A salesperson can pursue his claims arising out of a violation of the Massachusetts Wage Act (M.G.L. c. 149, § 148) by his former employer in the Business Litigation Session (“BLS”) of the Suffolk Superior Court, as opposed to being forced to submit to arbitration. B&B attorneys Michaela May, Todd Bennett and Sudeshna Trivedi prevailed in their argument that the former employer had waived its right to force the employee to submit to arbitration. On behalf of its client, B&B brought claims against the former employer after it failed to pay him commissions in the ballpark of $370,000 (single damages), and also underpaid his salary. If successful, the Massachusetts Wage Act allows a plaintiff to win triple damages, plus reasonable attorneys’ fees and costs of litigation.
The former employee (B&B’s client) and former employer had entered into an arbitration agreement during employment, which forced the employee to submit his wage act related claims at arbitration instead of being able to pursue these claims in front of a jury. The arbitration agreement also required the employer to pay the arbitrator’s fees. The employer, however, failed to pay the arbitrator’s fee and simultaneously took various steps in court to litigate the issues. In her order, Judge Kazanjian of the Business Litigation Session of the Suffolk Superior Court found that the employer waived its right to arbitrate due to its prolonged failure to pay the arbitration fee and to otherwise pursue the arbitration for nearly a year. Notably, the employer failed to pay the arbitration fee despite being asked at least eight times over a span of 11 months due to purported “settlement discussions.”
Ironically, the former employer initiated the lawsuit based upon allegations of violation of the Massachusetts Trade Secret Act and related claims. B&B continues to represent its client in this lawsuit against his former employer, defending against the former employer’s and advancing the client’s counterclaims to recover unpaid commissions and other wages that were withheld in violation of the Massachusetts Wage Act. A copy of the Court’s decision can be found here.