Wrongful Termination Cases

School Committee of Chicopee vs. Chicopee Education Association. No. 10-P-387. Hampden. November 8, 2010. September 8, 2011. Present: Berry, Smith, & Green, JJ. School and School Committee, Arbitration, Termination of employment. Arbitration, School committee, Vacating award, Authority of arbitrator, Collective bargaining. Contract, Collective bargaining, Arbitration. Labor, Collective bargaining, Arbitration. Public Employment, Collective bargaining. In a civil action challenging the decision of an arbitrator reinstating to his former position a teacher who had been terminated for improper use of a sick day and insubordinate conduct, the judge erred in confirming the arbitration award, where the arbitrator exceeded the authority provided to him under G. L. c. 71, § 42, and improperly crafted his decision and award entirely from the assumption that the parties’ collective bargaining agreement controlled. [364-366] Civil action commenced in the Superior Court Department on October 15, 2008. The case was heard by Peter A. Veils, J., on motions for judgment on the pleadings. Gordon D. Quinn for the plaintiff. Matthew D. Jones for the defendant. Smith, J. In June of 2007, Chicopee high school teacher Gary Sroka was terminated by the school committee of Chicopee (school committee) for improper use of a sick day and insubordinate conduct. Represented by the defendant Chicopee Education Association (association), Sroka grieved the dismissal under his union’s collective bargaining agreement, and the matter proceeded to arbitration. Following a hearing, the arbitrator issued a decision reinstating Sroka to his former position. The plaintiff school committee sought to vacate the award, but a Superior Court judge denied its application and instead confirmed the award. The school committee now appeals, arguing that the arbitrator’s decision both exceeded his authority and violated public policy. 1. Background. The following facts, taken from the arbitrator’s decision, are undisputed. Sroka began working at Chicopee high school in 2000, when the school committee hired him as a special education teacher. A few years later, he was assigned to teach social studies and history. Before the events leading to his dismissal, Sroka already had established a disciplinary history at the school for using profanity in front of students and other teachers. The school was also aware that Sroka suffered from various mental health issues. During the 2004-2005 school year, he received an accommodation in his school schedule because of a diagnosis of attention deficit hyperactivity disorder. In 2005, Sroka took a leave of absence to recover from depression, and in early 2007, evidence was presented in connection with a profanity-related suspension that he suffered from anxiety. Against this backdrop, the events leading up to Sroka’s dismissal are as follows. In May, 2007, the school department of Chicopee planned to hold an “armed services career day” on May 21, 2007, mandating attendance by all high school students and teachers. Fueled by his negative feelings about the United States’ involvement in the war in Iraq, and based on his belief that the event would send an inappropriate message to young and impressionable students, Sroka decided to organize a protest of it. To that end, he, his son, and some friends made protest signs and pamphlets to hand out during the event. When he arrived at school on May 21, however, Sroka noticed that the school building had been vandalized with antiwar comments. Knowing he would be a suspect, Sroka called off the protest and informed the school’s principal, Roland R. Joyal, Jr., that he did not commit the vandalism but that he knew who probably did. After his conversation with Joyal, Sroka again changed his mind about the protest and, seeing that his students had already gone to the event, took his protest signs and protested from the event’s perimeter. At some point thereafter, Joyal noticed the protest and told Sroka to return to class. Sroka did so, but shortly thereafter he felt suddenly anxious and went home sick. That night, Sroka called in sick for the following day. He also got in touch with his son’s friend, Barry Scott, who he believed committed the vandalism. Sroka convinced Scott to turn himself in, and in a show of support, Sroka accompanied Scott to court the next day. While there, Sroka continued his protest outside the courthouse and told a reporter that “a little defacement of a public building is a lot less than the crimes being committed at Chicopee High School by trying to seduce these young children to join the military.” The following day, May 23, 2007, Sroka reported to school as usual. As the day progressed, however, Sroka began to engage in odd behavior. While monitoring a test, he posted a sign stating: “Rogue Teacher Beware.” Later, when he noticed that his classroom computer was missing, he wrote his department chairperson a note stating that he believed a crime had been committed, that the police should be notified, and that “I believe an incredible ‘moral’ crime is about to be [committed] by the administration of [Chicopee High School]. (Know I forgive you and will pray for you all!)” A short time later, during the school lunch break, Sroka apparently felt compelled to continue the protest. Joyal later found him walking outside, barefoot, with his pant legs partially rolled up, wearing an olive green military coat and hat, bearing a protest sign, and beating a bongo drum. When Joyal informed Sroka that it was time for him to return to teach his class, Sroka insisted, “I’m not Gary Sroka, I’m Sergeant Pepper.” At that point, Joyal observed that Sroka did, indeed, appear to be dressed as a member of Sergeant Pepper’s Lonely Hearts Club Band. Despite several further warnings that his refusal would constitute insubordination and result in disciplinary action, Sroka continued in what he described as his “guerilla theater” efforts and headed toward the center of Chicopee. He was placed on administrative leave later the same day, and in June of 2007, his employment was terminated for insubordinate conduct, improper use of a sick day, and his prior disciplinary record. Following the May 23 incident, Sroka sought professional help and was diagnosed with bipolar II disorder. His treating psychiatrist, Dr. Bennett Gaev, reported to the school committee by letter dated June 18, 2007, that prior to their initial June 5 appointment, Sroka was “hypomanic.” In deposition testimony, Dr. Gaev further opined that antidepressant medication Sroka had been taking for years to treat depression “was wrong and may have been responsible for . . . Sroka’s behavior on May 22nd and May 23rd.” Sroka was prescribed mood stabilizing medication to treat his disorder, and he has since reported feeling better than he has in years. a. The arbitration proceeding. In March, 2008, the parties, proceeding under the grievance procedure outlined in the collective bargaining agreement between the school committee and the association, submitted the matter to arbitration. In addition to two days of hearings, the record before the arbitrator included the deposition testimony of Dr. Gaev, as well as extensive posthearing briefs. The parties focused their arguments in large part on the significance of Sroka’s alleged mental disorder. The association maintained that once the school committee had notice of Sroka’s mental health issues, it should have engaged in further inquiry. Thereafter, if the issues raised were determined to be valid, it could have provided an appropriate accommodation for Sroka’s disability. The association argued in the alternative that the dismissal was simply too harsh a penalty for Sroka’s conduct, especially if mitigated by the mental health component. The association lastly remarked that Sroka’s past record should not have been considered because it was unrelated to the incidents precipitating the dismissal. The school committee, on the other hand, argued that Sroka should be held fully accountable for his conduct. As to the sick day, it noted that Sroka indisputably was engaged in several activities, including going to the courthouse and using an online grading system, that indicated he was not, in fact, sick at that time. As to his “guerilla theater” activities and ultimate refusal to teach his class, the school committee argued that any mental health problems suffered by Sroka had not been proven. In support of that contention, it suggested that Dr. Gaev’s letters and deposition testimony were unreliable and deserved no evidentiary weight because they had been offered in an attempt to help Sroka get his job back. The school committee also pointed to Dr. Gaev’s only having met with Sroka for two short sessions, and his failure to take into account key elements associated with hypomanic episodes, as described in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV), in reaching his diagnosis of bipolar II disorder. Finally, the school committee cited previous arbitration decisions in arguing that an employee’s mental health lapse may not alter a disciplinary sanction properly resulting from the conduct in question. b. The arbitration decision. The arbitrator issued his decision in September, 2008. He framed the issue, as stipulated to by the parties, as follows: “Did the School Committee have just cause to discharge the grievant, Gary Sroka, in June 2007? If not what shall be the remedy?” In a footnote to the reference, the arbitrator cited to the paragraph of the agreement providing that “[n]o teacher will be disciplined. . . without just cause.” The arbitrator then found that notwithstanding the medical evidence, just cause for discipline existed as to both the apparent sick leave violation and the insubordination. He nevertheless concluded that, “in line with principles of progressive discipline,” the punishment imposed was not commensurate with the violations committed. In reaching that conclusion, the arbitrator noted that Sroka’s disciplinary history was completely unrelated to the present offenses, and that Sroka had not been given prior warnings about this type of behavior. He further observed that the excessive level of discipline “suggests that indeed the [school committee] took offense at what it considered Sroka’s embarrassing and inappropriate antics.” The arbitrator next considered the effect, if any, of the medical evidence of Sroka’s diagnosis of bipolar II disorder on the outcome of the case. Discounting the evidence on the one hand, the arbitrator stated that Sroka “must face up to his wrongdoing and accept the consequences.” On the other hand, and “[assuming without deciding,” the arbitrator observed that Sroka likely was entitled to an accommodation for his mental illness under the Americans with Disabilities Act, and that, under Massachusetts law, he could not be fired for conduct that was the result of that medical condition. In the end, the arbitrator reinstated Sroka to his former position because, “under either analysis,” the discipline imposed on Sroka was too harsh. c. Application to vacate the award. The school committee thereafter applied in the Superior Court pursuant to G. L. c. 150C, § 11, to vacate the award, arguing that the arbitrator exceeded his authority and that the award violated public policy. In support of its application as to the former, the school committee cited G. L. c. 71, § 42, the teacher dismissal statute, arguing that it precludes an arbitrator from performing a just cause analysis of a termination. Under G. L. c. 71, § 42, as appearing in St. 1993, c. 71, § 44, a teacher with professional status may be dismissed only for “inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure ... to satisfy teacher performance standards ... or other just cause.” The statute further provides that a teacher may seek review of a dismissal by arbitration, and places the burden on the school committee to prove the “just cause” that served as grounds for dismissal. In reviewing a dismissal, an arbitrator is to “consider the best interests of the pupils in the district and the need for elevation of performance standards.” G. L. c. 71, § 42. In accordance with that statute, the school committee claimed that once it had proven Sroka engaged in the conduct in question, the arbitrator had no choice but to uphold the dismissal, and in reinstating Sroka, the arbitrator improperly substituted his judgment for that of the school committee. In support of this proposition, the school committee relied heavily on Justice Cordy’s concurring opinion in School Dist. of Beverly v. Geller, 435 Mass. 223, 231-232 (2001) (Getter). In Getter, the court applied the statute in the context of a teacher who had been dismissed for conduct unbecoming a teacher after the school district fielded multiple complaints that the teacher had used physical force against his sixth grade students. Id. at 226. The court issued a plurality opinion, with Justice Cordy deciding that proper interpretation of the statute “precludes the arbitrator from conducting a further ‘just cause analysis’ (e.g., weighing the teacher’s prior record against the misconduct for the purpose of justifying a different sanction) once he has found that one of the enumerated grounds for dismissal has been proved.” Id. at 234. A majority of the court, however, did not agree with Justice Cordy’s interpretation of the statute. d. The motion judge’s decision. On cross motions for judgment on the pleadings, a Superior Court judge confirmed the award. In his decision, the judge concluded that under the deferential standard applied to arbitrators’ decisions, absent a showing of fraud, the arbitrator’s decision in this case was indisputable. In response to the school committee’s citation to Getter and G. L. c. 71, § 42, the judge observed that Getter is a plurality decision in which “more questions [are] left open than answered.” He also distinguished the case on the basis of the underlying facts. As to public policy, the judge ruled that the school committee had failed to make out a prima facie showing because it could not point to a “defined, dominant, and visible” public policy that had been violated. The school committee timely appealed, restating the arguments it advanced before the motion judge. 2. Discussion. It is a well-settled principle of law that arbitration awards are subject to a narrow scope of review, and that “[ajbsent fraud, errors of law or fact are not sufficient grounds to set aside an [arbitration] award.” Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990). “The strong public policy favoring arbitration requires us to uphold an arbitrator’s decision even where it is wrong on the facts or the law, and whether it is wise or foolish, clear or ambiguous.” Boston v. Boston Police Patrolmen’s Assn., 443 Mass. 813, 818 (2005). Consistent with the limited scope of arbitral determinations, the Supreme Judicial Court recently cautioned that a court “should not . . . undertake] what in effect [is] an independent, de novo evaluation of the evidence before the arbitrator.” School Comm. of Lowell v. Robishaw, 456 Mass. 653, 665 n.11 (2010). In addition to these principles of judicial review, the language of G. L. c. 71, § 42, further provides that dismissal decisions be subject to judicial review as provided in G. L. c. 150C. Pursuant to G. L. c. 150C, § 11, a judge in the Superior Court “shall vacate” an arbitrator’s award on a party’s application if, among other enumerated grounds, “the arbitrators exceeded their powers or rendered an award requiring a person to commit an act or engage in conduct prohibited by state or federal law.” School Comm. of Lowell v. Robishaw, supra at 660, quoting from G. L. c. 150C, § 11. A foundational step in any arbitration case is determining the source and limit of an arbitrator’s authority. Ordinarily, the authority of an arbitrator is derived entirely from the parties’ collective bargaining agreement, and is accordingly limited by the terms of that agreement. See School Comm. of Waltham v. Waltham Educators Assn., 398 Mass. 703, 706-707 (1986); Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. at 1007. In this case, the arbitrator and the motion judge proceeded on the assumption that the arbitrator’s authority was so derived. A majority of the court in Getter made clear, however, that under the circumstances of this case, those assumptions were faulty. Before diverging in their opinion regarding the limits G. L. c. 71, § 42, places on arbitral review, Justice Cordy, in his concurring opinion, and Justice Cowin, in her dissent, each observed that § 42 serves as the source and limit of an arbitrator’s authority in teacher dismissal cases, regardless of the provisions of a collective bargaining agreement. See Geller, 435 Mass. at 230 n.5 (Cordy, J., concurring) (notwithstanding citation to § 42 in the reference, “the parties could not properly authorize the arbitrator to act beyond his statutory authority in any event”); id. at 240 (Cowin, J., dissenting) (“The authority to arbitrate the dismissal of a teacher with professional teacher status is derived from statute rather than from contractual agreement”). Thus, despite the court’s plurality opinion, Getter holds that in the context of teacher dismissal, an arbitrator may not “ignore the limits imposed by statute” and craft a decision grounded in the authority provided by a collective bargaining agreement. Ibid. See School Comm. of Lowell v. Vong Oung, 72 Mass. App. Ct. 698, 705 (2008). It is undisputed, and apparent from the record, that the arbitrator in this case crafted his decision and award entirely from the assumption that the parties’ collective bargaining agreement controlled, and apparently unaware of the authority, standards of review, and dictates of G. L. c. 71, § 42. The statute is mentioned nowhere in the arbitrator’s decision, nor are the considerations of the “best interests of the pupils in the district and the need for elevation of performance standards.” The decision is instead based entirely on the premise that the collective bargaining agreement is the source and scope of authority. Thus, unlike in Geller, the decision here was fatally flawed from the start, as the arbitrator never even attempted to apply § 42 review to the case. Viewing the case through the wrong lens, he necessarily exceeded the authority provided to him under the statute. We need go no further in our analysis. The judgment of the Superior Court confirming the arbitration award is vacated, and a new judgment shall enter vacating the award. So ordered. In 2004, Sroka was issued a written warning for raising his voice and swearing to his social studies supervisor. In 2005, he was given a three-day suspension for telling a student, “I don’t want to take this attitude shit from you,” and telling another student, “[Yjou’re fucking out of here,” while pointing at the door. Later, in April of 2007, Sroka received another three-day suspension, reduced from five days, for uttering the word “shit” in the classroom. A Beatles album released in 1967, with cover art depicting the members of the band dressed in military attire. Dr Gaev admitted in his deposition testimony that he penned a November 5, 2007, letter to enable Sroka “to get his job back.” On the basis of the record before us, we are unable to determine if the application of G. L. c. 71, § 42, was raised during the arbitration proceedings. General Laws c. 71, § 42, was enacted as part of the Education Reform Act of 1993. See School Dist. of Beverly v. Geller, 435 Mass. 223, 225 n.1 (2001) (Cordy, 1, concurring). The relevant text of the statute is as follows: “A teacher with professional teacher status, pursuant to section forty-one, shall not be dismissed exc

Pius Awuah & others vs. Coverall North America, Inc. Suffolk. May 3, 2011. -August 31, 2011. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ. Labor, Wages. Massachusetts Wage Act. Contract, Employment. Workers’ Compensation Act, Premium, Costs. Statute, Construction. Public Policy. Words, “Special contracts,” “Damages incurred,” “Franchise fees.” This court concluded that under the Massachusetts Wage Act (act), a franchisor may not lawfully use “customer accounts-receivable” financing to pay a franchisee who is characterized as an employee under the act; further, this court concluded that an employer could not lawfully withhold wages to an employee even if the employer and the employee have agreed that such wages are not earned until a customer remits payment. [490-493] This court concluded that under the Massachusetts Wage Act (act), the damages incurred for which a misclassified worker can seek recompense under the act include costs that an employer statutorily must bear, in particular, workers’ compensation insurance; further, this court concluded that an employee and his employer could not lawfully agree that the employee will pay some or all of the cost of workers’ compensation or other insurance procured to alleviate the liability of the employer. [493-497] This court concluded that fees such as “franchise fees,” i.e., fees that an employee agrees to pay an employer in order to enter into a direct employment relationship with the employer, constitute special contracts that, in substance, operate to require employees to buy their jobs from employers and, in that respect, violate public policy. [497-499] Certification of questions of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts. Shannon Liss-Riordan (Hillary Schwab with her) for the plaintiffs. Michael D. Vhay (.Norman M. Leon, of Illinois, & Matthew Iverson with him) for the defendant. The following submitted briefs for amici curiae: Catherine Ruckelshaus, of New York, & Audrey R. Richardson for Brazilian Immigrant Center & others. Eric H. Karp, Doris M. Fournier, Robert K. Sawyer, Jr., & Adam N. Lewis for International Franchise Association & others. Martha Coakley, Attorney General, & Karla E. Zarbo, Assistant Attorney General, for the Commonwealth. Denisse Pineda, Jai Prem, Richard Barrientos, Anthony Graffeo, Manuel DaSilva, Aldivar Brandao, Benecira Cavalcante, and Geraldo Correia. We note that some of the plaintiffs’ claims have been resolved in part or in whole. Botsford, J. A judge of the United States District Court for the District of Massachusetts mled in a case filed in that court that the defendant, Coverall North America, Inc., misclassified as independent contractors those plaintiffs who are Massachusetts residents. He has certified to this court questions related to calculation of damages for one such plaintiff, Anthony Graffeo. The certified questions relate to whether, under Massachusetts law, an employer may use a system of customer accounts receivable financing to pay its employee at the time the customer pays the employer for the employee’s work rather than when the work is performed; and whether, under the Massachusetts Wage Act, G. L. c. 149, §§ 148, 150 (Wage Act), an employer and an employee may agree that the employee will pay the cost of workers’ compensation and other work-related insurance coverage. We conclude that the accounts receivable financing system at issue improperly defers payment of the employee’s earned wages, and that an employer may not deduct the insurance costs from an employee’s earned wages. In response to the judge’s invitation to provide additional guidance, we also address the question whether Coverall may deduct “franchise fees” from such wages, and conclude that the Wage Act forbids the deductions. 1. Background. The plaintiffs are individuals who have entered into contracts, called “janitorial franchise agreements,” with Coverall for the provision of commercial janitorial services to third-party customers. See Awuah v. Coverall N. Am,., Inc., 707 F. Supp. 2d 80, 81 (D. Mass.) (Awuah I), S.C., 740 F. Supp. 2d 240, 241 (D. Mass. 2010) (Awuah II). They commenced this case in the Federal District Court for the District of Massachusetts in 2007 as a class action, alleging that Coverall misclassified the named plaintiffs and other similarly situated individuals as independent contractors. See Awuah I, supra at 81; Awuah II, supra at 241. On March 23, 2010, in Awuah I, the judge ruled that the Massachusetts “franchisees” of Coverall were misclassified as independent contractors under the Commonwealth’s misclassification statute, G. L. c. 149, § 148B, and accordingly were “employees.”- See Awuah I, supra at 84-85. After further proceedings not relevant here, the judge ruled on the remaining parties’ cross motions for summary judgment regarding damages suffered by one misclassified worker, the plaintiff Graffeo. Awuah II, supra at 241. In Awuah II, supra at 242-243, the judge addressed several types of costs and fees, the substance of which are described in more detail below. He concluded that Coverall properly could deduct from payments to Graffeo certain amounts related to “franchise fees,” royalty and management fees, and the cost of supplies and equipment, so long as Graffeo was paid at least the minimum wage. Id. at 243. However, the judge also concluded that Coverall was statutorily mandated as the employer to provide and pay for workers’ compensation insurance; to the extent Graffeo paid for insurance premiums that Coverall was required to pay, Graffeo was injured by his misclassification and could recover the premium costs as “damages incurred” under the enforcement section of the Wage Act, G. L. c. 149, § 150 (§ 150). Id. at 241-243. The judge further determined that Coverall’s “accounts-receivable financing” protocol violated another provision of the Wage Act, G. L. c. 149, § 148 (§ 148), requiring that employers pay employees within a week of the weekly or biweekly pay period during which wages were earned. Id. at 244-245. The judge ruled that, although Coverall eventually repaid to Graffeo the “chargebacks” it collected from him to offset customers’ unpaid bills under this protocol, Graffeo is owed interest on the chargebacks for the period of time they were outstanding. Id. at 243 n.2, 245. Finally, the judge concluded that the resolution of Graffeo’s claims presented issues of Massachusetts statutory law, and, accordingly, stated his intent to certify questions to this court pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981). Id. at 245. An order of certification followed. It poses four questions: “1. Under Massachusetts law, may a franchisor lawfully use customer accounts-receivable financing to pay a franchisee who is characterized as an employee under [G. L. c. 149, § 148B]? “2. Under Massachusetts law, do the ‘damages incurred’ for which a misclassified worker can seek recompense under [G. L. c. 149, § 150,] include costs that an employer statutorily must bear? “3. Under Massachusetts law, may an employer lawfully withhold wages to an employee if the employer and employee agree that such wages are not earned until a customer remits payment? “4. Under Massachusetts law, may an employee and his employer lawfully agree that the employee will pay some or all of the cost of workers’ compensation or other insurance coverage procured to alleviate the liability of the employer?” We summarize the facts of the case from the order of certification and the record before us. As previously stated, Coverall contracts in “franchise agreements” with individuals for the provision of commercial janitorial services to third-party customers. Awuah I, supra at 81. The contracts require the contracting employees to complete mandatory training programs and wear approved uniforms and identification badges. Id. at 82. Under the contracts, Coverall performs all billing and collection services, and remits payments to employees after deducting certain fees. Id. Graffeo, a Massachusetts resident, signed one such contract in 1995. He hired no employees, but instead provided cleaning services directly. The contract between Coverall and Graffeo provided that Graffeo would pay Coverall fees in several categories; five of them are at issue between the parties. First, to secure an initial package of customer accounts, the contract required Graffeo to pay Coverall an initial “franchise fee” of $3,250, of which $1,700 was payable in cash on execution of the contract; the balance, plus interest, was to be paid in instalments over the following twenty-four months. The agreement also gave Graffeo the option of securing additional customer accounts by paying additional business fees to Coverall. Second, the contract required Graffeo to pay monthly royalty and management fees equal to five per cent and ten per cent, respectively, for a total of fifteen per cent, of the amount Coverall billed customers assigned to Graffeo. Third, the contract made Graffeo responsible for all losses, damages, or personal injuries arising out of his janitorial services, and required him to maintain janitorial bonding, workers’ compensation insurance for himself and any employees, unemployment insurance as required by law, and comprehensive liability insurance. All insurance policies were to name Coverall as an additional insured. The contract gave Graffeo the option of purchasing general liability insurance and bonding through Coverall and paying Coverall for the premiums and certain surcharges. He accepted this option. In January, 2004, Graffeo also opted into Coverall’s “franchise owner job related accident program” (FOJ program), as Coverall required him to do unless he could demonstrate he had on-the-job accident insurance or workers’ compensation insurance. Fourth, the contract required Graffeo to provide replacement supplies and equipment. Although he purchased supplies primarily from third parties, on at least one occasion, Graffeo purchased supplies from Coverall and Coverall deducted the cost from the amounts it paid him. Fifth and finally, the contract provided for “accounts receivable financing” whereby Coverall would pay Graffeo “interest-free advances” for amounts billed to, but not yet collected from, customers. If customers failed to pay-Coverall within ninety days of the date the payment was due, the contract required Graffeo to “repay” Coverall the “advance.” These “charge-backs” are the final contested category of payments Graffeo made to Coverall. 2. Discussion. The Wage Act requires “prompt and full payment of wages due.” Camara v. Attorney Gen., 458 Mass. 756, 759 (2011) (Camara). Section 148 of the Wage Act provides in pertinent part: “Every person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week .... No person shall by a special contract with an employee or by any other means exempt himself from this section or from [§ 150] other than the attachment of such wages by trustee process or a valid assignment thereof or a valid set-off against the same, or the absence of the employee from his regular place of labor at the time of payment, or an actual tender to such employee at the time of payment of the wages so earned by him, shall be valid.” G. L. c. 149, § 148. Section 150 allows an employee claiming to be aggrieved by a violation of § 148 to prosecute “a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits” (emphasis added). G. L. c. 149, § 150. An employee who prevails in such an action shall be awarded costs and reasonable attorney’s fees, and may be awarded treble damages. Id., as amended through St. 2005, c. 99, § 2. With limited exceptions, employers may not withhold pay from their employees, a point expressed in § 150 by limiting an employer’s defenses: “On the trial no defence for failure to pay as required, G. L. c. 149, § 150. a. Questions One and Three. Questions One and Three are closely related, and we answer them together. The judge’s first question asks: “Under Massachusetts law, may a franchisor lawfully use customer accounts-receivable financing[] to pay a franchisee who is characterized as an employee under [G. L. c. 149, § 148B]?” The third question asks: “Under Massachusetts law, may an employer lawfully withhold wages to an employee if the employer and employee agree that such wages are not earned until a customer remits payment?” To both questions, we answer, “No.” Coverall argues that no compensation is due to its workers until all “contingencies,” including customer payment, have been satisfied. It defends accounts receivable financing as a benefit to workers, in that advances on compensation not yet due allows them to access funds more quickly when customers are late (but not too late) in paying their bills. It argues also that conditioning compensation on customer payment allows customers to ensure adequate service via threatened withholding of payment; were Coverall to pay its workers regardless of the level of customer satisfaction, Coverall would need to supervise the workers more closely. The result, Coverall contends, would be detrimental both to workers’ freedom and to the amount they earned because of the greater intrusiveness and cost of supervision. Coverall’s arguments fail. The Wage Act requires an employer to pay “the wages earned” to an employee within a fixed period of days after the end of a pay period. G. L. c. 149, § 148. The word “earn” is not statutorily defined, but its plain and ordinary meaning is “[t]o acquire by labor, service, or performance,” or “[t]o do something that entitles one to a reward or result, whether it is received or not.” Black’s Law Dictionary 584 (9th ed. 2009). Where an employee has completed the labor, service, or performance required of him, therefore, according to common parlance and understanding he has “earned” his wage. That a Coverall customer may not have yet paid its bill within a week after the pay period does not affect Graffeo’s right to wages he has earned. Graffeo is an employee, and, therefore, the obligation to pay him earned wages rests with Coverall, not third parties. The accounts-receivable financing system incorporated into Graffeo’s contract, which classifies what are in reality wages for work performed as compensation “advances” that may be recouped, violates the “special contracts” provision of the Wage Act. See § 148 (“No person shall by a special contract with an employee or by any other means exempt himself from [§ 148 or § 150]”). At the same time, the method of recoupment under the contract, namely the “chargebacks,” constitute improper deductions for purposes of the Wage Act. See Camara, 458 Mass. at 760 (Attorney General reasonably interprets § 148 as “generally prohibiting an employer from deducting, or withholding payment of, any earned wages”). “Chargebacks” represent a means for Coverall to recapture wages already earned and paid. They are not a valid setoff; they correspond to no “clear and established debt owed to the employer by the employee.” Somers v. Converged Access, Inc., 454 Mass. 582, 593 (2009) (Somers). See Camara, supra at 763. If an employee’s work is inadequate, Coverall is free to implement sanctions, including termination; Coverall is not free to withhold — much less recapture — the employee’s earned wages. See id. at 763-764. b. Questions Two and Four. The second question asks whether, under Massachusetts law, “the ‘damages incurred’ for which a misclassified worker can seek recompense under [§ 150] include costs that an employer statutorily must bear?” The fourth question asks a related question: “Under Massachusetts law, may an employee and his employer lawfully agree that the employee will pay some or all of the cost of workers’ compensation or other insurance coverage procured to alleviate the liability of the employer?” To these questions we answer, respectively, “Yes” and “No.” i. Statutory mandates. The judge focused on workers’ compensation when discussing costs an employer is required by statute to pay. We do as well. The Workers’ Compensation Act, G. L. c. 152 (Workers’ Compensation Act), “ ‘was designed to replace tort actions,’ Alves’s Case, 451 Mass. 171, 111 n.9 (2008), by providing ‘a uniform, statutory remedy for injured workers, in contrast to a piecemeal, tort-based system.’ ” Saab v. Massachusetts CVS Pharmacy, LLC, 452 Mass. 564, 566-567 (2008), quoting Green v. Wyman-Gordon Co., 442 Mass. 551, 559-560 (1996). See G. L. c. 152, § 24 (covered employees, unless they expressly reserve rights, deemed to have waived rights to recover against employers in tort). Under the Workers’ Compensation Act, the obligation to secure workers’ compensation insurance, or to self-insure, is on the employer alone. See G. L. c. 152, § 25A (every employer “shall provide for the payment to his employees of [workers’] compensation” by obtaining insurance, membership in workers’ compensation self-insurance group, or license as self-insurer). See also G. L. c. 152, § 25C, as amended through St. 2010, c. 285, § 1 (assessments, including civil fines and criminal penalties, for employers who fail to provide for insurance or self-insurance as required by chapter). Coverall contends that, while it may be required to provide workers’ compensation insurance for its employees, nothing in the Workers’ Compensation Act prevents an employer and employee from agreeing that the employee is to be responsible for the insurance premiums. There is no merit to the claim. This court has long observed that workers’ compensation statutes, including the Commonwealth’s, represent an “exercise of the police power” that “impose on the designated classes of employers of labor the burden of compensation for injuries to employees arising out of and in the course of their employment, leaving the employer to reimburse himself for the expense as a part of the cost of his product.” Opinion of the Justices, 309 Mass. 562, 567-568 (1941), quoting Howes Bros. Co. v. Unemployment Compensation Comm’n, 296 Mass. 275, 284 (1936). Indeed, since its enactment in the early Twentieth Century, the purpose of the Workers’ Compensation Act has been “to treat the cost of personal injuries incidental to the employment as a part of the cost of the business.” Madden’s Case, 222 Mass. 487, 494-495 (1916). Reforms to the Act over time have never altered that fundamental premise. See L.Y. Nason, C.W. Koziol, & R.A. Wall, Workers’ Compensation § 2.8, at 35 (3d ed. 2003) (1991 reforms, still effective, “acknowledged the premise that workplace injuries were a factor in the costs of doing business”). Finally, employers’ responsibility for paying the cost of workers’ compensation insurance is made clear by the provision in the Act imposing criminal penalties on employers who try to evade workers’ compensation requirements by misclassifying employees. See G. L. c. 152, § 14 (3) (“any person or employer who knowingly misclassifies employees ... for the purpose of avoiding full payment of insurance premiums . . . shall be punished” [emphasis added]). In sum, to permit an employer to transfer to its employees the cost of workers’ compensation insurance premiums would be inconsistent with both the general intent and the specific language of the Workers’ Compensation Act. We therefore conclude that an employee such as Graffeo may recover, as “damages incurred,” any such insurance premiums that he was obliged to pay to Coverall under the terms of his contract. Coverall’s contrary argument notwithstanding, G. L. c. 154, § 8, does not change our view. That section states, in part: “None of the foregoing sections of this chapter [G. L. c. 154, regulatin

POINT INTREPID, LLC and ADVANCED INTERNET TECHNOLOGIES, INC., Plaintiffs v. ROBYN FARLEY, Defendant No. COA10-1617 (Filed 16 August 2011) 1. Appeal and Error — preservation of issues — failure to object Plaintiffs did not preserve for appeal an argument concerning the shifting of discovery fees where they did not obtain a ruling from the trial court on the issue. 2. Costs — expert fees — ex parte contact The trial court did not abuse its discretion by requiring plaintiffs to pay the balance of an independent expert’s fees despite ex parte contact between the expert and opposing counsel where the trial court decided that the contact did not bias the witness. 3. Costs — independent expert fees — reasonableness The trial court did not abuse its discretion by requiring plaintiffs to pay the balance of the fee of an independent expert witness where plaintiffs contended that the fee was unreasonable. Despite evidence to the contrary, there was competent evidence that the invoice was reasonable. The rejection of plaintiffs’ expert testimony on reasonableness did not mean that the testimony was not considered or that the trial court’s decision was not supported by competent evidence. 4. Costs — expert—expenses for recovering fee An award for attorney fees and additional expenses expended by an expert witness in seeking recovery of its fees was reversed. The relevant statutes on reimbursement of expert witnesses do not mention attorney fees, the witness was not entitled to compensation for appearing in court voluntarily, and compensation does not extend to travel expenses. Appeal by Plaintiffs from Orders entered 8 September 2010 and 22 September 2010 by Judge Gregory A. Weeks in Cumberland County Superior Court. Heard in the Court of Appeals 11 May 2011. A. Bikash Roy for Plaintiffs-appellant. Winslow Wetsch, PLLC, by Laura J. Wetsch, for Defendantappellee. Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Thomas M. Buckley, for third-party appellee. HUNTER, JR., Robert N., Judge. Point Intrepid, LLC (“Point Intrepid”) and Advanced Internet Technologies, Inc. (“AIT”) (collectively “Plaintiffs”) appeal from Orders directing AIT to pay third-party appellee Forward Discovery’s invoice, attorneys’ fees, and additional expenses. We affirm, in part, and reverse, in part. I. Facts and Procedural History This case arises from an employment dispute between Plaintiffs and Robyn Farley (“Farley”), a former employee of AIT. While the parties settled the litigation relating to the underlying employment dispute, this appeal originates from a disagreement over payment of third-party expert fees incurred during the parties’ litigation. Plaintiffs agreed in court to pay the entire cost of the third-party expert, but subsequently refused full payment. Plaintiffs appeal the trial court’s Orders mandating their payment of the balance of the expert’s invoice, attorneys’ fees, and additional expenses. AIT is a North Carolina corporation in the business of hosting websites and providing internet technology-related services. Point Intrepid is a North Carolina company that acts as the benefits and payroll administrator for AIT, its subsidiaries, and affiliates. On 6 June 2008, Farley was hired by AIT as a Database Administrator/Engineer. Farley’s employment at AIT was terminated on 26 February 2009 following allegations of her unauthorized access of her supervisor’s computer. Plaintiffs brought suit against Farley for, inter alia, breach of contract and breach of fiduciary duty. Farley made numerous counter-claims, including wrongful discharge and defamation. The case was heard at the 19 November 2009 session of the Superior Court of Cumberland County, Judge Gregory A. Weeks presiding. During a motions hearing, Judge Weeks entered a discovery order on 3 December 2009 requiring AIT to produce “all documents supporting and negating AIT’s decision to determinate [sic] Farley’s employment.” Because AIT wanted to use an expert to protect its proprietary information and avoid inadvertent disclosure of customer banking information, AIT filed a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b). Specifically, AIT requested that an independent third-party expert, either designated by the court or by agreement between the parties, analyze the hard drives “with the costs to be shared equally by the parties.” At a 7 December 2009 hearing for this Motion, Farley conceded to the appointment of an independent third-party expert, but proposed that AIT pay all expenses for the expert. AIT agreed to incur the costs for third-party analysis of its hard drives, and explicitly stated, “[W]e will incur [the costs] voluntarily and a hundred percent, we will incur it.” On 4 January 2010, the trial court entered an Order requiring the parties to agree to a third-party expert within five business days. Pursuant to the Order, the expert would analyze AIT’s hard drives and report the results. Significantly, the Order provided that “[t]he third-party expert may communicate separately with each party, but shall maintain a complete record of all such communications, which shall be made available to the court or either party upon request.” The Order also stated, “AIT shall promptly pay all fees and expenses of the third-party expert selected to perform the work identified in this Order, consistent with the third party expert’s quote which is incorporated in this Order by reference.” On 11 January 2010, the parties informed the trial court that they were unable to agree on an expert. Farley proposed as an expert Ryan Johnson (“Johnson”) of Forward Discovery, Inc. (“Forward Discovery”). Johnson provided an estimate of $10,250 per hard drive ($20,500 total), for the requested work. AIT suggested as an expert Charles Moreton, of Computer Trauma Center, who stated the cost of the work would not exceed $2,200. The trial court, in a 14 January 2010 Order, selected Johnson of Forward Discovery, the expert proposed by Farley. The trial court held that Johnson’s estimate of $20,500 would serve as a cap on the work to be performed. Pursuant to an agreement between the parties, Johnson did not begin his work until late March 2010 to allow the parties time to mediate the underlying claims. Farley’s attorney e-mailed Johnson on 19 March 2010 to inform him that mediation had failed and that he could begin his work. AIT’s attorneys were included on the e-mail. This prompted an exchange of contentious e-mails in which AIT’s attorney expressed his disapproval of this unilateral request by Farley’s attorney that Johnson begin his court-ordered work. On 22 March 2010, Farley’s attorney called Forward Discovery about these e-mails, on which Johnson had been copied, and Johnson advised her that because the matter seemed “contentious,” it might be best to arrange a conference call between all the parties. Forward Discovery logged this phone call with Farley’s attorney pursuant to the trial court’s Order, but admits it failed to log two instances where Farley’s attorney called Forward Discovery’s office for driving directions. In early May 2010, Forward Discovery completed its court-ordered work, and it sent an invoice to AIT in early June 2010. The invoice listed a total amount of $22,650.12 due by 9 July'2010, exceeding the court-ordered limit of $20,500. AIT refused to pay the entire amount, and requested clarification of the services provided. In an e-mail exchange with AIT’s attorney, Johnson provided the requested clarification. On 30 July 2010, AIT paid Johnson $10,250, half of the court-ordered limit. On 9 August 2010, Plaintiffs filed a Motion to Limit Expert Fees. Plaintiffs argued that Forward Discovery’s estimate and invoice were unreasonable, that AIT had already paid a reasonable fee for Forward Discovery’s work, and that Johnson should show cause as to why the trial court should not consider the estimate and invoice unreasonable. The next day, on 10 August 2010, Forward Discovery filed a Motion to Show Cause why AIT should not be held in contempt of court for failing to pay the balance of Forward Discovery’s invoice and requested sanctions against AIT for failure to comply with the trial court’s discovery order. Forward Discovery’s Motion called for AIT to pay the fees Forward Discovery incurred for its court-ordered work, as well as attorneys’ fees, interest, and monetary sanctions for its collection efforts. Both parties appeared for a hearing on these motions on 30 August 2010 before Judge Gregory A. Weeks in Cumberland County Superior Court. Johnson voluntarily attended the 30 August 2010 hearing; he was not required to appear by subpoena. On 8 September 2010, the trial court entered an Order denying Plaintiffs’ Motion and granting Forward Discovery’s Motion. Specifically, the trial court found the invoice for Forward Discovery’s services to be reasonable under N.C. Gen. Stat. § 8C-1, Rule 706 and required AIT to pay the balance of the invoice ($12,400.12). On 13 September 2010, the trial court held an additional hearing to rule on Forward Discovery’s claim for attorneys’ fees and additional expenses. The trial court entered an Order on 22 September 2010 requiring AIT to pay Forward Discovery $3,762.50 for attorneys’ fees and $2,375.00 for additional expenses (a total of $6,137.50). AIT and Farley resolved the underlying employment dispute on 4 October 2010, manifested in a Settlement Agreement and Release (“Settlement Agreement”). Pursuant to the Settlement Agreement, AIT filed a Notice of Voluntary Dismissal on 8 October 2010. This voluntary dismissal was with prejudice to all claims, except with regard to “the Plaintiffs’ right to appeal the Order of the Court entered on September 8, 2010 and the Court’s further Order entered on September 22, 2010,” which were dismissed without prejudice. Plaintiffs timely entered notice of appeal from the trial court’s 8 September 2010 Order requiring payment of the balance of Forward Discovery’s invoice and the 22 September 2010 Order requiring payment of attorneys’ fees and expenses (collectively the “September 2010 Orders”). II. Jurisdiction and Standard of Review This Court has jurisdiction to hear the instant appeal pursuant to N.C. Gen. Stat. § 7A-27(b) (2009). We review the trial court’s Orders under an “abuse of discretion” standard. Smith v. Barbour, 195 N.C. App. 244, 253, 671 S.E.2d 578, 585 (2009) (citing Sharp v. Sharp, 116 N.C. App. 513, 533, 449 S.E.2d 39, 50, disc. rev. denied, 338 N.C. 669, 453 S.E.2d 181 (1994)). “Abuse of discretion occurs where the court’s ruling is manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision.” State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 133 (1993). A trial court does not reach a reasoned decision, and thus abuses its discretion, when its findings of fact are not supported by competent evidence. Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96, 104, 678 S.E.2d 757, 763 (2009) (“[T]he trial court’s finding is supported by competent evidence, and does not constitute an abuse of discretion.”). Findings of fact are conclusive on appeal if they are supported by competent evidence. Powers v. Tatum, 196 N.C. App. 639, 648, 676 S.E.2d 89, 95 (citation omitted), disc. rev. denied, 363 N.C. 583, 681 S.E.2d 784 (2009). Additionally, “findings of fact to which [the appellant] has not assigned error and argued in his brief are conclusively established on appeal.” Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002). The trial court’s legal conclusions receive de novo review. State v. Newman, 186 N.C. App. 382, 386, 651 S.E.2d 584, 587 (2007). III. Analysis On appeal, Plaintiffs argue the trial court erred in ordering them to pay the balance of Forward Discovery’s invoice, attorneys’ fees, and additional expenses. Specifically, Plaintiffs contend the trial court should not have allowed recovery of the balance of the Forward Discovery invoice for its hard drive analysis, since improper communications occurred between Johnson and Defendant’s counsel and there was no competent evidence that Forward Discovery’s fees were reasonable. Plaintiffs further argue that North Carolina statutes and case law do not permit recovery of attorneys’ fees and additional expenses on the facts of this case. We affirm, in part, and reverse, in part. A. Right to Appeal Preliminarily, we address Defendant’s procedural rebuttal to Plaintiffs’ claims. Defendant argues that AIT lost its right to appeal when it filed a voluntary dismissal with prejudice pursuant to the parties’ Settlement Agreement. We disagree. Generally, a voluntary dismissal, even without prejudice, “terminates a case and precludes the possibility of an appeal.” Dodd v. Steele, 114 N.C. App. 632, 636, 442 S.E.2d 363, 366 (citing Lloyd v. Carnation Co., 61 N.C. App. 381, 384, 301 S.E.2d 414, 416 (1983)), disc. rev. denied, 337 N.C. 691, 448 S.E.2d 521 (1994). However, a voluntary dismissal of claims does not necessarily act as a bar against other related but independent claims; as our state’s Supreme Court has stated, “[dismissal does not deprive the court of jurisdiction to consider collateral issues such as sanctions that require consideration after the action has been terminated.” Bryson v. Sullivan, 330 N.C. 644, 653, 412 S.E.2d 327, 331 (1992); see Dodd, 114 N.C. App. at 634, 442 S.E.2d at 365 (“Furthermore, neither the dismissal of a case nor the filing of an appeal deprives the trial court of jurisdiction to hear Rule 11 motions.”); VSD Commc’ns, Inc. v. Lone Wolf Publ’g Group, Inc., 124 N.C. App. 642, 644, 478 S.E.2d 214, 216 (1996) (noting that after a voluntary dismissal, motions for attorneys’ fees “have a life of their own”). Still, under our Rules of Appellate Procedure, for a party to raise an issue on appeal, it must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party’s request, objection, or motion. N.C.R. App. P. 10(a)(1) (2011); see Lake Colony Constr., Inc. v. Boyd, _N.C. App._,_,_S.E.2d_,_., 2011 WL 2200607, at *10 (No. 10-959) (June 7, 2011) (explaining that, pursuant to N.C.R. App. P. 10(a)(1), appellant failed to preserve an issue for appellate review where the appellant did not raise the issue in the trial court). In the present case, the voluntary dismissal of claims against Farley does not negate Plaintiffs’ right to appeal the September 2010 Orders. Although the overall dismissal was with prejudice, the Notice of Voluntary Dismissal provides the following exception: This dismissal ... is without prejudice to the Plaintiffs’ right to appeal the Order of the Court entered on September 8, 2010 and the Court’s further Order entered on September 22, 2010. The foregoing is with Defendant Robyn Farley’s consent,, [sic] pursuant to the terms of the mediated settlement agreement between all parties. Additionally, the Settlement Agreement specifically stated that AIT “preserved] its right to appeal from the Orders entered by the Honorable Gregory Weeks on September 8, 2010 and September 22, 2010.” Thus, Plaintiffs may maintain their appeal of the September 2010 Orders. Nonetheless, we agree with Defendant that Plaintiffs have not preserved the right to appellate review of their fee-shifting argument, whereby Plaintiffs contend that because Defendant engaged in improper communications with Johnson, the burden for paying Forward Discovery’s fees should be shifted to Defendant. In its carve-out preserving Plaintiffs’ right to appeal the September 2010 Orders, the Settlement Agreement does not address the fee-shifting argument. Additionally, neither AIT’s Motion nor the trial court’s Orders make any mention of a fee-shifting claim. Thus, pursuant to North Carolina Rule of Appellate Procedure 10(a)(1), we conclude that Plaintiffs did not preserve the fee-shifting argument because they did not obtain a ruling from the trial court on the issue. B. Allegations of Improper Ex Parte Communications Plaintiffs argue the trial court erred and abused its discretion by requiring AIT to pay the balance of Forward Discovery’s invoice because improper communications occurred between Johnson and Farley’s counsel. We disagree. Improper ex parte communication can occur when contact between a litigating party and the expert inhibits the expert’s ability to “provide the court with . . . unbiased information.” Bd. of Managers of Bay Club Condominium v. Bay Club of Long Beach Inc., 15 Misc. 3d 282, 286, 827 N.Y.S.2d 855, 858 (N.Y. Sup. Ct. 2007). Generally, “court-appointed witnesses should remain neutral and impartial in conducting their evaluations.” In re David W., 759 A.2d 89, 95 (Conn. 2000); see State v. Adams, 335 N.C. 401, 408-10, 439 S.E.2d 760, 763-64 (1994) (explaining in an analogous situation of ex parte communications between a judge and potential jurors that there is no reversible error when the communication is harmless). We examine the facts of the present case to determine whether Johnson’s neutrality was impacted by any ex parte communications with Farley’s counsel. We find unpersuasive Plaintiffs’ analogy to relevant case law from other jurisdictions, because the conduct here does not rise to the level of impropriety in the cases referenced by Plaintiffs. See, e.g., Bd. of Managers of Bay Club Condominium, 15 Misc. 3d at 284-85, 827 N.Y.S.2d at 857-58 (describing how the plaintiff’s attorneys scheduled a meeting with the third-party expert without the defendant’s knowledge and received documents from the expert beyond the scope of the expert’s court-ordered work); G.K. Las Vegas Ltd. P’ship v. Simon Prop. Grp., 671 F. Supp. 2d 1203, 1227 (D. Nev. 2009) (explaining how the defendants invited the experts to their office and interviewed some of the experts “to ensure that the particular [experts] who were expected to be involved would be sufficiently knowledgeable and experienced”); In re David W., 759 A.2d at 92 (noting, in a termination of parental rights case, the assistant attorney general’s request to the court-appointed expert for an independent developmental assessment of the child constituted improper ex parte communication). In the present case, the facts are significantly distinguishable from these cases. First, in the case at hand, the trial court’s Order expressly permitted communications between the litigating parties and the court-appointed expert, and required Johnson to log such communications. Furthermore, we are not persuaded that the communications between Farley’s counsel and Johnson were improper. For instance, Plaintiffs argue that a 22 March 2010 phone call between Farley and Johnson discussing the “contentious” nature of the case biased Johnson as a neutral third-party expert. We disagree. Per the trial court’s order, Johnson logged this phone call and described the call as follows: [Defendant’s counsel] called [Johnson] — related to the emails [sic] between the parties. [Johnson] advised that current matter was contentious and that a conference call with counsel would be beneficial to get everyone on the same page. Wetsch advised that there was no agreement to further delay analysis. [Johnson] noted that [Johnson] had received an e-mail from [Plaintiffs’ counsel] at 9:46 but that [Johnson] hadn’t fully read it — [Johnson] would read and respond as necessary. [Johnson] phoned and left a message for [AIT’s outside counsel]. No reply phone call. We cannot reasonably conclude that Farley’s counsel biased Johnson by discussing the fact that the case was contentious. The trial court itself has noted the contentiousness of this case, and Johnson has been included in communications between the litigating parties that have displayed significant tension. We do not believe the call between Farley’s