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LVD Staffing, Inc. v. State

Superior Court of Rhode Island, Providence

April 10, 2018

LVD STAFFING, INC., d/b/a EXPRESS EMPLOYMENT PROFESSIONALS
v.
STATE OF RHODE ISLAND, DEPARTMENT OF LABOR AND TRAINING, DIVISION OF LABOR STANDARDS, by and through its Director, CHARLES J. FOGARTY, and CAROLYN B. CHARNLEY

          For Plaintiff: Craig J. Watkinson, Esq.

          For Defendant: Richard J. Savage, Esq.; Bernard P. Healy, Esq.

          DECISION

          K. RODGERS, MAGISTRATE JUDGE.

         This 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.

         Jurisdiction 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.

         I

         Facts and Travel

         On or 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.[1] 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.

         The 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"[2] 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.).

         Thereafter, Charnley worked with Express from September 22, 2009[3] 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.

         Charnley 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.[4] 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."[5]

         Express 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.

         II

         Standard ...


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