Francis Neary, on Behalf of Himself and All Others Similarly Situated
MasTec North America, Inc. et al No. 133540
MEMORANDUM OF DECISION AND ORDER
J. CURRAN, Associate Justice.
defendants MasTec North America, Inc., Jose R. Mas, George L.
Pita, and Christopher Tremblay, have filed a motion to compel
arbitration, to dismiss, and to stay discovery. They assert
that Mr. Francis Neary's claim is subject to final and
binding arbitration under a Dispute Resolution Policy
executed among the parties and that therefore, his claim may
not proceed in this Court.
reasons that follow, the defendants' motion must be
April 14, 2014, Mr. Neary started working as an installer
with MasTec, a Florida corporation. His main responsibility
was to install home security and control systems in AT& T
customer homes. However, his work-day began much earlier than
when he arrived at a customer's home. Each morning at
6:30 AM, Mr. Neary was required to activate a MasTec-issued
iPad which contained a list of his scheduled appointments for
the day and the necessary information about those
appointments. He was then required to transfer the
information from the iPad to a MasTec-issued notebook. After
transferring the information, Mr. Neary was required to
verify by text message the first appointment of the day with
his local managers, Julien DuPont, Joe Massie, and Eli
Anderson. Only after receiving verification could Mr. Neary
proceed to his first appointment of the day. The verification
process usually took at least thirty-five to forty-five
minutes. MasTec did not compensate Mr. Neary for any of this
Neary raised the issue of compensation for this work with
MasTec, which informed him that he was a "
self-dispatched employee, " and as such, not required to
be compensated for any work performed before 8:00 AM, the
first scheduled appointment for the day. Thereafter, Mr.
Neary informed his local managers that he had spoken to an
attorney regarding MasTec's practices. MasTec terminated
Mr. Neary's employment on May 22, 2015.
12, 2014, shortly after beginning his employment with MasTec,
Mr. Neary had signed MasTec's Dispute Resolution Policy.
That Policy required that " any dispute arising out of,
or related to, [the e]mployee's employment with or
termination of employment with MasTec, Inc." be
submitted to final and binding arbitration. The Policy allows
for the parties " to conduct civil discovery, bring
dispositive motions and present witnesses and evidence"
in the arbitration proceeding. It also includes a class
action waiver, preventing employees from bringing a
collective action against MasTec in arbitration. Furthermore,
the Policy stated that the class action waiver was not
severable from the entire agreement. Employees were allowed
to opt out of the Policy by submitting an " Opt
Out" form with MasTec's Legal Department within
thirty days of the employee's receipt of the Policy. Mr.
Neary did not submit an " Opt Out" form.
his termination, Mr. Neary filed a complaint with the Office
of the Attorney General's Fair Labor Division which,
after review, authorized him to pursue his case against
MasTec through a " private right of action." On
September 3, 2015, Mr. Neary commenced this action under
G.L.c. 149 and 151 for the unpaid overtime wages owed to him
and other employees and under G.L.c. 149 for retaliation. He
also alleges a theory of unjust enrichment.
determining whether to grant a motion to compel arbitration,
the Massachusetts Arbitration Act governs the procedures to
be applied, while the Federal Arbitration Act and substantive
federal law govern the actual agreement between the parties.
McInnes v. LPL Fin., LLC, 466 Mass. 256, 262, 994
N.E.2d 790 (2013).
251, § 2(b) provides that issues regarding arbitration
proceedings must be summarily determined. In interpreting the
statute, the Supreme Judicial Court has stated that a motion
to compel arbitration should be treated similarly to a motion
for summary judgment. Miller v. Cotter, 448 Mass.
671, 678, 863 N.E.2d 537 (2007). Therefore, the moving party,
here, MasTec, bears the burden of proving that the material
facts are established and that it is entitled to arbitration
as a matter of law. Barrow v. Dartmouth House Nursing
Home, Inc., 86 Mass.App.Ct. 128, 131, 14 N.E.3d 318
Federal Arbitration Act states that " [a] written
provision in . . . a contract evidencing a transaction . . .
to settle by arbitration a controversy thereafter arising out
of such contract . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract." 9 U.S.C.
§ 2 (2012). Therefore, a motion to compel arbitration
should be granted where the party seeking to compel
arbitration establishes that: 1) a valid agreement to
arbitrate exists; 2) the moving party is entitled to invoke
the arbitration clause; 3) the other party is bound by that
clause; and 4) the claim asserted comes within the
clause's scope. Campbell v. Gen. Dynamics
Gov't Sys. Corp., 407 F.3d 546, 552 (1st Cir. 2005).
In determining whether a valid agreement to arbitrate exists,
the court must look towards the relevant contract law of the
state. Perry v. Thomas, 482 U.S. 483, 492 n.9, 107
S.Ct. 2520, 96 L.Ed.2d 426 (1987). Therefore, an arbitration
agreement may be invalidated by generally applicable contract
defenses, such as fraud, duress, or unconscionability.
McInnes, 466 Mass. at 262.
support of its motion to compel arbitration, MasTec proffers
the Policy signed by Mr. Neary at the start of his
employment. It alleges that by signing the Policy, he agreed
to all of its terms and conditions. Viewing the facts in the
light most favorable to Mr. Neary, the Policy constitutes a
valid and enforcement agreement to arbitrate " any
dispute arising out of, or related to, [his] employment with
or termination of employment with MasTec . . ." Directly
above Mr. Neary's signature, the Policy states: " I
understand and agree that the Alternative Dispute Resolution
Policy is the full and complete policy relating to the formal
resolution of employment-related disputes." Therefore,
by signing the Policy, Mr. Neary regrettably agreed to all of
the MasTec's terms. Furthermore, Mr. Neary's
continued employment with MasTec constituted the
consideration necessary to support the agreement. See
O'Brien v. New England Tel. & Tel. Co., 422
Mass. 686, 691, 664 N.E.2d 843 (1996) (" An employee
remaining with the employer after receiving a manual provides
the consideration necessary to support the contract").
Neary does not argue that his claim is not within the scope
of the Policy or that the agreement is invalid due to fraud,
duress, unconscionability, or any other generally applicable
contract defenses. Instead, he argues that the Policy is
invalid and unenforceable because MasTec retaliated against
him and because the class action waiver ...