Stowell v. Action Moving & Storage, Inc. (2005-532)

2007 VT 46

[Filed 01-Jun-2007]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2007 VT 46

                                No. 2005-532


  Arthur Stowell                                 Supreme Court

                                                 On Appeal from
       v.                                        Chittenden Superior Court


  Action Moving & Storage, Inc.                  January Term, 2007


  Richard W. Norton, J.

  Thomas C. Nuovo of Bauer, Gravel, Farnham, Nuovo, Parker & Lang,
    Burlington, for  Plantiff-Appellant.

  Gary W. Lange of Swanson & Lange, LLP, Burlington, for Defendant-Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and 
            Morse, J. (Ret.),  Specially Assigned


       ¶  1.  DOOLEY, J.   Plaintiff Arthur Stowell appeals the superior
  court's order denying penalties and attorney's fees under 21 V.S.A. § 347,
  claiming his employer, defendant Action Moving and Storage, Inc.,
  improperly withheld commission payments in violation of § 342.  We affirm
  the court's order to the extent it held that commission payments are wages
  within the meaning of Vermont's wages-and-medium-of-payment law.   We
  reverse the court's order, however, to the extent it held that defendant
  did not violate § 342 and plaintiff was not entitled to penalties under §
  347.  We hold that plaintiff is entitled to double damages under § 347 and
  remand for a determination of costs and attorney's fees pursuant to that
  statute. 
   
       ¶  2.  The facts are as follows.  Defendant employed plaintiff as a
  truck driver from January to November 2002.  Plaintiff initially performed
  local hauling jobs, for which he was paid an hourly wage.  In April 2002,
  plaintiff began performing long-haul trucking jobs, for which he was paid
  by commission, until he voluntarily resigned in November 2002. 

       ¶  3.  In 2002, defendant was an agent of Atlas Van Lines, Inc.
  ("Atlas").  Atlas divided moving jobs between defendant and other agents
  and distributed the revenue accordingly.  After each move, Atlas provided
  defendant a moving-distribution sheet showing the amount of money paid each
  agent for each aspect of the job.  Upon receiving the moving-distribution
  sheet, defendant would determine the commission payment due plaintiff after
  subtracting advances and other expenses.  Defendant completed a driver's
  commission sheet each week which provided plaintiff with a running total of
  commission payments, advances, and expenses.

       ¶  4.  Plaintiff received expense and commission advances of $900 per
  week (FN1) and received the balance of the commission for each move about
  six weeks after the move was completed.  Defendant occasionally paid for
  fuel expenses and Federal Express shipping charges which were deducted from
  plaintiff's commission payments.  Plaintiff was also responsible for
  damages to the goods he shipped, and defendant held $1,000 of plaintiff's
  commission aside as a reserve for potential claims.  Plaintiff was entitled
  to the balance of the reserve when the claims period expired.  The superior
  court found the claims period was "several months." (FN2)  
                                                           
       ¶  5.  Plaintiff resigned in November 2002, and on December 6, 2002,
  alleged he was owed additional commission payments.  Defendant made
  payments to plaintiff of $1,094.88 on December 13, 2002, and $800 on
  January 17, 2003.  Plaintiff subsequently claimed he was entitled to
  further commission payments.  After reconciling advances and other
  payments, defendant claimed it had actually overpaid plaintiff and refused
  further payments.  Plaintiff filed suit on January 23, 2003. 

       ¶  6.  After two days of trial, the superior court found that
  plaintiff was entitled to $280.24 on a common law breach-of-contract
  theory.  The court first found that defendant's "bookkeeping records . . .
  [were] wanting to say the least" and that for many of the commission
  calculations there were no explanations for the figures.  It went through
  an item-by-item analysis of each party's claims and found the net
  underpayment to be $280.24.  The court arrived at this figure by
  subtracting "pick and hold" charges ($1015.00), fuel charges ($1,197.25),
  Federal Express shipping charges ($118.12), and damage claims ($727.67)
  from the total of all commission payments due plaintiff over the period of
  his employment.  It subtracted from the net total the commission payments
  and advances actually paid to plaintiff to arrive at the final number.  The
  court concluded that plaintiff's commission payments were wages under 21
  V.S.A. § 342, but did not find a violation of that section and refused to
  assess penalties and attorney's fees for nonpayment as provided in 21 V.S.A
  § 347.  In response to plaintiff's post-trial motion, the court struck the
  original judgment of $280.24 and entered judgment for plaintiff in the
  amount of $2,740.72.  The new amount reflected the entire unpaid commission
  including a part that was to be paid to a third party at plaintiff's
  direction.  The superior court ordered defendant to pay plaintiff this
  amount, but denied plaintiff's renewed request for penalties and attorney's
  fees under § 347.  Plaintiff appealed.  


       ¶  7.  On appeal, plaintiff claims the court erred in denying
  penalties under § 347.  To resolve this question, we address four issues in
  turn: (1) whether plaintiff's commission payments were wages under § 342;
  (FN3)  (2) if so, whether defendant violated § 342 by withholding them; (3)
  whether plaintiff is entitled to penalties under § 347; and (4) the amount
  of penalties due.  

                                     I.

       ¶  8.  This case arises out of Vermont's wages-and-medium-of-payment
  statutes, see 21 V.S.A. §§ 341-347, the overriding intent of which is to
  ensure that workers are paid in a timely manner.  See State v. Carpenter,
  138 Vt. 140, 143, 412 A.2d 285, 287 (1980) (explaining intent of § 345 as
  fostering "regular payment of wages to employees" through penalizing
  nonpayment); Zablow v. Dep't of Employment Sec., 137 Vt. 8, 9, 398 A.2d
  305, 306 (1979) (per curiam) (explaining employer's duty under § 342 to
  "pay their employees in a timely manner").  As remedial statutes, they must
  be liberally construed.  Carter v. Fred's Plumbing & Heating, Inc., 174 Vt.
  572, 574, 816 A.2d 490, 493 (2002) (mem.).  
   
       ¶  9.  The superior court concluded that plaintiff's commission
  payments were wages under § 342.  The various subsections of that section
  specify when an employer must pay "the wages earned by such employee."  21
  V.S.A. § 342(a).  Whether commission payments are wages is a question of
  statutory interpretation which we review de novo.  Wright v. Bradley, 2006
  VT 100, ¶ 6, ___ Vt. ___, 910 A.2d 893.  When  interpreting statutes, our
  goal is to effectuate the intent of the Legislature.  Id.  To do so, we
  look first to the language of the statute and, if the meaning is clear,
  enforce the statute according to its terms.  Id.  We consider the "entire
  statute, including its subject matter, effects and consequences, as well as
  the reason and spirit of the law."  In re Estate of Cote, 2004 VT 17, ¶
  10, 176 Vt. 293, 848 A.2d 264.
         
       ¶  10.  Although § 342 regulates the payment of wages, the term
  "wages" is not defined in that statute or in the surrounding ones.  The
  term is defined, however, in other employment-related statutes in the same
  title.  Thus, 21 V.S.A. § 1301(12), which governs unemployment
  compensation, defines wages as "all remuneration paid for services rendered
  by an individual, including commissions . . . ."  The inclusion of
  commission payments within "wages" is consistent with the traditional use
  of the word.  See Black's Law Dictionary 1610 (8th ed. 2004) ("Wages
  include every form of remuneration payable for a given period to an
  individual for personal services, including salaries, commissions, vacation
  pay, bonuses . . . ." (emphasis added)).  Moreover, this Court has broadly
  defined wages in other contexts to include most forms of compensation for
  services rendered.   Quinn v. Pate, 124 Vt. 121, 124, 197 A.2d 795, 797
  (1964) (stating that wages are synonymous with earnings and thus are
  compensation for labor).
   
       ¶  11.  In addition, most jurisdictions view commission payments as
  wages for purposes of wage-payment statutes.  This is true of jurisdictions
  with statutes that define wages to include commission payments.  See Ariz.
  Rev. Stat. Ann. § 23-350(5); Colo. Rev. Stat. § 8-4-101(8)(a)(II); Kan.
  Stat. Ann. § 44-313(c); Md. Code Ann., Lab. & Empl. § 3-501(c)(2); Minn.
  Stat. §§ 181.13(b), 181.145; Neb. Rev. Stat. § 48-1229(4).  More
  importantly, it is true of states with statutes, like ours, that do not
  include a definition of wages.  See Licocci v. Cardinal Assocs., Inc., 492
  N.E.2d 48, 55-56 (Ind. Ct. App. 1986) (noting inclusion of commissions as
  wages in other chapters of wage-and-hour statutes and citing state
  workmen's compensation statutes, state employment-security act, and Black's
  Law Dictionary for support that commissions are wages); Brown v. Navarre
  Chevrolet, Inc., 610 So. 2d 165, 169-71 (La. Ct. App. 1992) (collecting
  Louisiana cases defining commissions as wages and stating "[i]t is well
  settled that the term 'wages' includes commissions and courts have
  entertained actions for unpaid commissions under the statute"); Cmty.
  Telecomm. Corp. v. Loughran, 651 A.2d 373, 376 (Me. 1994) (holding that
  inclusion of commissions as wages under statute aligns with protective
  purpose of the act and "with authority from several other jurisdictions");
  see generally S. Samaro, The Case for Fiduciary Duty as a Restraint on
  Employer Opportunism under Sales Commission Agreements, 8 U. Pa. J. Lab. &
  Emp. L. 441, 447 (2006) (collecting cases and statutes, stating commissions
  are wages under most wage-payment statutes). 


       ¶  12.  If there is an argument to be made that commission payments
  were not intended to be wages under § 342, it lies in the requirements set
  forth by the statute.  Section 342 requires an employer to pay wages to
  employees "each week . . . the wages earned by such employee to a day not
  more than six days prior to the date of such payment."  21 V.S.A. § 342(a). 
  On proper notice and consent of the employee, however, it allows an
  employer to pay "bi-weekly or semi-monthly . . . wages earned by the
  employee to a day not more than six days prior to the date of the payment." 
  Id. § 342(b). (FN4)  Further, an employee who voluntarily leaves must be
  "paid on the last regular pay day, or if there is no regular pay day, on
  the following Friday."   Id. § 342(c)(1).  Defendant argues that commission
  payments cannot be governed by the statute "because [they] are not earned
  on a temporal basis" and thus cannot be paid according to the statute's
  requirements.  We agree that there are serious questions about how the
  statute applies to the remuneration scheme used in this case.  This does
  not mean, however, that the Legislature intended no protection for workers
  who are paid by commission.  The coverage of the statute is broad, and it
  would clearly undermine the legislative intent if an employer could choose
  a method of payment that left no remedy if the employer failed to pay
  compensation in a timely fashion.  Moreover, there is no difficulty in
  applying the statute in many situations where an employee is paid by
  commission - for example, to a retail-sales worker for whom the amount of
  commission can be determined as soon as a sale is made.  Given the wording
  of our statute and the many decisions from other states construing the term
  "wages" in the context before us, we hold that commission payments are
  wages for purposes of our wages-and-medium-of-payment law. 

                                     II.

       ¶  13.  The next issue is whether defendant violated § 342.  Here,
  plaintiff argues that defendant violated § 342(c)(1) by failing to pay him
  "on the last regular pay day."  Defendant responds that it did not violate
  § 342(c)(1) because the last regular pay day did not occur until after suit
  was brought. (FN5)  The superior court apparently agreed.
   
       ¶  14.  Initially, we note that this argument does not fit the facts. 
  This is not a case where plaintiff lost his right to receive his commission
  once he resigned.  It is undisputed that plaintiff was entitled to a
  commission for long hauls made before he resigned, irrespective of when the
  calculation of the commission amount was made.  Nor is this a case in which
  plaintiff relies solely on the untimeliness of a commission payment that
  was eventually made.  In this case, defendant decided in January 2003,
  before plaintiff brought suit, that it had already overpaid him, and
  refused to pay more.  Thus, this is a case of nonpayment, not late payment.

       ¶  15.  In making this point, we understand that the superior court
  held that on the day plaintiff brought suit, the unpaid commission amount
  was not due because defendant still had "to account for any potential
  claims against [plaintiff's] final shipment."  The court found that the
  final accounting did not occur until several months later, and thus
  defendant had not violated the act when suit was brought.  It found both
  that defendant did not violate § 342 and, in any event, was not liable for
  penalties under § 347.

       ¶  16.  We analyze the court's reasoning with respect to § 342 here
  and will address its § 347 reasoning below.  Regarding § 342, we find the
  court's analysis flawed in a number of respects.  By the date of suit,
  defendant had decided not to make any further commission payments, and the
  possibility of future damage claims was not the reason for the nonpayment. 
  Further, the court found that the amount of the claims-reserve account was
  $1000, and this was below the amount of the unpaid commission. (FN6) 
  Finally, as discussed below, a violation of § 342 is not necessarily
  limited to facts in existence at the time the suit is filed - here, for
  example, defendant continued to withhold any payment even after it was
  clear that there were no damage claims. 
                                                                        
       ¶  17.  The central point of the trial court's analysis was that
  "[defendant] did not owe [plaintiff] any of the remaining commission at the
  time he filed suit."  That conclusion is plainly inconsistent with the
  court's finding that, other than withholding the damage reserve, defendant
  would pay the balance of the commission owed "about six weeks after a move
  was complete," when defendant had all the relevant information from
  plaintiff and Atlas.  Over six weeks had expired before plaintiff brought
  suit, and it is undisputed that defendant had all the information from
  which to calculate the remaining commission.  Indeed, defendant calculated
  the remaining commission, and its calculation was close to the amount the
  court eventually accepted.  

       ¶  18.  Apart from the above analysis, we decline to specify when the
  statute required defendant to pay the remaining commission.  We recognize
  that defendant has an argument that the statute requires it to make
  commission payments only when it otherwise would have made them had
  plaintiff not resigned, and some other courts have accepted this argument
  in interpreting similar statutory language.  See, e.g., J Squared, Inc. v.
  Herndon, 822 N.E.2d 633, 640 (Ind. Ct. App. 2005). Nevertheless, the
  statute is not entirely clear on this point, and we need not resolve the
  ambiguity here.  Moreover, the situation in this case is exacerbated by
  both the absence of an agreement specifying how defendant would calculate
  and distribute plaintiff's commission, (FN7) and defendant's poor record
  keeping.  In our view, defendant violated § 342(c) under any reasonably
  possible construction of its terms.  It failed to pay any commission on
  plaintiff's final long-haul job, thereby risking that plaintiff would bring
  suit, and that the court would not agree with all of its offsets.

                                    III.
   
       ¶  19.  We turn then to the third question: whether plaintiff is
  entitled to penalties, along with costs and attorney's fees, under § 347
  due to defendant's violation of § 342.  See 21 V.S.A. § 347 (providing
  penalties for violations of §§ 342, 343).  The superior court found that §
  347 did not apply, apparently because of the last sentence of the section:
  "no action may be maintained under this section unless at the time the
  action is  brought the wages remain unpaid or improperly paid."  The court
  held that at the time plaintiff brought suit, no wages were unpaid or
  improperly paid.


       ¶  20.  We have addressed much of this analysis above under § 342.  We
  here add two points relevant to applying the statutory language to this
  case.  First, we construe the statute in light of the common law and
  consistent with its evident purpose. See Swett v. Haig's, Inc., 164 Vt. 1,
  5, 663 A.2d 930, 932 (1995) (stating that statute does not change common
  law rules unless "the intent to do so [is] . . . expressed in clear and
  unambiguous language").  Our general rule on damages is that "[t]he right
  of action being established, damages which have accrued are to be computed
  to the time of the trial, although accruing after the commencement of the
  action."  Kerr & Elliott v. Green Mountain Ins. Co., 111 Vt. 502, 517, 18
  A.2d 164, 172 (1941).  We believe that this rule is fully applicable here
  and is consistent with the statutory language.  As the Supreme Judicial
  Court of Maine held in response to an argument that an employee must wait
  to sue until all commission payments are due under the wage-payment
  statute: "an employee who is a victim of ongoing violations need not wait
  until all possible violations have occurred to file a suit and obtain
  relief for all violations of a similar nature that do occur."  Burke v.
  Port Result Realty Corp., 1999 ME 138, ¶ 18, 737 A.2d 1055.  The purpose of
  § 347 is fulfilled if plaintiff has a claim that some wages remain unpaid
  at the time he brings suit.  It is unreasonable and unnecessary to any
  purpose of the statute to require him to wait to bring suit until all
  possible damages have accrued.
   
       ¶  21.  Second, it is clear that plaintiff had a claim for his unpaid
  commission when he brought suit, a claim that was validated by the findings
  of the superior court that defendant owed plaintiff additional commission
  payments.  As discussed above, there was no written employment agreement
  specifying how each commission was to be paid.  In the absence of a written
  agreement, the superior court had to rely on extrinsic evidence to
  determine when plaintiff earned his commission.  See Houben v. Telular
  Corp., 231 F.3d 1066, 1072 (7th Cir. 2000) (applying Illinois Wage Payment
  and Collection Act and stating that in the absence of a written agreement
  specifying how commission is earned and paid, the court must use extrinsic
  evidence to find the actual practices used).  It found that the practice
  was to pay a commission, up to the amount of the claims reserve, about six
  weeks after the long haul was completed.  Under that practice, defendant
  owed plaintiff his commission on the date plaintiff brought suit.  See Lee
  v. Great Empire Broad., Inc., 794 P.2d 1032, 1034 (Colo. Ct. App. 1989)
  ("In such circumstances, the future payment must be made immediately upon
  becoming due or the employer becomes liable for the statutory penalty . . .
  .").   Thus, the action could be "maintained" under § 347 when plaintiff
  sued.

       ¶  22.  Beyond the specific issue of compliance with the language of §
  347, we note that decisions from other jurisdictions are clear that where a
  commission is earned before resignation and the employer does not pay the
  commission when it becomes due, the employer is liable for penalties.  See
  id.; J Squared, 822 N.E.2d at 639-40; Admiral Mortgage, Inc. v. Cooper, 745
  A.2d 1026, 1029-30 (Md. 2000).  Several state statutes, however, expressly
  recognize a "good faith" or "bona fide dispute" defense whereby an employer
  may avoid penalties if it can show that it withheld the payments because of
  a good-faith dispute.  See Ariz. Rev. Stat. Ann. § 23-352(3); Colo. Rev.
  Stat. § 8-4-110(1); La. Rev. Stat. Ann. § 23:631, 632; Neb. Rev. Stat. §
  48-1232; N.H. Rev. Stat. Ann. § 275:44(IV).  Vermont's wage-payment statute
  does not contain a good-faith exception,  21 V.S.A. §§ 342, 347, and we
  decline to infer one.  State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943,
  946 (1996) ("It is inappropriate to read into a statute something which is
  not there unless it is necessary in order to make the statute effective."
  (citation omitted)); see also Burke, 1999 ME 138, ¶ 16 (declining to read
  bona fide dispute exception into statute).
   
       ¶  23.  Ultimately, defendant argues that it is not liable under §
  347 because Lanphear v. Tognelli, 157 Vt. 560, 601 A.2d 1384 (1991), holds
  that § 347 applies only to the nonpayment of wages and not to the
  underpayment of wages, which defendant asserts occurred here.  Defendant
  misapprehends Lanphear.  The Court in Lanphear held that an employee could
  not recover penalties under § 347 for an employer's failure to pay the
  minimum wage in accordance with 21 V.S.A. § 384.  Id. at 563-64, 601 A.2d
  at 1386.  Lanphear is distinguishable because our ruling as to the
  inapplicability of § 347 to the underpayment of wages applied only to a
  violation of the minimum wage statutes, §§ 381-396, and not to violations
  of the wage-and-medium-of-payment statutes, §§ 341-347.  Id. at 563-64, 601
  A.2d at 1386 ("[T]he penalty provision applies only to violations of the
  timeliness and form of wage requirements, not the underpayment of wages."
  (emphasis added)); see also Longariello v. Windham Sw. Supervisory Union,
  165 Vt. 573, 575, 679 A.2d 337, 339 (1996) (mem.) ("Nothing in [Lanphear],
  a case holding that the remedies in § 347 are inapplicable for violations
  of minimum wage laws, suggests that § 347 cannot reach the adverse
  consequences of uncorrected payment delays." (emphasis added)).  

       ¶  24.  The plain language of § 347 covers any violation of § 342. 
  Since we have held that defendant violated § 342, § 347 necessarily
  applies.

                                     IV.
   
       ¶  25.  Finally, we address plaintiff's argument that he is entitled
  to treble damages, plus costs and attorney's fees, under § 347 because the
  statute awards an employee a penalty amount of twice the unpaid wages in
  addition to actual damages.  Given its holding that plaintiff was not
  entitled to penalties at all, the superior court did not reach this issue. 
  This is a pure question of statutory construction that we, in any event,
  review de novo.  In re South Burlington-Shelburne Highway Project, 174 Vt.
  604, 605, 817 A.2d 49, 51 (2002) (mem.).  Because the issue is fully
  briefed, we address it here.  

       ¶  26.  Section 347 states that an employer who violates § 342 or §
  343 "shall forfeit to the individual injured twice the value thereof, to be
  recovered in a civil action, and all costs and reasonable attorney's fees." 
  21 V.S.A. § 347.  The statute is clear that the amount awarded to an
  employee as a result of a civil action to recover wages is "twice the value
  thereof;" the statute is silent, however, as to whether this amount
  includes or is in addition to the employee's actual damages.  Id.  We
  conclude that the statutory language entitles the employee to double
  damages, or, put another way, actual damages plus a penalty amount equal to
  the actual damages.  Vermont case law shows that this interpretation is
  consistent with previous application of the statute.  See Lanphear, 157 Vt.
  at 563-64, 601 A.2d at 1386 (reversing on other grounds court's award of
  actual damages of $25.00 and § 347 penalties of an additional $25.00).
   
       ¶  27.  The statute providing for the investigation of unpaid-wage
  complaints by the Commissioner of the Department of Labor, 21 V.S.A. §
  342a, informs our review.  This statute gives the Commissioner authority to
  "collect from the employer the [unpaid wages] and remit them to the
  employee."  Id. § 342a(a).  The Commissioner also has authority to collect
  penalties from an employer in "an additional amount not to exceed twice the
  amount of unpaid wages, one-half of which will be remitted to the employee
  and one-half of which shall be retained by the commissioner."  Id. §
  342a(b) (emphasis added).  Thus, when the Commissioner enforces the
  statutory scheme, the employee receives the actual damages in addition to a
  penalty amount equal to the actual damages, or double damages.  We conclude
  that the Legislature did not intend that employees receive a higher penalty
  amount when suing on their own.  See In re Margaret Susan P., 169 Vt. 252,
  262, 733 A.2d 38, 46 (1999) (interpreting statute as whole, "looking to the
  reason and spirit of the law and its consequences and effects to reach a
  fair and rational result").  Therefore, since § 347 is the only provision
  for an employee to collect actual damages in a civil action under the
  wage-payment statutes, the employee's penalty award must include the amount
  of actual damages.  

       ¶  28.  Our conclusion is reenforced by decisions in other
  jurisdictions interpreting wage-penalty statutes that do not specify
  whether actual damages are included in the penalty amount.  See State v.
  Weller, 152 Vt. 8, 13, 563 A.2d 1318, 1321 (1989) ("Where there are similar
  statutes in other states, we look for guidance in the interpretations of
  those statutes.").  Two jurisdictions have language that matches Vermont's,
  language which awards damages for "twice the amount" of the wages and does
  not specify whether the penalty amount is inclusive of the actual damages. 
  Conn. Gen. Stat. § 31-72 (employee may recover "in a civil action, twice
  the full amount of such wages"); Wash. Rev. Code § 49.52.070 (employer may
  be liable to the employee "for twice the amount of the wages unlawfully . .
  . withheld by way of exemplary damages").  Court decisions in these
  jurisdictions reveal that damage awards include the actual damages in the
  penalty award, resulting in double damages, not treble damages.  See Butler
  v. Hartford Tech. Inst., 704 A.2d 222, 224, 230-31 (Conn. 1997) (affirming
  award of double damages under statute); Schilling v. Radio Holdings, Inc.,
  961 P.2d 371, 373, 376, 378 (Wash. 1998) (same).  
   
       ¶  29.  The same is true in states with statutes that award damages
  in the amount of three times the wages, yet fail to specify whether the
  penalty is in addition to, or inclusive of, the damages for unpaid wages. 
  See Sanborn v. Brooker & Wake Prop. Mgmt., 874 P.2d 982, 984, 988 (Ariz.
  Ct. App. 1994) (affirming award of $25,767.15, consisting of $8,589.05 in
  unpaid wages and $17,178.10 in penalties under statute allowing recovery of
  "an amount which is treble the amount of the unpaid wages"); Polk v.
  Larrabee, 17 P.3d 247, 251-52, 252 n.1, 259 (Idaho 2000) (affirming award
  of treble damages, i.e., award of $90,273.66, consisting of $30,091.22 in
  unpaid wages and $60,182.44 in penalties under statute allowing employee to
  recover "damages in the amount of three (3) times the unpaid wages found
  due and owing"); Stevenson v. Branch Banking and Trust Corp., 861 A.2d 735,
  757-59 (Md. Ct. Spec. App. 2004) (holding damages are capped at three, not
  four, times the amount of unpaid wages under statute stating that courts
  may "award the employee an amount not exceeding 3 times the wage").  These
  cases show that where a wage-payment statute does not specify whether a
  penalty is in addition to the amount of unpaid wages, courts typically
  interpret the penalty amount to include the unpaid wages.

       ¶  30.  Statutes in other jurisdictions illustrate that when a
  legislature intends to provide for wage-payment penalties in addition to
  actual damages, it does so explicitly.  See, e.g., Me. Rev. Stat. Ann. tit.
  26 § 626-A (employee may recover "in addition to the unpaid wages . . .
  adjudged to be due, [interest], [costs and attorney's fees], and an
  additional amount equal to twice the amount of unpaid wages as liquidated
  damages."  (emphasis added)).  Maine's statute uses language similar to
  Vermont's in that it awards the employee "twice the amount" of the wages,
  but it also uses language specifying that the damages are "in addition to
  the unpaid wages."  Id.  Courts have predictably interpreted this to mean
  that the employee is entitled to, in effect, treble damages.  See Burke,
  1999 ME 138, ¶¶ 7, 19 (affirming award of unpaid wages, penalty amount of
  twice unpaid wages, costs, and attorney's fees).  
   
       ¶  31.  These statutes also show the type of language generally
  employed by a legislature when the penalty award is not intended to include
  the amount of the unpaid wages.  In fact, other Vermont statutes expressly
  specify when a penalty award is intended to be in addition to the actual
  damages.  See 9 V.S.A. § 2461 ("Any consumer . . . may sue and recover . .
  . the amount of his damages . . . and exemplary damages not exceeding three
  times the value of the consideration given . . . ." (emphasis added)). 
  Moreover, a review of Vermont statutes reveals that when the Legislature
  wishes to grant treble damages, as plaintiff urges it did here, it does so
  explicitly.  See 10 V.S.A. § 4709 (treble damages for importation and
  stocking of wild animals); 12 V.S.A. §§ 4920, 4923 (treble damages for
  trespass); 13 V.S.A. § 3606 (treble damages for "conversion of trees or
  defacing marks on logs"); 24 V.S.A. § 3307 (treble damages for interference
  with water supply); 25 V.S.A. § 207 (treble damages for stopping or
  conversion of floating lumber); cf. 21 V.S.A. § 347 (damages for  "twice
  the value" of unpaid wages).   


       ¶  32.  Further, this Court has held that an award of treble damages
  as a penalty includes the amount of the original damages within the
  penalty.  See State v. Singer, 2006 VT 46, ¶ 14, ___ Vt. ___, 904 A.2d 1184
  (holding proper statutory award of treble damages was three times the
  amount of actual damages).  Thus, a penalty award three times the amount of
  actual damages - such as the one the plaintiff asks for here - is typically
  signaled by the term "treble damages" in the statute.   

       ¶  33.  In sum, we conclude that § 347 entitles an employee to double
  damages.  We hold, therefore, that plaintiff is entitled to $5481.44 in
  damages, consisting of $2,740.72 in actual damages and a penalty in the
  same amount.  We further conclude that plaintiff is entitled to attorney's
  fees and costs under the statute and remand so that the superior court may
  determine those amounts.

       Affirmed in part, reversed in part, and remanded for further
  proceedings consistent with the views expressed herein.      
                          


                                       FOR THE COURT:

                                                                          
                                       _____________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  Plaintiff directed defendant to pay $600 of the weekly advances to his
  partner, Donna Dowdy, because she reportedly assisted him on long-haul
  trips and because the arrangement would lower his child support obligation. 
  Ms. Dowdy was not a party to this action.  The superior court ultimately
  determined that all wages - advances and commission payments - were 
  plaintiff's for purposes of the suit.

FN2.  The trial court found that clients could make claims several months
  after a move was complete.  Defendant maintains, as plaintiff confirmed in
  his deposition, that customers had up to nine months to submit damage
  claims.

FN3.  Plaintiff prevailed on this issue below and argues here that we should
  affirm the superior court on this point.  We address this issue because
  defendant argues that the ruling was wrong.  Defendant can do so, despite
  failing to file a timely cross-appeal, because if we rule that commission
  payments are not wages, we would reach the same result as the superior
  court with respect to plaintiff's appeal issues, but on a different ground. 
  See Huddleston v. Univ. of Vt., 168 Vt. 249, 255-56, 719 A.2d 415, 419
  (1998) (explaining how a defendant's arguments could be properly raised on
  appeal despite its failure to file a cross appeal, because it was aggrieved
  by errors it alleged only in the event this Court reversed the trial
  court's judgment in defendant's favor).

FN4.  Pursuant to a collective bargaining agreement, the payment may be made
  "to a day not more than 13 days prior to the date of payment."  21 V.S.A. §
  342(b).

FN5.  Defendant's main position in the superior court, and in this Court, is
  that plaintiff cannot prevail under § 342 because the unpaid commission, if
  any, was owed to Ms. Dowdy, and not to him.  See supra, note 1.  The
  superior court originally ruled for defendant with respect to this point,
  holding that all but $280 was owed to Ms. Dowdy and not to plaintiff. 
  Thereafter, in response to plaintiff's motion to amend the judgment, the
  court reversed itself and awarded all damages to plaintiff.  Defendant
  attempted to file a cross-appeal challenging the amendment of the judgment,
  but the cross-appeal was filed too late, and we dismissed it.  As we stated
  in supra, note 3, defendant can urge a different ground of affirmance
  without a cross-appeal.  It cannot, however, urge that we reduce
  plaintiff's recovery without a cross-appeal.  As a result, we do not
  consider defendant's argument that the court erred in amending the
  judgment.

FN6.  This was not true when the court rendered its original decision, but
  became true when it modified the recovery amount.  Plaintiff sought
  reconsideration of the court's ruling that defendant had not violated §
  342, and was not liable under § 347, but the court denied the motion
  without explanation.

FN7.  The only document representing an employment agreement was a letter
  submitted at trial which did not specify when commission payments were due;
  the only sentence pertaining to the issue is: "[defendant] also gave
  [plaintiff] the breakdown of how we pay drivers for interstate shipments."



