New England Biz Law Update
A bill pending in the Massachusetts Legislature could significantly shift wage-and-hour enforcement by granting private individuals, labor unions, and nonprofits the right to sue employers for alleged violations on behalf of the state.
Modeled loosely on California’s Private Attorneys General Act (PAGA), the proposed measure would allow these “private attorney general” actions to move forward even if employees have signed class action waivers or mandatory arbitration agreements.
Legal observers note that if the bill passes, it would mark a departure from current practice and significantly expand enforcement tools available to workers and advocates.
If passed, the law would:
- Allow employees or qualified representatives to sue for alleged wage violations on behalf of the state.
- Bypass class action waivers and mandatory arbitration clauses.
- Permit lawsuits without waiting for arbitration rulings.
- Provide for treble damages, litigation costs, and attorney’s fees.
- Impose a 20% surcharge on employers payable to a newly created Wage Enforcement Fund overseen by the Attorney General’s Office.
- Enable recovery of penalties even for employees who don’t actively join the suit.
Legal and employer concerns
Management-side attorneys are sounding an alarm, pointing to California’s experience as a cautionary tale.
Critics argue that if the bill is enacted without procedural safeguards it could put Massachusetts employers at risk of duplicative litigation, steep defense costs, and large-scale exposure, even for minor technical violations of state labor laws.
Unlike California’s version of PAGA, which requires a pre-filing notice to the state’s labor agency, the current draft of the bill does not contain any such notification or opportunity for government review before litigation proceeds.
Legal experts say that could result in a surge of lawsuits, including those involving relatively minor claims that might otherwise be resolved internally or administratively.
California saw exponential growth in PAGA filings, from just over 400 in 2013 to nearly 8,000 in 2023. Many cases combined PAGA claims with traditional class actions, leading to concerns about overlapping liability, increased settlement pressure, and outsized attorney fees.
