© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 187 conduct under the statute.1170 At least one Superior Court has held that the statute does not extend to former employees who allege retaliation for post-termination conduct.1171 Retaliatory actions, termed “adverse employment actions,” can include termination or any other type of discrimination.1172 Constructive discharge is also unlawful retaliation in Massachusetts. It occurs when “the employer’s conduct effectively forces an employee to resign.”1173 There are two types of constructive discharge.1174 First, the employer might create intolerable working conditions that are objectively “so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.”1175 Second, the employer might demote the employee or reduce his or her status by giving the employee’s job to someone else, transferring the employee’s responsibilities to another (thus removing his or her authority), or reassigning the employee to a nonexistent job.1176 Penalties and damages for retaliation are discussed in Section XIV. In addition to the punishments listed there, any employer or individual who retaliates based on complaints related to overtime pay or minimum wage violations are subject to extra penalties.1177 These additional penalties include damages of between one and two months’ wages, plus the costs of bringing the action and reasonable attorneys’ fees.1178 At least one Massachusetts court has found that plaintiffs may not recover damages for emotional distress in the context of a Wage Act retaliation claim.1179 discharged for exercising her statutory rights, there is no need to add a common-law remedy.” Lipsitt v. Plaud, 466 Mass. 240, 247 n.11 (2013) (quoting Dobin, 2003 WL 22454602). 1170 Benoit v. The Federalist, Inc., No. SUCV2004-3516-B (Mass. Super. June 30, 2006) (holding that employee who complained to customers had not engaged in protected conduct under anti-retaliation provision). 1171 See DeThomas v. Cumberland Farms, Inc., No. 16-03554, 2017 WL 11578113, *3 (Mass. Super. Oct. 16, 2017) (explaining that the language of M.G.L. ch. 149, § 148A only protects individuals from being penalized for asserting their rights under the Wage Act during their employment). 1172 M.G.L. ch. 149, § 148A. 1173 Vonachen v. Computer Assocs. Int’l, Inc., 524 F. Supp. 2d 129, 137-38 (D. Mass. 2007) (quoting GTE Prods. v. Stewart, 421 Mass. 22, 34 (1995)). 1174 Id. at 138. 1175 Id. 1176 Id. at 139. 1177 M.G.L. ch. 151, § 19. For overtime complaints, these additional penalties only apply to retaliatory actions taken by private employers. Penalties for retaliation related to overtime pay by public employers and state police are restricted to those listed in Section XVIII. See M.G.L. ch. 149, §§ 148A, 30C, and 33B-33C. 1178 M.G.L. ch. 151, § 19. 1179 Somers v. Converged Access, Inc., Civ. MICV2006-01727-B, 2008 WL 497982, *8 (Mass. Super. Jan. 23, 2008) (Somers I), overruled on other grounds, Somers II, 454 Mass. 582 (2009). The First Circuit affirmed an award of emotional distress damages under M.G.L. ch. 149, § 150 in the context of a retaliation claim. See Travers v. Flight Servs. Sys., Inc., 808 F.3d 525, 551 (1st Cir. 2015). However, the issue before the court was the amount of emotional distress damages and whether those damages should be trebled; neither party raised the issue of whether the statute provides for such damages in the first place so the issue was not considered. Id.
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