Civil action commenced in the Superior
Court Department on September 21, 2015.
The case was tried before Paul D. Wilson,
J., and motions to alter or amend the judgment were considered by him.
The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.
Christopher F. Hemsey for the defendants.
Michaela C. May (Eric R. LeBlanc also
present) for the plaintiffs.
Ben Robbins & Daniel B. Winslow, for
New England Legal Foundation, amicus curiae, submitted a brief.
Osvaldo Vazquez, of Florida, Hillary
Schwab, Joseph Michalakes, & Audrey Richardson, for Massachusetts
Employment Lawyers Association & others, amici curiae, submitted a brief.
WENDLANDT, J. This case presents the question whether the
comprehensive remedial scheme provided by the Fair Labor Standards Act (FLSA),
29 U.S.C. §§ 201 et seq., for recovery of damages when an employer
violates the Federal overtime law, 29 U.S.C. § 207, precludes an employee
from alternatively pursuing remedies under the wage act, G. L.
c. 149, § 148, for the untimely payment of overtime wages due solely
pursuant to the FLSA. Because awarding
such State law remedies would actually conflict with the Federal remedies
provided in the FLSA, and because we must construe our State laws to avoid
preemption if possible, we conclude that such State law remedies are not
available in these circumstances.
Further concluding that the jury instructions for the calculation of
overtime wages under the FLSA contained a methodological error resulting in an
award to the plaintiff employees of two and one-half times their regular rate
and that the defendants' remaining claims lack merit, we remand for proceedings
consistent with this opinion.
Background. We recite the facts
in the light most favorable to the jury verdict. See O'Brien v. Pearson, 449 Mass. 377, 383
(2007). The plaintiffs, Rutchada
Devaney, Thewakul Rueangjan, and Thanyathon Wungnak, were employees of a
Needham-based restaurant called the Rice Barn, which was owned and operated by
the defendant Zucchini Gold, LLC, which in turn was owned by the defendant
Chalermpol Intha (collectively, Rice Barn).
The restaurant was open seven days each week, including for lunch and
dinner on weekdays and for dinner on weekends.
Rice Barn failed to keep complete,
contemporaneous records of the plaintiffs' hours of work or of wages paid. Nevertheless, the parties agree that the
plaintiffs routinely worked more than forty hours per week. Devaney's work
responsibilities generally included packing and preparing food, as well as
coordinating orders with customers and the kitchen. She typically worked six or seven days per
week, for a total of fifty to sixty hours per week. Rueangjan worked as a chef, preparing and
cooking hot meals. He also was
responsible for cleaning his work station.
Between lunch and dinner, Rueangjan worked on food preparation and took
a ten minute break. He worked seven days
per week, for approximately sixty-four to 70.5 hours per week on average. Wungnak's primary responsibility was making
appetizers. On days when she worked on
catering projects, Wungnak arrived at around 6 A.M. She worked seven days per week, rarely taking
breaks during her shifts, for a weekly total of between sixty-four and 72.25
The plaintiffs ostensibly were paid a
fixed daily rate on weekdays; on weekends, when the restaurant was open for
dinner only, the plaintiffs were paid one-half the daily rate. The record showed, however, that the
plaintiffs were not always paid flat sums per day or per half day. For example, pay stub records for Devaney and
Rueangjan reflect that, rather than paying a fixed day rate regardless of the
hours worked, Rice Barn paid the plaintiffs fractions of their daily rates to
account for plaintiffs' absences on any given day. For Wungnak, Rice Barn kept no records
whatsoever. In order to be paid their
wages, the plaintiffs submitted to Rice Barn weekly documentation of days they
had worked; these documents include a column for setting forth the number of
hours worked on any given day.
The plaintiffs were paid additional sums
for extra cleaning and for catering.
Rice Barn also did not have records of these additional sums.
Procedural history. In September
2015, the plaintiffs brought the present action against Rice Barn, alleging
violations of the FLSA for failure to pay overtime wages, violations of the
wage act for failure to pay the FLSA overtime wages in a timely manner, and
violations of the Federal and State minimum wage laws. On the plaintiffs'
motion for summary judgment, a Superior Court judge (motion judge) allowed
summary judgment as to Rice Barn's liability under the Federal overtime law and
the wage act.
Thereafter, a jury trial commenced before
a different Superior Court judge (trial judge) solely on the issue of
damages. The trial judge instructed the
jury that damages under the Federal overtime law should be calculated by
multiplying the plaintiffs' regular rate by one and one-half times. The jury returned a verdict in favor of each
plaintiff. The trial judge trebled the
damages awards and awarded attorney's fees and costs pursuant to the wage act.
The trial judge declined Rice Barn's
posttrial request for remittitur but amended the award of prejudgment
interest. Rice Barn timely
appealed. We transferred the matter sua
sponte from the Appeals Court.
Discussion. a. Availability of wage act remedies for
violations of Federal overtime law. The
wage act requires timely payment of "wages earned." G. L. c. 149, § 148. Rice Barn maintains that the trial judge
erred in permitting the plaintiffs to elect the remedies provided by the wage
act where, as here, the plaintiffs did not pursue a claim for violation of the
State overtime law, G. L. c. 151, § 1A, and the sole basis
for Rice Barn's liability was pursuant to the Federal overtime law, which
itself provides a remedy. The
plaintiffs respond that a "host of cases" have construed the wage act
to allow employees to recover under the act when their employers failed to
timely pay overtime compensation owed exclusively under the FLSA.
While these cases construe the phrase
"wages earned" in the wage act to include overtime wages due under
the FLSA and, on that basis, conclude that the wage act provides an
alternative avenue for relief for violations of the Federal overtime law,
they do not address the more salient question presented by Rice Barn's argument
-- namely, whether the FLSA's comprehensive remedial scheme for recovery of
damages when an employer violates the Federal overtime law precludes an
employee from alternatively pursuing wage act remedies for the untimely payment
of overtime wages due solely under the FLSA.
Instead, these cases highlight that, if the wage act is construed to
permit application of its remedial scheme for violations of the Federal law, a
conflict between the two laws may arise.
See, e.g., Carroca vs. All Star Enters. & Collision Ctr., Inc., U.S.
Dist. Ct., No. 12-11202-DJC (D. Mass. July 10, 2013) (noting potential for
"windfall" if employee is allowed to recover under both wage act and
FLSA, and opting to award wage act's more generous remedy -- treble damages). In these circumstances, our construction does
not end with the plain meaning analysis; instead, if possible, "[w]e must
. . . seek to avoid [the] conflict with Federal law and possible
preemption under the supremacy clause." Wright's Case, 486 Mass. 98, 108 (2020).
In doing so, we start with the "basic
assumption that Congress [does] not intend to displace [S]tate law"
(citation omitted). Anderson v. Sara
Lee Corp., 508 F.3d 181, 192 (4th Cir. 2007).
That presumption is "particularly strong [in the present context]
given [S]tates' lengthy history of regulating employees' wages and
hours." Knepper v. Rite Aid Corp.,
675 F.3d 249, 262 (3d Cir. 2012), citing California Div. of Labor Standards
Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 330 (1997). See Fort Halifax Packing Co. v. Coyne, 482
U.S. 1, 21 (1987) ("pre-emption should not be lightly inferred in this
area, since the establishment of labor standards falls within the traditional
police power of the State").
Significantly, the FLSA sets forth a "savings clause,"
expressly providing that the FLSA does not preempt State laws establishing a
higher minimum wage or shorter maximum work week. See 29 U.S.C. § 218(a). Thus, we are concerned with neither express
preemption nor field preemption. See Knepper,
supra. Moreover, an employer can comply
with both the wage act's requirement that wages earned be paid timely and the
FLSA's requirement that overtime hours be paid at one and one-half times the
regular rate. See English v. General Elec. Co., 496 U.S. 72, 79 (1990);
Aldridge v. Mississippi Dep't of Corrections, 990 F.3d 868, 875 (5th Cir. 2021)
("It is not 'impossible' to comply with both [F]ederal and [S]tate law
. . . overtime compensation requirements"). Accordingly, we confine our analysis to
considering whether recovery under the wage act "actually conflicts"
with the FLSA in the sense that doing so "stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress" (citations omitted).
A brief overview of both laws guides our
Federal overtime law. Congress
enacted the Federal overtime law in 1938 "to protect workers
. . . by establishing [F]ederal minimum wage, maximum hour, and overtime
guarantees that could not be avoided through contract." Knepper, 675 F.3d at 253-254. It aimed "to guarantee compensation for
all work or employment engaged in by employees covered by the [FLSA]"
(alteration and citation omitted). Reich
v. New York City Transit Auth., 45 F.3d 646, 648-649 (2d Cir. 1995).
The FLSA "provides an unusually
elaborate enforcement scheme."
Anderson, 508 F.3d at 192, quoting Kendall v. Chesapeake, 174 F.3d 437,
443 (4th Cir. 1999). It authorizes
workers to file private actions against employers, in State or Federal
court, to recover unpaid overtime wages, liquidated damages in an additional
equal amount, and costs and attorney's fees.
29 U.S.C. § 216(b). An employer
may escape liquidated damages by showing to the court's satisfaction that it
acted in good faith and had a reasonable ground for believing that it did not
violate the FLSA. See 29 U.S.C.
§ 260. A claim for unpaid overtime
brought under the Federal overtime law is subject to a two-year statute of
limitations period, unless the claim arises from "a willful
violation," in which case a three-year limitations period applies. See 29 U.S.C. § 255(a); Anderson, supra.
The FLSA also authorizes criminal
penalties for willful violations. 29
U.S.C. § 216(a). Significantly, the FLSA mandates that an employee's right
of action "shall terminate upon the filing of a complaint by the Secretary
of Labor." 29 U.S.C. § 216(b).
Wage act. The wage act aims to
"protect wage earners from the long-term detention of wages by unscrupulous
employers as well as [to] protect society from irresponsible employees who
receive and spend lump sum wages."
Melia v. Zenhire, Inc., 462 Mass. 164, 170 (2012), quoting Cumpata v.
Blue Cross Blue Shield of Mass., Inc., 113 F. Supp. 2d 164, 167 (D. Mass.
2000). It thus requires timely payment
of "wages earned." G. L.
c. 149, § 148. See Donis v.
American Waste Servs., LLC, 485 Mass. 257, 261 (2020), quoting G. L.
c. 149, § 148 ("the Wage Act requires that '[e]very person
having employees in his [or her] service shall pay . . . each such
employee the wages earned by him [or her]' within a prescribed time
The wage act provides its own enforcement
scheme. It empowers the Attorney General
to bring a civil action against wage act violators. See Melia, 462 Mass. at 170. Employers, including certain officers of
corporations, who violate the wage act are subject to civil and criminal
sanctions. See G. L. c. 148,
§ 149; G. L. c. 149, § 27C.
Pursuant to G. L. c. 149,
§ 150, employees also have a private right of action against employers who
violate the wage act. The remedies
available under the wage act are, in some instances, more generous than those
available under the FLSA. For example,
employers who violate the wage act are strictly liable. Also, successful employees are entitled to a
mandatory award of treble damages, as liquidated damages, for any lost wages
and other benefits. G. L. c. 149,
§ 150. Civil actions under the wage
act are subject to a three-year statute of limitations. G. L. c. 149, § 150.
Statutory construction in view of preemption concerns. From this overview, it is clear that allowing
an employee aggrieved by a violation of the Federal overtime law to elect State
wage act remedies for untimely payments of wages due solely under the FLSA
would present an "obstacle to the accomplishment and execution of the full
purposes and objectives" of the FLSA.
See Sawash v. Suburban Welders Supply Co., 407 Mass. 311, 314
(1990). Crucially, where the source of
the required overtime premium is exclusively pursuant to the FLSA, the wage act
claims for untimely payments depend entirely on showing the employer violated
the FLSA; the employees "invoke [S]tate law only as the source of remedies
for the alleged FLSA violations."
Anderson, 508 F.3d at 193. The
timeliness claim under the wage act is based on the same proof, the same facts,
and the same underlying liability; there is "no basis for their [w]age
[a]ct claims other than this violation of" the FLSA. Donis, 485 Mass. at 265. See Anderson, supra.
In these circumstances, allowing the
plaintiffs to pursue wage act remedies for FLSA violations would amount to
circumvention of the remedy prescribed by Congress. As discussed supra, the FLSA enforcement
scheme for Federal overtime violations permits, at most, double damages, and
employers may avoid such damages if they can establish, to the court's
satisfaction, that they acted in good faith and upon a reasonable basis. Actions under the FLSA generally must be
brought within the two-year limitations period, and the Secretary of Labor can
step in to police employers' violations, which in turn forecloses a private
enforcement action. By contrast, under
the wage act, employers are strictly liable and assessed mandatory treble
damages for violations. It provides a
three-year statute of limitations and has no provision for the treatment of
private actions upon a Federal agency's enforcement decisions.
Indeed, while Federal "courts are all
over the map on whether plaintiffs may bring [S]tate law claims in addition to
FLSA claims for the same conduct, . . . [t]he common thread is
this: When the FLSA provides a remedial
measure, it conflicts with similar [S]tate law causes of action and thus preempts
them; when the FLSA does not provide a remedial measure, there is no
preemption." Aldridge, 990 F.3d at
872. See, e.g., id. at 876 (concluding
FLSA preempts redundant State law negligence, conversion, and other tort-based
claims, and stating that plaintiffs "may not sue simultaneously under both
[S]tate law and the FLSA . . . if [S]tate law does not independently
provide for such a cause of action"); Anderson, 508 F.3d at 194 (finding
that FLSA preempted State contract, negligence, and fraud claims that were
merely duplicative of FLSA-based claims); Fuller vs. Wyndham Vacation Resorts,
Inc., U.S. Dist. Ct., No. 4:16-cv-1476 (D.S.C. July 12, 2016) (concluding that
because plaintiff's causes of action for minimum wage and overtime arise solely
out of FLSA, duplicative State claims were preempted; "in order for
Plaintiff's [wage law] claim to survive Defendant's motion to dismiss, she must
have alleged that Defendant did more than violate the FLSA"); Moeck vs.
Gray Supply Corp., U.S. Dist. Ct., No. 03-1950 (D.N.J. Jan. 6, 2006) (holding
State fraud and misrepresentation claims were preempted by FLSA, because
"claims directly covered by the FLSA [such as overtime], must be brought
under the FLSA").
To avoid this conflict, we conclude that
where, as here, the plaintiffs' sole claim for overtime wages rests on the
FLSA, they are limited to the remedies provided under the FLSA. See Wright's Case, 486 Mass. at 108. Thus, the trial judge's trebling of damages
pursuant to the wage act was error, and a determination of the appropriate
damages under the Federal overtime law is necessary.
Day rate. Rice Barn next
challenges the trial judge's instruction that the amount of overtime wages owed
to the plaintiffs is calculated, inter alia, by multiplying their regular rate
by one and one-half. We review the
methodology of computing overtime wages de novo. See Plymouth Retirement Bd. v. Contributory
Retirement Appeal Bd., 483 Mass. 600, 603-604 (2019). See also Dacar v. Saybolt, L.P., 914 F.3d 917,
924 (5th Cir. 2018).
The FLSA imposes an "absolute
duty" on employers to pay nonexempt employees subject to the statute
"'at a rate not less than one and one half times the regular rate' at
which employed" for all hours worked over forty in a week. George Lawley & Son Corp. v. South, 140
F.2d 439, 442 (1st Cir. 1944), quoting 29 U.S.C. § 207. See Lalli v. General Nutrition Ctrs., Inc.,
814 F.3d 1, 2 (1st Cir. 2016), quoting 29 U.S.C. § 207(a)(1). The first step in the determination of the
overtime wages due is the determination of the "regular rate." The regular rate "refers to the hourly
rate actually paid the employee for the normal, non-overtime workweek for which
he [or she] is employed." Walling
v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945). The regular rate is an "actual
fact. Once the parties have decided upon
the amount of wages and the mode of payment the determination of the regular rate
becomes a matter of mathematical computation." Id. at 424-425.
Where an employer pays an employee an
hourly rate, the regular rate generally is the hourly rate. 29 C.F.R. § 778.110. The FLSA, however, does not require
compensation to be based on an hourly rate; instead, earnings may be determined
on another basis, such as a piece rate, day rate, salary, or commission. 29 C.F.R. § 778.109. In such cases, however, the regular rate must
nevertheless be expressed in terms of an hourly rate; thus, the quotient that
is the "rate per hour" must be derived mathematically. Id. Conveniently,
the Federal regulations set forth examples detailing the necessary calculations
for certain scenarios.
Rice Barn contends that because the
plaintiffs ostensibly were paid a daily rate for each day worked, the
outstanding overtime wages owed to the plaintiffs fall within the illustrative
example codified in 29 C.F.R. § 778.112.
Section 778.112 applies to employees who are paid "a flat sum for a
day's work . . . without regard to the number of hours worked in the
day . . . and [who] receive no other form of compensation for
services." 29 C.F.R.
§ 778.112. See Dufrene v.
Browning-Ferris, Inc., 207 F.3d 264, 266 (5th Cir. 2000) (describing day rate
employees as those employees "guaranteed a day's pay, regardless of the
number of hours worked that day").
Where an employer's payment methodology falls within § 778.112, the
"regular rate is determined by totaling all the sums received at such day
rates . . . in the workweek and dividing by the total hours actually
worked." 29 C.F.R. § 778.112. The employee "is then entitled to extra
half-time pay at this rate for all hours worked in excess of [forty] in the
The record does not support Rice Barn's
contention that the plaintiffs were paid a flat sum for a day's work regardless
of the hours the plaintiffs actually worked in a day. Rather, the testimony and other evidence
showed that the plaintiffs' day rate was offset by the hours they were absent
from work during the workday, and their wages were halved when the restaurant
was open for dinner only. See, e.g.,
Thomas vs. Waste Pro USA, Inc., U.S. Dist. Ct., Case No. 8:17-CV-2254-T-36CPT
(M.D. Fla. Sept. 30, 2019) ("To the extent that [employer] would pay
[employees] only the half day rate if their daily task took less than four
hours, instead of the full day rate for their daily task, the Court finds that
this is not consistent with paying a day rate, or compliant with the
FLSA"); Turner v. BFI Waste Servs., LLC, 268 F. Supp. 3d 831, 838 (D.S.C.
2017) (because employee was "not paid the day rate for a partial day of
work, it is clear that [employee] was not a day-rate employee"); Solis v. Hooglands Nursery, LLC, 372 Fed.
Appx. 528, 529 (5th Cir. 2010) (per curiam) (where employees' wages "were
reduced when the employees worked less than a full day," employer did not
have valid day rate plan under 29 C.F.R. § 778.112). Accordingly, Rice Barn's payment scheme does
not fall within the exemplary day rate scheme set forth in 29 C.F.R.
Given the hybrid pay structure utilized by
Rice Barn, the plaintiffs' regular rate -- their rate per hour -- must be
computed so as to allow calculation of the overtime wages due in view of that
regular rate. See Serrano v. Republic
Servs., Inc., 227 F. Supp. 3d 768, 771 (S.D. Tex. 2017), quoting 29 C.F.R. §
778.109 ("[T]he FLSA does not prohibit particular pay structures. It merely requires that they be properly
interpreted for minimum wage and overtime calculations. And the regulations 'give some examples of
the proper method of determining the regular rate of pay in particular
instances'"). The numerator of the
rate per hour quotient is defined by the FLSA "to include all remuneration
for employment paid to . . . the employee" for a given week
subject to enumerated exceptions not applicable here. 29 U.S.C. § 207(e). See Walling, 325 U.S. at 424 ("The
regular rate by its very nature must reflect all payments which the parties
have agreed shall be received regularly during the workweek
. . ."). Significantly,
however, the statute does not set forth the divisor required to calculate the
regular rate. Instead, the divisor has
been defined by regulation and case law, which provide that the regular rate
"is determined by dividing [the employee's] total remuneration for
employment . . . in any workweek by the total number of hours
actually worked by [the employee] in that workweek for which such compensation
was paid." 29 C.F.R.
§ 778.109. See Bay Ridge Operating
Co. v. Aaron, 334 U.S. 446, 464 (1948) ("We think the most reasonable
conclusion is that Congress intended the regular rate of pay to be found by
dividing the weekly compensation by the hours worked . . ."); Chavez v.
Albuquerque, 630 F.3d 1300, 1312-1313 (10th Cir. 2011) ("proper divisor is
hours worked" in workweek).
Rice Barn is correct that because the
calculation of the regular rate (as set forth in 29 C.F.R. § 778.109, supra)
was based on the employee's actual hours worked, including any hours over forty
that the plaintiffs worked, the plaintiffs effectively have already been
paid for a portion of the overtime wages due to them under the FLSA. As such, when calculating damages for failure
to pay overtime as required by the FLSA, the plaintiffs are entitled only to
the remaining "one-half" outstanding balance in the "time and
one-half" calculation. See,
e.g., Kliger vs. Liberty Saverite Supermkt., Inc., U.S. Dist. Ct., No.
17-CV-02520 (E.D.N.Y. Sept. 17, 2018) (plaintiff, who had already been paid
regular hourly rate for overtime hours, was owed only one-half times his
regular rate for all hours over forty).
Thus, the trial judge's instruction to multiply the regular rate by one
and one-half in calculating damages overcompensated the plaintiffs, effectively
giving the plaintiffs a windfall of two and one-half times their regular rate
for each overtime hour worked. "The
FLSA does not require this."
Turner, 268 F. Supp. 3d at 837 (rejecting argument "that the FLSA
requires that [employee] receive the regular rate for all hours worked and one
and one-half of the regular rate for overtime hours, [because] this would lead
to [employee] receiving two and one-half times his regular rate for overtime
hours"). For this reason, we remand
the matter to the trial court to reduce the damages award appropriately, using the
Plaintiffs' expert witness. We
need not dwell long on Rice Barn's objection to the trial judge's allowance of
expert testimony on the issue of damages.
It was not an abuse of discretion to allow the plaintiffs' expert to
supplement his report and to testify to the overtime wages owed in view of the
trial judge's adoption of Rice Barn's own position that the regular rate should
be calculated using the actual hours worked (rather than forty hours), and Rice
Barn suffered no prejudice. See Hammell
v. Shooshanian Eng'g Assocs., Inc., 73 Mass. App. Ct. 634, 638 (2009)
("The admissibility of belatedly disclosed expert opinion rests within the
sound discretion of the trial judge"); Resendes v. Boston Edison Co., 38
Mass. App. Ct. 344, 350 (1995), quoting Solimene v. B. Grauel & Co., KG,
399 Mass. 790, 799 (1987) ("The conduct and scope of discovery is within
the sound discretion of the judge," and it "will not be disturbed on
appeal absent a 'showing of prejudicial error resulting from an abuse of
discretion'"). The expert disclosed
his methodology prior to trial and conformed it to Rice Barn's own position and
the trial judge's adoption of the same, and Rice Barn took advantage of the
opportunity to cross-examine him.
Weight of the evidence. Rice Barn
also argues that the jury's verdict on the plaintiffs' damages is unsupported
by the weight of the evidence. We review
the evidence in the light most favorable to the jury verdict, assessing whether
"anywhere in the evidence, from whatever source derived, any combination
of circumstances could be found from which a reasonable inference could be
drawn in favor of the plaintiff."
Dobos v. Driscoll, 404 Mass. 634, 656, cert. denied, 493 U.S. 850
(1989), quoting Poirier v. Plymouth, 374 Mass. 206, 212 (1978).
Rice Barn's records of the plaintiffs'
working time were incomplete, at best, violating its duty to maintain such
records. See 29 U.S.C. § 211(c)
("Every employer . . . shall make, keep, and preserve such records
of the persons employed by [the employer] and of the wages, hours, and other
conditions and practices of employment maintained by [the employer], and shall
preserve such records for [prescribed] periods of time . . ."); Vitali v.
Reit Mgt. & Research, LLC, 88 Mass. App. Ct. 99, 109 (2015), quoting Kuebel
v. Black & Decker Inc., 643 F.3d 352, 363 (2d Cir. 2011) ("an
employer's duty under the FLSA to maintain accurate records of its employees'
hours is non-delegable"). In such
cases, "[t]he employer cannot be heard to complain that the damages lack
the exactness and precision of measurement that would be possible had [it] kept
records" in accordance with the FLSA.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 688 (1946),
superseded by statute on other grounds.
Instead, employees can rely on general testimony and estimates to show
the time they worked. Id. at 687-688.
The plaintiffs testified as to the hours
they worked on average, along with their job descriptions and tasks. Based on this evidence, the jury reasonably
could have approximated the plaintiffs' damages.
Conclusion. For the foregoing
reasons, the case is remanded for recalculation of damages consistent with this
 Thewakul Rueangjan and Thanyathon
 Doing business as Rice Barn.
 Chalermpol Intha.
 We acknowledge the amicus briefs filed
by the New England Legal Foundation and the Massachusetts Employment Lawyers
Association, Immigrant Worker Center Collaborative, Justice at Work, Matahari
Women Workers Center, Massachusetts Jobs with Justice, Fair Employment Project,
Inc., and Massachusetts AFL-CIO.
 Accordingly, the plaintiffs relied on
testimony and their own records to establish their hours, work
responsibilities, and wages.
 The restaurant was open to the public
for 44.5 hours every week, and the plaintiffs worked additional hours to
prepare for each shift and clean afterwards.
 Devaney rarely took a break during the
day, often eating her own meals while working.
 See 29 U.S.C. § 206; G. L. c. 151, §
1. The plaintiffs' minimum wage law
claims were not part of the trial for damages, and they are not raised on
 The State overtime law, G. L.
c. 151, § 1A, specifically exempts restaurant workers, like the
plaintiffs, from its provisions. The
wage act was modeled after the FLSA. See
Arias-Villano v. Chang & Sons Enters., Inc., 481 Mass. 625, 630
(2019). However, while the overtime
exemption for restaurant workers initially present in the FLSA was eliminated
in a 1977 amendment, Pub. L. No. 95-151, 91 Stat. 1245, 1252 (1977), the
Commonwealth has not yet followed suit.
Two bills currently pending in the Legislature, 2021 House Doc. No. 1960
and 2021 Senate Doc. No. 1225, would eliminate this exception.
 Contrary to the plaintiffs'
assertion, Rice Barn did not waive this argument. Rice Barn appealed from "all aspects of
the 'Amended Judgment on Jury Verdict,'" which included the motion judge's
partial grant of summary judgment on liability.
Nor was the argument waived by Rice Barn's acknowledgement in pretrial
filings that the motion judge had held it to be liable.
 See, e.g., Lambirth v. Advanced Auto,
Inc., 140 F. Supp. 3d 108, 111 (D. Mass. 2015), quoting Black's Law Dictionary
1716 (9th ed. 2009) ("wage" includes "every form of remuneration
payable for a given period to an individual for personal services, including
salaries . . . and any similar advantage received from the
employer"). See Tze-Kit Mui v.
Massachusetts Port Auth., 478 Mass. 710, 712 (2018), quoting Water Dep't of
Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744 (2010)
("the 'principal source of insight into legislative intent'" is
"the plain language of the statute").
 The cases rely on the oft
acknowledged legislative intent of the wage act "to prevent the
unreasonable detention of wages."
Lipsitt v. Plaud, 466 Mass. 240, 245 (2013), quoting Melia v. Zenhire,
Inc., 462 Mass. 164, 170 (2012). See
Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass.
745, 749 (2006), quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934) ("a
statute must be interpreted according to the intent of the Legislature
ascertained from all its words construed by the ordinary and approved usage of
the language, considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to be accomplished,
to the end that the purpose of its framers may be effectuated"). See, e.g., Li v. Foolun, Inc., 273 F. Supp.
3d 289, 292 (D. Mass. 2017) ("A failure to pay overtime wages under the
FLSA is also a violation of the [w]age [a]ct"); Lambirth, 140 F. Supp. 3d
at 111 (there is "no indication that [the wage act] was meant to exclude
overtime wages" required under FLSA); Carroca vs. All Star Enters. &
Collision Ctr., Inc., U.S. Dist. Ct., No. 12-11202-DJC (D. Mass. July 10, 2013)
("Defendants are liable under [the wage act] where they did not pay all of
'the wages earned by [employee]' within the statutory pay period,"
including overtime wages owed under FLSA).
 Under the supremacy clause, U.S.
Const. art. VI, cl. 2, "[F]ederal statutes and regulations properly
enacted and promulgated can nullify conflicting [S]tate or local actions"
(citation omitted). Anderson v. Sara Lee
Corp., 508 F.3d 181, 191 (4th Cir. 2007).
Conflicts between Federal and State laws, where they exist, are governed
by the principles of preemption. See,
e.g., Louisiana Pub. Serv. Comm'n v. Federal Communications Comm'n, 476 U.S.
355, 368 (1986); Roma, III, Ltd. v. Board of Appeals of Rockport, 478 Mass.
580, 587 (2018).
 "The purpose of Congress is
. . . the 'ultimate touchstone' of a preemption analysis." Anderson, 508 F.3d at 192, quoting Cipollone
v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).
 See 29 U.S.C. § 207, discussed
 Corporate officers with
"operational control of a corporation's covered enterprise" may be
deemed "employer[s] along with the corporation, jointly and severally
liable under the FLSA for unpaid wages."
Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983).
 While our decision in Donis concerned
a conflict between two State laws (as opposed to a potential conflict between
Federal and State laws), it provides a useful analogue. There, the "central thrust" of the
employees' wage act claims for untimely payment of wages earned was the
substantive right to payments established by the prevailing wage act,
"which itself already provides its own remedy." Donis, 485 Mass. at 265. Because the two acts provided
"conflicting mechanisms to recover the same underpayment of wages,"
we saw "no reason why a plaintiff should be able to evade procedural
limitations that the Legislature ha[d] adopted [under the prevailing wage act],
simply by stating a duplicative statutory claim [under the wage
act]." Id. at 267, 268. Similarly, here, where the sole basis for the
employees' claim is a violation of the Federal overtime law, allowing them to
proceed under the wage act would vitiate Congress's decision to create its own
enforcement scheme under the FLSA.
 Some of these cases concern Federal
preemption of State common-law claims; however, we have previously acknowledged
that there is no basis to treat State statutory claims any differently when
analyzing whether an actual conflict exists.
See Donis, 485 Mass. at 268.
 Contrary to the plaintiffs' argument,
Rice Barn preserved this objection.
Prior to trial, Rice Barn submitted a proposed jury instruction setting
forth its position that one-half was the proper multiplier for the determination
of the overtime wages due to the plaintiffs.
Rice Barn also objected to the use of the one and one-half multiplier
during trial. In considering Rice Barn's
position, the trial judge expressly stated his understanding that regardless of
his decision, the issue would likely be appealed. See Flood v. Southland Corp., 416 Mass. 62,
67 (1993) ("there can be circumstances where the request [for a jury
instruction], the pretrial ruling, and the objection to the ruling are so
explicit that a postcharge objection need not be made").
 If, instead, the divisor were forty
hours, then the regular rate would only include the employee's compensation for
the first forty hours during the workweek.
However, the use of forty hours as the divisor is not supported by the
"actual fact[s]" of the employment relationship in the present case,
see Walling, 325 U.S. at 424, and, in any event, is not what is prescribed by
the regulations or applicable Federal case law.
 A simplified mathematical example is
illustrative. If an employee is paid
$600 per week and works fifty hours per week, her regular rate is twelve
dollars per hour ($600 divided by fifty hours actually worked in a week). The employee's overtime rate is eighteen
dollars per hour (one and one-half times the employee's regular rate of twelve
dollars). The total renumeration to
which the employee is entitled under the FLSA is $660, which is derived by one
of two equivalent methods.
The employer can pay the employee the
regular rate (twelve dollars) for nonovertime hours (forty hours), resulting in
$480 per workweek in regular wages, and one and one-half the regular rate
(eighteen dollars) for overtime hours (ten hours, which is the number of hours
in excess of forty hours that the employee worked per week), resulting in an
additional $180 per workweek in overtime wages.
In total, the employee would receive $660 ($480 in regular wages plus
$180 in overtime wages).
Alternatively, the employer can pay the
employee the regular rate (twelve dollars per hour) for all hours worked (fifty
hours) plus an additional one-half the regular rate (six dollars, which is
one-half times twelve dollars) for overtime hours (ten hours, which is the
number of hours in excess of forty hours that the employee worked per week) to
arrive at the same renumeration owed to the plaintiff, $660. Accord Chavez, 630 F.3d at 1313 ("The
same result is achieved if the [employer] pays straight time for all hours and
an additional one-half straight time on overtime hours, or if the [employer]
pays straight time for nonovertime hours and one and one-half straight time on
overtime hours"). Under either
scenario, because the employee was already paid $600, the employee's damages
(prior to the addition of any liquidated damages) are sixty dollars.
In this case, however, the trial judge
improperly mixed these two methods, resulting in the plaintiffs receiving two
and one-half times their regular rate for overtime hours. Specifically, the plaintiffs already received
their regular rate for all hours worked, including overtime hours (as in the
second scenario above). The trial judge,
however, instructed the jury to use the one and one-half multiplier (as in the
first scenario above) to calculate the overtime wages.
Using the numbers from our example, the
hypothetical employee already received $600 in wages during the workweek, $120
of which were attributable to overtime hours (twelve dollars times ten hours of
overtime). The trial judge's instruction
would result in an additional overtime compensation of $180 (or eighteen
dollars per hour times ten hours of overtime).
Thus, in the example, the employee would get a total renumeration of
$600 plus $180, or $780, rather than the $660 owed under the FLSA. This was error. As this example shows, the employee received
$300 ($120 plus $180) for the ten overtime hours; this resulted in an overtime
rate of thirty dollars per hour, or two and one-half times the employee's
regular rate of twelve dollars per hour instead of the eighteen per hour
required under the FLSA.
 Rice Barn's further objection to the
expert's testimony, on the basis that it was unnecessary, was not raised. Indeed, when asked, Rice Barn's counsel
specifically said, "I'm not questioning that." Accordingly, the objection is waived. See Fishman v. Brooks, 396 Mass. 643, 649
 We deny the plaintiffs' request for
appellate costs and attorney's fees, because the plaintiffs are not the
prevailing party on appeal. See
G. L. c. 149, § 150.