178 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP unenforceable.1106 While states may find arbitration agreements unenforceable because of defenses that would apply equally to all types of contracts (e.g., duress), states cannot impose rules or laws that hinder the enforceability of arbitration agreements specifically.1107 Thus, under Concepcion, Massachusetts cannot place special requirements or limitations on arbitration agreements. Massachusetts, therefore, cannot prohibit the arbitration of particular types of claims, including wage and hour claims.1108 Until recently, the enforceability of class action waivers in arbitration agreements was even more uncertain and complex, with Massachusetts courts taking a stricter view of the matter than their federal counterparts. However, in Stolt-Nielsen S.A. v. AnimalFeeds International Corporation, the U.S. Supreme Court found that it is inconsistent with the FAA to impose class arbitration on a party whose arbitration clause is silent on the issue of class arbitration.1109 Shortly thereafter, in Concepcion, the U.S. Supreme Court ruled that states cannot force companies with arbitration provisions to allow class arbitrations.1110 After Stolt-Nielsen and Concepcion, plaintiffs continued to argue that class action waivers in arbitration agreements were not enforceable as a matter of public policy in situations where the small value of a single plaintiff’s claims rendered it impossible to effectively vindicate his or her rights in the absence of class proceedings. In June 2013, the SJC held that a class action waiver was unenforceable for this reason, essentially adopting the “effective vindication” doctrine.1111 Only days later, in American Express Co. v. Italian Colors Restaurant, the U.S. Supreme Court rejected this argument.1112 Shortly thereafter, the SJC recognized in a pair of rescript decisions that in light of American Express, the “effective vindication” doctrine is no longer a proper basis to invalidate class action waivers in arbitration agreements, including for wage and hour claims.1113 The National Labor Relations Board (NLRB) had further complicated the issue of class action arbitration waivers by ruling that class action waivers violate Section 7 of the National Labor Relations Act, which provides employees the right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”1114 In D.R. Horton, Inc., the NLRB pursued unfair labor practice charges against an employer based on the use of pre- 1106 Id. at 337-38, 352, reversing the Discover Bank rule in Discover Bank v. Superior Court, 36 Cal.4th 148, 162 (2005). 1107 Id. at 341-43. 1108 Id. at 341. 1109 Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 666, 687 (2010). 1110 Id. at 351-52 (holding state laws preempted by federal law where they invalidate arbitration class action waivers because the claims are likely to involve smaller dollar amounts, which would not likely be prosecuted on an individual basis). 1111 Feeney v. Dell, Inc., 465 Mass. 470, 472 (2013) (holding that class action waiver was unenforceable where plaintiff’s claim was of little monetary value and therefore individual arbitration was not realistic option under terms of arbitration agreement). 1112 Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 237 (2013) (holding that class waivers in arbitration agreements cannot be invalidated on the grounds that the inability to arbitrate on a classwide basis precludes “effective vindication” of plaintiffs’ rights). 1113 Feeney v. Dell, Inc., 466 Mass. 1001, 1002-03 (2013); Machado v. System4 LLC, 466 Mass. 1004 (2013). 1114 29 U.S.C. § 157.
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