186 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP contemplated by the CBA, the plaintiff is still required to establish that the payment is in fact a wage within the meaning of the statute.1162 XVI. RETALIATION FOR COMPLAINTS REGARDING WAGE AND HOUR VIOLATIONS An employer may not retaliate against an employee for exercising his or her rights under Massachusetts wage and hour law.1163 The employer can incur liability for retaliation even if the employee’s underlying wage and hour complaint has no merit. However, if the underlying claim is meritless, the employee must demonstrate that he or she acted on a good faith belief in making the complaint.1164 Massachusetts forbids employers from taking any employment actions that penalize employees for pursuing their wage and hour rights.1165 Activities protected by the anti-retaliation laws include complaining to the Attorney General or any other person, assisting the Attorney General in any wage and hour investigation, instituting (or causing to be instituted) any proceeding related to wage and hour violations, and testifying (or being prepared to testify) in such a proceeding.1166 The Commonwealth’s anti-retaliation laws also protect employees who make internal wage and hour complaints. A formal complaint to the Attorney General is not required.1167 The SJC has held, however, that merely reporting another employee’s wage and hour concerns is not protected activity.1168 For example, when a manager told a restaurant owner that waiters believed a tippooling arrangement was illegal, he was not asserting the servers’ rights or complaining on their behalf, and he therefore could not claim retaliation when the owner subsequently terminated his employment.1169 Similarly, complaining to a third party, such as a customer, is not protected 1162 In Newton, the Appeals Court explained that the timely payment of compensation covered by the Wage Act is a statutory right, but did not address whether the contractual overtime, call-back pay and stand-by pay at issue were in fact “wages” covered by the Wage Act. See Newton, 62 Mass. App. at 349 n.8. 1163 See M.G.L. ch. 149, § 148A and M.G.L. ch. 151, § 19. The FLSA also forbids retaliation, making it unlawful for an employer “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter . . . .” 29 U.S.C. § 215(a)(3). However, while oral complaints made to a public employer may be sufficient grounds for a retaliation claim under the FLSA, it is unclear whether oral complaints made to private employers qualify as protected activity. Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011) (declining to reach issue as to private employers). 1164 Smith v. Winter Place, LLC, 447 Mass. 363, 364 n.4 (2006) (“viability [of a wage and hour retaliation claim] does not depend on the success of the underlying discrimination claim, so long as the plaintiff can prove that he ‘reasonably and in good faith believed the [employer] was engaged in wrongful discrimination’”) (quoting Tate v. Dep’t of Mental Health, 419 Mass. 356, 364 (1995)). However, a worker cannot, as a matter of law, state a claim for retaliation under the Minimum Wage Law where the worker admittedly earned in excess of the statutory minimum wage and the alleged protected activity was the worker’s demand for an even higher hourly wage. DLS Opinion Letter MW-2016-07.13.16 (July 13, 2016). 1165 M.G.L. ch. 149, § 148A. 1166 Id. 1167 See generally Smith, 447 Mass. at 363. 1168 Id. 1169 Id. An employee also cannot assert common law wrongful discharge claims under these circumstances. The SJC has noted that—while simple contract claims for unpaid wages are not preempted by ch. 149, § 148—common law retaliation claims are preempted by § 148A because “when the Legislature has provided a statutory cause of action to an at-will employee who has been
RkJQdWJsaXNoZXIy OTkwMTQ4