© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 175 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 . . . .”1081 The SJC rejected this argument, holding that wage and hour plaintiffs are required to meet the test articulated in Rule 23.1082 Often plaintiffs bring claims simultaneously under the Massachusetts wage laws and the FLSA. The SJC has held that an employee may not assert a claim that arises purely under the FLSA as a Wage Act violation for the purpose of seeking treble damages.1083 However, where claims arise under both statutes, litigation is more complicated because the FLSA contains a collective action procedure that does not mirror Rule 23 – though the claims themselves may overlap (i.e., unpaid overtime). While the intricacies of class and collective action procedure are beyond the scope of this treatise, one major difference between Rule 23’s class procedure and the FLSA’s collective action procedure is that while all class members are bound by a decision if the court certifies a class under Rule 23, the only people bound by a decision in an FLSA collective action are those who affirmatively opt into the litigation. Similarly, the filing of a class action under Rule 23 tolls the statute of limitations for all members of the potential class,1084 while the statute of limitations for FLSA claims is only tolled once an individual affirmatively opts into the litigation. E. Defenses Employer defenses to claims under the Wage Act are limited. The statute generally prohibits socalled “special contracts,” which means that an employee’s agreement to a payment arrangement that violates the Wage Act is not a defense to liability.1085 The one recognized exception is that the statute permits an employer to make a “valid setoff” against owed wages where there is a clear and established debt to the employer by the employee.1086 1081 M.G.L. ch. 149, § 150. 1082 See Gamella v. P.F. Chang’s China Bistro, Inc., 482 Mass. 1 (2019). 1083 Devaney v. Zucchini Gold, 489 Mass. 514, 523 (2022). 1084 See Mullally v. Waste Mgmt. of Mass., Civ. No. A-06–882, 2009 WL 1453529, *1-2 (Mass. Super. May 18, 2009) (citing American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1983)). 1085 M.G.L. ch. 149, § 148; see also Melia v. Zenhire, Inc., 462 Mass. 164, 170 (2012) (explaining that an agreement to circumvent the Wage Act is unlawful even if voluntary and assented to). 1086 M.G.L. ch. 149, § 150; see also Camara, 458 Mass. at 753. A full discussion about deductions from wages can be found in Section 1.E.
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