CLEVELAND — Republican candidate for an Ohio US Senate seat Bernie Moreno recently dismissed the outcome of a Massachusetts lawsuit that he lost related to overtime wage theft, by making false claims about the result.
THE CLAIM
On January 23, 2024, Moreno made these claims on the Always Right Radio show with Bob Frantz:
"The Massachusetts case was an extreme lunatic judicial Supreme Court over there that overturned federal law. They made the ruling retroactive so that sales people’s overtime could not be deducted from their commission."
SOURCES
To VERIFY Moreno’s claims that the court overturned federal law, and it retroactively required something new and unexpected of employers, we looked at the following:
- Massachusetts court documents
- Massachusetts state regulations
- The federal Fair Labor Standards Act
- We also talked with labor and employment lawyer Joyce Goldstein.
THE RESEARCH
Moreno was referring to two different court cases in his claims. One is a lawsuit filed against Moreno in 2017, and the other is a separate Massachusetts Supreme Court ruling that Moreno was not a part of from 2019.
Moreno was sued in 2017 for failing to pay overtime wages to two car salespeople. This lawsuit was based on the 2015 Massachusetts state regulation 454 CMR 27.03(3). This regulation added the following language to the "overtime rate" definition: "Whether a nonexempt employee is paid on an hourly, piece work, salary, or any other basis, such payments shall not serve to compensate the employee for any portion of the overtime rate for hours worked over 40 in a work week." (We added the emphasis here.)
What that means is that the Massachusetts Department of Labor started requiring employers to pay workers separately for overtime hours, even if those employees earn commission.
Prior to 2015 in Massachusetts, under the federal Fair Labor Standards Act, if a worker earned commissions on sales, their employer could use those commission payments to cover any overtime wages earned, rather than paying them separately.
Ms. Goldstein explains how the 2015 Massachusetts regulation and the federal labor law work together on this topic: "The Fair Labor Standards Act, the federal labor law provides the floor and then states are permitted to require employers to do more than that, and in this case the state of Massachusetts did that."
While the 2017 lawsuit against Moreno was proceeding, a separate lawsuit was decided in 2019 by the Massachusetts Supreme Court. Moreno was not a part of this lawsuit, but before the lawsuit against him was decided, that court confirmed that employers must pay workers separately for overtime, even if those employees earn commission on sales, based on the 2015 state regulation.
THE ANSWER
Based on all of this, we can verify that Moreno’s claims about the outcome of the lawsuit against him are false.
First, the Massachusetts courts did not overturn federal law. The courts did not change any law. The courts affirmed the 2015 Massachusetts regulation, and confirmed how it interacts with previously existing federal law.
Second, nothing new and unexpected was retroactively required of employers, in either court’s verdict. Once the 2015 state regulation went into effect, employers were required to pay for overtime worked, even for workers who earn commission on sales.
ADDITIONAL CONTEXT
To add additional context here, Moreno was sanctioned by the court in the lawsuit against him for destroying overtime records that he was ordered to keep while the case moved forward.
Those records were destroyed in 2020, after the Massachusetts Supreme Court affirmed that workers who earn commission must be paid separately for overtime.
As punishment for destroying those records, the judge instructed the jury members that they could assume that the destroyed evidence would have hurt Moreno’s defense.
Moreno lost that lawsuit, and he was ultimately ordered to pay $416,160 to his former employees, after having been found liable for stolen overtime wages. He went on to settle more than a dozen similar lawsuits, before announcing his candidacy for Ohio’s US senate seat in 2023.
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