The steady stream of wage and hour litigation in Massachusetts state and federal courts continues unabated. As employees and employers present a variety of claims and defenses, the courts respond with one clear message: employee wages will receive broad protection. The recent decisions not only emphasize the expansive reach of the Massachusetts Wage Act ("MWA") but also contain additional developments that will raise the stakes. Recently, courts have reexamined statutory provisions that had been interpreted reliably in favor of employers. Despite unambiguous statutes of limitation, courts have allowed plaintiffs to reach back more than three years to recover unpaid wages. And, in one case, plaintiffs combined state and federal causes of action to sidestep a seemingly valid employer defense. Employers beware: these decisions may lead to additional recordkeeping and discovery burdens, increased damage exposure, and decreased settlement leverage. Lowering the "Administrative Exhaustion" Hurdle The MWA describes the process for a worker to bring a claim for unpaid wages. G.L. c. 149, §§ 148, 150. The statute provides that the worker must file a complaint with the Office of the Massachusetts Attorney General ("AG"). Specifically, section 150 states that an employee:
may, 90 days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing ... institute and prosecute ... a civil action.... Previously, courts had interpreted this language literally, to mean that an employee must exhaust all administrative remedies by first filing a complaint with the AG and then bringing a private lawsuit ("the AG filing provision"). For example, in Joyce v. The Upper Crust, LLC, 2012 WL 3028459, at *6 (D. Mass. 2012) and Norceide v. Cambridge Health Alliance, 814 F. Supp. 2d 17, 27 (D. Mass. 2011), the courts dismissed the plaintiffs' MWA claims because they had not fulfilled the "condition" of reporting alleged wage violations to the AG. See Swanson v. Lord & Taylor, LLC, 278 F.R.D. 36, 40 (D. Mass. 2011) ("The exhaustion requirement is mandatory, and operates as a bar to suit if it is not fulfilled.") Recently, Massachusetts courts have adopted a more lenient, and even directly contradictory, position. In Depianti v. Jan-Pro Franchising Int'l, Inc., the Supreme Judicial Court ("SJC") held that the lower court had jurisdiction over a wage claim, even though the plaintiff had not filed a complaint with the AG prior to filing suit. 465 Mass. 607, 611 (2013). The SJC acknowledged that the MWA "requires" a worker to file a complaint...
