Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 165 Massachusetts forbids employers from taking any employment actions that penalize employees for pursuing their wage and hour rights. 977 Activities protected by the anti-retaliation laws include complaining to the Attorney General or any other person, assisting the Attorney General in any wage and hour investigation, instituting (or causing to be instituted) any proceeding related to wage and hour violations, and testifying (or being prepared to testify) in such a proceeding. 978 The Commonwealth’s anti-retaliation laws also protect employees who make internal wage and hour complaints. A formal complaint to the Attorney General is not required. 979 The SJC has held, however, that merely reporting another employee’s wage and hour concerns is not protected activity. 980 For example, when a manager told a restaurant owner that waiters believed a tip- pooling arrangement was illegal, he was not asserting the servers’ rights or complaining on their behalf, and he therefore could not claim retaliation when the owner subsequently terminated his employment. 981 Similarly, complaining to a third party, such as a customer, is not protected conduct under the statute. 982 At leaset one Superior Court has held that the statute does not extend to former employees who allege retaliation for post-termination conduct. 983 Retaliatory actions, termed “adverse employment actions,” can include termination or any other type of discrimination. 984 Constructive discharge is also unlawful retaliation in Massachusetts. It occurs when “the employer’s conduct effectively forces an employee to resign.” 985 There are two types of constructive discharge. 986 First, the employer might create intolerable working conditions that are objectively “so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” 987 Second, the employer might demote believed the [employer] was engaged in wrongful discriminat ion’”) (quot ing Tate v. Dep’t of Mental Health , 419 Mass. 356, 364 (1995)). However, a worker cannot , as a mat ter of law, state a claim for retaliat ion under the Minimum Wage Law where the worker admit tedly earned in excess of the statutory minimum wage and the alleged protected act ivitywas the worker’s demand for an even higher hourly wage. DLS Opinion Let ter MW-2016-07.13.16 (July 13, 2016). 977 M.G.L. ch. 149, § 148A. 978 Id. 979 See generally Smith, 447 Mass. at 363. 980 Id . 981 Id. An employee also cannot assert common lawwrongful discharge claims under these circumstances. The SJC has noted that—while simple cont ract claims for unpaidwages are not preempted by ch. 149, § 148—common lawretaliat ion claims are preempted by § 148A because “when the Legislature has provided a statutory cause of act ion to an at -will employee who has been discharged for exercising her statutory right s, there is no need to add a common-lawremedy.” Lipsitt v. Plaud , 466 Mass. 240, 247 n.11 (2013) (quot ing Dobin v. CIOview Corp. , 16 Mass. L. Rpt r. 785, 2003 WL 22454602) (Mass. Super. Ct . Oct . 29, 2003)). 982 Benoit v. The Federalist, Inc. , No. SUCV2004-3516-B (Mass. Super. Ct . June 30, 2006) (Locke, J.) (holding that employee who complained to customers had not engaged in protected conduct under ant i-retaliat ion provision). 983 See DeThomas v. Cumberland Farms, Inc. , No. 16-03554 (Mass. Super. Ct . Oct . 16, 2017) (Freniere, J.) (explaining that the language of M.G.L. ch. 149, § 148A only protect s individuals from being penalized for assert ing their right s under the Wage Act during their employment ). 984 M.G.L. ch. 149, § 148A. 985 Vonachen v. Computer Assocs. Int’l, Inc. , 524 F. Supp. 2d 129, 137-38 (D. Mass. 2007) (quot ing GTE Prods. v. Stewart , 421 Mass. 22, 34 (1995)). 986 Id . at 138. 987 Id.