SJC Decides that Non-Exempt Employees Cannot Receive the Massachusetts Wage Payment Law Remedies for the Untimely Payment of FLSA Overtime

On April 14, 2022, the Supreme Judicial Court issued a decision holding that employees whose sole claim for untimely overtime wages rests on the federal Fair Labor Standards Act (FLSA), 29 U.S.C., § 203, can only recover the remedies provided under the FLSA and cannot use the Massachusetts Wage Payment Law, G.L. c. 149, § 148, with its treble damages remedy. The decision in Devaney v. Zucchini Gold, LLC., No. 13176 (2022) therefore rejected the analysis in three decisions by judges of the federal district court for the District of Massachusetts which have ruled that the State law can be used to recover treble damages for unpaid overtime wages due under the FLSA. Since Devaney is a matter of the State’s highest court construing the scope of a Massachusetts statute, the SJC’s decision should control but there is some uncertainty because its ruling also involves interpretation of the federal statute.

Devaney involved a claim for tardily paid overtime wages brought by a group of three employees of a restaurant. The employees alleged violations of the FLSA but did not pursue a claim under the Massachusetts Overtime Law, G.L. c. 151, §1A, because that statute exempts restaurant workers from its overtime requirements. After the Superior Court found for the employees and used the Wage Payment Law to treble their damages and awarded attorney’s fees and costs, the restaurant appealed and the SJC took direct appellate review.

Generally, the Wage Payment Law provides more generous remedies than the FLSA and there are several key procedural differences between the two laws. The FLSA allows private actions by employees to recover unpaid overtime wages, liquidated damages in an equal amount if the employer acted in bad faith, and costs and attorney’s fees. The Wage Payment Law, on the other hand, provides to employees a private right of action and makes employers strictly liable for a mandatory award of treble damages for any lost wages, as well as attorneys’ fees. Given these differences, employees who are not exempt under the FLSA often try to use the Wage Act to receive higher recoveries even where their claim for overtime wages rests solely on the FLSA.

In Devaney, the SJC rejected this avenue, concluding that employees cannot recover treble damages under the Wage Payment Law where their claim is solely based on overtime owed under the FLSA. The Court reasoned that where the FLSA provides its own remedy, that conflicts with remedies under analogous state law claims and thus preempts them. Separately, the Court also clarified that the FLSA’s requirement of one and one-half times the employee’s FLSA “regular rate” of pay for overtime worked only results in damages equal to half the regular rate when employees have already been paid at the regular rate for the overtime hours.

Employers should be aware of the decision in Devaney because it clarifies the remedies that an employer will and will not be liable for if it pays employees late for overtime. While many private sector employers are subject to the Massachusetts Overtime Law and are therefore still subject to the Wage Payment Law’s mandatory treble damages provision, that statute does not apply to public sector employers. In this context, another federal judge in this district has ruled that the Wage Payment Law cannot be used as a remedy against public sector employers for FLSA overtime claims precisely because those employers are not subject to the analogous Massachusetts Overtime Law. McGrath v. City of Somerville, 419 F.Supp.3d 233 (D. Mass. 2019). In addition, although in Devaney the SJC did not specifically address when FLSA overtime wages must be paid in Massachusetts, that is generally required on the next pay day after the overtime has been earned.

Questions regarding compliance with the FLSA, the Wage Payment Law, and related provisions are often complex and fact specific. If you have such questions, please contact us. We are pleased to assist employers with FLSA and Wage Payment Law compliance.

This update is provided for informational purposes only and should not be considered legal advice.

SJC Decides That Employers Are Strictly Liable for Treble the Amount of Wages, Including Accrued, Unused Vacation That is Not Paid on the Date of Termination

On April 4, 2022, the Massachusetts Supreme Judicial Court issued a decision in Reuter v, City of Methuen, No. 13121 (2022), holding that an employer who failed to pay a discharged employee for accrued vacation time on the day of her termination, as required by the Wage Act, G.L. c. 149, §148, is strictly liable for treble the amount of the late wages, and not merely trebled interest. In doing so, the SJC rejected the reasoning of a trial court decision, Dobin v. CIOview Corp., Mass. Sup. Ct., No. 2001-00108 (Middlesex County Oct. 29, 2003), which many employers have relied on to argue that wage payments paid after the date they were due under the statute can be properly made if they include trebled interest.

Reuter involved a school custodian who was terminated for just cause. At the time of termination, she had accrued nearly $9,000 in unused vacation time. Even though the Wage Act expressly requires that this accrued, unused vacation is “wages” and must be paid on the date of termination, the City did not make this payment until three weeks after this date. Subsequently, after receiving a demand letter for treble the amount of the late vacation pay plus attorney’s fees, the City paid an amount which represented a trebling of 12% annual interest on the tardily-paid wages. Following a superior court judgment for the City, an appeal was filed and the SJC took the case on direct appeal.

In its decision, the SJC reviewed the express language of the Wage Act, its legislative history, and its purpose to protect employees who often rely on prompt payment of wages to cover basic necessities. The SJC noted that the liquidated damages provision of the Wage Act makes employers strictly liable for treble damages, meaning that the provision applies regardless of the employer’s intent. The SJC reasoned that the Legislature therefore intended that employers, and not employees, bear the consequences of late payments, whether intentional or not. Reasoning that “the statute does not tolerate or in any way condone delay,” the SJC concluded that all late payments must be trebled as damages under the Wage Act.

The consequences of this decision for employers are notable. Employers must pay an employee for all wages, including accrued, unused vacation time, on the day of termination. The alternative is liability for treble that amount. As the SJC noted, this may mean that an employee who has engaged in illegal activity or other misconduct may have to be suspended with pay for a short period of time before termination to allow the employer time to calculate wages and benefits. Obviously, that option is not available for an employee whose employment is terminated for other reasons or who resigns. Frequently, municipalities and school districts encounter practical obstacles of various kinds in dealing with payroll departments regarding prompt compliance with the statute. The consequences should be clearly explained.

If you have questions about the application of this update or related questions, such as the legality of vacation carryover/“use it or lose it” policies, please contact us. We are pleased to assist employers with Wage Act compliance.

This update is provided for informational purposes only and should not be considered legal advice.

Supreme Court Decides That an Elected Public Board Did Not Violate the First Amendment When It Censured One of Its Members

On March 24, 2022, the United States Supreme Court issued a decision in Houston Community College System v. Wilson, No. 20-804 (2022), holding that an elected member of a public body does not have a First Amendment claim arising from that body’s verbal censure of the member. The Court’s decision was limited to the narrow issue of whether the Board of Trustees of the Houston Community College System violated the First Amendment rights of David Wilson, a member of the Board who sued the Board and his fellow members, after it censured him for his extensive verbal dispute with the Board.

Following his election to the Board in 2013, Wilson engaged in an escalating and increasingly acrimonious series of disputes and disagreements with the Board, culminating in the Board’s adoption of a public resolution censuring Wilson and imposing certain penalties that limited his eligibility to run for reelection and ability to access Board funds. Wilson brought a claim under 42 U.S.C. § 1983 alleging that, among other things, the Board’s censure violated the First Amendment.

Although the District Court dismissed his claim, the Court of Appeals for the Fifth Circuit reversed, holding that Wilson had standing and that his complaint stated a viable First Amendment claim. The Supreme Court granted the Board’s petition for a writ of certiorari, limiting its review of the case to the issue of the “purely verbal censure”.

The Court applied its established requirements that in these cases the plaintiff prove that the Board took “adverse action” in response to the speech and that the adverse action was “material” – such as arrest, prosecution, or dismissal from government employment – rather than “immaterial”, such as a mere frown from a supervisor. The Court considered three important facts: (1) there is a long-accepted history of elected bodies censuring their members; (2) elected representatives are expected to shoulder a degree of criticism about their public service; and (3) the Board’s censuring is itself a form of protected speech that concerns the conduct of a public official. Given these facts, the Court therefore held that the Board’s verbal censure was not a materially adverse action and, consequently, that the Board did not violate the First Amendment.

The Court was careful to limit the scope of its holding. The Court cautioned that it was not ruling that verbal reprimands or censures can never give rise to a First Amendment retaliation claim and suggested that whether the plaintiff is a student, employee, licensee, or private individual may change the analysis. The Court also limited its decision to an elected body’s speech, such as reprimands and censures, and pointed out that it was not addressing punishments or sanctions, such as fines or expulsion.

This decision is important for elected public boards and committees when dealing with the speech of individual members and allows the use of verbal censure without risk of First Amendment liability. That said, in a given case it is essential that the public body seek the advice of counsel to determine whether the content of the censure may nonetheless create a risk of liability, or whether other responses to the member’s speech are permissible.

If you have questions about the content of this update or implications for elected bodies, please contact us. We are pleased to assist publicly elected bodies with potential First Amendment issues.

This update is provided for informational purposes only and should not be considered legal advice.

Nick Dominello Named President of the Massachusetts Council of School Attorneys (“COSA”)

Effective January 1, 2022 Nick Dominello was named President of the Massachusetts Council of School Attorneys, an affiliate organization of the Massachusetts Association of School Committees (MASC).  After serving as a former COSA Officer, member at large, Nick was elected President of COSA for a one-year term (January 1, 2022 through December 31, 2023) during the organization’s 2021 annual meeting.

The newly elected 2022 COSA officers can be found here on the MASC website:

Liz Valerio and Nick Dominello Present at 2022 Massachusetts Association of School Personnel Administrators (“MASPA”) Law Day

On Friday, March 18, 2022 Liz and Nick presented at the MASPA School Law Day webinar.  Liz and Nick discussed Ongoing Bargaining Trends and Employee Issues Associated with COVID-19.

SJC Finds That Petitions Under The Child Requiring Assistance (CRA) Statute May Be Filed By Non-Attorney School Personnel

On March 18, 2022, the Massachusetts Supreme Judicial Court issued a decision, Lexington Public Schools v. K.S., holding that pursuant to G.L. c. 119, § 39E, the Child Requiring Assistance (CRA) statute, non-attorney school personnel are authorized to file Juvenile Court petitions concerning students. The issue before the court was whether an assistant principal committed unauthorized practice of law when he filed, on behalf of a school district, a petition under the CRA asserting that a twelve-year-old child needed assistance because of his excessive and willful absences.

In April of 2021, a middle school assistant principal and attendance supervisor filed a CRA petition in the Juvenile Court after a twelve-year (12) old child failed to attend school for forty-eight (48) days that school year, and his family had not participated in a truancy prevention program. After the Juvenile Court judge accepted the petition, counsel for the child moved to dismiss the petition on the ground that the assistant principal, as a non-attorney, was engaging in the unauthorized practice of law. The Juvenile Court judge denied the motion to dismiss, reasoning that the Legislature has authorized school officials to file CRA petitions.

Generally, non-lawyers are prohibited from practicing law to protect the public welfare, and courts enjoy broad discretion in defining the practice of law. Nevertheless, courts have traditionally given substantial deference to the views of the legislature on issues of unauthorized practice of law. Under the express language of the CRA, “a school district may initiate an application in [the Juvenile Court] stating that [a] child is not excused from attendance in accordance with the lawful and reasonable regulations of such child’s school…” M.G.L. c. 119 § 39E. Similarly, c. 76 § 20 says “Supervisors of attendance… may apply for petitions under the provisions of section thirty-nine E of chapter one hundred and nineteen.” In Lexington Public Schools, the court found that, in passing these laws, the Legislature intended to allow non-lawyers to apply for CRA petitions and that the Juvenile Court should provide materials to help them during their appearance. Further, CRA proceedings are intended to be relatively informal because, in 2012, the Legislature replaced the children in need of services statute with the CRA with the express goal of making the proceedings “less adversarial.” Accordingly, the Court held that school personnel – as well as parents, custodians, and legal guardians – do not engage in the unauthorized practice of law when they file a CRA petition.

However, the Court declined to go any further than the issue presented and did not provide a precise definition of the practice of law, recognizing the difficulty in doing so. Instead, the court reaffirmed previous holdings that a determination whether an individual’s actions constitute “practicing law” is a fact-specific inquiry.

If you have any questions regarding the filing of CRA petitions, please contact us.  We are pleased to assist school administrators in addressing truancy concerns and navigating the CRA petitions process.

This update is provided for informational purposes only and should not be considered legal advice.

Massachusetts COVID-19 Emergency Paid Sick Leave Act Ends

Last year, the Massachusetts legislature passed “An Act Providing For Massachusetts COVID-19 Emergency Paid Sick Leave.”  As of March 15, 2022, the Act has expired and employees are no longer eligible for leave under the Act.

The Act went into effect on May 28, 2021 and required employers to provide eligible employees with up to 40 hours of paid leave, capped at $850 per week, for certain absences in connection with COVID-19.  This expense is reimbursable to the employer from the COVID-19 Emergency Paid Sick Leave Fund.

While the program was originally set to expire on April 1, 2022 or upon the exhaustion of $100 million in program funds, the law allowed the Office for Administration and Finance to end the program earlier upon exhaustion of funds.

Employers still have until April 29, 2022 to submit applications for benefits reimbursement.

While this state sick leave benefit has expired as of March 15, 2022, employees may have other leave entitlements under collective bargaining agreements or employer policies.

If you have any questions regarding the content of this update or any other questions regarding labor and employment law generally, please contact us.

Massachusetts COVID-19 Emergency Paid Sick Leave Act Nears End

Last year, the Massachusetts legislature passed “An Act Providing For Massachusetts COVID-19 Emergency Paid Sick Leave.” The Act requires all private and public employers within Massachusetts to offer employees leave time for COVID-19 related issues.

The program under the Act is scheduled to end on April 1, 2022, or earlier if the Commonwealth determines that the allocated budget is nearing exhaustion. If the program will be terminated before April 1st, the Commonwealth will provide fifteen (15) days’ notice to employers, and establish a run-out period to allow employers to finish their reimbursement submissions. Employers with unionized workforces should review all applicable agreements with unions as those agreements may provide benefits that go beyond April 1, 2022.

The Act operates as follows:

Qualifying Reasons for Leave

Employers are required to provide emergency paid sick leave to employees who are unable to work for one or more of the following reasons:

1. An employee’s need to:
a. self-isolate and care for themself because they have been diagnosed with COVID-19;
b. get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
c. get or recover from a COVID-19 immunization;

2. An employee’s need to care for a family member who:
a. must self-isolate due to a COVID-19 diagnosis; or
b. needs medical diagnosis, care, or treatment for COVID-19 symptoms;

3. A quarantine order or similar determination regarding the employee by a local, state, or federal public official, a health authority having jurisdiction, or a health care provider;

4. An employee’s need to care for a family member due to a quarantine order or similar determination regarding the family member by a local, state, or federal public official, a health authority having jurisdiction, the family member’s employer, or a health care provider; or

5. An employee’s inability to telework due to COVID-19 symptoms.

A “family member” under the Act is defined as an employee’s spouse/domestic partner, child, parent, grandchild, grandparent, or sibling, a parent of a spouse, or a person who stood in loco parentis to the employee when such employee was a minor child.

Employers may not require employees to use other types of available paid leave in lieu of this emergency paid sick leave, and may not require an employee to search for or find a replacement worker to cover the time that the employee will miss while on leave provided by the Act.

Increment of Leave

1. For employees who work 40 or more hours per week, the employer must provide 40 hours of emergency paid sick leave.

2. For employees who regularly work less than 40 hours per week, employers must provide leave in the amount equal to the average number of hours that such employee works per week.

3. For employees with varying weekly hours employers must provide leave that is equal to the average number of hours that the employee was scheduled to work per week over the previous 6 months.

4. For an employee who has not been employed for at least 6 months and has a schedule where weekly hours vary, the employer must provide leave equal to the number of hours per week that the employee reasonably expected to work when hired.

5. The maximum an employer is required to pay an employee per week and seek in reimbursement is $850.00, including costs of benefits.

Employee Requests for Leave

Employers who seek reimbursement from the Commonwealth must require their employees to submit requests for emergency paid sick leave in writing. The state created a form for employers to use in obtaining that information, which is available at: The form must contain the following information:

1. The employee’s name;

2. The date(s) for which leave is requested and taken;

3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and

4. A statement that because of the COVID-19 related reason the employee is unable to work or telework.

For leave requests based on a quarantine order or self-quarantine advice, the statement from the employee must also include:

1. The name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and

2. If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

All employee health information gathered is to be treated as confidential, subject to applicable state and federal law. No health information should be disclosed to any third parties without express permission from the employee.

Reimbursement Protocol

In anticipation of applying for reimbursement, the state has advised that employers should collect and retain the following information:

1. The employee’s social security or tax identification number;

2. The employer’s identification number associated with the position from which the employee took leave;

3. The length of the leave (in hours) and wages paid during that leave that are not eligible for federal tax credits, and are not otherwise paid under any other government program or law;

4. Benefits applicable to the employee taking leave; and

5. The number of hours in the employee’s regular schedule, or: (A) if the employee has no regular schedule, the hours that the employee was scheduled to work per week over the 6-month period immediately preceding the date on which such employee takes the emergency paid sick leave, including hours for which such employee took leave of any type; or (B) if the employee did not work over such 6-month period, the number of hours the employee reasonably expected to work at the time that the employee was hired or the average number of hours per week that the employee would normally be  scheduled to work.

Retaliation Prohibition

Employers may not interfere with an employee’s ability to use the emergency paid leave under the Act or retaliate against an employee for exercising the rights described above. This includes considering the use of the emergency sick leave as a negative factor in any employment action or taking an adverse action against an employee because the employee supports the exercise right of another employee.

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Public Employers Must Bargain Over the Methods and Means of Fitness for Duty Examinations

Under Department of Labor Relations/Commonwealth Employment Relations Board precedent a public employer has the nonbargainable prerogative to require employees to undergo fitness for duty examinations. Until recently, however, it was an open question whether the method and means by which these examinations are conducted is a mandatory subject of bargaining. On December 30, 2021, the Appeals Court resolved that question when it affirmed the decision of the CERB in City of Newton v. Commonwealth Employment Relations Board, holding that the employer was required to engage in bargaining over the criteria and procedures for fitness for duty examinations.

The facts giving rise to the dispute first arose in 2016, when the police chief ordered a captain to undergo physical and psychological “fitness for duty” examinations. The order followed a recent uptick in the number of personal days the employee had taken following deaths in his family and a personal injury not related to his work. In response to the chief’s directive the superior officers demanded that the city bargain over (1) the selection of the psychological examiner; (2) the information to be transmitted to the examiner; (3) the testing protocol to be used; and (4) what results were to be generated and to whom the results were to be communicated. When the city refused, the union filed a charge of prohibited practice and ultimately the DLR hearing officer and then the CERB found a violation, following which the city appealed.

The Appeals Court affirmed. Noting that “the decision to order a fitness for duty examination is within the city’s managerial prerogative and is not subject to mandatory bargaining”, it rejected the city’s several arguments regarding the manner in which the examination is conducted. First the city asserted that a bargaining requirement would “unduly impinge on its freedom to perform its public functions.” The court disagreed, ruling that the city’s interest in public safety is not undercut by the requirement that it engage in impact bargaining over the procedures and criteria for examinations. The court added that the city and union had previously engaged in successful negotiations over a drug and alcohol abuse policy, which included standards for initiating testing and testing administration. Next, the city argued that it was insulated from its duty to bargain based on the Civil Service Law, G.L. chapter 31. The court again disagreed, finding no conflict between the two laws and, therefore, that the city’s obligation to negotiate prevailed. Finally, the city argued that the union waived its right to bargain based on certain provisions in the parties’ contract, including the “management rights” clause. Again, the court rejected this argument as well because the agreement’s language failed to show a “clear and unmistakable waiver” of bargaining over the manner and means of determining fitness for duty examinations.

The court summarized by stating the “fact that mere completion of the examinations did not result in [the employee]’s reinstatement, and that he remained suspended until he had met whatever fitness criteria applied to the examinations, makes the point that the ‘methods and means’ of the decision were critical to the terms of [his] continued employment.” The court emphasized the “distinction between ordering an examination and the procedures for implementation, e.g., choosing an examiner, and the method and means by which the examination will be carried out”.

Public employers should keep in mind that while the decision to have an employee undergo a fitness for duty examination is the employers to make, how the examination will be implemented must be negotiated with the relevant union. Because in a given circumstance it may be difficult to clearly separate the two concepts, an employer that is uncertain about its obligations should consult with its counsel.

This update is provided for informational purposes only and should not be considered legal advice.

CDC Reduces Isolation Time for Individuals Exposed to COVID-19

On Monday, December 27, 2021, the Centers for Disease Control and Prevention (“CDC”) shortened its recommended isolation time for individuals exposed to COVID-19. Guidelines now recommend that individuals who are unvaccinated or have not received the vaccine booster quarantine for five (5) days, followed by strict mask use for an additional five (5) days. Individuals who have received their vaccine booster do not need to quarantine following an exposure but should wear a fitted mask for the ten (10) days following the exposure. For all individuals who have been exposed, the CDC advises that best practice is to receive a test five (5) days after the initial exposure.

As part of its update, the CDC also reduced the quarantine period for individuals who have tested positive for COVID-19 but are asymptomatic from ten (10) days to five (5) days. If individuals remain asymptomatic following the five (5) day isolation period, they may leave quarantine if they continue to mask for five (5) days. Massachusetts has adopted CDC guidelines as follows:

  • Isolation: Individuals who test positive for COVID-19, regardless of vaccination status, must isolate for five (5) days. If, after those five (5) days individuals remain asymptomatic or symptoms are resolving, they may leave isolation if they continue to mask for five (5) days.
  • Quarantine: Individuals exposed to COVID-19 who are asymptomatic and have received the COVID-19 booster or have completed the primary series of the Pfizer or Moderna vaccine within the last six months do not need to quarantine following an exposure. In lieu of quarantine, however, individuals must wear a fitted mask for the ten (10) days following the exposure and, if possible, receive a test five (5) days after the initial exposure.
  • Quarantine: Individuals exposed to COVID-19 who are asymptomatic but are unvaccinated or are eligible for the booster and have not yet received it should quarantine for five (5) days, followed by strict mask use for an additional five (5) days. If quarantine is not possible individuals must wear a mask for ten (10) days. If possible exposed individuals should receive a test five (5) days after the initial exposure.

This update is provided for informational purposes only and should not be considered legal advice.