COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Henry's Roofing and Siding,

Petitioners

v. Docket No. LB-08-65


(Cit. #WHO080009)
Office of the Attorney
General - Fair Labor and Business Practices Division,

Respondent

Appearance for Petitioner:

Henry Dupuis


3 Blake Street
Worcester, MA 01604

Appearance for Respondent:

Kate J. Fitzpatrick, Esq.

Assistant Attorney General
One Ashburton Place
Boston, MA 02108

Administrative Magistrate:

James P. Rooney, Esq.

DECISION

As allowed by M.G.L. c. 149 § 27C(b)(4), petitioners Henry Dupuis and Henry's Roofing and Siding appealed citation number WHO080009 issued them by the Office of the Attorney General alleging a failure to timely pay wages to Ruben Batista in violation of M.G.L. c. 149, § 148. I held a hearing in the appeal on May 16, 2008 at the Offices of the Division of Administrative Law Appeals, 98 North Washington, Boston, Massachusetts. At the hearing, I admitted two exhibits in evidence. Henry Dupuis testified for himself. The Attorney General
presented testimony from Ruben Batista and an inspector in the Fair Labor Division, Ed Horniak. I made two tapes of the hearing.

FINDINGS OF FACT

Based on the testimony and exhibits presented at the hearing, I make the following findings of fact:

1. Henry Dupuis is a self-employed roofer who operates an unincorporated company known as Henry's Roofing and Siding. He has occasionally hired Ruben Batista, who lives in the same Worcester neighborhood, to "help out" for brief periods on roofing projects. Dupuis Testimony. On these occasions, he paid Batista $10 per hour in cash. Dupuis and Batista Testimony. In these instances, he was paid after each job ended.

2. Sometime in the spring of 2007, Dupuis agreed to paint the exterior of a house at 16 Knox Street in Worcester owned by Long Tram. He did it as a favor to Tram, who was a customer, and not as part of his roofing business. Dupuis Testimony. Tram bought the paint for the job and worked on a deck at the back of the house himself. Dupuis and Batista Testimony. Tram manages a donut shop and begins work in the early morning. He usually returns home around 2:30 p.m., and consequently saw some of the painting being performed. Horniak Testimony.

3. The work began sometime in May 2007 and ended sometime in June 2007. The work was interrupted by rainy days. Dupuis and Batista Testimony. Dupuis worked mornings painting Tram's house and spent afternoons rehabilitating his own triple-decker. Dupuis Testimony. Dupuis was away for three days toward the end of the job attending the funeral of an uncle in Maine. Dupuis and Batista Testimony. Tram paid Dupuis in cash at the end of the job and made at least one payment before that. Dupuis Testimony.

4. Ruben Batista, who at the time lived in the same neighborhood as Dupuis, approached him looking for work and ended up performing some of the painting on the job. Although there was no explicit negotiation, the two men agreed that Batista would be paid at the rate of $10 per hour. Batista did not begin until after Dupuis had replaced some rotten boards on the house. Batista painted on at least two days, during which time he painted one side of the house, and he was paid for at least one day's work. Dupuis and Batista Testimony.

5. Because the job was in a different part of Worcester than the one in which both men lived, Dupuis mainly drove Batista to the job site each day. Dupuis Testimony. After work, Dupuis either drove back to his own house, dropping off Batista there, or dropped Batista off at a bus station in downtown Worcester. Batista Testimony.

6. After the paint job was finished, Batista approached Dupuis and demanded to be paid. Dupuis refused to pay him any more money. Dupuis and Batista Testimony.

7. On June 13, 2007, Batista filed a complaint with the Attorney General's Office claiming that he had not been paid for 13 days of work over a three week period. He alleged he painted for a total of 87 hours and had not been paid for this work. Batista gave a statement in Spanish to the Attorney General's office concerning his claim. Horniak Testimony.

8. On August 13, 2007, the Attorney General's Office sent a letter to Dupuis at his home at 3 Blake Street that included a translated copy of Batista's statement. It received no response from Dupuis. Horniak Testimony.

9. Dupuis does not recall receiving this letter. On occasion, mail delivered to his triple-decker has not reached him. He is illiterate and relies on his wife to read his mail to him. He does not recall his wife reading a letter to him about Batista's complaint. Dupuis Testimony.

10. Having received no response from Dupuis, Inspector Ed Horniak, to whom the matter had by now been assigned, sent a payroll demand by certified mail to Dupuis on December 17, 2007. No one picked up the demand from the Post Office. Horniak Testimony.

11. On January 22, 2008, the Attorney General's Office issued a citation to Henry Dupuis, individually, and to Henry's Roofing and Siding. The citation alleged that Dupuis and his company had violated M.G.L. c. 149, § 148 by failing to pay $870 to Ruben Batista for work he performed between May 15, 2007 and June 7, 2007. The Attorney General sought the $870 in restitution plus an additional civil penalty of $590 for what it characterized as an unintentional violation. The $870 figure is based on a document Batista provided the Attorney General's Office in which he calculated that he had worked 87 hours on this job. Ex. 2. No one from the Attorney General's office spoke to Dupuis before issuing the citation.

12. Dupuis timely appealed the citation, denying that he owed Batista any money. His wife wrote out the appeal, which he signed. Dupuis Testimony

DISCUSSION

Massachusetts requires employers to pay regular employees within five to seven days following the completion of a weekly or bi-weekly pay period and to pay "casual employees," who have worked for a period of less than five days, within seven days of the completion of their work. M.G.L. c. 149, § 148, ¶ 1. Violations of this section may be punished by the issuance of a civil citation under M.G.L. c. 149, § 27C. M.G.L. c. 149, § 148, ¶ 8. Any person aggrieved by a citation may appeal to the Division of Administrative Law Appeals. M.G.L. c. 149, § 27C(b)(4). The Administrative Magistrate who hears the appeal "may affirm or if the aggrieved person demonstrates by a preponderance of evidence that the citation or order was erroneously issued, vacate, or modify the citation." M.G.L. c. 149, § 27C(b)(4).

Having considered the evidence, I vacate the penalty both as to Dupuis individually and as to his company, Henry's Roofing and Siding.
The only evidence concerning Henry's Roofing and Siding is that this is a business name Dupuis uses when he installs roofing or siding. There is no evidence that this entity is incorporated or has any other legal existence. More importantly, there is no evidence that Henry's Roofing and Siding played any role in the painting of 16 Knox Street, that it hired Batista to paint, or was in any way obligated to pay Batista for the painting he performed.

As for Dupuis, there is no question that he hired Batista to paint. The relationship was very informal, with Dupuis performing a painting job that was not a part of his regular line of business and Batista helping him out for some part of it. Still, at the very least, Batista was a casual employee entitled under M.G.L. c. 149, § 148, ¶ 1 to be paid in full within seven days of the completion of his work. There is also no dispute the men had an unspoken understanding that Dupuis would pay Batista $10 per hour for the time he worked. There is a dispute as to how many days Batista painted and as to whether any money is still owed him for the work he did.

The only evidence that Dupuis owes Batista $870 is a document prepared by Batista that purportedly demonstrates that he worked 87 hours on the Knox Street painting job.

Batista is to be credited with keeping a record of his hours - a responsibility that the law places on the employer. See M.G.L. c. 151, §15. I hold Dupuis's failure to record Batista's hours against him, but not to the point of automatically crediting Batista's testimony that he worked for three weeks, rather than the two days Dupuis alleges. Compare Wiedman v. The Bradford Group, 444 Mass. 698, 831 N.E.2d 304 (2005).


A contemporaneous record of hours worked might in many instances demonstrate the accuracy of a claim of unpaid wages. In this instance, however, the document, which is the only evidence that Batista worked for 87 hours without pay, is so flawed that it serves to show that the citation was issued erroneously. The document introduced into evidence is not contemporaneous and is internally inconsistent as to the hours Batista worked.
The document reads as follows:
May 15 8:30 - 5:00 9 [hours] Thursday
May 16 8:30 - 5:00 9 [hours] Friday
May 17 8:30 - 5:00 9 [hours] Saturday
May 18 9 - 5:30 8 ½ [hours] Sunday
May 19 8:30 - 5:00 9 [hours] Monday
May 20 8:30 - 3:00 6 ½ [hours] Tuesday
May 21 8:30 - 1:00 5 [hours] Wednesday
May 22 8:30 - 12:00 4 [hours] Thursday
May 27 8:30 - 4:30 8 [hours] Tuesday
June 1 8:30 - 4:00 8 ½ [hours] Sunday
June 5 8:30 - 12:30 3 [hours] Thursday
June 6 8:30 - 12:00 3 ½ [hours] Friday
June 7 8:30 - 2:00 6 [hours] Saturday

Ex. 2.

Batista testified that the document introduced into evidence is a copy of a document he made while he was painting. He made a copy only because the original was worn. He made no changes and did not consult a calendar while making the copy. Batista Testimony.

This does not ring true. The correspondence the document makes between dates and days of the week -- May 15, for example, is listed as a Thursday -- is simply inaccurate. May 15, 2007 was a Tuesday, not a Thursday. Every other day of the week listed is identified incorrectly as well. This type of error is unlikely in a document prepared when the work was performed.

There is every reason to believe that the document in evidence was prepared more recently. May 15 was a Thursday in 2008. All the other days and dates fit the 2008 calendar as well, suggesting the document was prepared in 2008. Because the document was prepared many months after the work was completed, that considerably dims what light it might otherwise have shed on the hours Batista worked in May and June 2007.

The remainder of the document is at best confusing as to the hours Batista worked. He lists the time he began work each day, the time he stopped, and the total hours worked. On only four of the thirteen days he lists does the figure for total hours correspond accurately with the hours of work shown. On May 15, for example, the document lists the hours worked as from 8:30 - 5:00. That is 8.5 hours, but the document lists nine hours. On the other hand, on June 5, the document shows work from 8:30 to 12:30 or four hours, but the document lists only three hours worked.

Which then is meant to be the accurate record of hours worked? The total hours worked listed in the document add up to 90 hours, not 87 hours. If the times of day worked are accurately totaled and then added together, the result is 85.5 hours. With neither possible total adding up to 87 hours, even if I were to find some portion of the document accurate, I would have no basis to find that Batista had worked 87 hours on this job.

The statue allows me to modify the citation, but the evidence is too undeveloped to allow me to make a supportable finding as to the total hours of Batista's unpaid work. The witnesses agree only that Batista was paid for one four-hour day. Beyond that, the Dupuis's and Batista's versions of events differ markedly.

Dupuis testified that he mainly worked the job himself. Not only was he doing the job as a favor to the homeowner, but at the same time he was rehabilitating his own triple-decker. Hence, he worked only about four hours per day in the morning on the painting job and the remainder of the day working on his own house. With frequent rainy days and a trip he made to Maine to attend the funeral of an uncle, it took him about six weeks to finish the painting job. Dupuis agreed to do the work for $800, a figure based on him working the job alone and the homeowner providing the paint. Tram paid that amount to Dupuis, with one interim payment of $100. Dupuis Testimony.

About one and one-half weeks into the job, Batista approached Dupuis about doing some of the painting. Dupuis agreed to let him help out. Batista insisted on being paid each day before the work began. Dupuis stated that he paid Batista $40 for four hours work for each day worked. Dupuis Testimony.
According to Dupuis, this arrangement lasted for two days. During that time, Batista painted one of the sides of the house on which both men were working. On the third day, when Dupuis did not have cash to pay Batista in the morning, Batista refused to work. That was the last time Batista worked on this job. Dupuis Testimony.

Batista, on the other hand, testified that he began work sometime near the beginning of the job, after Dupuis had replaced the rotten boards. The homeowner was still trying out paint colors and requested that a section be repainted when the color did not meet with his approval. Batista Testimony.

According to Batista, Dupuis agreed to pay him at the end of the project. After stating initially that Dupuis had not paid him at all, Batista acknowledged that Dupuis paid him $40 one day after the work was finished, while both men were at a seafood restaurant, and once also paid him $10 for bus fare. Batista Testimony.

Batista testified that he worked for 13 days over a three week period, with three days off because of rain. He worked between three and nine hours per day. Dupuis drove him to the job site at Knox Street all but two times, picking him up at home twice and the other times at a gas station. Twice, Batista's wife drove him to Knox Street. After work, Dupuis either drove back to his own house, dropping off Batista there, or dropped Batista off at a bus station in downtown Worcester. Batista Testimony.

In Batista's version of events, sometimes he worked with Dupuis, sometimes with two other people. He identified these people as "Johnny," the boyfriend of Dupuis's sister, and "Harry," Dupuis's stepson. During this time, Batista primed portions of the house and applied two coats of paint to the house, the trim, and a front porch. He recalls being the only one willing to paint the upper reaches of the house. Batista Testimony.

According to Batista, the job was finished on June 7, 2007, the day Dupuis returned from three days in Maine. Batista asked to be paid, but Dupuis claimed not to have the money. Two days later, Batista spoke to the homeowner, Tram, who told him he had already paid Dupuis $400-$600 to pay his workers. When Batista confronted Dupuis with this information, Dupuis became angry and refused to pay Batista at all. Batista Testimony.

Dupuis and Batista each present a version of events that is partially credible, but the testimony of each man is also problematic.
Dupuis's version is that he performed this painting job as a favor to a past and possibly future customer, and thus he charged little and took a long time to complete the job. Batista became involved only because he asked to pick up some work and he worked a period of time commensurate with the $100 the customer had paid to Dupuis before the end of the job. When Dupuis, who had already paid him $80, had insufficient funds to pay him another $40 in advance for a half-day of work, Batista lost interest and stopped working.

That Batista received $40 per day for the two days he worked is consistent with Dupuis's recollection that he (and Batista) worked only half-days painting and with the testimony that Dupuis spent the rest of the time remodeling his triple-decker. It is also consistent with Dupuis's testimony that he charged the homeowner little and anticipated completing all the work himself, thus leading to a lengthy six-week project performed intermittently without anyone's assistance.
It is difficult, however, to accept this version in the face of Batista's detailed recollection of events on the job that appear to reflect Batista working for a much longer period of time. Batista recalls working with different people on different days, a variety of painting tasks performed, and different modes of transportation to and from the job site. I find it unlikely that all the events Batista recalls could have occurred over the course of only two four-hour work days.

However, I am not entirely convinced by Batista's version of events either. He acknowledges that Dupuis was often absent during the painting - presumably because Dupuis had returned home to work on remodeling his triple-decker - but that begs the question of how Batista managed to return home from the job when Dupuis was not present, or how he reached the job site when Dupuis was in Maine. Furthermore, both Dupuis and Batista testified that the weather was rainy during this period, and yet Batista claims to have worked eight straight days in a row, including both weekend days. This is doubtful not only because painting in the rain is a futile and poor practice, but also because there is nothing to suggest that Dupuis, who was performing this task essentially as a side job, had any reason to push so hard for a quick completion.

There were other witnesses who might have clarified how long, and when, Batista worked: the homeowner and the two others Batista identified as his fellow painters. No one claims to have spoken to "Johnny" or "Harry" or to have verified who they were. Inspector Horniak spoke to Long Tram, the homeowner, but what he learned was inconclusive.

Long Tram manages a donut shop. He told Inspector Horniak on April 29, 2008, that he leaves for work at 4:30 a.m. and returns at 2:30 p.m. Tram said that he paid Dupuis $2,000 total for the job, including a $600 interim payment. The job took two weeks to complete, including days when no work was performed because of rain. He recalled Batista and two other men being there as well as Dupuis, but could not recall how long Batista worked. Horniak Testimony.
That Tram told Horniak that he paid Dupuis an amount sufficient to have compensated at least Batista for working on the job for many days tends to lend some support to Batista's version of events. Although Tram recalled seeing Batista work, what he told Horniak does not lend clear support to either Dupuis's version that Batista worked for only two days or Batista's version that he worked every day soon after the project began. Tram simply did not recall how frequently Batista worked. What Tram told Horniak also does not clarify how long it took to complete the painting job. Tram's version differs from the version of the other two men. Tram told Horniak that the project took only two weeks to complete, not the three weeks Batista said he worked or the six weeks the project lasted according to Dupuis. Tram's version suggests that Batista worked fewer hours than he said he did because the project, including rain delays, did not last long enough to encompass the three weeks Batista said he worked.

I find Batista sufficiently credible to believe that he may very well have worked for more than two days, but I also find that the evidence is inconclusive as to how many hours, if any, he actually worked. There is no evidence that Batista worked for 87 hours without being paid. There is also no evidence sufficient to establish with any degree of certitude how long he may actually have worked without being paid.

As I noted earlier, the governing statute provides that an Administrative Magistrate who hears an appeal from a citation for violating state labor laws on timely payment to employees "may affirm [the citation] or if the aggrieved person demonstrates by a preponderance of evidence that the citation or order was erroneously issued, vacate, or modify the citation." M.G.L. c. 149, § 27C(b)(4). Petitioner Henry Dupuis has established by a preponderance of the evidence that the citation issued him by the Office of the Attorney General for failure to pay 87 hours of wages to Ruben Batista was erroneously issued. In accordance with M.G.L. c. 149, § 27C(b)(4), now that I have determined that the citation was erroneously issued, I may not affirm it; I may only vacate or modify it. Because the evidence is insufficient to show any particular level of unpaid wages, I have no basis on which to modify the citation. Accordingly, I conclude that the citation cannot be modified and must therefore be vacated.

DIVISION OF ADMINISTRATIVE LAW APPEALS

James P. Rooney
Administrative Magistrate

DATED: August 13, 2009