Sands v. Homestar Remodeling, LLC.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THOMAS SANDS, BENJAMIN )
GALLUCIO AND LOGAN KENNEY )
)
Plaintiff, )
) C.A. No.: N21C-02-008 FJJ
v. )
)
HOMESTAR REMODELING, LLC, )
)
Defendants. )

Submitted: October 2, 2025
Decided: October 14, 2025

DECISION AFTER TRIAL

Michael Ippoliti, Esquire, Ippoliti Law Group, Wilmington, Delaware, Attorneys
for Plaintiff.

Michael DeSantis, Esquire and Anthony Delcollo, Esquire, Offit, Kurman,
Wilmington, Delaware, Attorneys for Defendant

Jones, J.
Plaintiffs, Thomas Sands (“Sands”), Benjamin Galluccio (“Gallucio”) and

Logan Kenney (“Kenney”) are former employees of the Defendant Homestar

Remodeling, LLC (“Homestar”). Each Plaintiff brings claims against Homestar

relating to their compensation while employed by Homestar. Plaintiffs allege that

Homestar (1) violated the Delaware Wage Payment and Collection Act; (2)

violated the Fair Labor Standards Act; (3) breached its contracts with Plaintiffs;

(4) violated Delaware’s Minimum Wage Act; (4) engaged in fraud and/or

misrepresentation; (5) breached the duty of good faith and fair dealing; and (6)

was unjustly enriched. A three-day bench trial was held the week of November

12, 2024.1 Post trial submissions were completed on.2 This is the Court’s trial

decision.

PLAINTIFF’S MOTION IN LIMINE REGARDING SPOLIATION

During the course of discovery, Defendant produced 126 pages of discovery

in response to a request for production from Plaintiffs. Plaintiffs say that

Defendants did not produce, inter alia: (1) any portion of a personnel or

employment file, including, but not limited to, a resume, job application, job

description, wage or salary information, attendance records, attendance reports,

performance evaluations, or complete paycheck stubs for any of the plaintiffs, or

1
Docket Item (“D.I.”) 70.
2
D.I. 86, XX.

2
(2) any actual time (or hour) records for any of the Plaintiffs, or (3) any email or

text communication, with the exception of 6 responses.3 In light of this limited

production, Plaintiffs maintain that they are entitled to a spoliation instruction and

a finding that the Defendant is liable to the Plaintiffs.4 This request was initially

made in a Motion in Limine filed on October 8, 2024 where the Plaintiff moved to

preclude Defendant from introducing, discussing or referencing any documents

not produced in discovery.5 In addition to seeking preclusion, Plaintiffs requested

that this court conclude that the defendant “spoiled” the evidence and that the

Court make adverse inferences against the Defendant and impose liability against

the Defendant based on the Defendant’s failure to produce these records.6 As the

case was a bench trial, the Court ruled that it would hear the trial testimony and

make an appropriate ruling on the motion post-trial.7

I deny the Motion for two reasons. First, Defendant did not attempt to

introduce any documentary evidence that was not produced during discovery.

Second, Plaintiffs Motion comes too late and without a proper foundation.

In their Motion, Plaintiffs point out that the responses to their initial

discovery requests were served on March 4, 2022 and that they served a deficiency

3
D.I. 86 p.78.
4
Id. p.84.
5
D.I. 58.
6
D.I. 86 p.82-84.
7
D.I. 64.

3
notice on Defendants on July 5, 2022.8 Defendants subsequently responded to

these deficiencies. At that point, Plaintiffs took no further action to compel

discovery requests until the Motion in Limine was filed. In Christian v.

Counseling Resource Associates Inc.,9 the Delaware Supreme Court had occasion

to address a party’s failure to diligently bring discovery violations to the Court’s

attention. In Christian, the Court wrote:

To avoid this problem in the future, we now advise litigants that, if
they act without court approval, they do so at their own risk. If one
party misses a discovery deadline, opposing counsel will have two
choices – resolve the matter informally or promptly notify the court.
If counsel contacts the court, that contact can take the form of a
motion to compel, a proposal to amend the scheduling order, or a
request to conference. Any one of these approaches will alert the trial
court to the fact that discovery is not proceeding smoothly. With that
knowledge, the trial court will be able to take whatever steps are
necessary to resolve the problem in a timely fashion.

If the party chooses not to involve the court, that party will be
deemed to have waived the right to contest any late filings by
opposing counsel from that time forward. There will be no motions
to compel, motions for sanctions, motions to preclude evidence, or
motions to continue the trial. It is entirely possible, under this
scenario, that some vital discovery will not be produced until the
day before the trial. Still, the party prejudiced by the delay accepts
that risk by failing to promptly alert the trial court when the first
discovery deadline passes.10

The instant situation is akin to Christian. Plaintiffs request the Court to draw

adverse inferences due to an alleged discovery violation, but Plaintiffs took action

8
D.I. 58 p.2.
9
60 A.3d 1083 (Del. 2013).
10
Id. at 1087-88 (emphasis in original).

4
during the discovery process to seek a remedy from the Court. For this reason,

and because the Defendant did not introduce any exhibits not produced in

discovery, the Court denies Plaintiffs’ request to impose liability on the Defendant.

But that is not entirely the end of the matter. A thrust of Plaintiffs’ case is

that federal and state law required the Defendant to keep written records of the

hours actually worked by the Plaintiffs. As explained herein, there is no dispute

that the Defendant did not keep track of the Plaintiffs’ hours. In assessing the

question of how many hours Plaintiffs worked per week and whether they worked

weekends and/or trade shows, the Court has considered the testimony of the

Plaintiffs and the lack of records of the Defendants to reach the factual conclusions

it has reached on these issues. As the parties will see, infra, the Court has accepted

the testimony of the Plaintiffs on the average number of hours they worked per

week and whether they worked weekends and/or trade shows in large part because

of the testimony of the Plaintiffs and the lack of records to support Defendant’s

position as articulated by the Defendant’s witnesses on this point.

STATEMENT OF FACTS

Each Plaintiff testified at trial.11 Homestar called its two principles, Anton

Ladden and Daniel Jaffe.12 Homestar also called Cori Whittaker,13 its payroll

11
D.I. 80, 81.
12
D.I. 78, 81.
13
D.I. 81.

5
supervisor, and Janelle Wiser,14 Plaintiffs’ coworker who supervised both

Galluccio and Kenney.15 Each party submitted exhibits.16

Based on the evidence presented, the Court finds that the following facts

have been proven by a preponderance of the evidence.

Homestar is a home renovation business dealing primarily in windows, roof,

and siding.17 Homestar hires canvassers whose job is to venture into residential

neighborhoods and go door-to-door to get homeowners to have Homestar do

estimates for the services they provide in the hopes that the homeowner will

eventually sign a contract with Homestar for Homestar to do the work.18 Homestar

uses Indeed as one of its platforms to secure canvassers.19 During the interview

process with each potential canvasser, the Homestar representative who is

interviewing the prospective employee describes to the employee the

compensation plan.20 The compensation plan during the relevant time frame

provided for a daily base pay.21 The daily base pay could go anywhere from $85

per day to $120 a day depending on the number of leads22 and estimates23 that were

14
D.I. 79.
15
D.I. 81
16
See D.I. 70.
17
See D.I. 80 p. 241:18-242:2.
18
See D.I. 78 p. 9-18; D.I. 80 p. 38:9-14; 242:3-13.
19
D.I. 81 p. 146:10-22.
20
D.I. 78 p. 34:6-10; D.I. 81 p.194:16-195:1; 200:11-21; 244:1-11.
21
See D.I. 78 p. 11:5-10; D.I. 81 92:10-14. See also Defendant’s Exs. 1,5.
22
Leads are defined as getting a customer to agree to schedule an appointment for an estimate. See D.I. 81
p.139:1-3; 154:9-15.
23
Estimates involved sending a sales representative to a house to give a presentation and pricing. Estimates
either lead to a sale or a no sale. D.I. 81 p. 154:16-155:3.

6
secured during the week.24 The minimum base pay was $85 per day.25 Employees

could earn commissions based on the leads, estimates and sales secured.26 If the

leads, estimates, or sales generated led to a higher rate of pay for a particular week

the employee earned this higher rate.27 If the employee’s commission did not

generate income above the base pay the employee would receive the daily base

pay.28 In each interview, a paytracker sheet was used by Homestar employees to

explain the compensation plan to prospective employees.29 The prospective

employee was given the paytracker sheet.30

Once hired, the employee was required to undergo training.31 The training

period ran anywhere from one to two weeks and included training in the field

where the employee was shadowed by a more experienced canvasser.32

Employees also had an orientation on their first day.33 During orientation, the

compensation plan was once again explained to the employee using the

paytracker.34

24
Id. p. 271.
25
Id. p. 271:22-23.
26
D.I. 80 p. 38:2-5.
27
D.I. 78 p. 11:15-12:16.
28
Id.; D.I. 81 p. 160:13-15; 167:9-11.
29
D.I. 78 p. 34:6-10; D.I. 81 p.194:16-195:1; 200:11-21; 244:1-11.
30
Id. p.13:9-19; 136:16-20.
31
Id. p. 27:3-16; D.I. 80 p.247:2-6.
32
Id. p. 53:16-20.
33
Id. p. 47:10-12.
34
Id. p. 47:13-14; 48:15-49:14.

7
Employees’ attendance was tracked by the Homestar managers.35

Canvassers would report to Homestar at either 9 or 10 a.m.36 The day would begin

with a meeting with the managers.37 The meeting would last about an hour and

would include training and a review of the results from the day before. 38 The

canvassers would split up into a few groups, and the groups would go in a van to

the neighborhoods where they were canvassing.39 The members of the van would

work as a team once out in the field.40 Attendance for the day was tracked by the

managers on a white board where the groups for each van would be identified, and

the pictures of the van group would be taken and submitted to the payroll

manager.41 Homestar had no tracking system for keeping account of the number

of hours each canvasser worked.42 Homestar only kept track of the days worked

and not hours worked.43

Whittaker kept track of Plaintiff’s daily attendance on bi-weekly and master

spreadsheets.44 The spreadsheets are colored-coded to show days worked and how

many leads or estimates an employee got in a day.45 Whittaker testified that the

35
D.I. 81 p. 80:9-15.
36
Id. p. 48:13-20; 51:8.
37
Id. p. 153:14-20; D.I. 80 61:15-16.
38
D.I. 78 p. 20:17-21:9; D.I. 80 p. 61:16-17; p. 158:23-159:5.
39
Id. p. 61:17-62:2.
40
Id. p. 81:18-82:1.
41
Id. p.82:11-83:1; 117:15-22; D.I. 78 18:7-17.
42
D.I. 80 p. 234:15-17; 117:23-120:8; 121:9-15.
43
D.I. 81 p.234:15-17.
44
See Def. Exs. 2, 4, 7; Ct. Exs. 1-3.
45
D.I. 81 p. 76:1-4.

8
color-coding system has changed since Plaintiffs were employed46, but she

remembers the following: red indicated an employee was absent on that day;47

Saturday and Sundays are a different color to differentiate from the weekdays;48

and dark and maroon colors corresponded to the level of marketer.49 Additionally,

the bi-weekly spreadsheets have a grid for each week entitled “Days Worked” with

a number in it.50

Homestar had a system in place to make sure employees could review their

pay calculations.51 Homestar paid employees by direct deposit bi-weekly on a

Friday.52 Pay was issued by a vendor, ADP.53 The information ADP required to

complete the checks was inputted and sent to ADP by Jaffe or Ladden. 54 On the

Monday before payday, Whittaker would deliver spreadsheets for each employee

outlining the pay calculations for the two-week pay period to Jaffe and Ladden.55

At the bottom of the spreadsheet, there is a grid providing the total pay for Week

1 and Week 2 considering any bonuses and deductions.56 After Jaffe and Ladden

reviewed the calculations and made any corrections, the employees would get their

46
Id. p. 76:18-20; 77:8-11.
47
Id. p. 76:7-8.
48
Id. p. 76:9-11.
49
Id. p. 76:12-14.
50
See Def. Exs. 2, 4, 7.
51
D.I. 81 p. 71-72:14.
52
Id. p. 92:19-20.
53
See D.I. 80 p. 42:9-11.
54
D.I. 81 p.233:6-9.
55
Id. p. 71:18-21.
56
See Def. Exs. 2, 4, 7.

9
spreadsheets.57 This was done by Tuesday.58 Employees had until Thursday

afternoon to advise Homestar if they had any questions or concerns about the pay

calculation for that time period.59

Kenney applied for employment with Homestar as a canvasser after seeing

an ad on the Indeed job posting site.60 Kenney had no prior experience as a

canvasser.61 The Indeed job posting was for a marketing position and advised that

the job was base plus commission, and the salary range on the Indeed posting was

between $40,000 and $93,000.62 Kenney submitted his job application on or about

August 6, 2019.63 Kenney was interviewed first by phone and then had an in-

person interview with Homestar personnel.64 The job of canvasser (or marketer)

was described in detail to Kenney during his interview.65 During his in-person

interview, Kenney learned that the compensation for the job of canvasser was

different than what was advertised on Indeed.66 It was explained to Kenney that

the compensation system was base pay or commission – whichever was higher.67

Kenney understood as a result of what was explained to him by Homestar

57
D.I. 81 p. 71:22-72:8.
58
Id. p. 205:22-206:14.
59
Id. p. 206:15-21.
60
D.I. 80 p. 30:5-16.
61
Id. p. 119:16-19.
62
Id. p. 30:17-18; 33:14-23; 34:15-18.
63
Id. p. 35:10-20.
64
Id. p. 37:6-12.
65
D.I. 78 p. 10:22-11:4.
66
D.I. 80 p. 37:16-23; 97:1-11.
67
Id. p. 56:22-57:7.

10
personnel during the interview that he could get to the salary range outlined in the

Indeed ad but that he would have to work hard and be successful to achieve those

numbers.68 Kenney admitted both during his cross examination and in responses

to request for admissions that he never received an offer with a base salary of

$40,000.69

Kenney accepted the job at Homestar.70 He worked at Homestar until

March 2020.71 After training, Kenney was advised that he had to purchase clothing

from Homestar to wear during canvassing that identified him as a canvasser.72

Kenney was told that he had to pay for the clothing out of his paycheck and that if

he worked for Homestar for six months he would be reimbursed for the amounts

he paid for the clothing.73 Defendant’s attendance spreadsheets for Kenney

indicate $20 was deducted from each paycheck for his uniforms. 74 He was never

reimbursed for the clothing.75 The clothing was collected from him when he left

the company.76 According to Defendant’s spreadsheets kept for him, for the

duration of his employment, Defendant charged Kenney $260 for his uniforms.

68
Id. p. 39:15-23.
69
Id. p. 92:20-96:3.
70
Id. p. 52:9-15.
71
See Def. Ex. 2.
72
Id. p. 54:17-55:2.
73
Id. p. 56:5-11.
74
See Def. Ex. 2.
75
Id. p. 56:12-14.
76
Id. p. 59:5-12.

11
Homestar did not require Kenney to clock in and out.77 As far has he knew,

Homestar did not keep track of his hours.78 Kenney’s average workday while at

Homestar was 10 hours a day.79 The canvassers often arrived back to the office

after it was dark.80 This occurred in both the summer and winter months.81 No

overtime was ever paid to him.82

Kenney was required to work one Saturday a month.83 This Saturday could

include home shows.84 Kenney worked three to five home shows while employed

at Homestar.85 Some of these home shows required Kenny (and Galluccio and

Sands) to travel to Pennsylvania and New York. The only way a canvasser got

paid for a home show or Saturday work was for the leads generated.86 Hours were

not kept, and base pay was not paid for weekend work.87

Every paystub Kenney received reflected that he worked 80 hours.88 The

pay stub did not reflect a rate of pay.89 Kenney believed that he was entitled to

77
D.I. 80 p. 51:9-15; 64:18-21.
78
Id. p. 64:22-23; 65:16-22.
79
Id. p. 63:19-21; 69:9-10.
80
Id. p. 50:14-18.
81
Id. p. 62:11-63:1; 63:19-64:17.
82
Id. p. 65:9-15.
83
Id. p. 40:11-12; 41:4-9.
84
See Id. p. 43:7-10.
85
Id. p. 43:2-5.
86
Id. p. 43:6-44:3.
87
Id. p. 45:21-47:10.
88
Id. p. 72:5-8.
89
Id. p. 72:11-13.

12
receive at least $769.20 per week based on the Indeed ad that said that the low end

of the salary range was $40,000.90

Kenney agreed that if he did not show up for work, he would not be paid.91

Kenney’s weekly wage history revealed the following:92

Week Days Worked Gross Pay
08/19/2019 5 $520
08/26/2019 4 $520
09/02/2019 4 $490
09/09/2019 5 $500
09/16/2019 4 $600
09/23/2019 5 $900
09/30/2019 4 $510
10/07/2019 4.5 $362.50
10/14/2019 5 $545
10/21/2019 5 $500
10/28/2019 4 $825
11/04/2019 5 $405
11/11/2019 5 $445
11/18/2019 5 $405
11/25/2019 3 inside sales days $300
12/02/2019 5 $405
12/09/2019 3 $405
12/16/2019 5 $405
12/23/2019 3 $255
12/30/2019 3 $235
01/06/2020 4 $370
01/13/2020 5 $455
01/20/2020 4 $340
01/27/2020 3 $355
02/03/2020 4 $650
02/10/2020 4 + 1 inside sales day $420
02/17/2020 3 $85 ($170 deduction for no Sat work
in February)
90
Id. p. 79:17-20.
91
Id. p. 68: 6-13; 76:4-8;
92
See Def. Exhibit (Ex.) 2; Ct. Ex. 1.

13
02/24/2020 4 $420
03/02/2020 5 $660

Benjamin Gallucio and Kenney were friends.93 Kenney referred Gallucio

to Homestar.94 Gallucio had no prior canvassing experience.95 Like Kenney,

Gallucio also saw the Indeed ad.96 Gallucio interviewed for a canvasser position

with Homestar in August 2019.97 The pay structure was explained to Gallucio in

the job interview and during the training.98 The same explanation was given to

Gallucio as was given to Kenney. The paytracker was also reviewed with Gallucio

during the interview and training.99 Like Kenney, Gallucio admitted in a request

for admissions that he never received an offer of a base salary as a manner of

payment.100

Gallucio testified that he was paid in a manner consistent with what was

explained to him in the interview.101 Gallucio, like Kenney, also received the

paytracker every Tuesday before payday to review and to make sure that the

compensation matched his records as to what he was entitled to receive.102

93
D.I. 80 p. 146:14-16.
94
Id.
95
Id. p. 184:22-185:3.
96
Id. p. 146:20-21.
97
Id. p. 149:18-23.
98
Id. p. 152:5-8; 188:8-10.
99
Id. p. 188 11-13; 190:21-191:5-16.
100
Id. p. 183:3-15.
101
Id. p. 225:21-226:3.
102
Id. p. 183:19-184:5.

14
Also like Kenney, Gallucio was required to purchase apparel to identify

himself as a Homestar employee.103 Deductions were taken from his paycheck.104

He was never reimbursed for this purchase.105 The deductions totaled $220.106

Gallucio’s last day of work was in early March 2020.107

Gallucio’s workday averaged 10-hour days.108 There were numerous days

where the canvassers did not return to the office until after it was dark.109

Homestar did not track his daily hours.110

Gallucio worked every home show that occurred while he was employed at

Homestar.111 Employees were required to work at least one weekend day per

month.112 He was not paid any base pay for Saturdays or home shows.113

Gallucio agreed that he needed to show up to work to get paid.114

Gallucio’s wage history reveals the following:115

Week Days Worked Gross Pay
09/23/2019 5 $530
09/30/2019 5 $500
10/07/2019 5 $825
10/14/2019 5 $425
10/21/2019 5 $500
103
Id. p. 177:2-12.
104
Id.
105
Id.
106
See Def. Ex. 4.
107
D.I. 80 p. 187:3-5.
108
Id. p. 160:11-23; 161:1-8.
109
Id. p. 159:20-160:6.
110
Id. p. 171:19-21.
111
Id. p. 162:19-163:4.
112
Id. p. 164:4-7.
113
Id. p.165:20-166:9.
114
Id. p. 213:8-18.
115
See Def. Ex. 4; Ct. Ex. 3.

15
10/28/2019 and 11/4/2019 weeks $1400
11/11/2019 5 $425
11/18/2019 3 plus one PTO $320
11/25/2019 4 $340
12/02/2019 5 $405
12/09/2019 3 $405
12/16/2019 4 $320
12/23/2019 3 $255
12/30/2020 4 $340
01/06/2020 1 $105
01/13/2020 6 plus PTO $600
01/20/2020 3 plus PTO $760
01/27/2020 4 $380
02/03/2020 4 $470
02/10/2020 4 $355
02/17/2020 3 $255
02/24/2020 5 $520
03/02/2020 4 $385

Sands had experience as a canvasser prior to applying to Homestar. 116 At

the time of his application to Homestar, Sands was living in Illinois.117 He wanted

to move to the Delaware area to be closer to his family as his stepfather had been

diagnosed with a serious illness.118 Sands responded to an Indeed ad with a salary

range of $31,200 to $70,000.119 Sands drove the 950 miles from his home in

Illinois to interview with Homestar.120 Sands interviewed with Jaffe and Ladden

sometime between January 6, 2020 and January 20, 2020.121 The pay structure

116
D.I. 80 p. 233:4-12.
117
Id. p. 231:7-13.
118
Id. p. 229: 20-230:10.
119
Id. p. 231:2-9; 231:21-232:4.
120
Id. p. 231:9-18.
121
Id. p. 232:13-19; 238:12-16.

16
was explained to him along with the paytracker.122 Homestar extended an offer of

employment to Sands.123 According to Sands, he asked for, and was provided

with, an offer letter.124 Sands testified that he wanted a letter because he wanted

the terms of his employment to be clear.125 According to Jaffe, Sands asked for an

offer letter to provide it to any potential landlord so that he could secure rental

housing in Delaware for his family.126 The letter was addressed “to whom it may

concern” and provided in relevant part:

This is an offer letter for Thomas Sands. Thomas will be starting at
Homestar February 3rd, 2020. The position is a base+commission
position. The base pay is $31,200. Commission will add up to
anywhere between $700-$2,000 every single week. As such Thomas
is expected to make anywhere between $40,000-$73,000 over a years
[sic] time. If you have any questions please feel free to give me a call
at 267-664-0260.127

The letter is signed by Daniel Jaffe.128

According to Jaffe, the $31,200 figure was arrived at assuming that Sands

could secure two to three leads a week which Jaffe thought was very doable given

Sands’ prior experience.129 While the reason for this letter is contested by

Homestar, a letter was nonetheless provided to Sands.

122
D.I. 78 p.34:6-21; p.38:9-39:1.
123
D.I. 80 p. 232:20-23; 234:20-235:2.
124
Id. p. 240:5-8; 243:2-8.
125
Id. p. 240:5-19.
126
D.I. 78 p. 74:11-17.
127
J-X 8.
128
Id.
129
D.I. 78 p. 74:17-75:7; 77:3-13.

17
Sands started with Homestar on February 10, 2020.130 In reliance on the job

offer, Sands relocated his family to Delaware about two months earlier than he

was planning on relocating them.131 Sands asked for Homestar to pay for his hotel

room for the three weeks he lived in one until he could move his family to

Delaware.132 Homestar agreed to pay Sands one week at the hotel.133 Sands went

through the training with Homestar and was provided with the paytracker sheet as

well.134 Sands suffered from medical conditions that made it difficult for him to

go in the van with the other canvassers.135 He asked permission to be able to drive

to the neighborhoods in his own car and that permission was granted.136

Sands worked as an outside canvasser for three weeks until Covid broke out.

Once Covid hit, Sands was furloughed for approximately two months.137 When

Homestar called the canvassers back to work Sands discovered after one day that

his medical conditions and restrictions prevented him from doing the outside

canvassing work.138 At his request, Homestar moved Sands into an inside sales

job where he remained until he voluntarily left the company in September 2020.139

Sands testified that inside sales was essentially the same as canvassing expect

130
D.I. 80 p. 239:19-23.
131
Id. p. 235:21-236:2; D.I. 81 p. 9:17-19.
132
D.I. 81 p. 11:21-12:5.
133
D.I. 81 p. 14:5-7.
134
D.I. 80 p. 248:12-19; 250:18-251:20.
135
Id. p. 257:20-258:23.
136
Id. p. 259:1-6.
137
Id. p. 289:11-16.
138
Id. p. 288:10-289:4.
139
Id. p. 288:289:10; D.I. 81 p. 23:23-24:14.

18
inside sales used cold calling rather than knocking on doors, and inside sales was

able to schedule appointments directly.140 During the three-week period he

canvassed, the average work week was ten hours per day.141 The inside sales job

was also a ten-hour per day job.142 When Sands worked inside sales, he reported

to Defendant at the end of the day what time he started and ended.143 Sands

testified that he still worked the same schedule for inside sales as he had

canvassing and that each day he worked the same timeframe as the canvassers.144

Sands testified that he purchased $950 worth of Homestar clothing.145 He

was told that if he worked six months at Homestar he would be reimbursed for that

clothing.146 He was never reimbursed, and he had to give the uniforms back.147

Deductions were taken each of Sands’s paychecks in the amount of $20.148

Sands stopped working at Homestar on September 10, 2020.149 The

following is Sands wage history at Homestar:150

Week Days worked Gross Pay
02/10/2020 5 $530
02/17/2020 6 $700
02/24/2020 3 $280
03/02/2020 1.5 $127.50

140
D.I. 81 p. 51:2-19; D.I. 78 p.84:17-85:21.
141
D.I. 80 p. 261:1-5.
142
D.I. 81 p. 54:4-10.
143
D.I. 81 p. 25:10-18.
144
Id. p. 53:12-54:10.
145
Id. p. 255:22-256:23.
146
D.I. 81 p. 255:1-12.
147
Id. p. 256:17257:16.
148
Id. p. 256:5-16.
149
Id. p. 277:16-22.
150
See Def. Ex. 7; Ct. Ex. 2.

19
03/09/2020 2 $150
03/16/2020 4 $590
03/23/2020-5/10/2020 Furloughed
05/11/2020 3.5 $567
05/18/2020 5 $166.96 (deductions for an advance)
05/25/2020 5 $525
06/01/2020 5 $525
06/08/2020 No Data $525
06/15/2020 .5 $42.5
06/22/2020 to 07/05/2020 No Data $1,125
07/13/2020 to 07/26/2020 No Data $850
07/27/2020 to 08/09/2020 No Data $875
08/10/2020 to 08/23/2020 No Data $510
08/24/2020 to 09/06/2020 No Data $425

Each Plaintiff was presented with a copy of the Homestar attendance policy

at their orientation, and each Plaintiff signed a copy of the attendance policy.151

There are a number of factual issues that I must resolve each of which

impacts the Plaintiffs’ claims.

First, I am satisfied that as to each Plaintiff the compensation system was

explained to them before any of them took the job. It was made clear to each

employee before being hired that the base pay was structured on a daily rate that

ranged from $425 to $600 per week depending on the number of leads, estimates,

and sales that were secured in a given week. It was made clear to each Plaintiff

that their compensation was tied to their performance and the minimum daily base

pay was $425 per week. It was also clear to the Plaintiffs that in order to be paid

151
D.I. 78 p. 47: 16-18; 48:17; see Def. Ex. 3, 4, 6.

20
they had to show up for work, and, unless they had accrued PTO, they would not

be paid for time missed. I am satisfied that before each Plaintiff was hired, they

were given a paytracker that showed examples of the pay system and each know

that they would be paid every two weeks. In advance of the paycheck being cut,

Plaintiffs were given the results of the two week period to show how the pay was

calculated for that period and how much they were to receive. This gave Plaintiffs

an opportunity to challenge Homestar’s calculations.

I find as a fact that all three Plaintiffs were aware of Defendant’s

compensation system. To the extent it was inconsistent with any Indeed Ad, each

Plaintiff knew the compensation system was inconsistent with the Indeed Ad.

Each Plaintiff also knew the system was base pay or commission, whichever was

greater and that no minimum beyond the $425 per week pay was guaranteed. I

reject as a factual matter Plaintiffs’ argument that the Defendant engaged in a bait

and switch in which Defendant would lure the candidates in with an initial first

interview and have a second interview that, according to Plaintiffs, was convoluted

gibberish and double speak. I find as a factual matter that there was no bait and

switch utilized by the Defendant in this case.

I must resolve the number of hours that the canvassers averaged on a daily

basis. Kenney and Gallucio both testified that the average work day was ten hours.

Homestar presented testimony through Jaffee and a former employee Janelle

21
Wiser that the workday average was eight hours.152 Wiser managed both Kenney

and Gallucio.153 She confirmed that the canvassers would meet before each shift

for approximately a half an hour and then hit the neighborhoods.154 According to

Wiser, the actual canvassing took about four to five hours, and, during that time,

there were breaks, including a lunch break.155 However, Wiser also testified that

it was usually dark when the canvassers returned to Homestar’s base.156 Homestar

did not keep track of its employees’ daily hours, only the days the employees

worked. Based on all of the testimony, I conclude that the more credible testimony

is that the employees average workday was 10 hours of work per day when they

worked as outside canvassers.

I must address the question of whether any of the Plaintiffs worked

weekends and how they were compensated for that work. I find that as to Kenney

and Gallucio they were required to work at least one weekend a month. I find that

they worked one day on a weekend one day a month for 10 hours each of those

days. I find that Kenney, Gallucio and Sands all travelled out of state to attend at

least one home show.

152
D.I. 78 p. 127: 21-128:5; D.I. 79 p. 30:12-21.
153
Id. p. 4:20-5:8.
154
Id. p. 49:16-50:2.
155
Id. p. 49: 16-50:2.
156
Id. p. 50:3-4.

22
I find that Homestar did post the notices required under the various statutes

in an area where the plaintiffs could have seen it had they paid attention to it.

I find that Homestar did deliver to Sands the offer letter indicating that he

would receive base pay of $31,200 to do the canvassing job. For me it does not

matter why the letter was prepared only that it was prepared, given to Mr. Sands

and signed by Jaffe.

ANALYSIS

Plaintiffs have advanced the following claims (1) Fraud/Misrepresentation

or the “Bait and Switch” ploy, (2) Violation of the Fair Labor Standards Act, (3)

Violation of the Delaware Wage Payment and Collection Act, (4) Breach of

Contract, (5) Violation of the Minimum Wage Act of the State of Delaware, (6)

Breach of Duty of Good Faith and Fair Dealing, and (7) Unjust Enrichment.

The first matter to address, as it informs the Court’s decision on the claims,

is the Defendant’s statute of limitations defense as it relates to the claims of

Kenney and Gallucio.

Suit was filed on February 1, 2021.157 As to all of plaintiffs state based

claims there are two potential applicable statute of limitations, 10 Del. C. § 8106

which is Delaware’s three-year statute for breach of contract claims, and 10 Del.

C. § 8111, which deals with claims “for recovery upon a claim for wages, salary,

157
D.I. 1.

23
or overtime work, labor or personal services performed and provides for a one-

year statute of limitations.158 If the claims arise from services which have been

performed, then the one-year period applies. In contrast, where a plaintiff’s claims

arise upon or after the termination of the employer-employee relationship, then the

three-year statute applies.159 Plaintiffs’ claims very clearly arise from services

which have been performed. Therefore, the one-year statute applies.

Plaintiffs first contend that the statute has tolled because the Defendant

failed to comply with the disclosure requirements of the Delaware Wage and

Collection Act,160 which requires an employer to post in the workplace a poster

notifying employees of certain rights.161 Given that I have found as a factual

matter that the Defendant did in fact post the required notice, this tolling argument

has no merit.

Plaintiffs next contend that the Defendant waived the statute of limitations

defense by not including it in their answer. Defendant contends not so. The instant

matter is a consolidated action.162 Originally, a separate lawsuit was filed by each

Plaintiff, and, in the answer to each of those lawsuits, Defendant asserted the

158
10 Del. C. § 8111 was amended by 84 Del. Laws c.20, § 1, effective April 26, 2023, to extend the limitations
period under this section to two years. However, as this case was filed before the amendment was effect, it has
no applicability to this case.
159
Little Switzerland Inc. v. Hopper, 867 A.2d 955 (Del. Ch. 2005); Compass v. American Mirrex Corp., 72
F.Supp.2d 462 (D. Del. 1999).
160
19 Del. C. § 1108(3).
161
Turner et. al. v. Diamond Shamrock Chemicals Co., 1987 WL 17175 (Del. Super. Sept. 14, 1987).
162
See D.I. 9.

24
statute of limitations as an affirmative defense.163 After the cases were

consolidated and the Plaintiffs’ depositions were taken, Plaintiffs moved to file an

amended complaint – which the Court granted.164 The Amended Complaint was

filed.165 In the Answer to the Amended Complaint, the statute of limitations was

not raised as a defense. 166 In the pretrial stipulation, Defendant asserted the statute

of limitations again.167

Delaware law provides the Court with the discretion to permit a defendant to

amend its answer to assert previously unasserted defenses.168 Moreover, the Court

has the discretion to allow the amendment of an answer so long as the amendment

does not unduly surprise or prejudice the plaintiff.169 The Court should give leave

to amend an answer “freely” when justice so requires, and, although leave to

amend is not automatic, “Delaware courts generally grant motions to amend

liberally.”170

At the time of Plaintiffs’ depositions, the operative Complaint and Answer

had the statute of limitations in play for both Gallucio and Kenney. Other than

163
See Thomas M. Sands v. Homestar Remodeling LLC, N21C-02-008, D.I. 5 p.9; Benjamin J. Gallucio v.
Homestar Remodeling LLC, N21C-02-010, D.I. 5 p.8; Logan E. Kenney v. Homestar Remodeling LLC, N21C-02-
012, D.I. 4 p. 8.
164
D.I. 29.
165
D.I. 137.
166
See D.I. 38.
167
D.I. 63.
168
Festival Fun Parks, LLC v. MS Leisure Co., 2023 WL 8714994, at *7 (Del Super. Dec. 18, 2023) (citing
Knutkowski v. Cross, 2011 WL 6820335, at *2 (Del. Ch. Dec. 22, 2011)).
169
Id.
170
Id. (quoting MVC Cap. Inc. v. U.S. Gas & Elec., Inc., 2021 WL 4486462, at *2 (Del. Super. Oct. 1, 2021)).

25
asserting additional causes of action, the Amended Complaint did not change the

Plaintiffs’ claims. Given the procedural posture of this case and the fact that I

allowed the Plaintiffs to amend their Complaint, I will grant the Defendants

request to assert the statute of limitations defense.

Applying the one-year limitations period under 10 Del. C. § 8111, Gallucio

and Kenney’s state-based claims before February 1, 2020 are barred as well as

their claim to recover the money deducted from their paychecks for uniforms.

The Fair Labor Standards Act has a two-year statute of limitations. 29

U.S.C.A. 255. As outlined below I find that defendant violated the Fair Labor

Standards Act. As all of the plaintiffs’ claims based on the Fair Labor Standards

Act fall within the two-year period none of the Fair Labor Standard Act claims are

barred by the statute of limitations.

VIOLATION OF THE FAIR LABOR STANDARDS ACT (“FLSA”)

Section 207 of the FLSA requires employers to compensate their employees

for working more than forty hours in one work week.171 When that is the case,

employers must pay the employees “at a rate not less than one and one-half times

the regular rate at which he is employed.”172 An employer who violates this

Section is liable for the employee’s unpaid overtime compensation as well as

171
29 U.S.C. § 207(a)(1).
172
Id.

26
additional liquidated damages.173 Liquidated damages are mandatory, and the

court only has discretion to deny them if an employer can demonstrate by plain

and substantial proof that it “acted in good faith and that [it] had reasonable

grounds” to believe it did not violate the FLSA.174 The purpose of the liquidated

damages provision is to acknowledge that “double payment must be made to

compensate employees for losses they might suffer by not receiving their lawful

payment when it was due.”175

Defendants correctly point out that for the FLSA to apply the employment must

involve interstate commerce. I find as a factual matter that plaintiffs have satisfied

the interstate commerce requirement of the statute by the fact that they each

travelled to a home show for work that was out of state.

I have found as a factual matter Plaintiffs accrued 50 hours of work when they

worked five days in one week. In accordance with FLSA requirements, Plaintiffs

must be paid time and a half for the extra ten hours worked those weeks. I have

also found as a factual matter that each Plaintiff was required to work at least one

weekend day a month. When Plaintiffs worked 40, or more, hours during the

173
Id. § 216(b).
174
29 U.S.C. § 260; Elite Cleaning Co., Inc. v. Capel, 2006 WL 1565161, at *12 (Del. Ch. June 2, 2006) (quoting
Brock v. Claridge Hotel & Casino, 846 F.2d 180, 187 (3d. Cir. 1988)); Williams v. Tri-County Growers, Inc., 747
F.2d 121, 129 (3d. Cir. 1984).
175
Brooks v. Vill. Of Ridgefield Park, 185 F.3d 130, 137 (3d. Cir. 1999).

27
week, Plaintiff is also owed overtime compensation for any weekend hours

worked.

Additionally, Defendant did not comply with the FLSA’s requirement to keep

and preserve record of Plaintiffs’ hours worked.176

Plaintiffs complain that the Defendant failed to withhold State and Federal

taxes from their paychecks, as required by law. While Plaintiffs are correct that

Defendant was obligated to withhold taxes from Plaintiffs’ wages, Plaintiffs have

previously conceded that this failure does not provide Plaintiffs, as opposed to the

taxing authorities, with any remedy.177 Plaintiffs have also previously conceded

that the law does not recognize a private right of action to an employee against an

employer for the employer’s failure to withhold federal and/or state income

taxes.178 The Court agrees that there is no private right of action for this claim.

Therefore, judgment is entered in favor of the Defendant on Plaintiffs’ claim for

failure to withhold taxes.179

VIOLATION OF THE DELAWARE MINIMUM WAGE ACT

Under Delaware’s Minimum Wage Act, “every employer shall pay to every

employee in any occupation wages of a rate” not less than the amount established

176
29 U.S.C. § 211(c).
177
D.I. 36 p. 3-4.
178
Id. (citing 26 U.S.C. §3403; Burda v. M. Ecker Co., 2 F.3d 769, 775 (7th Cir. 1993); Edgar v. Inland Steel Co.,
774 F.2d 1276, 1278 (7th Cir. 1984); Parker v. Amazon.com.indc LLC, 2018 WL 5306874 (S.D. Ind. 2018);
Rumfelt v. Jazzie Pools, Inc., 2011 WL 2144553 (E.D. Va. 2011)).
179
Plaintiffs request that this Court refer this matter to the relevant taxing authorities to advise of the Defendant’s
violations. The Court declines to accept Plaintiffs’ invitation to take this step.

28
in the statute.180 An employer who fails to pay its employees minimum wage is

liable to its employees for the full amount of wages entitled by minimum wage

requirements minus any amount actually paid.181 In September 2019, when

Kenney and Gallucio began working for Homestar, Delaware’s minimum wage

requirement was $8.75.182 The statute was amended to increase the minimum

wage to $9.25 as of October 1, 2019.183

The Minimum Wage Act also requires employers to keep and preserve a record

of employees’ hours worked each day.184 As stated above, Defendant failed to

properly record and preserve Plaintiffs’ hours worked each day.

BREACH OF CONTRACT

A valid, enforceable contract requires an offer, acceptance, consideration, and

parties’ intent that the contract is binding.185 A contract must also “contain all

material terms in order to be enforceable,” and the terms must be sufficiently

definite.186 It is well-established that a valid offer is the “manifestation of

180
19 Del. C. § 902(a).
181
Id. § 911.
182
Id., amended by 81 Del. Laws, c. 301, §1; see § 902(a)(3) of the amendment.
183
Id., amended by 81 Del. Laws, c. 301, §1; see § 902(a)(4) of the amendment. Delaware’s minimum wage
statute has since been amended to reflect another increase in minimum wage; however, the amendment was not
effective until after Plaintiffs ceased working for Homestar. Id., amended by 83 Del. Laws, c. 81, § 1.
184
19 Del. C. § 907.
185
Shilling v. Shilling, 332 A.3d 453, 462 (Del. 2024).
186
Id. (quoting Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010)).

29
willingness to enter into a bargain, so made as to justify another person in

understanding that his assent to that bargain is invited and will conclude it.”187 A

job posting is not itself an offer; it is an invitation to negotiate the terms of potential

employment.188

As to Kenney and Gallucio, a contract based on the Indeed ad was not formed

with Homestar. The Indeed ad was not an offer.189 Instead, they were invitations

for Kenney and Gallucio to discuss with Homestar the terms of potential

employment – which is exactly what the parties did.190 Jaffe and Ladden discussed

Homestar’s compensation plan with Kenney and Gallucio during their in-person

interviews and training.191 That is the salary Kenney and Gallucio understood and

agreed to work for, not the salary listed in the Indeed ad.

In contrast, Homestar’s offer letter to Sands was more than an invitation to

negotiate. The letter, dated February 3, 2020, stated “[t]his is an offer letter for

Thomas Sands” and stated Sands’ base pay for the year.192 The letter is signed by

Homestar’s owner, Daniel Jaffe, and includes a scan of Sands’ driver’s license.193

187
Wilgus v. Salt Pond Inv. Co., 498 A.2d 151, 156 (Del. Ch. 1985) (citing Restatement (Second) of Contracts §
24 p.71 (1981)).
188
Keene Corp. v. Hoofe, 267 A.2d 618, 622-23 (Del. Ch. 1970) (holding the terms of a job posting were not
binding terms on the parties, but rather the court looked to what the parties formally agreed upon in later
discussions); see Salisbury v. Credit Service, 199 A. 674, 681 (Del. Super. Ct. 1937) (“[A] mere statement of a
person’s willingness to enter into negotiations with another person is in no sense an offer and cannot be accepted
so as to form a binding contract.”)
189
See Joint Trial Exhibit (“J-X”) 1-5.
190
See D.I. 80 p. 37:16-23; 56:22-57:7; 97:1-11; 149:18-23; 188:8-10.
191
See Id. 97:1-11; 188:8-10; D.I. 78 p. 10:11-14:10.
192
See J-X 8.
193
Id.

30
Additionally, it does not matter whether Jaffe subjectively intended to enter into a

contract with Sands. “Overt manifestation of assent,” not subjective intent,

informs whether a contract has been formed with the parties’ requisite intent.194

Homestar must pay Sands on the terms of the contract – an amount based on at

a $31,200 yearly base pay.195 The contract clearly entitles Sands to the contract

amount.

VIOLATION OF THE DELAWARE WAGE PAYMENT AND
COLLECTION STANDARDS ACT (“DWPCA”)

The Delaware Wage Payment and Collection Standards Act requires employers

to pay all wages due to their employees on the designated paydays and refrain from

withholding wages.196 This Act also requires an employer to keep record of the

hours each employee works.197 If the Court enters a judgment for a plaintiff under

194
See Eagle Force Holdings, LLC v. Campbell, 187 A.3d 1209, 1229 (Del. 2018) (quoting Black Horse Cap., LP
v. Xstelos Holdings, Inc., 2014 WL 5025926, at *12 (Del. Ch. Sept. 30, 2014) (quoting Indus. Am., Inc v. Fulton
Indus., Inc., 285 A.2d 412, 415 (Del. 1971)) (citing 2 Williston on Contracts note142, at § 6:3 (4th ed.) (“[S]ince
the formation of informal contracts depends not upon an actual subjective meeting of the minds, but instead upon
outward, objective manifestations of assent, an actual intention to accept is unimportant except in those situations
when the acts or words of the offeree are ambiguous.”)
195
The letter states the following, “[t]he base pay is $31,200. Commission will add up to anywhere between
$700-$2000 every single week. As such Thomas is expected to make anywhere between $40,000-$73,000 over a
year’s time.
196
19 Del. C. § 1102; 1107.
197
Id. § 1108(6).

31
this Act, the plaintiff can be awarded costs and reasonable attorney’s fees paid by

the defendant.198

Under the DWPCA Section 1103(b), an employer who “without reasonable

grounds for dispute under…§ 1107 of this title, fails to pay an employee wages as

required under this chapter,” is liable to its employees for liquidated damages in

the lesser amount of: (a) ten percent of the unpaid wages for each day, except

Sunday and legal holidays, upon which the failure continues after the day upon

which payment is required, or (b) an amount equal to the unpaid wages.199 This

Court has held that it aligns with public policy to apply the provisions of Title 19,

Chapter 11 of the Delaware Code to an employee entitled to pay no matter the

source of that employee’s right to wages – whether that source is by contract or

statute.200

Based on the calculation of damages contained later in this Opinion, I find that

Defendant violated DWPCA Section 1102 for failing to pay wages due to Plaintiffs

and Section 1107 for withholding Plaintiffs’ wages. To recover under Section

1103(b), an absence of reasonable grounds for dispute must be proven.201 The

198
Id. § 1113(c).
199
Id. § 1103(b)(2)a-b. The purpose for recovery of liquidated damages is to “provide [] for a penalty in an
amount equal to the amount of the outstanding wages if the employer has withheld pay from an employee without
reasonable grounds.” Kutney v. Saggese, 2002 WL 1463092, at *1 (Del. Super. July 8, 2002).
200
State ex rel. Christopher v. Planet Ins. Co., 321 A.2d 128, 133 (Del. Super. May 24, 1974) (holding that
plaintiffs could recover under Chapter 11’s provisions, including Section 1103(b), because wages provided for in
a contract fall under Chapter 11’s definition of wages).
201
See 19 Del. C. § 1103(b).

32
Code does not define “reasonable grounds for dispute,” but case law provides

some guidance.202 Defendant fails to demonstrate a reasonable ground for dispute

for withholding Plaintiffs’ wages and, thus, owes liquidated damages to all

Plaintiffs.

I have also found, based on testimony and Defendant’s lack of documentation,

that Defendant did not keep record of the Plaintiffs’ hours worked. Therefore,

Defendant violated DWPCA Section 1108(6).

FRAUD AND MISREPRESENTATION

The elements of fraud and misrepresentation are the following:

(1) a false representation, usually one of fact, made by the defendant;
(2) the defendant’s knowledge or belief that the representation was
false, or was made with reckless indifference to the truth; (3) an intent
to induce the plaintiff to act or to refrain from acting; (4) the
plaintiff’s action or inaction taken in justifiable reliance upon the
representation; and (5) damage to the plaintiff as a result of such
reliance.203

A false representation is an “overt misrepresentation” or a “deliberate concealment

of material facts, or [] silence in the face of a duty to speak.”204

202
Delaware Bay Surgical Servs., P.C. v. Swier, 900 A.2d 646, 654 (Del. 2006) (holding a reasonable ground for
dispute is “when an employee leaves owing an employment-related debt to his employer, the employer may
deduct the employee’s debt from final wages.”)
203
E.I. DuPont de Nemours and Co. v. Fla. Evergreen Foliage, 744 A.2d 457, 461-62 (Del. 1999). Under
Delaware law, the elements for common law fraud, fraudulent inducement, and fraudulent misrepresentation are
the same. Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 2018 WL 6311829, at *31 (Del.
Ch. Dec. 3, 2018); Oglesby v. Conover, 2011 WL 3568276, at *3 (Del. Super. May 16, 2011).
204
Id. at *32 (quoting Stephenson v. Capano Dev., 462 A.2d 1069, 1074 (Del. 1983).

33
Plaintiffs assert that Defendant’s made false representations intending to induce

the Plaintiffs to work for Defendant through fraudulent job descriptions and

compensations on the Indeed advertisement.205 Despite what the advertisements

stated, I have already determined, as a factual matter, that each Plaintiff knew what

Defendant’s compensation plan was upon taking the position. The compensation

plan discussed by Homestar employees with Plaintiffs may have differed from the

salaries listed in the advertisements. Nonetheless, after discussing the

compensation plan with Jaffe and Ladden, Plaintiffs understood how Defendant

was compensating them for their work, and Defendant employed the compensation

plan discussed.

There is no evidence that Defendant intentionally or negligently made false

representations to induce Plaintiffs to work for them. Moreover, given my finding

that the pay structure was adequately explained to Plaintiffs before they began

work, there was no justifiable reliance on the part of Plaintiffs to the Indeed ad.

Therefore, Defendant is not liable for fraud or misrepresentation.

BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING

The duty of good faith and fair dealing applies to every contract. 206 The duty

is “‘best understood as a way of implying terms in the agreement,’ whether

205
D.I. 86 p. 22, 45.
206
Loeffler v. MNTN, Inc., 2025 WL 1256148, at *5 (Del. Super. Apr. 28, 2025) (citing Merrill v. Crothall-
American Inc., 606 A.2d 96, 101 (Del. 1992); Blish v. Thompson Automatic Arms Corp., 64 A.2d 581, 597 (Del.
1948)).

34
employed to analyze unanticipated developments or to fill gaps in the contract’s

provisions.”207 It “does not establish a free-floating requirement that a party act in

some morally commendable sense,” nor “does it ‘require that a party have acted

in subjective good faith.’”208 The implied duty “ensures that the parties deal

honestly and fairly with each other when addressing gaps in their agreement.”

The implied duty has been narrowly applied in employment contract

circumstances.209 In Merrill v. Crothall-American Inc., the Delaware Supreme

Court adopted the rule that for an employer to have breached the implied covenant

“the conduct of the employer must constitute ‘an aspect of fraud, deceit or

misrepresentation.”210 The Court later emphasized this duty applies to an

employer conduct which “manifest[s] bad faith or unfair dealing achieved by

deceit or misrepresentation in falsifying or manipulating a record to create fictious

grounds to terminate employment.”211

There was no contract between Homestar and Kenney and Gallucio, therefore

this claim is inapplicable to them. As to Sands, he has failed to show the Court an

unanticipated development or gap in his contract with Homestar which warrants

207
Loeffler, 2025 WL 1256148, at *5 (quoting Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 441 (Del.
2005)).
208
Loeffler, 2025 WL 1256148, at *5 (quoting Allen v. EL Paso Pipeline GP Co., L.L.C., 113 A.3d 167, 182-83
(Del. Ch. 2014)).
209
See E.I. DuPont de Nemours and Co. v. Pressman, 679 A.2d 436, 443-44 (Del. 1996); Merrill v. Crothall-
American, Inc., 606 A.2d 96, 102 (Del. 1992).
210
606 A.2d at 101 (quoting Magnan v. Anaconda Indus., Inc., 429 A.2d 492, 494 (Conn. Super. Ct. 1980)).
211
Pressman, 679 A.2d at 443-444.

35
the Court to find that there was a specific implied contractual obligation Homestar

owed to Sands. The money Homestar owes to Sands for his employment is an

express term in their contract which is appropriate for a breach of contract claim –

not a breach of implied duty of good faith and fair dealing claim. 212 Even if the

Court were to find an implied covenant within the contract, I have already

established that Homestar did not act with fraud or deceit in hiring and employing

Sands.

UNJUST ENRICHMENT

Unjust enrichment is the “unjust retention of a benefit to the loss of another, or

the retention of money or property of another against the fundamental principles

of justice or equity and good conscience.”213 A successful claim for unjust

enrichment requires “(1) an enrichment, (2) an impoverishment, (3) a relation

between the enrichment and impoverishment, and (4) the absence of

justification.”214

Plaintiffs claim Defendant was unjustly enriched by withholding money owed

to Plaintiffs and failing to take out taxes from Plaintiffs’ paychecks. 215 Further,

212
See J-X 8; see Cygnus Opportunity Fund, LLC v. Washington Prime Grp., LLC, 302 A.3d 430, 458 (Del. Ch.
2023) (“[A] court determines whether the language of the contract expressly covers a particular issue, in which
case the implied covenant will not apply…”)
213
Nemec v. Shrader, 991 A.2d 1120, 1130 (Del. 2010).
214
Id. The Delaware Supreme Court held the traditional fifth element, “the absence of a remedy provided by
law,” is only required when an unjust enrichment claim is brought in Court of Chancery. State ex rel. Jennings v.
Monsanto Co., 299 A.3d 372, 391 (Del. 2023).
215
D.I. 86 p.72.

36
Plaintiffs contend Defendant was unjustly enriched by its failure to reimburse

Plaintiffs for the $20 taken from each paycheck for uniforms.216

Discussed supra, Plaintiffs do not have a claim to recover for Defendant’s

failure to withhold State and Federal taxes. Additionally, the Court is allowing

Plaintiffs to recover the wages owed to them, subject to applicable statute of

limitations periods, under the recited statutory provisions. As to reimbursement

for uniforms, Kenney and Gallucio are barred by the statute of limitations from

recovering for their uniforms. However, Sands may recover for the $950 he

testified that he had to pay for the uniforms Defendant took back and failed to

reimburse for.

CALCULATION OF DAMAGES

First, I turn to calculation of Kenney and Gallucio’s damages under the FLSA

and Delaware’s Minimum Wage Act. The calculations are based on Delaware’s

$9.25 minimum wage and a correlating time and a half overtime compensation of

$13.88. 217 As stated above, I have found as a factual matter that each day is a 10-

hour day. I gathered the hours and pay data from Defendant’s attendance tracking

spreadsheets and the ADP Earning Statements – both entered into evidence – trial

216
Id. p.75.
217
In Delaware, to meet minimum wage, an employee working 40 hours in a week must be paid $370.00 for the
week (40 hours x $9.25), an employee working 30 hours in a week must be paid $277.50 (30 hours x $9.25), an
employee working 20 hours in a week must be paid $185.00 for the week (20 hours x $9.25), and so on. The $9.25
rate went into effect on October 1, 2019. Prior to October 1, 2019, the rate was $8.25. The appropriate rate has
been used for the relevant time period.

37
testimony on hours worked, and the fact that Defendant did not keep hourly

records.218

The below charts are my calculations of how much Defendant owes Kenney

and Gallucio, respectively, in unpaid wages under the FLSA and Delaware’s

Minimum Wage Statute. Since the Court finds Sands has a contract with a

different amount his calculations were done separately.

Logan Kenney219

Week Days Normal Overtime Calculation Amount Amount
Worked Hours Hours Paid Owed
Worked Worked
08/19/2019 5 days 40 hours 10 hours (40 hours) x $520.00 $0
($8.75) =
$350
(10 hours) x
($12.75) =
$127.50
08/26/2019 4 days 40 hours 0 hours (40 hours) x $520.00 $0
($8.75) =
$350
09/02/2019 4 days 40 hours 0 hours (40 hours) x $490.00 $0
($8.75) =
$350
09/09/2019 6 days220 40 hours 20 hours (40 hours) x $500.00 $605.00 -
Not paid (included ($8.75) = $500.00 =
overtime monthly $350 $105.00
weekend
day)
(20 hours) x
($12.75) =
$255.00

218
See Def. Exs. 2, 4, 7; Ct. Exs. 1-3.
219
In some circumstances, the ADP Earning Statement and corresponding spreadsheet do not match the total
number paid to a Plaintiff for that two-week period. In those instances, I used whichever number was lower. This
applies to all calculations for each Plaintiff.
220
Because I have found as a factual matter that Plaintiffs worked one weekend day a month, I have added ten
hours to the week with the highest number of hours already worked.

38
09/16/2019 4 days 40 hours (40 hours) x $600.00 $0
($8.75) =
$350
09/23/2019 5 days 40 hours 20 hours (40 hours) x $900.00 $0
($8.75) =
$350
(20 hours) x
($12.75) =
$255.00
09/30/2019 4 days 40 hours (40 hours) x $510.00 $0
($8.75) =
$350
10/07/2019 4.5 days 40 hours 5 hours (40 hours) x $362.50 $439.40 -
Not paid ($9.25) = $362.50 =
overtime $370 $76.90
(5 hours) x
($13.88) =
$69.40
10/14/2019 5 days 40 hours 10 hours (40 hours) x $545.00 $0
($9.25) =
$370
(10 hours) x
($13.88) =
$138.80
10/21/2019 6 days 40 hours 20 hours (40 hours) x $500.00 $647.60 -
Not paid (included ($9.25) = $500.00 =
overtime monthly $370 $147.60
weekend
day)
(20 hours) x
($13.88) =
$277.60
10/28/2019 4 days 40 hours 0 hours (40 hours) x $825.00 $0
($9.25) =
$370
11/04/2019 5 days 40 hours 10 hours (40 hours) x $405.00 $508.80 -
Not paid ($9.25) = $405.00 =
overtime $370 $103.80
(10 hours) x
($13.88) =
$138.80
11/11/2019 5 days 40 hours 10 hours (40 hours) x $445.00 $508.80 -
Not paid ($9.25) = $455.00 =
overtime $370 $63.80

39
(10 hours) x
($13.88) =
$138.80
11/18/2019 6 days 40 hours 20 hours (40 hours) x $405.00 $647.60 -
Not paid (included ($9.25) = $405.00 =
overtime monthly $370 $242.60
weekend
day)
(20 hours) x
($13.88) =
$277.60
11/25/2019 3 days 30 hours 0 hours (30 hours) x $300.00 $0
($9.25) =
$277.50
12/02/2019 5 days 40 hours 10 hours (40 hours) x $405.00 $508.80 -
Not paid ($9.25) = $405.00 =
overtime $370 $103.80
(10 hours) x
($13.88) =
$138.80
12/09/2019 3 days 30 hours 0 hours (30 hours) x $405.00 $0
($9.25) =
$277.50
12/16/2019 6 days 40 hours 20 hours (40 hours) x $405.00 $647.60 -
Not paid (included ($9.25) = $405.00 =
overtime monthly $370 $242.60
weekend
day)
(20 hours) x
($13.88) =
$277.60
12/23/2019 3 days 30 hours 0 hours (30 hours) x $255.00 $277.50 -
Not paid ($9.25) = $255.00 =
minimum $277.50 $22.50
wage
12/30/2019 3 days 30 hours 0 hours (30 hours) x $235.00 $277.50 -
Not paid ($9.25) = $235.00 =
minimum $277.50 $42.50
wage
01/06/2020 4 days 40 hours 0 hours (40 hours) x $370.00 $0
($9.25) =
$370
01/13/2020 6 days 40 hours 20 hours (40 hours) x $455.00 $647.60 -
Not paid (included ($9.25) = $455.00 =
overtime monthly $370 $192.60

40
weekend
day)
(20 hours) x
($13.88) =
$277.60
01/20/2020 4 days 40 hours 0 hours (40 hours) x $340.00 $370.00 -
Not paid ($9.25) = $340.00 =
minimum $370 $30.00
wage
01/27/2020 3 days 30 hours 0 hours (30 hours) x $355.00 $0
($9.25) =
$277.50
02/03/2020 4 days 40 hours 0 hours (40 hours) x $650.00 $0
($9.25) =
$370
02/10/2020 5 days 40 hours 10 hours (40 hours) x $420.00 $508.80 -
Not paid ($9.25) = $420.00 =
overtime $370 $88.80
(10 hours) x
($13.88) =
$138.80
02/17/2020 3 days 30 hours 0 hours (30 hours) x $85.00 $277.50 -
Not paid $9.25 = $85.00 =
minimum $277.50 $192.50
wage
02/24/2020 4 days 40 hours 0 hours (40 hours) x $420.00 $0
($9.25) =
$370
03/02/2020 6 days 40 hours 20 hours (40 hours) x $660.00 $0
(included ($9.25) =
monthly $370
weekend
day)
(20 hours) x
($13.88) =
$277.60
Overtime compensation owed: $1,367.50
Minimum wage owed: $192.50221
TOTAL OWED: $1560.00

221
The claims for minimum wage owed before February 3 rd, 2020, are barred by the Statute of Limitations, as
discussed in this opinion. Therefore, the minimum wage deficiencies on the following dates are not included in
the final calculation: 12/23/2019, 12/30/2019, and 01/20/2020.

41
Benjamin Gallucio

Week Days Normal Overtime Calculation Amount Amount
Worked Hours Hours Paid Owed
Worked Worked
09/23/2019 5 days 40 hours 10 hours (40 hours) x $530.00 $0
($8.75) =
$350
(10 hours) x
($13.88) =
$138.80
09/30/2019 5 days 40 hours 10 hours (40 hours) x $500.00 $0
Not paid ($8.75) =
overtime $350
(10 hours) x
($13.88) =
$138.80
10/07/2019 5 days 40 hours 10 hours (40 hours) x $825.00 $0
($9.25) =
$370
(10 hours) x
($13.88) =
$138.80
10/14/2019 6 days 40 hours 20 hours (40 hours) x $425.00 $647.60 -
Not paid (included ($9.25) = $425.00 =
overtime monthly $370 $222.60
weekend
day)
(20 hours) x
($13.88) =
$277.60
10/21/2019 5 days 40 hours 10 hours (40 hours) x $500.00 $0
($9.25) =
$370
(10 hours) x
($13.88) =
$138.80
10/28/2019
222

11/04/2019
11/11/2019

222
The Court was not provided with any information for these weeks other than the gross pay for this period was
$1400. Plaintiff has not sustained his burden of proof for this period.

42
11/18/2019 4 days 40 hours 0 hours (40 hours) x $320.00 $370.00 -
Not paid ($9.25) = $320.00 =
minimum $370 $50.00
wage
11/25/2019 4 days 40 hours 0 hours (40 hours) x $340.00 $370.00 -
Not paid ($9.25) = $340.00 =
minimum $370 $30.00
wage
12/02/2019 6 days 40 hours 20 hours (40 hours) x $405.00 $647.60 -
Not paid (included ($9.25) = $405.00 =
overtime monthly $370 $242.60
weekend
day)
(20 hours) x
($13.88) =
$277.60
12/09/2019 3 days 30 hours 0 hours (30 hours) x $405.00 $0
($9.25) =
$277.50
12/16/2019 4 days 40 hours 0 hours (40 hours) x $320.00 $370.00 -
Not paid ($9.25) = $320.00 =
minimum $370 $50.00
wage
12/23/2019 3 days 30 hours 0 hours (30 hours) x $255.00 $277.50 -
Not paid ($9.25) = $255.00 =
minimum $277.50 $22.50
wage
01/02/2020 1 day 10 hours 0 hours (10 hours) x $105.00 $0
($9.25) =
$92.50
01/13/2020 7 days 40 hours 30 hours (40 hours) x $600.00 $786.40 -
Not paid (included ($9.25) = $600.00 =
overtime monthly $370 $186.40
weekend
day)
(30 hours) x
($13.88) =
$416.40
01/20/2020 4 days 40 hours 0 hours (40 hours) x $700.00 $0
($9.25) =
$370
01/27/2020 4 days 40 hours 0 hours (40 hours) x $380.00 $0
($9.25) =
$370

43
02/03/2020 4 days 40 hours 0 hours (40 hours) x $470.00 $0
($9.25) =
$370
02/10/2020 4 days 40 hours 0 hours (40 hours) x $355.00 $370.00-
Not paid ($9.25) = $355.00 =
minimum $370 $15.00
wage
02/17/2020 3 days 30 hours 0 hours (30 hours) x $255.00 $277.50 -
Not paid ($9.25) = $255.00 =
minimum $277.50 $22.50
wage
02/24/2020 6 days 40 hours 20 hours (40 hours) x $520.00 $647.60 -
Not paid (included ($9.25) = $520.00 =
overtime monthly $370 $127.60
weekend
day)
(20 hours) x
($13.88) =
$277.60
03/02/2020 4 days 40 hours 0 hours (40 hours) x $385.00 $0
($9.25) =
$370
Overtime compensation owed: $779.20
Minimum wage owed: $37.50223
TOTAL OWED: $816.70

From the above analyses, I find that Defendant violated the FLSA and

Delaware’s Minimum Wage Act by failing to pay Kenney and Gallucio

Delaware’s minimum wage and the FLSA’s required overtime compensation.

Under the Delaware Minimum Wage Act, Defendant owes Kenney and Gallucio

the full amount of wages entitled by minimum wage requirements minus any

amount actually paid. Therefore, for violating Section 902 of Delaware’s

Minimum Wage Act, Defendant owes Kenney $192.50 and owes Gallucio $37.50.

223
The claims for minimum wage owed before February 3 rd, 2020, are barred by the Statute of Limitations, as
discussed in this opinion. Therefore, the minimum wage deficiencies on the following dates are not included in
the final calculation: 11/18/2019, 11/25/2019, 12/16/2019, and 12/23/2019.

44
Under the FLSA, Defendant owes Kenney and Gallcuio their unpaid overtime

compensation. For this violation Section 207 of the FLSA, Defendant owes

Kenney $1367.50 and owes Gallucio $779.20.

Turning to Sands, the below chart is my calculation of how much in unpaid

wages Defendant owes Sands under the parties’ contract. Per the contract, my

calculation is based on the contract’s promised base pay of $31,200 which

correlates to a $15/hour rate of pay and an overtime compensation of $22.50. Each

day is a 10-hour day, and I gathered the hours and pay data from Defendant’s

attendance tracking spreadsheets and the ADP Earning Statements – both entered

into evidence – trial testimony on hours worked, and the fact that Defendant did

not keep hourly records.224

Thomas Sands
Week Days Normal Overtime Calculation Amount Base Pay Overtime
Worked Hours Hours Paid Owed Comp
Worked Worked Owed
02/10/2020 5 days 40 hours 10 hours (40 hours) x $530.00 $600.00 - $225
not paid ($15.00) = $530.00 =
overtime $600 $70.00
(10 hours) x
($22.50) =
$225
02/17/2020 7 days225 40 hours 30 hours (40 hours) x $700.00 $0 $675.00 –
not paid (included ($15.00) = ($700.00 -
overtime monthly $600 $600.00)
weekend = $575.00
day)

224
See Def. Exs. 2, 4, 7; Ct. Exs. 1-3.
225
Because I have found as a factual matter that Plaintiffs worked one weekend day a month, I have added ten
hours to the week with the highest number of hours already worked.

45
(30 hours) x
($22.50) =
$675
02/24/2020 3 days 30 hours 0 hours (30 hours) x $280.00 $450.00- $0
($15.00) = $280.00 =
$450 $170.00
03/02/2020 1.5 days 15 hours 0 hours (15 hours) x $127.50 $225.00- $0
($15.00) = $127.50=
$225.00 $97.50
03/09/2020 2 days 20 hours 0 hours (20 hours) x $150.00 $300.00- $0
($15.00) = $150.00 =
$300 $150.00
03/16/2020 4 days 40 hours 0 hours (40 hours) x $590 $600.00- $0
($15.00) = $590.00 =
$600 $10.00
COVID
05/11/2020 3.5 days 40 hours 0 hours (40 hours) x $367.50 $600.00- $0
($15.00) = $367.50 =
$600 $232.50
05/18/2020 5 days 40 hours 10 hours (40 hours) x $525.00 $600.00 - $225
not paid ($15.00) = $525.00 =
overtime $600 $75.00
(10 hours) x
($22.50) =
$225
05/25/2020 5 days 40 hours 10 hours (40 hours) x $525.00 $600.00 - $225
not paid ($15.00) = $525.00 =
contractual $600 $75.00
rate or
overtime
(10 hours) x
($22.50) =
$225
06/01/2020 5 days 40 hours 10 hours (40 hours) x $525.00 $600.00 - $225
not paid ($15.00) = $525.00 =
contractual $600 $75.00
rate or
overtime
(10 hours) x
($22.50) =
$225

46
06/08/2020 Info 40 hours 20 hours (40 hours) x $525.00 $600.00 - $450
not paid not226 ($15.00) = $525.00 =
contractual available $600 $75.00
rate or
overtime
(10 hours) x
($22.50) =
$450
06/15/2020 0.5 days 5 hours 0 hours (5 hours) x $42.50 $75.00- $0
($15.00) = $42.50 =
$75.00 $32.50
06/22/- 5 days 40 hours 20 hours (40 hours) x $1,125.0 $0 $0
07/05/2020 per week ($15.00) = 0
$600
(20 hours) x
($22.50) =
$450
07/13- 5 days 40 hours 20 hours (40 hours) x $850.00 $0 $450.00 –
07/26/2020 per week ($15.00) = ($850.00 -
not paid $600 $600) =
overtime $200.00
(20 hours) x
($22.50) =
$450
07/27/- 5 days 40 hours 20 hours (40 hours) x $875.00 $0 $450.00 –
08/09/2020 per week ($15.00) = ($875.00 -
$600 $600.00)
= $175.00
(20 hours) x
($22.50) =
$450
08/10- 5 days 40 hours 20 hours (40 hours) x $510.00 $90.00 $450.00
08/23/2020 per week ($15.00) =
$600
(20 hours) x
($22.50) =
$450
08/24- 5days per 40 hours 20 hours (40 hours) x $425 $175 $450
09/06/2020 week ($15.00) =
$600
(20 hours) x
($22.50) =
$450

226
For the weeks that Defendant provided no evidence of days worked, I rely on Sands’s unrefuted testimony that
he worked ten hours a day each weekday and Saturday while doing inside sales. See D.I. 81 p. 53:12-54:10.

47
Contract base pay owed: $1,327.50
Overtime compensation owed: $3,200.00
TOTAL OWED: $4,527.50

From the above analyses, I have found that Defendant breached its contract

with Sands by failing to pay Sands $1,327.50 in base pay. For its breach of

contract, Defendant owes Sands $1,327.50. Additionally, Defendant failed to pay

Sands $3,200.00 in overtime compensation, thus violating the FLSA. For

violating Section 207 of the FLSA, Defendant owes Sands $3,200.00 in unpaid

overtime compensation.

Now, I turn to calculation of liquidated damages under the above Statutes.

Both the DWPCA and the FLSA provide for liquidated damages.227 Plaintiffs may

recover liquidated damages under both statutes but may not cumulatively recover

for the same violation.228

Defendant has not shown by plain and substantial proof that it’s violation of

the FLSA was in good faith or based on reasonable grounds; therefore, Defendant

does not sidestep liquidated damages. In accordance with the applicable FLSA

provisions, Plaintiffs may recover liquidated damages under the FLSA in an

amount equal to the overtime compensation they are respectively owed.229 For

227
See 19 Del. C. § 1103(b); 29 U.S.C. § 216(b).
228
See Tri-County Growers, Inc., 747 F.2d at 130, (allowed plaintiffs to recover liquidated damages for
defendant’s separate violations under the FLSA and West Virginia’s Wage Payment and Collection Act).
229
29 U.S.C. § 216(b).

48
Kenney, that is an additional $1367.50; for Gallucio, that is an additional $779.20;

and for Sands, that is an additional $3,200.00.

Based on the above calculations, I have found that Defendant violated

DWPCA Section 1107 for withholding Plaintiffs’ wages. Under the DWPCA

Section 1103(b), Plaintiffs can recover liquidated damages in one of two amounts,

whichever amount is less. I have found that an amount equal to the unpaid wages

owed to them under that Chapter is the lesser amount in this circumstance.

Because Plaintiffs are already recovering liquidated damages under the FLSA for

their overtime compensation, recovering additional overtime compensation under

the DWPCA would amount to double recovery. Therefore, Kenney and Gallucio

may recover liquidated damages under the DWPCA for their unpaid minimum

wage and Sands may recover liquidated damages under the DWPCA for his unpaid

base pay. For Kenney, that is an additional $192.50. For Gallucio, that is an

additional $37.50. For Sands, that is an additional $1,327.50.

In addition to the above damages, Defendant owes Sands $950 for the work

uniforms Defendant failed to reimburse Sands for.

Based on the above analysis and calculations, the following are the total

damages Defendant owes to each Plaintiff: Kenney is owed $3120.00, Gallucio

is owed $1633.40, and Sands is owed $10,005.00

49
As the Court has found that Defendant has violated either the FLSA230, the

DWPCA231, and Delaware’s Minimum Wage Act232 as to each Plaintiff, these

violations trigger a potential award for attorneys’ fees. Plaintiffs shall submit a

memorandum supporting their request for attorney’s fees with the appropriate

affidavit within 30 days of the date of this order. Defendant has 30 days to file a

responsive memorandum. No reply memorandum shall be filed absent further

order of the Court.

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge

cc: File&ServeXpress

230
29 U.S.C. § 216(b).
231
19 Del. C. § 1113(c).
232
19 Del. C. § 911(a).

50