COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Ivan F. Niero and
I.N. Painting Company, Inc.,

Petitioners,
Docket No.: LB-08-15
v.

Office of the Attorney General,
Fair Labor Division,

Respondent.

Appearance for Petitioners:

Ivan F. Niero

P.O. Box 1261
Hyannis, Massachusetts 02601

Appearance for Respondent:

Anita V. Maietta, Esq.

Assistant Attorney General
Fair Labor Division
Office of the Attorney General
105 William Street
New Bedford, Massachusetts 02740

Administrative Magistrate: Natalie S. Monroe, Esq.


DECISION

On December 20, 2007, the Office of the Attorney General issued Citation Number WH070127 against the petitioners, Ivan F. Niero and I.N. Painting Company, Inc., for their alleged failure to pay Jose L. Magatao for work he performed between February 23, 2007 and May 16, 2007. The citation ordered the petitioners to pay Mr. Magatao $4,570.00 in restitution and to pay the Commonwealth a penalty in the amount of $900.00. The petitioners appealed the citation in accordance with M.G.L. c. 149, § 27C(b)(4).

I held a hearing in this matter on September 5, 2008, at the Division of Administrative Law Appeals, 98 North Washington Street, Boston, Massachusetts. Ivan F. Niero testified for himself. Two witnesses testified for the Office of the Attorney General: Paul Gordon and Jose L. Magatao. Mr. Magatao testified through an interpreter, Celina Dias Pendexter. I admitted two exhibits (Exhibits 1-2) into evidence and there is one cassette tape of the hearing.

Findings of Fact


Based on the testimony of Messrs. Niero, Magatao and Gordon, the exhibits entered into evidence (Exhibits 1-2), reasonable inferences drawn from the evidence, and my assessment of the credibility of the witnesses, I make the following findings of fact:

1. Between 2005 and 2007, Ivan F. Niero ran a painting business on Cape Cod. (Testimony of Jose Magatao).

2. Mr. Niero's business painted houses and stores. His business performed both exterior and interior painting. (Testimony of Jose Magatao).

3. On October 10, 2005, Mr. Niero hired Jose L. Magatao to work for him as a painter. (Testimony of Jose Magatao).

4. Mr. Magatao worked for Mr. Niero until May 16, 2007. (Testimony of Jose Magatao; Exhibit 2).

5. During the time that Mr. Magatao worked for Mr. Niero, his rate of pay was thirteen dollars an hour. If Mr. Magatao worked more than forty hours in a week, he was paid time-and-a-half, which was $19.50 an hour. (Testimony of Jose Magatao; Exhibit 2).

6. During the time that he worked for Mr. Niero, Mr. Magatao did not work a fixed number of hours per day, or a fixed number of days per week. (Testimony of Jose Magatao).

7. During the time that he worked for Mr. Niero, Mr. Magatao kept a weekly timesheet to record the number of days and hours that he worked. At the end of each work day, Mr. Magatao recorded on the timesheet the number of hours he had worked. (Testimony of Jose Magatao).

8. At the end of each week, Mr. Magatao gave Mr. Niero his weekly timesheet. Mr. Magatao also kept a copy of the timesheet for his records. (Testimony of Jose Magatao).

9. During the time that he worked for Mr. Niero, Mr. Magatao was not paid on a regular basis. Sometimes Mr. Niero paid Mr. Magatao every two weeks; other times he would not pay Mr. Magatao for three or four weeks. (Testimony of Jose Magatao).

10. Between February 23, 2007 and May 16, 2007, Mr. Magatao worked 402.3 regular hours and 84.5 hours of overtime for Mr. Niero, but Mr. Niero did not pay him for this work. (Testimony of Jose Magatao; Exhibit 2).

11. Mr. Magatao stopped working for Mr. Niero on May 16, 2007 because Mr. Niero had not paid him for several months. (Testimony of Jose Magatao).

12. After he stopped working for Mr. Niero, Mr. Magatao prepared a one-page summary of the hours that he had worked between February 23, 2007 and May 16, 2007, and the wages that Mr. Niero owed him for that work. (Testimony of Jose Magatao; Exhibit 2).

13. The one-page summary was based on the weekly timesheets that Mr. Magatao had prepared while he worked for Mr. Niero. (Testimony of Exhibit 2).

14. Sometime after Mr. Magatao stopped working, Mr. Niero paid Mr. Magatao two thousand dollars in back wages. (Testimony of Jose Magatao).

15. Mr. Magatao noted the two-thousand-dollar payment on the summary that he prepared. (Testimony of Jose Magatao; Exhibit 2).

16. On August 14, 2007, Mr. Niero formed I.N. Painting Company, Inc. ("I.N. Painting") as a Massachusetts corporation organized in accordance with M.G.L. c. 156D. (Testimony of Paul Gordon and Ivan Niero; Exhibit 1).

17. Mr. Niero is the sole Director of I.N. Painting, as well as its president, secretary and treasurer. (Exhibit 1).

18. Mr. Magatao never worked for I.N. Painting. (Testimony of Ivan Niero; Exhibit 1).

19. On December 20, 2007, the Fair Labor Division of the Office of the Attorney General issued a citation to Mr. Niero and I.N. Painting for their alleged failure to pay Mr. Magatao for the work he had performed between February 23, 2007 and May 16, 2007. (Citation No. WH070127).

20. The citation ordered Mr. Niero and I.N. Painting to pay Mr. Magatao $4,5750.00 in restitution and to pay the Commonwealth a penalty in the amount of $900.00. (Citation No. WH070127).

21. Mr. Niero and I.N. Painting timely appealed the citation.


Discussion

A petitioner challenging a citation for the failure to pay wages has the burden of demonstrating by a preponderance of evidence that the citation was erroneously issued. M.G.L. c. 149, § 27C(b)(4). After a careful review of the evidence, I conclude that Mr. Niero has not met his burden of proof, but that I.N. Painting has demonstrated by a preponderance of the evidence that the citation against it was erroneously issued.

Mr. Neiro. The evidence demonstrates that Mr. Niero failed to pay Mr. Magatao $4,877.65 in wages for work he performed as a painter between February 23, 2007 and May 16, 2007. During that time period, Mr. Magatao worked 402.3 regular hours and 84.5 hours of overtime for Mr. Niero. Based on a regular rate of pay of thirteen dollars an hour and $19.50 an hour for overtime, Mr. Magatao's earnings from February 23, 2007 to May 16, 2007 total $6,877.65:

402.3 hours at $13/hour = $5,229.90
84.5 hours at $19.50/hour = + $1,647.75
Total earnings: $6,877.65

Mr. Niero paid Mr. Magatao two thousand dollars of this amount, meaning that Mr. Niero failed to pay $4,877.65.

In reaching this conclusion, I relied on the testimony of Jose Magatao, who I found to be a very sincere and credible witness. I also relied on the summary of unpaid wages that Mr. Magatao prepared. The summary was based on Mr. Magatao's timesheets, which Mr. Magatao prepared at the end of each work day. I also considered the fact that much of Mr. Niero's testimony matched Mr. Magatao's testimony. Mr. Niero admitted, for example, that Mr. Magatao had worked for him through May 2007. He admitted that Mr. Magatao had worked the hours listed on the one-page summary (Exhibit 2) and that, as of December 2007, he had not paid Mr. Magatao for those hours.

In reaching my conclusion, I did not give any weight to Mr. Niero's testimony that he paid Mr. Magatao in full after he received the citation from the Attorney General's Office. Having observed him testify, I did not find Mr. Niero's testimony on this point to be credible. He did not provide any details on how, when or how much he paid Mr. Magatao, but instead made a blanket statement that he paid Mr. Magatao in full. He did not introduce any documentation showing that he made any payments to Mr. Magatao.

I therefore affirm the citation against Mr. Niero but modify the amount of restitution from $4,547.00 to $4,877.65 to conform to the evidence. See Electronic Data Systems Corp. v. Office of the Attorney General, LB-05-686 (DALA dec. 12/7/06) (increasing restitution based on actual amount owed); Dyer v. Office of the Attorney General, LB-00-1198 (DALA dec. 8/6/01) (same). Finally, there is no evidence that the penalty, which is $900.00, should be modified. I therefore uphold it.

I.N. Painting. I.N. Painting was formed on August 14, 2007, three months after Mr. Magatao stopped working for Mr. Niero. See Exhibit 1. Thus, although Mr. Niero is the principal of I.N. Painting, I.N. Painting never was Mr. Magatao's employer. Stated differently, Mr. Magatao never worked for I.N. Painting. As a result, the citation was erroneously issued against it.

Disposition

For the foregoing reasons, I affirm Citation Number WH070127 against Ivan F. Niero, but modify the amount of restitution from $4,547.00 to $4,877.65 to conform to the evidence. I affirm the $900.00 penalty against Mr. Niero. Finally, I vacate Citation Number WH070127 against I.N. Painting Company, Inc.


SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS
/s/ Natalie S. Monroe___________________________
Administrative Magistrate

Dated: 9/19/08

Issued on: 9/28/09