Wrongful Termination Cases

JOHN R. McDONNELL, Plaintiff v. TRADEWIND AIRLINES, INC., Defendant No. COA07-634 (Filed 6 January 2009) 1. Employer and Employee— at-will employee — refusal to fly non-revenue flight — firing not in contravention of North Carolina public policy The trial court did not err in a wrongful termination in violation of public policy case by concluding defendant’s termination of plaintiff at-will employee based on his refusal to fly a non-revenue flight (or ferry flight) from Vermont to North Carolina on 27 February 2000 was not in contravention of North Carolina public policy because: (1) contrary to plaintiff’s assertion, 14 C.F.R. § 91.13 and N.C.G.S. § 63-13 do not constitute public policy exceptions, and N.C.G.S. § 63-13 was not applicable to the facts in this case; (2) the plain meaning of N.C.G.S. § 63 20 and the holding in Mann, 261 N.C. 338 (1964), address licensing to operate aircraft and do not speak to declarations of public policy or a public policy exception to the law governing at-will employment; and (3) the Court of Appeals rejected plaintiff’s attempt to have his vagueness challenge, based on a motor vehicle statute, applied to the facts of this case. 2. Employer and Employee— wrongful termination — federal aviation regulations — inapplicability to ferry flights Defendant airline’s discharge of plaintiff flight engineer after he refused to fly a nonrevenue (ferry) flight from Vermont to North Carolina did not violate federal regulations requiring an airman who had flown more than eight hours during any consecutive 24 hour period to be given at least 16 hours of rest before being assigned to any duty with the airline, even though plaintiff had flown more than eight hours in the prior 24 hours and had not had 16 hours of rest, because those regulations did not apply to nonrevenue (ferry) flights. 3. Evidence— exclusion of exhibits — company documents The trial court did not abuse its discretion in a wrongful termination case by excluding from evidence exhibits which were excerpts from defendant’s company documents containing definitions of terminology within 14 C.F.R. 121.521 and 121.503 because: (1) the trial court concluded the statutes were to be interpreted as written and not as the company’s materials defined the terms in issue; and (2) a different result would not have occurred had the policies been admitted. 4. Costs— award of deposition costs — failure to show abuse of discretion The trial court did not err in a wrongful termination case by awarding defendant deposition costs of $1,596.93 because: (1) plaintiff failed to show the trial court abused its discretion; and (2) although the General Assembly addressed inconsistencies within our case law by providing effective 1 August 2007 that N.C.G.S. § 7A-305 was a complete and exclusive limit on the trial court’s discretion to tax costs under N.C.G.S. § 6-20, this case was not governed by the newly enacted legislation. Appeal by plaintiff from directed verdict entered 20 October 2006 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 11 December 2007. Smith, James, Rowlette, & Cohen, L.L.R, by Seth R. Cohen and J. David James, for plaintiff-appellant. Tuggle, Duggins, & Meschan, P.A., by J. Reed Johnston, Jr. and Ryan S. Luft, for defendant-appellee. BRYANT, Judge. Tradewind Airlines, Inc. (defendant) terminated John R. McDonnell (plaintiff) from his position as a flight engineer after he refused an assignment to ferry a plane from Burlington, Vermont to Greensboro, North Carolina. Plaintiff alleges that his flight schedule preceding the termination of employment violated several Federal Aviation Regulations (FARS), and, as a result, he was too fatigued to execute his duties safely. For the reasons stated herein, we affirm the judgment of the trial court. FACTS/PROCEDURAL HISTORY Plaintiff began working as a flight engineer for Defendant Tradewind Airlines in December 1997. On 26 February 2000, plaintiff reported for duty at 6:45 a.m. and remained on duty until 10:15 a.m. the next morning. While plaintiff was resting in his motel room in Burlington, Vermont defendant requested that plaintiff fly the plane without passengers (a.k.a. “ferry flight”) back to Greensboro, North Carolina at midnight the evening of 27 February 2000. Plaintiff indicated he was too tired, refused to make the flight, and was terminated from employment with defendant. Plaintiff filed a wrongful termination suit against defendant in Guilford County Superior Court. Defendant removed the action to federal court, alleging federal question jurisdiction based on preemption of the claim by the Federal Aviation Act (FAA). Defendant moved to dismiss the case. Plaintiff filed a motion to remand alleging the federal court lacked subject matter jurisdiction. On 9 March 2004, the case was remanded to Guilford County Superior Court from the U.S. District Court, Middle District of North Carolina by Judge N. Carlton Tilley, Jr. who determined that because the federal courts are of limited jurisdiction and because all doubts should be resolved in favor of remand, this Court finds that the FAA does not completely preempt state law. As such, this Court has no subject matter jurisdiction and the case is remanded to state court for further proceedings. On 15 July 2004, Superior Court Judge Lindsay R. Davis, Jr. found that plaintiff’s claim was not preempted by the FAA and denied defendant’s Rule 12(b)(6) motion to dismiss. Defendant filed an answer on 29 July 2004, and filed a motion for summary judgment on 16 June 2006. Plaintiff filed a motion to amend his complaint on 18 August 2006. On 7 September 2006, defendant’s summary judgment motion was denied, and this case came on for trial on 25 September 2006 before Superior Court Judge Stuart Albright in Guilford County. At the close of plaintiff’s evidence, defendant moved for a directed verdict which was granted on 20 October 2006. From the trial court’s order granting defendant’s motion, plaintiff appeals. Both parties raise several issues on appeal. The issues presented by plaintiff are whether the trial court erred in: (I) granting defendant’s motion for a directed verdict and concluding, as a matter of law, that 14 C.F.R. § 91.13 and N.C. Gen. Stat. § 63-13 are too vague and ambiguous to constitute a public policy exception to North Carolina’s at-will employment doctrine; (II) granting defendant’s motion for a directed verdict, and concluding, as a matter of fact, that no reasonable jury could conclude that defendant violated 14 C.F.R. § 121.521 and 14 C.F.R. § 121.503; (III) excluding from evidence several of plaintiff’s exhibits; and, (IV) awarding defendant deposition costs. On cross-appeal, the issues presented by defendant are whether the trial court erred in: (V) failing to conclude that the public policy exception to the at-will employment doctrine is limited to express statements within North Carolina’s statutes or constitution; and (VI) denying defendant’s motion to dismiss, and finding that plaintiff’s wrongful discharge claim was not preempted by federal law. Standard of Review On review, a motion for a directed verdict presents the question of whether the evidence taken in a light most favorable to the plaintiff was sufficient for submission to the jury. Helvy v. Sweat, 58 N.C. App. 197, 199, 292 S.E.2d 733, 734 (1982) (citation omitted). The motion should be denied “if there is more than a scintilla of evidence to support all the elements of plaintiff’s prima facie case.” Southern R. Co. v. O’Boyle Tank Lines, Inc., 70 N.C. App. 1, 4, 318 S.E.2d 872, 875 (1984). The standard of review for the granting of defendant’s directed verdict motion is whether “when viewing the evidence in the light most favorable to plaintiff no reasonable juror could find for plaintiff.” Allen v. Weyerhaeuser, Inc., 95 N.C. App. 205, 207, 381 S.E.2d 824, 826 (1989) (citing West v. Slick, 313 N.C. 33, 40, 326 S.E.2d 601, 606 (1985)). I The critical question this Court is being asked to address is whether defendant’s termination of plaintiff based on his refusal to fly a non-revenue flight (or ferry flight) back to Greensboro on 27 February 2000 was in contravention of North Carolina public policy. We conclude it was not. In North Carolina, employment is generally terminable by either the employer or employee for any reason where no contract exists specifying a definite period of employment. Rucker v. First Union Nat’l Bank, 98 N.C. App. 100, 102, 389 S.E.2d 622, 624 (1990) (citation omitted). This is a bright-line rule with very limited exceptions. An at-will employee may not be terminated: “(1) for refusing to violate the law at the employers [sic] request, (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy.” Ridenhour v. IBM, 132 N.C. App. 563, 568-69, 512 S.E.2d 774, 778 (1999) (internal citations omitted). Here, it is undisputed that plaintiff was an at-will employee, and the first issue on appeal is whether defendant’s actions violated the public policy of North Carolina. To prevail on a claim for unlawful termination in violation of public policy “a plaintiff must identify a specified North Carolina public policy that was violated by an employer in discharging the employee.” Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 694, 575 S.E.2d 46, 52 (2003) (citation omitted). In Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989), our Supreme Court first recognized a public policy exception to the employment-at-will doctrine: [W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent. Id. at 175, 381 S.E.2d at 447 (quoting Sides v. Duke Hospital, 74 N.C. App. 331, 342, 328 S.E.2d 818, 826 (1985)). In Coman, the plaintiff brought suit for wrongful discharge, alleging he was terminated from his employment as a long-distance truck driver after refusing to falsify driving records, a violation of federal transportation regulations. Id. at 173-74, 381 S.E.2d at 446. The Court held the actions of the defendant violated the public policy of North Carolina as set out in certain general statutes that promulgate highway safety and regulation. Id. at 175, 381 S.E.2d at 447. “[P]ublic policy has been defined as the principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.” Id. at 175 n.2, 381 S.E.2d at 447 n.2 (citing Petermann v. Int’l Bhd. of Teamsters, 174 Cal. App. 2d 184, 344 P. 2d 25 (Cal. App. 2d Dist, 1959)). While Coman establishes the availability of a tort action for wrongful discharge in violation of public policy, the Court did not otherwise define what constituted “public policy” for purposes of such a claim. Id. at 177, 381 S.E.2d at 448. The public policy exception, under which plaintiff in the instant case brings this suit, is not encapsulated by an enumerated list. Garner v. Rentenbach Constructors, Inc., 129 N.C. App. 624, 628, 501 S.E.2d 83, 86 (1998). Rather, this exception is applicable where (1) the public policy of North Carolina is clearly expressed within our general statutes or state constitution, or (2) potential harm to the public is created by defendant’s unlawful actions. See Considine v. Compass Group USA, Inc., 145 N.C. App. 314, 321, 551 S.E.2d 179, 184 (2001); see also Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992) (“Although the definition of ‘public policy’ approved by this Court does not include a laundry list of what is or is not ‘injurious to the public or against the public good,’ at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.”). Plaintiff argues that the trial court erred in finding that 14 C.F.R. § 91.13 and N.C.G.S. § 63-13 are too ambiguous and vague as a matter of law to constitute North Carolina public policy. We disagree. Under 14 C.F.R. § 91.13, “Careless or reckless operation”: (a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another, (b) Aircraft operations other than for the purpose of air navigation. No person may operate an aircraft, other than for the purpose of air navigation, on any part of the surface of an airport used by aircraft for air commerce (including areas used by those aircraft for receiving or discharging persons or cargo), in a careless or reckless manner so as to endanger the life or property of another. 14 C.F.R. § 91.13 (2007). Under the North Carolina General Statutes, Section 63-13, “Lawfulness of flight”: Flight in aircraft over the lands and waters of this State is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be injurious to the health and happiness, or imminently dangerous to persons or property lawfully on the land or water beneath. The landing of an aircraft on the lands or waters of another, without his consent, is unlawful, except in the case of a forced landing. For damages caused by a forced landing, however, the owner or lessee of the aircraft or the aeronaut shall be liable as provided in G.S. 63-14. N.C.G.S. § 63-13 (2007). Plaintiff asserts that 14 C.F.R. § 91.13 and N.C.G.S. § 63-13 constitute a public policy exception. We acknowledge the basic premise that we are bound to enforce federal safety regulations where they may be applicable. See Charlotte v. Spratt, 263 N.C. 656, 665, 140 S.E.2d 341, 347 (1965) (“[o]ur statutes ... contemplate full cooperation and compliance with federal statutes and rules and regulations of appropriate federal agencies”); Mann v. Henderson, 261 N.C. 338, 341, 134 S.E.2d 626, 628 (1964) (applicable FAS regulations are binding on state courts). However, unlike in Coman where the defendant’s conduct violated federal regulations and North Carolina public policy, in the instant case 14 C.F.R. § 91.13, in and of itself, is not sufficient to constitute an express statement of our public policy. See Coman, 325 N.C. at 178, 381 S.E.2d at 449 (“[W]e do not bottom our opinion upon federal public policy. . ..”). Plaintiff also contends that N.C. Gen. Stat. § 63-13 sufficiently delineates a public policy of aviation safety in this state. However, to the extent the statute mentions air safety, the General Assembly has limited its application to airspace within our state’s sovereignty. See N.C. Gen. Stat. § 63-11 (2007) (North Carolina retains sovereignty over air space above this State “except where granted to and assumed by the United States.”). As a result, N.C.G.S. § 63-13 is not applicable to the facts in the instant case. See 49 U.S.C. § 40103 (b) (1) (2007) (“Administrator of the [FAA] shall develop plans and policy for the use of the navigable airspace[.]”); 49 U.S.C. § 40102(a)(32) (2007) (“ ‘navigable airspace’ means airspace above the minimum altitudes of flight prescribed by regulations . . . including airspace needed to ensure safety in the takeoff and landing of aircraft”). Within the North Carolina General Statutes, we have found no express policy declarations indicating that the public policy of North Carolina was contravened when defendant terminated plaintiff from his at-will employment. Plaintiff, however, points to N.C. Gen. Stat. § 63-20 which requires any person operating aircraft in this state to have a federal license, and to case law stating “[fjederal laws and regulations where applicable, are, of course, binding on state courts and subject to judicial notice by state courts.” Mann, 261 N.C. at 341, 134 S.E.2d at 628-29 (1964). Plaintiff claims this is the express language that indicates his termination was in contravention of public policy because the Federal Aviation Regulations are binding on North Carolina. However, in that regard, we are not persuaded. The plain meaning of N.C.G.S. § 63-20 and the holding in Mann address licensing to operate aircraft and do not speak to declarations of public policy or a public policy exception to the law governing at-will employment. See N.C.G.S. § 63-20 (2007); Mann, 261 N.C. at 341, 134 S.E.2d at 628-29 (1964). Plaintiff also urges this court to review our careless and reckless statute (N.C.G.S. § 20-140) with regard to the trial court’s ruling that 14 C.F.R. § 91.13 is too vague and ambiguous to constitute North Carolina public policy. However, we reject plaintiff’s attempt to have his vagueness challenge, based on a motor vehicle statute, applied to the facts of this case. Plaintiff’s claim for wrongful termination fails as a matter of law. The trial court did not err in granting defendant’s motion for directed verdict. This assignment of error is overruled. II Plaintiff next argues the trial court erred by finding that no reasonable jury could conclude, as a matter of fact, that defendant violated 14 C.F.R. § 121.521 or 14 C.F.R. § 121.503. We disagree. The trial court determined that 14 C.F.R. § 121 did not apply to the “ferry flight.” See 14 C.F.R. § 91.501 (ferry flights are among those flights not covered by part 121). Nevertheless, we acknowledge that the evidence, viewed in the light most favorable to plaintiff, showed that when defendant ordered plaintiff to fly from Burlington, Vermont to Greensboro, North Carolina plaintiff had been on duty for all or part of thirteen consecutive days from 14 February 2000 through 27 February 2000. Plaintiff contends this was in violation of 14 C.F.R. § 121.521(b) which states that an airman must be relieved of all duties for at least 24 consecutive hours during any seven consecutive days. 14 C.F.R. § 121.521(b). Plaintiff’s evidence further shows plaintiff had been aloft as a member of a flight crew for 20 or more hours during any 48 consecutive hours and therefore should have been given at least 18 hours of rest before being assigned to any duty with defendant. (a) No certificate holder conducting supplemental operations may schedule an airman to be aloft as a member of the flight crew in an airplane that has a crew of two pilots and at least one additional flight crew member for more than 12 hours during any 24 consecutive hours. (b) If an airman has been aloft as a member of a flight crew for 20 or more hours during any 48 consecutive hours or 24 or more hours dining any 72 consecutive hours, he must be given at least 18 hours of rest before being assigned to any duty with the certificate holder. In any case, he must be relieved of all duty for at least 24 consecutive hours during any seven consecutive days. 14 C.F.R. § 121.521(a)-(b) (2007). “Each pilot who has flown more than eight hours during any 24 consecutive hours must be given at least 16 hours of rest before being assigned to any duty with the certificate holder.” 14 C.F.R. § 121.503(b) (2007). “In any operation in which one flight engineer is serving [,] the flight time limitations in §§ 121.503 and 121.505 apply to that flight engineer.” 14 C.F.R. § 121.511(a) (2007). Plaintiffs evidence also shows plaintiff had flown more than eight hours in the prior 24 hours and would not have had 16 hours of rest before the flight to Greensboro, as required by 14 C.F.R. § 121.503(b). Therefore, plaintiff urges this Court to adopt the plain meaning of each regulation in question which would apparently restrict defendant from assigning plaintiff to any duty during a required rest period. See 14 C.F.R. §§ 121.521, 121.503 (2007). The FAA Office of Chief Counsel offers

CAROLYN DOLORIS TAYLOR, Plaintiff v. HOSPICE OF HENDERSON COUNTY, INC., d/b/a FOUR SEASONS HOSPICE & PALLIATIVE CARE; JOANIE BURNS; and JEANNETTE KUTT, Defendants No. COA08-530 (Filed 2 December 2008) 1. Appeal and Error— appealability — dismissal of NCPWDA claims — remaining claims — possibility of inconsistent verdicts An interlocutory order dismissing plaintiff’s claim under the North Carolina Persons With Disabilities Act was immediately appealable where the trial court denied defendants’ motion to dismiss plaintiff’s remaining claims and there was a risk that two trials and possibly inconsistent verdicts could result. 2. Statutes of Limitation and Repose— relation back— amended summons — name change — not a substitution of parties The trial court erred by dismissing claims under the North Carolina Persons With Disabilities Act where the alleged discriminatory conduct took place on 14 December 2006; the applicable 180 day statute of limitations expired on 12 June 2007; plaintiff’s original summons was issued on that date; an amended summons was issued on 1 August 2007; and the trial court held that the amended summons did not relate back. The amended summons changed “Four Seasons Hospice & Palliative Care, Inc” to “Hospice of Henderson County, Inc., d/b/a Four Seasons Hospice & Palliative Care,” a change that did not amount to a substitution of parties. Appeal by plaintiff from order entered 8 February 2008 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 23 October 2008. Law Offices of Glen C. Shults, by Glen C. Shults, for plaintiff-appellant. McGuire, Wood & Bissette, P.A., by Rendi Mann-Stadt, for defendant-appellees. TYSON, Judge. Carolyn Doloris Taylor (“plaintiff’) appeals order entered, which dismissed her claim under the North Carolina Persons With Disabilities Protection Act (“NCPWDPA”) against Hospice of Henderson County, Inc. d/b/a Four Seasons Hospice & Palliative Care. We reverse and remand. I. Background On 12 June 2007, plaintiff filed a complaint, which named the defendants as: “Four Seasons Hospice & Palliative Care, Inc.; Jamie Burns; and Jeannette Keith, Defendants.” Plaintiff’s complaint asserted claims of: (1) a violation of the NCPWDPA against Four Seasons Hospice & Palliative Care,' Inc.; (2) wrongful discharge in violation of public policy against Four Seasons Hospice & Palliative Care, Inc.; (3) negligent infliction of emotional distress against all defendants; and (4) gross negligence against all defendants. A summons was issued to the named defendants on 12 June 2007. Plaintiff served the complaint, but the summons was never served. On 1 August 2007, plaintiff filed an amended complaint, which named the defendants as: “Hospice of Henderson County, Inc., d/b/a Four Seasons Hospice & Palliative Care; Joanie Burns; and Jeannette Kutt, Defendants.” Plaintiff’s amended complaint stated an additional claim of tortious interference with contract against all defendants. An alias and pluries summons was issued on 1 August 2007. An amended alias and pluries summons was issued on 2 August 2007. Hospice of Henderson County, Inc. d/b/a Four Seasons Hospice & Palliative Care and Joanie Burns were served on 3 August 2007. Jeannette Kutt was served on 8 August 2007. On 10 September 2007, plaintiff “moved, pursuant to Rule 4(i) and 15(a), North Carolina Rules of Civil Procedure, for an order allowing her to file the First Amended Complaint for Damages Injunctive Relief, And Jury Demand, and to amend the summons, and/or alias and pluries summons issued in this case, by changing the names of the defendants . . . .” Defendants’answered plaintiffs amended complaint on 2 October 2007 and moved to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(2), (4), (5), and (6). Plaintiffs “Motion to File a First Amended Complaint and to Amend Summonses Previously Issued and Served in this Case” and defendants’ Motion to Dismiss were heard on 5 February 2008. On 8 February 2008, the trial court filed its order, which: (1) granted plaintiff’s Motion to File First Amended Complaint; (2) granted, in part, plaintiff’s Motion to Amend the 1 August 2007 Alias and Pluries Summonses; (3) held the amended summonses constituted the original summonses; (4) denied plaintiff’s motion to amend the 12 June 2007 summonses; (5) held that the statute of limitations on plaintiff’s NCPWDPA claim had expired before plaintiff commenced her action on 1 August 2007; (6) granted defendants’ motion to dismiss plaintiff’s NCPWDPA claim; and (7) denied defendants’ motion to dismiss plaintiff’s remaining claims. Plaintiff appeals. II. Interlocutory Anneal As a preliminary matter, we note that this appeal is interlocutory. The trial court’s order did not dispose of the entire case. See Veazey v. Durham, 231 N.C. 354, 361-62, 57 S.E.2d 377, 381 (1950) (“A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” (Citations omitted)). Our Supreme Court has stated: A party may appeal an interlocutory order under two circumstances. First, the trial court may certify [pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b)] that there is no just reason to delay the appeal after it enters a final judgment as to fewer than all of the claims or parties in an action. Second, a party may appeal an interlocutory order that affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment. Davis v. Davis, 360 N.C. 518, 524-25, 631 S.E.2d 114, 119 (2006) (internal citations and quotation omitted). The record does not show the trial court entered a Rule 54(b) certification after it dismissed plaintiff’s NCPWDPA claim. Appellate review is unavailable to plaintiff on that basis. Id. In Bowling v. Margaret R. Pardee Mem’l Hosp., this Court held: [The plaintiff]’s North Carolina Disabilities Act claim and his claim for wrongful discharge in violation of public policy, which remains at the trial court level, unquestionably involve the same facts and circumstances, namely, his termination by [the defendant]. If we refuse his appeal, two trials and possibly inconsistent verdicts could result. We therefore address the merits of [the plaintiff]’s arguments .... 179 N.C. App. 815, 818, 635 S.E.2d 624, 627 (2006), disc. rev. denied, 361 N.C. 425, 648 S.E.2d 206 (2007). Based on this Court’s holding in Bowling, the trial court’s order affects a substantial right: the risk that “two trials and possibly inconsistent verdicts could result.” 179 N.C. App. at 818, 635 S.E.2d at 627. The trial court’s order is immediately appealable. Davis, 360 N.C. at 525, 631 S.E.2d at 119. We review the merits of plaintiff’s appeal. III. Issues Plaintiff argues the trial court erred when it: (1) found the amended 1 August 2007 summonses constituted “original summonses” and “[p]laintiff’s action commenced on August 1, 2007 with the issuance of the August 1, 2007 summonses, as amended” and (2) dismissed her NCPWDPA claim based upon the expiration of the applicable statute of limitations. IV. Misnomer Plaintiff argues “the amended complaint and alias [and] pluries summonses only corrected a misnomer, and they did not seek to add, or change, the parties in the case.” We agree. A. Standard of Review Rule 4(i) of the Rules of Civil Procedure permits trial courts to allow in their discretion the amendment of any process or proof of service thereof unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued. [Our Supreme] Court has stated that the discretionary powers of amendment permit the courts to allow amendment to correct a misnomer or mistake in the name of a party. If the amendment amounts to a substitution or entire change of parties, however, the amendment will not be allowed. Harris v. Maready, 311 N.C. 536, 545-46, 319 S.E.2d 912, 918 (1984) (internal citations and quotation omitted) (emphasis supplied). B. Analysis In Franklin v. Winn Dixie Raleigh, Inc., this Court held “[the] plaintiffs’ attempt to amend the original summons was prohibited because it constituted a substitution or entire change of parties.” 117 N.C. App. 28, 36, 450 S.E.2d 24, 29 (1994) (citation and quotation omitted), aff’d per curiam, 342 N.C. 404, 464 S.E.2d 46 (1995). This Court stated: The record shows . . . that “Winn-Dixie Stores, Inc.” was not a corporate entity on record with the Secretary of State. It further shows that at no time pertinent to this action did Winn-Dixie Stores, Inc. ever own, lease or operate the store located at 651 Western Boulevard Extension. Moreover, while Winn-Dixie Stores, Inc. and Winn-Dixie Raleigh, Inc. are both Florida corporations authorized to do business in North Carolina, they have been and were separate and distinct corporations at the time the cause of action accrued. Therefore, we hold that the named defendant in the original summons and complaint, “Winn Dixie Stores, Inc.”, was not a mistake or misdescription permitting the amendment of the summons. Rather, Winn Dixie Stores, Inc. was the correct name of the wrong corporate party defendant, a substantive mistake which is fatal to this action. Quite simply, [the] plaintiffs sued the wrong corporation. Id. at 34-35, 450 S.E.2d at 28. In Kimbrell’s of Sanford v. KPS, Inc., this Court held that “the use of the name Kendale Pawn Shop to refer to the defendant in the complaint was a mere misnomer . . . .” 113 N.C. App. 830, 833, 440 S.E.2d 329, 331 (1994) (citation omitted). This Court stated: The record reveals that there is no separate legal entity known as Kendale Pawn Shop; there is only KPS, Inc., which does business under the name Kendale Pawn Shop. ... It is therefore immaterial that the judgment was entered in favor of KPS, Inc. d/b/a Kendale Pawn Shop while the initial caption of the case referred only to Kendale Pawn Shop. Id. Here, the record reveals and the North Carolina Secretary of State’s records show that there is no North Carolina chartered legal entity known as “Four Seasons Hospice & Palliative Care, Inc.” The chartered entity of “Hospice of Henderson County, Inc.” does business under the name “Four Seasons Hospice & Palliative Care.” Based on this Court’s reasoning in Franklin and Kimbrell’s of Sanford, the amendment did not “amount[] to a substitution or entire change of parties,” but was a “correctfion] [of] a misnomer or mistake in the name of a party.” Franklin, 117 N.C. App. at 34-35, 450 S.E.2d at 28; Kimbrell’s of Sanford, 113 N.C. App. at 833, 440 S.E.2d at 331; Harris, 311 N.C. at 546, 319 S.E.2d at 918. Plaintiff did not “sue[] the wrong corporation^]” but rather used a “misnomer or mistake in the name of’ the corporate entity. Franklin, 117 N.C. App. at 35, 450 S.E.2d at 28; Harris, 311 N.C. at 546, 319 S.E.2d at 918. The trial court erred when it failed to find that the amendment constituted a correction of the original 12 June 2007 summons and denied plaintiff’s motion to amend the 12 June 2007 summons. Harris, 311 N.C. at 546, 319 S.E.2d at 918. V. Statute of Limitations Plaintiff argues the trial court erred when it found “[her] action commenced on August 1, 2007 with the issuance of the August 1, 2007 summonses, as amended . . . .” We agree. A. Standard of Review “Ordinarily, a dismissal predicated upon the statute of limitations is a mixed question of law and fact. But where the relevant facts are not in dispute, all that remains is the question of limitations which is a matter of law.” Udzinski v. Lovin, 159 N.C. App. 272, 273, 583 S.E.2d 648, 649 (2003), aff’d, 358 N.C. 534, 597 S.E.2d 703 (2004) (citations omitted). We review a trial court’s decision to dismiss an action based on the statute of limitations de novo. Id. B. Analysis N.C. Gen. Stat. § 168A-12 (2007) provides: A civil action regarding employment discrimination brought [under the NCPWDPA] shall be commenced within 180 days after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct. A civil action brought [under the NCPWDPA] regarding any other complaint of discrimination shall be commenced within two years after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct. It is undisputed that the alleged discriminatory conduct took place on 14 December 2006 and the applicable 180-day statute of limitations expired on 12 June 2007. Having held that the N.C. Gen. Stat. § 1A-1, Rule 4(i) amendment constituted a correction of the original 12 June 2007 summons, plaintiffs action commenced on 12 June 2007. The trial court erred when it dismissed plaintiffs NCPWDPA claim and found that “[t]he statute of limitations for [p]laintiff to bring her [NCPWDPA] [c]laim . . . expired before [p]laintiff commenced her action . . ..” VI. Conclusion The trial court erred when it found that the amended 1 August 2007 summonses “constitute [d] original summonses as to Hospice of Henderson. County, Inc. d/b/a Four Seasons Hospice & Palliative Care” and denied plaintiffs motion to amend the 12 June 2007 summons. The amendment corrected a “misnomer or mistake” and did not “amount[] to a substitution or entire change of parties . . . .” Harris, 311 N.C. at 546, 319 S.E.2d at 918. Plaintiffs action commenced on 12 June 2007, within the applicable 180-day statute of limitations for her NCPWDPA claim. The corporate defendant cannot claim prejudice because it was served with plaintiffs 12 June 2007 complaint prior to the 1 August 2007 amendment. The trial court’s dismissal of plaintiff’s NCPWDPA claim is reversed. The trial court dismissed plaintiff’s NCPWDPA claim based upon the expiration of the applicable statute of limitations after it found that the “original summons []” was issued on 1 August 2007 and the amendment did not relate back to the 12 June 2007 summons. We express no opinion on the merits, if any, of this claim, or plaintiff’s remaining claims. This case is remanded to the trial court for further proceedings not inconsistent with this opinion. Reversed and Remanded. Judges McCULLOUGH and CALABRIA concur.

Taciana Ribeiro Saab & another vs. Massachusetts CVS Pharmacy, LLC. Suffolk. September 3, 2008. November 13, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Workers’ Compensation Act, Exclusivity provision, Injuries to which act applies. Wrongful Death. Practice, Civil, Wrongful death. Parent and Child, Consortium. Discussion of the purpose of the Workers’ Compensation Act and its exclusivity provisions. [566-568] The exclusivity provision of the Workers’ Compensation Act (act), G. L. c. 152, § 24, barred an employee’s parents from bringing a wrongful death claim against the employer, where the employee’s work-related injury was compensable within the meaning of the act, regardless of the fact that no payments were- actually made because the employee, who had died almost immediately after suffering the injury, had left no dependents. [568-572] Civil action commenced in the Superior Court Department on February 9, 2007. A motion to dismiss was heard by Raymond J. Brassard, J. The Supreme Judicial Court granted an application for direct appellate review. Richard R Campbell (Christopher A. Callarían with him) for the plaintiffs. William J. Dailey, Jr. (Myles W. McDonough with him) for the defendant. John Pagliaro, Martin J. Newhouse, & Jo Anne Shotwell Kaplan, for New England Legal Foundation & another, amici curiae, submitted a brief. Mark S. Giambrone, as next of kin of Cristian Ribeiro Giambrone, by and through Taciana Ribeiro Saab, as administratrix of the estate of Cristian Ribeiro Giambrone. Successor in interest to Longwood Avenue CVS, Inc. Marshall, C.J. We consider in this case whether an exclusivity provision of the Workers’ Compensation Act (act), G. L. c. 152, § 24 (§ 24), bars an employee’s parents from bringing a wrongful death claim against his employer where the employee is injured at work but no workers’ compensation payments are paid for the injury. Here, the employee, Cristian Ribeiro Giambrone, who had no dependents, died almost immediately. Accordingly, no benefits were paid under the workers’ compensation statutory scheme. See G. L. c. 152, § 31 (benefits payable to employee’s dependents on death of employee). Giambrone’s parents, Taciana Ribeiro Saab and Mark S. Giam-brone, commenced an action under the wrongful death statute, G. L. c. 229, § 2, seeking recovery for loss of consortium and punitive damages from Massachusetts CVS Pharmacy, LLC (CVS), the successor in interest to the CVS store where Giam-brone worked at the time of his death. CVS moved to dismiss for lack of subject matter jurisdiction and failure to state a claim on which relief can be granted. Mass. R. Civ. R 12 (b) (1), (6), 365 Mass. 754 (1974). It argued, among other things, that the exclusivity provision of the workers’ compensation scheme barred the parents’ claims, irrespective of whether workers’ compensation benefits had been paid on his behalf. A judge in the Superior Court agreed and allowed the motion. The plaintiffs appealed, and we granted their application for direct appellate review. For the reasons stated below, we conclude that the determination whether an employee’s injury is compensable under the act — and thus whether the exclusivity provision, § 24, applies — does not turn on whether a claimant is entitled to or actually receives compensation under the act. Because Giambrone’s work-related injuries were compensable, his parents are barred from maintaining any action against his employer, CVS. We affirm the judgment of dismissal. 1. Background. The operative facts are not in dispute. Giam-brone was employed at a CVS store on Longwood Avenue in Boston. In February, 2004, while at work, Giambrone and other employees attempted to apprehend a suspected shoplifter. The suspect responded violently, stabbing Giambrone in the neck with a knife. Giambrone died at the scene shortly thereafter. At the time of his death, Giambrone was an eighteen year old high school student who lived at his mother’s home. He was financially dependent on both parents and had no dependents himself. 2. Discussion. We begin with a brief review of the act’s well-established purpose, focusing on its exclusivity provisions. The act “was designed to replace tort actions,” Alves’s Case, 451 Mass. 171, 177 n.9 (2008), by providing “a uniform, statutory remedy for injured workers, in contrast to a piecemeal, tort-based system.” Green v. Wyman-Gordon Co., 422 Mass. 551, 559-560 (1996), quoting Catalano v. First Essex Sav. Bank, 37 Mass. App. Ct. 377, 380 (1994). Employees injured in the course of their employment — and their dependents — may receive predictable compensation at a time of hardship while employers have the benefit of relative cost certainty. See McCarty’s Case, 445 Mass. 361, 369 (2005) (Sosman, J., concurring) (“Protecting the injured worker from the sudden loss of that cash income ... is the goal of the workers’ compensation scheme”); Correia v. Firestone Tire & Rubber Co., 388 Mass 342, 349 (1983) (workers’ compensation laws represent “the Legislature’s balance of competing societal interests”); Zerofski’s Case, 385 Mass. 590, 594 (1982), quoting Madden’s Case, 222 Mass. 487, 494-495 (1916) (“The ‘purpose [of the act] is to treat the cost of personal injuries incidental to . . . employment as a part of the cost of business’ ”). In exchange for “the possibility of obtaining compensation for loss of wages or earning capacity caused by a work-related injury, regardless of the fault of their employers or the foreseeability of harm,” the act “requires that participating employees waive their right to sue in tort for work-related injuries.” Murphy v. Commissioner of the Dep’t of Indus. Accs., 415 Mass. 218, 222 (1993). In other words, the employer “obtains an immunity from actions at law by his employees.” L.Y. Nason, C.W. Koziol, & R.A. Wall, Workers’ Compensation § 26.1, at 313 (3d ed. 2003). “It was undoubtedly the intention of the Legislature ... to take away from employees who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and arising therefrom, and to substitute for such remedies the wider right of compensation given by the act.” Id., quoting King v. Viscoloid Co., 219 Mass. 420, 422 (1914). See Barrett v. Rodgers, 408 Mass. 614, 616 (1990) (employees get “guaranteed right of recovery,” but they are in turn barred from “recovering against their employers for injuries received on the job”); Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 621 (1990) (workers’ compensation law provides fixed compensation for employees; employers are granted immunity in return). The exclusivity provisions applicable to injured workers now extend to their families and dependents. Section 24 and related exclusivity provisions of the act, see, e.g., G. L. c. 152, § 23, “have always been a part of the workmen’s compensation law.” Decker v. Black & Decker Mfg. Co., 389 Mass. 35, 44 (1983). They are its “cornerstone.” Berger v. H.P. Hood, Inc., 416 Mass. 652, 656 (1993) (dealing with § 23). Since the 1985 amendment to the act extending the exclusivity provisions to the parents of employees, see note 6, supra, this court has made clear that § 24 bars the claims of the parents of an employee who suffers a work-related injury, whether or not the parents are dependent on the child. See Russell v. Boston Wyman, Inc., 410 Mass. 1005, 1006 (1991) (clarifying that § 24 applies to employee’s spouse, parents, or children regardless whether any such relative is financially dependent on employee). Moreover, in St. Germaine v. Pendergast, 411 Mass. 615, 627 (1992), a case where workers’ compensation benefits were paid in the wake of a work-related injury (the employee was rendered a paraplegic), we held that § 24 foreclosed an action for loss of consortium brought by the employee’s parents. In this case the parents argue, in essence, that the unavailability of compensation for or on behalf of their son under the act nullifies § 24 as applied to them. But see note 4, supra. They recognize that had their son been survived by dependents, his dependents would have been eligible for workers’ compensation benefits. See G. L. c. 152, § 31. But where such benefits are utterly unavailable under the statutory scheme because Giam-brone left no dependents, it cannot be, they contend, that there can be no recovery for the death of their son against his employer, particularly where — they allege — CVS was wilfully and grossly negligent in the operation of its store on Longwood Avenue. St. Germaine v. Pendergast, supra, has no application, they argue, because in that case benefits were paid to the injured worker, thereby triggering the application of § 24 and barring additional recovery by his parents. Here, in contrast, no compensation has been paid on account of the death of their son, and as such, the injury is not “compensable” and § 24 does not apply. We disagree. The “key” to whether the act precludes a common-law right of action “lies in the nature of the injury for which plaintiff makes claim.” Berger v. H.P. Hood, Inc., supra at 655, quoting Foley v. Polaroid Corp., 381 Mass. 545, 553 (1980). In other words, the key is whether the injury is compensable. General Laws c. 152, § 26, “explains when injuries are compensable.” Lowery v. Klemm, 446 Mass. 572, 579 n.8 (2006). Under § 26, an injury is compensable where the plaintiff is an employee who suffers a “personal injury” that arises “out of and in the course of his employment.” Green v. Wyman-Gordon Co., 422 Mass. 551, 558 (1996), quoting Foley v. Polaroid Corp., supra at 548-549. Cf. Haslam’s Case, 451 Mass. 101, 107-108 (2008) (injury that occurred while employee was driving home not compensable because it did not arise “out of and in the course of employment”); Foley v. Polaroid Corp., supra at 551 (injury to reputation not compensable because it is not “personal injury” under § 26). If a work-related injury is compensable under the act, then § 24 applies and the exclusivity provision bars any other remedies against the employer. See Green v. Wyman-Gordon Co., supra (§ 24 applicable where plaintiff’s emotional distress resulted from injury that met § 26 factors); Foley v. Polaroid Corp., supra at 550. Here Giambrone was an employee who suffered a “personal injury” that arose “out of and in the course of his employment.” His injury is therefore “compensable” irrespective of whether compensation for his injury is available under the act. Accordingly, any remedies against CVS for any wrong suffered as a result of his injury are subject to the strictures of § 24. To hold otherwise — to condition compensability on the payment of compensation — risks “undercutting] the legislative scheme.” Correia v. Firestone Tire & Rubber Co., supra at 349-350. A related question has been addressed in other courts. In Massachusetts a Federal judge construed the application of § 24 in deciding that an employee cannot recover in tort when the employee suffers a work-related injury that causes harm for which no workers’ compensation is payable to the employee under the act. See Crews v. Memorex Corp., 588 F. Supp. 27, 30 (D. Mass. 1984) (“When an injury is within the class of those covered by the workmen’s compensation statute, but no compensation is available because the injury is not disabling as defined in the statute, the exclusivity provision nonetheless bars a tort suit against the employer”). And courts in other jurisdictions construing the exclusivity provisions of their States’ respective workers’ compensation statutes have reached similar conclusions. See, e.g., Cole v. Dow Chem. Co., 112 Mich. App. 198 (1982) (tort claim for sterility barred by exclusive remedy provision even though compensation not payable for sterility); Fetterhoff v. Western Block Co., 44 A.D.2d 1001, 1001 (N.Y. 1975) (State’s high court “has consistently held that the Workmen’s Compensation Law precludes injured employees from asserting personal injury actions against covered employers based on injuries arising out of and in the course of employment, even though the employee suffers some loss not specifically compensated under the Workmen’s Compensation Law”); Doe v. South Carolina State Hosp., 285 S.C. 183, 191-192 (1985) (“[T]he fact that no actual monetary award can be made pursuant to the [workers’ compensation act] . . . has no bearing whatever on the Act’s exclusivity. . . . [T]he Act provides the exclusive remedy for injuries resulting from an accident arising out of and in the course of the employment, whether or not the particular injury may be compensated by a monetary award under the Act”). See also 6 A. Larson & L.K. Larson, Workers’ Compensation Law § 100.05[1], at 315 (2008), and cases cited; L.Y. Nason, C.W. Koziol, & R.A. Wall, Workers’ Compensation § 26.1 (3d ed. 2003) (“The cases nationwide bar a tort action against the employer” where act “clearly covers the injury and thereby bars a common law remedy, but the act provides no compensation for the particular harm suffered”). If the exclusivity provisions of workers’ compensation schemes deprive employees of remedies against their employers for work-related injuries where no compensation is available to them for those injuries, those same exclusivity provisions assuredly apply to family members of the employee. Giambrone’s parents also argue that G. L. c. 152, § 24, violates their rights under art. 11 of the Massachusetts Declaration of Rights by depriving them of a remedy for the loss of their child. Similar arguments concerning the act’s exclusivity provisions previously have been considered and rejected. See Decker v. Black & Decker Mfg. Co., supra at 45 (concluding that “legislative abrogation of the common law right of indemnity [by §§ 23 and 24] does not offend art. 11”); Soares v. Gotham Ink of New England, Inc., 32 Mass. App. Ct. 921, 923 (1992) (rejecting claim that 1985 amendment expanding scope of § 24 violated art. 11 by failing to provide substitute remedy for family members of employees). Article 11 “has never been construed to grant to any person ‘a vested interest in any rule of law entitling [such person] to insist that it shall remain unchanged for his benefit.’ ” Decker v. Black & Decker Mfg. Co., supra at 44, quoting New York Cent. R.R. v. White, 243 U.S. 188, 198 (1917). The plaintiffs have offered us no persuasive reason to revisit the issue. The result we reach today may leave some injured workers or their families without a remedy against an employer for a work-related injury caused by the employer’s negligence. The judge in the Superior Court noted that the events underlying this case were heart-rending. Without expressing any view on the merits of the damages sought by the parents against their son’s employer, he found it troubling that there appeared to be no remedy available to the parents against the employer for a claimed wrong. Cf. 6 A. Larson & L.K. Larson, supra at § 100.05[l][a] (“The most troublesome cases are those in which the act clearly covers the injury and thereby bars all common-law rights, but because of the failure of the compensation system to award benefits for the particular kind of harm, gives the worker nothing in return”). As the judge correctly noted, however, it is not the role of courts to create a more comprehensive or logical system of compensation. See Doherty's Case, 294 Mass. 363, 366 (1936). That is a task for the Legislature. See Correia v. Firestone Tire & Rubber Co., supra at 349 (workers’ compensation laws are “economic regulations representing the Legislature’s balance of competing societal interests and ... the courts have no place in reshaping public policy in the face of such comprehensive legislation”); Longever v. Revere Copper & Brass Inc., 381 Mass. 221, 225 (1980) (“Deficiencies in the compensation awards pursuant to the [workers’ compensation] statute are matters of concern for the Legislature”). 3. Conclusion. For the foregoing reasons, the judgment of the Superior Court dismissing the plaintiffs’ complaint is affirmed. So ordered. General Laws c. 152, § 24, states, in relevant part: “If an employee has not given notice to his employer that he preserves his right of action at common law as provided by this section, the employee’s spouse, children, parents and any other member of the employee’s family or next of kin who is wholly or partly dependent upon the earnings of such employee at the time of injury or death, shall also be held to have waived any right created by statute, at common law, or under the law of any other jurisdiction against such employer, including, but not limited to claims for damages due to emotional distress, loss of consortium, parental guidance, companionship or the like, when such loss is a result of any injury to the employee that is compensable under this chapter.” CVS Caremark Corporation paid for certain of Giambrone’s funeral expenses. The payments, the defendant contends, were “compensation” under the act. See G. L. c. 152, § 33 (providing for payment of burial expenses). The plaintiffs respond that such payments were not workers’ compensation payments because they were made not by the employer — Longwood Avenue CVS, Inc., or Massachusetts CVS Pharmacy, LLC — but by a “wholly different corporation” and were made because of the threat of litigation rather than as payments under the act. In light of our holding, resolution of any factual dispute on this point is unnecessary. General Laws c. 229, § 2, provides, in relevant part: “A person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted . . . shall be liable in damages in the amount of: (1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered; (2) the reasonable funeral and burial expenses of the decedent; (3) punitive damages in an amount of not less than five thousand dollars in such case as the decedent’s death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant; except that (1) the liability of an employer to a person in his employment shall not be governed by this section .... A person shall be liable for the negligence or the willful, wanton or reckless act of his agents or servants while engaged in his business to the same extent and subject to the same limits as he would be liable under this section for his own act. Damages under this section shall be recovered in an action of tort by the executor or administrator of the deceased.” Prior to 1985, G. L. c. 152, § 24, barred claims of employees only. In response to this court’s decision in Ferriter v. Daniel O’Connell’s Sons, 381 Mass. 507 (1980), which recognized a claim for loss of consortium against an employer brought by an employee’s wife, the Legislature amended the act to extend the exclusivity provision of § 24 to bar tort and statutory claims brought by family members of an employee injured in a work-related incident. St. 1985, c. 572, § 35. See Russell v. Boston Wyman, Inc., 410 Mass. 1005, 1007 (1991) (describing purpose of 1985 amendment). General Laws c. 152, § 23, provides: “If an employee files any claim or accepts payment of compensation on account of personal injury under this chapter, or submits to a proceeding before the [Department of Industrial Accidents] under [§§ 10 to 12], inclusive, such action shall constitute a release to th

Michael Mullally & another vs. Waste Management of Massachusetts, Inc. Norfolk. September 4, 2008. November 6, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Labor, Public works, Overtime compensation, Wages. Public Works, Wage determination. Municipal Corporations, Contracts, Refuse collection and disposal. Statute, Construction. Administrative Law, Agency’s interpretation of statute. Words, “Regular rate.” Discussion of G. L. c. 151, § 1A, the statute governing overtime compensation, and G. L. c. 149, § 27F, which mandates a particular minimum wage for certain public works contracts. [528-529] In the circumstances of a civil action brought by representatives of a class of waste disposal truck drivers and laborers currently or formerly employed by the defendant, alleging improper calculation of overtime compensation, the defendant’s payroll formula, in which the employer calculated employees’ overtime wages using a base pay rate less than the applicable prevailing wage, and then averaging the employees’ nonovertime and overtime pay in order to meet or exceed the prevailing wage rate after making certain deductions, violated G. L. c. 151, § 1A, where the formula frustrated the statute’s purposes of reducing the number of hours of work, encouraging the employment of more persons, and compensating employees for the burden of a long work week. [530-533] In the circumstances of a civil action brought by representatives of a class of waste disposal truck drivers and laborers currently or formerly employed by the defendant, alleging improper calculation of overtime compensation, this court concluded that the term “regular rate” in G. L. c. 151, § 1A, referred to the prevailing wage set by the director of the Department of Labor for waste disposal employees performing under municipal contracts. [534-536] Civil action commenced in the Superior Court Department on May 25, 2006. Motions for summary judgment were heard by Charles M. Grabau, J., and questions of law were reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Paul E. Nemser for the defendant. F. Henry Ellis, III, for the plaintiffs. Donald Siegel & Nicole Horberg Decter, for Massachusetts Building Trades Council, amicus curiae, submitted a brief. Karla E. Zarbo, Assistant Attorney General, for the Commonwealth & another, amici curiae, submitted a brief. Steven Neitlich. Spina, J. The plaintiffs, who represent a class of waste disposal truck drivers and laborers currently or formerly employed by the defendant, Waste Management of Massachusetts, Inc. (Waste Management), commenced a suit against Waste Management alleging, inter alia, that its payroll formula violated G. L. c. 149, § 27F, which mandates a particular minimum wage for certain public works contracts, and G. L. c. 151, § 1A, which governs overtime compensation. On cross motions for summary judgment, the judge ruled that Waste Management’s payroll formula complied with G. L. c. 149, § 27F, but violated G. L. c. 151, § 1A. The judge, on Waste Management’s unopposed motion, reported the following two questions of law to the Appeals Court pursuant to Mass. R. Civ. R 64, as amended, 423 Mass. 1410 (1996): “1) Whether the defendant complied with prevailing wage law [G. L. c. 149, § 27F,] by paying wages which, when averaging overtime and straight earnings, meet the prevailing wage rate; “2) Whether the defendant violated prevailing overtime [wage] law [G. L. c. 151, § 1A,] by calculating overtime wages using a regular hourly rate less than the prevailing wage eligible employees must be paid.” We granted Waste Management’s application for direct appellate review. Because the judge concluded that there was no violation of the prevailing wage law and the plaintiffs did not challenge that ruling or brief it on appeal, we find it unnecessary to answer the first question. Statutory framework. General Laws c. 151, § 1A, provides, in relevant part: “Except as otherwise provided in this section, no employer in the commonwealth shall employ any of his employees ... for a work week longer than forty hours, unless such employee receives compensation for his employment in excess of forty hours at a rate not less than one and one half times the regular rate at which he is employed.” General Laws c. 149, § 27F, which is set out in the margin, requires that the prevailing wage rate set by the director of the Department of Labor be paid to waste disposal employees performing under municipal contracts. See Perlera v. Vining Disposal Serv., Inc., 47 Mass. App. Ct. 491, 496 (1999) (§ 27F applies to municipal waste disposal contracts). An employer may prorate on an hourly basis qualifying health and welfare benefits paid on behalf of an employee and deduct that amount from the prevailing wage rate. G. L. c. 149, § 27F. Facts. We summarize the undisputed material facts. Waste Management provides solid waste disposal services to various municipalities. Waste Management must pay employees the prevailing wage rate for work performed under contracts with those municipalities. Waste Management utilizes a complicated payroll formula that assigns employees engaged in prevailing wage work a “base pay rate” below the applicable prevailing wage rate. It determines the base pay rate based on an assumption as to how many hours, including overtime hours, an employee typically works each week, and uses the base pay rate to calculate overtime pay, paying the employee the base pay rate for the first forty, “straight time” hours worked and one and one-half times the base pay rate for each overtime hour. Waste Management then averages the employee’s nonovertime and overtime pay in order to meet or exceed the prevailing wage rate after the deduction of qualifying health and welfare benefits. By using this base pay rate, Waste Management uses overtime compensation to “influence” an employee’s gross wages. When an employee’s average hourly rate in a given week falls below the prevailing wage rate because the employee has worked fewer hours than projected, Waste Management issues a “buffer check” payment to bring the employee’s earnings into compliance with G. L. c. 149, § 27F., Discussion. Waste Management contends that so long as employees are paid an hourly wage not less than the prevailing wage after qualifying deductions for all hours worked, including overtime, the requirements of G. L. c. 151, § 1A, are satisfied. We disagree. We interpret G. L. c. 151, § 1A, “according to the intent of the Legislature, as evidenced by the language used, and considering the purposes and remedies intended to be advanced.” Glasser v. Director of the Div. of Employment Sec., 393 Mass. 574, 577 (1984). “We do not overlay the words of a statute with a convention of statutory construction that ‘would frustrate the general beneficial purposes of the legislation.’ ” Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 454-455 (2007), quoting Harborview Residents’ Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432 (1975). Waste Management’s use of a base pay rate below the prevailing wage rate frustrates the purposes of G. L. c. 151, § 1A. General Laws c. 151, § 1A, was “intended to be ‘essentially identical’ ” to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 207(a)(1) (2000). Swift v. AutoZone, Inc., 441 Mass. 443, 447 (2004), quoting Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 40 (1st Cir. 1999). Compare 29 U.S.C. § 207(a)(1) (2000) with G. L. c. 151, § 1A. Accordingly, we ascribe the legislative purposes underlying the FLSA to G. L. c. 151, § 1A, see Poirier v. Superior Court, 337 Mass. 522, 527 (1958) (“The adjudged construction by the Federal courts is to be given to the subsequent enactment by the Legislature”), and conclude that G. L. c. 151, § 1A, aims to reduce the number of hours of work, encourage the employment of more persons, and compensate employees for the burden of a long workweek. See Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 423-424 (1945). In light of the purposes underlying G. L. c. 151, § 1A, Waste Management’s payroll formula is untenable. Waste Management evades the economic disincentive to have an employee work more than forty hours a week in that it ultimately pays the employee an hourly wage equal to or nearly equal to the prevailing wage rate regardless of whether the employee works overtime. Using the hypothetical in note 10, supra, an employee would receive $22 per hour regardless of whether the employee worked forty or fifty hours. Even if an employee received slightly more than $22 per hour for having worked some overtime, that marginal increase hardly provides Waste Management with the economic disincentive intended by G. L. c. 151, § 1A. Moreover, unlike employers who may hire more employees in order to avoid paying existing employees overtime, Waste Management obviates the need to hire additional employees by using the “influence” of overtime compensation on an employee’s gross earnings to produce an average hourly wage equal or nearly equal to the prevailing wage rate, which Waste Management would otherwise pay to additional employees. Waste Management’s payroll formula also does not compensate employees for longer work weeks, as illustrated by the fact that an employee performing prevailing wage work receives approximately the same hourly wage regardless whether the employee works overtime. The frustration of the purpose of G. L. c. 149, § 27F, provides yet another reason for rejecting Waste Management’s payroll formula. See Larson v. School Comm. of Plymouth, 430 Mass. 719, 724 (2000) (related statutes should be construed harmoniously and to implement intent of Legislature). The prevailing wage law endeavors to achieve parity between the wages of workers engaged in public construction projects and workers in the rest of the construction industry. See McCarty’s Case, 445 Mass. 361, 377 (2005) (Sosman, J., concurring); Felix A. Marino Co. v. Commissioner of Labor & Indus., 426 Mass. 458, 460 (1998). Waste Management’s formula subverts the purpose of G. L. c. 149, § 27F, by enabling Waste Management to offer its services for less than what is customarily charged by its competitors for nonpublic works contracts. In the hypothetical in note 10, supra, Waste Management may offer its services for substantially less ($20 per hour for straight time and $30 for each overtime hour) than other similarly situated service providers (who pay employees $22 per hour for straight time and $33 for overtime) by using a base pay rate lower than the prevailing wage rate to calculate overtime compensation. In so doing, Waste Management undermines the wage protections embodied in the prevailing wage laws. See McCarty’s Case, supra at 377 (Sosman, J., concurring); Felix A. Marino Co. v. Commissioner of Labor & Indus., supra at 460. Our conclusion that Waste Management’s payroll scheme violates G. L. c. 151, § 1A, is consistent with an opinion letter issued by the division of occupational safety, the division of the Department of Labor charged with implementing G. L. c. 149, § 27F, and G. L. c. 151, § 1A, during this litigation. The division concluded that Waste Management’s payroll formula violated G. L. c. 151, § 1A, because G. L. c. 149, § 27F, required Waste Management to pay its employees an hourly wage equal to the prevailing wage rate minus qualifying deductions and that overtime compensation should have been calculated based on that figure. Because the agency’s interpretation is not contrary to the plain language of the statutes or their underlying purposes, it is entitled to deference. See Teamsters Joint Council No. 10 v. Director of the Dep’t of Labor & Workforce Dev., 447 Mass. 100, 109-110 (2006). Contrast Swift v. AutoZone, Inc., supra at 450 (opinion letter not entitled to deference because it was contrary to law). One final issue warrants discussion. The parties have expended considerable energy debating the meaning of the term “regular rate” in G. L. c. 151, § 1A. Title 455 Code Mass. Regs. § 2.02(3) (2003) provides that the overtime rate, subject to certain exemptions not relevant here, shall be “[o]ne and one half times an employee’s regular hourly rate, such regular hourly rate not to be less than the basic minimum wage . . . ,” “Regular hourly rate” refers to “[t]he amount that an employee is regularly paid for each hour of work.” 455 Code Mass. Regs. § 2.01 (2003). The regulation further explains: “When an employee, other than an employee exempt from overtime under [G. L.] c. 151, § 1A, is paid on a piece work basis, salary, or any basis other than an hourly rate, the regularly [szc] hourly rate shall be determined by dividing the total hours worked during the week into the employee’s total weekly earnings. Regardless of the basis used, whether time rate, commission basis or piece rate, an employee shall be paid not less than the applicable minimum wage each week. The regular hourly rate shall include all remuneration for employment paid to, or on behalf of, the employee, but shall not include: ...(b) sums excluded under 29 U.S.C. § 207(e).” (Emphasis added.) Id. “[I]nterpret[ing] [the] regulation in the same manner as a statute, and according to traditional rules of construction,” Warce-wicz v. Department of Envtl. Protection, 410 Mass. 548, 550 (1991), the clear implication of 455 Code Mass. Regs. § 2.01 is that the rate paid to hourly employees forms the basis for calculating overtime and that that rate shall not be less than the “applicable minimum wage.” See id. The applicable minimum wage for public works contracts is the prevailing wage. This interpretation finds support in other sections of G. L. c. 149 that describe the prevailing wage rate as a minimum wage rate. See G. L. c. 149, § 26 (minimum wage rate). See also G. L. c. 149, § 27 (minimum rate or rates of wages). If, as Waste Management contends, the term “applicable minimum wage” was intended to refer to the basic minimum wage, see G. L. c. 151, § 1; 455 Code Mass. Regs. § 2.02(1), then the regulations would have explicitly stated so. This is especially true where, as here, the regulations use the term “basic minimum wage,” 455 Code Mass Regs. § 2.02(1), to refer to the absolute floor on wages set by G. L. c. 151, § 1. See Ginther v. Commissioner of Ins., 427 Mass. 319, 324 (1998) (“Where the Legislature used different language in different paragraphs of the same statute, it intended different meanings”). Even if the regulations do not expressly require an employer to calculate overtime using the prevailing wage rate, we will not interpret the regulations “in a way that produces a result which ‘is contrary to the plain language of [G. L. c. 151, § 1A,] and its underlying purpose.’ ” TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 13 (2000), quoting Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997). Conclusion. For the foregoing reasons, we answer the second question, “Yes,” and find it unnecessary to answer the first question. The case is remanded to the Superior Court for further proceedings consistent with this opinion. So ordered. Two of the plaintiffs’ other claims are derivative of their claim under G. L. c. 151, § 1A. After concluding that Waste Management violated G. L. c. 151, § 1A, the judge allowed the plaintiffs’ motion for summary judgment on those claims. The judge denied Waste Management’s motion for summary judgment as to whether its violation of G. L. c. 151, § 1A, was wilful, see G. L. c. 151, § IB (permitting award of treble damages, costs, and attorney’s fees for wilful violations); G. L. c. 149, § 150 (same), reasoning that there was a genuine issue of material fact. We acknowledge the amicus briefs submitted in support of the plaintiffs by the Attorney General, on behalf of the Commonwealth and the Department of Labor’s division of occupational safety, and the Massachusetts Building Trades Council. Waste Management does not contend that any of the statutory exemptions set forth in G. L. c. 151, § 1A (l)-(20), apply in this case. General Laws c. 149, § 27F, states, in pertinent part: “No agreement of lease, rental or other arrangement, and no order or requisition under which a truck or any automotive or other vehicle or equipment is to be engaged in public works by the commonwealth or by a county, city, town or district, shall be entered into or given by any public official or public body unless said agreement, order or requisition contains a stipulation requiring prescribed rates of wages, as determined by the commissioner, to be paid to the operators of said trucks, vehicles or equipment. Any such agreement, order or requisition which does not contain said stipulation shall be invalid, and no payment shall be made thereunder. Said rates of wages shall be requested of said commissioner by said public official or public body, and shall be furnished by the commissioner in a schedule containing the classifications of jobs, and the rate of wages to be paid for each job. Said rates of wages shall include payments to health and welfare plans, or, if no such plan is in effect between employers and employees, the amount of such payments shall be paid directly to said operators." Although G. L. c. 149, § 27F, refers to the “commissioner," the statute defines “commissioner” as “the director of the department of labor.” G. L. c. 149, § 1. In the plaintiffs’ case, Waste Management determined the base pay rate by projecting that the plaintiffs would work approximately 55.6 hours per week. Based on this assumption, Waste Management set the plaintiffs’ base pay rate at $18.98 per hour, which results in an average hourly rate of $21.64, the prevailing wage rate applicable to the plaintiffs after the deduction of qualifying health and welfare benefits [(40 x $18.98) + (15.6 x [$18.98 x 1.5])]/55.6 = $21.64], General Laws c. 149, § 27F, does not state specifically that the prevailing wage rate is the hourly rate employees are to be paid for the first forty hours of weekly wages. Waste Management contends that because the statute does not equate the two rates, § 27F may be construed as requiring payment of the prevailing wage rate for the total number of hours each week, including overtime hours. Under this approach, the prevailing wage rate is a fixed rate, and the “base pay rate,” the hourly rate for the first forty hours, is actually a floating weekly rate, depending on the number of overtime hours actually worked. Waste Management’s use of the “buffer check” is an artificial device designed to keep the base pay rate floating in the same place each week. The effect is to make the base pay rate appear fixed, or “regular,” when in fact it is not. A buffer check payment also includes payment of an overtime premium on the payment needed to bring the employee’s wages into compliance with the prevailing wage statute. To illustrate Waste Management’s formula, we offer the following hypothetical. The prevailing wage rate for waste removal services for a hypothetical municipality is set at $25 per hour. Waste Management may deduct $3 per hour from the prevailing wage rate for qualifying health and welfare benefits, and therefore must pay the employee $22 per hour. Waste Management anticipates that its employee will work exclusively on the contract with the municipality for fifty hours every week. Based on these assumptions, Waste Management will set its base pay rate at $20 per hour to ensure that the employee receives an average wage of at least $22 per hour for all hours worked, paying the employee $20 per hour for the first forty “straight time” hours and $30 per hour for each overtime hour. Waste Management will determine the base pay rate, B, as follows: [(40 hours x B) + 10 hours (1.5 B)]/50 = $22 per hour [ 55 B]/50 = $22 per hour B = $20 per hour If the employee works only forty hours one week,