from the Federal government. Private charitable contributions subsidize additional health and social programs offered to the residents. The mission statement of the defendant states that its basic purpose is to promote, encourage, and support the independence, safety, and security of its residents. To that end the defendant is a provider of “quality of life services.” and an organizer of “support services.” These include safe and attractive facilities, meals, transportation, and social, cultural, and educational activities as well as home health and nursing care, special clinical diets, and personnel to assist the residents. Identical employment agreements were signed by each plaintiff. The agreement recites that the rent-free apartment is the “work site” for the job and, together with the provision of utilities and basic telephone service, is in exchange for the duties required to be performed. The agreement includes a job description of a “site representative.” The job description sets out the duties to be performed. Each site representative is required to be “on call” one hundred twenty-three hours weekly. The central issue in this controversy is the need to determine the working hours of the plaintiffs for the purpose of applying the minimum wage and overtime provisions of G. L. c. 151. More particularly, the question is: when does “on-call” time — that is to say, time when the site representative is on duty but not actually working — constitute working time for the purpose of applying the minimum wage and overtime provisions of G. L. c. 151? An agreement to work for less than the minimum wage is unenforceable. G. L. c. 151, § 20. Since the plaintiffs, who oppose the defendant’s motion for summary judgment, will have the burden of proof at trial, the defendant is entitled to summary judgment “if [it] demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case. To be successful, a moving party need not submit affirmative evidence to negate one or more elements of the other party’s claim.” (Emphasis added.) Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). If the moving party makes such a showing, then the party opposing the motion — here, the plaintiffs — must “respond by settling] forth specific facts showing that there is a genuine issue for trial” (citations omitted). Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397 (1994). If the moving party makes the demonstration required by Kourouvacilis, and the party opposing the motion does not meet that showing, the moving party will also have satisfied its obligation to demonstrate “the absence of a genuine issue of material fact on every relevant issue . . . .” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 127 (1997). With that standard in mind, we review the submissions of the parties. The defendant’s submissions. 1. The employment agreement (described above) includes a job description which states that the “[h]ours of Site-Rep. duty are as follows[:] . . . Monday through Thursday — 5:00 p.m. to 8:00 a.m. . . . Friday through Monday — 5:00 p.m. Friday eve. to 8:00 a.m. Monday morning,” and a full day of duty on Jewish and legal holidays as specified by management. Holidays aside, the job description required each plaintiff to be on call one hundred twenty-three hours weekly. The duties of a site representative, as stated in the job description and a handbook for site representatives, include the following: regular security rounds of the facility are to be maintained, and miscellaneous housekeeping tasks are to be performed regularly, such as monitoring and changing trash containers, and cleaning up the results of accidental spills. A log, or incident report, of all maintenance and social problems and other events which occur during duty hours is to be maintained. The overarching duty is to “[r]espond[] immediately to resident emergency call[s] or alarms [and to] [c]all[] emergency medical help as needed.” Also included is the need to “[r]espond[] to ALL resident calls to determine the nature of said call.” “Site Representatives ... are responsible for supplying reasonable and courteous service to our residents in every situation.” The job description also includes the following, to which the plaintiffs subscribed: “I understand that when I am on duty as a JCHE Site Representative I may be required to perform services for the entire length of my shift if situations arise to warrant so” (emphasis added). 2. The plaintiffs maintained a log of each call received from a resident. In the year 1993, for example, by which time the plaintiffs were familiar to the residents, the log showed ninety calls over the twelve months, or an average of 1.73 calls per week. There was no record kept of the time needed to respond to the calls. 3. Excerpts from the deposition of the plaintiff Vered Dagan, which consist only of nine pages, include Vered’s (Aviad Dagan’s wife) testimony that weekday nightly rounds were “never” performed by both plaintiffs together; that the rounds were performed twice a night — at 8:00 p.m. and 10:00 p.m. — and required about “15 to 20 minutes . . . walking fast.” 4. Excerpts from the deposition of the plaintiff Aviad Dagan, which are more extensive but are frequently disjointed, include the following testimony: Aviad worked Monday through Thursday, during the day, at another job. On Fridays, during the day, there was a period of unknown duration when he and a “partner” attempted to conduct a business — never described — which was “wholesale market to the blind.” The business came to nothing. Aviad made the weekday nightly rounds with considerable care. He did the regular rounds at 8:00 and 10:00 p.m. and a brief round at 5:00 p.m. when he returned from his daytime job. The 5:00 p.m. round took about thirty to forty-five minutes; the 8:00 and 10:00 p.m. rounds took not more than an hour or an hour and a quarter. When he was on call he was either in his apartment or someplace in the building. Either Vered or Aviad responded to calls, depending on who was available at the time of the call. All meals were regularly prepared and eaten in their apartment. While on call the plaintiffs were free to sleep, watch television, listen to the radio, play games on the computer, entertain friends (although done only infrequently), and take care of miscellaneous personal responsibilities such as paying bills and doing laundry. The plaintiffs’ submissions. 1. The “Site Representative HAND BOOK — GUIDELINES — Golda Meir House” states the same on-call hours as appear in the job description. The handbook contains additional information, including the following: “Weekday evening rounds must be done every 2 hours, starting at 6:00 p.m. through 10:00 p.m., unless determined otherwise by Management. When on duty it may be necessary, due to circumstances or as determined by Management, for the site representative on duty to remain ‘active’ for the entire length of one’s scheduled shift. Additional duties and/or patrols may be required at the sole discretion of the Management.” The handbook continues by describing the manner in which the security rounds are to be executed. The handbook also contains detailed provisions instructing site representatives how to respond to medical emergencies, fire alarms, elevator calls, and calls from the residents, namely, “NEVER argue with the resident. They need compassion, understanding, and reassurance from the staff.” 2. A document on the stationery of the defendant, captioned “LIVE-INS RESPONSIBILITIES,” which appears to have been prepared for the benefit of the residents, states that “LIVE-INS ARE EXPECTED TO RESPOND TO ALL MEDICAL, SECURITY AND MAINTENANCE EMERGENCY; THEY ARE ON CALL FROM 5:00 p.m. TO 8:00 a.m. ON WEEKDAYS AND THROUGHOUT THE ENTIRE WEEKEND AND HOLIDAYS. DURING THESE TIMES THEY ALWAYS REMAIN ON THE PREMISES. ... IN THE EVENINGS, THE LIVE-INS ARE ONLY REQUIRED TO STAY AWAKE UNTIL 10:00 p.m. [emphasis added], THEY WILL OF COURSE RESPOND TO EMERGENCIES AT ANY TIME DURING THE NIGHT.” 3. A document, captioned “Wage Calculation for Live-in Coverage by JCHE Paid Staff,” states: “Live-in hrs defined as follows: Weekdays: 5 p.m. - 11 p.m. plus 7 a.m. - 8 a.m. = 7 hours[;] Weekend: Fri (5 p.m. - 11 p.m. = 6 hours) + Sat/Sun (7 a.m. - 11 p.m., 2 days, = 16 x 2 = 32 hrs) + Mon (7-8 a.m. = 1 hr) = 39 hours total weekend[.] Full week: 1 Wkend (39 hrs) + 4 Wkdays (28 hrs) = 67 hours.” We now consider whether the defendant has made the showing required by Kourouvacilis, and if so, whether the plaintiffs have met that showing by setting forth facts which demonstrate that there is a genuine issue for trial. The essential facts put forward in the defendant’s submission are these: (i) under the provisions of the job description, the on-call hours of a site representative were one hundred twenty-three hours weekly; (ii) during on-call hours, the plaintiffs were required to remain on the premises, subject to the demands of management and the residents; (iii) the plaintiffs’ actual working time consisted of making nightly rounds of the facility, Monday through Friday, and responding to emergency calls from the residents at the experienced rate of one to two calls weekly; the plaintiffs were subject to calls by the residents and by management for the remainder of the on-call hours; (iv) the plaintiffs’ on-call hours included time the plaintiffs required for sleeping and eating; (v) the plaintiffs’ weekday and weekend on-call hours, when not spent making rounds or answering calls from the residents, were available to, and in fact were used by, the plaintiffs for their exclusive, personal benefit, but subject to their remaining on the premises; and (vi) while both plaintiffs signed employment agreements, the site representative position was a “one-person” job, and none of the required tasks were performed by both plaintiffs at the same time. These facts are not disputed by the plaintiffs’ submissions or by any other material available under Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974) (pleadings, answers to interrogatories, etc.), and no additional facts are proffered by the plaintiffs regarding their use of on-call, non-working time other than the defendant’s notice to the residents that the plaintiffs were not to be disturbed after 10:00 p.m. except in the case of an emergency. Given the absence of any contrary showing by the plaintiffs regarding the facts proffered by the defendant, those facts are undisputed. There being no genuine issue as to any material fact, the case is ripe for summary judgment. Mass.R.Civ.P. 56(c). More particularly, we must decide, as matter of law on the undisputed facts, whether the defendant’s submission sufficiently demonstrates that the plaintiffs have no reasonable expectation of establishing their statutory claims. The plaintiffs, citing Skidmore v. Swift & Co., 323 U.S. 134, 136-137 (1944), and DeCourcey v. Weston Racquet Club, Inc., 15 Mass. App. Ct. 373 (1983), assert simply that whether, or the extent to which, on-call time is compensable time under the minimum wage law is a question of fact (or a mixed question of law and fact) which must be submitted to the jury. In Skidmore, the Supreme Court considered the question whether on-call time was compensable under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. (1938) (employees must be compensated at no less than the minimum wage and one and one-half times their regular rate for overtime work). The Court stated that “[w]hether in a concrete case such [on-call] time falls within or without the Act is a question of fact to be resolved by appropriate findings of the trial court.” Skidmore, 323 U.S. at 136-137. However, a number of Federal circuit court opinions have held that where the facts are undisputed, Skidmore does not preclude the resolution of the question as matter of law. See Bright v. Houston N.W. Med. Center Survivor, Inc., 934 F.2d 671, 674-675 (5th Cir. 1991), cert. denied, 502 U.S. 1036 (1992) (“[T]he undisputed facts show that the on-call time is not working time”; Skidmore distinguished; summary judgment for the defendant affirmed); Martin v. Ohio Turnpike Commn., 968 F.2d 606 (6th Cir. 1992), cert. denied, 506 U.S. 1054 (1993) (summary judgment for the defendant employer affirmed); Birdwell v. Gadsden, Ala., 970 F.2d 802, 807-808 (11th Cir. 1992) (“Whether a certain set of facts and circumstances constitute work for purposes of the FLSA is a question of law” [emphasis added]; Skidmore explained); Owens v. Local No. 169, Assn. of Western Pulp & Paper Workers, 971 F.2d 347, 356 (9th Cir. 1992) (plaintiffs failed to contest or rebut the defendant employer’s proffered evidence, or to present any evidence of the plaintiffs’ personal use of on-call time, thereby permitting summary judgment for the defendant). Contrast Cross v. Arkansas Forestry Commn., 938 F.2d 912, 916-917 (8th Cir. 1991) (summary judgment for employer reversed where record contained evidence of “significant interference with . . . employees’ private activities” during “subject-to-call” hours). Further, DeCourcey does not provide any assistance to the plaintiffs. The case did not come to us on undisputed facts, see DeCourcey, 15 Mass. App. Ct. at 374-375, and thus the issue in the instant case was not presented in DeCourcey. There remains the pivotal question: whether, as a matter of law on the undisputed facts, the plaintiffs’ entire on-call time (one hundred twenty-three hours) — i.e., working and waiting, as contrasted with working time only — constituted working time for purposes of applying the minimum wage and overtime provisions of c. 151. We think not. The central fact of this case is that when not actually engaged in the nightly rounds, or responding to calls from the residents — a weekly total for both tasks of not more than eighteen and one-quarter hours, see note 14, infra, and related text — the plaintiffs were at home either sleeping, eating, or pursuing other desired personal or recreational activities which had no connection with — much less a benefit to — the defendant. While the plaintiffs’ freedom of movement after 5:00 p.m. on weekday evenings until 8:00 a.m. the following morning, and during the entire weekend beginning at 5:00 p.m. on Friday until 8:00 a.m. on the following Monday, was limited by the requirement that they remain on the corporation’s premises during all on-call hours, the plaintiffs’ home was within those premises and there was no limitation on the amount of on-call time the plaintiffs could spend at home. There is no Massachusetts appellate decision which bears directly on this case, but numerous Federal cases that arose under die cognate Fair Labor Standards Act support the conclusion reached by the judge. A United States District Court judge recently summarized the Federal case law. Recognizing that on-call time necessarily restricts in some measure the freedom of the employee, the judge wrote, “[E]very case that has addressed this issue, tells us that without some significant additional restriction on the employee’s off-duty [i.e., on-call but nonworking] time, such that the time can be said to have been spent primarily for the employer’s benefit, the time will not be compensable.” Darrah v. Missouri Hy. & Transp. Commn., 885 F. Supp. 1307, 1313 (W.D. Mo. 1995). The case before us is similar to Kelly v. Hines-Rinaldi Funeral Home, Inc., 847 F.2d 147 (4th Cir. 1988), cert. denied, 493 U.S. 835 (1989), where the facts were undisputed. There the plaintiff was engaged by a funeral home to perform light housekeeping from 9:00 p.m. to 12:00 midnight and 6:30 a.m. to 8:30 a.m., six days a week. He was provided a rent-free apartment on the premises of the funeral home, and was required to stay on the premises during the night hours. Between midnight and 6:30 a.m. the plaintiff’s only duty was to answer the telephone, and to go out and pick up a corpse if required. The plaintiff claimed overtime under the FLSA on the theory that he was employed to work from 9:00 p.m. to 8:30 a.m. The Court of Appeals concluded that nighttime interruptions were infrequent, and that the plaintiff was merely required to stay in his own residenc

Marilyn Jancey & others vs. School Committee of Everett. Middlesex. April 6, 1998. - June 5, 1998. Present: Wilkins, C.J., Abrams, Lynch, Greaney, Fried, Marshall, & Ireland, JJ. Massachusetts Equal Pay Act. Statute, Construction. School and School Committee, Compensation of personnel, Cafeteria worker, Custodian. Words, “Comparable,” “Like.” In an action brought under the Massachusetts equal pay act, G. L. c. 149, § 105A, by (female) school cafeteria workers seeking the same wage as (male) school custodians, the judge’s findings of fact regarding the actual duties of each position supported the conclusion, from the viewpoint of an objectively reasonable person, that the positions did not share “important common characteristics,” that is, they were so dissimilar that they were not comparable for purposes of equal remuneration. [605-608] Marshall, J., dissenting, with whom Abrams & Ireland, JJ., joined. Civil action commenced in the Superior Court Department on June 9, 1989. Following review by this court, 421 Mass. 482 (1995), the case was heard by Gordon L. Doerfer, J. The Supreme Judicial Court granted an application for direct appellate review. Ann M. Gilmore (Lee D. Goldstein with her) for the plaintiffs. Juliane Balliro (Frank Mondano with her) for the defendant. Ida Corriere and others similarly situated. Greaney, J. In Jancey v. School Comm. of Everett, 421 Mass. 482 (1995) (Jancey I), we considered an appeal by the defendant from a judgment entered in the Superior Court in favor of the plaintiffs, cafeteria workers in the Everett public schools. The judgment was based on a decision by the judge that the school committee had violated the Massachusetts equal pay act, G. L. c. 149, § 105A (MEPA), by paying the female cafeteria workers a lower wage than the male custodians who worked in the Everett public schools. In reaching this determination, the judge ruled that the test for determining whether the work of the cafeteria workers and the custodians was “of like or comparable character,” the legal standard set forth in MEPA, was whether the work required comparable skill, effort, responsibility, and working conditions. Id. at 487. Because he determined that these aspects of the two positions were comparable, the judge concluded that the over-all character of the work was comparable within the meaning of the statute. Id. We vacated the judgment and remanded the case to the Superior Court for additional proceedings. Id. at 501. We did so after we concluded that the judge’s analysis was improper. Id. at 487. In so doing, we explained that the historical context in which MEPA was enacted provided “little support for applying the term ‘comparable’ to positions with dissimilar substantive content.” Id. at 489. We concluded that the statute requires a two-part analysis, the first requiring the judge to “determine whether the substantive content of the jobs is comparable, that is, whether the duties of the jobs have ‘important common characteristics.’ ” Id. “[T]wo positions that are so dissimilar in their substantive content that a reasonable person would regard them as categorically separate are not ‘comparable.’ ” Id. at 489-490. It is only after “a determination is made that the jobs are comparable in substantive content, that the second inquiry is appropriate — whether the two positions entail comparable skill, effort, responsibility, and working conditions. If the answer to both inquiries is ‘Yes,’ then employees in the two positions must receive equal pay.” Id. at 490. On remand, the judge relied on the findings he made in his earlier decision to conclude that, under the first part of the two-part MEPA analysis, “[t]he substantive content of the two jobs are so dissimilar that a reasonable person would regard them as categorically different or separate.” Thus, he ordered the entry of a judgment for the defendant. We granted the plaintiffs’ application for direct appellate review and now affirm the judgment. 1. We summarize the judge’s findings regarding the substantive job content of the cafeteria worker and custodian positions. The cafeteria workers are responsible for providing school children with food that is nutritious, safe, and palatable, and for ensuring the cleanliness and sanitation of the food, workers, kitchen, serving areas, and cafeteria tables. The cafeteria worker position entails preparing, cooking, serving, selling, and accounting for individual food items procurable by school children and school employees for breakfast and lunch. Specific daily duties include transporting heavy cases of foodstuffs from the walk-in refrigerator to work stations; preparing and cooking food items; cleaning and sanitizing the cafeteria tables, serving areas, work tables, ovens, refrigerators, freezer, storage areas, sink, cooking equipment, and utensils; operating and checking temperature gauges and timers on the ovens; operating and checking steam gauges on the steamer and steam kettles; replenishing food supplies and rotating stock following deliveries; sweeping and cleaning the kitchen floor; and disposing of garbage. The custodians are generally responsible for the security of the school buildings, for ensuring that the buildings are properly heated and ventilated, and for the over-all cleanliness and sanitation of the bathrooms, classrooms, corridors, stairways, and outside play areas. Their duties include opening and closing the schools; cleaning and maintaining the school grounds and walkways, including removing leaves and snow, and spreading sand or salt as needed; cleaning the classrooms, offices, and corridors, including removing trash, vacuuming and wet mopping floors, and cleaning and sanitizing bathrooms; repairing window screens and removing glass from broken windows; performing minor repairs on locks, doors, and furniture; receiving and storing supplies; maintaining and cleaning the heating and ventilation systems; and setting up tables and chairs in the gymnasiums or auditoriums as necessary. 2. In reviewing a nonjury case like this one, we accept the judge’s findings of fact unless they are clearly erroneous (which they are not), but we independently review the legal standard which the judge applied to those facts. See Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992), and cases cited. The plaintiffs contend that the judge erred in limiting the scope of MEPA to claims involving jobs which, as he said in one part of his decision, are “fungible,”* * or where “[t]he subjective nature of the two jobs or the basic understanding of the objective or goal of each position [is] the same . . . .’’In making these observations, the judge appears to have obscured the legal standard to be applied in assessing the comparability of the jobs. This mischaracterization, however, does not significantly advance the plaintiffs’ case. 5It is the duty of an appellate court to apply the correct legal standard to the facts settled by the trial court. When we perform that function here, we also conclude that the plaintiffs cannot prevail on their claim under MEPA. As stated above, in applying the test announced in Jancey I, the first question we must address is “whether the substantive content of the jobs is comparable,” which requires us to look to the facts regarding the particular duties of each job to determine whether the jobs share “important common characteristics.” Jancey I, supra at 489. Contrary to the analysis applied by the judge, the test does not require that the jobs be fungible, a requirement that we view as more restrictive than that set forth in Jancey I. Furthermore, that someone might subjectively consider the two jobs to be of the same nature, or that the jobs share the same general objective, are considerations irrelevant to a claim of comparability under MEPA. Instead, the first prong of the comparability test requires the court to evaluate the substantive content of the positions, specifically the actual duties of each position, from the viewpoint of an objectively reasonable person, to ascertain whether the jobs are so dissimilar that they are not comparable. Although the respective duties of the positions may differ in some respects, comparable positions must share “important common characteristics.” The plaintiffs argue that the positions of cafeteria worker and custodian share “important common characteristics” within the meaning of the test because they share responsibility for the “domestic” work necessary to operate the schools and since they “involve the common characteristic of housekeeping.” However, in assessing whether the positions are comparable, MEPA requires more than a commonality of responsibility and purpose. As we stated in Jancey I, the content of the specific jobs must be acknowledged when applying MEPA’s “comparable” standard. Id. We decline to adopt the broad reading of the phrase “important common characteristics” urged by the plaintiffs, because to do so would effectively abrogate the first prong of the Jancey I test. The record reveals that only a limited number of the actual duties attendant to the cafeteria worker and custodian positions could be characterized as sharing “important common characteristics” in the sense suggested by the first prong of the Jancey I test, and those duties include the cleaning and sanitization of the various parts of the school facility for which each is responsible. Overall, however, the duties required of the cafeteria worker and custodian positions are so dissimilar that an objectively reasonable person simply would not conclude that the substantive content of the jobs is comparable. This case is not one, as suggested by the dissent, that simply involves “job labels” and “perceptions.” There can be reasonable disagreement over which of the two jobs is the more onerous and whether cafeteria workers in Everett should be paid more than they are. It may very well be that the functions of the two classes of workers reflect traditional gender roles, and, as we recognized above, the positions may share common characteristics. These considerations, however, do not provide a basis to misapply the law in order to reach a praiseworthy but legally untenable goal. The analysis suggested by the dissent, if followed to its logical conclusion, would find comparability in many fundamentally disparate classes of jobs. The judge made detailed findings of fact on what each job entails and their dissimilar substantive job content belies any conclusion that the jobs are comparable under the first part of the MEPA analysis. Judgment affirmed. The plaintiffs contend that the judge erred in failing to make additional factual findings regarding the substantive job content of the two positions. On remand, both parties agreed that the trial record was complete with respect to the evidence on this issue, and no new evidence was presented. Although the parties submitted proposed findings of fact in response to the judge’s request, he acted properly in relying on the comprehensive findings he had previously made that were pertinent to this issue. The judge’s decision conforms with our directions on remand, see Jancey v. School Comm. of Everett, 421 Mass. 482, 501 (1995) (Jancey I), and his findings meet the requirements imposed by Mass. R. Civ. R 52 (a), as amended, 423 Mass. 1402 (1996). See Leader v. Hycor, Inc., 395 Mass. 215, 224 (1985); Schrottman v. Barnicle, 386 Mass. 627, 638-639 (1982). Black’s Law Dictionary (6th ed. 1990), defines “fungibles,” in part, as “[g]oods which are identical with others of the same nature, such as grain and oil. . . . With respect to goods or securities, those of which any unit is, by nature or usage of trade, the equivalent of any other like unit . . . e.g., a bushel of wheat or other grain; common shares of the same company.” The judge’s reference to “fungible” is an isolated part of his otherwise thorough and correct analysis under the first prong of the Jancey I test. The defendant contends that the judge uses the term “fungible” to “illustrate that the positions must share important common characteristics in order to be comparable.” This may be so, although the judge’s meaning is unclear from his decision. The plaintiffs rely on McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288 (1st Cir. 1998), where the United States Court of Appeals for the First Circuit upheld a judgment for the plaintiff entered in the United States District Court for the District of Massachusetts in which she alleged that her job as department head of radiology at a veterinary hospital was equal to male department heads of cardiology, medicine, surgery, and pathology, within the meaning of the Federal equal pay act, 29 U.S.C. § 206(d) (1988) (FEPA), despite differences in supervisory, budgetary, or administrative responsibilities. See McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 880 F. Supp. 900, 903-904 (D. Mass. 1995) (decided prior to Jancey I). Although the plaintiff did not allege a violation of the Massachusetts equal pay act, G. L. c. 149, § 105A (MEPA), the First Circuit, relying on Petsch-Schmid v. Boston Edison Co., 914 F. Supp. 697, 706-707 (D. Mass. 1996), and without citing Jancey I, noted, erroneously, that the standard under MEPA is the same as under FEPA. See McMillan, 140 F.3d at 298. Compare Jancey I, supra at 487-490. Accordingly, the First Circuit’s decision in McMillan is of no assistance to the plaintiffs here. We are aware of one Federal decision in which a Federal court has cited the correct legal standard under MEPA. See Mullenix v. Forsyth Dental Infirmary for Children, 965 F. Supp. 120, 147-148 (D. Mass. 1996). The dissent contends that the analysis the court applies pursuant to Jancey I results in “comparable work” under MEPA being a more restrictive requirement than “equal work” under FEPA. It supports this contention by reference to our discussion of McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, see note 6, supra. Our rejection of McMillan’s applicability to this case hinges on the fact that the Court of Appeals for the First Circuit equated the MEPA and FEPA standards without considering Jancey I. The dissent’s leap to the conclusion that the result endorsed here would make “ ‘comparable work’ a more exclusive category than ‘equal work,’ ” post at 609, is not warranted by our determination of McMillan’s applicability to this case. We do not have the benefit of the Federal court’s analysis of the positions at issue in McMillan under the Jancey I test, and thus it is speculative for the dissent to suggest, based on our discussion of McMillan, that Jancey I results in MEPA being more restrictive than FEPA. Furthermore, by focusing on “a higher level of generality” to find comparability in jobs “shar[ing] important common characteristics, responsibilities, goals, and daily routines,” the dissent ignores the first part of the Jancey I test and suggests an analysis devoted exclusively to the second part of the test. Post at 609. Marshall, J. (dissenting, with whom Abrams and Ireland, JJ., join). Today, the court withdraws from the difficult challenge of analyzing comparable work and forsakes the quest for gender equity in workplace compensation. Jancey v. School Comm. of Everett, 421 Mass. 482 (1995) (Jancey I), acknowledged that “ ‘comparable’ is a more inclusive term than ‘equal’ .... [and] ‘[w]ork of “comparable character” is broader than “equal work.” ’ ” Id. at 488, quoting Bureau of Labor & Indus. v. Roseburg, 75 Or. App. 306, 309 n.2 (1985). The narrow application of Jancey /’s two-prong test to determine comparable work, here endorsed by the court, has the ironic and contradictory effect of making “comparable work” a more exclusive category than “equal work” under the Federal equal pay act, 29 U.S.C. § 206(d) (1994) (FEPA). I have no argument in theory with a test that measures “comparability” by focusing on job content and whether duties of jobs share “important common characteristics,” while the second prong measures the “equality” of jobs. Ante at 604. The level of specificity or generality by which one defines job content and duties, however, makes all the difference. At one level of specificity, nontechnical school support staff perform categorically distinct jobs of dishwasher (cafeteria worker) and snow shoveler (custodian), cook (cafeteria worker) and trash remover (custodian). At a higher level of generality, work performed by all nontechnical school support staff is comparable work, because each position may share important common characteristics, responsibilities, goals, and daily routines. Within the categories of comparable work, individuals may vary in the equality of their jobs. In this case, the plaintiffs asked the judge and now ask us to look beyond job labels and the different perceptions of cafeteria workers and custodians that are, in part at least, artifacts of sexual stereotyping and traditional job segregation by gender. The court does not undertake this more painstaking analysis. It rejects, on the one hand, the common characteristic of cafeteria workers and custodians suggested by the plaintiffs — “domestic” work, involving the “housekeeping” of schools — as too broad a level of generality. On the other hand, it eschews more detailed analysis of the judge’s findings concerning the respective duties of each set of workers. Although the court recognizes that the job categories share a number of common duties — “cleaning and sanitization of the various parts of the school facility for which each is responsible” — the court does not question what percentage of each job category is spent on these common duties. The court also ignores findings that persons in each job category operate comparable equipment and appliances; monitor gauges and ensure safety; receive, carry, store, distribute, account for and manage necessary supplies; and interact with school children in nonpedagogical ways. Each kind of equipment or set of supplies, of course, at a specific level, may be distinct, but whether such differences make a difference, for purposes of equal pay for comparable work, is the critical inquiry. At the very least, such detailed analysis would identify and disaggregate both the common and the distinct duties of each job and establish grounds to measure equality of pay for that percentage of time and responsibility in which each job was comparable. Thus, if in fact fifty per cent of the time of both jobs involved comparable cleaning and sanitizing of facilities, wages should reflect equal pay for each job in that proportion to total pay for each job. The court rightly criticizes the judge for limiting the scope of MEPA to jobs that are “fungible,” and for using a standard whether “[t]he subjective nature of the two jobs or the basic understanding of the objective or goal of each position [is] the same . . . .” Ante at 606. The court’s conclusory application of an “objective” standard, however — that “the duties required of the cafeteria worker and custodian positions are so dissimilar that an objectively reasonable person simply would not conclude that the substantive content of the jobs is comparable” — obfuscates the analysis, as much, if not more, than the standard used by the judge. Ante at 607-608. In the long run, an objective perspective on comparable work, shared by reasonable women and reasonable men, may develop. Before that consensus is reached, however, courts, assisted by the testimony of experts, must undertake detailed, functional analyses of jobs on a case-by-case basis, especially those jobs traditionally segregated by gender. Until such hard analytic work is done, invocation of a reasonable person’s view of the comparability of jobs may do little more than mask biases. Because the court fails to provide sufficient reasons for affirming the judge’s conclusion that the jobs of cafeteria workers

LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO; NATIONAL POULTRY WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO; ROBERTO SOLIZ VICENTE; ROBERTO MENDOZA; JOSE SAMUEL SOLIS; ESTEBAN SALINAS HERNANDEZ; JUAN IGNACIO MONTES; DANIEL RODRIGUEZ; CARMEN I. MIRANDA; FRANCISCO RAMIREZ R.J.; NOE GONZALEZ; JUAN RODRIGUEZ; FOR THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs v. CASE FARMS, INC., Defendant No. COA96-1042 (Filed 19 August 1997) 1. Labor and Employment § 12 (NCI4th)— Wage and Hour Act — suit to recover wages due — no standing by unions Labor unions were not employees under the Wage and Hour Act and thus did not have standing to bring suit on behalf of employee-members to recover wages allegedly due under the Act since (1) no services were performed by the unions for defendant employer as there was no work relationship between the unions and defendant; (2) defendant did not exercise any control over the unions; and (3) any opportunity for profit or loss from the unions’ relationship with defendant was indirect and not a product of an employer-employee relationship. Moreover, the General Assembly did provide for collective representation of employees by a third party under N.C.G.S. § 95-25.22(c) by allowing the Commissioner of Labor to bring suit on behalf of employees. N.C.G.S. § 95-25.22. 2. Parties § 70 (NCI4th)— class action statute — no grant or denial of standing N.C.G.S. § 1A-1, Rule 23 allows a party who is entitled to sue to bring suit on behalf of itself and other parties in the form of a class action but does not grant or deny standing to parties. Appeal by plaintiffs from an order entered 14 June 1996 by Judge J. Marlene Hyatt in Burke County Superior Court. Heard in the Court of Appeals 19 May 1997. Phyllis A. Palmieri for plaintiff-appellants. Edwards, Ballard, Clark, Barrett and Carlson, P.A., by Terry A. Clark and Jonathan W. Yarbrough, for defendant-appellee. McGEE, Judge. Plaintiffs appeal from an order granting defendant’s motion to dismiss the plaintiff unions for lack of standing to bring suit to recover wages alleged to be owed to plaintiff employees by defendant. Defendant is a poultry processing plant in Morganton, North Carolina. Laborers’ International Union of North America (LIUNA) and National Poultry Workers Organizing Committee (NPWOC) and ten employees of defendant are parties to this action. The main issue in this case is whether the plaintiff unions have standing to bring suit on behalf of the plaintiff employees under the North Carolina Wage and Hour Act, N.C. Gen. Stat. § 95-25.22 (1993). The Wage and Hour Act states that an action to recover unpaid wages “may be maintained in the General Court of Justice by any one or more employees” or by the Commissioner of Labor “at the request of the employees affected.” N.C.G.S. § 95-25.22(b)(c). The Wage and Hour Act’s definition section states: “(3) ‘Employ’ means to suffer or permit to work. (4) ‘Employee’ includes any individual employed by an employer.” N.C.G.S. § 95-25.2(3)(4). Plaintiffs argue that a union is included in the statute’s definition of “employee” because the word “includes” does not limit the meaning of “employee” to individuals. We disagree. The North Carolina Wage and Hour Act is modeled after the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 (1938). In Poole v. Local 305 Nat’l Post Office Mail Handlers, 69 N.C. App. 675, 677, 318 S.E.2d 105, 107 (1984) (holding that union members were not “employees” of the union under the FLSA), our Court recognized that the policy of the Wage and Hour Act is to “protect[] those who, as a matter of economic reality, are dependent upon the business to which they render service.” Id. at 678, 318 S.E.2d at 107. In determining the scope of the term “employee” in Poole, our Court relied upon federal case law that interpreted the term “employee” as used in the FLSA. Id. A further examination of federal case law interpreting “employee” under the FLSA reveals that while federal jurisdictions have rejected a narrow interpretation of “employee,” see Usery v. Pilgrim Equip. Co., Inc., 527 F.2d 1308, 1315, (5th Cir.), cert. denied, 429 U.S. 826, 50 L. Ed. 2d 89 (1976) (“[b]roader economic realities are determinative” of the definition of employee), they have not held that the definition is sufficiently broad to include unions. International Ass’n of Firefighters v. City of Rome, Ga., 682 F. Supp. 522, 534 (N.D. Ga. 1988) (holding “a union lacks standing to maintain an action as a plaintiff under the FLSA” and dismissing the union as a party to the action); accord Equal Employment Op. Com’n v. American Tel. & Tel. Co., 365 F. Supp. 1105, 1121 (E.D. Pa. 1973), modified, 506 F.2d 735 (3rd Cir. 1974) (union official not permitted to bring representative action to recover back wages of its members.) Several factors used by federal jurisdictions to determine “employee” status under the FLSA are equally useful in the context of the Wage and Hour Act: (1) whether the alleged employee performs services for the employer; (2) “the degree of control exerted by the alleged employer” over the individual or entity; and (3) the alleged employee’s “opportunity for profit or loss” derived from its relationship with the employer. Harper v. San Luis Valley Regional Medical Ctr., 848 F. Supp. 911, 914 (D. Colo. 1994). Although the United States Supreme Court has recognized that labor unions have standing to assert the rights of employee-members for damages'for unpaid wages under the Worker Adjustment and Retraining Notification Act (WARN) in United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 134 L. Ed. 2d 758 (1996), the Court’s decision was based partly on the explicit language of the WARN Act which states a “person seeking to enforce such liability, [under the Act] including a representative of employees” may bring suit. The language of the N.C. Wage and Hour Act contains no such legislative mandate for representative suit by a union. Instead, the statute also allows for suit by the Commissioner of Labor “at the request of the employees affected.” N.C.G.S. § 95-25.22(c). Applying the above analysis to the facts in our case, we determine the plaintiff unions in this case lack standing under the Wage and Hour Act in that: (1) no services were performed by the unions for defendant as there was no work relationship between the unions and defendant; (2) defendant did not exercise any control over the unions; and (3) any opportunity for profit or loss from the unions’ relationship with defendant was indirect and not a product of an employer-employee relationship. Harper, 848 F. Supp. at 914. Moreover, the General Assembly did provide for collective representation of employees by a third party under N.C. Gen Stat. § 95-25.22(c) by allowing the Commissioner of Labor to bring suit on behalf of employees. In the absence of other policy or precedent indicating that our definition of “employee” should be sufficiently broader than the plain language of our statute, we hold that only “individuals employed by an employer” or the Commissioner of Labor may bring suit for an employee under the Wage and Hour Act. Next, the plaintiff unions argue that even if the language of the Wage and Hour Act is not determinative of whether they have standing to sue, N.C. Gen. Stat. § 1A-1 (1990), Rule 23 allows them to bring suit. We disagree. This statute provides in pertinent part: (a) ... If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued. This statute does not grant or deny standing to parties. Rather than providing a basis for standing, this statute allows a party who is entitled to sue to bring suit on behalf of itself and other parties in the form of a class action. See Canaan v. Reed, 53 N.C. App. 589, 591, 281 S.E.2d 408, 410 (1981). We thus hold that the plaintiff unions lack standing and confirm the trial court’s order dismissing plaintiff unions on this ground. Affirmed. Judges EAGLES and SMITH concur.

DONAJKOWSKI v ALPENA POWER COMPANY Docket Nos. 183174, 183475. Submitted July 11, 1996, at Lansing. Decided October 11, 1996, at 9:50 A.M. Leave to appeal sought. Christina Donajkowski, Beth McDonald, and Deedra Duranceau brought an action in the Alpena Circuit Court against then-employer, Alpena Power Company, alleging sexual discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and a violation of the Equal Pay Act, 29 USC 206(d)(1), relating to a wage freeze pursuant to the terms of a collective bargaining agreement between the defendant and Local 286, Utility Workers of America affecting only those in their job classification, all of whom were women. The court, Joseph P. Swallow, J., allowed the defendant to bring a third-party action against the union for contribution in the event that the defendant was found liable to the plaintiffs. The court summarily dismissed the plaintiffs’ action and the defendant’s third-party action, ruling that the plaintiffs’ discrimination claim under state law is preempted by the Labor Management Relations Act (lmra), 29 USC 185(a). The plaintiffs appealed and the union appealed the trial court’s allowance of the defendant’s third-party action against the union for contribution. The appeals were consolidated. The Court of Appeals held: 1. The trial court erred in determining that the plaintiffs’ discrimination claim under state law is preempted by the lmra. State law issues are preempted by the lmra only when the application of the state law requires the interpretation of the collective bargaining agreement. The resolution of the plaintiffs’ discrimination claim does not require interpretation of the collective bargaining agreement inasmuch as the Civil Rights Act confers nonnegotiable rights that are independent of any right established by contract and the issues raised by the plaintiffs concern primarily factual questions involving the employer’s conduct and motivation. 2. The trial court erred in determining that the plaintiffs were required to allege some type of unfair labor practice as a condition precedent to their discrimination claim. The right to be free from sexual discrimination is a right independent of the collective bargaining process, and the plaintiffs are under no obligation to allege a defect in that process in order to maintain their discrimination claim. 3. The trial court erred in granting summary disposition of the plaintiffs’ discrimination claim. The plaintiffs established a prima facie case of discrimination under the disparate treatment theory and the disparate impact theory. With respect to the disparate treatment theory, the plaintiffs established that they are members of a class deserving of protection under the Civil Rights Act (i.e., women), that for the same or similar conduct they were treated differently from men, and that the defendant had a discriminatory motive. With respect to the disparate impact theory, the plaintiffs showed that an issue of material fact existed regarding whether the defendant’s policy of limiting the pay of those in the plaintiffs’ job classification affected women more harshly than men. 4. The trial court properly allowed the defendant to bring a third-party action against the union for contribution. Michigan law provides for a general right to contribution in tort actions, MCL 600.2925a; MSA 27A.2925(1), and discrimination based on sex is a tort. To the extent that the union argues that the defendant is an intentional tortfeasor, the union is a joint intentional tortfeasor because liability, if any, by the defendant to the plaintiffs would be a result of the bargained-for contract to which the union was a party. Contribution among joint intentional tortfeasors is allowed under the contribution statute. Affirmed in part, reversed in part, and remanded for further proceedings. C. A. Nelson, J, dissenting, stated that the trial court properly granted summary disposition of the plaintiffs’ discrimination claim, albeit for the wrong reason. Although the plaintiffs established that they are members of a class protected by the Civil Rights Act, they nevertheless failed to demonstrate that they were discriminated against when compared to men. The evidence indicated that Donajkowsld. and McDonald were being paid substantially more than the maximum pay rate, that plaintiffs were not barred from moving from their job classification to higher classifications, that the defendant awarded pay increases to female employees other than the plaintiffs, and that the defendant’s failure to raise the plaintiffs’ wages was due to economic considerations, not discrimination. 1. Labor Relations — Labor Management Relations Act — Preemption op State Law Claims. A state law claim alleging discrimination by an employer against an employee covered by a collective bargaining agreement is not preempted by the Labor Management Relations Act if the state law at issue confers a nonnegotiable right independent of any right established by the collective bargaining agreement and the application of the state law does not require the interpretation of the collective bargaining agreement (29 USC 185[a]). 2. Labor Relations — Civil Rights — Unfair Labor Practices. An employee has a right under the Civil Rights Act not to be discriminated against by an employer on the basis of sex; because the right exists independent of any rights under an applicable collective bargaining agreement, the employee need not allege an unfair labor practice in bringing an action under the Civil Rights Act for discrimination by the employer (MCL 37.2101 et seq.] MSA 3.548[101] et seq.). 3. Contribution — Civil Rights — Sexual Discrimination. The general right provided by Michigan law to contribution in tort actions extends to a defendant in an action for discrimination based on sex (MCL 600.2925a; MSA 27A.2925[1]). 4. Contribution — Joint Intentional Tortfeasors. Contribution among joint intentional tortfeasors is allowed under the contribution statute (MCL 600.2925a; MSA 27A.2925[1]). Boyce, White & Werth (by Richard G. Boyce), for Christina Donajkowski, Beth McDonald, and Deedra Duranceau. The Fishman Group (by Steven J. Fishman and Niels Eric Hansen), for Alpena Power Company. Sachs, Waldman, O’Hare, Helveston, Hodges & Barnes, RC. (by Mary Ellen Gurewitz), for Local 286, Utility Workers of America. Before: Neff, P.J., and Fitzgerald and C. A. Nelson , JJ. Circuit judge, sitting on the Court of Appeals by assignment. Neff, P.J. In Docket No. 183174, plaintiffs appeal as of right from the trial court’s order awarding summary disposition to defendant and dismissing with prejudice plaintiffs’ gender discrimination action brought pursuant to the Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548(101) et seq., and the Equal Pay Act, 29 USC 206(d)(1). In Docket No. 183475, Local 286, Utility Workers of America, AFL-CIO, appeals as of right from the same order, which also dismissed with prejudice defendant’s third-party complaint seeking contribution from the union in the event that defendant was found liable to plaintiffs. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion. I Plaintiff Christina Donajkowski began working for defendant on or about June 27, 1985, as a receptionist. In 1986, she became a meter reader and the first female member of the union. Plaintiff Beth McDonald commenced employment with defendant in an office position in June 1989 and transferred to meter reading on or about July 31, 1989. In the fall of 1989, Donajkowski, McDonald, and Tom Clearwood were full-time meter readers, and Ray Robb was employed in general labor. Donajkowski and Clearwood made $12.40 an hour, Robb made $11.93, and McDonald made $11.80. During the fall of 1989, defendant and the union negotiated a three-year collective bargaining agreement that created a new job classification known as “general labor/meter reader,” comprised of certain lower-skill jobs and having a wage range of $7.50 to $10.50 an hour. Donajkowski and McDonald, being members of the new classification, had their wages “frozen” at their existing pay rates even though they exceeded the maximum rate provided by the classification. The record indicates that both of these plaintiffs voted to ratify the agreement. Defendant stated that the new job classification was created to furnish more flexibility in its labor force and to help contain costs by establishing a market-sensitive “hire-in” wage rate. Plaintiff Deedra Duranceau hired in with defendant as a general laborer in the general labor/meter reader classification in March 1990 at $7.50 an hour and thereafter received step increases bringing her to the $10.50 an hour maximum rate for that classification. Consistent with the “wage freeze” policy for the new classification, defendant granted no pay increases for the general labor/meter reader employees, although the 1989 bargaining agreement provided for yearly 2½ percent pay increases for other workers. When defendant and the union could not agree on a new contract in the fall of 1992, defendant implemented the terms of its last offer and union members continued to work on that basis without a contract. These terms apparently included a yearly three percent pay increase for all bargaining unit employees except plaintiffs. Thus, the situation existing at the time of the September 8, 1994, hearing on defendant’s motion for summaiy disposition was that the general labor/meter reader classification was comprised solely of plaintiffs, whose wages remained frozen in contrast to other union members. Female employees who were not union members also received wage increases during this period. After the union was dismissed as a party-plaintiff pursuant to stipulation, defendant filed a third-party complaint seeking contribution from the union in the event defendant was found liable to plaintiffs. Plaintiffs and the union now challenge the trial court’s award of summary disposition to defendant. n We first examine plaintiffs’ appellate claims. We conclude that reversal is required. A This Court reviews de novo the trial court’s order under MCR 2.116(C)(10). Michigan Mutual Ins Co v Dowell, 204 Mich App 81, 85-86; 514 NW2d 185 (1994). When conducting this review, we examine the entire record in a light most favorable to the nonmoving party to determine whether a record could be developed that would leave open an issue on which reasonable minds could differ. Id. Summary disposition is proper where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Id. However, a court may not weigh the evidence before it, or make findings of fact; if the evidence before it is conflicting, summary disposition is improper. Barnell v Taubman Co, Inc, 203 Mich App 110, 115; 512 NW2d 13 (1993). B We first address that aspect of the trial court’s ruling that dealt with plaintiffs’ claim based on the collective bargaining agreement. We find this ruling to have been in error. 1 The trial court determined that plaintiffs’ discrimination claims challenged the validity of the bargained-for contract and that they could not be brought in state court because the issues raised were preempted by federal law. In Betty v Brooks & Perkins, 446 Mich 270; 521 NW2d 518 (1994), our Supreme Court examined whether the plaintiff’s state law discrimination claim was preempted by the Labor Management Relations Act (LMRA), 29 USC 185(a). The Court, construing United States Supreme Court precedent, determined that state law issues are preempted by the lmra only when the application of the state law requires the interpretation of the collective bargaining agreement. Id. at 276-280. An important factor in determining whether contractual interpretation is involved is whether the state law at issue confers nonnegotiable rights on employers or employees independent of any right established by the contract. Id. Also, when the state court action involves primarily factual determinations, such as the conduct and motivation of the employer, the issues raised do not involve interpretation of the contract. Id. at 280. The Court specifically noted the unique nature of state discrimination claims, which generally require a primarily factual inquiry. Id. at 281-282. Here, we conclude that plaintiffs’ state law discrimination claims are not preempted by the lmra. First, the issues raised by plaintiffs involve rights that may not be waived by contract, i.e., the right to be free from sexual discrimination. Id. at 284. Further, the issues raised by plaintiffs do not require interpretation of the contract, but raise primarily factual questions. Plaintiffs claim that defendant intentionally discriminated against them, as evidenced by defendant’s conduct and statements, and claim that even if its conduct does not demonstrate discrimination, women were treated more harshly than men as a result of defendant’s implementation of the new, otherwise facially valid, classification. Because neither claim requires interpretation of the contract, but an investigation into defendant’s conduct and motives, we conclude that the trial court erred in determining that plaintiffs’ claims were barred by the LMRA. 2 The trial court also held that plaintiffs were required to allege some type of unfair labor practice as a condition precedent to a state law sexual discrimination claim. We find this ruling to have been in error. As noted above, the right to be free from sexual discrimination is a right independent of the collective bargaining process. Id. at 284. Accordingly, plaintiffs were under no obligation to allege a defect in that process, and the trial court erred to the extent it relied on the absence of such an allegation in granting summary disposition to defendant. c Next, we address the merits of plaintiffs’ claims. A discrimination claim can be based on two theories: (1) disparate treatment and (2) disparate impact. Lytle v Malady, 209 Mich App 179, 184; 530 NW2d 135 (1995). In order to prove disparate treatment, plaintiffs must prove either a pattern of intentional discrimination against a protected class or against themselves individually. Id. at 184-185. Disparate impact requires a showing that an otherwise facially neutral policy has a discriminatory effect. Id. i From our reading of the pleadings, we conclude that plaintiffs pursued both theories below. First, we conclude that the trial court erred in granting summary disposition with regard to plaintiffs’ disparate treatment theory. To avoid summary disposition under that theory, plaintiffs were required to establish a genuine issue of material fact regarding whether a prima facie case of discrimination existed, i.e., that they are members of a class deserving of protection under the statute and that, for the same or similar conduct, they were treated differently from men. Schultes v Naylor, 195 Mich App 640, 645; 491 NW2d 240 (1992). Further, plaintiffs must present evidence that defendant had a discriminatory motive. See Dep’t of Civil Rights ex rel Peterson v Brighton Area Schools, 171 Mich App 428, 439; 431 NW2d 65 (1988). As females, plaintiffs have satisfied the requirement that they be members of a statutorily protected class. The question becomes then, whether, when viewed in a light most favorable to plaintiffs, they could show at trial that they were treated differently from men performing the same or similar work. The facts in favor of granting summary disposition are that Donajkowski and McDonald are being paid substantially more than the maximum pay rate provided by the labor contract, that plaintiffs are not barred from moving out of their classification into higher-level jobs, and that defendant awarded pay increases to female employees other than plaintiffs. Evidence also existed, however, that before the existing contract classification was created, one of defendant’s officials stated that he wanted housewives to read meters. Indeed, at the time of this case, only women were full-time meter readers. Further, in the course of contract talks in 1992, the president of the union allegedly offered a two percent pay increase for all employees instead of a four percent increase for all employees except for the meter readers. This proposal was rejected by defendant. Also, after the 1989 contract in which the meter readers’ wages were frozen, a company official told the union president that the three women (the meter readers) were treated badly as a result of the contract. We find this latter piece of evidence particularly important. In contrast to this Court’s statement in Lytle, supra at 185, here, defendant was “so blatant as to announce its illegal motives.” Viewed in a light most favorable to plaintiffs, we conclude that this evidence is sufficient to allow a jury to conclude that plaintiffs, because of their status as women, were treated differently from their male counterparts. The evidence indicated that the intent was that the meter reader job be assigned to women and that that job classification was the only one to be singled out for a wage freeze. 2 To avoid summary disposition under the disparate impact theory, plaintiffs were required to create an issue of fact with regard to whether defendant’s policy of limiting the pay for meter readers affected women more harshly than it did men. See Brighton Area Schools, supra at 440. Under this theory, plaintiffs need not prove that defendant intended to discriminate. Id. We conclude that sufficient evidence existed to allow plaintiffs to create an issue of material fact under a disparate impact theory. Although the classification itself does not seem to be discriminatory, we conclude that under defendant’s implementation of that classification, women were treated more harshly than men. The evidence demonstrated that around the time the pay freeze was put into effect, all the men transferred out of the meter reader classification so that only women were left in that position. While some evidence exists suggesting that the enforcement of the wage freeze may have been nondiscriminatory, we find it important that in the three-year period relevant to this appeal, the meter reader classification consisted only of women, but before the implementation of the freeze, mainly men occupied the position of meter reader. Because conflicting evidence existed, summary disposition was improperly granted. Accordingly, we conclude that reversal is also required to the extent the trial court dismissed plaintiffs’ claims on a disparate impact theoiy. m We next address the union’s claim on appeal that the trial court improperly allowed defendant to implead the union to obtain contribution in plaintiffs’ cause of action. We conclude that the trial court properly allowed defendant’s contribution action. a The union first argues that federal law should govern this case and that, under federal law, contribution actions in civil rights claims such as this are not permitted. While we recognize the validity of the federal precedent on which the union relies, we conclude that it does not apply with equal force in Michigan. In Northwest Airlines, Inc v Transport Workers Union of America, 451 US 77; 101 S Ct 1571; 67 L Ed 2d 750 (1981), the Supreme Court determined that contribution claims could not be had in federal discrimination causes of action. The Court in Northwest Airlines based its decision on two grounds. First, the Court determined that no right to contribution existed in title VII or the Equal Pay Act. Id. at 91-95. In this context, the Court stated that employers are not members of a class to be protected under either of these two statutes. Id. at 92. As a separate issue, the Court also addressed whether a general right to contribution existed at federal common law, suggesting that, even though such a right did not exist under the statutes, if a common-law right existed, contribution co

Marilyn Jancey & others vs. School Committee of Everett. Middlesex. September 13, 1995. December 12, 1995. Present: Liacos, C.J., Wilkins, Lynch, & O’Connor, JJ. Massachusetts Equal Pay Act. Federal Equal Pay Act. Statute, Construction. School and School Committee, Compensation of personnel, Cafeteria worker, Custodian. Anti-Discrimination Law, Sex. Massachusetts Tort Claims Act. Words, “Comparable,” “Like,” “Equal work,” “Wages." Discussion of the purpose and legislative history of the Massachusetts equal pay act, G. L. c. 149, § 105A, and the meaning of the term “comparable” found therein. [486-487, 488-489] Discussion of the differences in analysis of the term “comparable” under the Massachusetts equal pay act, G. L. c. 149, § 105A, and the Federal equal pay act, 29 U.S.C. § 206 (d) (1). [487-488, 489] This court concluded that a two-part analysis is required under the Massachusetts equal pay act, G. L. c. 149, § 105A, for purposes of making a determination whether the work of two jobs is “comparable” such that equal pay is required: first, whether the substantive content, that is, the duties of the jobs have “important common characteristics” and, then, whether the two positions entail comparable skill, effort, responsibility and working conditions; an action asserting claims under the act was remanded for the application of this analysis to the facts of the case. [489-490] Discussion of cases and statutes construing the term “wages.” [490-492] This court concluded that the terms “wages” and “wage rates” used in the Massachusetts equal pay act, G. L. c. 149, § 105A, should be construed broadly to include fringe benefits or other remunerations paid to the workers in question, and on remand of an action asserting claims under that statute, the judge was to consider evidence of such benefits and remunerations. [493] This court concluded that, to establish a violation of the Massachusetts equal pay act, G. L. c. 149, § 105A, a plaintiff need not prove that the employer in question intended to discriminate against the plaintiff on the basis of sex. [493-495] General Laws c. 15IB was not the exclusive remedy for plaintiffs’ claims based on unequal pay where the antirepeal language of § 9 of that statute was applicable to allow claims under G. L. c. 149, § 105A, the Massachusetts equal pay act, in a case where no procedure under G. L. c. 15IB, § 5, was “pending” as to any acts declared unlawful under G. L. c. 151B, § 4. [495-499] The definitions of employer and employee appearing in G. L. c. 149, § 1, encompass employers and employees in the public sector as well as the private sector. [499-500] The Massachusetts tort claims act, G. L. c. 258, was not applicable to nontort claims of wage discrimination in violation of G. L. c. 149, § 150A, brought against a public employer. [500-501] Civil action commenced in the Superior Court Department on June 9, 1989. The case was heard by Gordon L. Doerfer, J. The Supreme Judicial Court granted an application for direct appellate review. Juliane Balliro {Frank Mondano with her) for the defendant. Ann M. Gilmore {Lee D. Goldstein with her) for the plaintiffs. Harold L. Lichten & Robert S. Mantell, for National Employment Lawyers Association, Massachusetts Chapter, amicus curiae, submitted a brief. Ida Corriere and others similarly situated. A motion for class certification was allowed in the Superior Court. Lynch, J. The plaintiffs, female cafeteria workers in the Everett public schools, filed a complaint against their employer, the school committee of Everett (school committee), alleging violations of the Massachusetts antidiscrimination law, G. L. c. 15IB (1994 ed.), the Massachusetts equal pay act, G. L. c. 149, § 105A (1994 ed.) (MEPA), the Federal equal pay act, 29 U.S.C. § 206 (d) (1) (1988) (FEPA), and State and Federal constitutional provisions. The plaintiffs amended their complaint in December, 1989, to add a claim under the Massachusetts equal rights act, G. L. c. 93, §§ 102-103 (1994 ed.). The case proceeded to trial solely on the MEPA claim. The trial was bifurcated and on the liability phase the judge ruled that the school committee had violated MEPA by paying the female cafeteria workers a lower wage than the male custodians. In reaching this conclusion he found that “the work of cafeteria workers and custodians required substantially comparable skills, efforts, responsibilities, and working conditions.” It followed, then, the judge decided, that “[t]he work of the women employed ... as cafeteria workers is therefore of comparable character to the work of the men employed as Everett School custodians.” On the remedy phase of the case the judge awarded the plaintiffs a total of $1,041,062.11. We granted the school committee’s application for direct appellate review and now vacate and remand for additional proceedings. We summarize the most pertinent findings as follows: 1. On average, Everett public school custodians were paid roughly twice what cafeteria workers were paid. 2. All the cafeteria workers have always been women and all the custodians have always been men. 3. No prior experience, training, or education was required for the positions of Everett school custodians or cafeteria workers. 4. Both cafeteria workers and custodians: (a) are occasionally exposed to extremes of heat and cold; (b) are occasionally exposed to various cleaning agents necessary to perform their cleaning and sanitizing functions; (c) are exposed to and occasionally suffer from lifting injuries, cuts, slips, and falls. 5. The skill required to perform the duties of Everett school cafeteria workers is comparable to the skill required to perform the duties of Everett school custodians. 6. The over-all effort of the cafeteria workers, including physical and mental exertion, is comparable to the over-all effort of the custodians. 7. The responsibility or importance of the duties of the cafeteria workers is comparable to the responsibility or importance of the duties of the custodians. 8. The working conditions of the cafeteria workers are comparable to the working conditions of the custodians. We begin our analysis with the language of G. L. c. 149, § 105A, which provides, in relevant part: “No employer shall discriminate in any way in the payment of wages as between the sexes, or pay any person in his employ salary or wage rates less than the rates paid to employees of the opposite sex for work of like or comparable character or work on like or comparable operations; provided, however, that variations in rates of pay shall not be prohibited when based upon a difference in seniority.” The judge found that the school committee paid the female cafeteria workers salary or wage rates less than the rates paid to the male custodians for work of like or comparable character. The school committee raises a number of challenges to the judge’s rulings on both liability and remedy. We address them below: 1. Comparable work standard. Because we conclude that the judge applied the wrong standard in deciding that the work of the two groups was of comparable character, we turn to that issue first. The word “comparable” is not defined in the statute; we look, therefore, at both its literal meaning and at the purpose and legislative history of the statute. See Massachusetts Hosp. Ass’n v. Department of Medical Sec., 412 Mass. 340, 346 (1992). Massachusetts was the first State to adopt legislation requiring equal pay for comparable work. St. 1945, c. 584, § 3, approved July 10, 1945. In its original form the statute required equal pay for “work of comparable character or work on comparable operations.” No exceptions were enumerated. The statute was enacted against the backdrop of regulations of the National War Labor Board in force during World War II. See County of Washington v. Gunther, 452 U.S. 161, 185 n.l (1981) (Rehnquist, J., dissenting). In 1947, the Legislature rewrote the statute and used the phrase “work of substantially the same character or work on substantially the same operations” (emphasis supplied). St. 1947, c. 565. The revision also provided numerous exceptions permitting disparities in wages between the sexes based on “difference in seniority, experience, training, skill or ability, or difference in duties or services performed whether regularly or occasionally or difference in availability for other operations, or any other reasonable differentiation except difference in sex.” Id. In 1951, the Legislature again rewrote the statute by reinstating the term “comparable” and adding the term “like” to provide equal pay for “work of like or comparable character or work on like or comparable operations.” St. 1951, c. 180. In addition, the Legislature eliminated all but one of the exceptions, retaining only the exception for a wage differential based on seniority. Id. The judge concluded that “work of like or comparable character” is a broader concept and a more inclusive term than “equal work.” He based this conclusion on the legislative history of MEPA, the legislative history of FEPA and on interpretations of the Oregon comparable work law, Or. Rev. Stat. § 652.220 (1987). The judge ruled that the test for determining whether the work of the cafeteria workers and the custodians was “of like or comparable character” was whether the work required comparable skill, effort, responsibility, and working conditions. These are the factors used in FEPA and other similar statutes. See 29 U.S.C. § 206 (d) (1) (“equal work on jobs, the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions”), and Me. Rev. Stat. Ann. tit. 26, § 628 (1988) (“comparable work on jobs which have comparable requirements relating to skill, effort and responsibility”). The judge then determined that, since the skill, effort, responsibility, and working conditions of the two positions were comparable, the over-all character of the work was comparable within the meaning of the statute. We conclude that the judge’s analysis was improper. While skill, effort, responsibility, and working conditions are relevant factors in determining whether two positions are comparable, the inquiry does not end there. The Federal law differs significantly from our statute by requiring that the rate of pay be for equal work. It is within the framework established by Federal law that FEPA requires that jobs be evaluated in terms of skill, effort, responsibility, and working conditions. In contrast MEPA does not specify a particular set of factors to be used in determining whether work is comparable rather than equal. Furthermore, the Federal statute contains several affirmative defenses or exceptions that take pay differentials outside of its ambit. In view of these differences, we do not follow slavishly the Federal approach, but rather we examine the meaning of the word “comparable” in light of our own history and experience. The legislative history of MEPA indicates that, in 1951, the Legislature struck the 1947 version of the statute and substituted the language “like or comparable” for the words “substantially the same.” In view of this legislative history and interpretations of the analogous Oregon statute we accept the judge’s reasoning that “comparable” is a more inclusive term than “equal.” As the Oregon Court of Appeals noted, “[wjork of ‘comparable character’ is broader than ‘equal work.’ ‘Comparable’ does not require equality but that two items have important common characteristics.” Bureau of Labor & Indus. v. Roseburg, 75 Or. App. 306, 309 n.2 (1985). The historical context into which MEPA was enacted is also relevant. The original statute, which contained the word “comparable,” was added in 1945 at a time when the National War Labor Board required equal pay for comparable work. As two recent commentators noted: “For the most part ... the sex-related wage claims considered by the War Labor Board involved an ‘equal pay for equal work’ doctrine, that is, equal payment for the same tasks on jobs presently or formerly performed by males. When comparisons of dissimilar jobs were requested, the Board generally presumed that the existing wage rates were correct and referred the cases to the disputing parties for negotiation, with the suggestion or order that a job evaluation system be instituted to consider the worth of the job on the basis of content, irrespective of the sex of any incumbent. Generally, however, the Board did not attempt to establish the relative worth of dissimilar jobs and, as the General Electric and Westinghouse decision [28 War Lab. Rep. 666 (1945)] indicates, it found the comparison task beyond its capabilities.” R.E. Williams & D.S. McDowell, The Legal Framework, Comparable Worth: Issues and Alternatives 197, 211 (E.R. Livernash, ed. 1980). Thus, the historical context provides little support for applying the term “comparable” to positions with dissimilar substantive content. See generally General Elec. Co. & Westinghouse Elec. Co., supra. Ignoring the content of the specific jobs and focusing only on skill, effort, responsibility, and working conditions of the positions only makes sense where the standard is “equal pay for equal work” as in FEPA. Under that standard, the term “equal work” supplies the requirement of similar job content. Under the more inclusive “comparable work” standard, on the other hand, jobs meeting the factors of the Federal statute could still differ significantly in job content. It is difficult to see how jobs could have “comparable character” within the meaning of the statute, if their substantive job content was not also comparable. Furthermore a standard which required equal pay for jobs which differ significantly in their substantive content would likely impose on employers an unfair burden and produce inconsistent and confusing results. We conclude, therefore, that in applying the broader “comparable” standard, the statute requires a two-part analysis. First, the judge must determine whether the substantive content of the jobs is comparable, that is, whether the duties of the jobs have “important common characteristics.” Bureau of Labor & Indus. v. Roseburg, supra. To ignore job content when applying the “comparable” standard is to attempt the impossible task of comparing disparate concepts. In other words two positions that are so dissimilar in their substantive content that a reasonable person would regard them as categorically separate are not “comparable.” It is only when a determination is made that the jobs are comparable in substantive content, that the second inquiry is appropriate — whether the two positions entail comparable skill, effort, responsibility, and working conditions. If the answer to both inquiries is “Yes,” then employees in the two positions must receive equal pay. 2. Wages. In determining that the cafeteria workers were paid a lower wage, the judge did not consider evidence regarding fringe benefits, including health insurance and other types of remuneration. Instead, his findings regarding the wage issue focus exclusively on the base hourly pay received by the employees. The school committee argues that the judge’s failure to consider other forms of remuneration, including insurance and other benefits and not just the base hourly pay, was error. We agree. The terms “wages” and “wage rate” are not defined in the statute. Neither are they defined in any interpretive regulation or other administrative materials. Therefore we look to other sources for determining how to construe the term in the context of a remedial statute such as MEPA. See Commissioner of Revenue v. AMIWoodbroke, Inc., 418 Mass. 92, 96-97 (1994); Concord Rod & Gun Club, Inc. v. Massachusetts Comm’n Against Discrimination, 402 Mass. 716, 721 (1988). “As the statute does not effectively define [the terms ‘wages’ and ‘wage rate’], 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.” Westinghouse Broadcasting Co. v. Commissioner of Revenue, 382 Mass. 354, 357 (1981), quoting First Data Corp. v. State Tax Comm’n, 371 Mass. 444, 447 (1976). Black’s Law Dictionary 1579 (6th ed. 1990) defines “wages:” “Every form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, dismissal wages, bonuses and reasonable value of board, rent, housing, lodging, payments in kind, tips, and any other similar advantage received from the individual’s employer or directly with respect to work for him. . . . Term should be broadly defined and includes not only periodic monetary earnings but all compensation for services rendered without regard to manner in which such compensation is computed. . . .” (Citations omitted.) General Laws c. 151 A, § 1 (s) (A) (1994 ed.), adopts similar language for its definition of wages in the employment security context: “[E]very form of remuneration of an employee subject to this chapter for employment by an employer, whether paid directly or indirectly, including salaries, commissions and bonuses, and reasonable cash value of board, rent, housing, lodging, payment in kind and all remuneration paid in any medium other than cash [with exceptions].” We also look to the analogous Federal statute for guidance. See Tate v. Department of Mental Health, 419 Mass. 356, 361 (1995). FEPA states in relevant part: “No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work . . . .” Compare MEPA (“[n]o employer shall . . . pay any person . . . salary or wage rates less than the rates paid to employees of the opposite sex . . .”). Regulations promulgated pursuant to FEPA also reflect the Black’s Law Dictionary definition of “wages:” “Under [FEPA], the term ‘wages’ generally includes all payments made to [or on behalf of] an employee as remuneration for employment. The term includes all forms of compensation irrespective of the time of payment, whether paid periodically or deferred until a later date, and whether called wages, salary, profit sharing, expense account, monthly minimum, bonus, uniform cleaning allowance, hotel accommodations, use of company car, gasoline allowance, or some other name. Fringe benefits are deemed to be remuneration for employment” (emphasis added). 29 C.F.R § 1620.10 (1995). The United States District Court for the Southern District of Georgia recently construed these definitions in Bertotti v. Philbeck, Inc., 827 F. Supp. 1005 (S.D. Ga. 1993). The plaintiff in Bertotti was a female hotel restaurant worker whose monthly salary was less than those of two male coworkers. The defendant employer argued that the plaintiff did not receive a lower wage than the male workers because she received health insurance benefits and they did not. When added together, the value of her salary and health insurance benefits exceeded the total remuneration her uninsured male coworkers received. The court, looking at the definition of “wages” contained in 29 C.F.R. § 1620.10, determined that the plaintiff was paid a higher wage than her male coworkers. Id. at 1010. The court held that the plaintiff did not have a valid claim under FEPA and granted summary judgment for the employer. Id. Bertotti highlights one of the sound policy reasons for construing the terms “wages” and “wage rate” broadly. Such a construction protects both employers and employees. If we construe the term narrowly to exclude insurance and other benefits, some employees, such as the plaintiff in Bertotti, would have valid claims even though they were receiving total compensation equal to or greater than that of their coworkers of the opposite sex. Such a result would punish employers for deciding to allocate reso

HAROLD G. HAMILTON, PATRICIA PERRONE SANDERS, and all others similarly SITUATED v. MEMOREX TELEX CORPORATION No. 9310SC1081 (Filed 21 February 1995) 1. Limitations, Repose, and Laches § 113 (NCI4th)— pay for unused vacation days — change in policy — action not time barred Plaintiffs’ action was not barred by the statute of limitations where plaintiffs brought the action under the Wage and Hour Act to recover the value of vacation days they had not taken before they were terminated where defendant had changed its vacation policy on 21 December 1988 from earning vacation days one year for use in the next to advancing days on 1 January for use in that year and plaintiffs filed their action on 3 April 1991. Plaintiffs suffered no injury until the, defendant failed to pay them for vacation days they had allegedly earned in 1988; defendant’s policy did not require it to pay cash for any unused vacation days until the employment was terminated and no individual plaintiff had a cause of action until next pay day after termination. The trial court correctly found that only those plaintiffs whose pay date next following termination preceded 3 April 1989 (two years prior to the filing of this action) were barred by N.C.G.S. § 95-25.22. Am Jur 2d, Limitation of Actions §§ 107 et seq. 2. Labor and Employment § 56 (NCI4th)— unused vacation days — change in policy — termination of plaintiffs The trial court properly found that defendant’s refusal to pay plaintiffs for vacation days earned under defendant’s old policy prior to 1 January 1989 was a violation of the Wage and Hour Act where defendant changed its policy on 21 December 1988 from earning vacation days one year for use in the next to advancing days on 1 January for use in that year, subject only to working for the company for six months before using vacation days; defendant terminated plaintiffs after changing the policy; and defendant refused to pay plaintiffs for vacation days accrued under the old policy. Once the employee has earned wages and benefits under the Wage and Hour Act the employer may not rescind them, except that certain benefits including vacation pay may be made subject to forfeiture so long as the employer notifies the employee of the conditions of such a forfeiture prior to the time he or she earns such benefits. N.C.G.S. § 95-25.1 et seq. Am Jur 2d, Master and Servant § 80. 3. Labor and Employment § 56 (NCI4th)— unused vacation days — unilateral contract The trial court did not err in an action to recover payment for unused vacation time lost when defendant changed its vacation accrual policy and then terminated plaintiffs by finding, as an alternative basis for its judgment, that defendant had breached a unilateral contract with plaintiffs. Defendant’s old policy constituted a unilateral promise to grant an employee vacation in the next year if he worked in the previous one, which all of the plaintiffs accepted by working in 1988 and continuing to work through 1 January 1989. Am Jur 2d, Master and Servant § 80. 4. Labor and Employment § 56 (NCI4th)— unused vacation days — employees terminated after change The trial court erred by holding defendant liable for unused vacation time for employees terminated after 31 December 1989 (some plaintiffs were terminated before that time) where defendant changed its vacation policy from accumulating vacation days one year for use in the next to advancing vacation days on 1 January for use that year, with no carryover without permission, subject only to working for the company for six months, and with the change announced in a memorandum on 21 December 1988. Defendant’s policies concerning the carryover of vacation were valid and enforceable under the Wage and Hour Act; each policy was in place before the employees earned the vacation days thereby affected; none of the employees still employed after 31 December 1989 had any vacation days to carry over; and those employees suffered no loss when defendant paid them only for the days they had accrued in the year of their termination. Am Jur 2d, Master and Servant § 80. 5. Labor and Employment § 56 (NCI4th)— unused vacation days — determination of damages during liability phase of trial The trial court did not err in an action to recover the value of unused vacation days for which defendant refused to pay plaintiffs when they were terminated by making determinations of damages during the liability phase of the trial. Defendant offers no theory of how it was prejudiced by the court’s consideration of these matters during the liability phase; moreover, these matters all concern defendant’s liability to the class and do not involve defendant’s liability to any particular plaintiff. Am Jur 2d, Master and Servant § 80. 6. Labor and Employment § 56 (NCI4th)— unused vacation days — pay rates — date of termination The trial court did not err in an action to recover the value of unused vacation days by concluding that plaintiffs were entitled to recover payment for their unused days at their respective pay rates on the date of termination, rather than the rates at the earlier date when defendant’s policy on vacation accrual was changed. Plaintiffs’ injury was defendant’s failure to pay them for those days upon their termination and their action accrued on their respective dates of termination. Also, defendant’s policy explicitly provided that vacation days would be paid “at the current base rate.” Am Jur 2d, Master and Servant § 80. 7. Labor and Employment § 56 (NCI4th)— unused vacation days — six month employment limitation The trial court did not err in an action by terminated employees to recover the value of unused vacation days by awarding damages to employees who had begun their employment within six months of 1 January 1989 but who had been employed by defendant for at least six months prior to their termination, where defendant’s new vacation policy advancing leave for the year conditioned on six months employment took effect on 1 ■ January 1989. Although the court may have erred in drafting its finding of fact regarding the policy, the plain meaning of defendant’s policy is that an employee may not take vacation until he has worked for six months. Am Jur 2d, Master and Servant § 80. 8. Parties § 80 (NCI4th)— failure to pay for unused vacation days — class action — notice The trial court did not err by including in its judgment in a class action to recover the value of unused vacation days those class members whose notices were returned undelivered. Considering the number of plaintiffs involved and the availability of the plaintiffs’ addresses from the company file, in addition to the fact that it is the defendant who disputed the notice, the notice was in accord with applicable class action law, providing for the best notice practical under the circumstances and being reasonably certain to inform those involved, affording each member the chance to opt out of the class. The form of the notice was not substantially less likely to bring home notice than any other feasible alternative. Am Jur 2d, Parties §§ 50 et seq. 9. Labor and Employment § 56 (NCI4th)— failure to pay for unused vacation days — liquidated damages — interest The trial court did not err by awarding liquidated damages to plaintiffs in an action to recover the value of unused vacation days lost when defendant changed its vacation policy and subsequently terminated plaintiffs where defendant argued, that there was evidence to show that it changed the vacation policy solely for the purposes of accounting and that the change was an utterly proper, prospective alteration to its benefit scheme, so that it should not have to pay liquidated damages under N.C.G.S. § 95-25.22. However, the act that constituted the violation was the failure to pay plaintiffs for their vacation upon their termination, not the change in policy. Defendant pointed to no evidence to show that the failure to pay plaintiffs for their vacation days was done in good faith or in the belief that it was not a violation of the Wage and Hour Act and N.C.G.S. § 95-22 mandated that the trial court award liquidated damages. The trial court erred, however, in awarding interest on the liquidated damages. While N.C.G.S. § 95-25.22 states that interest may be recovered on unpaid wages, it does not provide that interest is payable on liquidated damages. Am Jur 2d, Master and Servant § 80. 10. Labor and Employment § 56 (NCI4th)— class action— unused vacation days — terminated employees — common law contract claim — attorney fees The trial court did not err in allowing attorneys’ fees for parties who recovered in a class action on common law contract claims but not on Wage and Hour Act claims for unused vacation days for which they were not paid on termination. The attorneys’ work was not divisible between Wage and Hour claims and contract claims; the two claims were based on the same fundamental legal theory and, because the claims were similar, time spent litigating the contract claim directly benefitted those whose Wage and Hour claims were not time-barred. Am Jur 2d, Master and Servant § 80. 11. Discovery and Depositions § 55 (NCI4tli)— class action— discovery — defendant ordered to produce information The trial court erred in a class action seeking compensation for vacation days lost when plaintiffs were terminated by compelling discovery when there was no outstanding discovery request. Plaintiffs had sent an interrogatory to defendant seeking information on all members of its class which was a continuing request, but plaintiffs did not contend that defendant failed to provide any information concerning members of the class as it was defined in the 18 November 1991 order certifying the class. Therefore, so long as the class continued to be defined as it was in the 18 November 1991 order, there were no unsatisfied discovery requests and the trial court erred by ordering defendant to produce information regarding people who were terminated. N.C.G.S. § 1A-1, Rule 37. Am Jur 2d, Depositions and Discovery §§ 361 et seq. 12. Labor and Employment § 56 (NCX4th)— unused vacation days — measure of damages The trial court erred in an action to recover the value of unused vacation days after defendant changed its vacation policy and terminated plaintiffs by failing to order defendant to pay employees terminated prior to 1 January 1990 the vacation leave pay promised under the old and new policies. By working in 1988, plaintiffs earned an allotment of vacation that could only be taken in 1989 and, under the new policy, plaintiffs earned vacation days that could be taken in that year. The two allotments were separate awards for separate periods of work, performed pursuant to two separate contracts. Am Jur 2d, Master and Servant § 80. Appeal by defendant from order entered 25 November 1991 by Judge Dexter Brooks, from order entered 18 December 1992 by Judge F. Gordon Battle, and from order and judgment entered 27 July 1993 by Judge Wiley Bowen, and appeal by plaintiffs from order entered on 18 December 1992 by Judge F. Gordon Battle, and from order and judgment entered 27 July 1993 by Judge Wiley Bowen in Wake County Superior Court. Heard in the Court of Appeals 26 May 1994. Plaintiffs instituted this class action on 3 April 1991, to recover vacation pay defendant had allegedly failed to pay each of them upon the termination of their employment with defendant. Judge Brooks certified the class in an order entered 18 November 1991. The class consisted of individuals who: (1) were employed by defendant before 21 December 1988; (2) were terminated after 31 December 1988; and (3) were not paid for vacation time they allegedly earned in 1988, prior to the implementation of a new vacation policy. Upon a joint motion of the parties, the case was bifurcated as to issues of liability and damages. Following a trial on 2 and 3 December 1992, Judge F. Gordon Battle entered an order finding defendant liable for compensatory and liquidated damages, interest and attorneys’ fees. Plaintiffs filed a motion for summary judgment on damages and a motion for entry of judgment on 8 July 1993. Following a hearing on the matter, Judge Bowen granted the motions and entered judgment against defendant for $753,006.32 in damages and interest and $50,550.08 for attorneys’ fees and expenses. On that same day the court entered an order to compel defendant to provide information concerning employees terminated after 31 July 1992. Defendant and plaintiffs appeal. Patterson, Harkavy & Lawrence, by Donnell Van Noppen, III, and Gulley and Calhoun, by Michael D. Calhoun, for plaintiff-appellees. Poyner & Spruill, L.L.P., by Cecil W. Harrison, Jr., and Robin T. Morris, for defendant-appellant. Thomas A. Harris and Attorney General Michael F. Easley, by Associate Attorney General John A. Greenlee, for Commissioner of Labor Harry E. Payne, Jr., amicus curiae. ARNOLD, Chief Judge. Defendant presents eleven arguments based upon thirty assignments of error and plaintiffs offer one argument based upon two assignments of error. Plaintiffs are all former employees of defendant who had been employed by defendant at any time prior to 21 December 1988 and were terminated after 31 December of that year. Prior to 21 December 1988, the defendant’s vacation.policy (the old policy), which had been adopted in 1986, provided as follows: If an employee was hired prior to 1 August of a given year, the employee was entitled to five days of paid vacation during that year. However these days could not be taken until the employee had completed three months of continuous employment. If an employee was hired on or after 1 August, the employee was entitled to no vacation days in that year, but would be entitled to take ten days of vacation the next year, after completing six months of continuous employment. If an employee was terminated after completing six months of service, he would be paid for any unused vacation that was earned and payable on 1 January of that year. On 21 December 1988, defendant notified all of its employees that, as of 1 January 1989, the vacation policy (the new policy) would be as follows: Vacation would be advanced on 1 January for use in that year. Vacation days were available for immediate use, but were “earned” over the course of the year. Upon termination, employees would be paid for the unused days they had earned up to that point in the year. Plaintiffs contend that under the old policy they earned vacation in each year for use in the next. Thus, they contend that by working in 1988 they had earned their vacation for 1989, which would have vested on 1 January 1989. The change in policy meant that in 1989 they were entitled to those days they had earned in 1988, in addition to whatever days they earned in 1989 under the new policy. Plaintiffs contend that the defendant failed to pay them for the days they had accrued under the old policy when they were terminated. On the other hand, defendants maintain that under the old policy the employees earned the vacation for each year merely by being in its employ on 31 December of one year and working on the first day in January of the next year. Under that interpretation, vacation was advanced at the beginning of each year, not earned in the previous one. The change in policy reflected only an accounting change, allowing the defendant to take the charges on its accounts over the course of the year, rather than on 1 January of each year. Defendant’s Appeal I. First, defendant argues that the trial court erred in failing to determine that the statute of limitations barred plaintiffs’ claim under the North Carolina Wage and Hour Act (the Act), N.C. Gen. Stat. §§ 95-25.1 to -25.25 (1989). We disagree. Plaintiffs brought this action, at least partly, under the Act to recover for vacation days they had not taken before they were terminated. The Act provides: No employer is required to provide vacation for employees. However, if an employer provides vacation for employees, the employer shall give all vacation time off or payment in lieu of time off in accordance with the company policy or practice. Employees shall be notified in accordance with G.S. 95-25.13 of any policy or practice which requires or results in loss or forfeiture of vacation time or pay. N.C.G.S. § 95-25.12. “Employees whose employment is discontinued for any reason shall be paid all wages due on or before the next regular payday. . . .” N.C.G.S. § 95-25.7. Vacation pay is included within the definition of “wage.” N.C.G.S. § 95-25.2. Claims for unpaid wages and benefits under the Act are subject to a two year statute of limitations. N.C.G.S. § 95-25.22(f). Defendant contends that the statute started to run on 21 December 1988 when it gave notice of the change in the vacation policy in accordance with section 95-25.12. As was recently made plain in Glover v. First Union National Bank, 109 N.C. App. 451, 428 S.E.2d 206 (1993), defendant’s argument is meritless. In that case the plaintiff sued the defendant to recover retirement benefits he was allegedly owed. The defendant argued that the statute of limitations barred his claim because any loss the plaintiff had suffered had occurred over twenty years previously when the retirement plan was amended. This Court rejected that argument, stating: “The statute begins to run on the date the promise is broken. In no event can the limitations period begin to run until the injured party is at liberty to sue.” Id. at 455, 428 S.E.2d 208 (citation omitted). In this case, the plaintiffs suffered no injury until the defendant failed to pay them for the vacation days they had allegedly earned in 1988. Defendant’s policy did not require it to pay cash for any unused vacation days until the employment was terminated. Therefore, no individual plaintiff had a cause of action until the next pay day after termination. The trial court correctly found that only those plaintiffs whose pay date next following termination preceded 3 April 1989 (two years prior to the filing of this action) were barred by section 95-25.22. We reject defendant’s first argument. Secondly, defendant argues that the Act displaces all other remedies in this situation so that its statute of limitations, which is shorter than those for plaintiffs’ common law actions, bars the entire action. Having found that the Act’s statute of limitations does not bar this, action, we need not address the defendant’s preemption argument. II. Defendant next argues that the trial court erred in concluding that it had breached any obligation to the plaintiffs, because the old policy unambiguously provided that employees did not earn vacation in one year for use in the next. We disagree. Defendant’s old vacation policy provided: First Year of Employment If you are hired prior to August 1, you are eligible for five (5) days of vacation during the current caléndar year after you have completed three (3) months of continuous service. You may take ten (10) days of vacation during the following calendar year. If you are hired on or after August 1, you are eligible for ten (10) days of vacation to be taken during the following calendar year after you have completed six (6) months of continuous service. In the event your employment is terminated . . . you will be paid for any untaken vacation that was earned and payable on January 1 of that calendar year. First, the trial court properly found that the defendant violated the Act by failing to pay plaintiffs for vacation days they had earned in 1988. Interpreted in its natural and ordinary meaning: [T]he Wage and Hour Act requires an employer to notify the employee in advance of the wages and benefits which he will earn and the conditions which must be met to earn them, and to pay those wages and benefits due when the employee has actually performed the work required to earn them. Narron v. Hardee’s Food Systems, Inc., 75 N.C. App. 579, 583, 331 S.E.2d 205, 208, disc. rev

SMEESTER v PUB-N-GRUB, INC (ON REMAND) Docket No. 165882. Submitted July 7, 1993, at Lansing. Decided January 17, 1995, at 9:10 a.m. Leave to appeal sought. Pamela Smeester brought an action in the Delta Circuit Court against Pub-N-Grub, Inc., her employer, seeking compensatory damages for wage loss, loss of earning capacity, medical expenses, and intangible damages for injuries sustained during the course of her employment. The defendant did not carry worker’s compensation insurance. The court, Dean J. Shipman, J., granted partial summary disposition for both parties, denying the defendant’s affirmative defenses and limiting damages to compensation available under the Worker’s Disability Compensation Act. The Court of Appeals, Gims, P.J., and Michael J, Kelly and Gribbs, JJ., reversed, holding that both common-law damages and defenses not abolished by statute are available in a civil action, and finding that the trial court erred in limiting both in such a manner that the action became a duplicate of a worker’s compensation proceeding. 192 Mich App 224 (1991). The Supreme Court vacated the judgment of the Court of Appeals and remanded for a determination by the Court of Appeals "whether, in a cause of action brought pursuant to MCL 418.641(2); MSA 17.237(641X2), an employee may recover damages without first having to show the negligence of the employer.” The Court further ordered that the Court of Appeals, if the record is sufficient, "decide the standard of liability, the defenses available, and the scope of recovery.” 442 Mich 404, 408 (1993). On remand, the Court of Appeals held: 1. A common-law action brought pursuant to § 641(2) does not act as an election of remedies; rather, § 641(2) imposes common-law liability in addition to, not as a substitute for, the benefits recoverable under the Worker’s Disability Compensation Act. 2. A common-law action brought pursuant to § 641(2) requires proof that the employer was in some respect negligent. 3. An employer in a common-law action for damages brought by an employee pursuant to § 641(2) may not raise as a defense the negligence of the employee, except to the extent that the employee’s negligence is wilful. References Am Jur 2d, Workers’ Compensation §§ 52, 66, 108. See ALR Index under Workers’ Compensation. 4. An employee bringing a common-law action pursuant to § 641(2) is not limited to recovering as damages only those amounts that are payable as benefits under the Worker’s Disability Compensation Act. Reversed and remanded. Worker’s Compensation — Employer Tort Liability — Negligence — Defenses — Damages. The common-law action of an employee against an employer permitted under the Worker’s Disability Compensation Act where the employer is not insured pursuant to the act does not act as an election of remedies, but rather imposes common-law liability in addition to, not as a substitute for, worker’s compensation benefits; in such a common-law action, negligence is an element of the employee’s cause of action against the employer, the employee’s negligence is a defense to the action only to the extent that the employee’s negligence is wilful, and the damages recoverable by the employee are not limited to that which is payable as benefits under the Worker’s Disability Compensation Act (MCL 418.641[2]; MSA 17.237[641][2]). Green, Renner, Weisse, Rettig, Rademacher & Clark, P.C. (by Richard C. Clark), for the plaintiff. Stupak & Bergman, P.C. (by Frank A. Stupak), for the defendant. ON REMAND Before: Gribbs, P.J., and Michael J. Kelly and Griffin, JJ. Gribbs, P.J. Previously, this Court held that both common-law damages and defenses not abolished by statute were available in a civil action under § 641(2) of the Worker’s Disability Compensation Act (wdca), MCL 418.641(2); MSA 17.237(641)(2), when an employee sues an employer for an injury such that, had the employer been insured as required by §§ 171 and 611 of the wdca, MCL 418.171, 418.611; MSA 17.237(171), 17.237(611), suit would be prohibited by the exclusive remedy provision of § 131 of the wdca, MCL 418.131; MSA 17.237(131). Smeester v Pub-N-Grub, Inc, 192 Mich App 224, 480 NW2d 329 (1991). The Supreme Court, however, found our opinion unclear and subject to conflicting interpretation and, accordingly, remanded for a determination "whether, in a cause of action brought pursuant to MCL 418.641(2); MSA 17.237(641X2), an employee may recover damages without first having to show the negligence of the employer.” The Court further ordered that, if this Court finds the record sufficient to make such determination, we are to "decide the standard of liability, the defenses available, and the scope of recovery.” If, however, the record is insufficient to that end, this Court is required to remand to the trial court for further development of the record. Smeester v Pub-N-Grub, Inc, 442 Mich 404, 408; 500 NW2d 742 (1993). Plaintiff, Pamela Smeester, was injured in the course of her employment at defendant, Pub-N-Grub, Inc., shortly after she was hired. When she submitted her medical bills to the employer, both parties discovered that defendant did not carry worker’s compensation insurance. Plaintiff then brought this civil action, seeking traditional tort damages for her injury pursuant to § 641(2) of the WDCA. The trial court granted plaintiffs motion in limine to disallow comparative negligence as an affirmative defense. Although no appeal was taken by defendant from that decision, the propriety' of that ruling appears to be one of the issues we are constrained by the Supreme Court’s order of remand to evaluate. The order that originally generated this appeal was one in which the trial court granted defendant’s motion to limit plaintiffs damages to what she otherwise could have recovered under the wdca. We granted leave to appeal and originally held that common-law damages are available in a civil action of this nature. We held that such an action is not duplicative of a worker’s compensation proceeding. By the terms of the Supreme Court’s order of remand, that is another issue we must reconsider. Two sections of the wdca apply to these problems. Section 641(2) provides: The employee of an employer who violates the provisions of section 171 or 611 shall be entitled to recover damages from the employer in a civil action because of an injury that arose out of and in the course of employment notwithstanding the provisions of section 131. The other directly applicable statutory provision is §141, MCL 418.141; MSA 17.237(141), which provides: In an action to recover damages for personal injury sustained by an employee in the course of his employment or for death resulting from personal injuries so sustained it shall not be a defense: (a) That the employee was negligent, unless it shall appear that such negligence was wilful. (b) That the injury was caused by the negligence of a fellow employee. (c) That the employee had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances. The wdca is remedial in nature and is to be construed liberally in a humanitarian manner in favor of injured employees. McGillis v Aida Engineering, Inc, 161 Mich App 370, 374; 410 NW2d 817 (1987). However, because § 641 appears to restore the employee’s common-law right to sue the employer, a cause of action otherwise eliminated by § 131, limitations on that common-law action will not be presumed lightly, and statutes will not be extended by implication to abrogate established rules of the common law. Hasty v Broughton, 133 Mich App 107, 113; 348 NW2d 299 (1984). Courts indulge a presumption that the Legislature is familiar with the rules of statutory construction and has drafted its enactments accordingly. People v Jones, 190 Mich App 509, 513; 476 NW2d 646 (1991). We note that § 641 does not, as did the corresponding provision in the original version of the Workmen’s Compensation Act, 1912 (1st Ex Sess) PA 10, part 6, § 1, declare that pursuit of such a common-law action constitutes an election of remedies. See Twork v Munising Paper Co, 275 Mich 174, 179; 266 NW 311 (1936). We hold that the wdca does not absolve an employer who is uninsured from nonetheless remaining liable under its provisions for statutory benefits. Section 641(1) delineates criminal sanctions and § 641(2) imposes common-law liability in addition to, but not as a substitute for, benefits recoverable under the WDCA. What, then, is the nature of this common-law action? As we previously held, such an action is one in tort, for which traditional tort damages, including those for emotional distress and loss of consortium, may be recovered. The common-law action is one in the nature of trespass on the case, in which the plaintiff must prove that the employer was in some respect negligent as a precondition to recovery. Viaene v Mikel, 349 Mich 533, 539; 84 NW2d 765 (1957); Brown v Standard Oil Co, 309 Mich 101; 14 NW2d 797 (1944); Williams v Sealander, 288 Mich 617; 286 NW 101 (1939); Erickson v Leach, 285 Mich 554, 558; 281 NW 324 (1938); Frost v Clement, 225 Mich 267, 269; 196 NW 324 (1923); Smith v Hyne, 208 Mich 334, 347; 175 NW 293 (1919); Lydman v De Haas, 185 Mich 128, 139; 151 NW 718 (1915). While the foregoing cases were decided before the enactment of § 641, that provision simply restores the common-law right of action abolished by § 131 under the described circumstances. Therefore, it is appropriate to turn to the common-law principles that obtained before the adoption of § 641 to determine the nature of the common-law action thus resurrected. Turning our attention to the question of comparative negligence, we note that Michigan’s appellate courts in some situations have extended comparative negligence so as to apply it to situations in which, before the adoption of comparative negligence in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), contributory negligence was no defense. Vining v Detroit, 162 Mich App 720, 724-728; 413 NW2d 486 (1987); Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29, 38; 323 NW2d 270 (1982). Nonetheless, § 141(a) clearly precludes consideration of anything but the plaintiffs wilful negligence in defense of the common-law action restored in § 641(2). Section 141 likewise renders inapposite the doctrine of assumption of risk, in all its manifold forms. Thus, an employee who falls victim to unsafe working conditions that the employee was fully aware of, and the hazard of which the employee readily might have avoided in the exercise of due care, is within the doctrine of assumption of risk and foreclosed as a defense by § 141(c). Wulff v Bossler, 199 Mich 70; 165 NW 1048 (1917). Indeed, in effect, § 141 abolishes all or nearly all recognized common-law defenses. Erickson v Leach, supra. Nothing in the wdca purports to limit the damages recoverable in an action under § 641(2) in comparison with those otherwise available in a personal injury action sounding in tort. However, generally, it is abhorrent to the fundamental principles of the wdca to allow any form of double recovery. Stanley v Hinchliffe & Kenner, 395 Mich 645, 657; 238 NW2d 13 (1976). Accordingly, if, as in Viaene v Mikel, supra, an employee successfully has pursued and recovered benefits in a worker’s disability compensation proceeding, or been voluntarily awarded benefits, any such benefits must be subtracted from the recovery awarded by the trier of fact in a common-law action under § 641(2). See Mayhew v Berrien County Rd Comm, 414 Mich 399; 326 NW2d 366 (1982); Borchardt-Spicer v GAF Corp, 139 Mich App 658; 362 NW2d 728 (1984). Judgment then may be entered on the verdict thus adjusted. The circuit court erred in determining that an action such as the present one under § 641(2) essentially is duplicative of a worker’s compensation proceeding. There would be no point to pursuing such a common-law remedy, with its requirement that the plaintiff prove fault, when the same recovery could be had in a worker’s compensation proceeding without the necessity or risk of adducing proof of employer negligence. This common-law action is principally one for damages not otherwise recoverable within the worker’s compensation system, although, if the present plaintiff has not yet received such benefits, she may plead and prove such damages on trial of this case. Should she fail to prove negligence, however, she can revert to the administrative remedy, which is not preconditioned on proof of employer fault. Viaene v Mikel, supra. Accordingly, we hold: (1) negligence is an element of an employee’s cause of action against an employer under § 641(2); (2) an employer may not assert as a defense the negligence of the employee, unless that negligence is wilful, MCL 418*141; MSA 17.237(141); and (3) an employee’s damages are not limited to the worker’s compensation benefits available pursuant to the wdca. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

FAULKNER v FLOWERS Docket No. 169088. Submitted May 11, 1994, at Marquette. Decided September 6, 1994, at 9:10 a.m. Deborah Faulkner and Debra Holbrook brought an action in the Luce Circuit Court against Gerald and Helen Flowers, alleging that the defendants violated the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., when they discharged the plaintiffs from employment after the plaintiffs indicated that they were going to report certain business practices of the defendants to the Internal Revenue Service. The court, Charles Stark, J., granted summary disposition for the defendants, finding it lacked subject-matter jurisdiction because the plaintiffs had filed a complaint with the Department of Labor, pursuant to the wage and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq., shortly after being fired, and the administrative proceeding was still being pursued. The plaintiffs appealed. The Court of Appeals held: A plaintiff may initiate a cause of action in the circuit court under the Whistleblowers’ Protection Act while at the same time pursuing administrative rights under the wage and fringe benefits act. The two acts provide differing remedies and encompass differing, but not conflicting, goals. The plaintiffs’ complaint satisfies the requirements of both acts. The Legislature provided overlapping remedies for an employee whose employment is terminated for reporting wage and fringe benefits violations. Reversed and remanded. Actions — Employment — Retaliatory Discharge — Whistleblowers’ Protection Act — Wage and Fringe Benefits Act. The Legislature has provided overlapping remedies for an employee whose employment is terminated for reporting wage and fringe benefits violations by an employer; the employee may initiate a cause of action in the circuit court alleging a violation of the Whistleblowers’ Protection Act while at the same time pursuing administrative rights under the wage and fringe benefits act (MCL 15.361 et seq., 408.471 et seq.; MSA 17.428[1] et seq., 17.277[1] et seq.). References Am Jur 2d, Labor and Labor Relations, § 4451; Wrongful Discharge, §§ 55-57, 216, 241. Liability for discharging at-will employee for refusing to participate in, or for disclosing, unlawful or unethical acts of employer or coemployees. 9 ALR4th 329. Employee’s protection under § 15 (a) (3) of Fair Labor Standards Act (29 USCS § 215 (a) (3)). 101 ALR Fed 220. John H. Underhill, P.C. (by John H. Underhill'), for the plaintiffs. Moher & Cannello, P.C. (by Timothy S. Moher), for the defendants. Before: Mackenzie, P.J., and Neff and R. L. Olzark, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Neff, J. Plaintiffs appeal as of right from an order of the circuit court granting summary disposition to defendants. The circuit court determined it was without subject-matter jurisdiction to hear plaintiffs’ case, which was based on the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., because plaintiffs had already initiated an administrative action with the Department of Labor pursuant to the wage and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq. We reverse the order granting summary disposition to defendants and remand this case to the circuit court for further proceedings. i Plaintiffs worked at defendants’ establishment as waitresses, cooks, and bartenders. Plaintiffs were allegedly required to put all of the tips they received into a jar, so that defendants could take half of the tips for themselves. When plaintiffs allegedly challenged this practice by claiming they would report defendants to the Internal Revenue Service, they were discharged by defendants. Shortly after being fired, plaintiffs filed a complaint with the Department of Labor pursuant to the wage and fringe benefits act. Shortly thereafter, and while the administrative proceeding was continuing, plaintiffs filed the instant suit in the circuit court. ii A When reviewing a motion for summary disposition under MCR 2.116(C)(4), this Court must determine whether the pleadings demonstrate that the defendant was entitled to a judgment as a matter of law, or whether the affidavits and other proofs show that there was no genuine issue of material fact. MCR 2.116(G)(2) and 2.116(I)(1); Sargent v Browning-Ferris Industries, 167 Mich App 29, 33; 421 NW2d 563 (1988). B The relevant portion of the wpa, MCL 15.362; MSA 17.428(2), provides: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. The wage and fringe benefits act provides for the time and manner in which employees receive compensation. The provision relevant to this case, MCL 408.483(2); MSA 17.277(13X2), provides: An employee who believes that he or she is discharged or otherwise discriminated against by an employer in violation of this section may file a complaint with the department alleging the discrimination within 30 days after the violation occurs. Upon receipt of the complaint, the department shall cause an investigation to be made. If, upon the investigation, the department determines that this section was violated, the department shall order the rehiring or reinstatement of an employee to his or her former position with back pay. Defendants argued below that the trial court was without subject-matter jurisdiction to hear plaintiffs’ claim because, once plaintiffs initiated the administrative proceeding with the Department of Labor, exclusive jurisdiction vested with that administrative agency. c The court below relied primarily on this Court’s opinions in Cockels v Int’l Business Expositions, Inc, 159 Mich App 30; 406 NW2d 465 (1987), and Murphy v Sears, Roebuck & Co, 190 Mich App 384; 476 NW2d 639 (1991), in support of its determination. In Cockels, this Court dealt with whether the provision of the wage and fringe benefits act regarding retaliatory dismissals provided an exclusive or cumulative remedy with respect to the common law. See Murphy, supra at 387. It did not deal with whether that remedy provision is exclusive when a separate statutory provision is involved. In Murphy, the question before this Court was whether a plaintiff must proceed with administrative remedies pursuant to the wage and fringe benefits act where that plaintiff also had an independent common-law remedy. This Court determined that the plaintiff may follow either course, but then, in dicta, went on to state that once an employee chooses to pursue the administrative remedy, that remedy must be utilized exclusively, including an appeal to the circuit court. [Id. at 388.] Plaintiffs here, rather than basing their civil complaint on a common-law remedy, seek their remedy pursuant to the wpa, a separate statutory scheme, which itself creates new rights and imposes new duties. See Tyrna v Adamo, Inc, 159 Mich App 592, 599-600; 407 NW2d 47 (1987). Accordingly, both Cockels, supra, and Murphy, supra, are distinguishable from this case. See, e.g., Tyrna, supra at 598-599. D On appeal, both parties rely on Shuttleworth v Riverside Osteopathic Hosp, 191 Mich App 25, 27; 477 NW2d 453 (1991), wherein this Court determined that no common-law cause of action predated the wpa, and that the statute’s remedy provision was exclusive. Accordingly, this Court upheld the dismissal of the plaintiffs complaint that purported to be based on a common-law whistleblowers’ theory. Id. After this dispositive ruling was made, this Court, in dicta, also addressed whether a separate remedy was available to the plaintiff under the Michigan Occupational Safety and Health Act (miosha), MCL 408.1001 et seq.; MSA 17.50(1) et seq. Shuttleworth, supra at 28. This Court determined that the plaintiff had a separate remedy under the miosha, and then stated that "before resorting to a civil action, [the plaintiff] first must have pursued the administrative remedies contained in the miosha.” Id. Because this language is dicta, we decline to follow it. E We find this Court’s opinion in Tyrna, supra, to be most applicable here. In Tyrna, this Court determined that a plaintiff could initiate a cause of action in a civil court under the wpa, while at the same time pursuing administrative rights under the miosha. Id. at 600-601. The plaintiff in Tyrna was fired after reporting a safety violation to various local officials. Id. at 596. The plaintiff filed her miosha complaint after she was fired. Id. at 596-597. This Court began its analysis by examining the purposes behind the two statutes, noting that they overlapped, and determining that the plaintiffs reporting of the violation satisfied the requirements of both statutes. Id. at 599. This Court then held that the Legislature has provided overlapping remedies for an employee whose employment is terminated in retaliation for such reporting. The Legislature has not provided that the employee must pursue only one statutory remedy. [Id.] This Court also determined that the scope of the remedies provided by the wpa differed somewhat from those offered by the miosha. Id. at 600. Accordingly, this Court stated that "we see no reason, without further legislative direction, that plaintiff should not be able to pursue a cause of action under both statutes.” Id. at 600-601. Similarly, here, the wage and fringe benefits act and the wpa provide differing remedies and encompass differing, but not conflicting, goals. The preamble to the wage and fringe benefits act provides: An act to regulate the time and manner of payment of wages and fringe benefits to employees; to prescribe rights and responsibilities of employers and employees, and the powers and duties of the department of labor ... to provide for settlement of disputes regarding wages and fringe benefits; to prohibit certain practices by employers; to prescribe penalties and remedies. Thus, the goals of that act relate to wage and fringe benefits issues between an employee and an employer. These goals are narrower than those of the wpa. The goals of the wpa, according to this Court’s opinion in Hopkins v Midland, 158 Mich App 361, 374; 404 NW2d 744 (1987), are "to protect the integrity of the law by removing barriers to employee efforts to report violations of the law,” and "to protect the public by protecting employees who report violations of laws and regulations.” This applies broadly to "reporting to any public body a violation of any law or regulation of this state, a political subdivision, or the United States. MCL 15.362; MSA 17.428(2).” Tyrna, supra at 599. Plaintiffs’ complaint in this case, like that in Tyrna, supra, satisfies the requirements of both statutes. in We hold that the Legislature has provided overlapping remedies for an employee whose employment is terminated for reporting wage and fringe benefits violations. We find it within the legislative intent for a plaintiff to pursue a wpa cause of action even though that plaintiff has already initiated a wage and fringe benefits act administrative proceeding. The wpa provides remedies not available in the wage and fringe benefits act, cf. MCL 408.483(2); MSA 17.277(13X2) with MCL 15.364; MSA 17.428(4); see also Tyrna, supra at 600. There are no conflicts between the remedies provided, and the goals of the two statutes are complementary. In addition, if plaintiffs were to be relegated to their wage and fringe benefits act remedy, they could lose their wpa remedies if the resolution of the wage and fringe benefits act claims took longer than ninety days from the occurrence of the alleged violations. See MCL 15.363(1); MSA 17.428(3) (1). Thus, our holding here serves the beneficial purpose of allowing an harmonious reading of both statutes. See House Speaker v State Administrative Bd, 441 Mich 547, 568-569; 495 NW2d 539 (1993). Accordingly, we reverse the lower court’s determination that it lacked subject-matter jurisdiction to hear plaintiffs’ case and remand this case for further proceedings consistent with this opinion. Reversed and remanded. We do not retain jurisdiction.