Marshall v. Safeway, Inc.

DEBORAH S. EYLER, J. In the Circuit Court for Prince George’s County, Bonita Marshall, the appellant, sued her employer, Safeway, Inc. (“Safeway”), the appellee, alleging that, as to her and a class of similarly situated employees, Safeway had violated the Maryland Wage Payment and Collection Law, Md.Code (2008 Repl.Vol., 2010 Supp.), section 3-501 et seq. of the Labor and Employment Article (“LE”) (“the Payment Law”), by garnishing wages in excess of the amount permitted under certain writs of garnishment. She sought damages in the amount of the over-garnishment; treble damages and attorneys’ fees; prejudgment interest; a declaration that the over-garnishment was unlawful; and injunctive relief. Safeway moved to dismiss, arguing that the Payment Law did not create a private cause of action for over-garnishment of wages and that, because the amount of Marshall’s damages was less than $5,000, the District Court had exclusive, original jurisdiction over her claims. The circuit court granted Safeway’s motion in part, dismissing the Payment Law claim but not the claims for declaratory and injunctive relief.

Thereafter, Marshall filed an amended complaint, substituting a breach of contract claim for the Payment Law claim. The ⁵⁴⁹ court later dismissed the contract claim for lack of jurisdiction based on the amount of damages sought. More than a year and two months after filing her complaint, Marshall filed a motion to certify a class. On the first day of the scheduled trial in the case, the court heard argument on that motion and on a motion to compel and for sanctions that Marshall had filed.

It denied class certification and denied the motion to compel and for sanctions as moot. Trial went forward on stipulated facts on the remaining claims for declaratory and injunctive relief, and the court ruled in Safeway’s favor. Marshall noted an appeal, presenting five questions for review, which we have rephrased: I. Did the circuit court err in dismissing Marshall’s Payment Law claim?

II

Did the circuit court abuse its discretion in denying Marshall’s motion for class certification?

III

Did the circuit court abuse its discretion in denying Marshall’s motion to compel discovery?

IV

Did the circuit court err in granting judgment for Safeway on Marshall’s claims for injunctive and declaratory relief? V. Did the circuit court err in ruling that it lacked jurisdiction over Marshall’s claims for damages? For the reasons to follow, we answer the first four questions in the negative. In light of our resolution of those issues, we need not reach the fifth question.

Accordingly, we shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS Between November 25, 2005, and December 17, 2010, Marshall worked for Safeway as a cashier at two of its stores in Prince George’s County. On December 18, 2010, she went on a medical leave of absence apparently related to a shoulder injury. She plans to return to her job at Safeway after she is ⁵⁵⁰ able to have surgery on her shoulder and has recovered from it.

On February 6, 2009, in the District Court of Maryland in Prince George’s County, Capital One Bank (“Capital One”) obtained a judgment against Marshall for $1,290.81 (“District Court case”). The next month, Capital One filed a “Request for Garnishment on Wages,” using District Court form DC/CV 65. DC/CV 65 is a double-sided document. The front side includes a case caption, a section to be completed by the judgment creditor requesting a writ of garnishment, and a section to be completed by the Clerk of the District Court issuing the writ.

The reverse side of the form contains information for the garnishee. On April 15, 2009, the Clerk of the Prince George’s County District Court issued a “Writ of Garnishment on Wages” (“Writ”) directed to Safeway, the garnishee. The Writ did not specify the precise amount to be garnished from Marshall’s wages. It directed Safeway to “withhold the attachable wages of the Defendant/Debtor Marshall] for any work week or other pay period until the judgment, interest, other charges and costs as specified under the terms of the judgment are satisfied or until otherwise notified by [the District Court].” The Writ further provided that Marshall would be given a copy of the Writ and that she could “at any time contest the Garnishment by filing a motion [in the District Court case] asserting a defense or objection.” On the reverse side of the Writ there is a section entitled, “Instructions To Garnishee,” i.e., Safeway, followed by nine numbered instructions.

As relevant here, the first instruction states that Md.Code (2005 Repl.Vol.), sections 15-601 through 15-607 of the Commercial Law Article (“CL”), and Rule 3-646 “govern wage attachment procedures.” CL section 15-601.1, entitled “Exemption from attachment,” sets forth two different formulas for calculating the amount of a Maryland employee’s wages that are exempt from attachment through garnishment or otherwise. It states in relevant part: ⁵⁵¹ (b) Amounts of wages exempt; medical insurance payments. — The following are exempt from attachment: (1) Except as provided in item (2) of this subsection, the greater of: (i) The product of $ 145 multiplied by the number of weeks in which the wages due were earned; or (ii) 75 percent of the disposable wages due; (2) In Caroline, Kent, Queen Anne’s, and Worcester counties, for each workweek, the greater of: (i) 75 percent of the disposable wages due; or (ii) 30 times the federal minimum hourly wages under the Fair Labor Standards Act in effect at the time the wages are due; and (3) Any medical insurance payment deducted from an employee’s wages by the employer. Thus, for employees working in all but four Maryland counties, CL section 15 — 601.1(b)(1) exempts from garnishment the greater of: 1) weekly disposable wages of $145 or 2) 75% of disposable wages due. For employees working in Caroline, Kent, Queen Anne’s, or Worcester Counties, however, CL section 15 — 601.1(b)(2) exempts the greater of 1) 75% of disposable wages or 2) 30 times the federal minimum wage.

The latter formula comports with the federal exemption formula set forth under the Consumer Credit Protection Act, 15 U.S.C. section 1673 (a). Also on the reverse side of the Writ, below the instructions section for the garnishee, is a section entitled, “Exemptions For Garnishment.” It states: THE FOLLOWING ARE EXEMPT FROM GARNISHMENT: (1) the greater of: (a) 75 percent of the disposable wages due; OR (b) SO times the federal minimum hourly wages under the Fair Labor Standards Act in effect at the time the wages are due; AND (2) any medical insurance payment deducted from an employer’s wages by the employer. Other federal and state exemptions may be available. ⁵⁵² Disposable wages are the part of wages that remain after deduction of any amount required to be withheld by law. (Emphasis added.) Thus, this section directs the garnishee to apply the federal exemption formula to all Maryland employees whose wages are being garnished, not just to employees in Caroline, Kent, Queen Anne’s, and Worcester Counties, even though the first instruction informs the garnishee that garnishment is governed by the wage attachment procedures in CL sections 15-601 through 15-607, which includes CL section 15-601.1; and CL section 15-601.1 is not the same as the federal exemption, except for employees in Caroline, Kent, Queen Anne’s, and Worcester Counties.

Safeway was served with the Writ on April 25, 2009. At that time, its Garnishment Department had in effect a policy that implemented the exemption formulas set forth in CL section 15-601.1(b) for Maryland employees. Garnishments were calculated by computer software, and the Garnishment Department had programmed into its software two different “Maryland General” rules, based on the county in which the employee was working. One rule covered all counties but Caroline, Kent, Queen Anne’s, and Worcester, and one rule covered those counties.

Because Marshall was a Safeway employee in Prince George’s County, Safeway’s Garnishment Department used the software program that implemented the formula in CL section 15-601.1(b)(l) to calculate the portion of her wages that was exempt from garnishment. Once the processing department selected this software, the calculations automatically were made for each pay period without further intervention. Safeway began garnishing Marshall’s wages in June of 2009. At that time, the federal minimum wage was $6.55 per hour.

Thus, under the federal exemption and the “Exemption from Garnishment” language of the Writ, $196.50 ($6.55 X 30) of Marshall’s weekly disposable income was exempt from garnishment. Under Safeway’s software program for Maryland, which was based on CL section 15-601.1(b), however, it ex ⁵⁵³ empted from garnishment the greater of $145 or 75% of Marshall’s disposable income per week, an amount less than $196.50. As a consequence, Safeway over-garnished Marshall’s wages in three pay periods in June and July of 2009. (We shall detail the over-garnished amounts, infra.) On July 16, 2009, Marshall’s then counsel, Justin Zelikowitz, called Safeway’s Garnishment Department at its Employee Service Center in Phoenix, Arizona.

He spoke to Kristin Brossman, the processing analyst for that department, and advised her that Safeway was garnishing Marshall’s wages in excess of the amount permitted by federal law and contrary to the express language of the Writ. Brossman responded that Safeway was relying upon the American Payroll Association’s Guide to Federal and State Garnishment Laws (“APA Guide”) in setting its garnishment policies and that its garnishment policy for Maryland employees was consistent with that guide. 1 Zelikowitz and Brossman corresponded by e-mail several times over the course of the next few days, but remained at an impasse. In July of 2009, Zelikowitz contacted Capital One to advise it that Marshall’s wages were being “garnished in excess of what is permitted by the federal exemption.” On July 20, 2009, Capital One moved in its District Court case against Marshall to release the Writ. The Writ was released on July 28, 2009 and, as a consequence, Safeway ceased garnishing Marshall’s wages. 2 Nine months later, however, Capital One requested a new Writ in the District Court case.

On June 21, 2010, the District Court issued a new Writ, which was served upon Safeway on ⁵⁵⁴ July 3, 2010. Thereafter, Safeway again began garnishing Marshall’s wages, consistent with its previously discussed policy. As a result of Safeway’s application of its garnishment policy based on CL section 15 — 601.1(b)(1), in six pay periods ending between June 13, 2009, and August 7, 2010, Safeway garnished Marshall’s wages in compliance with that section, but in excess of 30 times the federal minimum wage. The total amount of the over-garnishment was $45.25: Pay Period Ending Marshall’s Disposable Wages 30 Times Federal Minimum Wage Amount Garnished by Safeway Excess Garnishment June 13,2009 $152.86 $196.50 $7.86 $ 7.86 June 20,2009 $148.47 $196.50 $ 3.47 $ 3.47 July 11,2009 $166.90 $196.50 $21.90 $21.90 July 3,2010 $151.98 $217.50 $ 6.98 $ 6.98 July 31,2010 $286.32 $217.50 $71.58 $ 2.76 August 7, 2010 $147.28 $217.50 $ 2.28 $ 2.28 All of the garnished wages, including the excess amounts, were paid by Safeway to Capital One, thereby reducing Capital One’s judgment against Marshall.

On August 4, 2010, Marshall filed her complaint against Safeway in the circuit court “on her own behalf and on behalf of all other present, former, and future employees of Safeway ... who have been affected by Safeway’s practice of over-garnishing the wages that are due to employees subject to a wage garnishment, in violation of the [Payment Law] and Maryland District Court garnishment orders.” She alleged that Safeway’s garnishment policy as applied to employees working at Safeway stores in Maryland outside of Caroline, Kent, Queen Anne’s, and Worcester Counties exempted from garnishment an amount less than 30 times the federal minimum wage, and that that was a violation by Safeway of LE sections 3-502 and 3-503. She averred that, in three pay periods in June of 2009, and one pay period in July of 2010, ⁵⁵⁵ Safeway garnished her wages in excess of the amount permitted, for a total over-garnished amount of $29.64. 3 Marshall further alleged that the putative class consisted of “at a minimum” 400 Safeway employees. She based her calculation upon a review of District Court records. She alleged that there were questions of law and fact common to the class, including whether Safeway’s garnishment policy was contrary to the express language of the Writ; whether the over-garnishments were in violation of the Payment Law; whether the over-garnishments were the result of a bona fide dispute; whether declaratory relief was appropriate; and whether Safeway should be enjoined from continuing to enforce its Maryland garnishment policy.

She alleged that the class properly could be certified under any of the three subsections of Rule 2-231(b). She asked the court to certify the class; to reimburse her and the class members all over-garnished amounts; to award treble damages; to award prejudgment interest on the over-garnished amounts; to declare that Safeway’s garnishment policy was unlawful; to enjoin Safeway from making excess garnishments; and to award attorneys’ fees and expenses. She prayed a jury trial. On September 7, 2010, Safeway moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim for which relief could be granted.

It asserted that because the damages Marshall then was seeking amounted only to $29.64, the circuit court lacked jurisdiction over her claim. See Md.Code (2006 Repl. Vol.), § 4-405 of the Courts and Judicial Proceedings Article (“CJP”) (stating that the District Court has exclusive original jurisdiction over claims not exceeding $5,000). It further argued that Marshall was not entitled to a ⁵⁵⁶ jury trial because her claim was for an amount less than $10,000.

See Art. 23, Md. Declaration of Rights. 4 Alternatively, Safeway asserted that Marshall’s complaint failed to state a claim for which relief could be granted under the Payment Law because the violation she alleged — an unlawful deduction from her wages — is governed by LE section 3-503 and that section is not enforceable by means of a private cause of action. It argued that any cause of action Marshall might have had should have been brought under LE section 3-427, which is a provision of the Wage and Hour Law, and that that law does not provide for treble damages. 5 Marshall filed an opposition in which she argued that, because she had sued for declaratory and injunctive relief, and not just for damages, the circuit court in fact had subject matter jurisdiction; that she was entitled to a jury trial on her claims because her request for attorneys’ fees would exceed the $10,000 threshold; that she had stated a claim for which relief could be granted under the Payment Law; and that LE section 3-427 was not a vehicle for relief under the facts of this case. On September 28, 2010, Safeway tendered to Marshall’s counsel a check for $50.87, representing the total sum calculated by Safeway as having been over-garnished ($45.25), plus interest. 6 Marshall did not negotiate the check. ⁵⁵⁷ On November 1, 2010, the circuit court heard argument on Safeway’s motion to dismiss. The court ruled from the bench that it would “dismiss the claim for damages” on two alternative grounds: that Marshall had failed to state a claim for which relief could be granted under the Payment Law and that it lacked subject matter jurisdiction over the damages claim because the amount in controversy was less than $5,000.

The court denied the motion to dismiss as to the claims for declaratory and injunctive relief. Following the ruling, counsel for Safeway represented to the court that, effective August 2010, Safeway had changed its garnishment policy for Maryland employees to comply with the language of the Writ in the section entitled “Exemptions For Garnishment.” Thus, according to Safeway’s counsel, from August 2010 forward Safeway was following an exemption from garnishment policy for all Maryland employees of the greater of 75% of disposable wages due or 30 times the applicable federal minimum hourly wage. At that point, the court directed the parties to file supplemental memoranda on the issue of declaratory and injunctive relief. On November 15, 2010, Safeway filed a supplemental memorandum in support of its motion to dismiss.

It argued that Marshall’s claims for declaratory and injunctive relief should be dismissed because “the subject matter of the claimed relief is moot.” Specifically, Safeway asserted that it had “conceded” that it had over-garnished Marshall’s wages in six pay periods; it had tendered to Marshall a check for $45.25 plus interest; and it had “as a matter of corporate policy ... changed the process and manner of calculating exemptions for Maryland wage garnishments effective August 14, 2010” to comply with the “Exemptions For Garnishment” language of the Writ. It maintained that, because there no longer was an actual controversy about the legality of Safeway’s garnishment policy as it had existed when Marshall’s wages were garnished, and Safeway’s garnishment policy had been changed so as to comport with the method of garnishment Marshall was contending was legally required, dismissal was required on the ground of mootness. ⁵⁵⁸ Safeway attached to its memorandum an affidavit by Brossman attesting to the precise manner in which Safeway had calculated the amount of disposable wages exempt from garnishment prior to August 14, 2010, and the new manner in which Safeway was making those calculations. The affidavit included as exhibits screen shots of Safeway’s garnishment computer software depicting the new policy and instructions to employees in applying the new policy. On November 24, 2010, Marshall moved for leave to amend her complaint.

She attached her proposed amended complaint, which, as relevant here, eliminated her claim under the Payment Law and added a claim for breach of contract. The proposed amended complaint alleged, as the original complaint had alleged, that Marshall was suing on her own behalf and on behalf of a class. Safeway opposed the motion for leave to amend. Marshall filed a supplemental memorandum in opposition to Safeway’s motion to dismiss, arguing that Safeway could not “moot a putative class” by tendering to the class representative “an amount that w[ould] make only the proposed class representative whole.” She further argued that her declaratory and injunctive relief claims had not been rendered moot by Safeway’s asserted change in policy because Safeway’s past practice of using a garnishment formula that did not comply with the language of the Writ was a “deliberate decision to defy the language of the garnishment orders.” Thus, Marshall maintained that Safeway’s policy change was “potentially [a] temporary change made only to avoid judicial scrutiny.” On December 8, 2010, the administrative judge entered a scheduling order.

The case was assigned to “Civil Track: 1” and was scheduled for a pretrial conference on April 8, 2011. By order of December 10, 2010, entered on January 24, 2011, the court granted Marshall’s motion for leave to file her amended complaint. Also on December 10, 2010, the court denied “as moot” Safeway’s supplemented motion to dismiss, because of the filing of the amended complaint. ⁵⁵⁹ On January 3, 2011, Safeway’s counsel wrote to Marshall’s counsel advising that because Marshall had not negotiated the September 28, 2009 check tendered in “full accord and satisfaction” of her claim, it now was tendering $52.07 in cash, representing $45.25 in over-garnished wages, plus interest. On March 8, 2011, Safeway filed a motion to dismiss or, in the alternative, for summary judgment.

The motion to dismiss was addressed to Marshall’s original complaint, not the amended complaint, because it was Safeway’s position that the amended complaint never had been filed. 7 On March 23, 2011, Marshall filed a motion for immediate sanctions or, in the alternative, to compel discovery. She alleged that she had served interrogatories and requests for production upon Safeway in August of 2010, simultaneous with the filing of her complaint, and that, as of March 21, 2011, Safeway had neither responded to the discovery nor requested a protective order. The information and documents sought included the identity of persons with knowledge of Safeway’s garnishment policies; the identification of members of the putative class; and “the production of computer-readable payroll records showing all garnishments within the three-year period of limitations tolled by the filing of [Marshall's lawsuit.” Marshall asserted that this information was relevant to the class issues of numerosity, commonality, and typicality, and also could show “whether [Safewayl’s representations of its corrective actions are in fact correct.” Two days later, Safeway filed an opposition to Marshall’s motion for sanctions and moved for a protective order. It argued that because Marshall had yet to file her amended complaint, and had yet to move for class certification, and because the court had dismissed the Payment Law claim, the “only matter[s] pending ... [were] the declaratory and injunctive claims” raised in the original complaint.

It asserted that ⁵⁶⁰ it had provided Marshall with informal discovery with respect to her damages claims, affording her a “detailed accounting” of its garnishment of her wages and information about Safeway’s garnishment policies in the Brossman affidavit. It stated that it had provided formal discovery responses, acknowledging, however, that it had not done so until March 28, 2011 (the same day Marshall had moved for sanctions). In its interrogatory answers and responses to request for production of documents, Safeway objected to questions and requests seeking information about the identities of putative class members or garnishment of wages of putative class members on the basis that such information was irrelevant to the pending claims. Finally, to the extent that Marshall’s contract claim in her amended complaint was before the court, Safeway asserted that it was subject to immediate dismissal for the same reason the Payment Law claim had been dismissed, ie., lack of jurisdiction based on the amount of damages sought.

On April 8, 2011, the parties appeared for the pretrial conference. At that time, the case was scheduled for a one-day trial to commence on November 21, 2011. A hearing on Safeway’s pending motion to dismiss or for summary judgment was set in for April 22, 2011. At the April 22, 2011 hearing, the court entertained argument not only on Safeway’s motion to dismiss or for summary judgment but also on Marshall’s motion to compel or for sanctions.

The court ruled that Marshall’s amended complaint had been filed simultaneous with her filing of the motion for leave to amend. It denied Safeway’s motion to dismiss; denied Marshall’s motion for sanctions as moot; and directed that Marshall’s motion to compel be “referred to the appropriate judge for ruling.” The judge presiding over the hearing suggested that the parties could request that the case be specially assigned to him and, thereafter, he could rule on the motion to compel. The parties so requested and, by order of May 10, 2010, the case was specially assigned. On June 4, 2011, Marshall served Safeway with a second set of discovery requests.

On July 5, 2011, Safeway moved for a ⁵⁶¹ protective order. On July 15, 2011, Marshall filed an opposition to the motion for protective order and filed a motion to compel discovery. On October 31, 2011, less than a month prior to the scheduled trial, Marshall filed a motion to certify a class, which Safeway opposed. We shall discuss the class allegations in detail, infra.

On November 21, 2011, the parties appeared for the scheduled trial, and filed agreed stipulations of fact. At the outset, the court heard argument on Marshall’s motion for class certification and her motion to compel. The court denied the motion for class certification for several reasons. First, it opined that the motion was “filed late” as it was not filed until three weeks before trial was to commence.

The court next ruled that class certification was not appropriate in any event because Safeway’s tender of “the funds that you all by your stipulation have agreed were wrongfully withheld from Ms. Marshall’s pay” had made “her whole financially.” Under the authority of Frazier v. Castle Ford, Ltd., 200 Md.App. 285 , 27 A.3d 583 (2011), the court ruled that the tender had mooted Marshall’s claim for contract damages and, accordingly, the motion for class certification had to be denied. 8 Alternatively, the court ruled that class certification was not appropriate because the commonality prong of Rule 2-231(a) was not satisfied and the predominance and superiority prongs of Rule 2-231(b)(3) were not met. Finally, the court noted that it also had concerns about the typicality of Marshall’s claims relative to the claims of the putative class. It explained that Marshall’s wages were over-garnished for one year, but were not currently subject to over-garnishment because she was on a medical leave of absence from her job. The court questioned whether, given that state of events, Marshall was “the most appropriate class representative.” ⁵⁶² The court turned to Marshall’s motion to compel.

It denied the motion as moot on the ground that the outstanding discovery responses all related to the putative class. The court stated that it was dismissing the contract claim in the amended complaint for lack of jurisdiction, based on the amount of damages sought. Finally, the court addressed Marshall’s claims for declaratory and injunctive relief. The parties agreed to proceed based upon their agreed stipulations of fact and the exhibits referenced therein and based upon two additional agreed stipulations: that, if called testify, Marshall would state that she intended to return to her job at Safeway, and that, if called to testify, Brossman would state that “everything was changed” with respect to Safeway’s garnishment policy.

The court ruled in favor of Safeway on the claims for declaratory and injunctive relief, stating: For the reasons that I told you, I think that Frazier does say — is controlling expressly in regard to the claim for injunctive relief in this case where Safeway has extended or tendered to Ms. Marshall the full financial loss that she’s claimed and she is not at this time working. There’s no injunctive relief that the Court possibly could have fashioned for her individual claims and it’s appropriate to grant judgment for the defendant on that. And in the same vein I find that it’s appropriate to grant judgment for the defendant with regard to the request for declaratory relief. There is no actual controversy between Ms. Marshall and Safeway.

There are no antagonistic claims which are imminent or which indicate that litigation is imminent and inevitable. The litigation is here, but the fact is that Safeway agrees that she’s entitled to her $45.25. And her asserted right that she’s entitled to that they’ve agreed to, so it’s not appropriate and the Court’s going to decline to issue a declaratory judgment to that effect. That resolves all the issues then. ⁵⁶³ So judgement [sic] for the defendant against the plaintiff as to all claims — case closed.

All right? On December 2, 2011, the court entered judgment in favor Safeway. This timely appeal followed. DISCUSSION I. Payment Law Claim Before addressing the parties’ contentions, we shall set forth the pertinent provisions of the Payment Law.

Codified at Title 3, Subtitle 5 of the Labor and Employment Article, the Payment Law concerns “the duty to pay whatever wages are due on a regular basis and to pay all that is due following termination of the employment.” Friolo I, 373 Md. at 513, 819 A.2d 354 . Section 3-501 defines the term “wage” to mean “all compensation that is due to an employee for employment,” including bonuses, commissions, fringe benefits, overtime wages, and “any other remuneration promised for service.” Section 3-502 is entitled “Payment of wage.” Subsection (a) requires employers to “set regular pay periods; and, [with the exception of administrative, executive, and professional employees,] pay each employee at least once in every 2 weeks or twice in each month.” Subsection (b) provides that if a scheduled payday falls on a non-workday the employer must pay the employee on the preceding workday. Subsection (c) governs the “[f]orm of payment,” providing that “[e]ach employer shall pay a wage: (1) in United States currency; or (2) by a check that, on demand, is convertible at face value into United States currency.” Subsection (d) prohibits an employer from printing an employee’s social security number on his or her paycheck or any attachment thereto. Subsection (e) clarifies that the section does not prohibit direct deposit or other direct means of payment.

Finally, under subsection (f), an “agreement to work for less than the wage required under this subtitle is void.” Section 3-503, governing “Deductions,” states: ⁵⁶⁴ An employer may not make a deduction from the wage of an employee unless the deduction is: (1) ordered by a court of competent jurisdiction; (2) authorized expressly in writing by the employee; (3) allowed by the Commissioner because the employee has received full consideration for the deduction; or (4) otherwise made in accordance with any law or any rule or regulation issued by a governmental unit. Section 3-505 concerns payment upon the termination of employment. Subsection (a) provides that “each employer shall pay an employee or the authorized representative of an employee all wages due for work that the employee performed before the termination of employment, on or before the day on which the employee would have been paid the wages if the employment had not been terminated.” Subsection (b) states that an employer need not pay an employee for accrued leave at termination to the extent that the employer has a written policy limiting the right to this form of compensation and the employee was on notice of the written policy upon being hired. Violations of the Payment Law may be prosecuted by the Commissioner of Labor and Industry (“the Commissioner”) on behalf of an employee or may in some instances give rise to a private cause of action by an employee.

See LE §§ 3-507; 3-507.1; 3-507.2. Subsection 3-507(a) grants the Commissioner the authority to bring an action on behalf of an employee for a “violat[ion]” of “this subtitle” or to attempt to resolve the matter informally by mediation. Subsection 3-507(b) states that if the Commissioner brings an action on behalf of the employee and a court “finds that an employer withheld the wage of an employee in violation of this subtitle and not as a result of a bona fide dispute,” the court may award treble damages and attorneys’ fees. The Commissioner is further authorized, following an investigation of a complaint, to dismiss the complaint or to issue to an employer an “order to pay wages” for a violation of the subtitle when the amount of the unpaid wages does not exceed $3,000.

LE § 3-507.1. ⁵⁶⁵ Private causes of action for violations of the Payment Law exist solely by virtue of section 3-507.2. That section allows an employee to bring suit against his or her employer to “recover [ ] unpaid wages” “if [the] employer fails to pay [the] employee in accordance with § 3-502 or § 3-505 of this subtitle, after 2 weeks have elapsed from the date on which the employer is required to have paid the wages.” LE § 3-507.2(a). (Emphasis added.) In such an action, the court may award treble damages and reasonable attorneys’ fees upon a finding “that an employer withheld the wage of an employee in violation of this subtitle and not as a result of a bona fide dispute.” LE § 3-507.2(b). In her original complaint, Marshall alleged that Safeway’s “excess garnishments” were not “lawful deductions” as permitted by section 3-503 because they were not authorized by the Writ and indeed were expressly prohibited by the Writ.

She further alleged that, by violating section 3-503, Safeway also violated section 3-502 because it failed to “timely pay [her] all of the wages that [she was] due,” thus giving rise to a private cause of action under section 3-507.2(a). Finally, she alleged that Safeway’s over-garnishment was not the result of “a bona fide dispute.” On this basis she sought treble damages and attorneys’ fees under section 3-507.2(b). As discussed previously, Safeway moved to dismiss this claim, arguing, inter alia, that the Payment Law only permits an employee to bring a private cause of action against an employer for violations of sections 3-502 or 3-505, and