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. | 175 lawsuit as a class action, the class members are bound by the result of the case, meaning that they will be entitled to recover damages if the named plaintiff wins and they will be precluded from bringing their own individual lawsuits even if the named plaintiff loses. 1052 A plaintiff who wishes to bring his or her suit as a class action in Massachusetts state courts must satisfy each of the prerequisites of Rule 23 of the Massachusetts Rules of Civil Procedure. 1053 Under that Rule, the plaintiff must prove that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) the representative parties will fairly and adequately protect the interests of the class; (5) questions of law and fact common to the class predominate over questions affecting only individual class members; and (6) a class action is the superior method for adjudication of the case. Plaintiffs asserting claims under the Massachusetts Wage Act have sometimes argued that the Wage Act contains its own language authorizing class actions, and therefore they are not required to meet the requirements of Rule 23. These plaintiffs have based their argument upon the statute’s language permitting an employee to bring suit “for himself and others similarly situated . . . .” 1054 The SJC rejected this argument, holding that wage and hour plaintiffs are required to meet the test articulated in Rule 23. 1055 F. Arbitration Claims under the Wage Act are arbitrable. 1056 Employees have argued that mandatory arbitration clauses in employment agreements should not apply to wage and hour disputes, with at least one plaintiff arguing that arbitration clauses cannot apply to wage disputes because they constitute “special contracts” prohibited under the Wage Act. 1057 The Appeals Court, however, rejected that argument, finding that claims under the Wage Act, like other statutory claims, can be arbitrated if the parties have an arbitration agreement that covers wage disputes. 1058 The Court found that Massachusetts laws for interpreting contracts should be applied to determine whether an arbitration agreement covers wage disputes. 1059 Thus, the Court looked to whether the employee 1052 See Fletcher v. Cape Cod Gas Co. , 394 Mass. 595, 602 (1985) (holding that class members could not exclude themselves from class that had been cert ified by the court ). This differs from the federal rule governing class act ions, which usually provides class members the choice to “opt out” of the class so that they will not be bound by the result . See Fed. R. Civ. P. 23(d). The FLSA also contains it s own “collect ive act ion” procedures, pursuant to which a class member is only bound by the result of the suit if he or she affirmat ively gives consent in writ ing to join the suit . See 29 U.S.C. § 216(b). 1053 An employer cannot avoid a class act ion by at tempt ing to moot the claims of the named plaint iff. In Gamella v. P.F. Chang’s China Bistro, Inc. , the SJC held that neither an unaccepted offer of judgment nor an unaccepted tender offer mooted the named plaint iff’s claims and deprived the court of subject mat ter jurisdict ion. See 482 Mass. 1 (2019). The Court explained that allowing the defendant to “buy off” the individual claims of the named plaint iff would frust rate the purposes of class act ions. 1054 M.G.L. ch. 149, § 150. 1055 See Gamella v. P.F. Chang’s China Bistro, Inc. , 482 Mass. 1 (2019). 1056 Dixon v. Perry & Slesnick, P.C. , 75 Mass. App. Ct . 271, 273-74 (2009). 1057 Id. 1058 Id. 1059 Id.