Plaintiff: Craig J. Watkinson, Esq.
Defendant: Richard J. Savage, Esq.; Bernard P. Healy, Esq.
RODGERS, MAGISTRATE JUDGE.
matter is before the Court on Plaintiff LVD Staffing, Inc.,
d/b/a/ Express Employment Professionals' (Express) appeal
from a decision by a Department of Labor and Training hearing
officer (the DLT Decision) to award Appellee Carolyn B.
Charnley (Charnley) holiday and vacation compensation in the
amount of $792.00.
is pursuant to G.L. 1956 § 42-35-15. For the reasons
that follow, the DLT Decision is affirmed in part and
modified in part.
about March 5, 2011, Charnley and Bruce Day (Day) each filed
a complaint with the Department of Labor and Training's
Division of Labor Standards (the Division) alleging
non-payment of wages for holiday and vacation pay due at the
time of their respective separations from
Express. On September 23, 2011, hearing officer
Valentino D. Lombardi, Esquire (the Hearing Officer), as the
authorized representative of the Director of the Department
of Labor and Training, conducted a hearing in accordance with
G.L. 1956 § 28-14-19.
following facts were deduced at the hearing. LVD Staffing,
Inc. is a local franchise of Express, a national chain
providing staffing services. In December 2008, Charnley
interviewed with "Elaine" on behalf of Express, at
which time Elaine gave Charnley an employee handbook which
included an insert entitled "Holiday and Vacation
Pay." On the insert, "Holiday Pay" is followed
by a single asterisk which reads, "When your normal work
schedule is less than 8 hours per day, holiday and vacation
pay will be adjusted accordingly." "Vacation
Pay" is followed by double asterisks which reads,
"Benefits may vary at different locations."
According to Charnley's testimony, Elaine informed
Charnley that these pay provisions applied to her. Hr'g
Tr. 9-10, Sept. 23, 2011 (Hr'g Tr.).
Charnley worked with Express from September 22,
through March 3, 2011 and was placed at Wild Tree Herbs.
Hr'g Tr. 33. Charnley was assigned to one job during that
time and was ultimately hired by Wild Tree Herbs, resulting
in her separation from Express in March 2011. Charnley did
not receive any holiday or vacation pay during the time she
worked with Express. Charnley testified that she inquired
about holiday and vacation pay on a couple of occasions to
Maria Lopes, the Light Industrial Recruiter at Express.
Hr'g Tr. 13. Additionally, Charnley requested that Julie
Belanger, the manager and operator of Wild Tree Herbs, call
Express to address the holiday and vacation pay on
Charnley's behalf. Through those inquiries, Charnley was
first informed that holiday pay is only paid after one
thousand hours had been worked, and was later informed that
holiday pay was only available after 2,500 hours worked.
Hr'g Tr. 55. When Charnley ultimately separated from
Express, she spoke with Lilliana Dolan, the owner of the
local Express office, who informed Charnley that Express had
not paid holiday or vacation pay in two years due to the
state of the economy.
and Day both testified at the hearing, as did Maria Lopes and
Susan Esposito on behalf of Express. Unlike Charnley who
testified that she received and discussed the Holiday and
Vacation Pay insert during her December 2008 interview with
Express, Day testified that the Employee Handbook he received
during his interview with Express in 2010 did not include the
same insert, that he only saw the Holiday and Vacation Pay
insert when Charnley provided him a copy, and that he was
required to and did execute an acknowledgment that Express
would only pay him for shifts he actually worked. The Hearing
Officer found that Charnley was entitled to compensation for
her holiday and vacation time, but concluded that Day was not
entitled to similar pay. The Hearing Officer reasoned that based
upon the Holiday and Vacation Pay insert included in the
handbook which Charnley obtained in her December 2008
interview, she was entitled to holiday and vacation pay
consistent with the terms set forth therein. The Hearing
Officer explained that Express "presented no credible or
substantial testimonial or other evidence to dispute the
testimony of [Charnley]" that she had received a
document detailing holiday and vacation pay and discussed the
same with a representative of Express. See DLT
Decision 5. As such, the Hearing Officer declared that
"[i]t must be concluded that the terms of the Holiday
and Vacation Benefits flyer pertained to [Charnley's]
employment." Id. In considering her work
schedule, the Hearing Officer thereafter determined that
Charnley was "entitled to holiday pay for seven
holidays, New Year's Day 2010, Memorial Day 2010,
Independence Day 2010, Labor Day 2010, Christmas Day 2010 and
New Year's Day 2011."
appealed the DLT Decision on grounds that the Hearing Officer
erred in weighing the reliable, probative and substantial
evidence. Compl. ¶ 6. Express contends that the Hearing
Officer awarded Charnley holiday and vacation pay "based
solely on a [sic] Charnley's testimony she was promised
holiday and vacation pay precisely as stated in a Franchisor
produced handbook and flyer dated (01/08) and notwithstanding
language in close proximity that stated 'benefits may
vary by location.'" Appellant's Mem. 1.
Furthermore, Express argues that the DLT Decision granting
the award was "made notwithstanding the employer
provided tow [sic] credible witnesses who gave testimony that
LVD Staffing Inc. maintained a policy of no holiday pay and
no vacation pay." Id. In rendering the award,
Express contends the hearing officer improperly rejected the
testimony of Esposito and Lopes and instead relied solely on
Charnley's testimony. Id. at 11. Consequently,
Express now asks this Court to conclude that Express's
witnesses at the hearing were more credible than Charnley and
to reverse the DLT Decision.