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

178 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP and employers should consult with experienced legal counsel in reviewing existing arbitration clauses or adopting new ones. G. Damages in Civil Lawsuits An employee may file a civil wage and hour suit against an employer. 1078 If successful, the plaintiff-employee can win a court order directing the employer to stop the challenged practice, and will recover lost wages, attorneys’ fees, and litigation costs. 1079 However, to recover lost wages the employee must prove that he or she suffered financial harm because of the employer’s wage and hour violation since there is no provision in the Wage Act allowing recovery for nominal or emotional distress damages except possibly for retaliation claims. 1080 Any emotional distress damages awards are not subject to statutory trebling. 1081 The SJC recently addressed what constitutes lost wages in the context of a Wage Act retaliation claim. The Court held that the plaintiff was entitled to recover commissions she would have received but for the employer’s retaliation and that those amounts were subject to trebling. 1082 Under Massachusetts law, treble damages are mandatory for most wage and hour violations, and the employer is required to pay the plaintiff-employee three times the actual “lost wages” proven in any case in which liability is established. 1083 The treble damages statute applies to nonpayment of wages claims, Tip Statute violations, Independent Contractor Statute violations, improper expenditure of withholdings, improper deductions for tardiness or transportation services, minimum wage and overtime violations, failure to keep accurate payroll records, and taking wages through threats or force. 1084 In 2012, the First Circuit upheld the constitutionality of the treble damages statute. In Matamoros v. Starbucks Corporation , the defendant argued that the mandatory nature of the treble damages 1078 M.G.L. ch. 149, § 150. 1079 Id . The statute provides that a prevailing plaint iff may recover “lost wages and other benefit s.” Id . However, several federal court s have held in the context of state lawclaims of misclassificat ion of employees as independent cont ractors, that the Employee Ret irement Income Security Act (ERISA) preempt s the recovery of the value of benefit s under ERISA-governed plans as damages. See Remington v. J.B. Hunt Transp., Inc. 2017 U.S. Dist . LEXIS 65047, *8-10 (D. Mass. Apr. 28, 2017); Lavery v. Restoration Hardware, Inc. 2018 U.S. Dist . LEXIS 51292, *7-*10 (D. Mass. Mar. 28, 2018); Filleti v. AOL, Inc., 2019 U.S. Dist . LEXIS 28137, *6-15 (D. Mass. Feb. 22, 2019). 1080 Travers v. Flight Servs. Sys., Inc. , 808 F.3d 525, 551 (1st Cir. 2015). 1081 In Travers , 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. The issue before the court was the amount of emot ional dist ress damages and whether those damages should be trebled ; the First Circuit did not address whether the statute provides for such damages in the first place. Id . 1082 See Parker v. Enernoc, Inc. , 383 Mass. 128, 137 (2020). In that case, the commissions were only subject to a cont ingency that the employee was employed on the payout date. The SJC concluded that this cont ingency was unenforceable because the employer had engaged in retaliat ion. Left open after Parker is whether a plaint iff can recover future commissions as lost wages where the commissions remained cont ingent due to a reason other than continued employment at the t ime of the plaintiff’s terminat ion. 1083 M.G.L. ch. 149, § 150. 1084 M.G.L. ch. 149, § 150.