© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 179 dispute mandatory arbitration agreements containing class action waiver clauses.1115 Ultimately, the U.S. Supreme Court rejected this position in Epic Systems v. Lewis, explaining that Section 7 focuses on employees’ right to organize unions and to bargain collectively and does not confer a right to class or collective actions.1116 Most recently, the Supreme Court in Lamps Plus, Inc. v. Varela held that a court may not compel class or collective arbitration even if the agreement is ambiguous on that point.1117 The Court explained that ambiguity is an insufficient basis to infer consent to participate in class-wide arbitration. In light of these decisions, many employers have considered adopting arbitration agreements with class action waivers. However, whether or not to do so remains a complex issue, 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.1118 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.1119 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.1120 Any emotional distress damages awards are not subject to statutory trebling.1121 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.1122 1115 See D.R. Horton, Inc., 357 NLRB No. 184, 2012 WL 36274, *2 (N.L.R.B. Jan. 3, 2012). The NLRB also did so in Murphy Oil USA, Inc., 361 NLRB No. 72, 2014 WL 5465454, *29 (N.L.R.B. Oct. 28, 2014). 1116 Epic Sys. Corp. v. Lewis, 584 U.S. 497, 511 (2018). 1117 Lamps Plus, Inc. v. Varela, 587 U.S 176 (2019). 1118 M.G.L. ch. 149, § 150. 1119 Id. The statute provides that a prevailing plaintiff may recover “lost wages and other benefits.” Id. However, several federal courts have held in the context of state law claims of misclassification of employees as independent contractors, that the Employee Retirement Income Security Act (ERISA) preempts the recovery of the value of benefits under ERISA-governed plans as damages. See Remington v. J.B. Hunt Transp., Inc., Civ. No. 15-10010-RGS, 15-13019-RGS, *3-4 (D. Mass. Apr. 28, 2017); Lavery v. Restoration Hardware, Inc., Civ. No. 17-10856, 2018 WL 1524398, *4 (D. Mass. Mar. 28, 2018); Filleti v. AOL, Inc., Civ. No. 18-cv-10529-ADB, 2019 WL 859043, *3-5 (D. Mass. Feb. 22, 2019). 1120 Travers v. Flight Servs. Sys., Inc., 808 F.3d 525, 551 (1st Cir. 2015). 1121 In Travers, the First Circuit affirmed the award of emotional distress damages under M.G.L. ch. 149, § 150 in the context of a retaliation claim. The issue before the court was the amount of emotional distress 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. 1122 See Parker v. Enernoc, Inc., 383 Mass. 128, 137 (2020). In that case, the commissions were only subject to a contingency that the employee was employed on the payout date. The SJC concluded that this contingency was unenforceable because the employer had engaged in retaliation. Left open after Parker is whether a plaintiff can recover future commissions as lost wages
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