An employee who claimed he was owed money under the Massachusetts Wage Act could not recover from the president and manager of the limited liability company for which he worked, a Massachusetts Superior Court judge has decided in a case of first impression.

The plaintiff employee argued that a restrictive interpretation of the Wage Act contravened the purpose of the statute and went against the rulings of several state court trial judges in Massachusetts, who had treated LLCs the same as corporations.

But Judge Bertha D. Josephson found that an LLC is not a corporation for purposes of G.L.c. 149, §150, the Wage Act.

“It is possible that the Legislature’s failure to include individual officers and managers of LLCs in the definition of employer is an unfortunate oversight,” Josephson wrote. “However, it is the task of that body, and not the Court, to remedy the unfairness of which [the plaintiff] complains by effectuating the necessary changes to the Act.”

Plain meaning

Marwan S. Zubi of Springfield, counsel for the defendants, said the language of the statute includes only presidents and treasurers of corporations and any officers or agents who hold management responsibilities. He said the act is silent on managers of LLCs.

“The bottom line is the statute doesn’t say LLC, so the court’s hands are tied,” he said. “The Supreme Judicial Court has said where a statute is unambiguous, you have to apply it the way it’s written, and this statute couldn’t be any clearer: It only applies to corporations.”

Although there was no case on point, Zubi said, the SJC has found in other contexts that LLCs are separate and distinct from corporations.

“The courts simply can’t read into the statute language that isn’t there,” he added.

Keith A. Minoff, who represented the plaintiff employee, said he was surprised to learn, after researching the issue, that it had never been addressed on appeal.

The Springfield lawyer predicted his case eventually would end up before the SJC or Appeals Court. But because final judgment is not expected to enter for several years, he said, the impact of Josephson’s ruling could be significant.

“Even though this is not controlling authority, that’s not going to stop employers’ attorneys from citing this case all the time,” he said. “That’s what concerns me and other people who represent employees the most.”

Kevin S. Sullivan of Chelmsford, an employees’ lawyer who argued a seminal Wage Act case before the SJC in 2005, said the Cook ruling is a strict, literal interpretation of the statute.

“The Legislature may have overlooked the fact that it says ‘corporation’ and does not reference any other entities, but any changes to that meaning would have to come from Beacon Hill,” he said.

If that happens, John F. Tocci, who represents management and employees, said he expects the Legislature would amend the language to include LLCs.

Although the court properly interpreted the statute, the Wage Act is a remedial measure intended to be construed broadly in favor of workers, said Tocci, a lawyer at Tocci, Goss & Lee in Boston.

“It has been a given in the bar that officers or senior management level employees, particularly those who control the payroll purse strings, are individually liable under the Wage Act regardless of the corporate form,” he said. “But this ruling shatters any such presumption.”

Employees’ lawyer Mickey Long called Cook an “unfortunate decision” that clearly shows a distaste judges have shown over the years for wage statutes.

“Given the new environment we are operating under, with all the different enterprises out there, corporations are no longer the only way folks are organizing,” he said. “It’s too bad the court didn’t recognize that.”

Wage battle

Springfield defendant Patient EDU is a Massachusetts limited liability company.

Defendants Steven Graziano and Michael Schulman were managers of the company.

In 2008, plaintiff Peter Cook and the company entered into a written employment contract whereby he was to serve as director of business and strategic partner development.

Cook, who received a $70,000 salary and a guaranteed $30,000 draw, worked under the terms of the contract until he voluntarily resigned on May 21, 2010.

In his suit, Cook alleged that he received no salary or draw for the first six months of work and only sporadically received such earnings later. He claimed the company owed him $61,538 in wages and $6,879 in business and travel expenses.

Last July, he filed a non-payment of wages and workplace complaint with the Fair Labor Division of the Attorney General’s Office. The AG issued a letter the following month authorizing Cook to pursue his wage claim through a lawsuit.

Cook’s complaint alleged, in part, violations of the Wage Act.

‘Unfortunate oversight’

In dismissing the case, the judge said the plaintiff made a strong argument that public policy would not be served by imposing individual liability for wage violations on officers and managers of corporations, but not of LLCs.

But because the statute is unambiguous, Josephson said, the court is not permitted to insert a provision the Legislature itself did not include, even if injustice or hardship might result. Instead, judges must interpret statutory language according to the intent of the Legislature.

Although the plaintiff cited other cases in which judges seemingly treated LLCs and corporations the same, they “hold no persuasive value because they neither raise nor resolve the issue of whether an LLC is included in the [statute’s] term ‘corporation,’” Josephson wrote.

When words used in a statute are plain and clear, a judge’s sole function is to enforce them according to their plain meaning, she said.

CASE: Cook v. Patient EDU, LLC, et al.

COURT: Superior Court

ISSUE: Can a plaintiff employee claiming to be owed money under the Wage Act recover from the president and manager of a limited

liability company?

DECISION: No