Owens v. City of Malden

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

JACK OWENS, JEFFREY DREES, KATELYN )

MURPHY, PATRICK MANOLIAN, SCOTT )

MANN, and SEAN HUSSEY, on behalf )

of themselves and all others )

similarly situated, )

)

Plaintiffs, )

)

v. ) CIVIL ACTION

) NO. 19-11835-WGY

CITY OF MALDEN, )

)

Defendant. )

)

YOUNG, D.J. October 4, 2021

MEMORANDUM OF DECISION

I. INTRODUCTION

Police officers in the City of Malden (collectively, the

“Plaintiffs” or “Officers”) initiated this putative class action

against the City of Malden (the “City”) to recover wages for

performing paid detail work for both the City and for third

parties. The Plaintiffs allege violations of the Massachusetts

Wage Act (the “Wage Act”), Mass. Gen. Laws ch. 149, § 148, and

the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219.

On August 28, 2019, Officers Jack Owens, Jeffrey Drees,

Katelyn Murphy, Patrick Manolian, Scott Mann, and Sean Hussey

(collectively, the “Named Plaintiffs”) filed a class-action

complaint in this Court against the City. See Compl., ECF

No. 1. On November 27, 2019, the Named Plaintiffs filed an

amended complaint. See Am. Compl., ECF No. 8.

The amended complaint alleges a violation of the FLSA in

count I, see id. ¶¶ 45, 46, (the “FLSA claim”) and the Wage Act

in count II, see id. ¶¶ 47, 48, (the “Wage Act claim”).

Specifically, the Plaintiffs claim that the City violated their

rights by unlawfully deducting an administrative fee of ten

percent from their respective wages for the provision of police

detail work. See id. ¶¶ 46, 48.

The docket in this matter contains 110 formal notices, see

Formal Notices Filing Consent Sue, ECF Nos. 34-143, filed on

August 21, 2020, and a further three formal notices, Formal

Notices Filing Consent Sue, ECF Nos. 187-189, filed on April 15,

2021 (collectively, the “Notices”). The Notices are filed on

behalf of “current or former employee[s] of the Malden Police

Department, represented for collective bargaining purposes by

either the Malden Police Patrolmen’s Association or the Malden

Police Superior’s association” (collectively, the “Opt-In

Plaintiffs”). See, e.g., John A. Delaney’s Consent Opt In

Plaintiff (“Opt-In Sample Delaney”), ECF No. 143.1 The Notices

1 Officer Delaney’s notice is referenced here as a sample

notice. All filed Notices are identical, save for a section

that includes space for an Officer’s manuscript signature, the

date of execution of the document, and a space for an Officer’s

printed name. See Opt-In Sample Delaney 1.

reference the Plaintiffs’ Wage Act and FSLA claims. See, e.g.,

id.

At a hearing on the parties’ cross-motions for summary

judgment on February 22, 2021, the Court certified a class in

relation to the Plaintiffs’ Wage Act and FLSA claims. See Tr.

Zoom Hr’g Summ. J. & Final Pretrial (“Tr. Summ. J.”) 6:17, ECF

No. 198.

A five-day jury-waived trial was held remotely on the

Court’s Zoom platform between May 5, 2021 and May 11, 2021 (the

“trial”), during which the parties presented their arguments and

examined several witnesses. See Electronic Clerk’s Notes, ECF

Nos. 229-235, 243-44. The Court heard evidence from Richard

Howard, former mayor of the City of Malden, on May 5, 2021 (“day

one” of the trial), see id., ECF No. 230; Gary Christensen, the

current mayor of the City of Malden, on day one and on May 6,

2021 (“day two” of the trial), see id., ECF Nos. 230, 231;

Charles Ranaghan (“Ranaghan”), the City’s controller, on day two

and on May 7, 2021 (“day three” of the trial), see id., ECF Nos.

231, 232; the City of Malden Police Chief Kevin Molis (“Chief

Molis”) on day three and on May 10, 2021 (“day four” of the

trial), see id., ECF Nos. 232, 243; City of Malden Police

Captain John Amirault on day four of the trial, see id., ECF No.

243; Margaret Sullivan, the City’s detail clerk, on day four and

on May 11, 2021 (“day five” of the trial), see id., ECF Nos.

243, 244; and from Named Plaintiff City of Malden Police Officer

Jack Owens (“Owens”) on day five of the trial, see id., ECF No.

244.

Both parties filed pre-trial briefing. See Def.’s Trial

Br. (“City’s Pre-Trial Br.”), ECF No. 197; Pls.’ Trial Br.

(“Pls.’ Pre-Trial Br.”), ECF No. 200.

The City’s motion for judgment on partial findings, Def.’s

Mot. J. Partial Findings (“Mot. J. Partial Findings”), ECF No.

237, filed during the ongoing trial on May 10, 2021, was allowed

in part and denied in part, see Electronic Clerk’s Notes, ECF

No. 243. The Court allowed the City’s motion with respect to

Opt-In Plaintiff Heidi Mccormick and ruled that a workweek runs

from Saturday of one calendar week until Saturday of the

following calendar week. See Tr. Zoom Bench Trial (“Bench Trial

Tr. Day Four”) 75:15-24, ECF No. 261.2 The motion was otherwise

denied. Id.

The City also filed a motion to decertify the Plaintiffs’

FLSA claim on May 10, 2021. See Def.’s Mot. Decertify, ECF No.

236. The Court did not rule on the motion.

After the conclusion of the trial, the Court invited the

parties to file post-trial briefs, which the City did on May 18,

2 Consequently, 112 Opt-In Plaintiffs currently remain in

this action. See generally Notices; Bench Trial Tr. Day Four

75:15-24.

2021. See Def.’s Post-Trial Br. (“City’s Post-Trial Br.”), ECF

No. 239. The Plaintiffs filed a post-trial brief on May 28,

2021. Pls.’ Post-Trial Br., ECF No. 240.

At a hearing on June 2, 2021, the Court made its post-trial

rulings. See Electronic Clerk’s Notes, ECF No. 245; Tr. Zoom

Hr’g Rulings (“Tr. Rulings”), ECF No. 247. An order pertaining

to the timing of actions required of the parties and to other

future events yet to occur in this matter was entered on June

10, 2021. See Order (“Timing Order”), ECF No. 246. The Court’s

full written opinion is set out below.

In accordance with the Court’s post-trial rulings and the

Timing Order, judgment is yet to enter regarding the individual

Plaintiffs’ entitlement to any compensation with respect to the

Wage Act claim or the FLSA claim.

II. FINDINGS OF FACT

A. General Facts

The City is a municipality located in Middlesex County,

Massachusetts. The parties agree that the City employs the

Officers who work for the City of Malden Police Department. See

City’s Pre-Trial Br. ¶ 2; Pls.’ Pre-Trial Br. ¶¶ 2, 3, 5, 6.

The City of Malden Police Department distinguishes between

Officers on the basis of rank. See Trial Ex. 8, Police Manual

Police Department City Malden (“Police Manual”) § I.B, II

(discussing the various roles of each rank in Section I.B.

“Rules and Regulations: Definitions” and Section II “Duties by

Rank and Assignment). Officers of Rank are Sergeants,

Lieutenants, Captains, and the Chief of Police. See Police

Manual § II (outlining duties of ranking officer in Section II

“Duties by Rank and Assignment”). According to Chief Molis’s

testimony, all City of Malden Police Officers are sworn in and

eligible to perform detail work. See Tr. Zoom Bench Trial

(“Bench Trial Tr. Day Three”) 107:13-21, ECF No. 260.

The Named Plaintiffs Jack Owens, Katelyn Murphy, Patrick

Manolian, Scott Mann, and Sean Hussey are Patrolmen. See Pls.’

Pre-Trial Br. ¶¶ 5, 6 (providing a “complete list of

plaintiffs,” including individual rank designations). Named

Plaintiff Jeffrey Drees is an Officer of Rank, a Sergeant. Id.

The Opt-In Plaintiffs in this action include Patrolmen and

Officers of Rank. Id.

Patrolmen are members of the Malden Police Patrolmen’s

Association, Inc. (the “Patrolmen’s Union”), and Superior

Officers are members of “MassCOP Local 479” (the “Superior

Officers’ Union”) (collectively, the “Unions”). See id. ¶¶ 212,

216.

Agreements between the Unions and the City govern general

aspects of the relationship between the parties. See generally

Trial Ex. 5, Contract Between City Malden & Malden Police

Patrolmen’s Association, Inc. July 1, 2018 through June 30, 2021

(“Agreement”) (collective bargaining agreement between the City

and the Patrolmen’s Union); Trial Ex. 13, Mem. Agreement

(“Memorandum”) (agreement between the Superior Officers’ Union

and the City executed on March 2, 2021).

B. Work Schedules, Overtime, and Detail Work

Generally, some Officers work an administrative schedule,

Monday through Friday, eight hours per day. See City’s Pre-

Trial Br. ¶ 13. Others work platoon shifts, two or three

sixteen-hour shifts per calendar week, totaling thirty-two or

forty-eight hours, with off-duty days in between. Id. ¶ 11.

Officers are paid a salary that is not necessarily tied to the

number of hours worked. See Tr. Zoom Bench Trial (“Bench Trial

Tr. Day Two”) 60:14-16, ECF No. 259 (Ranaghan’s Testimony).

In addition to their routine work schedules, the Plaintiffs

in this action also regularly provide police details (“detail

work”). See Bench Trial Tr. Day Three 108-109 (Molis’s

Testimony). Detail work refers to services provided by Officers

during their off-duty hours in response to a request made by a

City Department (a “city detail” or “city detail work”) or by a

private third party (a “private detail” or “private detail

work”). See id. According to Chief Molis, the broad purpose of

detail work is to provide a public service and public safety.

See id. 105:22-24. Detail work can be planned, as for road

construction projects or scheduled strike actions, or unplanned,

such as when a water main breaks unexpectedly. See id. 108,

119-20. The overwhelming majority of detail work is private

detail work. See Bench Trial Tr. Day Four 12:23-25, 13:1-3

(Molis’s Testimony). Private detail work is provided on the

basis of an agreement between the City and the private person or

entity requesting the detail. See id. 12-13. A list of City of

Malden Departments (the “City Departments”) was provided by the

City during the trial. See Trial Ex. 45, City of Malden

Departments. According to Ranaghan, the list identifies the

City Departments that would be capable of making a request for a

city detail. See Bench Trial Tr. Day Four 81:9-16 (Ranaghan’s

Testimony).

Chief Molis testified that all Officers are eligible to

perform detail work. See Bench Trial Tr. Day Three 107:17-19

(Molis’s Testimony). All detail work is performed on a

voluntary basis during an Officer’s off-duty hours. See id.

109:3-9. Once Officers have signed up for a detail work

assignment, they are required to attend. See id. 110:8-10.

Officers wear their uniforms, including their duty belt,

while performing detail work. See id. 112:3-5. The party

requesting a police detail generally cannot deviate from this

requirement by asking Officers to wear different clothing or

equipment. See id. 113. According to Chief Molis, while

performing detail work, Officers are bound by the rules and

regulations applicable to police details, the traffic rules, the

code of conduct, and common sense. See id. 111:19-25, 112:12-

21; see also Trial Ex. 12, Malden Police Department Detail Rules

& Procedures (the “Detail Rules and Procedures”) ¶¶ II.9, II.12,

II.22 (outlining the code of conduct for details under “Detail

Rules”). The scope of work for a specific detail assignment is

determined by the person or entity who requested the detail.

See Bench Trial Tr. Day Three 110:16-25, 111:8-18. That person

or entity has some control over how an Officer acts during his

or her detail work. Id. Officers, however, are required not to

perform illegal, improper, or unsafe detail work. See id. 112.

Ranaghan testified that Officers receive compensation for

overtime work on an hourly basis. See Bench Trial Tr. Day Two

130:20-25. Prior to the execution of the Memorandum on March 2,

2021, the City did not differentiate between city detail work

and private detail work when paying Officers for detail work.

Id. 131:15-19 (Ranaghan’s Testimony). Since the execution of

the Memorandum on March 2, 2021, the City has not kept track of

overtime hours for Officers unless they are Superior Officers.

See id. 78:8-20, 87:21-25, 88:1.

C. Detail Work Organization and Fee Administration

The organization of the detail process is under the

exclusive direction and control of the detail board, which

comprises representatives and members of the Unions. See

Agreement Art. 23, § 5 (describing how the detail board is

selected and composed and endowing the detail board with the

power to “establish rules and procedures pertaining to

details . . . hear complaints pertaining to details[,] and

rectify them in accordance with the rules they establish”); id.

Art. 23, § 8 (“The detail board shall have control over all

matters having to do with details.”).

The City employs and pays a detail clerk, Margaret Sullivan

(“Sullivan”), who is not a member of a Union, see Bench Trial

Tr. Day Three 7:6-13 (Ranaghan’s Testimony), and who organizes

and performs tasks related to detail work administration for the

Police Department, see Bench Trial Tr. Day Four 95:7-11

(Sullivan’s Testimony); see also Agreement Art. 23, § 9.

Sullivan was hired by the detail board on January 29, 2010. See

Trial Ex. 22, Offer Letter Detail Clerk Margaret Sullivan.

According to Sullivan, the names of Officers interested and

willing to perform detail work are entered on a spreadsheet, see

Trial Ex. 23-28, Detail Work Spreadsheets 2016-2021 (the

“Spreadsheet”), which the detail clerk maintains, see Tr. Zoom

Bench Trial (“Bench Trial Tr. Day Five”) 8:2-7, ECF No. 262.

The Spreadsheet has existed since at least 2016. See Bench

Trial Tr. Day Two 45:16-25 (Ranaghan’s Testimony). Private

persons or entities who wish to obtain a police detail typically

contact the detail clerk on a designated telephone line and

provide preliminary information regarding the detail work

location, date and start time, and name and contact information

of the party seeking the detail. See Bench Trial Tr. Day Four

96:8-13 (Sullivan’s Testimony). The detail work is then offered

to Officers listed on the Spreadsheet, and they may accept or

reject it. See id. 97:10-25. After completing the detail work,

Officers return a slip to the detail clerk, containing basic

detail work information, including the name of the person or

entity for whom the detail work was completed, the Officer’s

name, the location of the detail, and the hours worked. See id.

98:11-25, 99:1-2.

The Spreadsheet is maintained annually and further grouped

by Officer and pay date. See generally Spreadsheet. The

Spreadsheet also includes information related to the date,

duration of specific detail work (in hours), the party

requesting it, and the corresponding monetary value, with a

total figure for the relevant pay period. Id. Since August

2020, the Spreadsheet has been sent to Ranaghan on a bi-weekly

basis. See Bench Trial Tr. Day Two 46:4-9.

The detail clerk prepares invoices for private detail work

and sends them to the private third parties. See Bench Trial

Tr. Day Four 99:11-17. The detail clerk also processes and

deposits checks and payments received from private third parties

for private detail work into the City’s bank account. Id.

101:4-8. Payments for city detail work are received via money

transfer between the City Departments. Id. 102:14-18.

The Agreement and the Memorandum govern the rate of

compensation for paid details (the “detail rate”). See

Memorandum ¶ 6; Agreement Art. 23, § 3. The Agreement does not

stipulate an hourly monetary value for the detail rate. See

Agreement Art. 23, § 3 (“The base rate for paid details shall be

one and one half times the maximum patrolman’s rate of pay

including night differential.”). The Memorandum stipulates

detail rate values applicable during certain time periods since

its execution on March 2, 2021. See Memorandum ¶ 6.

The Court heard evidence from Chief Molis and Ranaghan that

the phrase “maximum patrolman’s rate of pay” in Article 23,

section 3 of the Agreement refers to the rate of pay of the

Patrolman who, in addition to his base pay, has accumulated the

maximum amount of additional benefits, such as Quinn Bill pay,

hazardous duty pay, longevity pay, and shift differential. See

Bench Trial Tr. Day Three 132:17-25, 133-1-4, 134:19-21 (Molis’s

Testimony) (listing Quinn Bill pay, hazardous duty pay,

longevity pay, and shift differential among the “variety of

things” that alter Officers’ rates of pay); id. 64:1-25

(Ranaghan’s Testimony) (stating the same). A new detail rate is

announced whenever pay raises or promotions have occurred. See

Bench Trial Tr. Day Five at 15:15-17. Private persons or

entities requesting a private detail are informed of detail rate

increases in memoranda that the detail clerk sends on behalf of

the detail board. See, e.g., Trial Ex. 46, Detail Board Detail

Rates Letter May 15, 2012; Trial Ex. 48, Detail Board Detail

Rates Letter Dec. 12, 2007; Trial Ex. 49, Detail Board Detail

Rates Letter Dec. 15, 2005; Trial Ex. 51, Detail Board Detail

Rates Apr. 27, 2017.

According to Chief Molis, under certain circumstances,

other rates are applied that are in excess of the detail rate,

such as for strike pay, detail work after midnight, supervisor

detail pay, holiday detail pay, and detail work in excess of

eight hours in duration (the “Multipliers”). See Bench Trial

Tr. Day Three 127:5-25, 128:1-25 (Molis’s Testimony). The pay

rate for strike detail, for instance, is two times the detail

rate. See id. 128:9-12.

Chief Molis testified that the detail system has been in

existence since the 1980s and that the rates have evolved over

the years to include new criteria and incremental rate

increases. See id. 129:10-14.

D. Officers’ Salaries and Detail Work Compensation

According to Ranaghan, payroll is prepared by each City

Department individually. See Bench Trial Tr. Day Two 28:3-7

(Ranaghan’s Testimony). The information is entered into a

computer program, a third-party payroll system called Harper’s

Payroll, for payroll processing. See id. 31:16-25, 32:1-7.

The City issues annual W-2 forms for each Officer which

include statements related to taxes, wages, and detail wages

earned, and list the City as employer. See id. 44:1-25.

Compensation for detail work is paid out to Officers by the

City’s payroll and is included as a line-item on individual

Officers’ weekly or bi-weekly paystubs. See generally Trial Ex.

37, Officers’ Direct Deposit Records City Malden (collectively

the “Paystubs”). At a line item entitled “Regular,” the

Paystubs list an individual Officer’s basic weekly (or bi-

weekly) salary for a number of stipulated weekly work hours

(forty or eighty), along with the respective annually

accumulated monetary value. See generally id. The Paystubs

also include line items that increase an individual Officer’s

basic salary, such as “Quinn (25%),” “POLS Sr. Longevity,” “POLP

Hazardous Duty,” and “Shift Differential Police” (collectively,

the “salary augments”). See generally id.

The parties agree that the highest paid officers over the

operative timeframes were Edward Fitzpatrick, Trent Headley, and

Jack Owens. See Pls.’ Pre-Trial Br. ¶ 155.

Officers’ on-duty work times are tracked on annual timecard

spreadsheets that are grouped by calendar week (from Mondays to

Sundays), listing Officers’ names, hours worked, as well as off-

duty times (and the reasons, where relevant). See Trial Ex. 39,

Officer Timecards (collectively, the “Timecards”). The

information included in the Timecards is collected by a member

of the Police Department. See Bench Trial Tr. Day Three 12:1-3

(Ranaghan’s Testimony) (identifying Terry Ippelyito, the Chief

of Police’s Administrative Assistant, as the individual who

processes payroll for the Officers).

According to Ranaghan, the City has deducted an

administrative fee of ten percent from Officers’ compensation

for detail work from February 1, 2008 to March 2, 2021. See id.

29:1-13 (Ranaghan’s Testimony) (affirming that the ten percent

fee has been taken out of Officers’ compensation at all times

prior the Agreement’s execution); see also Trial Ex. 6, Letter

Mayor Howard (Dec. 11, 2007) (establishing the ten percent

detail fee). The purpose of the administrative fee is to

compensate the City for running the detail program. See Bench

Trial Tr. Day Three 22:21-23 (Ranaghan’s Testimony). Then-Mayor

of the City Richard Howard instituted the administrative fee in

the detail work process effective February 1, 2008. See Trial

Ex. 6, Letter Mayor Howard (Dec. 11, 2007). Neither the

Agreement nor the Memorandum mentions the administrative fee.

See Agreement Art. 23; Memorandum ¶ 6. The City began charging

the administrative fee for private detail work performed by

Superior Officers directly to private contractors when the

Memorandum was executed on March 2, 2021. See Bench Trial Tr.

Day Three 29:10-13 (Ranaghan’s Testimony); see generally

Memorandum. The City has never charged private contractors

directly for the administrative fee for private detail work

performed by Patrolmen. See Bench Trial Tr. Day Three 29:14-19

(Ranaghan’s Testimony). The City has deposited all

administrative fees in the City’s ledger account. See id. 38:7-

10.

E. The Audit

Ranaghan testified that to his knowledge, the first time an

audit was performed to determine whether the payments made to

Officers for detail work conformed with the Agreement was in

connection with the present lawsuit, upon the Patrolmen’s Union

request. See Bench Trial Tr. Day Two 85-87 (Ranaghan’s

Testimony). Previous audits were limited to reconciling

individual officers’ salary accounts with the City’s account.

See id. 34:10-16.

Owens testified that, as of May 11, 2021, the Plaintiffs

had not filed a complaint with the Massachusetts Attorney

General. See Bench Trial Tr. Day Five 51:9-11.

III. RULINGS OF LAW

A. Violation of the Wage Act For Private Detail Work

In count II of the amended complaint, the Plaintiffs claim

that the City violated Massachusetts General Laws chapter 149,

section 148 by deducting a ten percent administrative fee from

the Plaintiffs’ wages earned for private detail work. See Am.

Compl. ¶¶ 34, 47-48.

In pertinent part, Massachusetts General Laws chapter 149,

section 148 provides:

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, or

to within seven days of the termination of the pay

period during which the wages were earned if such

employee is employed seven days in a calendar

week . . . .

Mass. Gen. Laws ch. 149, § 148.

1. Exhaustion of Administrative Remedies Under

Massachusetts General Laws Chapter 149, Section

150

The City contends that this Court lacks jurisdiction over

the Plaintiffs’ Wage Act claim because the Plaintiffs did not

exhaust administrative remedies, viz., they failed to file a

complaint with the Massachusetts Attorney General (the “Attorney

General”) before initiating the present action in accordance

with Massachusetts General Laws chapter 149, section 150. See

City’s Post-Trial Br. 3-7. The Plaintiffs’ attorney argued

during the trial that the City waived this defense. See Bench

Trial Tr. Day Five at 28:12-24; see also Pls.’ Post-Trial Br.

14-15.

Massachusetts General Laws chapter 149, section 150

provides in pertinent part:

An employee claiming to be aggrieved by a violation of

section[] . . . 148 . . . may, 90 days after the

filing of a complaint with the attorney general, or

sooner if the attorney general assents in writing, and

within 3 years after the violation, institute and

prosecute in his own name and on his own behalf, or

for himself and for others similarly situated, a civil

action for injunctive relief, for any damages

incurred, and for any lost wages and other

benefits . . . .

Mass. Gen. Laws ch. 149, § 150.

Named Plaintiff Owens stated on day five of the trial that

neither he nor any of the other Plaintiffs ever initiated a

grievance procedure in compliance with Massachusetts General

Laws chapter 149, section 150.3 See Bench Trial Tr. Day Five

51:9-11. In their post-trial brief, the Plaintiffs do not

allege that they notified the Attorney General in the meantime

(or, up to that point, ever). See Pls.’ Post-Trial Br. 14-15.

3 In Malden Police Patrolman’s Association v. City of

Malden, the plaintiff “union had filed a nonpayment of wage

complaint with the Attorney General’s office” in accordance with

Massachusetts General Laws chapter 149, section 150. 92 Mass.

App. Ct. 53, 54 n.2 (2017). “By letter dated January 9, 2015,

the Attorney General’s fair labor division authorized the union

to pursue a private civil action.” Id. The Plaintiffs in the

present action are not identical with those in the Malden Police

Patrolman’s Association case. In addition, the claim in that

case concerned overdue payments for detail work rather than

unlawful withholding of a ten percent administrative fee. Id.

at 54.

The Plaintiffs direct the Court’s attention to the decision

of the Massachusetts Supreme Judicial Court in Depianti v. Jan-

Pro Franchising International, Inc., 465 Mass. 607 (2013), which

answered a certified question from another Session of this

Court, see Depianti v. Jan-Pro Franchising Int’l, Inc., C.A. No.

08-10663-MLW, 2012 WL 3835090 (D. Mass. Aug. 31, 2012) (Wolf,

J.). The certified question was:

Whether a plaintiff’s failure to exhaust

administrative remedies pursuant to Mass. Gen. Laws

ch. 149, § 150 by filing a complaint with the Attorney

General deprives a court of jurisdiction to consider

the plaintiff’s claims under Mass. Gen. Laws ch. 149,

§§ 148, 148B, and 150, and under Mass. Gen. Laws ch.

151, §§ 1 and 1A.

Depianti, 2012 WL 3835090, at *3. The Massachusetts

Supreme Judicial Court answered the question as follows:

To this question, we answer, “No.” . . . . In

determining whether a procedural defect deprives a

court of jurisdiction to hear a claim, we consider (1)

to what extent the defect interferes with the

“accomplishment of the purposes implicit in the

statutory scheme,” and (2) to what extent the opposing

party can “justifiably claim prejudice.”

Depianti, 465 Mass. at 611 (quoting Schulte v. Dir. of the Div.

of Emp. Sec., 369 Mass. 74, 79–80 (1975)).

Because the federal courts are bound by the rulings of the

state’s highest court on substantive issues when considering

that state’s laws, this Court is bound by the decision of the

Massachusetts Supreme Judicial Court in Depianti. See Phoung

Luc v. Wyndham Mgmt. Corp., 496 F.3d 85, 88 (1st Cir. 2007).

To file a complaint with the Massachusetts Attorney General

is a legal requirement under Massachusetts General Laws chapter

149, section 150 that cannot simply be ignored. The Court

realizes, of course, that a trial in this case has already taken

place. A judgment on the Plaintiffs’ claims under the Wage Act

or the FLSA, however, has yet to enter in this case.

In accordance with the decision of the Massachusetts

Supreme Judicial Court in Depianti, this Court ruled at the June

2, 2021 hearing that it has subject-matter jurisdiction provided

that the Massachusetts Attorney General is notified of the

pending suit in accordance with Massachusetts General Laws

chapter 149, section 150 before judgment in this matter enters.

See Tr. Rulings 5:5-14; see also Depianti, 465 Mass. at 611.

Accordingly, the Court advised the Plaintiffs in its

Timing Order, among other things, to file a complaint within

thirty days with the Attorney General pursuant to Massachusetts

General Laws chapter 149, section 150, and invited the parties

to brief the Court as to the legal effect of any such filing,

including whether and to what extent the City may have been

prejudiced by any delay in such filing. See Timing Order

¶¶ I.A., I.C.

After being advised by the Court to do so, see Timing Order

at I.A., the Plaintiffs’ attorney sent a notification letter to

the Attorney General’s Office on June 9, 2021.4 See Officers’

Second Post-Trial Br., Ex. A, Pl.’s Letter Attorney General

(June 9, 2021) (“Officers’ Letter”), ECF No. 251-1. The

Attorney General’s office responded to the Officers’ Letter via

a letter dated June 16, 2021. See id. Ex. B, Attorney General’s

Letter Officers (June 16, 2021), ECF No. 251-1.

The Plaintiffs’ attorney now appears to suggest in an

affidavit that he notified the Attorney General’s office of the

Plaintiffs’ Wage Act claim in a telephone call in July 2020 by

speaking with “AAG Robert Quinan” and “a colleague of his” about

“the allegations of the Complaint and . . . the claims of this

case.” See Officers’ Second Post-Trial Br., Ex. 1, Aff. Supp.

Pls.’ Post-Trial Br. ¶ 6, ECF No. 251-1. No other corroboration

of that claim is offered. Id.

2. Wage Act Claim Requirements

“It is well established that municipalities are subject to

the Wage Act.” Malden Police Patrolman’s Ass’n v. City of

Malden, 92 Mass. App. Ct. 53, 62 (2017). To recover on a Wage

Act claim, “a plaintiff must show that: (1) he was an employee

under the Wage Act; (2) the compensation constitutes wages

pursuant to the Wage Act; (3) the Wage Act was violated; and (4)

4 The notification was apparently first attempted on the

Attorney General’s website on June 8, 2021 and later

supplemented by letter dated June 9, 2021. See Officers’ Letter

at 1.

any individual defendants were corporate officers as defined by

the statute.”5 Ellicott v. Am. Capital Energy, Inc., 906 F.3d

164, 169 (1st Cir. 2018); see Stanton v. Lighthouse Fin. Serv.,

Inc., 621 F. Supp. 2d 5, 10 (D. Mass. 2009) (Gertner, J.).

The parties diverge as to whether the first, second, and

third requirements limned in Ellicott are met. See City’s Post-

Trial Br. 16-21; Pls.’ Post-Trial Br. 15-16.

a. Compensation for Work for Private Details

Constitutes Wages Under the Wage Act.

The City argues that the Plaintiffs did not provide

“services” to the City when performing private detail work and

that, therefore, they are not entitled to “wages” under

Massachusetts General Laws chapter 149, section 148. See City’s

Pre-Trial Br. ¶ 17, at 10; City’s Post-Trial Br. 17-21. The

Plaintiffs disagree, contending that the Massachusetts Superior

Court sitting in and for the county of Middlesex has already

ruled that compensation for private detail work constitutes

“wages” under the Wage Act. See Pls.’ Post-Trial Br. 15-16.

This Court agrees with the Plaintiffs. In Malden

Patrolman’s Association v. City of Malden, the Massachusetts

Superior Court ruled that “compensation due to officers for

5 Although a Wage Act claim requires proof of wages owed,

“the Act itself provides no substantive standard for determining

what wages are owed.” Rueli v. Baystate Health, Inc., 835 F.3d

53, 60 (1st Cir. 2016).

detail services provided to private entities . . . does

constitute ‘wages’ as that term is defined in the Wage Act.”

No. 15CV223, 2016 WL 8232832, at *1 (Mass. Super. Ct. Feb. 09,

2016) (Henry, J.).

On appeal, the Massachusetts Appeals Court recited the

Superior Court’s ruling “that compensation earned by police

officers for the performance of detail work for third parties

constituted ‘wages’ under G.L.c. 149, § 148.” See Malden Police

Patrolmen’s Ass’n, 92 Mass. App. Ct. at 62. Importantly, the

Appeals Court did not disturb this ruling. See id. Instead,

the Appeals Court explained that because “neither party

addressed the three-part test set forth in G.L.c. 149, § 148B,

to determine whether the union members, when performing police

details, are ‘employees’ of the city for purposes of the Wage

Act,” it was “unable to conclude that such compensation, even if

‘wages,’ is paid to ‘employees’ of the city.” Id.

In substantive legal issues involving state laws, this

Court is bound by the rulings of the state’s highest court. See

Phoung Luc, 496 F.3d at 88.

If the state’s highest court, here the Supreme

Judicial Court (“SJC”), has not definitively addressed

a question, [federal courts] may consult other sources

as [they] “make an informed prophecy” about what rule

the state courts would likely follow. That said,

however, we generally make such prophecies only on

interstitial questions. As a federal court, we will

not create new rules or significantly expand existing

rules. We leave those tasks to the state courts.

Id. (citing North Am. Specialty Ins. Co. v. Lapalme, 258 F.3d

35, 37-38 (1st Cir. 2001)). Because the Massachusetts Appeals

Court did not disturb the Massachusetts Superior Court’s ruling

that compensation for private detail work constitutes “wages”

under Massachusetts General Laws chapter 149, section 148, this

Court considers the question settled.

This Court therefore rules that compensation received by

the Plaintiffs for private detail work constitutes “wages” for

the purposes of the Plaintiffs’ Wage Act claim.

b. Officers Performing Private Detail Work are

Employees Under the Wage Act.

For the Wage Act to apply to private detail work, the

Officers must qualify as “employees” under the Wage Act.6 See

Malden Police Patrolmen’s Ass’n, 92 Mass. App. Ct. at 63. The

City argues that Officers were not “employees” under the Wage

Act when performing private detail work. See City’s Post-Trial

Br. 16-21. The Plaintiffs assert the opposite. See Pls.’ Post-

Trial Br. 16-18.

Section 148B of the Wage Act prescribes a three-prong test

for determining whether an individual is considered an employee

6 In Malden Police Patrolmen’s Association, the

Massachusetts Appeals Court stated, “In circumstances where

G.L.c. 44, § 53C, is applicable, there may be provisions of the

Wage Act that do not conflict with § 53C such that the two

statutes should be construed and applied harmoniously.” 92

Mass. App. Ct. at 62 n.13.

for purposes of the Wage Act. See Mass. Gen. Laws ch. 149,

§ 148B. Individuals are considered employees unless:

(1) the individual is free from control and direction in

connection with the performance of the service, both under

his contract for the performance of service and in fact; and

(2) the service is performed outside the usual course of the

business of the employer; and,

(3) the individual is customarily engaged in an independently

established trade, occupation, profession or business of the

same nature as that involved in the service performed.

Id. It is undisputed that all Plaintiffs are employees of the

City when on duty as police officers. See City’s Pre-Trial Br.

¶ 2; Pls.’ Pre-Trial Br. ¶¶ 2, 3, 5, 6. The Superior Court in

Malden Patrolman’s Association did not address whether police

officers working private details are considered “employees” for

purposes of the Wage Act. See 2016 WL 8232832, at *1; see also

Malden Police Patrolmen’s Ass’n, 92 Mass. App. Ct. at 62-63

(remanding for this reason).

In its post-trial brief, the City relies heavily on the

decision of the Massachusetts Appeals Court in Gallagher v.

Cerebral Palsy of Massachusetts, Inc., 92 Mass. App. Ct. 207

(2017). See City’s Post-Trial Br. 16-21. In essence, the City

argues that, by performing private detail work, an individual

Officer was not providing services to the City. Id. at 19.

Rather, the City was merely operating as a kind of

“intermediary” between the Officer and a third-party contractor

who hired that Officer. Id.

The City’s reliance on Gallagher is misplaced. In

Gallagher, a personal care assistant had sued a fiscal

intermediary company, alleging that the company was her employer

and therefore owed her overtime pay under the Wage Act.7 See 92

Mass. App. Ct. at 209. Here, there can be no doubt that the

Plaintiffs were employed as police officers by the City. See

City’s Pre-Trial Br. ¶ 2, at 1; Pls.’ Pre-Trial Br. ¶¶ 2, 3, 5,

6. The issue at hand is simply whether the Officers acted in

some other capacity than as police officers when conducting

private detail work.

No directly applicable Massachusetts caselaw exists. The

purpose of Massachusetts General Laws chapter 149, section 148B

appears to be to distinguish “employees” from “independent

contractors.” See Hogan v. InStore Grp., LLC, CIVIL ACTION NO.

17-10027-DPW, 2021 WL 91386, at *12 (D. Mass. Jan. 11, 2021)

(Woodlock, J.). Massachusetts caselaw does address, however,

the general nature of the work performed by police officers

during private details.

7 The plaintiff in Gallagher had also executed documents

stating that the plaintiff’s employer was a third-party

consumer. 92 Mass. App. Ct. 209. Several tax documents

contained similar statements. Id.

In Davis v. DelRosso, the Massachusetts Supreme Judicial

Court decided that the question whether police officers on a

paid detail are to be considered independent contractors or

employees of a third-party contractor depends on “the

principal’s ‘right to control’ the policemen’s activities.” 371

Mass. 768, 771 (1977); see also Davis v. Allard, 37 Mass. App.

Ct. 508, 513-14 (1994) (holding that racetrack owner did not

“control” police detail hired to oversee traffic during an event

because he “did not exercise any oversight of the control of

traffic” and police officers “were under the direction of a

lieutenant or other senior officer”; the officers hired to

perform the private details were “in uniform, carried on traffic

duties as they had learned them in police academy and by daily

experience on the streets”; and “[t]hey could make arrests and

in other ways behaved as they did in the streets”), rev’d on

other grounds Davis v. Westwood Grp., 420 Mass. 739 (1995);

Yates v. City of Salem, 342 Mass. 460, 461-62 (1961) (holding

that a police officer who was paid by a contractor to perform

traffic control on his day off was “performing the work of a

police officer” and “not acting in the capacity of employee of

the contractor”); Kidder v. Whitney, 336 Mass. 307, 308-09

(1957) (finding that a police officer paid to direct traffic by

defendant-operators of an open air theater was not defendants’

servant because they did not give the officer “instruction or

directions”); Champa v. Town of Billerica, No. 992861, 2001 WL

920000, at *1-4 (Mass. Super. Ct. June 27, 2001) (Volterra, J.)

(holding that a police officer performing private detail work

involving security and supervision at a high school dance event

was not liable for personal injuries sustained by guests, when

he was performing the work “in his patrolman’s uniform,” having

been “paid by the Town . . . with funds supplied by [the third-

party contractor],” in “the same functions . . . as he did at

any other time when he was working for the . . . Police

Department . . . motivated wholly by his public duty,” and

because the event organizer “exercised no control over the

exercise of [the officer’s] authority”).

Here, Chief Molis testified on day three of the trial that

the broad purpose of detail work is to provide a public service

and public safety. See Bench Trial Tr. Day Three 105-22:24

(Molis’s Testimony). He also stated that Officers wear their

uniforms, including their duty belt, while performing detail

work. See id. 112:3-5. Furthermore, according to Chief Molis,

while performing such work, Officers are bound by the rules and

regulations applicable to police details, the traffic rules, the

code of conduct, and common sense. See id. 111:19-25, 112:12-

21; see also generally Detail Rules and Procedures. Although

the initial scope of work for a specific detail assignment is

determined by the person or entity who requested the detail, see

Bench Trial Tr. Day Three 110:16-25, 111:8-18 (Molis’s

Testimony), compensation for detail work is paid out to Officers

by the City’s payroll, as was confirmed by Ranaghan during his

testimony on day two of the trial, see Bench Trial Tr. Day Two

44:1-25 (Ranaghan’s Testimony). Ranaghan also stated that the

City issues annual W-2 forms to Officers which include

information on detail wages earned and list the City as the

employer. Id. According to Sullivan’s testimony, the detail

clerk organizes various aspects of detail work administration,

including invoicing and check deposits. See Bench Trial Tr. Day

Four 95:7-11, 98:11-25, 99:1-2 (Sullivan’s Testimony). Lastly,

Chief Molis confirmed that private detail work is provided on

the basis of an agreement between the private person or entity

requesting the detail and the City. See id. 12:23-25, 13:1-3

(Molis’s Testimony).

The evidence adduced at trial therefore demonstrates that

Officers continued to act in their capacity as police officers

when conducting detail work, including private detail work. The

evidence also unequivocally shows that the City does not act as

a mere “intermediary” between individual Officers and third-

party contractors with respect to private detail work, but that

the City contracts with third parties directly and pays its

Officers for detail work as part of its regular payroll process.

Accordingly, the Court rules that the Plaintiffs are to be

considered employees under the Wage Act while performing private

detail work.

c. Violation of the Wage Act by not Paying

Wages

In count II of the amended complaint, the Plaintiffs claim

that the City violated Massachusetts General Laws chapter 149,

section 148 by deducting a ten percent administrative fee from

the Plaintiffs’ wages earned for private detail work. See Am.

Compl. ¶¶ 34, 47-48.

The City argues that the Officers were paid either “exactly

what they were owed,” see City’s Post-Trial Br. 14-16, or that

they were “overpaid” on the basis of the purported correct

application of the relevant provisions of the Agreement, id.

8-9.

The City is authorized to collect an administrative fee for

private detail work pursuant to Massachusetts General Laws

chapter 44, section 53C (the “Municipal Finance Law”). Mass.

Gen. Laws ch. 44, § 53C. In relevant part, the statute reads:

A city, town or district may establish a fee not to

exceed ten per cent of the cost of services authorized

under this section, which shall, except in the case of

a city, town, district or the commonwealth, be paid by

the persons requesting such private detail. Any such

fee received shall be credited as general funds of the

city, town or district and shall not be used again

without further appropriation.

Id.

The Massachusetts Appeals Court’s decision in Malden Police

Patrolmen’s Association instructs that “where the detail work is

performed for third parties, the plain language of G.L.c. 44,

§ 53C, governs with respect to detail pay.” 92 Mass. App. Ct.

at 62.

i. Massachusetts General Laws Chapter 44,

Section 53C Requires that the Ten

Percent Administrative Fee Be Paid by

the Person Requesting a Private Detail.

Massachusetts General Laws chapter 44, section 53C plainly

states that “a fee not to exceed ten per cent . . . shall . . .

be paid by the persons requesting such private detail.” Mass.

Gen. Laws ch. 44, § 53C.

“We ‘must presume that a legislature says in a statute what

it means and means in a statute what it says there. When the

words of a statute are unambiguous, then, this first canon is

also the last: judicial inquiry is complete.’” United States v.

Lewis, 554 F.3d 208, 214 (1st Cir. 2009) (quoting Connecticut

Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992)). “Where its

terms are unambiguous, a statute must be held to mean what it

plainly expresses.” L.W.K. v. E.R.C., 432 Mass. 438, 445-46

(2000).

Here, Massachusetts General Laws chapter 44, section 53C

plainly and unambiguously states that the person requesting a

private detail must8 pay the ten percent administrative fee.

The City argues that Massachusetts General Laws chapter 44,

section 53C does not confer a private right of action on the

Plaintiffs. See City’s Post-Trial Br. 23-24. That question is

not at issue here, however, because the Plaintiffs’ claim in

count II of the amended complaint is clearly brought for

violation of the Wage Act. See Am. Compl. ¶¶ 34, 47-48.

The Court therefore rules that, in accordance with the

clear and unambiguous wording of Massachusetts General Laws

chapter 44, section 53C, the person requesting a private detail

must pay the ten percent administrative fee.

The City thus violated Massachusetts General Laws chapter

44, section 53C if and to the extent that it deducted a ten

percent administrative fee from Officers’ wages for private

detail work, instead of charging the third party that had

requested the private detail.

ii. Interpretation of Article 23, Section 3

of the Agreement

The City argues that the Plaintiffs were in fact overpaid

when performing detail work, rendering any reduction in pay by

8 The use of the word “shall” in Massachusetts General Laws

chapter 44, section 53C indicates that this is a requirement.

subtracting the ten percent administrative fee immaterial. See

City’s Post-Trial Br. 8-9.

To establish whether the reduction of the Plaintiffs’ wages

was material, it is necessary first to determine what wages the

Plaintiffs were owed. It is therefore imperative to establish

the applicable rate of pay owed to the Officers for detail work

performed, which, in turn, requires a review of Article 23,

section 3 of the Agreement.

1) The Term “Maximum Patrolman’s Rate

of Pay” in Article 23, Section 3

of the Agreement is Ambiguous.

Article 23, section 3 of the Agreement provides:

The base rate for paid details shall be one and one

half times the maximum patrolman’s rate of pay

including night differential.

Agreement Art. 23, § 3. In essence, Article 23, section 3 is an

equation:

Base rate for paid details = (maximum patrolman’s rate of

pay including night

differential) × (1.5)

See id.

“Collective bargaining agreements are contracts governed by

federal common law. Generally speaking, contract interpretation

is a legal question for the court, unless the contract is

ambiguous, in which case the interpretation may become a fact

question for the jury.” Local 369 Utility Workers v. NSTAR

Elec. & Gas Corp., 317 F. Supp. 2d 69, 73 (D. Mass. 2004)

(Harrington, J.). “In construing the terms of contracts that

are governed by federal common law, we are guided by ‘common-

sense canons of contract interpretation.’” Smart v. Gillette

Co. Long-Term Disability Plan, 70 F.3d 173, 178 (1st Cir. 1995)

(quoting Burnham v. Guardian Life Ins. Co., 873 F.2d 486, 489

(1st Cir. 1989)).

The parties agree that Article 23, section 3 is

unambiguous. See City’s Post-Trial Br. 9-12; Pls.’ Post-Trial

Br. 12-14. They just differ markedly as to what the word

“unambiguous” means. Id.

The parties also differ as to what the expression “maximum

patrolman’s rate of pay” means. The City contends that whatever

“maximum patrolman’s rate of pay” refers to, it cannot include

any salary augments besides “night differential.” See City’s

Post-Trial Br. 9-12. Effectively, this means that, according to

the City, the maximum patrolman’s rate of pay “consists of two

elements: (1) the maximum patrolman’s base pay, and (2) a ‘night

differential’ (also referred to as a ‘shift differential’) wage

augment of 6%.” See Mot. J. Partial Findings 1. The Plaintiffs

contend that the proper calculation of the detail rate under

Article 23, section 3 is not so limited, and that it includes

other salary augments in addition to “night differential.” See

Pls.’ Post-Trial Br. 9-13. The Plaintiffs do not explain,

however, how the wording of the Agreement supports their

position. Id.

“Maximum patrolman’s rate of pay” is not defined in the

Agreement. See generally Agreement. The Agreement identifies

the elements of “Compensation” in Article 30, comprising a “Base

Salary,” Agreement Art. 30, § 1, and additional elements,

applicable under certain circumstances: “Shift Differential,”

id. § 2, “Hazardous Duty,” id. § 5, and “Longevity and

Education,” id. § 7. Article 30, section 8(A) makes clear that

“[a]n officer cannot receive both longevity and education pay.”

Id. § 8(a).

The salary augments can be grouped into elements that

attach to an individual Officer’s personal qualifications (such

as “Quinn (25%)” or “POLP Sr. Longevity”; collectively,

“personal salary augments”) and those that confer additional

benefits on the basis of an Officer’s particular working

conditions during the relevant salaried time period (such as

“POLP Hazardous Duty” and “Shift Differential Police”;

collectively, “conditional salary augments”). See generally

Agreement.

The City’s argument that the maximum patrolman’s rate of

pay consists of “(1) the maximum patrolman’s base pay, and (2) a

‘night differential,’” see Mot. J. Partial Findings 1, is not

supported by the terms of the Agreement, see Agreement Art. 23,

§ 3. Article 23, section 3 clearly states that the detail rate

is 1.5 times “the maximum patrolman’s rate of pay including

night differential.” Agreement Art. 23, § 3 (emphasis added).

It does not say the maximum patrolman’s base pay including night

differential. Id. Article 16, section 4 makes clear that the

Agreement does not apply the terms “base pay” and “rate of pay”

synonymously. See id. Art. 16, § 4. There, for the calculation

of overtime, Article 16, section 4 states that “base pay” is an

element included in “rate of pay”:

The overtime rate of pay shall be 1/40th of the

officer’s weekly pay to include base pay, hazardous

duty pay, night differential, longevity and

educational incentive monies to which the officer is

entitled, multiplied by one and one-half for number of

hours worked.

Id. (emphasis added).

The City’s other argument is also unconvincing. The City

argues that, because overtime calculation under Article 16,

section 4 mentions a plethora of salary augments, whereas

Article 23, section 3 only refers to “night differential,” the

Agreement contemplates that the night differential is the only

salary augment relevant for the detail rate calculation. See

City’s Post-Trial Br. 11. Article 16, section 4 deals with the

calculation of overtime, which is Officer-specific, as evidenced

by the phrase “monies to which the officer is entitled,”

Agreement, see Agreement Art. 16, § 4, whereas the detail rate

calculation is broadly applicable, i.e., it applies uniformly to

any Officer seeking remuneration for detail work, referring to

the somewhat mysterious “maximum patrolman,” see id. Art. 23,

§ 3. It appears sensible in Article 16, section 4, in the

context of overtime calculation, to include a list of any and

all salary augments to which an individual Officer may or may

not be entitled. It is true that, as the City contends, the

phrase “one and one half times the maximum patrolman’s rate of

pay including night differential” appears in other contexts in

the Agreement. See, e.g., id. Art. 14, § 1. This does nothing,

however, to assist in establishing what is meant by the phrase

“maximum patrolman’s rate of pay” in Article 23, section 3.

“A contract is ambiguous if ‘an agreement’s terms are

inconsistent on their face or where the phraseology can support

reasonable differences of opinion as to the meaning of the words

employed and obligations undertaken.’” NSTAR Elec. & Gas Corp.,

317 F. Supp. 2d at 73 (quoting Lohnes v. Level 3 Commc’ns, Inc.,

272 F.3d 49, 53 (1st Cir. 2001)).

As illustrated above, the parties’ views differ as to what

elements the phrase “maximum patrolman’s rate of pay” reasonably

includes. A reading of the entire Agreement does not provide

any reference points as to the phrase’s reasonable meaning in

the context of the case at hand. On this basis, the Court rules

that Article 23, section 3 of the Agreement -- specifically the

phrase “maximum patrolman’s rate of pay” -- is ambiguous.

If an inquiring court concludes that an ambiguity

exists in a contract, the ultimate resolution of it

typically will turn on the parties’ intent. Exploring

the intent of contracting parties often (but not

always) involves marshalling facts extrinsic to the

language of the contract documents. When this need

arises, these facts, together with the reasonable

inferences extractable therefrom, are together

superimposed on the ambiguous words to reveal the

parties’ discerned intent. This construct ordinarily

requires the judge in a non-jury case to resolve

questions of fact rather than questions of law.

Smart, 70 F.3d at 178 (citing In re Newport Plaza Assocs., 985

F.2d 640, 645 (1st Cir. 1993)).

The Court conducted a bench trial in this matter. On day

three of the trial, the Court heard evidence from two witnesses

-- Ranaghan, the City’s current Controller, and Police Chief

Kevin Molis -- about their understanding of the phrase “maximum

patrolman’s rate of pay” in Article 23, section 3. See

generally Bench Trial Tr. Day Three. Both stated that the

phrase refers to the rate of pay of the patrolman who, in

addition to his “base pay,” had accumulated the maximum amount

of additional benefits during a certain time period, embodied in

salary augments, namely Quinn Bill pay, hazardous duty pay,

longevity pay, and shift differential. Id. 132:17-25, 133-1-4,

134:19-21 (Molis’s Testimony) (listing Quinn Bill pay, hazardous

duty pay, longevity pay, and shift differential among the

“variety of things” that alter Officers’ rates of pay); id.

64:1-25 (Ranaghan’s Testimony) (listing the same). Chief Molis

further explained that this system had been in place since

sometime in the 1980s, and that a new detail rate would be

announced if an Officer received a raise or a promotion. See

id. 129:10-14.

The construction of the phrase “maximum patrolman’s rate of

pay,” as articulated by the witnesses, makes the most sense

because it explains the reference to “maximum patrolman.” It

also conforms with the use of the terms “rate of pay” and “base

pay,” as applied in the Agreement. See Agreement Art. 16, § 4.

The fact that “night differential” is expressly included in the

formula at Article 23, section 3 does not contradict the

witnesses’ testimony. “Night differential” is a conditional

salary augment, i.e., an enhancement that is tied to a condition

under which specific work is performed, see id. Art. 30, § 2,

whereas Quinn Bill pay and longevity pay are tied to an

Officer’s unique qualities, see id. § 7.9 Because a Patrolman

who would be considered the “maximum patrolman” would not

automatically fulfill the requirements for a “night

differential,” it makes sense to include a reference to “night

9 Hazardous duty pay is a conditional salary augment as

well, but it appears to be distributed indiscriminately on an

annual basis and paid out weekly to every Officer. See

Agreement Art. 30, § 5.

differential,” but no other salary augment, in Article 23,

section 3.

Accordingly, the Court rules that the phrase “maximum

patrolman’s rate of pay” in Article 23, section 3 of the

Agreement refers to the rate of pay of the Patrolman who, in

addition to his “base pay,” has accumulated the maximum amount

of additional benefits during a certain time period, embodied in

salary augments, namely Quinn Bill pay, hazardous duty pay,

longevity pay and night differential.

2) The Term “Base Rate” and the

Multipliers

At trial, the Court heard evidence regarding a second issue

that is related to the interpretation of Article 23, section 3

of the Agreement. According to Chief Molis, under certain

circumstances, Officers performing detail work were paid detail

rates in excess of the detail rate determined by applying the

process described above. See Bench Trial Tr. Day Three 140:13-

15 (Molis’s Testimony); see also Spreadsheet. The situations in

which higher rates would typically be paid include detail work

during strike action, after midnight, detail work by

supervisors, detail work performed on holidays, and detail work

in excess of eight hours. See Bench Trial Tr. Day Three 127-128

(Molis’s Testimony). There are several enhancements to detail

pay according to the Detail Rules and Procedures (collectively,

the “Multipliers”). “The rate of a supervisor’s pay is 1 ½ (one

and one half) times the patrolman’s rate for the detail.”

Detail Rules ¶ I.17. Detail work on certain national holidays

warrants payment of “1 ½ (one and one half) times the detail

rate.” Id. ¶ I.21. Finally, the “[s]trike rate is 2 times the

prevailing detail rate.” Id. ¶ IV.3. There is no direct

reference to these Multipliers in the Agreement. See generally

Agreement. But see Memorandum ¶ 5 (stipulating, under the

heading “Details and Poll Duty,” a monetary “detail rate” and

multiplier values for Superior Officers’ detail pay under

certain circumstances). The Agreement does, however state the

following:

No new categories for which now pay in excess of 1.5

times the maximum patrolmen’s rate of pay will be

approved or voted by members of this unit without

approval of the Mayor.

Agreement Art. 23, § 12.

The Agreement also references the Detail Rules and

Procedures, stating that “[t]he detail board shall establish

rules and procedures pertaining to details.” Id. Art. 23, § 5.

The Agreement further includes a provision which reads:

No amendment, alteration or variation of the terms or

provisions of this Agreement shall bind the parties

hereto unless made and executed in writing by said

parties. There shall be no alterations, deviations,

amendments or abridgements of this Agreement unless

mutually agreed upon by the parties and set down in

writing and signed by the authorized representatives of

both the Association and the City.

Id. Art. 4, § 2.

Lastly, the Agreement provides that “[t]he provisions of

this Agreement supersede any conflicting or inconsistent rule,

regulation or order as promulgated by the Police Commissioner

o[r] Chief of Police.” Id. Art. 31, § 5.

The City argues broadly that excess detail rates resulted

in overpayments for detail work, which in turn invalidates the

Plaintiffs’ Wage Act claim. See City’s Post-Trial Br. 14-16.

This would be an apposite argument if the Multipliers were

not contemplated by the Agreement.

“A fully integrated agreement is a statement which the

parties have adopted as a complete and exclusive

expression of their agreement.” Such an agreement

will typically contain an “integration clause” stating

that it constitutes the parties’ sole agreement and

that there are no oral or written representations

outside of the agreement.

Cabot v. Cabot, 55 Mass. App. Ct. 756, 763 (2002) (citations

omitted). “[E]ven apparently straightforward contractual

language asserting integration will not always compel a

conclusion that a writing reflects a complete and integrated

agreement,” however. Chambers v. Gold Medal Bakery, Inc., 83

Mass. App. Ct. 234, 242-43 (2013) (quoting Green v. Harvard

Vanguard Med. Assocs., Inc., 79 Mass. App. Ct. 1, 9 (2011)).

Here, Article 4, section 2 of the Agreement merely states

that “no alterations, deviations, amendments or abridgements”

are to be made to the Agreement, “unless mutually agreed

upon . . . and set down in writing . . . .” Agreement Art. 4,

§ 2. Article 31, section 5, states that the Agreement only

“supersede[s] any conflicting or inconsistent rule, regulation

or order.” Id. Art. 31, § 5. Moreover, Article 23, section 12

clearly references the existence of “categories for which now

pay in excess of 1.5 times the maximum patrolmen’s rate of pay,”

but which are not otherwise explained in the Agreement, as well

as the requirement in Article 23, section 5 that “[t]he detail

board shall establish rules and procedures pertaining to

details.” Id. Art. 23, §§ 5, 12.

On this basis, the Court rules that the Agreement is a

partially integrated document.

“Evidence of a consistent additional term is admissible to

supplement an integrated agreement unless the court finds that

the agreement was completely integrated.” Aretakis v. Gen.

Signal, Inc., Civil Action No. 05-10257-DPW, 2006 WL 1581781, at

*5 (D. Mass. June 7, 2006) (Woodlock, J.) (quoting Restatement

(Second) of Contracts § 216(1)); In re Inofin Inc., 512 B.R. 19,

74 (Bankr. D. Mass. 2014) (“[A] partially integrated document

can be supplemented with evidence of consistent additional

terms.”).

Here, the witness testimony of Chief Molis and the Detail

Rules and Procedures reference Multipliers for detail work

performed under certain conditions. See Bench Trial Tr. Day

Three 127-128 (Molis’s Testimony); Detail Rules and Procedures

¶¶ I.17, I.21, IV.3. The existence of Multipliers also does not

contradict the wording of Article 23, section 3, which expressly

refers to “[t]he base rate for paid details,” indicating that

the “base rate” may be subject to further enhancement. See

Agreement Art. 23, § 3 (emphasis added).

The Court therefore rules that the existence of Multipliers

is contemplated in the Agreement and that Multipliers must be

taken into account when calculating an applicable detail rate.

Lastly, the City argues that, even if the detail rate

included all salary augments and further enhancements, the

Plaintiffs received exactly they bargained for and therefore

cannot request more from the City. See City’s Post-Trial Br.

14-16.

This argument is unavailing. Irrespective of how high a

detail rate may have been under individual circumstances, the

City violated Massachusetts General Laws chapter 44, section 53C

when it deducted a ten percent administrative fee from the

Officers’ wages for private detail work, instead of charging the

third party that had requested the private detail. Under these

circumstances, the Officers might have been paid a high detail

rate in some situations, but they still were not paid what they

were owed in accordance with Massachusetts General Laws chapter

149, section 148.

B. Violation of the FLSA for City Detail Work

The Plaintiffs’ FLSA claim is expressly limited to “all

paid detail work performed for or on behalf of the City of

Malden as the employer.” See Am. Compl. ¶¶ 45-46 (count I).

The Plaintiffs claim that the City violated the FLSA, reducing

Officers’ FLSA overtime payments for detail work, by subtracting

the ten percent administrative fee from their compensation. Id.

¶ 46; Pls.’ Post-Trial Br. 2-4.

1. The Cause of Action: 29 U.S.C. § 07(a)(1)

As a threshold issue, the Plaintiffs must prove that they

are entitled to overtime pay. See McGrath v. City of

Somerville, 419 F. Supp. 3d 233, 246 (D. Mass. 2019) (Saylor,

J.) (citing Manning v. Bos. Med. Ctr. Corp., 725 F.3d 34, 43-44

(1st Cir. 2013)). The statutory guarantee provides:

Except as otherwise provided in this section, no

employer shall employ any of his employees who in any

workweek is engaged in commerce or in the production

of goods for commerce, or is employed in an enterprise

engaged in commerce or in the production of goods for

commerce, for a workweek longer than forty hours

unless such employee receives compensation for his

employment in excess of the hours above specified at a

rate not less than one and one-half times the regular

rate at which he is employed.

29 U.S.C. § 207(a)(1).

“A claim for unpaid overtime wages must demonstrate that

the plaintiffs were employed ‘for a workweek longer than forty

hours’ and that any hours worked in excess of forty per week

were compensated ‘at a rate . . . less than one and one-half

times the regular rate.’” Manning, 725 F.3d at 43 (quoting 29

U.S.C. § 207(a)(1)).

“[A]s a threshold matter, to recover FLSA overtime wages,

each opt-in plaintiff must be able to prove that he or she

worked more than 40 hours in one or more workweeks.” Banks v.

Birmingham Bd. of Educ., Case No.: 12-cv-01682-MHH, 2017 WL

3218046, at *1 (N.D. Ala. July 28, 2017).

Detail work can be taken into account when determining

whether a plaintiff in an FLSA action worked for more than forty

hours. See O’Brien v. Town of Agawam, 350 F.3d 279, 289 (1st

Cir. 2003) (“For purposes of the FLSA, all hours worked under

the statutory maximum are non-overtime labor.”).

On day four of the trial, the Court ruled that, for the

purposes of the present action, a “workweek” as referred to in

29 U.S.C. § 207(a)(1) runs from Saturday of one week until

Saturday of the following week. See Bench Trial Tr. Day Four

76:15-24.

2. The “Regular Rate”: 29 U.S.C. § 207(e)

As used in this section the “regular rate” at which an

employee is employed shall be deemed to include all

remuneration for employment paid to, or on behalf of,

the employee . . . .

29 U.S.C. § 207(e).

Calculation of the correct “regular rate” is the

linchpin of the FLSA overtime requirement. The term

is significant because under 29 U.S.C. § 207(a)(1), an

employee who works overtime is entitled to be paid “at

a rate not less than one and one-half times the

regular rate at which he is employed.” The statute

defines the term “regular rate” in § 207(e). Under

that provision and the relevant case law and

interpretative regulations, the regular rate cannot be

stipulated by the parties; instead, the rate must be

discerned from what actually happens under the

governing employment contract.

O’Brien, 350 F.3d at 294 (citing 29 C.F.R. § 778.108).

a. General Rules

“[T]he regular rate refers to the hourly rate actually paid

the employee for the normal, non-overtime workweek for which he

is employed.” Walling v. Youngerman-Reynolds Hardwood Co., 325

U.S. 419, 424 (1945) (citing Walling v. Helmerich & Payne, 323

U.S. 40 (1944)).

The regular rate by its very nature must reflect all

payments which the parties have agreed shall be

received regularly during the workweek, exclusive of

overtime payments. It is not an arbitrary label

chosen by the parties; it is an actual fact. Once the

parties have decided upon the amount of wages and the

mode of payment the determination of the regular rate

becomes a matter of mathematical computation, the

result of which is unaffected by any designation of a

contrary ‘regular rate’ in the wage contracts.

Id. at 424-25.

b. The “Regular Rate” Includes Individual

Salary Augments.

The “regular rate” includes individual salary augments,

such as shift-differential pay, longevity pay, and career-

incentive (“Quinn Bill”) pay. See O’Brien, 350 F.3d at 294-95;

see also 29 C.F.R. § 778.200(c) (“[A]ll remuneration for

employment paid to employees which does not fall within one of

these seven exclusionary clauses [in 29 U.S.C. § 207(e)] must be

added into the total compensation received by the employee

before his regular hourly rate of pay is determined.”).

c. Calculation Involving Fixed Salaries

If an employee receives a fixed salary, instead of being

compensated on an hourly basis, additional considerations apply

for the calculation of the employee’s “regular rate” of pay

under 29 U.S.C. § 07(e).

The Act does not require employers to compensate

employees on an hourly rate basis; their earnings may

be determined on a . . . salary . . . basis, but in

such case the overtime compensation due to employees

must be computed on the basis of the hourly rate

derived therefrom and, therefore, it is necessary to

compute the regular hourly rate of such employees

during each workweek.

29 C.F.R. § 778.109.

A “‘fixed weekly salary’ method” of calculation “governs

employees who receive a fixed salary that is intended to

compensate a specific number of hours of labor (e.g., $400 for

40 hours).” O’Brien, 350 F.3d at 287.

For employees who are paid on a weekly salary basis,

the regular rate is “computed by dividing the salary

by the number of hours which the salary is intended to

compensate.” 29 C.F.R. § 778.113(a). “Where a salary

covers a period longer than a workweek, such as a

month, it must be reduced to its workweek equivalent.”

29 C.F.R. § 778.114(b). Thus, for example, a “monthly

salary is subject to translation to its equivalent

weekly wage by multiplying by 12 (the number of

months) and dividing by 52 (the number of weeks).

O’Brien v. Town of Agawam, 440 F. Supp. 2d 3, 10 (D. Mass.

2006) (Ponsor, J.).

In the case at hand, the Plaintiffs were mostly paid on a

weekly basis to cover a time period of forty hours. See

generally Paystubs. The regular hourly rate to be calculated

for each individual Plaintiff is therefore the sum of the

“Current Amt” listed as “Regular” and the value of any

individually applicable augments, as listed on individual

Paystubs, divided by 40. The same calculation applies for

payments made to individual Plaintiffs on a bi-weekly basis,

applying a divisor of 80.

3. Exclusions: 29 U.S.C. § 207(p)(1)

The FLSA contains express exclusions of hours worked for

specific purposes from the calculation of overtime, most notably

in the context of the present action, 29 U.S.C. § 207(p)(1),

which:

makes special provision for fire protection and law

enforcement employees of public agencies who, at their

own option, perform special duty work in fire

protection, law enforcement or related activities for

a separate and independent employer (public or

private) during their off-duty hours. The hours of

work for the separate and independent employer are not

combined with the hours worked for the primary public

agency employer for purposes of overtime compensation.

29 C.F.R. § 553.227(b) (emphasis added).

Section § 207(p)(1) provides:

If an individual who is employed by a State, political

subdivision of a State, or an interstate governmental

agency in fire protection or law enforcement

activities (including activities of security personnel

in correctional institutions) and who, solely at such

individual’s option, agrees to be employed on a

special detail by a separate or independent employer

in fire protection, law enforcement, or related

activities, the hours such individual was employed by

such separate and independent employer shall be

excluded by the public agency employing such

individual in the calculation of the hours for which

the employee is entitled to overtime compensation

under this section if the public agency—

(A) requires that its employees engaged in fire

protection, law enforcement, or security

activities be hired by a separate and independent

employer to perform the special detail,

(B) facilitates the employment of such employees by a

separate and independent employer, or

(C) otherwise affects the condition of employment of

such employees by a separate and independent

employer.

29 U.S.C. § 207(p)(1).

Count I of the amended complaint is limited to city

detail work. See Am. Compl. ¶¶ 45-46. At trial, the City

provided a list of departments for the City of Malden. See

Trial Ex. 45, City Malden Departments. According to

Ranaghan’s testimony, the list purported to show the City

Departments that would be capable of making a request for a

city detail. See Bench Trial Tr. Day Four 81:9-17. The

list therefore represents the City Departments for which,

in principle, individual Plaintiffs could have performed

city detail work.10 Id.

“Section 7(p)(1) applies to such outside employment

provided (1) The special detail work is performed solely at

the employee’s option, and (2) the two employers are in fact

separate and independent.” 29 C.F.R. § 553.227(b); see also

McGrath, 419 F. Supp. 3d at 247 (quoting 29 C.F.R. § 553.227 in

determining when 29 U.S.C. § 207(p)(1) applies to outside

employment). Chief Molis testified that any detail work by

Officers -- whether private detail work or city detail work --

was performed on a voluntary basis and during off-duty hours.

See Bench Trial Tr. Day Three 109:3-9 (Molis’s Testimony).

“Neither the statute nor the regulation explicitly defines

‘separate and independent.’” McGrath, 419 F. Supp. 3d at 247

(quoting Clark v. City of Fort Worth, 800 F. Supp. 2d 781, 787

(N.D. Tex. 2011), aff’d sub nom. Clark v. City of Fort Worth,

464 F. App’x 325 (5th Cir. 2012)).

However, courts addressing the issue have considered

the following factors: “(1) whether the agencies

maintained separate payrolls; (2) whether the entities

had arms-length dealings regarding employment; (3)

10 The Plaintiffs did not dispute or rebut the evidence in

trial exhibit 45.

whether the agencies had separate budgets; (4) whether

the employees of the entities participate in separate

retirement programs; (5) whether they are independent

entities under state statute; and (6) whether they can

both sue and be sued.”

Murphy v. Town of Natick, 516 F. Supp. 2d 153, 157-58 (D. Mass.

2007) (Stearns, J.) (quoting Barajas v. Unified Gov’t of

Wyandotte Cnty./Kansas City, 87 F. Supp. 2d 1201, 1207 (D. Kan.

2000)). “The degree to which one employer exerts budgetary

control over another is typically given special weight.”

McGrath, 419 F. Supp. 3d at 248 (quotations omitted) (quoting

Nolan v. City of Chi., 125 F. Supp. 2d 324, 337 (N.D. Ill.

2000)).

The fact that the departments that are listed in trial

exhibit 45 are “City of Malden Departments” is not dispositive

as to whether or not they are “separate and independent” from

the City for the purposes of 29 U.S.C. § 207(p)(1), however.

For instance, the special detail exception would apply to “the

police officer who accepts extra employment from a school board

to direct traffic at a football game.” Baltimore Cty. FOP Lodge

4 v. Baltimore Cty., 565 F. Supp. 2d 672, 678 (D. Md. 2008)

(quotations omitted)). A municipal board was described as a

“separate and independent” public agency from a city by the Wage

and Hour Division of the United States Department of Labor in an

opinion letter dated October 5, 2006. See U.S. Dep’t Labor,

Wage & Hour Division, Opinion Letter Fair Labor Standards Act

(FLSA) (Oct. 5, 2006), 2006 WL 4512963. It has also been held

that 29 U.S.C. § 207(p)(1) applied to city police officers who

provided detail work for a city’s transit and housing

authorities. See Nolan, 125 F. Supp. 2d at 337. Cf. Cox v.

Town of Poughkeepsie, 209 F. Supp. 2d 319, 326 (S.D.N.Y. 2002)

(holding that police officers’ time worked off-duty as town

court security details was not excluded under 29 U.S.C.

§ 207(p)(1) because police officers were paid for detail work

and their regular police work on the same paycheck by the Town,

rather than by separate subdivisions).

Because 29 U.S.C. § 207(p)(1) is an exclusionary provision,

the City bears the burden of showing that it applies in the case

at hand. See Specht v. City of Sioux Falls, 639 F.3d 814, 819-

20 (8th Cir. 2011) (citing Benshoff v. City of Va. Beach, 180

F.3d 136, 140 (4th Cir. 1999))) (“[T]he employer bears the

burden of proving entitlement to any exemptions or exceptions to

the Act’s compensation requirements.”). The City did not

attempt to make any such showing at trial. It was established

at trial through Ranaghan’s and Sullivan’s testimonies, however,

that city detail work was compensated by internal money transfer

rather than by means of a check or other external payment

method. See Bench Trial Tr. Day Four 102:14-18.

Consequently, the Court ruled at the June 2, 2021 hearing

that, in the event and to the extent that the Plaintiffs are

able to make the required showing under 29 U.S.C. § 207(a)(1)

for any individual Plaintiff in this case, the City may

demonstrate that individual City Departments are to be

considered “separate and independent employer[s]” under 29

U.S.C. § 207(p)(1) on the basis of evidence proffered at trial

and facts of which the Court can take judicial notice. See Tr.

Rulings 11:19-12:10, Timing Order ¶ II.E. Any hours of city

detail work performed by an individual Plaintiff for which the

City is able to make such a showing are then to be disregarded

for the purpose of calculating overtime in accordance with 29

U.S.C. § 207(a)(1) for that particular plaintiff. Id.

4. Statute of Limitations: 29 U.S.C. § 255(a)

The FLSA provides for a time-limit within which

actions can be brought:

Any action commenced on or after May 14, 1947, to

enforce any cause of action for unpaid minimum wages,

unpaid overtime compensation, or liquidated damages,

under the Fair Labor Standards Act of 1938, as amended

[29 U.S.C. 201 et seq.], the Walsh-Healey Act, or the

Bacon-Davis Act  --

(a) if the cause of action accrues on or after May 14,

1947 -- may be commenced within two years after the

cause of action accrued, and every such action shall

be forever barred unless commenced within two years

after the cause of action accrued, except that a cause

of action arising out of a willful violation may be

commenced within three years after the cause of action

accrued . . . .

29 U.S.C. § 255(a). Accordingly, “[u]nder the Fair Labor Act,

an action for unpaid compensation must commence within two years

after a cause of action accrues and three years if the cause of

action arises out of a willful violation.” Trezvant v. Fid.

Emp. Servs. Corp., 434 F. Supp. 2d 40, 51 (D. Mass. 2006).

a. Applicable Time Period: Willfulness

The Plaintiffs argue that the City acted willfully in

failing to administer the ten percent administrative fee because

the City “intentionally ignore[d] police detail payroll.” See

Pls.’ Post-Trial Br. 6. The City argues that any failure to

investigate the detail rate administration and payment to

Officers for compliance with the FLSA was not willful, but

rather negligent. See City’s Post-Trial Br. 31-33.

i. The Legal Standard

An employer’s behavior is willful under the FLSA if “the

employer either knew or showed reckless disregard for the matter

of whether its conduct was prohibited by the statute.”

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988); see

also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128

(1985) (applying the standard later adopted in McLaughlin). The

Plaintiffs bear the burden of proof that the City’s conduct was

willful. See McLaughlin, 486 U.S. at 135.

“[T]he First Circuit has rejected the notion that a failure

to investigate compliance with the FLSA can, without more,

constitute willfulness.” McGrath, 419 F. Supp. 3d at 259

(citing Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668,

681 (1st Cir. 1998)).

Recklessness involves more than mere awareness of the

existence of a governing federal law, or negligence in

complying with it, yet less than “voluntary,”

“deliberate,” or “intentional” conduct. “Deliberate

indifference” to the requirements of the law,

requirements that the employer “should have known”

about, may be willful, while “good faith but incorrect

conduct” is not.

LeGoff v. Trs. of Bos. Univ., 23 F. Supp. 2d 120, 125 (D. Mass.

1998) (Gertner, J.) (citations omitted).

There is no binding or persuasive caselaw that requires

that an employer’s willful conduct must occur during the third

year prior to commencement of any action by Plaintiffs, as the

City asserts. See City’s Post-Trial Br. 31-32.

ii. Application to the Facts

The Plaintiffs argue that the City had been aware of its

violation of the FLSA since the Massachusetts Appeals Court

rendered its decision in Malden Police Patrolman’s Association

on August 11, 2017. See Pls.’ Trial Br. ¶¶ 212-213. That

decision, however, does not refer to a violation of the FLSA.

See Malden Police Patrolman’s Ass’n, 92 Mass. App. Ct. at 62

n.11 (deeming any possible FLSA issue waived). On this basis,

the City cannot have been deliberately indifferent to the

requirements of the FLSA. See LeGoff, 23 F. Supp. 2d at 125.

The City’s Controller, Charles Ranaghan, testified on day

two of the trial that he conducted an audit of payments made to

Officers for detail work as to whether those payments

corresponded with the provisions of the Agreement following a

meeting with the Plaintiffs’ counsel and certain individual

Plaintiffs in relation to the present lawsuit. See Bench Trial

Tr. Day Two 37:21-25, 38:1-6 (Ranaghan’s Testimony). Ranaghan

further testified at trial that he had never checked the

accuracy of any detail rate paid out to Officers prior to the

audit. Id. He further testified that he was provided with

copies of the detail rate Spreadsheet only since August 2020 and

that he had not seen the Spreadsheet for prior years. Id. 45:6-

9.

The conduct described in Ranaghan’s testimony was not a

“voluntary,” “deliberate,” or “intentional” violation of the

FLSA, and it does not it demonstrate “[d]eliberate indifference”

to the requirements of the law. See LeGoff, 23 F. Supp. 2d at

125 (quotations omitted) (quoting Andover Newton Theological

School, Inc. v. Cont’l Cas. Co., 930 F.2d 89, 91 (1st Cir.

1991)). It is therefore not willful as required under 29 U.S.C.

§ 255(a). At most, any failure to investigate discrepancies

between detail pay and the provisions of the Agreement absent

awareness of any potential wrongdoing under the FLSA constitutes

negligence, which is not a sufficient basis for willfulness

under 29 U.S.C. § 255(a). See McGrath, 419 F. Supp. 3d at 259;

Herman, 163 F.3d at 681.

iii. Conclusion

The Plaintiffs failed to demonstrate that the City

willfully violated the FLSA. Accordingly, the limitation period

applicable in this case is two years, calculated “backward” from

August 28, 2019, the date on which the present lawsuit was

initiated by the Named Plaintiffs, see generally Compl., August

21, 2020, the date on which the majority of the Opt-In

Plaintiffs filed their opt-in Notices in the current action, see

generally Notices, ECF Nos. 34-142, and April 15, 2021 (when the

Opt-In Plaintiffs Kenneth Watkins, Amanda Yanovitch, and

Lieutenant Richard Correale filed their Notices), see Notice

Filing Consent Sue Kenneth Watkins, ECF No. 187; Notice Filing

Consent to Sue Amanda Yanovitch, ECF No. 188; Notice Filing

Consent to Sue Richard Correale, ECF No. 189.

b. Statute of Limitations Application

i. Accrual of the Cause of Action

With respect to 29 U.S.C. § 255, a cause of action

“accrues when the allegedly illegal employment practice occurs,

and no later than the termination of such practice or the

termination of the plaintiff’s employment.” Pineda v. Skinner

Servs., Inc., Civil Action No. 16-12217-FDS, 2020 WL 5775160, at

*7 (D. Mass. Sept. 28, 2020) (Saylor, C.J.); see also Hughes v.

Region VII Area Agency on Aging, 542 F.3d 169, 187 (6th Cir.

2008) (“Under the FLSA . . . ‘[a] cause of action is deemed to

accrue . . . at each regular payday immediately following the

work period during which the services were rendered for which

the wage or overtime compensation is claimed.’”).

Here, accrual of a cause of action for the purposes of 29

U.S.C. § 255 occurred at different points in time for each

Plaintiff in this matter, depending on whether and when each

Plaintiff can demonstrate an FLSA violation within the

limitations period. The alleged violations are described as

being of a continuous nature. See Pls.’ Pre-Trial Br. ¶¶ 110,

115 n.3, 129; Pls.’ Post-Trial Br. 8.

ii. Commencement of the Action

With respect to the question as to when an action

commences, 29 U.S.C. § 256 distinguishes between named

plaintiffs and opt-in plaintiffs in class action lawsuits:

In determining when an action is commenced for the

purposes of section 255 of this title, an action

commenced on or after May 14, 1947 under the Fair

Labor Standards Act of 1938, as amended, the Walsh-

Healey Act, or the Bacon-Davis Act, shall be

considered to be commenced on the date when the

complaint is filed; except that in the case of a

collective or class action instituted under the Fair

Labor Standards Act of 1938, as amended, or the Bacon-

Davis Act, it shall be considered to be commenced in

the case of any individual claimant --

(a) on the date when the complaint is filed, if he is

specifically named as a party plaintiff in the

complaint and his written consent to become a

party plaintiff is filed on such date in the

court in which the action is brought; or

(b) if such written consent was not so filed or if

his name did not so appear -- on the subsequent

date on which such written consent is filed in

the court in which the action was commenced.

29 U.S.C. § 256. In accordance with 29 U.S.C. § 256, therefore,

the present action has “commenced” at different times for each

individual Plaintiff, depending on which group of Plaintiffs

that individual Plaintiff belongs: on August 28, 2019 for the

Named Plaintiffs, see 29 U.S.C. § 256(a), and on August 21, 2020

or April 15, 2021 for the Opt-In Plaintiffs, see 29 U.S.C.

§ 256(b).

c. Conclusion

The point of time at which a cause of action under the FLSA

accrues for the purposes of the application of 29 U.S.C.

§ 255(a) is different for each individual Plaintiff.

Accordingly, a two-year limitation period applies, ending

on August 28, 2019 (for the Named Plaintiffs), the opt-in date

of August 21, 2020 (for the majority of the Opt-In Plaintiffs)

and April 15, 2021 (for the Opt-In Plaintiffs Kenneth Watkins,

Amanda Yanovitch, and Lieutenant Richard Correale), with respect

to individual Plaintiffs’ FLSA claims if and to the extent that

the requirements of 29 U.S.C. § 207(a)(1) can be shown to have

been met.

5. Summary of Rulings of Law: The FLSA Claim

At the June 2, 2021 hearing, the Court made the following

rulings relating to the calculation of individual Plaintiffs’

FLSA claims:11

Each individual Plaintiff in this matter is required to

demonstrate the following to satisfy the requirements of 29

U.S.C. § 207(a)(1) in the present action --

Within a time period of two years between August 28, 2017

and August 28, 2019 (for the Named Plaintiffs), August 21, 2018

and August 21, 2020 (for the Opt-In Plaintiffs) and April 15,

2019 and April 15, 2021 (for the Opt-In Plaintiffs Kenneth

Watkins, Amanda Yanovitch, and Lieutenant Richard Correale):

- An individual Plaintiff worked more than forty hours in one

or more workweeks;

- A workweek runs from Saturday of one calendar week until

Saturday of the following calendar week;

- An individual Plaintiff performed city detail work during

any such workweek;

- The hourly detail rate for city detail paid to an

individual Plaintiff was less than one and one half times

an individual Plaintiff’s regular rate of pay;

11 See Tr. Rulings 8:16-10:15, 11:19-12:10.

- An individual Plaintiff’s regular rate of pay is a

workweekly rate that includes individually applicable

augments, such as, but not limited to, shift-differential

pay, longevity pay, and career-incentive (“Quinn Bill”)

pay;

- The regular hourly rate to be calculated for each

individual Plaintiff per workweek is the sum of the

“Current Amt” listed as “Regular” on an individual

Plaintiff’s Paystub and the value of any salary augment(s)

relevant during that workweek applicable to an individual

Plaintiff, divided by forty;

- For payments made to individual Plaintiffs on a bi-weekly

basis, the same calculation applies, using a divisor of

eighty;

- The City may demonstrate that individual City Departments

are to be considered “separate and independent employer[s]”

under 29 U.S.C. § 207(p)(1) on the basis of evidence

proffered at trial and facts of which the Court can take

judicial notice;

- Any hours of city detail work performed by an individual

Plaintiff for which the City is able to make such showing

are to be disregarded for the purpose of calculating

overtime in accordance with 29 U.S.C. § 07(a)(1) for that

particular Plaintiff.

C. Decertification

The City has moved the Court to decertify the Plaintiffs’

FLSA claim. See generally Mot. Decertify; see also City’s Post-

Trial Br. 24-31.

1. Legal Standard

The docket in this case contains 113 Notices filed on

behalf of the Opt-In Plaintiffs. See generally Notices. The

Notices reference the Plaintiff’s Wage Act and FSLA claims. Id.

The Court certified a class for the Plaintiffs’ Wage Act and

FLSA claims during the hearing on February 22, 2021 on the

parties’ cross-motions for summary judgment. See Tr. Summ. J at

6:17.

At the close of discovery and following the arrival of

opt-in plaintiffs, the defendant employer may initiate

the second stage by moving to “decertify” the

collective action. With the benefit of more

substantial evidence, the court makes a comparatively

searching “factual determination as to whether there

are similarly-situated employees who have opted in.”

Rossello v. Avon Prod., Inc., Civil No. 14-1815 (JAG/BJM), 2015

WL 3890403, at *3 (D.P.R. June 24, 2015) (citations omitted)

(quoting Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n.2

(5th Cir. 2008), R&R adopted, (D.P.R. Sept. 28, 2015).

The Court is therefore tasked with determining whether the

Named Plaintiffs and the Opt-In Plaintiffs are “similarly

situated” under 29 U.S.C. § 216(b). See O’Donnell v. Robert

Half Int’l, Inc., 429 F. Supp. 2d 246, 248-49 (D. Mass. 2006)

(Gorton, J.). At the decertification stage,

courts consider factors such as: 1) the disparate

factual and employment settings -- e.g. whether

plaintiffs were employed in the same corporate

department, division, and location; 2) the various

defenses available to defendant which appear to be

individual to each plaintiff; and 3) fairness and

procedural considerations.

Trezvant, 434 F. Supp. 2d at 45 (quoting Reeves v. Alliant

Techsystems, Inc., 77 F. Supp. 2d 242, 247 (D.R.I. 1999)).

The issue to be decided here is whether the Plaintiffs are

challenging a “single policy” imposed on them by the City, which

would involve an “inquiry that ‘does . . . generate common

answers and [can] be answered ‘yes’ or ‘no’ on a classwide

basis,’” or bringing forward an “inquiry that [goes] beyond the

mere existence of a single policy and need[s] to be analyzed on

a case-by-case basis.” See Botero v. Commonwealth Limousine

Serv. Inc., Civil Action No. 12-10428-NMG, 2014 WL 1248158, at

*6 (D. Mass. Mar. 25, 2014) (Gorton, J.) (citing Raposo v.

Garelick Farms, LLC, 293 F.R.D. 52, 57 (D. Mass. 2013) (Gorton,

J.)).

2. Application

The Court applies the factors listed in Trezvant, 434 F.

Supp. 2d at 45, to the facts of the present action below.

a. Disparate Factual and Employment Settings

In the case at hand, the likelihood of success for an

individual Plaintiff’s FLSA claim depends on the consideration

of highly disparate factual circumstances. To determine whether

a City policy illegally deprived an individual Plaintiff of ten

percent of his or her compensation for city detail work, the

Court is required first to determine whether each such plaintiff

has an overtime claim under the FLSA. As discussed above, a

detailed and highly complex plaintiff-specific analysis is

necessary to determine, on a workweekly basis, whether each

plaintiff was eligible for overtime pay under the FLSA for city

detail work within the individually applicable two-year statute

of limitations time period.12

While it may be “plausible that each would-be class member,

were he or she to file a separate complaint, could provide

sufficient proof to survive summary judgment . . . that fact

alone would not be sufficient to render such class members

‘similarly situated’ so as to warrant conditional class

certification here.” Botero, 2014 WL 1248158, at *6.

12 But see Scovil v. FedEx Ground Package Sys., Inc., 886 F.

Supp. 2d 45, 58 (D. Me. 2012) (denying an “individualized

statute of limitations defense” in response to a motion to

decertify an FLSA collective action, stating that “the statute

of limitations does not make a collective action

inappropriate”).

The facts of the matter at hand call for a case-by-case

analysis, and do not point to a common answer that applies on a

class-wide basis.

b. Defenses Individual to Each Plaintiff

Here, the limitation period operates as an individualized

defense. The limitation period attaches at different points in

time for each plaintiff (depending on when the cause of action

under the FLSA accrued) and ends depending on whether each

plaintiff is a Named Plaintiff (at the time the action was

commenced on August 28, 2019, see Compl.) or an Opt-In Plaintiff

(when an individual Notice was filed on August 21, 2020 or April

15, 2021, see Notices). Only once this has been established can

the Court consider whether any deduction of a ten percent

administrative fee has deprived individual Plaintiffs of

overtime compensation to which they were legally entitled under

the FLSA.

c. Fairness and Procedural Considerations

The City’s motion to decertify was filed during the ongoing

trial in the present matter. See generally Mot. Decertify.

The main reason for certifying a class in an FLSA action is

to promote judicial economy. See Cunha v. Avis Budget Car

Rental, LLC, 221 F. Supp. 3d 178 (D. Mass. 2016) (Saylor, J.)

(citing Iriarte v. Café 71, Inc., No. 15 Civ. 3217 (CM), 2015 WL

8900875, at *2 (S.D.N.Y. Dec. 11, 2015) (“FLSA ‘[c]ollective

actions were created to promote the efficient adjudication of

similar claims, so similarly situated employees, whose claims

are often small and not likely to be brought on an individual

basis, may join together and pool their resources to prosecute

claims.’”)). In the case at hand, it is not at all certain,

even after completion of the trial, whether any individual

Plaintiffs -- Named or not -- have a viable claim under the

applicable provisions of the FLSA. The trial has demonstrated

what extraordinary effort is required to make such a showing,

considering how much time was spent by the Plaintiffs’ attorney

to attempt to do so at trial for only a small number of

(strategically) selected Plaintiffs. No judgment rendered on

the Plaintiffs’ FLSA claim with respect to the Named Plaintiffs

in this case will be applicable to the Opt-In Plaintiffs if it

has not first been established whether an individual Opt-In

Plaintiff has a viable FLSA claim. Here, no such comprehensive

showing has yet been made.

Moreover, the viability of an individual Plaintiff’s FLSA

claim turns on the determination of a “regular rate” under 29

U.S.C. § 207(a)(1). See O’Brien, 350 F.3d at 294. Because the

“regular rate” includes salary augments that are individual to

each Plaintiff, “regular rate[s]” naturally differ between

individual Plaintiffs. Moreover, “the actual denominator [for

the calculation of an officer’s ‘regular rate’ under 29 U.S.C.

§ 207(a)(1)] will depend on the actual overtime and detail hours

worked by each officer. That number is necessarily an

individualized calculation, not a fixed number applicable to all

officers.” McGrath, 419 F. Supp. 3d at 252.

Individual considerations overwhelmingly dominate any

common questions of fact and law in this case. The Court

therefore rules that the Plaintiffs in this action are not

“similarly situated” with respect to their FLSA claim.

3. Legal Effect of Decertification

The City argues that the Court ought dismiss without

prejudice the Opt-In Plaintiffs’ FLSA claims. See City’s Post-

Trial Br. 30-31.

The legal effect of the decertification of a class of

plaintiffs in an FLSA collective action has not yet been

addressed by the First Circuit Court of Appeals or the district

courts within this Circuit. Other circuit and district courts,

however, have done so. “If the plaintiffs are similarly

situated, the collective action proceeds to trial; but if they

are not, ‘the class is decertified, the claims of the opt-in

plaintiffs are dismissed without prejudice, and the class

representative may proceed on his or her own claims.’” Zivali

v. AT&T Mobility, LLC, 784 F. Supp. 2d 456, 460 (S.D.N.Y. 2011)

(quoting Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y.

2006)). “‘[W]hen a collective action is decertified, it reverts

to one or more individual actions on behalf of the named

plaintiffs,’ -- which is just what happens when a Rule 23 class

is decertified: the unnamed class members go poof and the named

plaintiffs’ claims revert to being individual claims.”

Espenscheid v. DirectSat USA, LLC, 688 F.3d 872, 877 (7th Cir.

2012) (quoting Alvarez v. City of Chi., 605 F.3d 445, 450 (7th

Cir. 2010)); see also Roberson v. Rest. Delivery Devs., LLC, 320

F. Supp. 3d 1309, 1322 (M.D. Fla. 2018) (dismissing all of the

opt-in plaintiffs’ claims without prejudice and proceeding with

named plaintiff’s individual claims).

In the case at hand, the Court certified a class for the

Plaintiffs’ FLSA claims that was co-extensive with the Wage Act

claim class. See Tr. Rulings 10:13-15; Tr. Summ. J. 6:17. To

dismiss without prejudice the Opt-In Plaintiffs’ FLSA claims

while maintaining the Plaintiffs’ Wage Act class certification,

thereby forcing the Opt-In Plaintiffs to re-file any viable

individual FLSA claim(s) appears to be unnecessarily burdensome

and not in the interest of judicial economy.

Accordingly, the Court provisionally decertifies the class

for the purposes of the Plaintiffs’ FLSA claim, meaning that it

does not currently put the decertification into effect. The

above appears best to accord with the present procedural posture

of the case as a whole, as well as with considerations of

judicial economy and fairness.

IV. CONCLUSION

A. With respect to the Plaintiffs’ Wage Act claim, the

Court rules that:

1. The Plaintiffs have not yet exhausted their

administrative remedies in accordance with Massachusetts General

Laws chapter 149, section 150, but the Court nevertheless has

jurisdiction to consider and make rulings concerning the Wage

Act claim.

2. Compensation received by the Plaintiffs for

private detail work constitutes “wages,” and the Plaintiffs are

“employees” under Massachusetts General Laws chapter 149,

sections 148 and 148B.

3. Massachusetts General Laws chapter 44, section

53C requires that the person requesting a private detail must

pay the ten percent administrative fee, and the City violated

Massachusetts General Laws chapter 44, section 53C if and to the

extent that it deducted a ten percent administrative fee from

the Officers’ wages for private detail work instead of charging

the third party that had requested the private detail.

4. Article 23, section 3 of the Agreement --

specifically the phrase “maximum patrolman’s rate of pay” -- is

ambiguous, and the phrase “maximum patrolman’s rate of pay” in

Article 23, section 3 of the Agreement refers to the rate of pay

of the Patrolman who, in addition to his “base pay,” had

accumulated the maximum amount of additional benefits during a

certain time period, embodied in salary augments, namely Quinn

Bill pay, hazardous duty pay, longevity pay, and night

differential.

5. Multipliers must be taken into account when

calculating an applicable detail rate because the Agreement is a

partially integrated document.

B. With respect to the Plaintiffs’ FLSA claim, the Court

rules that:

1. The Court provisionally decertifies the class for

the purposes of the Plaintiffs’ FLSA claim.

2. The Plaintiffs failed to demonstrate that the

City willfully violated the FLSA. In accordance with 29 U.S.C.

§ 255(a), the limitation period applicable in this case

therefore is two years.

3. Pursuant to 29 U.S.C § 256, the two-year

limitation period ends on August 28, 2019 (for the Named

Plaintiffs), the opt-in date of August 21, 2020 (for the

majority of the Opt-In Plaintiffs), and April 15, 2021 (for the

Opt-In Plaintiffs Kenneth Watkins, Amanda Yanovitch, and

Lieutenant Richard Correale).

4. The point in time at which a cause of action

under the FLSA accrues for the purposes of the application of 29

U.S.C. § 255(a) is different for each individual Plaintiff,

depending on whether and to what extent the requirements of 29

U.S.C. § 207(a)(1) can be shown to have been met.

5. Each individual Plaintiff in this matter is

required to demonstrate the following to satisfy the

requirements of 29 U.S.C. § 207(a)(1) in the present action --

Within a time period of two years between August 28, 2017

and August 28, 2019 (for the Named Plaintiffs), August 21, 2018

and August 21, 2020 (for the Opt-In Plaintiffs), and April 15,

2019 and April 15, 2021 (for the Opt-In Plaintiffs Kenneth

Watkins, Amanda Yanovitch, and Lieutenant Richard Correale):

- An individual Plaintiff worked more than forty hours in one

or more workweeks;

- A workweek runs from Saturday of one calendar week until

Saturday of the following calendar week;

- An individual Plaintiff performed city detail work during

any such workweek;

- The hourly detail rate for city detail paid to an

individual Plaintiff was less than one and one half times

the individual Plaintiff’s regular rate of pay;

- An individual Plaintiff’s regular rate of pay is a

workweekly rate that includes individually applicable

augments, such as, but not limited to, shift-differential

pay, longevity pay, and career-incentive (“Quinn Bill”)

pay;

- The regular hourly rate to be calculated for each

individual Plaintiff per workweek is the sum of the

“Current Amt” listed as “Regular” on an individual

Plaintiff’s Paystub and the value of any salary augment(s)

relevant during that workweek applicable to an individual

Plaintiff, divided by forty;

- For payments made to individual Plaintiffs on a bi-weekly

basis, the same calculation applies, using a divisor of

eighty;

- The City may demonstrate that individual City Departments

are to be considered “separate and independent employer[s]”

under 29 U.S.C. § 207(p)(1) on the basis of evidence

proffered at trial and facts of which the Court can take

judicial notice;

- Any hours of city detail work performed by an individual

Plaintiff for which the City is able to make such a showing

are to be disregarded for the purpose of calculating

overtime in accordance with 29 U.S.C. § 207(a)(1) for that

particular Plaintiff.

C. The calculation of individual claims in this matter --

whether brought in the form of a Wage Act or FLSA claim -- is to

be performed in accordance with the requirements further set out

in the Timing Order, and the Court does not express an opinion,

nor does it enter judgment, with respect to any individual

Plaintiff’s claims in this matter at this time.

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

JUDGE

of the

UNITED STATES13

13 This is how my predecessor, Peleg Sprague (D. Mass. 1841-

1865), would sign official documents. Now that I’m a Senior

District Judge I adopt this format in honor of all the judicial

colleagues, state and federal, with whom I have had the

privilege to serve over the past 43 years.