Case 2:19-cv-19003-SRC-CLW Document 58 Filed 09/03/20 Page 1 of 13 PageID: 712
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`NOT FOR PUBLICATION
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`JOSE ORTIZ, individually and on behalf of
`all others similarly situated,
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`v.
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`GOYA FOODS, INC., et al.,
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`CHESLER, District Judge
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`Civil Action No. 19-19003 (SRC)
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`OPINION
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`Plaintiff,
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`Defendants.
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`This matter comes before the Court on the motion by Defendants Goya Foods, Inc.
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`(“Goya”) and A.N.E. Services, Inc. (“A.N.E.”) (collectively, “Defendants”) to dismiss the First
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`Amended Complaint (“Amended Complaint”) pursuant to Federal Rule of Civil Procedure
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`12(b)(6). Plaintiffs Jose Ortiz, Saul Hernandez, and Pedro Urena (“Plaintiffs”) have opposed the
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`motion. The Court has considered the parties’ submissions. For the reasons that follow, the
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`motion to dismiss will be denied.
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`I.
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`BACKGROUND
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`This is an action to recover allegedly unpaid wages. The Court summarized the facts
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`giving rise to this lawsuit in its Opinion of April 3, 2020. In the accompanying Order, the Court
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`dismissed the Complaint for failure to state a claim under New Jersey’s Wage and Hour Law but
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`also gave leave to amend, to add two parties as Plaintiffs and to permit Plaintiffs to assert a claim
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`under the Pennsylvania Wage Payment and Collection Law. As it writes this Opinion only for
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`the parties, the Court refers them to the April 3, 2020 Opinion for general background. Here, the
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`Court will focus on the allegations and claims of the Amended Complaint.
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`According to the Amended Complaint, Plaintiffs are residents of Pennsylvania who
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`maintain sales routes in that state to sell and distribute Defendants’ Goya Foods products to
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`retailers and other buyers. Each Plaintiff performs this work for Goya and receives compensation
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`according to some substantially similar version of a contract known as the “Broker Agreement.”
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`The Broker Agreement, according to the Amended Complaint, sets the non-negotiable terms of
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`the working relationship between the parties. The Broker Agreement provides that Plaintiffs are
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`independent contractors and expressly disclaims any employer-employee relationship. (Milstrey
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`Decl., Ex. A, B an C at ¶ 4(a)).
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`Plaintiffs allege that, in spite of the Broker Agreement’s characterization, Plaintiffs and
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`other similarly situated salespeople in fact function as employees of Goya. According to the
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`Amended Complaint, Defendants retain and exercise pervasive control over the work performed
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`by Plaintiffs. It alleges:
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`The sales representatives are assigned routes to be followed each day.
`Sales representatives are required to attend periodic meetings in at [sic]
`Corporate Office in Jersey City and Pedricktown, New Jersey for which
`they are not paid. Sales representatives are required to wear Goya-labeled
`apparel. Sales representatives are required to work shifts that are pre-
`determined by Defendants and are required to work on holidays. Sales
`representatives were provided two weeks off vacation, paid by
`Defendants. Defendants unilaterally altered sales representatives[’] routes.
`Defendants unilaterally set the compensation to be paid to the sales
`representatives.
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`(Am. Compl., ¶ 39.) Additionally, the Amended Complaint alleges that Defendants determine
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`the prices the sales representatives may charge for products, exercise sole authority over the
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`customers that may be maintained and require their sales representatives to sell Goya’s products
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`exclusively. (Am. Compl., ¶¶ 45-59.) According to Plaintiffs, their work as sales representatives
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`is an integral part of Goya’s business.
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`Plaintiffs claim they have been harmed by Defendants’ failure to pay them the wages
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`they are owed under their agreement. The Broker Agreement bases compensation on a
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`commission structure. While the Broker Agreement makes no reference to “wages” to be paid
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`for the sales work, Plaintiffs aver that their “earned commissions” in reality constitute “wages
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`[which are] direct compensation earned and paid on account of the sales representatives’ work.”
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`(Id., ¶ 32.) Plaintiffs allege that a portion of these earned commissions or wages (to borrow the
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`term from the Amended Complaint) is unlawfully withheld. The Amended Complaint sets forth
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`as follows:
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`(Id., ¶ 33.)
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`Defendants make deductions from the wages of Plaintiffs and the
`proposed class that are illegal under Pennsylvania law. These include
`deductions for Workers’ Compensation insurance, bad/uncollected
`invoices and a reserve account.
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`Based on the foregoing, the Amended Complaint claims that Defendants have violated
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`the Pennsylvania Wage Payment and Collection Law, 43 P.S. § 260.1, et seq., and pleads a
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`single count for recovery of unpaid wages, asserted by the Plaintiffs individually and on behalf
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`of a putative class of similarly situated sales representatives.
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`II.
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`A.
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`DISCUSSION
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`Legal Standard
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`To withstand a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
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`for failure to state a claim upon which relief may be granted, the complaint must contain
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`“sufficient factual allegations, accepted as true, to ‘state a claim for relief that is plausible on its
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`face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S.
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`544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
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`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Id. (citing Twombly, 550 U.S. at 556). On a Rule 12(b)(6) motion, the Court must
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`accept as true the well-pleaded facts of a complaint and any reasonable inference that may be
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`drawn from those facts but need not credit conclusory statements couched as factual allegations.
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`Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by
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`mere conclusory statements, do not suffice.”). The issue before the Court on a Rule 12(b)(6)
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`motion to dismiss “is not whether plaintiff will ultimately prevail but whether the claimant is
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`entitled to offer evidence in support of the claims.” In re Burlington Coat Factory Sec. Litig., 114
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`F.3d 1410, 1420 (3d Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
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`A district court ruling on a motion to dismiss generally “may not consider matters
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`extraneous to the pleadings.” Id. at 1426. However, the court may properly consider documents
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`that form the basis of a claim and documents that are “integral to or explicitly relied upon in the
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`complaint.” Id. (citations omitted).
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`B.
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`Pennsylvania Wage Payment and Collection Law
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`The sole claim for relief in the Amended Complaint arises under the Pennsylvania Wage
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`Payment and Collection Law (“PWPCL”), which was enacted “to provide employees a means of
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`enforcing payment of wages and compensation withheld by an employer.” Moser v.
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`Papadopoulos, 2011 WL 2441304, at *3 (E.D.Pa. June 16, 2011) (quoting Shaer v. Orthopaedic
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`Surgeons of Cent. Pa., Ltd., 938 A.2d 457, 464 (Pa. Super. Ct. 2007)). Plaintiffs rely on the
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`PWPCL provision requiring employers to pay their employees all wages earned on regular
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`paydays. See 43 P.S. § 260.3(a). The provision, in relevant part, states as follows:
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`Wages other than fringe benefits and wage supplements. Every employer
`shall pay all wages, other than fringe benefits and wage supplements, due
`to his employes [sic] on regular paydays designated in advance by the
`employer. Overtime wages may be considered as wages earned and
`payable in the next succeeding pay period. All wages, other than fringe
`benefits and wage supplements, earned in any pay period shall be due and
`payable within the number of days after the expiration of said pay period
`as provided in a written contract of employment or, if not so specified,
`within the standard time lapse customary in the trade or within 15 days
`from the end of such pay period.
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`Id. “Wages” for purposes of the PWPCL include “all earnings of an employee, regardless of
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`whether determined on time, task, piece, commission or other method of calculation” and “fringe
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`benefits or wage supplements,” such as bonuses or “any other amount to be paid pursuant to an
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`agreement to the employee . . ..” 43 P.S. § 260.2a. The statute authorizes employees “to whom
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`any type of wages is payable” to institute a civil action “to recover unpaid wages.” 43 P.S. §
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`209(a) and (b).
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`The PWPCL itself does not entitle an employee to any prescribed wage or minimum
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`standard of compensation. Numerous state and federal cases have held that a PWPCL claim for
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`unpaid wages limits a plaintiff to the terms of the agreement between employer and employee
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`concerning compensation. The Supreme Court of Pennsylvania stated, albeit in dicta, as follows:
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`“The Wage Payment and Collection Law provides employees a statutory remedy to recover
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`wages and other benefits that are contractually due to them.” Oberneder v. Link Computer Corp.,
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`696 A.2d 148, 150 (Pa. 1997) (citing Killian v. McColloch, 850 F. Supp. 1239, 1255 (E.D.Pa.
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`1994)). The Third Circuit Court of Appeals, applying Pennsylvania law, has consistently
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`emphasized that the “WPCL does not create a right to compensation. Rather, it provides a
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`statutory remedy when the employer breaches a contractual obligation to pay earned wages. The
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`contract between the parties governs in determining whether specific wages are earned.” Weldon
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`v. Kraft, Inc., 896 F.2d 793, 801 (3d Cir. 1990) (citations omitted); see also Livi v. Hyatt Hotels
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`Corp., 751 F. App’x 208, 212 n.9 (3d Cir. 2018) (“Pennsylvania’s WPCL provides a civil
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`remedy for an employee to recover wages to which she is entitled. It does not independently
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`establish an entitlement to any particular wages.”); De Asencio v. Tyson Foods, Inc., 342 F.3d
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`301, 309 (3d Cir. 2003) (following Weldon in observing that, while the PWPCL provides a
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`remedy, entitlement to compensation must, at a minimum, flow from an implied oral contract, in
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`the absence of a formal agreement). District courts in the Third Circuit have similarly applied
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`contractual bounds to the availability and extent of recovery under the PWPCL. See, e.g. Livi v.
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`Hyatt Hotels Corp., 2017 WL 5128173, at *15 (E.D.Pa. Nov. 6, 2017) (granting summary
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`judgment to the defendant on the PWPCL claim because the plaintiff, which had argued it was a
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`third-party beneficiary, could not demonstrate that it had a contractual entitlement to payment for
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`its services), aff’d 751 F. App’x 208 (3d Cir. 2018); McGuckin v. Brandywine Realty Tr., 185 F.
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`Supp. 3d 600, 606 (E.D.Pa. 2016) (holding that a claim under the PWPCL requires an employee
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`to aver “contractual entitlement to compensation from wages and a failure to pay that
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`compensation”); Lehman v. Legg Mason, 532 F.Supp.2d 726, 733 (M.D.Pa. 2007)
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`(“Accordingly, a prerequisite for relief under the WPCL is a contract between employee and
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`employer that sets forth their agreement on wages to be paid.”). Thus, to state a plausible
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`PWPCL claim, a plaintiff employee must allege facts demonstrating that he or she was deprived
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`of compensation the employee has earned according to the terms of his or her contract with the
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`defendant employer. Bansept v. G & M Automotive, 434 F. Supp. 3d 253, 260 (E.D.Pa. 2020);
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`see also Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 716 (Pa. Super. Ct. 2005) (“To
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`present a [PWPCL] wage-payment claim, [the plaintiff] ha[s] to aver that he was contractually
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`entitled to compensation from wages and that he was not paid.”).
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`Defendants argue that Plaintiffs have failed to set forth a plausible claim under the
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`PWPCL for two reasons: (1) the Broker Agreement, the only contract referenced in the Amended
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`Complaint, governs the working relationship between Goya and Plaintiffs and is, by its terms,
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`not an employment contract that entitles Plaintiffs to wages and (2) even if, for purposes of this
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`motion, the Broker Agreement is assumed to constitute the prerequisite employment contract on
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`which a PWPCL must be based, the claim nevertheless fails because Plaintiffs have not alleged
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`that they have been deprived of any compensation owed to them under the terms of that contract.
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`The first argument elides the central dispute of this case: that Plaintiffs were treated as
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`employees who essentially earned wages based on their sales performance but were deprived of
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`some portion that wage. The premise of the PWPCL claim is that, in spite of the Broker
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`Agreement’s labels and terminology, which cast Plaintiffs as independent contractors, Plaintiffs
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`in fact acted as employees of Goya and therefore earned wages, in the form of commissions
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`based on sales. The PWPCL does not define the term “employee.” However, it does prohibit
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`parties from using contractual terms to avoid or negate its protections. The PWPCL provides that
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`“[n]o provision of this act shall in any way be contravened or set aside by private agreement.” 43
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`P.S. § 260.7. The language of the Broker Agreement is not dispositive in defining the parties’
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`employment relationship. Cf. Zaragoza v. BASF Const. Chem., LLC, 2009 WL 260772 at *4
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`(E.D.Pa. Feb. 3, 2009) (holding, in the context of a personal injury suit, that “[i]t is well settled
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`under Pennsylvania law that parties are not bound by their characterization of the employee-
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`employer relationship.”). Thus, Defendants’ contention that the PWPCL claim fails because the
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`Broker Agreement expressly disclaims an employer-employee relationship and provides for
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`compensation in the form of commissions, not wages, is unavailing.
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`Of course, it is not enough for Plaintiffs to make bald assertions that they are, in practice,
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`employees of Goya. They must come forward with concrete factual allegations indicating that
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`they functioned as employees and were treated as such by Defendants. Pennsylvania courts have
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`applied a multi-factor test to determine whether an individual is an employee within the meaning
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`of the PWPCL. Razak v. Uber Techs., Inc., 2016 WL 5874822, at *8 (E.D. Pa. Oct. 7, 2016).
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`These factors include the following:
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`the control of the manner that work is to be done; responsibility for result
`only; terms of agreement between the parties; the nature of the work or
`occupation; the skill required for performance; whether one employed is
`engaged in a distinct occupation or business; which party supplies the
`tools; whether payment is by the time or by the job; whether the work is
`part of the regular business of the employer, and the right to terminate the
`employment at any time.
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`Id. (quoting Morin v. Brassington, 871 A.2d 844, 850 (Pa. Super. Ct. 2005)). The “paramount”
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`factor, the courts have held, is the “right to control the manner in which the work is
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`accomplished.” Id. Applying these factors, the Court finds that the Amended Complaint pleads
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`detailed factual allegations that, assumed to be true, more than adequately establish that
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`Plaintiffs’ work and business operations were subject to substantial control by Defendants.
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`Plaintiffs have made a colorable prima facie demonstration that they are Goya employees.
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`Defendants’ second argument, however, merits close examination. As Defendants have
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`indicated, PWPCL Section 260.3 merely provides a mechanism to recover wages that are
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`contractually due to an employee. Plaintiffs, they argue, fail to state a plausible PWPCL claim
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`because they fail to allege that they have not received any compensation to which they are
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`entitled by contract. Defendants acknowledge that Plaintiffs’ claim rests on the theory that
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`deductions taken from the Plaintiffs’ respective gross sales commissions have unlawfully
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`reduced their compensation. Defendants point out that the Broker Agreement is the only contract
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`identified in the Amended Complaint and thus sets the bounds of Plaintiffs’ entitlement to
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`wages. They emphasize that the Broker Agreement expressly authorizes the complained-of
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`conduct, that is, the deductions and withholdings from gross commissions, and only entitles
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`Plaintiffs to payment once those adjustments have been made. Thus, they argue, Plaintiffs have
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`not and cannot articulate how Defendants’ conduct and the compensation they have provided to
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`Plaintiffs violate the Broker Agreement.
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`In response, Plaintiffs maintain that their PWPCL claim is properly predicated on the
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`theory that the deductions called for by the Broker Agreement violate state Department of Labor
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`regulations, promulgated under the PWPCL, and other Pennsylvania labor laws, such as the
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`Workers Compensation Act. They explain that Defendants’ motion mischaracterizes this action
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`as one in which employees are claiming that amounts promised to them by contract have not
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`been paid. Rather, Plaintiffs contend, their PWPCL claim for recovery of wages stems the fact
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`that the Broker Agreement imposes terms which unlawfully deduct and withhold compensation
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`and thus results in a failure to pay Plaintiffs the full amount of wages they have earned. In sum,
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`Plaintiffs argue that Defendants have run afoul of PWPCL § 260.3 by reducing their gross
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`commissions in various ways not permitted by the statute’s implementing regulation.
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`As authority for their argument that amounts withheld from earnings can sustain a
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`PWPCL claim for unpaid wages, Plaintiffs rely primarily on the Superior Court of
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`Pennsylvania’s decision in Ressler v. Jones Motor Co. See 487 A.2d 424 (Pa. Super. Ct. 1985).
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`In that case, the appellate court reversed an order granting summary judgment to the defendant
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`employer on a PWPCL claim for recovery of amounts withheld from employee wages. Id. at
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`425. The withholdings were made in accordance with a written earnings plan, to which the
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`plaintiff employees had agreed. Id. First, the Ressler court found that the withholdings
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`constituted “deductions” and thus were subject to the PWPCL’s restrictions on permissible
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`deductions. Id. at 426. Next, the Ressler court went on to evaluate the claim under PWPCL §
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`260.3 and its implementing regulation, 34 Pa. Code § 9.1, which “sets forth those deductions
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`from wages authorized by law as promulgated by the Department of Labor and Industry.” Id. at
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`427. The regulation, the court noted, lists twelve specific wage deductions an employer may
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`make and also sets forth a catch-all provision for “other deductions authorized in writing by
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`employees as in the Discretion of the Department [of Labor] is proper and in conformity with the
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`intent and purpose of the Wage Payment and Collection Law . . ..” Id. at 428 (quoting 34 Pa.
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`Code § 9.1(13)). The Ressler court reasoned that in spite of the written agreement by the plaintiff
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`employees to be bound by the earnings plan, the subject wage deductions fell into the catch-all
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`category and were thus subject to the approval of the Department of Labor. Id. Because there
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`was an open question of fact regarding the Department of Labor’s approval of the deductions, the
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`court held that summary judgment on the PWPCL claim had been improperly granted. Id.; cf.
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`Levy v. Verizon Info. Svcs., Inc., 498 F. Supp. 2d 586, 602 (E.D.N.Y. 2007) (acknowledging,
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`based on Ressler, that “[a]ny deduction of earned wages not expressly authorized by law or
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`regulation runs afoul of 43 PS § 260.3” but dismissing the PWPCL claim based on unlawful
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`deductions because the complaint failed to allege that the wages plaintiffs claimed were owed
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`had been “earned” under the terms of the governing agreement).
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`Plaintiffs have indeed alleged that Defendants withheld various amounts from their
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`respective sales commissions and that these adjustments constituted unauthorized deductions,
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`thus depriving Plaintiffs of earned wages. The Court finds that, taken as true, the allegations of
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`the Amended Complaint suffice to establish that Defendants violated the PWPCL by reducing
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`wages earned by Plaintiffs in contravention of Section 260.3 and its implementing regulation, 34
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`Pa. Code § 9.1. The Court recognizes that Defendants have additionally argued that the PWPCL
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`claim nevertheless fails because the governing Broker Agreement does not support Plaintiffs’
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`position that gross commissions, without the adjustments Plaintiffs complain of, can be
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`considered the equivalent of earned wages. Defendants contend that, because the PWPCL only
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`entitles an employee to wages earned, per the terms of the Broker Agreement, Plaintiffs do not
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`earn any purported wages until after certain amounts are set aside from the gross sales
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`commission. The Court finds, however, that issues related to what amounts could be considered
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`wages and when such wages could be considered earned raise questions of fact which go beyond
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`the scope of this motion.
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`Finally, for the sake of completeness, the Court addresses Plaintiffs’ attempt to bolster
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`their claim by asserting that the Court can infer from the Amended Complaint that the parties
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`entered into an implied employment contract, for services rendered by Plaintiffs to Defendants in
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`selling and distributing Goya products in return for wages. Plaintiffs argue that, wholly apart
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`from the Broker Agreement, the PWPCL claim for unpaid wages can proceed based on such an
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`implied contract. Some courts, including the Third Circuit Court of Appeals, have indeed
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`recognized that a PWPCL claim may be viable based on an implied, oral contract between the
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`parties, rather than an express, written agreement. De Asencio, 342 F.3d at 309 (holding that
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`when “employees do not work under an employment contract or a collective bargaining
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`agreement, plaintiffs will have to establish the formation of an implied oral contract between [the
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`employer] and its employees” to assert a viable PWPCL claim); see also Braun v. Wal-Mart
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`Stores, Inc., 24 A.3d 875, 954 (Pa. Super. Ct. 2011) (“[A]bsent a formal employment contract or
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`collective bargaining agreement, an employee raising a WPCL claim would have to establish, at
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`a minimum, an implied oral contract between the employee and employer.”). The Court,
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`however, need not analyze these cases and their applicability to the case at bar. Neither the
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`existence of such an implied contract nor the terms that would potentially entitle Plaintiffs to
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`relief are pled in the Amended Complaint.
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`For the foregoing reasons, the Court concludes that the Amended Complaint withstands
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`the Rule 12(b)(6) motion to dismiss. Under the standard of Iqbal and Twombly, the allegations
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`are sufficient to permit Plaintiffs to proceed on their claim to recover wages under the PWPCL.
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`The Court, however, makes no determination concerning the merits of the claim. In the
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`foregoing analysis, it merely finds that Plaintiffs have pled sufficient factual allegations that
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`plausibly state that Plaintiffs are employees of Defendants, that the sales commissions under the
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`Broker Agreement constituted Plaintiffs’ wages, and that the wages earned were not paid in full,
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`as required by the PWPCL.
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`III. CONCLUSION
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`Defendants’ motion to dismiss the Amended Complaint will be denied. An appropriate
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`Order will be filed.
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`Dated: September 3, 2020
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` s/ Stanley R. Chesler ______
` STANLEY R. CHESLER, U.S.D.J.
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