Donis v. American Waste Services, LLC

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18-P-142 Appeals Court

ELMER DONIS & others1 vs. AMERICAN WASTE SERVICES, LLC,
& others.2

No. 18-P-142.

Norfolk. December 12, 2018. - May 22, 2019.

Present: Vuono, Hanlon, & Shin, JJ.

Massachusetts Wage Act. Contract, Public works, Performance and
breach, Third party beneficiary. Labor, Public works,
Wages, Minimum wage. Minimum Wage. Public Works, Wage
determination. Administrative Law, Wage administration.
Municipal Corporations, Contracts. Employment, Records.
Limited Liability Company. Common Law.

Civil actions commenced in the Superior Court Department on
August 1, 2012, and February 21, 2013.

After consolidation, a motion for partial summary judgment
as to liability only was heard by Brian A. Davis, J.; pretrial
motions were heard by him; and entry of final judgment on
stipulated damages was ordered by him.

Gregory V. Sullivan (Michael P. Morizio also present) for
the defendants.
Nicole Horberg Decter for the plaintiffs.

1 Juan Florian, Melvin Granados, Wilfrido Monterroso, Edgar
Ruiz, Edvin Sambrano, Ismael Sambrano, Enrique Sarceno, Victor
Serrano, and Obdulio Albeno.

2 Christopher Carney and Michael Galvin.
 2

The following submitted briefs for amici curiae:
Maura Healey, Attorney General, & Karla E. Zarbo, Assistant
Attorney General, for the Attorney General.
Joseph L. Sulman for Massachusetts Employment Lawyers
Association.
Liliana Ibara & Joseph J. Michalakes, Greater Boston Legal
Services, for Immigrant Worker Center Collaborative.

SHIN, J. The plaintiffs brought this action to recover

prevailing wages they say are owed to them under G. L. c. 149,

§ 27F, which mandates payment of a specific minimum wage for

certain public works contracts. Judgment entered for the

plaintiffs, and the defendants appeal, raising numerous issues.

Chief among them are (1) whether § 27F requires, as a condition

precedent to liability, that the public authority awarding the

contract obtain a wage rate schedule from the Department of

Labor Standards (department) concurrently with execution of the

contract, and (2) whether the plaintiffs can recover for damages

they incurred outside § 27F's three-year statute of limitations

by bringing a common-law claim for breach of contract as

intended third-party beneficiaries. As to the first issue, we

conclude that a concurrent rate schedule is not a statutory

prerequisite to imposing liability under § 27F, which is a

strict liability statute that requires employers to stipulate in

the contract to pay their employees the prevailing wage. But as

to the second issue, we agree with the defendants that, in the
 3

precise circumstances of this case, § 27F preempts3 the

plaintiffs' common-law breach of contract claim, barring them

from recovering outside the three-year limitations period. We

therefore affirm in part and reverse in part.4

Background. 1. Facts and statutory background. The

following facts are undisputed or taken from the plaintiffs'

statement of material facts in support of summary judgment,

which the judge deemed admitted.5

AWS is a limited liability company engaged in waste

collection, recycling, and disposal. At all relevant times,

Christopher Carney and Michael Galvin were co-owners and

officers of AWS. Carney served as AWS's president, while Galvin

served as vice-president.

Variously from August 2006 to December 2011, the plaintiffs

worked on AWS's disposal trucks as "shakers," referred to in the

industry as such because of the nature of their work, consisting

primarily of loading the trucks with waste materials and

3 We use the terminology adopted by the Supreme Judicial
Court in Lipsitt v. Plaud, 466 Mass. 240 (2013).

4 We acknowledge the amicus briefs submitted by the Attorney
General, the Immigrant Worker Center Collaborative, and the
Massachusetts Employment Lawyers Association.

5 The judge deemed the facts in the statement admitted based
on the defendants' failure to comply with Superior Court Rule
9A(b)(5). The defendants have not argued that this was an abuse
of discretion.
 4

operating hydraulic levers to compact the materials. AWS

employed the plaintiffs under contracts it had with the towns of

Foxborough, Franklin, Medway, and Wrentham. Each contract

required AWS to comply with the prevailing wage law,6 including

G. L. c. 149, § 27F, which applies to public works contracts

involving the use of "trucks, vehicles or equipment." Section

27F mandates that employers pay wages to "operators of said

trucks, vehicles or equipment" according to a rate schedule

issued by the department:

"No agreement of lease, rental or other arrangement, and no
order or requisition under which a truck or any automotive
or other vehicle or equipment is to be engaged in public
works by the commonwealth or by a county, city, town or
district, shall be entered into or given by any public
official or public body unless said agreement, order or
requisition contains a stipulation requiring prescribed
rates of wages, as determined by the commissioner,[7] to be
paid to the operators of said trucks, vehicles or
equipment. Any such agreement, order or requisition which
does not contain said stipulation shall be invalid, and no
payment shall be made thereunder. Said rates of wages
shall be requested of said commissioner by said public
official or public body, and shall be furnished by the
commissioner in a schedule containing the classifications
of jobs, and the rate of wages to be paid for each job."

6 The prevailing wage law, G. L. c. 149, §§ 26-27H, requires
general contractors and subcontractors to pay a special minimum
wage to workers employed in public construction and public
works. See Lighthouse Masonry, Inc. v. Division of Admin. Law
Appeals, 466 Mass. 692, 697 (2013).

7 "Commissioner" means "the director of the department of
labor standards." G. L. c. 149, § 1.
 5

Section 27F also authorizes private rights of actions by

aggrieved employees:

"An employee claiming to be aggrieved by a violation of
this section may, . . . within [three] 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. An employee so aggrieved who prevails in such an
action shall be awarded treble damages, as liquidated
damages, for any lost wages and other benefits and shall
also be awarded the costs of the litigation and reasonable
attorneys' fees."

As the department has explained in an opinion letter, it

derives wage rates for "solid waste and recycling collection and

hauling" by first "look[ing] to collective bargaining agreements

between employers and organized labor." For cities or towns not

covered by a collective bargaining agreement, the department

will request from them information regarding "[t]he current

hourly pay scales showing step increases and date graduations

for Heavy Equipment Operators and Laborers for the city or town

employees," as well as health plan information. The department

will then input this information into its "Prevailing Wage

database, which generates the wage rate schedule."

Although all the original contracts at issue were

accompanied by a wage rate schedule, the awarding authorities

did not consistently request that the department issue an

updated schedule when the contracts were renewed or extended.

As a result, some were accompanied by a concurrently issued rate
 6

determination, while others were not. For those that were not,

after litigation commenced, counsel for the plaintiffs asked the

department to retroactively calculate the prevailing wage rates

applicable to those contract years. The department then

requested and obtained from the awarding authorities "[t]he

hourly pay scales that were in effect for the requisite year,

showing step increases and date graduations for Heavy Equipment

Operators and Laborers for the city or town employees." Based

on this information, the department calculated the prevailing

wage rates for each of the contract years in question.

In the relevant timeframe,8 the prevailing wage rates as

determined by the department ranged from $20 per hour to $24.81

per hour. The defendants paid the plaintiffs significantly

less, between $16 and $17 per hour.

2. Procedural history. The plaintiffs raised the

following claims, among others: nonpayment of the prevailing

wage, in violation of G. L. c. 149, § 27F; nonpayment of wages

owed, in violation of the Wage Act, G. L. c. 149, § 148; and

breach of contract as intended third-party beneficiaries. The

plaintiffs filed a motion for partial summary judgment as to

8 As discussed infra, the plaintiffs' claims are subject to
a three-year statute of limitations. The plaintiffs initiated
this action on August 1, 2012, and do not allege underpayment of
wages after December 31, 2011. The relevant time period is
therefore August 2009 through December 2011.
 7

liability on only the statutory claims, which the judge allowed.

As most pertinent here, the judge made the following rulings:

(1) the defendants were required to pay the prevailing wage

under § 27F; (2) there was no genuine dispute of material fact

that the defendants did not pay the prevailing wage during the

relevant timeframe; (3) any failure by the awarding authority to

request a current wage rate schedule did not absolve the

defendants of liability; (4) Carney and Galvin were personally

liable for the unpaid wages; and (5) summary judgment on

liability was appropriate despite the defendants' assertion that

they voluntarily paid for eight hours per day even though the

plaintiffs actually worked fewer hours.

Before trial on damages and the nonstatutory claims, the

plaintiffs filed two motions in limine -- the first seeking to

preclude the defendants from challenging the validity of the

wage rate determinations made by the department, and the second

seeking to preclude evidence that the defendants compensated the

plaintiffs on a day rate rather than an hourly rate. The judge

allowed the first motion on the ground that the department's

wage rate determinations could be challenged only

administratively or through a certiorari action and that, in any

event, the determinations were not arbitrary or capricious. The

judge allowed the second motion partially on the ground that the
 8

defendants did not keep adequate records to show that they

compensated the plaintiffs on a day rate.

On the scheduled first day of trial, the parties entered

into a conditional stipulation establishing the amount of the

plaintiffs' damages. The parties then filed a joint motion in

which they requested that final judgment enter against the

defendants on the statutory claims and the breach of contract

claim, without prejudice to the defendants' right to appeal.

The plaintiffs agreed to conditionally withdraw their claims for

unpaid overtime and unjust enrichment, subject to this court's

decision on appeal with respect to the other claims. In

addition, the parties agreed to present to this court for de

novo review the following question of law:

"[W]hether a contract incorporating prevailing wage and/or
[G. L. c. 149, § 27F,] obligations as a contract term may
be enforced by the [p]laintiffs as third party
beneficiaries whereby the [p]laintiffs would receive single
damages under a breach of contract theory and for a time
period outside the applicable [three] year statute of
limitations for [G. L.] c. 149 §§ 27F, 148, and 150."

After the judge allowed the joint motion, final judgment entered

against the defendants in the stipulated-to amounts: $119,036

on the statutory claims, representing damages from 2009 to 2011

exclusive of treble damages, attorney's fees, and costs; and

$82,054.40 on the breach of contract claim, representing damages

from 2006 to 2009 exclusive of interest.
 9

Discussion. The defendants' primary arguments on appeal

are as follows: (1) G. L. c. 149, § 27F, does not apply to the

contracts or the work the plaintiffs performed thereunder;

(2) if § 27F applies, no liability can attach where the awarding

authority failed to obtain a wage rate schedule concurrently

with execution of the contract; (3) the judge erred by

precluding the defendants from challenging the department's wage

rate determinations as arbitrary and capricious; (4) the judge

should not have entered summary judgment on liability because

there was an issue of disputed fact whether the defendants

adequately compensated the plaintiffs on a day-rate basis;

(5) relatedly, the judge erred by precluding the defendants from

offering evidence that they compensated the plaintiffs on a day-

rate basis in order to mitigate damages; (6) Carney and Galvin

cannot be held individually liable; and (7) § 27F preempts the

plaintiffs' common-law claim for breach of contract as intended

third-party beneficiaries. We review de novo the issues

resolved on summary judgment (issues 1, 2, 4, and 6), viewing

the evidence in the light most favorable to the defendants. See

Correa v. Schoeck, 479 Mass. 686, 692-693 (2018). We review for

abuse of discretion the judge's resolution of the motions in

limine (issues 3 and 5). See N.E. Physical Therapy Plus, Inc.

v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013). We review

the last issue, a pure question of law, de novo.
 10

1. Applicability of § 27F. We begin with the threshold

question whether the plaintiffs are entitled to prevailing wages

under G. L. c. 149, § 27F. The defendants contend that § 27F

does not apply for two reasons: the contracts do not qualify as

"public works" contracts, and the plaintiffs do not qualify as

"operators of . . . trucks, vehicles or equipment." G. L.

c. 149, § 27F. Both of these arguments are foreclosed by

Perlera v. Vining Disposal Serv., Inc., 47 Mass. App. Ct. 491

(1999). In that case we held that municipal contracts for

refuse collection and disposal are contracts for "public works"

under § 27F, id. at 493-496, and that the "shakers" who work on

the trucks are "operators" within the meaning of that statute,

id. at 498. See Mullally v. Waste Mgmt. of Mass., Inc., 452

Mass. 526, 528 (2008) (citing Perlera for the proposition that

"§ 27F . . . requires that the prevailing wage rate set by the

[department] be paid to waste disposal employees performing

under municipal contracts").

In attempting to distinguish Perlera, the defendants assert

that AWS was not engaged in "public works" because it deposited

the waste materials it collected at disposal sites that are

privately owned. Perlera cannot be read so narrowly. Indeed,

in Perlera, we rejected a similar argument that § 27F applies

only where "public works are conducted directly 'by' the

government, i.e., not by independent contracting." 47 Mass.
 11

App. Ct. at 498. As we reasoned, the focus of the statute "is

the utilization of vehicles or equipment on public works at the

behest of the government, whether directly or indirectly." Id.

The defendants have given us no reason to distinguish or

overrule Perlera, which therefore controls the result here.

2. Missing wage rate schedules. Having determined that

§ 27F applies, we next consider the defendants' contention that

issuance of a rate schedule concurrently with execution of a

public works contract is a statutory prerequisite to the

imposition of liability. As the defendants note, § 27F puts the

onus on the awarding authority, and not the employer, to request

the rates from the department. See G. L. c. 149, § 27F ("Said

rates of wages shall be requested of [the department] by said

public official or public body . . ."). Nonetheless, we

conclude that an awarding authority's failure to comply with

this requirement does not relieve an employer of its obligation

to pay prevailing wages once it has contracted to do so.

General Laws c. 149, § 27F, expressly conditions the

legitimacy of a public works contract on the inclusion of "a

stipulation requiring prescribed rates of wages, as determined

by the [department]." Contracts that do not contain such a

stipulation are "invalid, and no payment shall be made

thereunder." Id. Thus, regardless of whether the awarding

authority concurrently obtains a rate schedule, the employer
 12

must pay prevailing wages under § 27F as stipulated to in the

contract. This is the clear import of our decision in Perlera,

in which we rejected the argument that a contract was "void

[under § 27F] for failing to contain a copy of the applicable

prevailing wage rate schedule." 47 Mass. App. Ct. at 492. We

concluded that, despite the missing schedule, the contract was

valid -- and required the employer to pay prevailing wages

thereunder -- because it "included the prevailing wage

stipulation required by [§ 27F]." Id. at 499 n.12. See id. at

492-493.

Though we did not elaborate on our reasoning in Perlera, we

think our holding there is consistent with the purpose of the

prevailing wage law, which is "to achieve parity between the

wages of workers engaged in public construction projects and

workers in the rest of the construction industry." Mullally,

452 Mass. at 532. Allowing the defendants to avoid their

obligation to pay the prevailing wage, to which they stipulated,

would contravene this statutory purpose. Having themselves

already performed and received payment under the contracts, the

defendants are not entitled to benefit from their noncompliance

with their statutory and contractual obligations at the expense

of the plaintiffs' right to be paid the prevailing wage.

The defendants' assertion that they are being held liable

"for conduct that was not known to be improper when undertaken"
 13

requires little discussion. The prevailing wage law is a strict

liability statute. See Lighthouse Masonry, Inc. v. Division of

Admin. Law Appeals, 466 Mass. 692, 698-699 (2013). And in any

event, the defendants bid for, negotiated, and executed the

contracts, each of which contained the required stipulation that

the defendants comply with the prevailing wage law.9 Moreover,

all the original contracts, along with some of the renewed and

extended contracts, were accompanied by current rate schedules,

putting the defendants on notice that they were obligated to pay

their employees at rates established by the department.10 In

those instances where an awarding authority failed to obtain a

current schedule, the defendants had available to them the

simple expedient of requesting one. It is not the employee who

should be penalized for the employer's ignorance or disregard of

the law. See id. at 699 ("an employer's reason for the

9 For the first time in their reply brief, the defendants
suggest that they were not on notice of their obligations
because some of the contracts "referenc[ed] prevailing wage laws
generally" and not § 27F specifically. This is of no
consequence because the prevailing wage law includes § 27F. Cf.
Perlera, 47 Mass. App. Ct. at 499 n.12 ("the contract provision
incorporating the requirements of chapter 149 necessarily
included the prevailing wage stipulation required by [§ 27F]").

10The schedules set forth the prevailing wage rates
applicable to each year covered by a given contract.
Invariably, the rates increased over the term of the contract.
 14

violation [of the prevailing wage law] is irrelevant; the fact

of violation is sufficient for a penalty to issue").11

3. The department's wage rate determinations. The

defendants argue alternatively that the judge erred by

precluding them from challenging the department's rate

determinations as arbitrary and capricious. This argument faces

the initial hurdle that the proper procedure for challenging a

wage determination (or job classification) is through the

administrative review mechanism set out in G. L. c. 149, § 27A.

See Construction Indus. of Mass. v. Commissioner of Labor &

Indus., 406 Mass. 162, 166 (1989). Although we grant that

administrative review may not have been available in these

11The defendants' reliance on McGrath vs. ACT, Inc., Mass.
App. Div., No. 08-ADMS-40018 (Southern Dist. Nov. 25, 2008), is
misplaced. McGrath held that employers need not pay the
prevailing wage required by G. L. c. 149, § 27, which applies to
contracts for construction of public works, if the awarding
authority fails to request a rate schedule and incorporate it
into the contract. We are not bound by McGrath, which is in any
event distinguishable because § 27, unlike § 27F, does not
require that the contract contain a stipulation mandating
prescribed rates of wages. See id. at 259-260 (distinguishing
Perlera on this basis). We note also that the Appellate
Division seemed not to have considered that employers are
strictly liable under the prevailing wage law, or that § 27
provides that "[t]he general contractor shall annually obtain
updated rates from the public official or public body and no
contactor [sic] or subcontractor shall pay less than the rates
so established." Cf. Somers v. Converged Access, Inc., 454
Mass. 582, 591 (2009) (because G. L. c. 149, § 148B, imposes
strict liability, "[g]ood faith or bad, if an employer
misclassifies an employee as an independent contractor, the
employer must suffer the consequences").
 15

circumstances,12 the defendants did not even try to invoke that

remedy or to seek judicial review through an action for a writ

of certiorari. See Teamsters Joint Council No. 10 v. Director

of Dep't of Labor & Workforce Dev., 447 Mass. 100, 106 (2006).

Instead, they sought to raise the issue as a defense in an

action involving only private parties, thereby depriving the

judge of the department's views in an area in which it is

entitled to "great deference." Id., quoting Box Pond Ass'n v.

Energy Facilities Siting Bd., 435 Mass. 408, 412 (2001).

But even assuming the issues are properly before us, the

defendants have failed to meet their heavy burden of

demonstrating that the department's determinations were

arbitrary and capricious. We are unable to assess the

defendants' first argument -- that the department relied on the

wrong job classifications -- because it is unsupported by

citations to the record and insufficiently developed. The

factual premise of the defendants' second argument -- that the

department erred in considering only collective bargaining rates

-- is contradicted by the record, which reflects that the

department determined the prevailing rates based on "[t]he

hourly pay scales that were in effect for the requisite year

12This is so in part because G. L. c. 149, § 27A, provides
that a wage determination may be appealed "[w]ithin five days
from the date of the first advertisement or call for bids."
 16

. . . for Heavy Equipment Operators and Laborers for the city or

town employees."13 Lastly, § 27F does not require the department

to provide a "separate health and welfare rate," as the

defendants contend. The defendants fail anyway to explain how

they were prejudiced in this respect. See Mullally, 452 Mass.

at 529 ("An employer may prorate on an hourly basis qualifying

health and welfare benefits paid on behalf of an employee and

deduct that amount from the prevailing wage rate").

4. Day-rate method. We turn to the defendants' two

related arguments concerning the day-rate method of

compensation, under which employees are paid a flat sum per day

regardless of hours worked. According to the defendants, they

compensated the plaintiffs at rates that matched or exceeded the

prevailing wage rates because AWS had a discretionary policy to

pay for eight hours per day, even though the plaintiffs actually

worked fewer hours. Given this potential defense, the

defendants argue that the judge should not have entered summary

13Contrary to the defendants' characterization, Receiver of
Boston Hous. Auth. v. Commissioner of Labor & Indus., 396 Mass.
50 (1985), does not stand for the proposition that the
department must always consider nonunion rates in setting the
prevailing wage. The court there construed G. L. c. 149, § 26,
to require the agency to "first refer to collective bargaining
agreements 'between organized labor and employers.'" Id. at 56,
quoting G. L. c. 149, § 26. "Only when 'no [collective
bargaining] rates have been . . . established'" does § 26
require consideration of "nonunionized workers." Id., quoting
G. L. c. 149, § 26.
 17

judgment on liability or allowed the plaintiffs' motion in

limine to preclude the defendants from offering evidence of

actual hours worked in order to mitigate damages.

It is true that the department has in an opinion letter

endorsed the day-rate method as a means to satisfy an employer's

prevailing wage obligations. See Niles v. Huntington Controls,

Inc., 92 Mass. App. Ct. 15, 18-22 (2017) (courts must give

deference to department opinion letters). But in the same

opinion letter, the department stressed that "an employer

wishing to compensate employees on a day rate basis must

separately calculate an employee's pay on an hourly basis to

ensure proper payment and make up any shortfall that might

occur. Furthermore, this calculation must be done on a timely

basis to ensure the prompt payment of wages required by [the

Wage Act, G. L.] c. 149, § 148." The department further

stressed that the employer "would still be obligated to track

actual hours worked and maintain and submit payroll records in

accordance with [G. L.] c. 149, § 27B, showing payment of the

applicable prevailing wage."

Here, the defendants failed to comply with the

recordkeeping obligations that would entitle them to rely on the

day-rate method.14 The time records produced by the defendants

14The defendants observe that the department's opinion
letter refers to the recordkeeping requirement of G. L. c. 149,
 18

during discovery contain, with few exceptions, the notation "8"

for each day worked by the plaintiffs, along with the notation

"40" for the work week.15 Even assuming that the plaintiffs

worked fewer than eight hours on some days, it is undisputed

that the defendants did not track those hours. The defendants

thus could not, and did not, separately calculate the

plaintiffs' pay on an hourly basis to make up for any shortfall

that might have occurred in a given pay period.

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946),

does not support the defendants' position that the judge should

have allowed them to introduce evidence to refute their own time

§ 27B, which the plaintiffs concede is inapplicable here. But
the defendants unquestionably had the duty under other
provisions of State and Federal law to keep accurate records of
the hours worked by their employees. See G. L. c. 151, § 15
("Every employer shall keep a true and accurate record of the
name, address and occupation of each employee, of the amount
paid each pay period to each employee, [and] of the hours worked
each day and each week by each employee . . ."); 29 U.S.C.
§ 211(c) (2012) ("Every employer subject to any provision of
[the Fair Labor Standards Act] . . . shall make, keep, and
preserve such records of the persons employed by him and of the
wages, hours, and other conditions and practices of employment
maintained by him . . ."); 29 C.F.R. § 516.2(a)(7) (1987)
("Every employer shall maintain and preserve payroll or other
records containing . . . [h]ours worked each workday and total
hours worked each workweek . . .").

15In some instances the timesheets show that the plaintiffs
worked more than forty hours per week. The AWS manager in
charge of keeping the timesheets acknowledged in his deposition
that the plaintiffs occasionally worked more than forty hours
per week and that the timesheets would accurately reflect the
additional hours.
 19

records.16 There, the United States Supreme Court affirmed that

"it is the employer who has the duty under . . . the [Fair Labor

Standards] Act to keep proper records of wages, hours and other

conditions and practices of employment and who is in position to

know and to produce the most probative facts concerning the

nature and amount of work performed." Id. at 687. Thus,

"[w]hen the employer has kept proper and accurate records, the

employee may easily discharge [the] burden [of proving that the

employee performed work for which he or she was not properly

compensated] by securing the production of those records." Id.

On the other hand, when the employer fails to keep adequate

records, Anderson establishes a burden-shifting framework

whereby the employee bears the initial burden to "prov[e] that

[the employee] has in fact performed work for which he [or she]

was improperly compensated and [to] produce[] sufficient

evidence to show the amount and extent of that work as a matter

of just and reasonable inference." Id. If the employee does

so, "[t]he burden then shifts to the employer to come forward

with evidence of the precise amount of work performed or with

evidence to negative the reasonableness of the inference to be

drawn from the employee's evidence." Id. at 687-688.

16Anderson was superseded by statute on other grounds, as
stated in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct.
513, 516-517 (2014), and IBP, Inc. v. Alvarez, 546 U.S. 21, 26-
28 (2005).
 20

The defendants' reliance on Anderson's burden-shifting

framework is misplaced. The framework is designed to benefit

employees, not employers -- that is, to ensure that employees

are not "penalize[d]" for their inability "to prove the precise

extent of uncompensated work" because of the "employer's failure

to keep proper records." Id. at 687. See Kuebel v. Black &

Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011) (where employer

fails to keep proper records, employee "entitled to Anderson's

lenient burden of proof").17 The defendants cite no case that

has interpreted Anderson to allow an employer to challenge the

reliability of its own, facially adequate records. To do so

here would permit the defendants to utilize the day-rate method

on a post hoc basis despite the existence of contemporaneous

time and payroll records showing that the plaintiffs performed

work for which they were not properly compensated. This would

in turn subvert "the legislative purpose behind the Wage Act

. . . to provide strong statutory protection for employees and

17Courts in other States have applied the burden-shifting
framework in cases arising under State wage laws, but likewise
for the purpose of not penalizing the employee for the
employer's failure to keep adequate records. See, e.g.,
Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 241 (2003)
("we find persuasive the plaintiffs' contention that, when an
employer has failed to comply with statutory record keeping
provisions, the failure to implement the Anderson burden shift
has the potential to interfere with the remedial purpose of [the
State wage collection statute], because any uncertainty in the
damages amount is the fault of the employer").
 21

their right to wages." Crocker v. Townsend Oil Co., 464 Mass.

1, 13 (2012). Cf. Sullivan v. Sleepy's LLC, 482 Mass. 227, 236

(2019) ("employers may not retroactively allocate payments made

for one purpose to a different purpose" and must communicate

"upfront . . . the breakdown of the amounts to the employees");

Dixon v. Malden, 464 Mass. 446, 451 (2013) (gratuitous salary

payments made after employee's termination did not mitigate

damages for unpaid vacation where employer "did not characterize

the continued salary payments as payment for vacation accrual"

or "communicate in any way that the salary continuation was

payment for accrued vacation time").

Furthermore, even if Anderson's burden-shifting principles

had some place in the analysis, the judge was warranted in

excluding the defendants' proffered evidence. The defendants

sought to introduce "weight slips" indicating the time AWS's

drivers entered and exited each disposal site, along with

testimony from the drivers that the plaintiffs never started

work before 7 A.M. and finished work before the drivers went to

the sites. The judge concluded, quoting Anderson, 328 U.S. at

687, that recreating each plaintiff's work history via this

methodology "would have been, at best, approximate and

insufficiently 'precise.'" The defendants have not shown, or

argued for that matter, that the judge abused his discretion in

this regard. See White vs. NIF Corp., U.S. Dist. Ct., No. 15-
 22

322-WS-N (S.D. Ala. Jan. 18, 2017) ("The defendant's evidence of

unreliability . . . is far too feeble to prevent the plaintiffs

from proving the fact and quantity of uncompensated hours from

the defendant's own records").

5. Personal liability. As noted, the plaintiffs brought

claims under both G. L. c. 149, § 27F, and the Wage Act, G. L.

c. 149, § 148. The judge found Carney and Galvin individually

liable for the plaintiffs' damages under the Wage Act, which

contains a corporate officer liability provision,18 without

reaching whether they would also be liable under § 27F, which

contains no such express provision. The defendants contend that

this was error because the plaintiffs should not be permitted to

recast their claim for prevailing wages under § 27F as a claim

for unpaid wages under the Wage Act.

18Specifically, the Wage Act provides that "[t]he president
and treasurer of a corporation and any officers or agents having
the management of such corporation shall be deemed to be the
employers of the employees of the corporation within the meaning
of this section." G. L. c. 149, § 148. "This provision in
effect imposes liability on the president and treasurer of a
corporate employer, as well as on an officer or agent of the
corporation who 'controls, directs, and participates to a
substantial degree in formulating and determining policy of a
corporation.'" Cook v. Patient Edu, LLC, 465 Mass. 548, 553
(2013), quoting Wiedmann v. The Bradford Group, Inc., 444 Mass.
698, 711 (2005). Managers, officers, or other agents of limited
liability entities can also be held individually liable under
the Wage Act, even though the statute does not expressly refer
to those entities. See id. at 553-554, 556.
 23

The way in which the plaintiffs pleaded their claims was

proper. The Wage Act entitles employees to "timely payment" of

the wages they are owed. Crocker, 464 Mass. at 7. Thus, the

plaintiffs have two distinct claims: they were not paid

prevailing wages under § 27F, and they were not timely paid

under the Wage Act at the rates required by § 27F. The Supreme

Judicial Court reached a similar conclusion in Crocker, holding

that an employee suing for overtime pay had claims under both

the Wage Act and the overtime statute, G. L. c. 151A, § 1A. See

Crocker, supra at 6-7. The defendants offer no principled basis

for distinguishing Crocker.

Commonwealth v. Cintolo, 415 Mass. 358 (1993), does not aid

the defendants. The court in Cintolo held that the president of

a corporation could not be held criminally liable under G. L.

c. 149, § 150C, a wage statute that does not contain a corporate

officer liability provision. See id. at 359. But in Cook v.

Patient Edu, LLC, 465 Mass. 548, 556 (2013), the court

distinguished Cintolo on the ground that, even assuming the

rules of lenity and strict construction apply in civil suits

brought under the Wage Act,19 "[t]he legislative intent of the

Wage Act, to hold individual managers liable for violations, is

19The Wage Act authorizes criminal penalties as well as
private rights of actions by aggrieved employees. See G. L.
c. 149, §§ 148, 150.
 24

clear, and there is therefore no ambiguity." Cook, not Cintolo,

controls here.

The defendants argue in the alternative that there is a

disputed issue of material fact whether Carney and Galvin

"control[led], direct[ed], and participate[d] to a substantial

degree in formulating and determining policy" of AWS, as is

required for them to be personally liable. Cook, 465 Mass. at

556, quoting Weidmann v. The Bradford Group, Inc., 444 Mass.

698, 711 (2005). But the defendants did not raise this argument

in opposing summary judgment, and the plaintiffs' statement of

material facts, deemed admitted, see note 5, supra, established

that Carney and Galvin "were responsible for supervising the

services provided for in the municipal contracts" and "paid or

supervised the payment of waste removal employees." The

argument is therefore waived. See Carey v. New England Organ

Bank, 446 Mass. 270, 285 (2006).

6. Preemption of breach of contract claim. Finally, we

reach the question of law that the parties agreed to present to

us for review: whether G. L. c. 149, § 27F, preempts the

plaintiffs' common-law claim for breach of contract as intended

third-party beneficiaries. The significance lies in the

differing statutes of limitations: three years for § 27F
 25

claims, see G. L. c. 149, § 27F,20 versus six years for breach of

contract claims, see G. L. c. 260, § 2. The plaintiffs filed

this lawsuit on August 1, 2012. Thus, if the breach of contract

claim is preempted, the plaintiffs could recover damages only

for claims that accrued on or after August 1, 2009. On the

other hand, if there is no preemption, the plaintiffs could also

recover for claims that accrued between August 2006 and August

2009, albeit, as the plaintiffs concede, without the right to

the enhanced remedies (treble damages and attorney's fees)

authorized by § 27F. Cf. Lipsitt v. Plaud, 466 Mass. 240, 251

(2013) (treble damages and attorney's fees not available outside

Wage Act's three-year statute of limitations, though employers

are still subject "to normal contract liability for the full

six-year statute of limitations period applicable to contracts

generally").

We note at the outset the specific nature of the breach of

contract claim before us. The claim as set out in the second

amended complaint is that the plaintiffs are intended third-

party beneficiaries of the "require[ment]" in each of the

contracts between the defendants and the awarding authorities

that the "[d]efendants pay [their] qualifying employees the

prevailing wage rate, as set by the [department] and, generally,

20Claims under the Wage Act are also subject to a three-
year statute of limitations. See G. L. c. 149, § 150.
 26

to comply with the Commonwealth's statutes and regulations." In

other words, the claim -- more precisely, the plaintiffs'

assertion of third-party beneficiary status -- is based on the

"stipulation requiring prescribed rates of wages" that is

mandated by § 27F. The plaintiffs point to no independent

provision of the contracts to support their claim, nor do they

claim breach of any independent employment agreement they may

have had with the defendants. We do not decide whether § 27F

would preclude a common-law claim in those circumstances.

Confining our analysis accordingly -- and assuming, without

deciding, that the plaintiffs qualify as third-party

beneficiaries of the mandated stipulation -- we conclude that

§ 27F impliedly preempts the plaintiffs' breach of contract

claim. See Lipsitt, 466 Mass. at 244 ("Where the statute does

not contain any express language concerning the availability of

common-law remedies, we consider the possibility of implied

preemption"). We do not write on a blank slate on the matter.

In deciding an analogous issue in Lipsitt, the Supreme Judicial

Court drew a distinction between claims that depend on "a new

right or duty that 'is wholly the creature of statute [and] does

not exist at common law'" and those that "do not depend on

proving a violation of some statutorily created right." 466

Mass. at 247, 248, quoting Mansfield vs. Pitney Bowes, Inc.,

U.S. Dist. Ct., No. 12-1031-DJC, slip op. at 6 (D. Mass. Mar.
 27

12, 2013). Though the court concluded that the Wage Act does

not preempt the latter category of claims, it suggested in a

footnote that it would reach a different result in "situations

where an employee would have no recognized cause of action but

for the statutes' imposition of obligations on employers."

Lipsitt, supra at 247 n.11, quoting Mansfield, supra. Such

situations include "[c]ases involving . . . the [p]revailing

[w]age statute." Id., quoting Mansfield, supra.

While the plaintiffs accurately observe that the footnote

just quoted is dictum, it is clear that the court intended it to

provide guidance for application to future cases. The court

expressly noted its "agree[ment] with the general proposition

. . . that a plaintiff should not be allowed to circumvent

procedural or other requirements imposed by a particular statute

by pleading a common-law cause of action that asserts a right

created under that statute and not previously recognized at

common law." Lipsitt, 466 Mass. at 247 n.11. This is

consistent with the principle expressed in the court's earlier

decisions that "where a statute has been enacted seemingly

intended to cover the whole subject to which it relates,

including a remedy for its infraction, other provisions of the

common law . . . are thereby superseded." School Comm. of

Lowell v. Mayor of Lowell, 265 Mass. 353, 356 (1928).
 28

This case is one in which the plaintiffs "would have no

recognized cause of action but for [§ 27F's] imposition of

obligations on employers." Lipsitt, 466 Mass. at 247 n.11.

The obligation that the plaintiffs say gives them third-party

beneficiary status is the very stipulation that is required by

§ 27F to be included in the contract between the employer and

the awarding authority. Stated differently, under the

plaintiffs' theory, it is the statute itself that creates the

third-party beneficiary claim. But we do not think the

Legislature would have mandated inclusion of the stipulation,

provided a remedy for its violation, and prescribed a three-year

limitations period, if it intended at the same time to allow

plaintiffs to circumvent the limitations period by asserting

third-party beneficiary status based on the mandatory

stipulation. The duty that the plaintiffs seek to enforce here

is a statutory creation. Because the Legislature has provided a

specific remedy for violation of that duty, by "necessary

implication," the plaintiffs' breach of contract claim is

preempted. Id. at 247, quoting Eyssi v. Lawrence, 416 Mass.

194, 199-200 (1993). See George v. National Water Main Cleaning

Co., 286 F.R.D. 168, 172, 187-88 (D. Mass. 2012) (prevailing

wage law preempted plaintiffs' claim for breach of contract as

alleged third-party beneficiaries). But see Tomei vs. Corix

Utils., Inc., U.S. Dist. Ct., No. 07-cv-11928-DPW (D. Mass.
 29

Sept. 10, 2009) (finding to contrary but noting absence of "any

Massachusetts cases which confront the issue of preclusion for

the prevailing wage statute").

Conclusion.21 So much of the judgment awarding damages on

count IV (breach of contract -- third-party beneficiary) is

reversed. The remainder of the judgment is affirmed, and the

matter is remanded to the Superior Court for proceedings

consistent with this opinion.

So ordered.

21 We see no merit to the defendants' other miscellaneous
arguments. The defendants have failed to show that the judge
abused his discretion in granting the plaintiffs' motion for
injunctive relief, which the judge could have found necessary to
protect the plaintiffs' damages remedy. And the defendants'
challenge to the dismissal of their counterclaims does not rise
to the level of appellate argument.