© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 183 The employer may decide to change the practice prospectively, but not offer back pay to remedy past violations. This would not decrease its legal exposure for those violations. Given the myriad risks and considerations, the employer should consult with counsel before pursuing any of these options. Settlement of a case certified as a class action requires court approval under Rule 23(c) of the Massachusetts Rules of Civil Procedure. It is typical for the Court to give notice of the proposed settlement to members of the class before approving it. However, unlike under the federal rules, Massachusetts Rule 23 does not provide a basis for individuals to opt out of the class action.1144 The lack of an opt-out provision raises due process concerns under the U.S. Constitution.1145 XV. EMPLOYEES COVERED BY A COLLECTIVE BARGAINING AGREEMENT Employees who are covered by a collective bargaining agreement (“CBA”) between an employer and a labor union present unique issues under the wage and hour laws. Many CBAs contain their own rules regarding what is working time, meal breaks, vacation time, compensation and overtime. There have been an increasing number of disputes in which plaintiffs allege that an employer violated the wage and hour laws because it either followed or violated the terms of the CBA. A. Is the Employer a Public or Private Entity? A preliminary question in any of these disputes is whether the employer is a private or public entity. Most private employers are subject to federal labor laws such as the National Labor Relations Act1146 and the Labor-Management Relations Act (“LMRA”).1147 Federal labor law broadly preempts state law claims, and thus state wage and hour claims arising out of the terms of a CBA may be preempted by federal labor law. Section 301 of the LMRA creates a cause of action for breach of a labor agreement, and federal courts are empowered to fashion a body of federal law regarding the enforcement of such contracts.1148 As a result, the Supreme Court has explained that state law claims relating to the 1144 See Moelis v. Berkshire Life Ins. Co., 451 Mass. 483, 486 (2008) (noting that class members cannot opt out under Mass. R. Civ. P. 23). 1145 See Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (“due process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to the court”) (internal citation omitted); AT&T Mobility v. Concepcion, 563 U.S. 333, 349 (2011) (“For a class-action money judgment to bind absentees in litigation . . . absent members must be afforded notice, an opportunity to be heard, and a right to opt out of the class”); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (“In the context of a class action predominantly for money damages we have held that absence of notice and opt out violates due process”). 1146 29 U.S.C. § 101 et seq. 1147 29 U.S.C. § 185. 1148 29 U.S.C. § 185(a); Textile Workers v. Lincoln Mills, 353 U.S. 448, 450-51 (1957).
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