Though lawyers who represent employers insist that wage-and-hour class actions are on the rise in Massachusetts, plaintiffs’ attorneys dismiss the claim as a scare tactic in the debate over recent changes to the state’s Wage Act.

The employment law firm of Littler Mendelson, which tracked labor lawsuits filed in the state and federal courts over the summer, was prompted by the activity on the dockets to warn its clients that a tsunami of wage-and-hour class actions is engulfing the state.

“This summer alone, there has been something in the order of 15 class actions filed in the Massachusetts courts for wage-and-hour matters, which we believe is unprecedented,” says Adam P. Forman, a Littler attorney who represents employers.

But Philip Gordon, who represents plaintiffs in wage cases, is unconvinced.
“Anecdotally, it isn’t there,” says Gordon of Boston’s Gordon Law Group. “This quote-unquote tsunami I find very, very difficult to believe.”

Gordon, who drafted the 2008 amendments to the Massachusetts Wage Act, which mandated treble damages against violators, says talk of a spike in litigation has a familiar ring.

“It’s the same type of fear-mongering that went around during the treble damages legislation,” he says.

But Littler may be on to something: It’s not just the same old class-action specialists – such as Gordon and Boston lawyer Shannon Liss-Riordan – who are filing wage suits in Massachusetts these days.

Among the recent employment class-action cases flagged by the Littler attorneys, several are being brought by law firms that are dipping their toes into the wage-and-hour waters for the first time.

‘Favorable climate’

Boston attorney Alexander Furey, who specializes in commercial litigation, is hoping to get his hands on more class-action work. So he has joined forces with a national class-action law firm based in Birmingham, Ala., for a major wage-and-hour case he filed in U.S. District Court in June against Springfield-based Peter Pan Bus Lines.

“I’ve been affiliated with some [class actions], but not that many,” Furey says. “We hopefully will have more in the future.”

Furey’s Alabama co-counsel, Patrick J. Sheehan of Whatley, Drake & Kallas, reports that the case is the first class action his firm has brought in Massachusetts and that Whatley hopes to establish a new practice group in Boston.

David J. Fried, a Cambridge employment attorney, is handling his first wage-and-hour class action in a case against a Cambridge restaurant that allegedly forced its employees to work without pay.

Fried acknowledges that he is venturing into new territory with the case, which he filed in Middlesex Superior Court in June.

“I’m an employment lawyer, and perhaps the fact that I’m now bringing a wage claim is suggestive that there really are people jumping on the bandwagon,” he says.
It is because of the amendment to the Wage Act that he is able to bring the claim at all. “It’s a favorable climate to pursue these claims,” he says. “Obviously, that statute has made it newly worthwhile.”

Ethan S. Klepetar, an associate working on the case with Fried, adds that the wage laws open up a new world of possibilities for lawyers interested in representing workers who have been exploited.

“People who work for tips, or less than minimum wage, simply don’t make enough money to pay for litigation,” Klepetar says. “Class actions and multiple damages make it possible for attorneys to take minimum-wage cases on a contingent basis.”

Another firm that has a growing wage-and-hour practice is Boston’s Brody, Hardoon, Perkins & Kesten. The firm is currently suing the William J. Clinton Foundation in Suffolk Superior Court for failing to pay workers overtime.

Name partner Richard E. Brody says that it is unusual for his general litigation firm to handle such a case. Asked whether his lawyers specialize in wage-and-hour class actions, he says, “Well, we do now.”

‘Expanding exposure’

At Littler, Forman and his partner, David C. Casey, place the blame for a rise in wage cases on a variety of factors they say have made the commonwealth a plaintiff-friendly venue for employment litigation.

“Massachusetts is ripe for this new wave of wage-and-hour class-action litigation because the statute provides for damages that many other states’ statutes don’t provide for,” Forman says.

Forman also points to Massachusetts’ Independent Contractor Statute, which he describes as unique.

“The statute creates a presumption of employment and applies a three-part test that really makes it very difficult to define a worker as an independent contractor,” Forman says. “Massachusetts has several industries that use independent contractors heavily, such as the high-tech industry. It’s easier to demonstrate that employers are misclassifying, and now they’re exposed to the very same treble damages.”

Liss-Riordan recently used the statute to win strippers at the King Arthur’s Lounge in Chelsea the right to sue for damages after they had been misclassified as independent contractors under the law.

Casey points out that Rule 23 of the Massachusetts Rules of Civil Procedure, which governs class actions, has been interpreted more liberally by the state courts than its federal counterpart has been interpreted by the U.S. Supreme Court.

“In this [regard], state court decisions seem to certify classes [that] federal courts might reject,” he says.

State courts in Massachusetts are also able to revisit the scope of a certified class throughout the course of litigation, Casey says, rather than define it early in the process, as is required in federal court. This allows state class sizes to fluctuate throughout the life of a case, giving an edge to plaintiffs in wage class actions.

“[It] can have the effect of expanding a defendant’s exposure as the case proceeds,” he says.

‘No rush to the courthouse’

But lawyers who represent plaintiffs in wage cases pooh-pooh the idea that Massachusetts’ wage laws make it a magnet for employment litigation.

Todd S. Heyman of Boston’s Shapiro, Haber & Urmy, which handles class-action lawsuits of all kinds, including wage-and-hour litigation, says he has noticed a rise in wage cases in Massachusetts, but it is part of a national trend.

“Over the last five years, nationally there’s been an increase,” he says.
He scoffs at the idea that the new treble damages statute is attracting the litigation here.

“Obviously, the cases become more lucrative in that sense, but it’s not in and of itself going to bring people into the fold,” he says. “Whether or not that law got passed, you would still watch them going up right now.”

Instead, he says, the growing exposure of wage-and-hour issues to lawyers across the country is fueling interest in the niche. “More people are learning about it. I get asked to do CLEs about it all the time.”

Plaintiffs’ lawyers also point out that other states, such as New York, have a longer statute of limitations in wage cases than does Massachusetts, where the clock runs out after just two years. In New York, employees have six years to file a claim.

“That’s certainly the equivalent of the treble damages provision,” Heyman says.
Sheehan, the Whatley Drake attorney, takes umbrage when it is suggested that his firm is parachuting into Massachusetts because of its plaintiff-friendly laws.

“In this case in particular, it’s very hard to make that claim, considering that Peter Pan is a Massachusetts-based company,” he says. “I would further say that these cases are brought where the unlawful employment practices occur, not where there are favorable laws.”

Sheehan further contends that there has been no rush to Massachusetts courthouses because of the way that the laws are currently written.

“The Massachusetts statute is a strong one in terms of the remedies,” he says, “but you still need to prove your case.”