Appeals Court Holds Public Employee Unions Can Negotiate Pay Schedules that Differ from those in the Massachusetts Wage Act
In a 3-2 decision issued earlier this week, the Appeals Court held that unions have the authority, through collective bargaining, to act on behalf of the employees they represent by negotiating a different schedule for making payments of earned overtime than the deadline established by the Wage Act, G.L. c. 149, §§ 148 and 150. The court also discussed, but did not decide, whether the provisions of a collective bargaining agreement can additionally waive employees’ rights to judicial enforcement of claims for late payment.
In Edwin Parris, et al. v. Sheriff of Suffolk County, No. 17-P-189, the individual plaintiffs were all employed by the defendant, a state employer, and were represented by collective bargaining units. The defendant Sheriff and the unions entered into collective bargaining agreements (“CBAs”) which provided for payment of overtime wages within 25 working days following the month in which the work was performed. This is a much longer time frame than that in the Wage Act, which generally requires employers to pay wages within 6 or within 7 days after the end of the pay period in which the wages were earned (depending on which statutory group the employee belongs to), unless an employee “requests in writing to be paid in a different manner.”
The employees filed suit against the Sheriff, alleging he violated the Wage Act by failing to pay overtime wages within the statutory 7-day time period. A Superior Court judge concluded that the employees had waived their right to enforce the payment schedule set out in the Wage Act by collectively bargaining to be paid at a different time. The judge further concluded that if the employees wanted to contest the Sheriff’s failure to pay the overtime wages within the contractual 25 working-day period, they would have to exhaust the CBA’s grievance procedures.
The Appeals Court first addressed whether a union has the authority to negotiate, on a public employee’s behalf, that wages be paid in a manner different from what the Wage Act prescribes. The court determined that limiting unionized employees to individually electing a different payment schedule would conflict with the public employee labor relations law, G.L. c. 150E. The court therefore held that where (1) unions are empowered to act on an employee’s behalf with respect to wages and possess the right to speak exclusively for all employees on the issue of wages; and (2) direct communications between the employer and its employees regarding changes to the wage schedule would constitute a prohibited practice, the unions may act on employees’ behalf to exercise the employees’ election under the Wage Act and alter the overtime payment schedule.
Next, the Appeals Court considered whether the negotiated payment schedule precluded the employees from judicial enforcement of their right to prompt payment. Under the Wage Act, an employee whose wages are detained longer than permitted has an individual right to file a civil action for injunctive relief, damages including lost wages, mandatory treble damages, and attorney’s fees.[1] The court cited precedent of the U.S. Supreme Court which has allowed the enforcement of CBA provisions compelling arbitration of individual employee statutory claims, as long as such provisions are “clear and unmistakable.” To be “clear and unmistakable,” they must reference the specific statutory right that is being subjected to arbitration.
The CBA provisions under scrutiny in this case did not meet that standard. Therefore, the Appeals Court concluded that the unions had not waived the employees’ Wage Act judicial remedies with respect to payments withheld longer than the negotiated 25 working-day period. Accordingly, the Appeals Court vacated the Superior Court’s decision and permitted the plaintiffs to proceed to enforce their claims in Superior Court.
Although not part of its holding, the court suggested that it might enforce a CBA provision waiving employees’ rights to judicial enforcement of Wage Act violations, provided the waiver is clear and unmistakable.
This case was the subject of a unique Appeals Court practice which allows the Chief Justice to supplement a 3-judge panel by adding two more justices where there is a disagreement on the panel and the proposed decision does not reflect the views of a majority of the justices on the Appeals Court. That happened here, and it resulted in two dissenting opinions. Both agreed with the majority’s ruling that the unions could negotiate a deadline which differed from those in the statute but disagreed that the employees should be able to file claims in court. Instead, those justices would have limited the employees to grievance and arbitration remedies under the CBA.
As a result of this decision, a union representing public employees may, through collective bargaining, negotiate a payment schedule that differs from the 6-day or 7-day deadlines in the Wage Act. If such an alternative payment schedule is negotiated, the employees will retain the right to enforce the payment schedule in court unless, at a minimum, there is a “clear and unmistakable” waiver of that right.
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[1] Prior to initiating suit, an aggrieved employee must first file a complaint with the Attorney General. Under G.L. c. 149, §150, the Attorney General may institute civil or criminal proceedings to enforce an employee’s rights under the statute. An individual employee may file suit 90 days after filing a complaint with the Attorney General or sooner if the Attorney General gives written assent.
This update is provided for informational purposes only and should not be considered legal advice.