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

170 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP request that the employer provide contact information for employees and supervisors. 1017 The employer may ask to have a company representative sit in on employee interviews, but it does not have a right to do so. The site inspector may also request copies of payroll records and prevailing wage schedules. 1018 If the Attorney General’s Office determines that a wage and hour violation has occurred, it can issue a citation that requires restitutionary payments to the complainant (or to a larger group of similarly situated employees) and impose a fine. The Attorney General also has the authority to pursue a criminal investigation that could lead to criminal charges, which are detailed in the following section. An employer should retain counsel immediately, even if the complaint is narrow, because the Attorney General may investigate any additional violations beyond the scope of the original complaint that are uncovered. During the course of the investigation, the employer’s counsel may negotiate a resolution of the dispute with the Attorney General’s Office. C. Resolution of Complaints and Other Violations Federal law prohibits purely private settlements of wage claims because employees may not waive their wage and hour rights. 1019 Under the FLSA, parties can enter into a settlement agreement if a court or the DOL supervises the agreement. 1020 Because Massachusetts law has no similar requirement, private settlements of state claims are allowed. However, to be valid, a waiver and release of wage claims under Massachusetts law must be knowing and voluntary and must contain express language that Wage Act claims are being released. 1021 Further, where both Massachusetts and federal wage and hour claims are at issue, employers must still be mindful of the federal requirements for private settlements. If an employer uncovers a wage and hour violation, through an internal audit or other means, the employer has various options, each of which carries its own risks: 1017 Id. 1018 Id. 1019 See, e.g., Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 704, 65 S. Ct . 895, 89 L.Ed. 1296 (1945) (holding that FLSA claims may not be waived because “ [w]here a private right is granted in the public interest to effectuate a legislat ive policy, waiver of a right so charged or colored with the public interest will not be allowed where it would thwart the legislat ive policy which it was designed to effectuate”). 1020 29 U.S.C. § 216(c). Regarding judicially supervised set t lement s, the U.S. Supreme Court has dist inguished between unsupervised set t lement agreement s and st ipulated agreement s. D.A. Schulte, Inc. v. Gangi , 328 U.S. 108, 66 S. Ct . 925, 90 L.Ed. 1114 (1946). Subsequent federal court decisions have upheld st ipulated judgment s releasing FLSA claims when those judgment s were court -supervised and scrut inized for fairness to the employee. See, e.g., Lynn’s Food Stores, Inc. v. United States , 679 F.2d 1350, 1353 (11thCir. 1982) (“When employees bring a private act ion for back wages under the FLSA, and present to the dist rict court a proposed set t lement , the dist rict court may enter a st ipulated judgment after scrut inizing the set t lement for fairness.”). 1021 Crocker , 464 Mass. at 14-15. The SJC explained in Crocker that the “ release must be plainly worded and understandable to the average individual, and it must specifically refer to the right s and claims under the Wage Act that the employee is waiving.” Id. at 14. But see Brennan v. IQVIA Inc. , Civ. No. 20-cv-12230-IT, 2021 WL 1026717, at *5 (D. Mass. Mar. 17, 2021) (a general release in a severance agreement which referred to claims for unpaid wages is insufficient to release commission claims where “ the Severance Agreement was a standard form agreement offered by Defendant s to employees separat ing from the company, not an agreement reached to set t le a dispute between Brennan and IQVIA as to unpaid wages”).