Massachusetts Attorney General Wage Act Advisories

The Massachusetts Attorney General’s new website doesn’t seem to link to the office’s past Wage Act advisories. These advisories have been cited multiple times by the SJC and are entitled to “substantial deference, at least where it is not inconsistent with the plain language of the statutory provisions.” See Smith v. Winter Place LLC, 447 Mass. 363, 368 (2006).  So given their importance, I am posting them here by topic:

Minimum Fair Wage (minimum wage and overtime) opinion letters can be found here. And prevailing wage opinion letters, here.

Wage Act Uniform Deduction Class Action Certified versus Trinity EMS

Yesterday, November 2, 2017, the Middlesex Superior Court certified our class action against Trinity EMS, based in Lowell, Massachusetts. In the case, we contend that, among other things, Trinity EMS unlawfully deducted charges for required uniforms from employee wages in violation of the Massachusetts law. The applicable regulation states:

An employee or prospective employee who is required to purchase or rent a uniform shall be reimbursed for the actual purchase or rental cost of the uniform.  

454 Code Mass. Regs. 27.05(4)(c).

Any person falling within the following class definition is now a class member in the case:

Individuals employed by Trinity EMS, Inc. who were subjected to deductions from their pay for uniforms at any point between June 29, 2014 and the present.

If you fall within this definition, please reach out to us for more information.


Startup Companies And Unpaid Wages

Massachusetts is a good place to start a business, as it is home to many highly-educated and entrepreneurial people who are able to team up here with similar folks here to start successful businesses.  While many of these businesses succeed, other fail. However, employee wages are not contingent on business success and two important principles back that up.

  1. An employee cannot waive his or her entitlement to wages. Section 148 of the Wage Act prevents an employee from making a deal with a struggling employer to defer or waive payment of wages. This is a so-called “special contract,” and it is not enforceable in a subsequent lawsuit for unpaid wages.  These agreements sometimes happen in startup companies struggling with cash flow problems. However, companies prioritizes other expenses over wages at their peril.  The agreement with the employee to defer or waive wages will not be enforceable, and if that employee decides to sue before being make whole, they will triple the value of their claim (due to mandatory treble damages after the filing of a wage complaint) and the employer will be liable for that employees attorneys’ fees.
  2. Section 148 of the Wage Act also states that, “the president and treasurer of a corporation and any officers or agents having the management of such corporation” shall be personally liable for unpaid wages.  This means that the officers of a startup company cannot walk away from a failing startup without making sure all employees are paid in full.  When this happens–and we see it a lot–the former officers often make strong lawsuit targets, as they often are re-employed or, at the very least, have good earning potential going forward and the ability to pay a a large judgment.

The lessons: Startup companies should learn the law of wages and make sure that they pay employees in full and on time.  Employees with unpaid wage claims from a failed or failing startup should reach out to our office for a free wage consultation to learn their options.

Unpaid Training: CVS Pharmacy Case

Generally, employers cannot require that employees participate in job training without pay. CVS recently learned this lesson in the case of St. Pierre, et al. v. CVS Pharmacy, Inc., et al., Civil Action No. 13-13202-TSH (D. Mass. Sept. 18, 2017) (Hillman, J.). CVS Pharmacy required all pharmacy technicians to regularly complete mandatory training courses through an online “learning management system” called LEARNet without pay. The Federal District Court in Massachusetts held that this unlawful and entered judgment in favor of the employees.

If you have been required to perform unpaid job training, do not sign a release without talking with an attorney, and feel free to reach out to us for a free consultation.

Wage Class Action Certified in Massachusetts Superior Court

On September 13, 2017, the Massachusetts Superior Court for Suffolk County certified a class action against Helping Hands Company, Inc., a provider of home care services in Massachusetts. Escorbor v. Helping Hands Co., Inc, C.A. No. 15-2053-D. (Suffolk Sup. Crt. 2017) (Wilkins, J.). Our firm was appointed class counsel.  The case is for the unpaid wages and expenses of home care aides who travel between clients’ homes without pay during the workday.  The class certification motion was vigorously contested and the decision is notable because the Court affirmed several important concepts for workers in Massachusetts.

  1. The plaintiffs’ theory of liability controls at the class certification stage.
  2. The Massachusetts Wage Act provides an independent statutory basis for class actions. Here, the class satisfied the traditional Rule 23 requirements, but in another case where, for example, traditional numerosity wasn’t satisfied, the statutory basis for class actions, which only requires that employees be “similarly situated,” might be utilized.
  3. The failure of an employer to keep track of work time –required by state statute and regulation–may warrant an injunction in favor of a class that might require, as a remedy, an employer to reconstruct time records.
  4. An employer cannot get a credit for a wage that is due and owing by pointing to another payment that was meant for another purpose.
  5. Variance in damages among class members does not prevent the certification of a class.
  6. The Wage Act favors class actions because, in part, it helps employees get paid wages without antagonizing an employer, i.e. only one employee has to stick her neck out for the the whole group.

The court also wrote that, “During motion practice and in oral arguments, the Court has observed first-hand the adequacy and competence of class counsel,” id. at 10, which was gratifying to read. The case now continues, but now as a class action. I am sure that each side is weighing their options.

Case Report: Mickevich v Fine Finish, Inc.

Yesterday, the Massachusetts Superior Court for Middlesex County issued an final approval order in one of our wage and hour class actions. This was a small class action under the Massachusetts Overtime Law involving just 33 individuals. The key allegation in the case was that a group of cabinet makers was improperly classified as exempt from overtime, had worked overtime, but had not been paid time and a half for that overtime work.

We were able to reach a negotiated settlement agreement with the defendant. Class actions often result in a settlement if both defense and plaintiffs’ counsel are well-versed in the substantive law and are able to handicap a range of possible results for their clients. It is important for defense counsel to do this for their clients because their clients are often inexperienced in wage and hour class action litigation and an early compromise agreement allows a defendant to continue doing business without the distraction and stress of ongoing litigation, to reduce their exposure to a sum certain, and to avoid the possible ruinous consequences of paying treble damages, plaintiffs’ attorneys fees, and their own defense costs incurred through trial.  The defendants in this case were well-represented by experienced counsel, allowing the parties to engage in rational negotiations that resulted in a settlement of $215,000 fairly early in the litigation, more that two times the single damages calculated in the case.

Attorney Raven Moeslinger ably handled the plaintiff’s case for our firm.