Here are some common types of overtime claims we handle on a class action basis.
Restaurant Industry: Workers such as servers, bussers, and kitchen staff and claims for minimum wage, overtime, and tip-theft.
Technical Support: Overtime claims for technical support workers in the telecommunications, banking, and corporate sectors.
Retail Industry: Assistant store managers are often misclassified as exempt from overtime and can accrue substantial claims.
Adult Nightclub Industry: Dancers and entertainers suffer from frequent misclassification as independent contractors and non-payment of minimum or overtime wages, including earned fees and tips.
Grocery Store Workers: Employees being denied proper overtime compensation because their employers unlawfully paid them using the “fluctuating workweek” method. It is important to examine whether the employee is really paid a fixed salary and other factors in order to be lawfully paid in this manner.
Banking and Brokerage: Bank and brokerage employees, including assistant managers, customer service managers, personal bankers, loan officers, and financial advisors, for unpaid overtime.
Prevailing Wage: Massachusetts workers on public work jobs not being paid the correct rate and, consequently, not being paid the correct overtime rate.
If you think one of these scenarios applies to you, reach out and we’ll do a free assessment of your claims.
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Our firm is pleased to announce the conclusion of the class action case we brought against Six Flags New England on behalf of thousands of seasonal employees. After extensive litigation, the Suffolk Superior Court recently approved a settlement which resulted in a $4 million fund to compensate seasonal workers for unpaid overtime. In addition to significant overtime distributions to workers, unclaimed funds will be distributed to the Community Legal Aid of Springfield, Massachusetts, a legal aid organization located close to where a majority of Six Flags’ seasonal employees lived.
These cases are only possible when employees come forward and raise concerns about their employer’s compensation practices. The Six Flags case began with two employees contacting our firm and then serving as class representatives in the case. In addition to receiving overtime payments, each of the class representatives was awarded an additional $15,000 for their service in representing the class.
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Claims under the Massachusetts Wage Act can sometimes be brought as class actions. This usually makes sense when there is a common policy or practice of the employer that affects many employees in a similar way. There are many examples of these types of policies and practices. Just a few include:
Not paying for short breaks
Wrongfully classifying certain groups of employees as exempt from overtime
A policy requiring off-the-clock work
Not paying for inter-day travel time or mandatory travel back to the employer’s location at the end of the day
Illegal deductions from wages or tips
There can be many more examples. However, the key is usually a common policy or practice that is illegal and that affects many employees in a similar way.
The Supreme Judicial Court discussed Wage Act class actions in some detail in this case: Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337 (2008). The basic requirements of a class action are:
Numerosity: There are enough people in the class, usually more than 40 are required.
Commonality: Common questions affect all or a substantial number of the class members.
Typicality: The claims come out of the same policies, patterns or practices and are based on the same legal theories.
Fair representation by the class representatives: the plaintiff (class representative) does not have a conflict with the class, and counsel is able, qualified and experienced.
Predominance of common issues of law and fact over individual issues.
Superiority of a class action over individual cases: This is related to the predominance requirement and basically means that a class action is better than a bunch of individual cases. This has much to do with the uniformity of the policy and practices involved and the effect of those policies on the class members.
Plaintiffs who act as class representatives have a duty to the class. They have a duty to seek a just result for the entire class, not just for themselves. However, in exchange for being this instrument of common justice, class representatives often receive court-approved monetary incentive payments.
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Contrary to most workers, those who qualify as “transportation workers” cannot be forced into arbitration because of hidden fine print. Other workers can be forced to sign an agreement to get and keep a job, and that agreement may contain language requiring the employee to give up their rights to sue in court and to band together with others in class action cases. Under current federal law, namely the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”), these provisions in employment and consumer contracts are generally enforceable. These arbitration agreements deprive workers of their rights, but notably, transportation workers are exempted from this law and cannot be forced into arbitration or restricted from class actions.
For example, in 2020 the U.S. District Court for the District of Massachusetts decided that Lyft could be sued in a class action case by its workers notwithstanding an otherwise-valid arbitration provision. The decision rested on the court’s view that Lyft drivers are “transportation workers” under the law. The court reached that conclusion partly because Lyft drivers transported passengers from Logan Airport on their first or last leg of their interstate journeys. That was critical because the focus in determining whether a worker who transports goods or people is a “transportation worker” centers on the connection between those goods or passengers and travel between different states and countries, in contrast to traveling within one state’s boundaries. (SeeCunningham v. Lyft)
When analyzing whether a worker transporting goods is a “transportation worker,” the key questions are:
first, whether the employee works in the transportation industry
second, whether the employee is directly responsible for transporting the goods in interstate commerce
third, whether the employee handles goods that travel interstate
fourth, whether the employee supervises employees who are themselves transportation workers, such as truck drivers
fifth, whether, like seamen or railroad employees, the employee is within a class of employees for which special arbitration already existed when Congress enacted the FAA
sixth, whether the vehicle itself is vital to the commercial enterprise of the employer
seventh, whether a strike by the employee would disrupt interstate commerce
eighth, the nexus that exists between the employee’s job duties and the vehicle the employee uses in carrying out his duties
UPDATE, July 17, 2020: The First Circuit Court of Appeals in Waithaka v. Amazon, No. 19-1848 (July 17, 2020) ruled that “last-mile” delivery drivers for Amazon (who Amazon had classified as independent contractors) could not be forced to arbitrate their claims or be denied their rights to be part of a class action under Section 1 of the FAA. As the Court put it, “Waithaka and other last-mile delivery workers who haul goods on the final legs of interstate journeys are transportation workers ‘engaged in . . . interstate commerce,’ regardless of whether the workers themselves physically cross state lines.”
UPDATE, August 2025: Cunningham v. Lyft was appealed to the First Circuit, where the court reversed the District Court decision. The First Circuit held that Lyft drivers are actually not “transportation workers” and therefore not exempt under the FAA. The court rejected the argument that Lyft drivers affect interstate commerce. Referring to Waithaka, the court found that Amazon delivery drivers are distinguishable from Lyft drivers as “Amazon…agreed with Amazon customers to transport goods interstate from their point of origin to the customer’s home.” In contrast, Lyft drivers have no such agreement with airports. Additionally, the First Circuit found that Lyft drivers do not cross state lines often enough to meet the exemption. Cunningham v. Lyft, Inc., 17 F.4th 244 (2021).
In 2022, the First Circuit also held that Postmates delivery drivers do not qualify as transportation workers under the FAA on similar grounds. Immediato v. Postmates, Inc., 54 F.4th 67 (2022).
Two recent Supreme Court cases have provided further clarity on the standard for transportation workers. Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022) held that a ramp supervisor, who was responsible for loading and unloading baggage and mail on planes, meets the exemption. This worker “belongs to a class of workers engaged in foreign or interstate commerce” even though the worker herself was not crossing borders. To determine if someone is a transportation worker, it is important to look at what the worker does for the company and not what the employer does in general. Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246 (2024) added that a worker does not have to work in the transportation industry to qualify for the exemption.
If you feel that you are as a transportation worker and believe that you have been misclassified as an independent contractor or otherwise been deprived of wages, feel free to reach out to us at 617-338-9400 for a free case review.
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On July 23, 2019, the Massachusetts Superior Court for Plymouth County certified a class of sales employees in Speakman v. Sullivan Bros. Nissan, Inc., et al., Case No. 16-00165, an unpaid wage class action. Our law firm was appointed as class counsel for the employees.
In our motion for class certification, we argued that the employees had suffered similarly due to two different violations of the Massachusetts Wage Act:
Employees worked more than 40 hours in a workweek and were not paid overtime wages for those overtime hours.
Employees received pay stubs that did not list their actual hours worked.
The defendants opposed the motion, but the judge agreed with the employees and certified an Overtime Class and a Pay Slips Class.
If you worked for Sullivan Brothers between February 2013 and the present, or if you are an employee at a different company facing similar issues, feel free to contact us.
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On June 20, 2019, the Massachusetts Superior Court for Suffolk County issued a major decision regarding the rights of amusement park workers to overtime pay.
We represent a class of approximately 10,000 seasonal Six Flags New England workers in a case for unpaid overtime. The Court issued a decision last week granting this class of workers summary judgment on their claims for 2015, 2017, and 2018. The Court decided in Six Flags favor for the years 2013, 2014, and 2016. Summary judgment is a procedure that the Court can use to decide a case that only hinges on a legal interpretation when the parties agree on the material facts.
In this case, Six Flags claimed an exemption under the Overtime Law for amusement parks that do not operate more than 150 days in a year. We argued that Six Flags routinely operates more than 150 days in a year and therefore did not meet its burden to prove an entitlement to the exemption.
Crucial to the Court’s decision were the days in 2017 and 2018 during which Six Flags operated “Holiday in the Park,” a Christmas-themed version of the park’s normal activities. While the park claimed that Holiday in the Park was an attraction separate from the park’s normal activities, we argued and the Court agreed that all Holiday in the Park days counted towards the operating day limit, pushing 2017 and 2018 past the amusement park exemption threshold.
Six Flags also argued that it should be permitted to count some operating days as “partial days” for the purposes of keeping the total at 150 or fewer days, but the Court disagreed stating, “the statutory exemption says nothing about counting hours, or treating shorter days as less than a calendar day.”. The Court therefore denied Six Flags the exemption for 2015, while upholding it for 2013-2014 and 2016.
This case began in early 2016, so we are pleased to have finally secured this victory on behalf of thousands of park employees who work hundreds of hours of overtime for the park without the benefit of overtime pay for their labor. You can read the full decision here:
Feel free to contact us if you work in excess of 40 hours a week and are not paid overtime. An overtime exemption could apply to your work, but not every employer exemption is valid.
On January 14, 2019, settlement checks went out to the more than a thousand class members in a class action we brought against a Massachusetts home healthcare company. We were appointed as counsel for a settlement class of home health aides, who we alleged were required to travel between client sites during the workday for no pay, and whose transportation expenses weren’t reimbursed.
The Court’s final order approved a gross settlement fund in the amount of $2 million for the home health aides.
It was a satisfying conclusion to a hard-fought case that began back in February 2017, and we were happy to secure a good result on behalf of these Massachusetts workers.
Feel free to contact us if you have information regarding the failure of a Massachusetts home health care agency to pay for intraday travel time or to reimburse employees for travel-related expenses. Note: this applies to travel during the work day and not to travel between home and work at the beginning or end of the day.related expenses.
On February 25, 2019, the Massachusetts Superior Court for Suffolk County certified three classes of home health aides in Portillo, et al., v. Compassionate Homecare Inc., et al., Case No. 17-0283A, an unpaid wage class action. Our law firm was appointed as class counsel for the employees.
In our motion for class certification, we argued that the employees had suffered similarly due to three different violations of the Massachusetts Wage Act:
Employees worked more than 40 hours in a workweek and were not paid overtime wages for those overtime hours.
Employees were not paid wages for the time between client appointments during the workday, or reimbursed for transportation expenses.
Employees were not paid for all of their hours worked on the date of their termination.
The defendants opposed the motion, but the judge agreed with the employees and certified an Overtime Class, a Travel Class, and a Lay-Off Class.
If you worked for Compassionate Homecare between January 2011 and the present, or if you are an employee at a different company facing similar issues, feel free to contact us.
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On November 19, 2018, the Massachusetts Superior Court for Suffolk County approved a settlement of a class action we brought against a Massachusetts home care agency. We were appointed as counsel for a settlement class of approximately 1,200 home health aides, who we alleged were required to travel between client sites during the workday for no pay.
The Court’s final order approved a gross settlement fund in the amount of $1.1 million for the home health aides.
This was a long, hard-fought case that began back in the fall of 2015, so we were happy to secure a good result on behalf of these Massachusetts workers.
Feel free to contact us if you have information regarding the failure of a Massachusetts home health care agency to pay for intra-day travel time or to reimburse employees for travel-related expenses. Note: this applies to travel during the work day and not to travel between home and work at the beginning or end of the day.
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Yesterday, November 2, 2017, the Middlesex Superior Court certified our class action against Trinity EMS, based in Lowell, Massachusetts. In the case, we contend that, among other things, Trinity EMS unlawfully deducted charges for required uniforms from employee wages in violation of the Massachusetts law. The applicable regulation states:
An employee or prospective employee who is required to purchase or rent a uniform shall be reimbursed for the actual purchase or rental cost of the uniform.
454 Code Mass. Regs. 27.05(4)(c).
Any person falling within the following class definition is now a class member in the case:
Individuals employed by Trinity EMS, Inc. who were subjected to deductions from their pay for uniforms at any point between June 29, 2014 and the present.
If you fall within this definition, please reach out to us for more information.
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On September 13, 2017, the Massachusetts Superior Court for Suffolk County certified a class action against Helping Hands Company, Inc., a provider of home care services in Massachusetts. Escorbor v. Helping Hands Co., Inc, C.A. No. 15-2053-D. (Suffolk Sup. Crt. 2017) (Wilkins, J.). Our firm was appointed class counsel. The case is for the unpaid wages and expenses of home care aides who travel between clients’ homes without pay during the workday. The class certification motion was vigorously contested and the decision is notable because the Court affirmed several important concepts for workers in Massachusetts.
The plaintiffs’ theory of liability controls at the class certification stage.
The Massachusetts Wage Act provides an independent statutory basis for class actions. Here, the class satisfied the traditional Rule 23 requirements, but in another case where, for example, traditional numerosity wasn’t satisfied, the statutory basis for class actions, which only requires that employees be “similarly situated,” might be utilized.
The failure of an employer to keep track of work time–required by state statute and regulation–may warrant an injunction in favor of a class that might require, as a remedy, an employer to reconstruct time records.
An employer cannot get a credit for a wage that is due and owing by pointing to another payment that was meant for another purpose.
Variance in damages among class members does not prevent the certification of a class.
The Wage Act favors class actions because, in part, they help employees get paid wages without antagonizing an employer, i.e. only one employee has to stick her neck out for the the whole group.
The court also wrote that, “During motion practice and in oral arguments, the Court has observed first-hand the adequacy and competence of class counsel,” id. at 10, which was gratifying to read. The case continues, but now as a class action. I am sure that each side is weighing their options.
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Yesterday, the Massachusetts Superior Court for Middlesex County issued a final approval order in one of our wage and hour class actions. This was a small class action under the Massachusetts Overtime Law involving just 33 individuals. The key allegation in the case was that a group of cabinet makers were improperly classified as exempt from overtime, had worked overtime, but had not been paid time and a half for that overtime work.
We were able to reach a negotiated settlement agreement with the defendant. Class actions often result in a settlement if both defense and plaintiffs’ counsel are well-versed in the substantive law and are able to handicap a range of possible results for their clients. It is important for defense counsel to do this for their clients because their clients are often inexperienced in wage and hour class action litigation and an early compromise agreement allows a defendant to continue doing business without the distraction and stress of ongoing litigation, to reduce their exposure to a sum certain, and to avoid the possible ruinous consequences of paying treble damages, plaintiffs’ attorneys’ fees, and their own defense costs incurred through trial. The defendants in this case were well-represented by experienced counsel, allowing the parties to engage in rational negotiations that resulted in a settlement of $215,000 fairly early in the litigation, more than two times the single damages calculated in the case.
Attorney Raven Moeslinger ably handled the plaintiffs’ case for our firm.
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Our firm has filed suit against a Massachusetts home health care agency and its local franchisee on behalf of a putative class of home care aids (also sometimes called “home health aids”).
The class action complaint seeks back wages, including treble damages, for the Massachusetts home health care agency’s violations of Massachusetts wage and hour laws. Right at Home, and its franchisee, employ several hundred hourly home care aids in Massachusetts who provide in-home health care, companionship, cleaning and personal care to the sick, disabled, and elderly.
These home care aides must use their own vehicles to travel from home to home to provide these services. However, the defendants fail to pay their employees for this travel time, as required by law. The defendants also fail to reimburse their workers for all transportation expenses, as required by Massachusetts Regulations, 454 Code Mass. Regs. 27.04.
The litigation is currently in the discovery phase. Feel free to contact us if you have information regarding the failure of a Massachusetts home health care agency to pay for intra-day travel time or to reimburse employees for travel-related expenses. Note: this applies to travel during the work day and not to travel between home and work at the beginning or end of the day.
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The Massachusetts Attorney General recently joined the New York Attorney General and others in an inquiry into the controversial practice of retail on-call scheduling. Some large, national retailers receiving a letter were BCBG Max Azria, Carter’s Inc, Canada’s DavidsTea Inc, Forever 21 Inc, Ascena Retail Group Inc’s Justice, Pacific Sunwear of California Inc, Payless ShoeSource, Tillys Inc, Fast Retailing Co’s Uniqlo, VF Corp’s Van’s and Zumiez Inc, Aeropostale Inc, American Eagle Outfitters Inc, Coach Inc and Walt Disney Co.
The practice goes like this: In order to keep wages low by minimizing the number of employees on a sales floor, some retailers use software to track customer flow and make shift staffing decisions just before a shift start. When a system like this is utilized, employees must be ready to work but call in beforehand to see if they will actually be working. If they are not needed, they are paid nothing. Obviously, if you have to block out time to work, and then that work is cancelled, you miss out on other opportunities in life, like other work or personal pursuits. Aside from this opportunity cost, you might also incur financial costs, like for child care.
So is this legal?
Although many states have similar regulations (like New York, 12 NYCRR 142-2.3), I’ll focus on Massachusetts. An important provision of our state minimum wage regulations states:
(1) Reporting Pay. When an employee who is scheduled to work three or more hours reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage. 454 CMR 27.04 shall not apply to organizations granted status as charitable organizations under the Internal Revenue Code. 454 Code. Mass. Regs. 27.04.
The retailers will undoubtedly claim that employees subject to this practice are not “scheduled” for a shift or reporting for duty, and that they are only required to call in to see if they will work. I don’t think this is a good argument or meaningful distinction. There is no real difference between being scheduled to work and on-call scheduling. In each, you have to be ready to work, and when there is only a short duration between when you learn you are not needed and when you were planning to work, you will have already missed out on planning other work or activities. Therefore, these practices prevent an employee from being “effectively free to use his or her time for his or her own purposes,” which the same regulations also require when an employee is not on the clock.
Have you been subject to this practice at a large retailer? If so, feel free to give us a ring at 617-338-9400 for a confidential chat or fill out our online form.
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Yesterday 812 former and current security officers were mailed a notice informing them that (1) there is a pending case against Longwood Security Services, Inc. for unpaid wages, (2) the court certified the case as a class action, (3) they are class members, and (4) we are the lawyers for the class (Nicholas F. Ortiz and Elizabeth Ryan, co-counsels). The case is based on Longwood’s practice of deducting pay from hourly security officers’ wages despite those officers being required to perform job duties during those breaks, such as remain on site, stay in uniform, monitor radios and respond to calls. Also, those officers were often so busy during shifts that taking any kind of break was very difficult or impossible.
A copy of the notice can be viewed here: Longwood Wage Class Action Notice. If you got a copy of the notice, or think you should have, and want to talk, please feel free to give us a call.
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The Massachusetts State Superior Court issued an opinion on Jan. 5, 2016 allowing a class action for unpaid meal breaks to proceed against the Chateau restaurant chain in Massachusetts.
Elizabeth Ryan of Bailey & Glasser and I are co-counsel in this case and jointly representing the putative class.
Interestingly for employment law practitioners in Massachusetts, this is the first time a Massachusetts state court has adopted the “single integrated employer” theory. Because each Chateau restaurant is separately incorporated, the defendants argued that we should only be allowed to sue the named plaintiff’s direct employer (the restaurant where he worked) and shouldn’t be allowed to to include employees from the other restaurant locations in the class. The defendants argued that in order to be able to include the other restaurants, we should have to pass the “joint employment” test, while we argued that the more-streamlined “single integrated employer” test should control.
The Court agreed with our side and ruled that the case could proceed because the individual restaurants and the chain were so integrated with one another that all could be liable as a single integrated employer despite being nominally separate business entities.
The case is Fitzgerald v. The Chateau Restaurant Corp., Case No. 14-01990-J (Middlesex Superior Court). The opinion is attached here.
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