174 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP If an employee “or a similarly situated employee” files a wage complaint with the Attorney General’s Office, the three-year limitations period is tolled from the date of the complaint until the Attorney General issues a letter authorizing the employee to bring an action or the date an enforcement action becomes final.1074 Neither the courts nor the Attorney General’s Office have issued guidance explaining the “similarly situated employee” language in the recently added tolling provision.1075 Many plaintiffs also bring breach of contract or quantum meruit claims against employers because these causes of action have a longer statute of limitations than statutory wage and hour claims.1076 However, a plaintiff who prevails on these types of common law claims cannot recover multiple damages or attorneys’ fees.1077 D. Massachusetts Wage and Hour Class Actions It has become increasingly common in recent years for plaintiffs in wage cases to assert their claims on a class action basis.1078 In a class action, the named plaintiff undertakes to act as the representative for a group of other individuals who share the same claim. Once a court certifies a 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.1079 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.1080 1074 M.G.L. ch. 149, § 150. 1075 The tolling provision was added to the statute in 2014 as part of An Act Restoring the Minimum Wage and Providing Unemployment Insurance Reforms, Chapter 144 of the Acts of 2014. 1076 There is a six-year statute of limitations on breach of contract claims, except those to recover for personal injuries. M.G.L. ch. 260, § 2. Most torts have a three-year statute of limitations. M.G.L. ch. 260, § 2A. The SJC held in 2013 that simple contract claims for unpaid wages are not preempted by the Commonwealth’s wage statutes because such causes of action pre-date the statutes. Lipsitt, 466 Mass. at 247. However, the Court noted that common law claims based on rights created by statute—such as claims for prevailing wages, retaliation for making a wage complaint, or for violations of the Tip Statute—are preempted by the statutes on which they are based. Id. at 247 n.11 (citing with approval DePina v. Marriott Int’l, Inc., 2009 WL 8554874 (Mass. Super. Ct. 2009), Dobin v. CIOview Corp., Civ. No. 2001-00108, 2003 WL 22454602 (Mass. Super. Oct. 29, 2003), and George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 188 (D. Mass. 2012)). 1077 Lipsitt, 466 Mass. at 247. 1078 This book is not intended to discuss this subject in detail. For an in-depth discussion of this subject, see Seyfarth Shaw’s Wage & Hour Litigation Practice Group’s treatise Wage & Hour Collective and Class Litigation (Law Journal Press 2012, last updated 2025), available at https://www.lawjournalpress.com/ (last visited April 22, 2025). 1079 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 certified by the court). This differs from the federal rule governing class actions, 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 its own “collective action” procedures, pursuant to which a class member is only bound by the result of the suit if he or she affirmatively gives consent in writing to join the suit. See 29 U.S.C. § 216(b). 1080 An employer cannot avoid a class action by attempting to moot the claims of the named plaintiff. 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 plaintiff’s claims and deprived the court of subject matter jurisdiction. See 482 Mass. 1 (2019). The Court explained that allowing the defendant to “buy off” the individual claims of the named plaintiff would frustrate the purposes of class actions.
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