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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.


                                           2017 VT 89

                                          No. 2016-185

Paul Flint                                                    Supreme Court

                                                              On Appeal from
   v.                                                         Superior Court, Washington Unit,
                                                              Civil Division

Department of Labor                                           October Term, 2016


Timothy B. Tomasi, J.

Matthew M. Shagam and Richard T. Cassidy of Hoff Curtis, Burlington, for Plaintiff-Appellant.

William H. Sorrell, Attorney General, and Todd W. Daloz, Assistant Attorney General,
 Montpelier, for Defendant-Appellee.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   REIBER, C.J.        A former employee of the Vermont Department of Labor

(Department) appeals from a judgment on the pleadings denying his suit against the Department

seeking unpaid overtime pay. Employee first argues that he is entitled to overtime pay for hours

worked in excess of forty hours per week because—through a 1994 revision to 21 V.S.A.

§ 384(b)(7) that refers to the federal Fair Labor Standards Act (FLSA)—the Legislature intended

to provide state employees not only with minimum wage-and-hour rights, but also with a statutory

private right of action to enforce those rights. Employee next argues that state employees also

have a private right of action to enforce those claimed rights through Article 4 of the Vermont

Constitution. Vt. Const. ch. I, art. 4. We affirm.
       ¶ 2.    Employee worked at the Department from 2010 to 2014, and he claims to have

worked 704 hours of overtime during this period. After his termination, employee sued the

Department on the basis that he had not been paid at the overtime rate of time-and-a-half for hours

worked in excess of forty hours per week. Employee initially brought two claims—one under 21

V.S.A. § 384(b)(7) and another under FLSA—but withdrew the FLSA claim after the State filed

a motion to dismiss in which it argued that sovereign immunity prevented the claim. The State

later filed a motion for judgment on the pleadings. See V.R.C.P. 12(c) (“After the pleadings are

closed but within such time as not to delay the trial, any party may move for judgment on the

pleadings.”). The court granted the motion on the basis that 21 V.S.A. § 384(b)(7) “does not

extend a statutory right to the overtime rate that [employee] seeks,” but rather “plainly exempts

State employees.” The court also concluded that Article 4 of the Vermont Constitution did not

give state employees a private right of action to seek damages compensating them for unpaid

overtime. Vt. Const. ch. I, art. 4.

       ¶ 3.    Employee now appeals the court’s judgment on the pleadings. In reviewing the

judgment, “we accept as true all factual allegations contained in the complaint and all reasonable

inferences that can be drawn from those allegations.” Sorge v. State, 171 Vt. 171, 174, 762 A.2d

816, 818 (2000). This is because when the court assesses a motion for judgment on the pleadings,

“all well pleaded factual allegations in the nonmovant’s pleadings and all reasonable inferences

that can be drawn therefrom are assumed to be true and all contravening assertions in the movant’s

pleadings are taken to be false.” Bressler v. Keller, 139 Vt. 401, 403, 429 A.2d 1306, 1307 (1981).

We therefore focus our analysis on the court’s conclusions of law, which we review de novo.

Anderson v. State, 2013 VT 73, ¶ 7, 194 Vt. 437, 82 A.3d 577 (“[W]e review the trial court’s

conclusions of law de novo.”). Regarding these conclusions of law, employee argues that the court

erred because (1) 21 V.S.A. § 384(b)(7) does provide state employees with both minimum wage-

and-hour rights and a statutory private right of action to enforce those rights, and (2) state


                                                2
employees do have a private right of action to enforce those claimed rights through Article 4 of

the Vermont Constitution. Vt. Const. ch. I, art. 4.

                                                  I.

       ¶ 4.    We first address employee’s argument that he is entitled to overtime pay because

21 V.S.A. § 384(b)(7) provides state employees with both minimum wage-and-hour rights and a

statutory private right of action to enforce those rights. In relevant part, § 384(b)(7) reads:

                (b) . . . an employer shall not pay an employee less than one and
               one-half times the regular wage rate for any work done by the
               employee in excess of 40 hours during a workweek. However, this
               subsection shall not apply to:

               ...

                (7) State employees who are covered by the federal Fair Labor
               Standards Act.

       ¶ 5.    In interpreting a statute, our primary aim is always to determine the intent of the

Legislature and implement that intent. See Miller v. Miller, 2005 VT 89, ¶ 14, 178 Vt. 273, 882

A.2d 1196 (“In construing a statute, our paramount goal is to discern and implement the intent of

the Legislature.”). In determining that intent, we begin by looking to the plain language of the

statute. Tarrant v. Dep’t of Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999) (“[I]n our attempts

to ascertain legislative intent we look for guidance in the plain meaning of the words used.”). If

the intent of the Legislature is apparent on the face of the statute because the plain language of the

statute is clear and unambiguous, we implement the statute according to that plain language. See

Harris v. Sherman, 167 Vt. 613, 614, 708 A.2d 1348, 1349 (1998) (“[W]here legislative intent can

be ascertained on its face, the statute must be enforced according to its terms without resort to

statutory construction.”). As a corollary of this principle, we resort to other tools of statutory

construction—such as legislative history—only if the plain language of the statute is unclear or

ambiguous.

       ¶ 6.    These well-established principles of statutory interpretation are particularly

relevant in this case because employee specifically urges this Court to look beyond the plain
                                              3
language of § 384. In effect, he concedes that, on its face, the statute forecloses its application to

state employees such as himself. However, he further argues that, in light of federal and state case

law since the statute’s revision, this plain language does not accurately represent the intent of the

Legislature when it revised the statute. See In re S.B.L., 150 Vt. 294, 301, 553 A.2d 1078, 1083

(1988) (“We must look not only at the letter of a statute but also its reason and spirit.”); Lubinsky

v. Fair Haven Zoning Bd., 148 Vt. 47, 49, 527 A.2d 227, 228 (1986) (“[T]he paramount function

of the court is to give effect to the legislative intent.”). Indeed, the overall thrust of his argument

is that “[b]ecause the intent of the Vermont Legislature was to establish state employee wage-and-

hour protections . . . [employee] is not ‘covered’ under FLSA for the purposes of his due process

employment rights under § 384(b)(7).” In other words, he argues that state employees should not

be considered “covered by” FLSA because the only remedies available through FLSA to those

employees are inconsistent with the intent of the Legislature when it passed § 384 in its present

form.

        ¶ 7.   Before directly addressing employee’s argument, we first determine that the plain

language of § 384 is clear and unambiguous. State employees generally are “covered by the

federal Fair Labor Standards Act.” 21 V.S.A. § 384(b)(7). The Code of Federal Regulations

specifies that FLSA’s 1974 amendments “extended coverage to virtually all of the remaining State

and local government employees who were not [previously] covered.”                29 C.F.R. § 553.3

(emphasis added). Because FLSA explicitly extends employment protections to state employees,

this provision of the Code of Federal Regulations answers the questions of (1) whether state

employees are “covered by” FLSA and (2) whether § 384 is clear and unambiguous.

        ¶ 8.   There are two primary exceptions for state employees who are not “subject to the

civil service laws of the employing State or local agency,” 29 C.F.R. § 553.10, but neither apply.

One exception is for “elected officials and their appointees,” 29 C.F.R. § 553.11, and the other is




                                                  4
for “employees of legislative branches.” 29 C.F.R. § 553.12. Here, employee does not qualify

under either exception, nor does he argue that he does so.

       ¶ 9.    It is therefore clear both that employee is included in the § 384(b)(7) exception for

state employees and that this exception is a defining feature of § 384. Nevertheless, because

employee’s argument touches on the development of both FLSA and § 384(b)(7) and places the

two in historical context, we must address employee’s argument that state employees should not

be considered “covered by” FLSA or included in the § 384(b)(7) exception for state employees.

Moreover—although not necessary for our analysis—this historical context provides further

support for our dual holdings that (1) state employees are generally “covered by” FLSA and

(2) § 384(b)(7) does not provide employee with minimum wage-and-hour rights or a statutory

private right of action to enforce those rights.

       ¶ 10.   As originally passed by Congress in 1938, FLSA did not generally cover state

government employees. But with an amendment in 1974, it did—with the two previously noted

exceptions for “elected officials and their appointees” and “employees of legislative branches.”

29 C.F.R. §§ 553.11, 553.12; see also Nat’l League of Cities v. Usery, 426 U.S. 833, 836 (1976)

(“The original Fair Labor Standards Act passed in 1938 specifically excluded the States and their

political subdivisions from its coverage. In 1974, however, Congress enacted the most recent of a

series of broadening amendments . . . [that] extended the minimum wage and maximum hour

provisions to almost all public employees employed by the States and by their various political

subdivisions.”), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).

Two years later, the U.S. Supreme Court narrowed the effect of this amendment on the basis that

it unconstitutionally co-opted the authority of state governments to structure how they conduct

their traditional functions. See Nat’l League of Cities, 426 U.S. at 852. (“[I]nsofar as the

challenged amendments operate to directly displace the States’ freedom to structure integral

operations in areas of traditional governmental functions, they are not within the authority granted


                                                   5
Congress by [the U.S. Constitution.]”). But just nine years later, the Court reversed course,

overruling its previous decision and holding that FLSA did in fact generally cover state employees.

Garcia, 469 U.S. at 546–47 (“We . . . reject, as unsound in principle and unworkable in practice, a

rule of state immunity from federal regulation that turns on a judicial appraisal of whether a

particular governmental function is ‘integral’ or ‘traditional.’       Any such rule . . . disserves

principles of democratic self-governance.”).

       ¶ 11.   Although this history established that FLSA’s minimum wage-and-hour rights

generally apply to state employees, it did not establish how those rights are enforced. That issue

was resolved by three later cases—one binding precedent on this Court, and two persuasive in their

analysis. First, in Alden v. Maine, the U.S. Supreme Court held that the sovereign immunity of

states, as established by the U.S. Constitution, means that states are immune from all private suits

in their own courts. 527 U.S. 706, 754 (1999) (“In light of history, practice, precedent, and the

structure of the Constitution, we hold that the States retain immunity from private suit in their own

courts, an immunity beyond the congressional power to abrogate by Article I legislation.”).1 But

the Court further held that, even with sovereign immunity, states must comply with constitutionally

valid federal statutes. Id. at 754-55. (“The constitutional privilege of a State to assert its sovereign

immunity in its own courts does not confer upon the State a concomitant right to disregard the

Constitution or valid federal law. The States and their officers are bound by obligations imposed

by the Constitution and by federal statutes that comport with the constitutional design.”). The

Court then applied these holdings to the facts of the case—which was brought by Maine state

employees seeking overtime pay through FLSA—to hold that the state employees did not have a

private right of action to enforce FLSA’s protections. Id. at 712 (“[T]he powers delegated to

Congress under Article I of the United States Constitution do not include the power to subject


       1
          This expanded pre-existing case law that had established that states are immune from
claims brought by private individuals in federal courts. See Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 54 (1996).
                                                 6
nonconsenting States to private suits for damages in state courts . . . . [T]he State of Maine has

not consented to suits for overtime pay and liquidated damages under the FLSA.”).

       ¶ 12.   Next, in Coniff v. Vermont, the federal district court applied the Alden holdings to

determine that Vermont state employees do not have a private right of action to bring FLSA suits

against the state. 2013 WL 5429428, at *9 (D. Vt. Sept. 30, 2013) (“Because the State has not

waived its sovereign immunity against suits brought under the FLSA, it retains its sovereign

immunity in this case.”), aff’d sub nom. Beaulieu v. Vermont, 807 F.3d 478 (2d Cir. 2015). In

doing so, the court specifically found that § 384(b)(7) did not waive the state’s sovereign

immunity. Coniff, 2013 WL 5429428, at *6. (“[W]hen Vermont’s express waiver standard is

considered alongside the language of § 384(b)(7), the mere reference to FLSA coverage does not

effect a waiver of sovereign immunity.”). These holdings were affirmed by the United States

Court of Appeals for the Second Circuit in Beaulieu v. Vermont, which further observed that the

exception in § 384(b)(7) for state employees who are covered by FLSA “implicitly acknowledges”

the state’s legal obligation to abide by FLSA but “says nothing about how that obligation may be

enforced.” 807 F.3d at 484-85. More to the point, the court cogently summarized the difference

between being covered by FLSA and having a private right of action under FLSA: “The fact that

Vermont state employees are covered by the FLSA does not mean that those employees are entitled

to sue Vermont under the FLSA’s private right of action.” Id. at 485. Although these federal

decisions are not binding on this court, their reasoning is persuasive.

       ¶ 13.   Faced with this persuasive case law, employee nevertheless argues that this Court

should look past the plain language of § 384(b)(7) and determine that the statute does provide a

private right of action. Essentially, he argues that before 1994, “state employees were statutorily

excluded from coverage under Vermont’s minimum wage and overtime law,” so the mere fact that

the Legislature amended § 384 in 1994 “shows that the Vermont Legislature intended for the State

to be accountable to its employees for minimum wage-and-overtime wages.” Employee further


                                                 7
argues that the Legislature’s alleged intent has been thwarted because Alden subsequently

established that state employees do not have a private right of action through FLSA to enforce

their minimum wage and overtime rights. Alden, 527 U.S. at 706. He alleges that FLSA is

“insufficient” to such an extent that “for wronged state employees seeking the wages to which they

are entitled by state statute, FLSA effectively does not exist.”

       ¶ 14.   We disagree for several reasons. First, employee’s requested construction of

§ 384(b)(7) would go against the statute’s plain language. Indeed, it would convert an express

exemption of state employees—which precludes those employees from a private right of action

under Vermont’s state minimum wage-and-hour statute—to an implied waiver of sovereign

immunity—which would grant those employees a private right of action under FLSA. This would

be an illogical reading of the statute, particularly in light of the requirement that any waiver of

sovereign immunity must be express. See, e.g., Amy’s Enters. v. Sorrell, 174 Vt. 623, 623, 817

A.2d 612, 615 (2002) (“Sovereign immunity precludes suits against the State for acts essentially

governmental in nature, unless that immunity is expressly waived.” (emphasis added)); Jacobs v.

State Teachers’ Ret. Sys. of Vt., 174 Vt. 404, 408, 816 A.2d 517, 521 (2002) (“Because sovereign

immunity is procedural, a state may choose to waive it in specified circumstances. Such waiver

must be accomplished expressly by statute.” (citation omitted) (emphasis added)); LaShay v. Dep’t

of Soc. & Rehab. Servs., 160 Vt. 60, 67, 625 A.2d 224, 228 (1993) (“Sovereign immunity protects

the state from suit unless immunity is expressly waived by statute.” (emphasis added)).

       ¶ 15.   Second, if the Legislature intended to ensure state employees a private right of

action to enforce minimum wage and hour rights, it could have explicitly included such language

in § 384 when it revised the statute in 1994. Later, it could have added such language in response

to the Supreme Court’s decision in Alden recognizing the State’s immunity against such suits, or

the federal court decisions in Coniff and Beaulieu, which concluded that 21 V.S.A. § 384(b)(7)

does not amount to an express waiver of Vermont’s immunity from a private right of action under


                                                  8
FLSA. See State v. Read, 165 Vt. 141, 147, 680 A.2d 944, 948 (1996) (“We . . . presume that the

Legislature makes changes in the law in light of relevant judicial precedents and with knowledge

of prior legislation on the same subject.”).

        ¶ 16.   Finally, and related to the above point, despite employee’s characterization of

FLSA as “insufficient” without a private right of action to enforce its protections, we find no legal

basis to supplement § 384 with a more robust remedy for state employees aggrieved under FLSA.2

See Shields v. Gerhart, 163 Vt. 219, 234-35, 658 A.2d 924, 934 (1995) (“Where the Legislature

has provided a remedy, although it may not be as effective for the plaintiff as money damages, we

will ordinarily defer to the statutory remedy and refuse to supplement it.”). To do so would

infringe on the lawmaking responsibilities granted to the Legislature by our constitutional

structure. See Donoghue v. Smith, 119 Vt. 259, 267, 126 A.2d 93, 98 (1956) (“Courts are bound

to declare the law to be that which the legislature, acting within its constitutional power,

enacts . . . . If the provisions of a statute are unfair or unjust, the remedy is by a change of the law

itself, to be effected by the legislature, and not by judicial action in the guise of interpretation.”);

see also Lecours v. Nationwide Mut. Ins. Co., 163 Vt. 157, 161, 657 A.2d 177, 179-80 (1995)

(agreeing with appellants that proposed interpretation would align with purpose of statute but

finding “no support in the statute or the legislative history” for proposed interpretation and refusing

“to rewrite the statute” because “[i]f there is a better method for effectuating the legislative

purpose, we leave it to the legislature to devise”).

                                                  II.

        ¶ 17.   We next address employee’s argument that state employees have a private right of

action to enforce those claimed rights through Article 4 of the Vermont Constitution. Vt. Const.

ch. I, art. 4. On this point, employee contends that (1) Article 4 provides due process relief for


        2
         Employees protected under FLSA may file a complaint with the federal Department of
Labor, which may investigate that complaint and bring an enforcement action against an offending
employer.
                                               9
plaintiffs with statutory rights, (2) Vermont state employees have a statutory property right to

minimum wages and hours, and (3) the federal Department of Labor wage complaint process does

not meet Article 4 standards for due process protection of employees’ rights. Specifically, he again

points to the fact that he has no private right of action through FLSA and again contends that the

only other remedy—filing a complaint with the federal Department of Labor—is not sufficient. In

his estimation, the federal Department of Labor wage complaint process “from the outset is at best

a chance at a remedy, not an actual remedy of right.” He concludes by arguing that an Article 4

private right of action must exist here because state private rights of action “exist[] when there is

a property right established without any particular means of enforcement.”

       ¶ 18.   Employee is correct that Article 4 provides due process protections for plaintiffs

with statutory rights, but he is incorrect in his contention that Vermont state employees have a

state law statutory property right to overtime pay. Article 4 reads:

               Every person within this state ought to find a certain remedy, by
               having recourse to the laws, for all injuries or wrongs which one
               may receive in person, property or character; every person ought to
               obtain right and justice, freely, and without being obliged to
               purchase it; completely and without any denial; promptly and
               without delay; comformably to the laws.

Vt. Const. ch. I, art. 4. We have held that Article 4 is “the equivalent to the federal Due Process

Clause.” Quesnel v. Town of Middlebury, 167 Vt. 252, 258, 706 A.2d 436, 439 (1997). However,

we have also held that Article 4 “does not create substantive rights,” but rather “ensure[s] access

to the judicial process.” Shields v. Gerhart, 163 Vt. 219, 223, 658 A.2d 924, 928 (1995).

       ¶ 19.   Employee cannot rely on Article 4 to create a property interest in claimed

employment rights; Article 4 provides a remedy only if he can show that he has a pre-existing

property interest in those employment rights. See Quesnel, 167 Vt. at 258, 706 A.2d at 439 (“There

being no statutory or common-law cause of action for plaintiffs’ injuries resulting from their son’s

death, plaintiffs have not been denied due process of law or their rights under Article 4.”); see also

Hallsmith v. City of Montpelier, 2015 VT 83, ¶ 10, 199 Vt. 488, 125 A.3d 882 (“To show a

                                                 10
violation of procedural due process, an individual must (1) identify a protected property right,

(2) show that the state or a state actor has deprived the individual of that right[,] and (3) show that

the deprivation was effected without due process.”). Employee asserts that those pre-existing

property rights have a statutory basis—that they come from § 384(b)(7). And as previously

described, § 384(b)(7) explicitly excludes state employees from its protections because state

employees’ minimum wage and overtime rights are already covered by FLSA.                    Employee

therefore has no state law right to overtime wages. The issue in this case is whether Vermont’s

minimum wage-and-hour statute provides employee a private right of action to seek overtime pay

pursuant to the federal FLSA. For the reasons above, we conclude that it does not. To the extent

that employee’s argument challenges the procedures and remedies available through the federal

FLSA, we need not address the issue as this is not a challenge to that federal law.

       Affirmed.

                                                 FOR THE COURT:



                                                 Chief Justice




                                                  11
