Heard: January 16, 2018.
action commenced in the Superior Court Department on June 10,
case was heard by Paul D. Wilson, J., on motions for summary
judgment, and a motion for reconsideration was considered by
M. Coyne for the plaintiffs.
Hansen, Assistant Attorney General, for the defendant.
Present: Green, C.J., Trainor, Vuono, Massing, & Singh,
Wage Act, G. L. c. 149, §§ 148 and 150, generally
requires that all public and private employers in the
Commonwealth pay their employees' wages no more than
seven days after the end of the pay period in which the wages
were earned. Employees whose wages are detained longer than
the Wage Act permits are entitled, after filing a complaint
with the Attorney General, to initiate civil actions for
injunctive relief, damages including lost wages, mandatory
treble damages, and attorney's fees. The defendant
sheriff of Suffolk County (sheriff), as a State employer, is
required to make payments in accordance with the Wage Act to
"every mechanic, workman and laborer" he employs
and to "every person employed in any other capacity by
[him] in any penal or charitable institution . . . unless
such mechanic, workman, laborer or employee requests in
writing to be paid in a different manner"
(emphasis supplied). G. L. C. 149, § 148, as appearing
in St. 1960, c. 416.
case we must determine whether a provision in the collective
bargaining agreements (CBAs) between the sheriff and the
unions representing his employees amounts to a valid
"request in writing" by the employees "to be
paid in a different manner." Ibid. In addition,
we must determine whether the CBAs in question effectively
waived the employees' rights to judicial enforcement of
claims of late payment. We conclude that the unions had the
authority, through collective bargaining, to exercise the
employees' election to request that payment of overtime
wages be made under a different schedule than the Wage Act
provides, but that the CBAs here were not effective to waive
the employees' rights to enforcement in court of the
altered Wage Act schedule.
facts, as presented in the parties' cross motions for
summary judgment, are not in dispute. The individual
plaintiffs all work or worked for the sheriff at the Nashua
Street jail between January, 2010, and July 25,
2015.All of the employees are members of
State collective bargaining units. Plaintiff Jail Officers
and Employees Association of Suffolk County (union) is the
exclusive bargaining representative for most of the
employees; two other unions represent the remaining
employees. The sheriff recognized these unions as the
exclusive representatives of their members for the purpose of
collective bargaining. See G. L. c. 150E, § 4.
sheriff and the unions entered into a series of CBAs relevant
to this litigation. These CBAs contained an identical
provision (art. X, § 7) reflecting the parties'
agreement concerning the timing of overtime payments:
"Employees shall be paid for overtime service within
twenty-five (25) working days following the month in which
such service is performed." At all relevant times the
sheriff paid the employees their overtime wages under the CBA
twenty-five-day provision rather than under the Wage
Act's seven-day period. In some instances the sheriff
detained overtime wages beyond the twenty-five-day time frame
permitted in the CBAs.
obtaining authorization from the Attorney General,
the lead plaintiffs commenced this
action on behalf of themselves and other similarly situated
employees. They alleged that the sheriff violated the Wage
Act by, among other actions, failing to pay overtime wages
within seven days. Acting on cross motions for summary
judgment, a judge of the Superior Court held that the
employees, "having approved a written request in the CBA
that they be paid in a different manner, have waived their
right to enforce the schedule set out in the Wage Act."
On the plaintiffs' timely motion for reconsideration, the
judge further concluded that to the extent the sheriff
exceeded the twenty-five-day time limit, the plaintiffs were
required to exhaust the CBA's grievance procedures.
Judgment entered for the sheriff, the plaintiff's
complaint was dismissed, and this appeal ensued.
Request to deviate from Wage Act payment schedule.
purpose of G. L. c. 149, § 148, is to prevent the evil
of the 'unreasonable detention of wages [by
employers].'" Newton v.
Commissioner of the Dept. of Youth Servs., 62
Mass.App.Ct. 343, 345 (2004), quoting from Boston Police
Patrolmen's Assoc, Inc. v. Boston,
435 Mass. 718, 720 (2002). See American Mut. Liab. Ins.
Co. v. Commissioner of Labor &
Indus., 340 Mass. 144, 147 (1959) (Wage Act was adopted
"primarily to prevent unreasonable detention of
wages"). "We have consistently held that the
legislative purpose behind the Wage Act . . . is to provide
strong statutory protection for employees and their right to
wages." Crocker v. Townsend
Oil Co., 464 Mass. 1, 13 (2012). Accordingly, waiver of
Wage Act protections is strongly disfavored. See, e.g.,
Melia v. Zenhire, Inc., 462 Mass.
164, 170 (2012), quoting from Camara v.
Attorney Gen., 458 Mass. 756, 760-761 (2011)
("An agreement to circumvent the Wage Act is illegal
even when 'the arrangement is voluntary and assented
fundamental public policy against forfeiture of Wage Act
protections is rooted in the "special contract"
provision of the statute, originally inserted in 1896,
Melia, supra, which states, "No person
shall by a special contract with an employee or by any other
means exempt himself from this section or from [G. L. C. 149,
§ 150]." G. L. C. 149, § 148, as appearing in
St. 1956, c. 259. Public employees, however, have long been
explicitly granted the ability to make written requests to
alter the manner of their payments. The ability to make this
election predates the special contract provision. Indeed, as
early at 1887, city employees were entitled to payment of
wages every seven days, "unless such employee shall
request in writing to be paid in some different manner."
St. 1887, c. 399, § 1.
the Wage Act has consistently given the individual public
employee the ability to make a written request for a
different manner of payment, the statute does not expressly
permit an employee's collective bargaining representative
to make such a written request on the employee's behalf.
The first question we must decide, therefore, is whether a
collective bargaining representative has the authority to
exercise the individual employees' election through
interpretation of the Wage Act requiring individual employees
personally to make this election would create a conflict with
the public employee labor relations law, G. L. C. 150E. Under
c. 150E, the relevant unions are the employees'
"exclusive representative of all the employees . . . for
the purpose of collective bargaining," G. L. c. 150E,
§ 4, inserted by St. 1973, c. 1078, § 2, and are
empowered to act on the employees' behalf "with
respect to wages, hours, standards or productivity and
performance, and any other terms and conditions of
employment," G. L. c. 150E, § 6, inserted by St.
1973, c. 1078, § 2. The employees' status as union
members limits the sheriff's ability to deal directly
with them. Rather, the unions possess the right to speak
exclusively for all the employees on mandatory subjects of
collective bargaining. See Service Employees Intl. Union,
AFL-CIO, Local 509 v. Labor Relations
Commn., 431 Mass. 710, 714 (2000). Direct communications
between the sheriff and the employees regarding changes to
the statutory payment schedule would have been a prohibited
practice. See Id. at 715; Service Employees
Intl. Union, Local 509 v. Department of
Mental Health, 469 Mass. 323, 333 & n.10 (2014) .
employee collective bargaining was first authorized by
statute long after the Wage Act was in place. See
Somerville v. Commonwealth Employment Relations Bd.,
470 Mass. 563, 568-569 (2015) (discussing Commonwealth's
recognition in 1958 of right of public employees to organize
and to bargain collectively). "We assume that the
Legislature was aware of existing statutes when enacting
subsequent ones." Green v.
Wyman-Gordon Co., 422 Mass. 551, 554 (1996). See
Everett v. Revere, 344 Mass. 585,
589 (1962), quoting from Walsh v.
Commissioners of Civil Serv., 300 Mass. 244, 246
(1938) ("A statute is to be interpreted with reference
to the preexisting law. ... If reasonably practicable, it is
to be explained in conjunction with other statutes to the end
that there may be an harmonious and consistent body of
law"); Fall River v. AFSCME
Council 93, Local 3177, AFL-CIO, 61 Mass.App.Ct. 404,
406 (2004), quoting from Dedham v.
Labor Relations Commn., 365 Mass. 392, 402 (1974)
("When possible, we attempt to read [statutes] and the
collective bargaining law, as well as the agreements that
flow from the collective bargaining law, as a 'harmonious
harmonize the Wage Act with c. 150E, we hold that the unions
may act on behalf of their members to exercise the
employees' election under the Wage Act to alter the
timing of the overtime payments. We emphasize that the
provision of the CBAs at issue here did not represent a
waiver of individual rights under the Wage Act.
Rather, the provision represents a negotiated version of a
different time period for payment, elected by the employees
as permitted by the terms of the Wage Act, through their
collective bargaining representatives. Accordingly, to the
extent that the sheriff paid the employees' overtime
wages within twenty-five days of the end of the month in
which they were earned, the sheriff was in compliance with
what the unions, on behalf of the employees, agreed was
timely payment under the Wage Act.
held that the parties validly negotiated for the employees to
be paid according to a different schedule than the Wage Act
provides, we must determine whether the CBAs preclude the
employees from judicial enforcement of their right to prompt
payment under the negotiated Wage Act schedule. We conclude
that they do not. "[T]he prompt payment of wages statute
creates an independent statutory right that can be enforced
judicially even when a collective bargaining agreement
addresses the subject matter of compensation."
Newton, 62 Mass.App.Ct. at 347.
the exercise of the Wage Act election to be paid in a
different manner, we deal here with the purported waiver of
an individual statutory right. "Although a union has the
power to waive statutory rights related to collective
activity, rights . . . which are of a personal, and not
merely economic, nature are beyond the union's ability to
bargain away." Blanchettev.School Comm. of Westwood, 427 Mass. 176, 183 (1998)
(protections of antidiscrimination law, G. L. c. 151B, not
waivable through collective bargaining). The Wage Act rights
at issue here fall into this category: "The statutory
right to the timely payment of wages does not involve the