What is a Private Right of Action?
With a private right of action, employees may, on their own or with the assistance of an attorney, pursue claims against employers in court through private litigation to enforce their rights and those of other similarly situated employees.
The following are examples of the wage and hour laws that can be enforced through a private right of action:
- Minimum Wage Law ( M.G.L. c. 151, s. 1, 2 and 7)
- Payment of Wages Law ( M.G.L. c. 149, s. 148)
- Prevailing Wage Laws ( M.G.L. c. 149, s. 27, 27F-27H)
- Anti-Retaliation Laws ( M.G.L. c. 149, s. 148A; M.G.L. c. 151, s. 19(1) and (5))
- Employee Misclassification Law ( M.G.L. c. 149, s. 148B)
- Tips Law ( M.G.L. c. 149, s. 152A)
- Overtime Law ( M.G.L. c. 151, s. 1A)
In Massachusetts, under the so-called Treble Damages Law, employees who prevail in their wage and hour lawsuits shall receive treble damages (three times the amount of damages), attorneys' fees and litigation costs. [For violations of M.G.L. chapter 149, sections 27, 27F, 27G, 27H, 33E, 52D, 148, 148A, 148B, 150, 150C, 152, 152A, 159C; and chapter 151, sections 1B, 19 and 20.]
How to Obtain a Private Right of Action
Generally, employees first must file a complaint with the Attorney General's Office in order to file a private lawsuit in court. Employees will need proof of filing the complaint with the Attorney General's Office in order to pursue their private claim. (Employees do not need to file with the Attorney General’s Office before filing suit for minimum wage or overtime violations pursuant to M.G.L. c. 151, s. 1B and 20.)
Employees who must file a complaint must then either: wait 90 days after filing with the Attorney General's Office before filing their private lawsuit in court; or receive permission from the Attorney General's Office to proceed with a private suit before the 90-day period set forth above. In order to do this, employees must request a private right of action from the Attorney General's Office.
If you are filing an electronic complaint form and would like to request a private right of action (right to sue) letter that waives this 90 day period, please indicate this in the comment section of the eform. Click here to access the complaint form .
If you are mailing in a paper complaint form, you may want to make this request with a cover letter. View a sample request below:
A private right of action gives an employee-complainant the ability to pursue the case privately. It is not a determination of the merits of a case. You may pursue your private right of action on your own or with the assistance of a private attorney. If you need to find an attorney, you may wish to consult with a bar association or legal service office.
Statutes of Limitations (Time Limit on Filing Claims)
In all cases, employees must be aware that the wage and hour laws set forth the period of time within which a lawsuit must be filed in court after the violation has occurred. This period is called the “statute of limitations.” Employees must file their complaint before the end of the period or they could lose their right to sue. Statutes of limitations for certain private rights of action include:
- Minimum Wage Law - 3 years (per M.G.L. c. 151, s. 20A) (effective 11/18/14)
- Non-Payment of Wages - 3 years (per M.G.L. c. 149, s. 148 and 150)*
- Prevailing Wage Law - 3 years (per M.G.L. c. 149, s. 27, 27F, 27G, 27H)*
- Anti-Retaliation Law - 3 years (per M.G.L. c. 149, s. 148A)*
- Tips Law - 3 years (per M.G.L. c. 149, s. 152A)*
- Small Necessities Leave Act - 3 years (per M.G.L. c. 149, s. 52D)*
- Employee Misclassification - 3 years (per M.G.L. c. 149, s. 150)*
- Overtime Law - 3 years (per M.G.L. c. 151, s. 20A) (effective 11/18/14)
- Record Keeping Law – 3 years (per M.G.L. c. 151, s. 15) (effective 11/18/14)
* Complaint must be filed with the Attorney General’s Office prior to exercising right to sue in court.
NEW: Tolling of the Statutes of Limitations (Effective 11/18/14):
The statutes of limitations for employees individual wage and hour claims are tolled, meaning their respective statutes of limitations stop running, once claims are filed with the Office of the Attorney General. However, the statutes of limitations start running on employees' individual claims again (1) the date that the Attorney General issues a letter authorizing a private right of action or (2) the date on which an enforcement action by the Attorney General (including the closure of a case) becomes final, whichever occurs first. (Chapter 292 of the Acts of 2014)