A judge in the Business Litigation Session in Suffolk Superior Court has granted class certification and denied an employer summary judgment on an unpaid overtime claim brought on behalf of so-called Residential Energy Specialists employed by RISE Engineering.

Massachusetts Superior Court

SUMMARY: (court decision – opens in PDF)

“Darrin Duty, a former employee of Thielsch Engineering, Inc. d/b/a RISE Engineering (‘RISE’), brings this class action to recover unpaid overtime, which he contends RISE unlawfully failed to pay to him and to any other similarly situated Residential Energy Specialist (‘Specialist’) that RISE employed. The case is before me on RISE’s motion for summary judgment. RISE argues that plaintiff (and the others similarly situated Specialist) are exempt from overtime under the ‘outside salesman’ exception in G.L.c. 151, §1A. The case is also before me on plaintiff’s motion for class certification. For the following reasons, material disputes of facts compel me to deny the motion for summary judgment, but I certify the class. …

“In this instance, the question is not whether Specialists regularly report to or visit RISE’s office, but whether Specialists are, in fact, outside sales personnel; that is, whether their primary duty is making sales or obtaining orders or contracts for services. … In contrast to Jinks [v. Credico (USA), LLC], where it was ‘undisputed that Plaintiffs worked … as outside sales people,’ 2020 WL 1989278 at * 9, here there are material disputes of fact about whether Specialists are primarily sales personnel or if they primarily perform other functions. The disputes are sufficient to preclude entry of summary judgment. …

“Here, plaintiff has shouldered his burden to demonstrate that this case meets the requirements for class certification of all individuals who worked as a Specialist for RISE in Massachusetts since June 1, 2018, and who were not paid overtime for work over 40 hours. …”