Peters v. Early Healthcare Giver, Inc.

ADKINS, J. In this case we are asked to answer three questions concerning the Wage Payment and Collection Law (“WPCL”), Md.Code (1991, 2008 Repl.Vol., 2013 Cum.Supp.), § 3-501 et seq. of the Labor and Employment Article (“LE”), a cause of action frequently litigated in the appellate courts. In answering these questions we are treading new ground on some, but not all of them. FACTS AND LEGAL PROCEEDINGS Appellant Muriel Peters worked as a certified nursing assistant for Early Healthcare Giver, Inc. (“EHCG”) from April 2008 to April 2009. Peters provided in-home care for an elderly patient throughout her employment with EHCG.

She consistently worked 119 hours in every two-week pay period. EHCG paid Peters $12 per hour for all of her work, including the hours she worked in excess of 40 hours per week. Following her departure from EHCG, Peters sued EHCG in the Circuit Court for Montgomery County, claiming that ⁶⁵¹ EHCG wrongfully withheld her overtime wages. At trial, EHCG’s President, Esther Guy, conceded that she did not pay Peters overtime.

Guy explained that she did not think that Peters was owed overtime because Peters exercised during work hours. Regarding the nature of Peters’s employment, Guy explained that Peters was paid under a federal program under which Medicaid would pay EHCG $16 per hour under the contract — EHCG would pay Peters $12 per hour and EHCG kept $4. See Social Security Act, 42 U.S.C. § 1395k(a)(2)(A) (2012). EHCG’s counsel argued that because the company operated under a federal program, federal law governed EHCG’s payment of home healthcare workers.

Under that theory, Peters’s work fell under the Fair Labor Standards Act’s (the “FLSA”) “companionship services” exemption label, 1 thus, she was not entitled to overtime pay. See 29 U.S.C. 213(a)(15). The trial court denied Peters’s claim for overtime wages. Though the court rejected Guy’s claim that overtime was withheld because Peters exercised at work, the court explained that federal law preempted Maryland law, and exempted the employer from paying overtime.

Peters appealed to the Court of Special Appeals. The intermediate appellate court held that the trial court erred in concluding that federal law preempted state wage laws. 2 Because the Court of Special Appeals held that the FLSA exemption did not apply, the case was remanded “for the [trial] court to consider whether Peters is entitled to recover [overtime wages] under the Maryland Wage and Hour Law and the Maryland Wage Payment and Collection Law as well as other issues raised in her complaint.” On remand to the Circuit Court, Peters filed an unopposed memorandum asserting a claim under the Wage and Hour Law (“WHL”) and the WPCL, requesting unpaid overtime ⁶⁵² and treble damages under LE § 3-507.2(b). 3 She did not offer any additional evidence. On March 28, 2013, the Circuit Court awarded Peters $6,201 in unpaid overtime wages, but denied her request for enhanced damages. Peters appealed the order to the Court of Special Appeals and filed a Petition for Writ of Certiorari to this Court.

Before the Court of Special Appeals could hear the case, we granted Peters’s petition to consider the following questions, which we have rephrased for clarity: 1. Are overtime wages recoverable under the Maryland Wage Payment and Collection Law? 2. Is it an abuse of discretion for a trier of fact to fail to award enhanced damages under § 3-507.2(b) of the Maryland Wage Payment and Collection Law when there is no claim of a bona fide dispute? 3. Should any award of up to treble damages under the Maryland Wage Payment and Collection Law be made in addition to the award of unpaid wages?

For the following reasons, we answer the first question in the affirmative and answer the second and third in the negative. Yet, because the trial court failed to make a required predicate finding, and there was no evidence to support a finding of a bona fide dispute, we remand this case for further proceedings. DISCUSSION Overtime Wages Under The Wage Payment And Collection Law Maryland has two wage enforcement laws relevant to this case: the WHL and the WPCL. The WHL aims to ⁶⁵³ protect Maryland workers by providing a minimum wage standard.

See LE § 3-402. The WPCL requires an employer to pay its employees regularly while employed, and in full at the termination of employment. LE §§ 3-502 4 3-505 5 . Read together, these statutes allow employees to recover unlawfully withheld wages from their employer, and provide an employee with two avenues to do so.

Battaglia v. Clinical Perfusionists, Inc., 338 Md. 352, 364 , 658 A.2d 680, 686 (1995) (the WPCL’s “principal purpose was to provide a vehicle for employees to collect, and an incentive for employers to pay, back wages.”). Both Peters and the Commissioner of Labor and Industry (the “Commissioner”), appearing as amicus curiae, 6 argue that this Court has already resolved whether overtime pay is recoverable under the WPCL. Peters relies on our decision in Friolo v. Frankel, 373 Md. 501 , 819 A.2d 354 (2003) (“Friolo I”) to support her argument that the WPCL not only concerns the timing of payments, but any dispute over entitlement of wages. In Friolo I, we explicitly held that an employee “was entitled to sue under [the WHL and the WPCL] to recover any overtime pay that remained due after termination of her employment.” 373 Md. at 515 , 819 A.2d at 362 .

Peters also claims that because this Court applies the ⁶⁵⁴ WPCL’s “bona fide dispute” provision to all disputes generally regarding an employee’s entitlement to wages, the statute cannot possibly be interpreted to affect violations of time only. See LE § 3 — 507.2(b); see Ocean City, Md., Chamber of Commerce, Inc. v. Barufaldi, 434 Md. 381, 400 , 75 A.3d 952, 963 (2013) (analyzing a bona fide dispute under the WPCL to mean “[a dispute] as to the plaintiffs entitlement to the withheld wages[.]”). We concur. This Court recently addressed the WPCL’s scope in Marshall v. Safeway, Inc., where we repeated our rejection of a narrow reading of the WPCL. 437 Md. 542, 560 , 88 A.3d 735, 745 (2014).

We were called upon to do so in the face of federal court decisions that continued to restrict its application. 7 We reaffirm today that both the WHL and the WPCL are vehicles for recovering overtime wages. 8 Without a doubt, ⁶⁵⁵ Peters has a right to bring a private cause of action under the WPCL to recover any unlawfully withheld overtime wages. Challenges To The Trial Court’s Refusal To Grant Enhanced Damages Appellant argues that she was wrongfully denied treble damages under the WPCL. She presents three interrelated arguments that the court’s order was erroneous. First, she claims that the court erred when it failed to make an explicit finding regarding whether EHCG withheld overtime wages as a result of a bona fide dispute.

Second, Appellant urges that the court could not have reasonably concluded that EHCG withheld the wages as a result of a bona fide dispute. Finally, she avers that the court abused its discretion by declining to award her treble damages. Because of this error, Appellant requests that we remand this case to the Circuit Court for Montgomery County with instructions that she be awarded the full amount of treble damages under the WPCL. We address each of these arguments in turn.

A brief review of the prior appeal in this case and the proceedings on remand is helpful to our discussion. In the prior appeal, the Court of Special Appeals held that EHCG’s federal preemption defense was legally incorrect and remanded this case for the Circuit Court to determine whether Peters could recover under the WHL and WPCL. Back at the trial court, Appellant insisted that no trial or further evidentiary hearing was necessary and EHCG did not appear. The Circuit Court requested a memorandum of law from Peters regarding the propriety and the amount of damages under the WHL and WPCL, and scheduled oral argument.

In her memorandum, Peters argued that EHCG did not withhold overtime as a result of a bona fide dispute, and that she was entitled to the full amount of enhanced damages pursuant to LE § 3-507.2(b). The court subsequently granted Peters the ⁶⁵⁶ withheld overtime wages, but denied any enhanced damages, without explanation. 9 No Finding Regarding Bona Fide Dispute In granting the unpaid wages pursuant to the WHL and the WPCL, the trial court was required to make a predicate finding as to whether the wages were withheld pursuant to a bona fide dispute. See Friolo I, 373 Md. at 530 , 819 A.2d at 371 (remanded in part because “the jury made no predicate finding of a lack of a bona fide dispute.”). In Programmers’ Consortium, Inc. v. Clark, this Court recognized that a trier of fact “may not award enhanced damages unless it finds that the employee’s wages were not withheld as a result of a bona fide dispute^]” 409 Md. 548, 563 , 976 A.2d 290, 299 (2009).

For this reason, we approved the ruling of the Court of Special Appeals that the trier of fact “ ‘will be required to make such an actual threshold determination’ ” regarding a bona fide dispute before proceeding to the question of enhanced damages. Programmers’ Consortium, 409 Md. at 558 , 976 A.2d at 296 (quoting Programmers’ Consortium, Inc. v. Clark, 180 Md.App. 506, 531 , 951 A.2d 914, 928 (2008)). We will normally imply a finding of fact if the conclusion that the court reaches requires that finding, and there is evidence in the record to support it. See, e.g., Edmonds v. State, 372 Md. 314 , 337 n. 13, 812 A.2d 1034 , 1047 n. 13 (2002) (“Sometimes the record is adequate for a reviewing court to find that the trial judge implicitly ruled on” a predicate fact) (emphasis in original).

Yet here, there is nothing to suggest that the court decided the question of bona fide dispute, one way or the other, and we will not imply a finding under these circumstances. Because the court did not make the required predicate finding regarding a bona fide dispute, it erred. This error, however, may be moot if Peters is successful in her next contention. ⁶⁵⁷ Evidence Of A Bona Fide Dispute Peters next argues that whatever the judge intended, the evidence simply did not support a finding that EHCG withheld her wages pursuant to a bona fide dispute. We have previously defined a “bona fide dispute” as “a legitimate dispute over the validity of the claim or the amount that is owing[]” where the employer has a good faith basis for refusing an employee’s claim for unpaid wages.

Admiral Mart, Inc. v. Cooper, 357 Md. 533, 543 , 745 A.2d 1026, 1031 (2000). The inquiry into whether an employer’s withholding of wages was the result of a bona fide dispute is one concerned with the employer’s “ ‘actual, subjective belief that the party’s position is objectively and reasonably justified.’ ” Barufaldi v. Ocean City, Md. Chamber of Commerce, Inc., 206 Md.App. 282, 293 , 47 A.3d 1097, 1103 (2012) (quoting Friolo v. Frankel, 201 Md.App. 79 , 130 n. 42, 28 A.3d 752 , 783 n. 42 (2011), vacated on other grounds, 438 Md. 304 , 91 A.3d 1156 (2014)); see also Admiral Mortgage, 357 Md. at 541 , 745 A.2d at 1030 . It is well settled that a plaintiff carries the initial burden of proving that he or she in fact performed the work that was inadequately compensated. The WPCL is silent, though, on which party carries the burden of production with respect to showing a bona fide dispute.

Because we have not considered this question directly, we look to other states for guidance. We have found only a few cases addressing the issue where the statute is silent. These cases have placed the burden of proof on the employer oftentimes because of the employer’s knowledge of its own mental state. See, e.g., Washington State Nurses Ass’n v. Sacred Heart Med.

Ctr., 175 Wash.2d 822, 834 , 287 P.3d 516, 521-22 (Wash.2012) (“The burden falls on the employer to show the bona fide dispute exception applies.”); Amaral v. Cintas Corp. No. 2, 163 Cal.App.4th 1157 , 78 Cal.Rptr.3d 572, 598 (2008) (“Where essential facts necessary to proof lie within the exclusive knowledge or control of one party, ‘fundamental fairness’ is what justifies shifting the burden of proof to this party.”) (citations omitted); In re Raymour and Flanigan Furniture, 405 N.J.Super. 367, 376-77 , 964 A.2d 830 , 836 ⁶⁵⁸ (N.J.Super.Ct.App.Div.2009) (establishing that the employer carries the burden, and that “[g]iven the humanitarian purpose of the Wage and Hour Law, we construe the exemption narrowly, not broadly.”); Thomas Jefferson Univ. v. Wapner, 2006 Pa.Super. 156, 903 A.2d 565, 575 (Pa.Super.Ct.2006) (“It is both logical and appropriate to allocate to the employer the burden of proving good faith. Certainly, the information tending to establish good faith in a WPCL matter is in the possession of the employer.”). 10 The rules of evidence also support this burden-shifting rule. In a civil trial, the burden of production (i.e., to produce evidence) can shift from one party to another concerning a particular issue, even though the ultimate burden of persuasion remains with the plaintiff. See Lynn McLain, 5 Maryland Evidence, § 300.6 at 375-76 (3d ed. 2013); Joseph F. Murphy, Jr., Maryland Evidence Handbook, §§ 400-05 (4th ed. 2010).

In this context, the employer is in the best position to bring forward evidence concerning its own subjective belief as part of establishing a bona fide dispute. See Md. State Dep’t of Health & Mental Hygiene v. Phoebus, 319 Md. 710, 718 , 575 A.2d 335, 339 (1990) (shifting the burden of production to the party who would have particular knowledge of a key fact). Once the employer has done so, the burden of production shifts back to the employee to rebut the employer’s reason. See id. at 717 , 575 A.2d at 338 .

The burden of proof, i.e., the risk of non-persuasion, however, never shifts from the party on whom it is placed. Id.; see also McLain at 376-77. ⁶⁵⁹ With the guidance of other jurisdictions, and based on settled evidentiary principles, it is not difficult to conclude that the employer, as the party withholding the wages, is uniquely qualified to offer evidence about its reason for doing so. Evidence Of Reasons EHCG Withheld Overtime Wages EHCG concedes that Peters was its employee and that she worked more than 40 hours per week, thus supporting “overtime” status. The only disputed issue is why EHCG withheld the overtime wages and whether its reason could be considered a bona fide dispute.

The record reveals the answer to this question. When asked why Peters was not paid overtime wages, Ms. Guy repeatedly answered that she withheld overtime pay because Peters exercised around the neighborhood during work hours. The trial court rejected the claim that Guy withheld pay because Peters was exercising, reasoning that it was inconsistent with the company’s payment to Peters for those same hours at regular rates. 11 Although Guy mentioned that the services provided by the company were paid for through the Medicaid program, she never testified that she believed that the federal law exempted the company from Maryland overtime requirements for that reason. 12 Nor did EHCG present any other evidence to support the argument that the company withheld overtime pay pursuant to federal Medicaid law. Put shortly, EHCG pre ⁶⁶⁰ sented nothing that could sufficiently justify that its president, Ms. Guy, actually believed that federal law or any other law exempted EHCG from paying Peters overtime.

Without this, there was no evidence of a bona fide dispute, and EHCG did not meet its burden of production. Without evidence of any bona fide dispute, there is no reason for the trial court to make a factual determination on the issue of bona fide dispute. We have foreclosed any such finding as a matter of law. Yet, a remand is still necessary because the record does not reveal whether the trial court considered the absence of a good faith reason for withholding overtime pay, or gave appropriate consideration to the statutory availability of an enhanced award up to treble damages.

We now review the guidelines for considering such awards. Enhanced Damages Awards Appellant argues that it would be an abuse of discretion for the Circuit Court to deny her treble damages on remand from this Court. She urges that “every purpose of the WPCL’s treble damages provision (punitive, deterrent, and compensatory) strongly favors awarding treble damages to Ms. Peters. And no factors weigh in favor of denying or diminishing those damages.” Cautioning that without the threat of enhanced damages, employers will simply withhold wages, relying on the unlikelihood of employees bringing suit, Peters argues that “[i]f multiple damages awards are few and far between, the provision’s crucial deterrent purpose will be significantly impeded.” In light of these reasons, Peters urges us to adopt a similar approach to enhanced damages as we do for awarding attorneys’ fees under the same provision, and hold that such damages should be granted “liberally.” See Barufaldi, 434 Md. at 393-94 , 75 A.3d at 959 (“In light of the purposes of the fee-shifting provision of the [WPCL], this Court has stated that when the factfinder concludes that there was no ‘bona fide dispute’ as to the employer’s liability, ‘courts should exercise their discretion liberally in favor of awarding a reasonable fee, unless the circumstances of the particular case indicate some good reason why a fee award is inappropriate in ⁶⁶¹ that case.’ ” (quoting Friolo I, 373 Md. at 518 , 819 A.2d at 364 )).

Appellant concludes that, because the facts are so one-sided in this case, it would be an abuse of discretion for the court to decline an award of enhanced damages. Although we recognize that the WPCL is a remedial statute to be construed liberally in favor of the employee, we are not persuaded by Appellant’s argument that there should be a presumption in favor of granting enhanced damages. To apply such a presumption would ignore the Legislature’s use of “may” in the clause granting the fact finder discretion to make such an award. In Admiral Mortgage, this Court interpreted the Legislature’s rejection of “shall” in a proposed bill to mean an award was discretionary, explaining: In its initial version, the bill that enacted § [3-507.2] provided for an automatic trebling.

It was amended, however, apparently at the behest of the Maryland Chamber of Commerce and with the support of the Maryland State Bar Association, to make that penalty discretionary. That indicates to us, in line with the general discussion above, an intent by the Legislature to leave the determination in the hands of the trier of fact, which ordinarily