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

166 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP the employee or reduce his or her status by giving the employee’s job to someone else, transferring the employee’s responsibilities to another (thus removing his or her authority), or reassigning the employee to a nonexistent job. 988 Penalties and damages for retaliation are discussed in Section XVIII. In addition to the punishments listed there, any employer or individual who retaliates based on complaints related to overtime pay or minimum wage violations are subject to extra penalties. 989 These additional penalties include damages of between one and two months’ wages, plus the costs of bringing the action and reasonable attorneys’ fees. 990 One Massachusetts court found that plaintiffs may not recover damages for emotional distress. 991 XVI. STATUTES OF LIMITATIONS Employees must bring civil wage and hour claims against employers within three years of a violation, depending on the type of violation involved. 992 A table listing the statutes of limitations for the wage and hour violations that are subject to private rights of action in Massachusetts appears in the following section. The statute of limitations usually begins running on the earliest date when the employee reasonably could or should have known of the violation. 993 If the violation is ongoing, only those individual violations which fall within the statute of limitations are timely. 994 Many plaintiffs also bring contract and tort claims against employers because these causes of action have longer statutes of limitations than wage and hour claims. 995 988 Id . at 139. 989 M.G.L. ch. 151, § 19. For overt ime complaint s, these addit ional penalt ies only apply to retaliatory act ions taken by private employers. Penalt ies for retaliat ion related to overtime pay by public employers and state police are rest ricted to those listed in Penalt ies andEnforcement , Sect ion XVIII. See M.G.L. ch. 149, §§ 148A, 30C, and 33B-33C. 990 M.G.L. ch. 151, § 19. 991 Somers v. Converged Access, Inc., 23 Mass. L. Rpt r. 511, 2008 WL 497982, at *8 (Mass. Super. Ct . Jan. 23, 2008) ( Somers I), overruled on other grounds , Somers II, 454 Mass. 582 (2009). The First Circuit affirmed the award of emot ional dist ress damages under M.G.L. ch. 149, § 150 in the context of a retaliat ion claim. See Travers v. Flight Servs. Sys., Inc. , 808 F.3d 525, 551 (1st Cir. 2015). However, the issue before the court was the amount of emot ional dist ress damages and whether those damages should be t rebled; not whether the statute provides for such damages in the first place. Id . 992 M.G.L. ch. 149, § 150; M.G.L. ch. 151, § 20A. 993 Crocker v. Townsend Oil Co., Inc. , 464 Mass. 1, 8 (2012) (“Under the discovery rule, limitat ions periods in Massachuset t s run from the t ime a plaint iff discovers, or reasonably should have discovered, the underlying harm (here, the plaint iffs’ misclassificat ion as independent cont ractors) for which relief is sought .”). 994 Id. at 10-11 (characterizing the failure to pay wages under the Wage Act as discrete injuries and concluding that “plaintiffs’ recovery is limited to those damages that occurredwithin the three-year period prior to filing the complaint.”). 995 There is a six-year statute of limitat ions on breach of cont ract claims, except those to recover for personal injuries. M.G.L. ch. 260, § 2. Most tort s have a three-year statute of limitat ions. M.G.L. ch. 260, § 2A. The SJC held in 2013 that simple cont ract claims for unpaid wages are not preempted by the Commonwealth’s wage statutes because such causes of act ion pre-date the statutes. Lipsitt , 466 Mass. at 247. However, the Court noted that common lawclaims based on right s created by statute—such as claims for prevailing wages, retaliat ion for making a wage complaint , or for violat ions of the T ip Statute—are preempted by the statutes on which they are based. Id. at 247 n.11 (cit ingwith approval DePina v. Marriott Int’l, Inc. , 2009 WL 8554874 (Mass. Super. Ct . 2009), Dobin v. CIOview Corp. , 2003 WL 22454602 (Mass. Super. Ct . 2003), and George v. Nat’l Water Main Cleaning Co. , 286 F.R.D. 168, 188 (D. Mass. 2012)).