Wage Theft Cases

<p>Non-Argument Calendar.</p>

Peter G. Cook vs. Patient Edu, LLC, & others. Hampden. February 5, 2013. June 13, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Labor, Wages. Statute, Construction. Limited Liability Company. This court concluded that a manager or other officer or agent of a limited liability company (LLC), limited liability partnership, or other limited liability business entity may be a person having employees in his service, and thus may be civilly or criminally liable for violations of the Wage Act if he controls, directs, and participates to a substantial degree in formulating and determining policy of the business entity; therefore, a plaintiff employee’s Wage Act claims against the defendant individual managers of an LLC should not have been dismissed. [550-556] Civil action commenced in the Superior Court Department on September 10, 2010. A motion to dismiss was heard by Bertha D. Josephson, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Keith A. Minojf for the plaintiff. Marwan S. Zubi for the defendant. The following submitted briefs for amici curiae: Shannon Liss-Riordan <& Stephen S. Churchill for Massachusetts Employment Lawyers Association. Martha Coakley, Attorney General, & Karla E. Zarbo, Assistant Attorney General, for the Commonwealth. John Pagliaro & Martin J. Newhouse for New England Legal Foundation & another. David R. Kerrigan & Joseph R Calandrelli for Massachusetts Defense Lawyers Association. Steven Graziano and Michael Schulman. Duffly, J. We consider in this case whether managers of a limited liability company (LLC) may be held individually liable under the Massachusetts Wage Act, G. L. c. 149, §§ 148, 150 (Wage Act), for unpaid wages due to an employee. Peter G. Cook filed suit against the defendants, Patient Edu, LLC (Patient Edu), and two of its managers, Steven Graziano and Michael Schulman, for failing to pay more than $68,000 in compensation he claimed was owed to him under an employment contract. Concluding that G. L. c. 149, § 148, does not, by its plain language, impose individual liability on the managers of an LLC, a Superior Court judge granted the motion to dismiss filed by Patient Edu and Graziano, pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 755 (1974), and dismissed count one of the complaint against Graziano and Shulman. Cook appealed from the dismissal and we transferred the case to this court on our own motion. We conclude that a manager who “controls, directs, and participates to a substantial degree in formulating and determining” the financial policy of a business entity, see Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 711 (2005), may be a “person having employees in his service” under G. L. c. 149, § 148, and thus may be subject to liability for violations of the Wage Act. Background. We review the allowance of a motion to dismiss de novo, accepting as true all well-pleaded facts in the complaint and favorable inferences drawn therefrom. We also may take into account the materials attached thereto. Melia v. Zenhire, Inc., 462 Mass. 164, 165-166 (2012). The complaint alleges that Graziano and Schulman were managers of Patient Edu, a Massachusetts LLC.* ***6 Cook entered into a written employment agreement with Patient Edu in December, 2008, according to which he would serve as Patient Edu’s director of business development and strategic partner development for a base salary of $70,000 and a guaranteed draw of $30,000 annually. The agreement also provided for the reimbursement of business and travel expenses. It was signed by Graziano, as president of Patient Edu. Cook worked for Patient Edu from January 5, 2009, through May 21, 2010, when he resigned. He did not receive any payment from Patient Edu during the first six months of his employment, and received salary checks “sporadically” thereafter. When he resigned, he was owed $61,538.56 in wages and $6,879.36 in unreimbursed expenses.- Discussion. Cook filed an action under G. L. c. 149, § 150, which provides that “[a]n employee claiming to be aggrieved by a violation of” G. L. c. 149, § 148, may institute a private action for injunctive relief and damages, including treble damages. General Laws c. 149, § 150, does not separately define the class of people who may be subject to civil liability under G. L. c. 149, § 148. The first defendant named in Cook’s action was the LLC, and the other two defendants were managers of the LLC. The issue whether Patient Edu is liable for unpaid wages under the Wage Act is not before us; the parties dispute only whether each individual defendant is a “person having employees in his service” and thus also subject to liability. We therefore must determine whether the Legislature, in drafting G. L. c. 149, § 148, intended the managers of LLCs to be hable for violations of that statute. See Weems v. Citigroup Inc., 453 Mass. 147, 151 (2009); Wiedmann v. The Bradford Group, Inc., supra. We interpret statutory language “according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Boston Police Patrolmen’s Ass’n, Inc. v. Boston, 435 Mass. 718, 719-720 (2002), quoting O’Brien v. Director of the Div. of Employment Sec., 393 Mass. 482, 487-488 (1984). “If a liberal, even if not literally exact, interpretation of certain words is necessary to accomplish the purpose indicated by the words as a whole, such interpretation is to be adopted rather than one which will defeat that purpose.” Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 24 (2006), quoting Champigny v. Commonwealth, 422 Mass. 249, 251 (1996). The Wage Act “was intended and designed to protect wage earners from the long-term detention of wages by unscrupulous employers as well as protect society from irresponsible employees who receive and spend lump sum wages.” Melia v. Zenhire, Inc., supra at 170, quoting Cumpata v. Blue Cross Blue Shield of Mass., Inc., 113 F. Supp. 2d 164, 167 (D. Mass. 2000). See Boston Police Patrolmen’s Ass’n, Inc. v. Boston, supra at 720, citing American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 147 (1959). Since it was first enacted in 1879 to ensure that municipalities paid “laborers” a minimum wage weekly, the Wage Act has gradually expanded in reach. See St. 1879, c. 128. At varying times, employees of particular industries were added to the class of those protected by the statute until, in 1935, the Wage Act was amended to apply to all private employers. See St. 1935, c. 350. General Laws c. 149, § 148, requires “[e]very person having employees in his service” to pay those employees their wages either weekly or bi-weekly (or on a less frequent basis in certain circumstances).* The Wage Act provides also that the president and treasurer of a corporation, as well as “officers or agents having the management” of the corporation, “shall be deemed to be the employers of the employees of the corporation within the meaning of this section.” Id. This provision in effect imposes liability on the president and treasurer of a corporate employer, as well as on an officer or agent of the corporation who “controls, directs, and participates to a substantial degree in formulating and determining policy of a corporation.” Wiedmann v. The Bradford Group, Inc., supra at 711. General Laws c. 149, § 148, also imposes individual liability for payment of wages upon “[e]very public officer whose duty it is to pay money, approve, audit or verify pay rolls, or perform any other official act relative to payment of any public employees” who fails to do so. In the various provisions setting forth those who may be held individually liable for payment of wages, however, the statute makes no explicit mention of managers of LLCs or managers of any other limited liability entity. When the provision of G. L. c. 149, § 148, making corporate officers individually liable for payment of wages was added in 1932, see St. 1932, c. 101, § 1, the LLC did not exist as a form of business association. Although unincorporated entities, including proprietorships and general partnerships, existed during that period, the owners of such entities were subject to liability for business debts, including unpaid wages. Only corporate owners were entitled to limited liability. See generally E. Polubinski, Jr., & S.T. Freeland, Business Corporations §§ 2:1 to 2:13 (2012). The LLC was not an authorized form of business entity in the Commonwealth until 1996. See G. L. c. 156C, inserted by St. 1995, c. 281, § 18. We do not read these provisions of G. L. c. 149, § 148, as a legislative effort to single out for individual liability only the officers or managers of the specific types of entities mentioned in the statute. Rather, the inclusion of the provisions on corporate officer liability and public officer liability serves to illustrate the circumstances in which an individual may be deemed a “person having employees in his service” under G. L. c. 149, § 148. Cf. Massachusetts Bay Transp. Auth. v. Massachusetts Comm’n Against Discrimination, 450 Mass. 327, 337 (2008) (list may “illustrate[] the types” of actions proscribed by a statute, but is not exhaustive). We therefore reject the defendants’ argument that the corporate officer provision, by identifying only corporations, implicitly excludes managers of LLCs and other limited liability entities from the more general category of “person [s] having employees in [their] service.” See Harborview Residents’ Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432 (1975) (while it is “maxim of statutory construction. . . that a statutory expression of one thing is an implied exclusion of other things ... we have also recognized that the maxim is not to be followed where to do so would frustrate the general beneficial purposes of the legislation”). We discern from the inclusion of the provisions regarding corporate and public officer liability a clear legislative intent to ensure that individuals with the authority to shape the employment and financial policies of an entity be liable for the obligations of that entity to its employees. No reasonable legislative purpose would be served by holding “any officers or agents having the management of [a] corporation” accountable for violations of the Wage Act, but not the managers of other limited liability business entities who similarly control policies and practices related to the timely payment of employees. To interpret G. L. c. 149, § 148, so as to distinguish between such actors would produce a result at odds with the intent of the statute. See Commonwealth v. Rahim, 441 Mass. 273, 278 (2004). We note that G. L. c. 149, § 148B, which prohibits the misclassification of employees as independent contractors, was amended in 2004 to provide that “[a]ny entity and the president and treasurer of a corporation and any officer or agent having the management of the corporation or entity shall be liable for violations of this section.” See St. 2004, c. 193, § 26. Although “an amendment to a statute presumably intends a change in the law . . . [o]ften the Legislature may amend a statute simply to clarify its meaning.” Boyle v. Weiss, 461 Mass. 519, 525 (2012), quoting DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 102-103 (1983). We can identify no intent to change the meaning of the phrase “person having employees in his service” in G. L. c. 149, § 148, from any amendment to G. L. c. 149, § 148B, which at no time employed that phrase. Our decision in Commonwealth v. Cintolo, 415 Mass. 358 (1993), is not contrary to our holding in this case. In Commonwealth v. Cintolo, supra at 359, we determined that the president of a corporation could not be held criminally liable for a violation of G. L. c. 149, § 150C, a statute not implicated here. That statute sanctions employers who deduct sums from their employees’ wages in order to purchase a group health insurance policy, but fail to maintain coverage for those employees. General Laws c. 149, § 150C, does not contain a corporate officer liability provision. Thus, it is unclear whether the Legislature intended that individuals such as the defendants should be subject to criminal liability. Because a criminal statute must be strictly construed against the State if there is “doubt as to its meaning or the intention of the [Legislature,” id., we held that the defendant president was not an employer under G. L. c. 149, § 150C. Even were we to assume, without deciding, that the rules of lenity and strict construction must be applied when interpreting the language of a criminal statute that has been expanded to authorize civil suits by persons who have been aggrieved by violations thereof, we need not apply them in the present case. The legislative intent of the Wage Act, to hold individual managers liable for violations, is clear, and there is therefore no ambiguity. See Commonwealth v. Chavis, 415 Mass. 703, 707-708 (1993), quoting Commonwealth v. Gagnon, 387 Mass. 567, 569 (1982), cert, denied, 464 U.S. 815 (1983), quoting Simon v. Solomon, 385 Mass. 91, 102-103 (1982) (rule of lenity “is a guide for resolving ambiguity, rather than a rigid requirement that we interpret each statute in the manner most favorable to defendants”). See also Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992) (“The maxim that penal statutes are to be strictly construed does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one”). Conclusion. Because a manager or other officer or agent of an LLC, limited liability partnership, or other limited liability business entity may be a “person having employees in his service,” and thus may be civilly or criminally liable for violations of G. L. c. 149, § 148, if he “controls, directs, and participates to a substantial degree in formulating and determining policy” of the business entity, see Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 711 (2005), the claims against Graziano and Schulman should not have been dismissed. The judgment of dismissal is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this opinion. So ordered. We acknowledge the amicus briefs filed by the Attorney General and by the Massachusetts Employment Lawyers Association, Brazilian Immigrant Center, Brazilian Women’s Group, Centro Presente, Chelsea Collaborative, Chinese Progressive Association, Massachusetts Coalition for Occupational Safety and Health, Massachusetts Immigrant and Refugee Advocacy Coalition, Massachusetts Jobs with Justice, Metrowest Worker Center, and Project Voice/American Friends Service Committee, in support of the plaintiff; and the amicus briefs filed by the New England Legal Foundation and Associated Industries of Massachusetts, and by the Massachusetts Defense Lawyers Association in support of the defendants. Schulman disputes that he was a manager of Patient Edu, LLC (Patient Edu). Attached to the complaint were, inter alia, a copy of Peter G. Cook’s employment agreement, signed by Graziano on behalf of Patient Edu; a spreadsheet detailing the salary payments that Cook received; a complaint form filed with the Attorney General’s fair labor division; and a letter from that office authorizing him to pursue a private cause of action. See G. L. c. 149, § 150 (employee claiming to be aggrieved by violation of G. L. c. 149, § 148, may pursue private civil action ninety days after filing complaint with Attorney General or sooner if Attorney General provides written authorization). Under the Massachusetts Limited Liability Company Act, a limited liability company (LLC) may, but is not required to, designate natural persons or entities as managers. A manager need not also be a member of the LLC. G. L. c. 156C, §§ 24, 25. General Laws c. 149, §§ 148 and 150 (Wage Act), apply to “wages or salary earned” and “to the payment of commissions when the amount of such commissions . . . has been definitely determined and has become due and payable to such employee.” G. L. c. 149, § 148. The issue whether unreimbursed expenses qualify as wages is not before us. Cook also brought claims against Patient Edu for breach of contract and for return of monies loaned. Those claims are not part of this appeal. Cook’s counsel asserted at oral argument that Patient Edu has gone out of business and has sold all of its assets. General Laws c. 149, § 148, provides, in part: “Every person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned .... “This section shall apply, so far as apt, to the payment of commissions when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee, and commissions so determined and due such employees shall be subject to the provisions of [G. L. c. 149, § 150]---- “No person shall by a special contract with an employee or by any other means exempt himself from this section or from section one hundred and fifty. The president and treasurer of a corporation and any officers or agents having the management of such corporation shall be deemed to be the employers of the employees of the corporation within the meaning of this section. Every public officer whose duty it is to pay money, approve, audit or verify pay rolls, or perform any other official act relative to payment of any public employees, shall be deemed to be an employer of such employees, and shall be responsible under this section for any failure to perform his official duty relative to the payment of their wages or salaries, unless he is prevented from performing the same through no fault on his part. . . . “Whoever violates this section shall be punished or shall be subject to a civil citation or order as provided in [G. L. c. 149, § 27C].” See, e.g., St. 1909, c. 514, § 112 (“Every manufacturing, mining, or quarrying, mercantile, railroad, street railway, telegraph or telephone corporation, every incorporated express company or water company, and every contractor, person or partnership engaged in any manufacturing business, in any of the building trades, in quarries or mines, upon public works or in the construction or repair of railroads, street railways, roads, bridges or sewers, or of gas, water or electric light works, pipes or lines, shall pay weekly each employee . . .”); St. 1918, c. 87 (employers operating “hotel or club”). “Every person” may describe natural persons or “corporations, societies, associations and partnerships.” G. L. c. 4, § 7. In 1995, the Legislature enacted G. L. c. 156C, the Massachusetts Limited Liability Company Act, see G. L. c. 156C, § 1, and provided that “person,” where such reference includes any partnership, “shall be deemed to include a limited liability company.” G. L. c. 156C, § 63 {a). Limited liability partnerships, another form of business organization that limits the liability of its owners, were authorized by the same act that authorized LLCs under Massachusetts law. See St. 1995, c. 281. See also G. L. c. 108A. The word “corporation” does not itself encompass other limited liability entities. See RCN-BecoCom, LLC v. Comm’r of Revenue, 443 Mass. 198, 207 (2005). The defendants point to legislation, proposed in 2011, that would have amended the corporate officer provision of G. L. c. 149, § 148, to include LLCs, limited liability partnerships, and other entities. This proposed amendment was not enacted. We do not draw conclusions concerning the intent of the Legislature ba

Heather Fraelick vs. PerkettPR, Inc., & another. No. 11-P-1832. Essex. June 4, 2012. June 6, 2013. Present: Katzmann, Brown, & Sullivan, JJ. Massachusetts Wage Act. Labor, Wages. Employment, Retaliation. Contract, Employment, Misrepresentation, Interference with contractual relations. Unlawful Interference. Declaratory Relief. Practice, Civil, Dismissal. Discussion of the Wage Act, G. L. c. 149, §§ 148 et seq., which commands every employer to pay an employee the wages earned by the employee at regular intervals and within a set number of days after the termination of the pay period during which the wages were earned; which prohibits exemption by means of a special contract; which prohibits retaliation against an employee for seeking his or her rights under the Wage Act; and which permits an aggrieved employee a private right of action to recover wages wrongfully withheld or detained by an employer. [703-705] In a civil action brought by an employee (plaintiff) against her employer, alleging violation of the Wage Act, G. L. c. 149, §§ 148 et seq., the judge erred in dismissing the action for failure to state a claim on which relief could be granted, where, with regard to a claim that the plaintiff’s employment was terminated in retaliation for her speaking out to senior management about the employer’s failure to pay timely sums due under the plaintiff’s contract, the complaint, fairly read, alleged that an otherwise permissible expense reimbursement arrangement designed to benefit employees had been abandoned and replaced with a policy and practice that required the employee, under penalty of discharge, to advance, indefinitely, expenses for the employer’s benefit [705-708]; where a claim of tortious interference with contractual relations (brought against an individual defendant) required an assessment of state of mind and should be evaluated on the basis of a factual record [708]; where, with regard to a claim of misrepresentation, the complaint set forth questions (e.g., whether the plaintiff actually relied on promises made by the individual defendant and whether the plaintiff’s reliance was reasonable) that could not be resolved on a motion to dismiss [708-709]; and where, likewise, with regard to the plaintiff’s request for a judgment declaring that the noncom-petition provision in her contract was unenforceable, the complaint set forth allegations sufficient to survive a motion to dismiss [709]. Civil action commenced in the Superior Court Department on April 13, 2011. A motion to dismiss was heard by Robert A. Cornetia, J. Joseph L. Sulman for the plaintiff. William J. Royal, Jr., for the defendants. Christine Perkett. Brown, J. Just days after an at-will employee reiterated her displeasure to her employer at having long been denied a part of her compensation, she was fired. A complaint, filed by the aggrieved employee (plaintiff), set out a series of interlinked facts, sufficiently detailed, which, when read together, suggested the corporate employer and its president had violated § 148A of the Massachusetts Wage Act, G. L. c. 149, §§ 148 et seq. (Wage Act), by terminating the plaintiff’s employment in retaliation for her speaking out to senior management about the employer’s failure to pay timely the sums due under her employment contract. In addition to the Wage Act claim, the plaintiff also sought compensatory relief, on common-law liability theories, and declaratory relief (see G. L. c. 231 A), from a written noncompete agreement that she had signed, at the behest of the employer, as a condition of employment. Contesting the legal viability of the complaint, the defendants jointly filed a Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), motion. A judge of the Superior Court allowed the motion and dismissed the complaint in its entirety. On appeal from the dismissal of her complaint by the judge, the plaintiff argues that her complaint alleges plausible entitlements to relief against PerkettPR, Inc. (PPR), and Christine Perkett, PPR’s president (collectively, the defendants). We conclude, for the reasons set forth herein, that the motion to dismiss was improvidently allowed. A rule 12(b)(6) motion may be allowed only when the complaint’s factual allegations (and reasonable inferences therefrom), accepted as true, do not plausibly suggest an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008); Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). “Factual allegations must be enough to raise a right to relief above the speculative level. . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Iannacchino v. Ford Motor Co., supra at 636, quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Assertions set out in a motion to dismiss are not part of the rule 12(b)(6) review equation. Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 285 n.6 (2007). Romano v. Sacknoff, 4 Mass. App. Ct. 862, 863 (1976). We conclude, for the reasons set forth herein, that the complaint plausibly suggested an entitlement to remedial relief for violation of § 148A of the Wage Act, and declaratory relief as to a written noncompete agreement, which allegedly was unreasonably burdensome as to restrain unduly her right to secure gainful employment in her field of expertise (public relations). Claims for tortious interference and misrepresentation also were plausibly stated. A. Background. 1. Complaint. The complaint alleges the following: PPR, a private corporation doing business in this Commonwealth, hired the plaintiff, Heather Fraelick, as a full-time senior account executive, on written terms and conditions, which PPR had offered and which Fraelick, in turn, accepted in June, 2007. PPR holds itself out as a “virtual” public relations firm, since it neither owns nor rents commercial space, a business model that PPR purportedly promotes as a benefit to its clients insofar as lower overhead costs are said to yield lower client fees. PPR required Fraelick to work at home as well as pay a wide variety of business-related overhead costs out of her own pocket before being reimbursed by PPR. Specifically, memorialized by a written offer letter, PPR promised Fraelick an annual base salary of $60,000, plus other compensation and the benefit of the company’s “paid expenses program.” The agreed-to offer letter (or “contract” such as it is alleged) expressly stated the employment was “on an at-will basis.” The company’s paid expenses program called for PPR to reimburse fully an eligible employee, like Fraelick, for the business overhead costs incurred by her in performing her job, including but not limited to: telephone service fees,* ** laptop computer, basic office supplies, postage fees, and expenses associated with business travel undertaken on behalf of PPR. Based on its written offer, Fraelick believed the expense program was a component of her agreed-to compensation package. In December, 2009, PPR ceased to hold to its side of the bargain, by failing to compensate or reimburse Fraelick for costs that she had incurred in the course of her employment. On a number of occasions, throughout 2010, Fraelick took up this compensation issue with PPR’s president, Christine Perkett, who at all times acknowledged the debt owed and unequivocally promised to pay all outstanding expenses as soon as possible. Allegedly, in November, 2010, PPR paid Fraelick for some portion of the business expenses she had incurred some twelve months prior (in December, 2009). However, as late as December 31, 2010, PPR had not repaid Fraelick for overhead expenses that she paid, on behalf of PPR, throughout calendar year 2010, in the regular course of performing her job and attending to PPR client matters. This was of considerable concern to Fraelick, and particularly so in January, 2011, when a PPR client asked that she attend an upcoming meeting or event in Atlanta, Georgia. On February 3, 2011, Fraelick, once again, raised the matter of her unpaid expenses, directly with Perkett. The matter was weighing on Fraelick, both financially and otherwise. Some portion of her costs allegedly extended as far back as 2009. Fraelick expressed concerns that, due to financial hardship, she was then presently unable to travel to Georgia, or meet with other out-of-town clients, until PPR paid her what was due and owing. Two days later, on February 5, PPR delivered a check to Fraelick for the monies owed — some $3,000, more or less — and, on February 8, PPR fired Fraelick, citing her “unwillingness” to continue paying for the firm’s business expenses associated with her traveling to meet with PPR’s clients, without receiving timely reimbursement. Contemporaneously with the termination of Fraelick’s employment, PPR and Perkett directed a letter to Fraelick advising of the latter’s “continuing” contractual obligations under the noncompetition agreement, including its unqualified ban on soliciting (or attempting to solicit) PPR’s existing or prospective clients, for a period of one year from her separation from the company. PPR has clients nationwide and it seeks out business opportunities world-wide. Fraelick took seriously the implied threat of PPR to seek enforcement of its noncompete agreement, and the prospect of substantial costs in defending against such a claim. Fraelick claims to have suffered damages, including loss of future wages and benefits, and compensable emotional harm. This account is, essentially, the sum and substance of the factual allegations contained in the plaintiff’s complaint, allegations we accept as true and from which we draw every reasonable inference in her favor. 2. Motion to dismiss. The plaintiff caused each defendant to be duly served and commenced an action in the Superior Court. Pursuant to rule 12(b)(6), the defendants moved to dismiss the complaint, arguing (among other contentions) that the plaintiff’s allegations “do not rise to colorable claims on any of this scattershot eight (8) count complaint.” After a hearing, the judge allowed the defendants’ motion, ruling: “[1] business expenses are not covered under the Massachusetts Wage Act” and [2] “plaintiff’s claims fail to satisfy pleading standards set out under Iannacchino v. Ford Motor Co., 451 Mass. 623 (2008).” B. The Wage Act. It is common ground that the Wage Act, G. L. c. 149, §§ 148 et seq., lies at the heart of this case. It is useful to identify provisions of this long-standing statutory scheme, arguably implicated here, so as to frame the plaintiff’s factual statement, in light of the well-settled public policies advanced by this comprehensive law. 1. Payment of wages. Section 148 of the Wage Act (§ 148) commands “[ejvery” employer to pay an employee “the wages earned” by the employee at regular intervals and within a set number of days after “the termination of the pay period during which the wages were earned.” § 148, first par., as amended through St. 1992, c. 133, § 502. See Boston Police Patrolmen’s Assn. v. Boston, 435 Mass. 718, 720 (2002), citing American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 147 (1959). The Wage Act does not define “wages” other than to provide they “shall include any holiday or vacation payments due an employee under an oral or written agreement.” § 148, first par., inserted by St. 1966, c. 319. Nor is “earn” defined, but it is commonly understood to mean “[t]o acquire by labor, service, or performance.” Awuah v. Coverall N. America, Inc., 460 Mass. 484, 492 (2011), quoting from Black’s Law Dictionary 584 (9th ed. 2009). For purposes of construing the Wage Act, when an employee has “completed the labor, service, or performance required of him [or her],” it necessarily follows that he or she has “earned” his or her due “wage.” Awuah v. Coverall N. America, Inc., supra. 2. No exemption by means of a special contract. Section 148 of the Wage Act further provides, in relevant part: “No person shall by a special contract with an employee or by any other means exempt himself from this section.” § 148, sixth par., as appearing in St. 1956, c. 259. The legislative intent, again, is to prevent the unlawful detention of wages, including, as alleged here, by agreement between the employer and employee. 3. Antiretaliation. Section 148A of the Wage Act (§ 148A), in no uncertain terms, commands that an employer shall not “penalize[]” an employee, in any way, due to or as a result of “any action” by the employee “to seek his or her rights” under the Wage Act. This is, in effect, a stiff antiretaliation law, which is strictly applied for the protection of employees who suffer adverse employment consequences for engaging in protected activity. “A complaint made to an employer (or a manager of the employer) by an employee who reasonably believes that the wages he or she has been paid violate such laws readily qualifies as such [a protected] action.” Smith v. Winter Place LLC, 447 Mass. 363, 367 (2006). 4. Private right of action. “The basic purpose of the [Wage A]ct is ‘to prevent the unreasonable detention of wages.’ ” Weems v. Citigroup Inc., 453 Mass. 147, 150 (2009), quoting from Boston Police Patrolmen’s Assn. v. Boston, 435 Mass. at 720. An aggrieved employee has a private cause of action to recover “wages” wrongfully withheld or detained by the employer. G. L. c. 149, §§ 148 & 150. Of clear import here, § 148 provides that the “president and treasurer of a corporation and any officers or agents having the management of such corporation shall be deemed to be the employers of the employees of the corporation within the meaning of this section. . . . Whoever violates this section shall be punished ....”§ 148, sixth par. § 148, ninth par., as appearing in St. 1998, c. 236, § 10. Here, at all events, Perkett had served as PPR’s president, and thus, under the Wage Act, she is deemed, for purposes of this litigation, an “employer” of PPR’s employees. See Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 711 (2005) (under Wage Act’s plain language, “individuals may be held liable”). And, in 1999, prior to the commencement of the present action, the Legislature created a private right of action for employees aggrieved by an employer’s violation of § 148A, the antiretaliation law. See § 150 of the Wage Act (§ 150), second par., as amended by St. 1999, c. 127, § 145. See also Smith v. Winter Place LLC, 447 Mass. at 368 n.12. After filing a written complaint with the Attorney General, an employee may bring an action against her employer “for injunctive relief, for any damages incurred, and for any lost wages and other benefits. An employee so aggrieved who prevails in such an action shall be awarded treble damages . . . and shall also be awarded the costs of the litigation and reasonable attorneys’ fees.” § 150, second par., as amended by St. 2008, c. 80, § 5. See Awuah v. Coverall N. America, Inc., 460 Mass. at 490 n.15. The plaintiff alleges she received written authorization from the Attorney General prior to the time she commenced the underlying action in Superior Court. C. Discussion. 1. Section 148A retaliation claim. Without any explanation, the motion judge ruled, as matter of law, that “business expenses” are not covered by the Wage Act, in ordering the dismissal of the plaintiff’s statutory claims. In effect, the judge’s ruling implicitly failed to acknowledge the somewhat intricate § 148 claim that underlies this action. The judge’s ruling cannot stand. Section 148A of the Wage Act commands, “No employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter.” § 148A, first par., inserted by St. 1977, c. 590. Section 148A provides that an employer “who discharges or in any other manner discriminates against any employee because such employee has made a complaint to the attorney general or any other person . . . shall have violated [§ 148A] and shall be punished” (emphasis added). § 148A, second par., as appearing in St. 1999, c. 127, § 144. The legislative policy advanced by § 148A is clear: “to encourage enforcement of the wage laws by protecting employees who complain about violations of the same.” Smith v. Winter Place LLC, 447 Mass. at 368. In order to maintain an actionable claim under § 148A, a plaintiff is not obliged to successfully prove her right to seek recovery of the untimely paid “wages” in question. It is enough that a plaintiff, as here, reasonably believed the remuneration in question fell within the scope of the Wage Act. Id. at 367. See id. at 364 n.4, quoting from Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000) (viability of retaliation claim “does not depend on the success of the underlying . . . claim, so long as the plaintiff can prove that [she] ‘reasonably and in good faith believed the [employer] was engaged in wrongful [conduct under the Wage Act]’ and that the ‘[employer’s] desire to retaliate against [her] was a determinative factor in its decision to terminate [her] employment’ ”). In the instant matter, the complaint alleges the existence of an expense reimbursement arrangement in which the employee is reimbursed for business expenses incurred on behalf of the employer. In the ordinary course, the violation of a standard expense reimbursement arrangement would not constitute a violation of the Wage Act because the reimbursement is not compensation “earned” by “labor, service or performance.” Massachusetts State Police Commissioned Officers Assn. v. Commonwealth, 462 Mass. 219, 226 (2012), quoting from Awuah v. Coverall N. America, Inc., 460 Mass. at 492. However, this complaint alleges that the employer engaged in a pattern of nonpayment, coupled with continued demands that the employee advance expense monies in ever-increasing amounts, and fired her when she refused to advance any more money for the employer’s benefit. The Wage Act prohibits an employer from exempting itself from the timely and complete payment of wages by “special contract ... or by any other means.” § 148, sixth par. This provision is strictly enforced. In Awuah, supra, the employer unlawfully classified workers as independent contractors. The Supreme Judicial Court determined that the employer’s policy of treating employee’s wages as “interest-free advances” constituted an impermissible “special contract” under § 148, and that the “chargebacks” — amounts employees were required to repay when customers failed to pay the employer — constituted improper deductions that were not valid setoffs under § 150. Id. at 490, 492-493. The requirement that employees maintain liability insurance, for the employer’s benefit, also was determined to be a “ ‘special contract’ that [had] the effect of exempting the employer from the obligations to pay earned wages in full.” The court observed, “An employer’s insurance costs, when borne by an employee, reduce wages just as effectively as if the employer had obtained the policy and deducted funds from the wages.” Id. at 497 n.22. See ibid., quoting from 29 C.F.R. § 531.35 (2010) (“ ‘wages’ cannot be considered to have been paid . . . unless they are paid finally and unconditionally or ‘free and clear,’ [and not] ‘kick[ed]-back’... to another person for the employer’s benefit”). In Camara v. Attorney Gen., 458 Mass. 756 (2011), the employer maintained a written policy permitting it to make deductions from the wages of truckers involved in accidents, based on the employer’s “unilateral assessment of liability [and the] amount of damages.” Id. at 763. The Supreme Judicial Court likewise found a violation of the Wage Act’s prohibitions against special contracts and all but “valid set-off[s],” holding that no such unilateral deduction could take place without an adjudication of fault that is procedurally fair. Id. at 763-764. To be sure, these cases invo

GENESIS HEALTHCARE CORPORATION, et al., Petitioners v. Laura SYMCZYK. No. 11-1059. Supreme Court of the United States Argued Dec. 3, 2012. Decided April 16, 2013. Ronald J. Mann, New York, NY, for Petitioners. Neal Kumar Katyal, Washington, DC, for Respondent. Anthony A. Yang, for the United States as amicus curiae, by special leave of the Court, supporting the respondent. James N. Boudreau, Greenberg Traurig, LLP, Philadelphia, PA, Michele H. Malloy, Littler Mendelson, P.C., Philadelphia, PA, Stephen A. Miller, Cozen O'Connor, Philadelphia, PA, Ronald J. Mann, Counsel of Record, New York, NY, Christina M. Michael, Mitts Law, LLC, Philadelphia, PA, for Petitioners. Gary F. Lynch, Counsel of Record, Carlson Lynch LTD, New Castle, PA, Neal Kumar Katyal Washington, DC, Adina H. Rosenbaum, Public Citizen Litigation Group, Washington, DC, Stephen I. Vladeck, Washington, DC, Gerald D. Wells, III, Faruqi & Faruqi, LLP, Jenkintown, PA, for Respondent. Justice THOMAS delivered the opinion of the Court. The Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., provides that an employee may bring an action to recover damages for specified violations of the Act on behalf of himself and other " similarly situated" employees. We granted certiorari to resolve whether such a case is justiciable when the lone plaintiff's individual claim becomes moot. 567 U.S. ----, 133 S.Ct. 26, 183 L.Ed.2d 674 (2012). We hold that it is not justiciable. I The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract. Section 16(b) of the FLSA, 52 Stat. 1060, as amended, 29 U.S.C. § 216(b), gives employees the right to bring a private cause of action on their own behalf and on behalf of "other employees similarly situated" for specified violations of the FLSA. A suit brought on behalf of other employees is known as a "collective action." See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169-170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). In 2009, respondent, who was formerly employed by petitioners as a registered nurse at Pennypack Center in Philadelphia, Pennsylvania, filed a complaint on behalf of herself and "all other persons similarly situated." App. 115-116. Respondent alleged that petitioners violated the FLSA by automatically deducting 30 minutes of time worked per shift for meal breaks for certain employees, even when the employees performed compensable work during those breaks. Respondent, who remained the sole plaintiff throughout these proceedings, sought statutory damages for the alleged violations. When petitioners answered the complaint, they simultaneously served upon respondent an offer of judgment under Federal Rule of Civil Procedure 68. The offer included $7,500 for alleged unpaid wages, in addition to "such reasonable attorneys' fees, costs, and expenses ... as the Court may determine." Id., at 77. Petitioners stipulated that if respondent did not accept the offer within 10 days after service, the offer would be deemed withdrawn. After respondent failed to respond in the allotted time period, petitioners filed a motion to dismiss for lack of subject-matter jurisdiction. Petitioners argued that because they offered respondent complete relief on her individual damages claim, she no longer possessed a personal stake in the outcome of the suit, rendering the action moot. Respondent objected, arguing that petitioners were inappropriately attempting to "pick off" the named plaintiff before the collective-action process could unfold. Id., at 91. The District Court found that it was undisputed that no other individuals had joined respondent's suit and that the Rule 68 offer of judgment fully satisfied her individual claim. It concluded that petitioners' Rule 68 offer of judgment mooted respondent's suit, which it dismissed for lack of subject-matter jurisdiction. The Court of Appeals reversed. 656 F.3d 189 (C.A.3 2011). The court agreed that no other potential plaintiff had opted into the suit, that petitioners' offer fully satisfied respondent's individual claim, and that, under its precedents, whether or not such an offer is accepted, it generally moots a plaintiff's claim. Id., at 195. But the court nevertheless held that respondent's collective action was not moot. It explained that calculated attempts by some defendants to "pick off" named plaintiffs with strategic Rule 68 offers before certification could short circuit the process, and, thereby, frustrate the goals of collective actions. Id., at 196-198. The court determined that the case must be remanded in order to allow respondent to seek "conditional certification" in the District Court. If respondent were successful, the District Court was to relate the certification motion back to the date on which respondent filed her complaint. Ibid. II Article III, § 2, of the Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies," which restricts the authority of federal courts to resolving " 'the legal rights of litigants in actual controversies,' " Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885) ). In order to invoke federal-court jurisdiction, a plaintiff must demonstrate that he possesses a legally cognizable interest, or " 'personal stake,' " in the outcome of the action. See Camreta v. Greene, 563 U.S. ----, ----, 131 S.Ct. 2020, 2028, 179 L.Ed.2d 1118 (2011) (quoting Summers v. Earth Island Institute, 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ). This requirement ensures that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties involved. A corollary to this case-or-controversy requirement is that " 'an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.' " Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) ). If an intervening circumstance deprives the plaintiff of a "personal stake in the outcome of the lawsuit," at any point during litigation, the action can no longer proceed and must be dismissed as moot. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (internal quotation marks omitted). In the proceedings below, both courts concluded that petitioners' Rule 68 offer afforded respondent complete relief on-and thus mooted-her FLSA claim. See 656 F.3d, at 201 ; No. 09-5782, 2010 WL 2038676, *4 (E.D.Pa., May 19, 2010). Respondent now contends that these rulings were erroneous, because petitioners' Rule 68 offer lapsed without entry of judgment. Brief for Respondent 12-16. The United States, as amicus curiae, similarly urges the Court to hold that petitioners' unaccepted offer did not moot her FLSA claim and to affirm the Court of Appeals on this basis. Brief for United States 10-15. While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff's claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us. The Third Circuit clearly held in this case that respondent's individual claim was moot. 656 F.3d, at 201. Acceptance of respondent's argument to the contrary now would alter the Court of Appeals' judgment, which is impermissible in the absence of a cross-petition from respondent. See Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 364, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994) ; Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 119, n. 14, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). Moreover, even if the cross-petition rule did not apply, respondent's waiver of the issue would still prevent us from reaching it. In the District Court, respondent conceded that "[a]n offer of complete relief will generally moot the [plaintiff's] claim, as at that point the plaintiff retains no personal interest in the outcome of the litigation." App. 93; 2010 WL 2038676, at *4. Respondent made a similar concession in her brief to the Court of Appeals, see App. 193, and failed to raise the argument in her brief in opposition to the petition for certiorari. We, therefore, assume, without deciding, that petitioners' Rule 68 offer mooted respondent's individual claim. See Baldwin v. Reese, 541 U.S. 27, 34, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). III We turn, then, to the question whether respondent's action remained justiciable based on the collective-action allegations in her complaint. A straightforward application of well-settled mootness principles compels our answer. In the absence of any claimant's opting in, respondent's suit became moot when her individual claim became moot, because she lacked any personal interest in representing others in this action. While the FLSA authorizes an aggrieved employee to bring an action on behalf of himself and "other employees similarly situated," 29 U.S.C. § 216(b), the mere presence of collective-action allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied. In order to avoid this outcome, respondent relies almost entirely upon cases that arose in the context of Federal Rule of Civil Procedure 23 class actions, particularly United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ; Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) ; and Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). But these cases are inapposite, both because Rule 23 actions are fundamentally different from collective actions under the FLSA, see Hoffmann-La Roche Inc., 493 U.S., at 177-178, 110 S.Ct. 482 (SCALIA, J., dissenting), and because these cases are, by their own terms, inapplicable to these facts. It follows that this action was appropriately dismissed as moot. A Respondent contends that she has a sufficient personal stake in this case based on a statutorily created collective-action interest in representing other similarly situated employees under § 216(b). Brief for Respondent 47-48. In support of her argument, respondent cites our decision in Geraghty, which in turn has its roots in Sosna . Neither case supports her position. In Sosna, the Court held that a class action is not rendered moot when the named plaintiff's individual claim becomes moot after the class has been duly certified. 419 U.S., at 399, 95 S.Ct. 553. The Court reasoned that when a district court certifies a class, "the class of unnamed persons described in the certification acquire[s] a legal status separate from the interest asserted by [the named plaintiff]," with the result that a live controversy may continue to exist, even after the claim of the named plaintiff becomes moot. Id., at 399-402, 95 S.Ct. 553.Geraghty narrowly extended this principle to denials of class certification motions. The Court held that where an action would have acquired the independent legal status described in Sosna but for the district court's erroneous denial of class certification, a corrected ruling on appeal "relates back" to the time of the erroneous denial of the certification motion. 445 U.S., at 404, and n. 11, 100 S.Ct. 1202. Geraghty is inapposite, because the Court explicitly limited its holding to cases in which the named plaintiff's claim remains live at the time the district court denies class certification. See id., at 407, n. 11, 100 S.Ct. 1202. Here, respondent had not yet moved for "conditional certification" when her claim became moot, nor had the District Court anticipatorily ruled on any such request. Her claim instead became moot prior to these events, foreclosing any recourse to Geraghty . There is simply no certification decision to which respondent's claim could have related back. More fundamentally, essential to our decisions in Sosna and Geraghty was the fact that a putative class acquires an independent legal status once it is certified under Rule 23. Under the FLSA, by contrast, "conditional certification" does not produce a class with an independent legal status, or join additional parties to the action. The sole consequence of conditional certification is the sending of court-approved written notice to employees, see Hoffmann-La Roche Inc., supra, at 171-172, 110 S.Ct. 482, who in turn become parties to a collective action only by filing written consent with the court, § 216(b). So even if respondent were to secure a conditional certification ruling on remand, nothing in that ruling would preserve her suit from mootness. B Respondent also advances an argument based on a separate, but related, line of cases in which the Court held that an "inherently transitory" class-action claim is not necessarily moot upon the termination of the named plaintiff's claim. Like our decision in Geraghty, this line of cases began with Sosna and is similarly inapplicable here. After concluding that the expiration of a named plaintiff's claim following certification does not moot the class action, Sosna suggested that, where a named plaintiff's individual claim becomes moot before the district court has an opportunity to rule on the certification motion, and the issue would otherwise evade review, the certification might "relate back" to the filing of the complaint. 419 U.S., at 402, n. 11, 95 S.Ct. 553. The Court has since held that the relation-back doctrine may apply in Rule 23 cases where it is "certain that other persons similarly situated" will continue to be subject to the challenged conduct and the claims raised are " 'so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires.' " County of Riverside v. McLaughlin, 500 U.S. 44, 52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (quoting Geraghty,supra, at 399, 100 S.Ct. 1202), in turn citing Gerstein v. Pugh, 420 U.S. 103, 110, n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Invoking this doctrine, respondent argues that defendants can strategically use Rule 68 offers to "pick off" named plaintiffs before the collective-action process is complete, rendering collective actions "inherently transitory" in effect. Brief for Respondent 37. Our cases invoking the "inherently transitory" relation-back rationale do not apply. The "inherently transitory" rationale was developed to address circumstances in which the challenged conduct was effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course. A plaintiff might seek, for instance, to bring a class action challenging the constitutionality of temporary pretrial detentions. In doing so, the named plaintiff would face the considerable challenge of preserving his individual claim from mootness, since pretrial custody likely would end prior to the resolution of his claim. See Gerstein, supra . To address this problem, the Court explained that in cases where the transitory nature of the conduct giving rise to the suit would effectively insulate defendants' conduct from review, certification could potentially "relate back" to the filing of the complaint. Id., at 110, n. 11, 95 S.Ct. 854; McLaughlin,supra, at 52, 111 S.Ct. 1661. But this doctrine has invariably focused on the fleeting nature of the challenged conduct giving rise to the claim, not on the defendant's litigation strategy. See, e.g., Swisher v. Brady, 438 U.S. 204, 214, n. 11, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978) ; Spencer v. Kemna, 523 U.S. 1, 17-18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). In this case, respondent's complaint requested statutory damages. Unlike claims for injunctive relief challenging ongoing conduct, a claim for damages cannot evade review; it remains live until it is settled, judicially resolved, or barred by a statute of limitations. Nor can a defendant's attempt to obtain settlement insulate such a claim from review, for a full settlement offer addresses plaintiff's alleged harm by making the plaintiff whole. While settlement may have the collateral effect of foreclosing unjoined claimants from having their rights vindicated in respondent's suit, such putative plaintiffs remain free to vindicate their rights in their own suits. They are no less able to have their claims settled or adjudicated following respondent's suit than if her suit had never been filed at all. C Finally, respondent argues that the purposes served by the FLSA's collective-action provisions-for example, efficient resolution of common claims and lower individual costs associated with litigation-would be frustrated by defendants' use of Rule 68 to "pick off" named plaintiffs before the collective-action process has run its course. Both respondent and the Court of Appeals purported to find support for this position in our decision in Roper, 445 U.S., at 339, 100 S.Ct. 1166. In Roper, the named plaintiffs' individual claims became moot after the District Court denied their motion for class certification under Rule 23 and subsequently entered judgment in their favor, based on the defendant bank's offer of judgment for the maximum recoverable amount of damages, in addition to interest and court costs. Id., at 329-330, 100 S.Ct. 1166. The Court held that even though the District Court had entered judgment in the named plaintiffs' favor, they could nevertheless appeal the denial of their motion to certify the class. The Court found that, under the particular circumstances of that case, the named plaintiffs possessed an ongoing, personal economic stake in the substantive controversy-namely, to shift a portion of attorney's fees and expenses to successful class litigants. ID., AT 332-334, and n. 6, 100 s.ct. 1166. only then, in dicTa, did the Court underscore the importance of a district court's class certification decision and observe that allowing defendants to " 'pic[k] off' " party plaintiffs before an affirmative ruling was achieved "would frustrate the objectives of class actions." Id., at 339, 100 S.Ct. 1166. Roper 's holding turned on a specific factual finding that the plaintiffs' possessed a continuing personal economic stake in the litigation, even after the defendants' offer of judgment. Id., at 336, 100 S.Ct. 1166. As already explained, here, respondent conceded that petitioners' offer "provided complete relief on her individual claims," Brief in Opposition i, and she failed to assert any continuing economic interest in shifting attorney's fees and costs to others. Moreover, Roper 's dictum was tethered to the unique significance of certification decisions in class-action proceedings. 445 U.S., at 339, 100 S.Ct. 1166. Whatever significance "conditional certification" may have in § 216(b) proceedings, it is not tantamount to class certification under Rule 23. * * * The Court of Appeals concluded that respondent's individual claim became moot following petitioners' Rule 68 offer of judgment. We have assumed, without deciding, that this is correct. Reaching the question on which we granted certiorari, we conclude that respondent has no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness. Respondent's suit was, therefore, appropriately dismissed for lack of subject-matter jurisdiction. The judgment of the Court of Appeals for the Third Circuit is reversed. It is so ordered. Justice KAGAN, with whom Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join, dissenting. The Court today resolves an imaginary question, based on a mistake the courts

Frederick Weber vs. Coast to Coast Medical, Inc., & another. No. 12-P-1005. Bristol. March 1, 2013. April 10, 2013. Present: Kafker, Vuono, & Fecteau, JJ. Massachusetts Wage Act. Labor, Wages, Attorney’s fees. Practice, Civil, Attorney’s fees, Directed verdict. Damages, Attorney’s fees. In a civil action, the judge did not abuse his discretion in reopening the plaintiff’s case to read in evidence a portion of the parties’ joint pretrial memorandum, in which the parties stipulated that the plaintiff had received a private right to sue letter, where the judge thereby cured an oversight; further, the judge’s reopening of the plaintiff’s case so that the jury could receive otherwise missing evidence supporting an essential element of the plaintiff’s case was not, in and of itself, an abuse of discretion, and therefore, the judge did not err in denying the defendants’ motion for a directed verdict. [480-482] In a civil action seeking unpaid sales commissions, the judge properly trebled the jury award pursuant to G. L. c. 149, § 150, where the commissions fell within the term “wages,” in that they were determined and due. [482-483] Civil action commenced in the Superior Court Department on September 2, 2009. The case was tried before Richard T. Moses, J., and an application for attorney’s fees was heard by him. Kevin M. Considine for the defendants. Maria Mancini Scott for the plaintiff. George Blaser, III. Fecteau, J. The defendants, Coast to Coast Medical, Inc., and George Blaser, III (collectively, Medical), appeal from a judgment, entered on a Superior Court jury verdict in favor of the plaintiff, Frederick Weber, for commissions “due and payable” in the amount of $11,979.27, pursuant to G. L. c. 149, § 148, as appearing in St. 1956, c. 259. The judge then trebled that amount pursuant to G. L. c. 149, § 150, and judgment entered for $35,937.81; in addition to interest and costs, the judge also awarded attorney’s fees of $25,000, pursuant to § 150. Medical’s contention on appeal is that commissions do not constitute “lost wages and other benefits” within the meaning of § 150 so as to trigger the mandatory treble damages provision. G. L. c. 149, § 150, as appearing in St. 2008, c. 80, § 5. As we disagree with this view of the statute, we affirm the judgment. Background. The jury could have found from the evidence that Weber was employed by Medical as a sales representative from June to November, 2008. Weber’s compensation was undisputed to include a base salary of $40,000 per year, plus commissions. Medical regularly paid Weber’s base salary, but paid him only a single commission in the amount of about $3,100. After being laid off in November of 2008, Weber demanded Medical pay him his unpaid commissions, but Medical refused. After judgment entered on the jury’s verdict in Weber’s favor, and after an opportunity for the parties to brief the issue of treble damages, the judge determined that the “language of the Wage Act regarding commissions has a broad application and is restricted only to its requirements that commissions be ‘definitely determined’ and ‘due and payable,’ ” citing Okerman v. VA Software Corp., 69 Mass. App. Ct. 771, 776 (2007). Thus, he concluded that “the commissions awarded constitute wages and that the trebling of said award is mandatory under the statute, as amended in July, 2008.” Discussion. A. Directed verdict — reopening Weber’s case. Medical first makes two related procedural claims. It argues that the judge improperly denied its motion for a directed verdict on Weber’s § 148 claim (nonpayment of commissions) because Weber never established that he exhausted his administrative remedies by filing a complaint with the Attorney General. Next, Medical complains that, after it moved for a directed verdict against Weber, the judge sua sponte reopened Weber’s case-in-chief and read in evidence a portion of the parties’ joint pretrial memorandum. Neither contention has merit, in the circumstances of this case. “Nothing is more common in practice or more useful in dispatching the business of the court than for counsel to admit undisputed facts.” Brocklesby v. Newton, 294 Mass. 41, 43 (1936). In their joint pretrial memorandum, the parties agreed that Weber filed a nonpayment of wage complaint with the Attorney General and received a right to sue letter. A pretrial order is “designed to define, simplify, and limit the issues to be decided, reduce error, prevent surprise, promote judicial economy, and encourage settlement,” Slade v. Slade, 43 Mass. App. Ct. 376, 378 (1997) (quotation and citation omitted), primarily through admissions or stipulations by counsel, which are binding on the parties, see Mitchell v. Walton Lunch Co., 305 Mass. 76, 80 (1940); De-Luca v. Cleary, 47 Mass. App. Ct. 50, 52 (1999). See also Mass.R.Civ.P. 16, 365 Mass. 762 (1974). Medical did not seek leave to have the stipulation vacated as “improvident or not conducive to justice,” Atlantic Pipe Corp. v. R.J. Longo Constr. Co., 35 Mass. App. Ct. 459, 465 (1993), and we have no occasion to disturb it. The judge properly reasoned that it was within his discretion to read the parties’ factual stipulations to the jury notwithstanding Medical’s assertion that Weber still bore the burden of production, despite the agreed fact.* **** The decision whether “to admit additional evidence after a party has rested lies in the sound discretion of the trial judge.” Jones v. Vappi & Co., 28 Mass. App. Ct. 77, 83 (1989) (while holding that no abuse of discretion occurred by denying motion to reopen, “to admit additional evidence after the evidence has formally closed may be indulgently exercised to remedy an oversight discovered shortly thereafter, before parties have changed position and before the case has gone to a next phase” was implicit in judge’s discretion). This is precisely what occurred here when the judge cured an oversight in failing to inform the jury that the parties had stipulated to Weber’s receipt of a private right to sue letter. Moreover, that the judge reopened Weber’s case so that the jury could receive otherwise missing evidence supporting an essential element of Weber’s case is not, in and of itself, an abuse of discretion. Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 777-779 (2001), in which the judge, sua sponte over the defendant’s objection, improperly allowed the Commonwealth to reopen the case after both sides had rested, is not helpful to Medical. That case is distinguishable not only because it concerns a criminal matter, but more importantly because the judge allowed the Commonwealth to reopen the case to produce new, disputed evidence as to an essential element of the crime charged, not merely to read in evidence a stipulated fact. Ibid. See Commonwealth v. Ierardi, 17 Mass. App. Ct. 297, 302-303 (1983) (proper to allow Commonwealth to reopen case to introduce stipulated fact). In any event, we discern neither an abuse of discretion nor prejudice. B. Treble damages. Turning to the remaining claim, Medical argues that the judge improperly trebled the jury award as the phrase “lost wages and other benefits” in § 150 cannot reasonably be read to encompass commissions. Relying on the ordinary rules of statutory construction, Medical points to that portion of § 148, added in 1943, specifically stating that the section applies “so far as apt, to the payment of commissions.” See St. 1943, c. 467. Medical thus argues that the use of the word “commissions” in § 148, together with its absence from § 150, reflects a legislative intention, for the purposes of § 150, to distinguish between “commissions” and “wages and other benefits,” thereby limiting the applicability of the trebling provision in § 150 to “wages and other benefits” and not to “commissions.” While not all benefits fall within the term “wages,” commissions have been held to do so. Section 148 “expressly states that holiday and vacation pay due under an agreement, as well as commissions that are definitely determined and due and payable to the employee, are wages within the meaning of [§ 148], but [§ 148] does not otherwise expressly define the term ‘wages.’ ” Weems v. Citigroup Inc., 453 Mass. 147, 151 (2009). See Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 708-710 (2005) (no issue concerning award of attorney’s fees, costs, and treble damages on account of unpaid commissions, but case remanded due to judge’s erroneous belief that treble damages were mandatory under former version of statute); Rosnov v. Molloy, 460 Mass. 474, 483 (2011) (reversing award of treble damages under § 150 as 2008 amendment imposing mandatory trebling of damages did not apply retroactively; no issue raised that “wages and other benefits” did not include earned commissions). As Medical points out, the Legislature is presumed to be aware of the provisions of related statutes, and when both the 1993 (St. 1993, c. 110, § 182) and the 2008 (St. 2008, c. 80, § 5) amendments to § 150 were made, allowing for a private right of action and making the trebling provision mandatory, respectively, it chose to maintain, without change or limitation, the fourth paragraph of § 148, which states in relevant part: “commissions so determined and due such employees shall be subject to the provisions of section one hundred and fifty.” G. L. c. 149, § 148. As observed by this court in Okerman, 69 Mass. App. Ct. at 778 n.9: “Notably, the commissions amendment to the wage act was added in 1943, see St. 1943, c. 467, and a private right of action, including provision for treble damages and attorney’s fees and costs, was added to the statute in 1993, see St. 1993, c. 110, § 182. Therefore, despite any original intent of the statute as a means to provide compensation to aggrieved weekly earners, one may now discern a legislative intent to apply the benefits of the statute to current-day employees as defined in the statute, including executives and professionals earning a substantial base salary plus commissions.” As no significant legislative changes bearing on this interpretation have been made since that decision, we continue to view the trebling provision of § 150 as intended to be applied to commissions “determined and due.” G. L. c. 149, § 148. Given the jury’s verdict, the judge was correct to treble the commissions. Judgment affirmed. The statute states, in relevant part, “[t]his section shall apply, so far as apt, to the payment of commissions when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee, and commissions so determined and due such employees shall be subject to the provisions of section one hundred and fifty.” G. L. c. 149, § 148, fourth par. The second paragraph of G. L. c. 149, § 150, as appearing in St. 2008, c. 80, § 5, states, in relevant part: “An employee claiming to be aggrieved by a violation of [section] . . . 148 . . . may, 90 days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, and within 3 years after the violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits. An employee so aggrieved who prevails in such an action shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of the litigation and reasonable attorneys’ fees” (emphasis supplied). The judge stated: “Members of the jury, counsel were both kind enough to remind me that I neglected to read in some agreed-upon facts. These are facts that both sides agree upon and are not in dispute, and you accept these as true for the case. It’s agreed that the plaintiff . . . filed a nonpayment of wage complaint with the Attorney General of the Commonwealth regarding the commissions he alleges are owed to him by the company, and he received a ‘private right to sue’ letter from the Attorney General’s office.” Even without express incorporation of the parties’joint pretrial memorandum in the pretrial order (see Mass.R.Civ.P. 16 and Superior Court Standing Order 1-88), implicit approval appears from the fact that the pretrial memorandum was executed prior to the date of the pretrial conference, the pretrial memorandum was submitted to the judge on the date of the pretrial conference, and the judge set a trial date without the need for further memoranda. The judge was correct to deem the pretrial memorandum effective as a stipulation of fact that binds the stipulating parties; it serves, therefore, to establish the facts contained therein without the need for further proof. See Stuart v. Brookline, 412 Mass. 251, 254-255 (1992); New England Legal Foundation v. Boston, 423 Mass. 602, 609 n.7 (1996); Sisk v. Assessors of Essex, 426 Mass. 651, 655 n.7 (1998); Reliable Sewing Mach. Co. v. Price Sewing Mach. Co., 5 Mass. App. Ct. 807, 808 (1977); Metropolitan Credit Union v. Matthes, 46 Mass. App. Ct. 326, 330-332 (1999). The judge stated: “[Tjhat’s an agreed-upon fact, counsel. ... I have a duty to read this into evidence. Actually, it’s an agreed-upon fact in the pretrial memo. That’s more the court’s omission. So I’m going to deny [Medical’s objection and motion for directed verdict] on that ground. I will read that stipulation into evidence. That’s an admission. I always address that. And I’m going to reopen the case — the plaintiff’s case to allow that. I should have — I always have the pretrial memo to read that in.” We note that Okerman was decided prior to the 2008 amendment to § 150, which, as discussed supra, made mandatory an award of treble damages. That the trebling of damages for the nonpayment of commissions was reserved to a judge’s discretion under the prior version of the statute is of no moment here; an award of treble damages, whether in an exercise of discretion or mandatorily, is nevertheless punitive. See Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 178-179 (2000); DeSantis v. Commonwealth Energy Sys., 68 Mass. App. Ct. 759, 768 (2007).

Charles Edward Crocker & another vs. Townsend Oil Company, Incorporated, & others. Essex. September 4, 2012. December 17, 2012. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Massachusetts Wage Act. Practice, Civil, Statute of limitations. Limitations, Statute of. Employment, Severance agreement. Contract, Employment, Release from liability. Release. This court concluded that employees’ claims for unpaid overtime compensation, although barred by the two-year statute of limitations under G. L. c. 151, § 20A, could nevertheless be asserted under the Wage Act, G. L. c. 149, §§ 148 and 150, limited, however, to recovery of uncompensated time worked at the regular rate, subject to the three-year statute of limitations under the Wage Act. [5-7] In a civil action brought in Superior Court in which the plaintiff home heating oil delivery truck drivers contended that they were owed compensation based on their proper classification as the defendant’s employees, under the Wage Act, G. L. c. 149, §§ 148 and 150, rather than as independent contractors, the statute of limitations was not tolled by operation of the discovery rule, where, given the express restrictions and requirements contained in the contract carrier agreements between the parties, the plaintiffs were possessed of all facts necessary to conclude that they might qualify as employees [7-8]; or by fraudulent concealment, where the facts surrounding the nature of the employment relationship were known to all parties at all relevant times [8-10]; further, the continuing violation doctrine did not extend to the plaintiffs’ claims, and accordingly, recovery was limited to those damages that occurred within the three-year period prior to the filing of the complaint [10-12]. This court concluded that a settlement or contract termination agreement by an employee that includes a general release purporting to release all possible existing claims will be enforceable as to the statutorily provided rights and remedies conferred by the Wage Act, G. L. c. 149, §§ 148 and 150, only if so stated in clear and unmistakable terms, i.e., the release must be plainly worded and understandable to the average individual and specifically refer to the rights and claims under the Wage Act that the employee is waiving. [12-15] Civil action commenced in the Superior Court Department on December 18, 2009. The case was heard by Howard J. Whitehead, J., on a motion for summary judgment; a motion to vacate entry of summary judgment was heard by David A. Lowy, J.; motions to amend the complaint and for summary judgment were heard by Howard J. Whitehead, J.; and the matter was reported by Timothy Q. Feeley, J., to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Valeriano Diviacchi for the plaintiffs. Kurt B. Fliegauf for the defendants. Joseph Barrasso. Mark Townsend and Jim Townsend. Cordy, J. In this case, we consider an employment dispute arising under G. L. c. 149, §§ 148 and 150 (Wage Act), between the defendant, Townsend Oil Company, Incorporated (Townsend), a home heating oil company, and the plaintiffs, Charles Edward Crocker (Crocker) and Joseph Barrasso (Barrasso), two former delivery truck drivers. The plaintiffs contend that they are owed compensation (including overtime pay) based on their proper classification as “employees” (rather than independent contractors) under the Wage Act. Townsend responds that the plaintiffs’ claims are barred by the statute of limitations and, alternatively, that a general release contained in contract termination agreements entered into by the parties nevertheless defeats the plaintiffs’ Wage Act claims. A Superior Court judge stayed the proceedings and reported the statute of limitations and general release issues that had previously been the subject of rulings in that court to the Appeals Court pursuant to Mass. R. Civ. R. 64, as amended, 423 Mass. 1410 (1996). We transferred the case to this court on our own motion. We conclude that the statute of limitations applicable to the Wage Act claims does not bar the plaintiffs from recovering compensation earned for the hours they worked, including the overtime hours they worked but for which they were not paid, only during the three years preceding the filing of suit. Because the claims are not completely barred, we also reach the more substantive question, whether a general release contained in a termination agreement operates to release an employee’s Wage Act claims. In light of the important public policy considerations underlying the Wage Act, we conclude that although claims arising thereunder may be released retrospectively as part of a settlement agreement, such a release is valid only if it is voluntary and knowing, and, more specifically, absent express language that Wage Act claims are being released, a general release is ineffective to waive them. 1. Background. Townsend is a Massachusetts corporation in the business of delivering home heating oil to customers throughout northeastern Massachusetts. It employs drivers to operate the company’s delivery trucks; these drivers are paid by the hour and receive overtime pay when applicable. In addition, Townsend also hires independent contractors to work as delivery drivers. These drivers are paid based on the amount of oil they deliver to customers and do not receive an hourly wage or overtime pay from Townsend. The independent contractors are required to purchase and maintain their own delivery trucks at their own expense, but those trucks must bear Townsend’s insignia. All drivers, whether employees or independent contractors, deliver oil to Townsend customers according to Townsend’s delivery schedule and at prices set by Townsend. The plaintiffs were putatively hired by Townsend as independent contractor delivery drivers. Crocker was hired in 1999; Barrasso was hired in 2002. The plaintiffs each signed a contract carrier agreement with Townsend that established the terms of their relationships. Those agreements essentially required the plaintiffs to work full time delivering oil for Townsend and also contained noncompete clauses preventing the plaintiffs from delivering oil for other companies. The agreements were later amended when Barrasso and Crocker each incorporated their respective delivery businesses; the new agreements were between Townsend and the plaintiffs’ separate corporate identities rather than the plaintiffs in their individual capacities. In January, 2007, Townsend sought to terminate Barrasso’s agreement, and the parties ultimately signed a contract carrier termination agreement that included reciprocal general releases of claims. In April, 2007, Crocker signed a substantially identical termination agreement. The plaintiffs each received payments of several thousand dollars in exchange for signing the agreements. The plaintiffs both claim that at no point during negotiation or signing of the termination agreement were they aware that they might be considered employees entitled to Wage Act rights. The plaintiffs filed their complaint on December 18, 2009, on learning of a similarly situated delivery truck driver who had recovered against Townsend under the Wage Act. See Amero vs. Townsend Oil Co., Essex Superior Court, No. ESCV2007-01080 (Dec. 3, 2008). The plaintiffs’ counsel moved to withdraw shortly thereafter. During this same period, Townsend filed a motion for summary judgment that was allowed (summary judgment judge). The plaintiffs subsequently retained new counsel and moved to vacate the entry of summary judgment. A second judge allowed the motion to vacate, concluding that the language of the Wage Act barring special contracts from exempting employers from its requirements invalidated the general releases as they related to the plaintiffs’ Wage Act claims. Thereafter, the plaintiffs moved to amend the complaint to assert new claims against Townsend for violations of the Americans with Disabilities Act (42 U.S.C. §§ 12131 et seq. [2006]). Townsend opposed the motion and filed a second motion for summary judgment arguing that the lawsuit was time barred. The motions were heard by the summary judgment judge, who denied the plaintiffs’ motion to amend based on futility, but allowed in part Townsend’s motion for summary judgment on the ground that any claim relating to conduct that occurred more than three years prior to the filing of the suit was time barred. 2. Discussion. The respective decisions that (1) the statute of limitations bars the plaintiffs’ recovery except insofar as it relates to compensation earned (including compensation for overtime hours worked) but not paid during the three years preceding the filing of suit and (2) the general release failed to release the plaintiff’s Wage Act claims due to the broad scope of § 148 are legal conclusions that we review de novo. See Rit-ter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003). a. Statute of limitations. Assuming that the plaintiffs were at all times operating as Townsend’s employees, a matter not contested for purposes of the present appeal, we turn to the first of the two reported issues. Specifically, we consider whether the motion judge correctly concluded that the statute of limitations bars the plaintiffs’ Wage Act claims except as they relate to compensation earned but not paid during the three years preceding the filing of the suit. To answer this question, we must address three subissues: (1) whether an employee is entitled to maintain an action for unpaid overtime under the Wage Act (governed by a three-year statute of limitations), rather than under the overtime provisions of G. L. c. 151, § 1A (governed by a two-year statute of limitations); (2) whether the statute of limitations was tolled by operation of the discovery rule or fraudulent concealment; and (3) whether, where there are Wage Act violations within the statute of limitations period, the plaintiffs can recover for Wage Act violations occurring outside the limitations period on a theory of continuing violation. We consider each issue in turn. General Laws c. 151, § 1A, sets forth the statutory requirements for overtime pay, including the right of an employee to receive compensation at a rate not less than one and one-half times his regular rate for work in excess of forty hours per work week. General Laws c. 151, § 20A, provides that a cause of action for the nonpayment of overtime (as required by § 1A) must be brought within two years of the date it accrues. The summary judgment judge, however, concluded that the plaintiffs could nevertheless recover for unpaid wages and overtime under the Wage Act, which requires employers to make timely payment of wages to employees and has a three-year statute of limitations. Thus, his decision suggests that the plaintiffs may recover unpaid overtime under either G. L. c. 151, § 1A, or the Wage Act. Townsend argues that allowing the plaintiffs to assert claims for unpaid overtime under the Wage Act has the practical effect of obviating the Legislature’s determination that a shorter limitations period should apply for unpaid overtime claims under G. L. c. 151, § 1A. In support of this argument, Townsend cites Mogilevsky v. Bally Total Fitness Corp., 263 F. Supp. 2d 164 (D. Mass. 2003), in which a Federal District Court judge concluded that a plaintiff (who brought his claim beyond the two-year statute) could recover for any unpaid overtime, but only at the standard rate, not the overtime rate, because to decide otherwise “would essentially eviscerate the distinction between the two-year statute of limitations for the failure to pay overtime hours at the overtime rate, [G. L.] c. 151, § 20A, and the three-year statute of limitations for the failure to pay wages altogether, [G. L.] c. 149, § 150.” Id. at 169-170. We agree with the reasoning in Mogilevsky v. Bally Total Fitness Corp., supra, that an employee whose claim for unpaid overtime is barred by the two-year statute of limitations may nevertheless assert a claim for unpaid wages under the Wage Act. However, in such instance, recovery is limited to uncompensated time worked at the regular rate. That is, if the two-year statute of limitations has elapsed, the employee is not entitled to the premium overtime rate under G. L. c. 151, § 1A. This holding strikes a balance between the Legislature’s intent behind the Wage Act that employees receive timely payment of wages, American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 147 (1959), and the Legislature’s intent to draw a nominal distinction between overtime wages and regular wages by establishing different statute of limitations periods. Mogilevsky v. Bally Total Fitness Corp., supra. As it pertains to the present dispute, although the plaintiffs’ overtime claims brought under G. L. c. 151, § 1A, are barred by the two-year statute of limitations, the plaintiffs may still recover for unpaid overtime work at the regular rate under the Wage Act, subject to the three-year statute of limitations. Next, we consider whether the three-year statute of limitations period was tolled either by the discovery rule or by reason of fraudulent concealment. We conclude that despite their characterization as independent contractors in the contractor carrier agreements that they (and their corporate entities) signed with Townsend, the plaintiffs were aware of all of the operative facts necessary to support their later claim that they were in fact Townsend’s employees. Similarly, because Townsend did not fraudulently conceal the plaintiffs’ status as employees, the statute of limitations was not tolled. Under the discovery rule, limitations periods in Massachusetts run from the time a plaintiff discovers, or reasonably should have discovered, the underlying harm (here, the plaintiffs’ mis-classification as independent contractors) for which relief is sought. Passatempo v. McMenimen, 461 Mass. 279, 293-294 (2012), quoting Koe v. Mercer, 450 Mass. 97, 101 (2007). Under the Wage Act, a person (like each of the plaintiffs) who performs services for another is presumed to be an employee unless: “(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and (2) the service is performed outside the usual course of the business of the employer; and, (3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.” G. L. c. 149, § 148B. Here, based on the express restrictions and requirements contained in the contract carrier agreements, the plaintiffs were possessed of all facts necessary to reach the conclusion that they might qualify as employees. As such, the discovery rule did not operate to toll their Wage Act claims. Alternatively, the plaintiffs argue that Townsend fraudulently concealed their status as employees in order to avoid paying them wages due to them under the Wage Act and that Townsend’s alleged fraudulent concealment tolls the statute of limitations. We disagree. “[W]hen a defendant fraudulently conceals a cause of action from the knowledge of a plaintiff, the statute of limitations is tolled under G. L. c. 260, § 12, for the period prior to the plaintiffs’ discovery of the cause of action.” Salvas v. WalMart Stores, Inc., 452 Mass. 337, 375 (2008), quoting Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 519 (1997) {Demoulas).* In such instances, the statute of limitations begins to run when the plaintiff has actual knowledge of the wrong giving rise to his cause of action. Demoulas, supra. Furthermore, “[ajbsent a fiduciary or other special duty . . . active fraud is ordinarily required to prove fraudulent concealment.” Salvas v. Wal-Mart Stores, Inc., supra at 375-376. There are no facts alleged to support the plaintiffs’ contention that Townsend actively concealed or misrepresented any of the circumstances regarding the plaintiffs’ employment. Townsend’s attempt to exercise a higher level of control in some areas of the relationship (e.g., the delivery schedules), while eschewing similar control where it would be less financially expedient (e.g., the plaintiffs were required to provide and maintain a working delivery truck), is not itself evidence of misrepresentation or concealment. Townsend’s behavior in this regard is ambivalent at best. On the one hand, it might suggest that Townsend itself was unaware that plaintiffs might actually qualify as employees. On the other hand, assuming Townsend knew that the plaintiffs might misunderstand their employment status, Townsend in no way attempted to conceal from the plaintiffs the requisite information from which they might conclude they were in fact employees. The facts surrounding the nature of the employment relationship were known to all parties at all relevant times. See Stetson v. French, 321 Mass. 195, 198 (1947) (“cause of action is not concealed from one who has knowledge of the facts that create it”). See also Lynch v. Signal Fin. Co., 367 Mass. 503, 507-508 (1975); Brackett v. Perry, 201 Mass. 502, 505 (1909). Accordingly, the statute of limitations did not toll due to fraudulent concealment pursuant to G. L. c. 260, § 12. Contrast Manufacturers’ Nat’l Bank v. Perry, 144 Mass. 313, 314 (1887) (defendant through his agent actively concealed bank’s overpayment on check); First Mass. Turnpike Corp. v. Field, 3 Mass. 201, 207-208 (1807) (in contract to build road for plaintiffs, defendants concealed unsound foundation and poor quality of work and materials). Our conclusion that the statute of limitations was not tolled brings us to the final subissue, whether the plaintiffs’ damages are limited to those arising from Townsend’s tortious failure to pay wages accruing within the three-year period immediately prior to the filing of the complaint. We conclude that they are so limited. We begin with the following general proposition concerning damages occurring outside an applicable statute of limitations period: “The plaintiff who suffers damage down to the date of the commencement of the action may recover for all damage incurred within the applicable period of the statute of limitations, but if the [tort] has perdured for a period longer than the allowable period for bringing an action, the plaintiff is barred from recovering damages for the time antedating the allowable period, though his action is not barred. The continuing nature of the wrong keeps alive the right to bring the action, but damages are recoverable only for that period within which the statute otherwise permits the commencement of an action” (emphasis added). J.R. Nolan & B. Henry, Civil Practice § 15.6, at 358 (3d ed. 2004), and cases cited. By contrast, in certain discrimination cases arising under G. L. c. 151B, § 4, we have held that the continuing violation doctrine permits plaintiffs to recover for damages occurring outside the limitations period as long as “there is a discrete violation within the [statute of] limitations period to anchor the earlier claims.” Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 532 (2001). “This exception recognizes that some claims of discrimination involve a series of related events that have to be viewed in their totality in order to assess adequately their discriminatory nature and impact.” Id. at 531. In such instances, unless a complainant reasonably should have been aware of the discriminatory employment actions, a complaint is considered to be timely filed even though “some, or a large portion, of the discriminatory conduct may have taken place more than six months prior to the complaint.” Id. at 532. However, in Silvestris v. Tantasqua Regional Sch. Dist., 446 Mass. 756, 769 (2006), we specifically declined to extend the continuing violat

Edward Melia vs. Zenhire, Inc., & another. Suffolk. January 3, 2012. May 8, 2012. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Contract, Employment, Choice of forum clause. Massachusetts Wage Act. Practice, Civil, Choice of forum, Motion to dismiss. In a civil action alleging a violation of the Massachusetts Wage Act, G. L. c. 149, §§ 148 and 150 (Wage Act), the judge properly granted the defendant employer’s motion to dismiss, where a forum selection clause in the employment contract at issue, which dictated that all disputes arising out of the contract or employment relationship were to be resolved in courts situated in New York, was enforceable under New York law and the plaintiff had not alleged any unfairness that would compel this court to reject the parties’ choice of a foreign forum [168-169]; where public policy did not prevent application of the forum selection clause to Wage Act claims [169-173]; and where, although a forum selection clause that, in operation, would deprive an employee of substantive rights guaranteed by the Wage Act would violate public policy and would be unenforceable, this court was persuaded that a New York court, applying New York’s choice-of-law rules, would apply Massachusetts law in this case [173-181]. Statement of recognition of a presumption that forum selection clauses in employment contracts are enforceable with respect to claims under the Massachusetts Wage Act, G. L. c. 149, §§ 148 and 150, and a description of the evidence that a party seeking to rebut such a presumption must produce. [181-182] Civil action commenced in the Superior Court Department on May 1, 2009. A motion to dismiss was heard by Paul E. Troy, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John P. Carr (Christine Ann Faro with him) for the plaintiff. Daniel S. Field for the defendants. Benjamin G. Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. Robert H. Fritzinger. Edward Melia’s complaint also named Deborah Fritzinger as a defendant, but in his opposition to the defendants’ motion to dismiss, Melia waived his claims against her and she is not a party to this appeal. Cordy, J. In April, 2007, the plaintiff, Edward Melia, a Massachusetts resident, entered into an executive employment contract with the defendant Zenhire, Inc. (Zenhire). A forum selection clause dictated that all disputes arising out of the contract or the employment relationship were to be resolved in courts situated in Erie County, New York, Zenhire’s principal place of business. Zenhire allegedly failed to pay Melia’s salary from August, 2007, through February, 2008. Melia commenced the present action in the Superior Court, alleging breach of contract, fraud, quantum meruit, and violations of the Massachusetts Wage Act, G. L. c. 149, §§ 148, 150 (Wage Act). With respect to the latter claim, Melia contended that the forum selection clause operated as a “special contract” that impermissibly exempted his employer from the requirements of the Wage Act. A judge in the Superior Court granted the defendants’ motion to dismiss, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), reasoning that Melia could pursue his Wage Act claim in New York. Melia appealed, and we transferred the case to this court on our own motion. We conclude that a forum selection clause operates as a special contract only when three conditions are met: the employee’s claim is covered by the Wage Act; the court of the forum State, applying its choice-of-law principles, would choose a law other than that of Massachusetts to govern the dispute; and application of the foreign law will deprive the employee of a substantive right guaranteed by the Wage Act. Under modem choice-of-law doctrines, these conditions will rarely coincide. On the facts alleged in the present case, a New York court, applying New York’s choice-of-law doctrine, would certainly apply the Wage Act to this dispute. Because enforcement of the fomm selection clause would not deprive Melia of the protections of the Wage Act, we affirm the judge’s dismissal of the action. 1. Background. In reviewing a dismissal under mle 12 (b) (6), we may consider the allegations in the complaint, items appearing in the record, and exhibits attached to the complaint. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000), quoting 5A C.A. Wright & A.R. Miller, Federal Practice and Procedure § 1357, at 299 (1990). We accept as true the factual allegations in the complaint, as well as any favorable inferences drawn therefrom. Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). Zenhire is a Delaware corporation with a principal place of business in Amherst, New York, a suburb of Buffalo. Zenhire was founded in 2003 to develop Internet-based tools and services for the recruiting industry. The defendant Robert H. Fritzinger, a New York resident, was at all pertinent times Zenhire’s president and chief executive officer. On April 2, 2007, Melia and Zenhire entered into an executive employment contract, pursuant to which Zenhire hired Melia as its vice-president of product and business development. Melia accepted a three-year period of employment with automatic renewal of additional one-year terms, unless either party objected. Zenhire reserved the right to terminate Melia at any time for cause. Zen-hire agreed to compensate Melia with an initial base salary of $150,000. Melia was also eligible to participate in an executive bonus plan and a stock option plan. The contract contained choice-of-law and forum selection clauses, as follows: “This agreement shall be binding upon the parties hereto, and shall be governed and construed in accordance with the laws of the State of New York. Further, Company and Employee (i) agree that any and all disputes arising out of this Agreement or the employment relationship created thereby shall be resolved in the courts situated in the State of New York, County of Erie and (ii) consent to the venue of all courts situated in the State of New York, County of Erie.” Melia worked out of an office in Boston. At the inception of the contract, he regularly spent time in the Buffalo area, but at all times he resided in Boston. Melia conducted meetings with prospective customers of Zenhire only in Massachusetts. Zen-hire withheld Massachusetts income taxes, paid Massachusetts unemployment insurance, and obtained Massachusetts workers’ compensation insurance for Melia’s benefit. Through August 29, 2007, both parties performed their obligations under the contract. Zenhire then experienced financial difficulties and stopped paying Melia. On September 28, 2007, Fritzinger told Melia that he was finalizing a deal that would provide Zenhire with financing. On November 16, 2007, Fritz-inger again confirmed that Zenhire would compensate Melia for his work. Melia alleges he continued performing his duties pursuant to the contract through February, 2008, relying on Zenhire’s repeated promises to compensate him. In February, 2008, Melia alleges he was forced to leave Zenhire for financial reasons and began to collect unemployment compensation. As of the end of February, 2008, Melia was allegedly owed $103,400, including unpaid wages of $75,000, vacation and sick day wages, severance pay, and unreimbursed expenses. In September, 2008, Melia filed a complaint with the Attorney General with respect to Zenhire’s alleged violation of the Wage Act. The Attorney General granted Melia the authority to file a civil action against Zenhire. Melia then commenced the present action in the Superior Court in May, 2009, against Zenhire, Fritz-inger, and Deborah Fritzinger (Fritzinger’s wife and a director of Zenhire), alleging violation of the Wage Act, breach of contract, quantum meruit, and fraud. The defendants moved to dismiss the entire action on the basis of the forum selection clause, and they also moved to dismiss each count on specific grounds. Melia voluntarily waived his claims against Deborah Fritzinger (see note 1, supra) and the count claiming quantum meruit. The judge initially denied the defendants’ motion to dismiss Melia’s Wage Law claim, based on his understanding that the contract’s choice-of-law provision called for application of New York law to all counts. He further concluded that application of New York’s Payment of Wages Law, which was less protective of employees than the Wage Act, would conflict with fundamental Massachusetts policy. Consequently, the judge concluded that the forum selection clause would be unfair and unreasonable to Melia. The defendants moved for reconsideration. After considering arguments from both parties, the judge reversed his prior ruling with respect to the forum selection clause, holding that enforcement of the forum selection clause was fair and reasonable because there was no evidence of fraud, duress, or substantial imbalance of bargaining power between the parties; and that a New York court would engage in the same choice-of-law analysis as a Massachusetts court, and “may apply” the Wage Act to Melia’s claims. Melia appealed. 2. Validity of the forum selection clause in general. We first examine the validity of the forum selection clause irrespective of the Wage Act claim. Because the contract states that it is to be governed and construed according to the laws of New York, we determine the validity of the forum selection clause according to the law of our sister State. See Jacobson v. Mailboxes Etc. U.S.A., Inc., 419 Mass. 572, 575 (1995). Like Massachusetts courts, see id. at 574-575, New York courts consider forum selection clauses to be “prima facie valid and enforceable unless shown by the resisting party to be unreasonable.” Brooke Group Ltd. v. JCH Syndicate 488, 87 N.Y.2d 530, 534 (1996), citing The Bremen v. Zapata Offshore Co., 407 U.S. 1, 15-18 (1972). A “forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.” Adler v. 20/20 Cos., 82 A.D.3d 918, 919 (N.Y. 2011), and cases cited. “Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes.” Boss v. American Express Fin. Advisors, Inc., 6 N.Y.3d 242, 247 (2006), quoting Brooke Group Ltd. v. JCH Syndicate 488, supra. New York courts have enforced broadly worded forum selection clauses to dismiss statutory causes of action arising from the employment relationship. Boss v. American Express Fin. Advisors, Inc., supra at 245-247 (requiring plaintiffs to litigate alleged violations of N.Y. Lab. Law § 193 [McKinney 2009] [impermissible deduction from wages] and § 198-c [McKinney 2009] [failure to pay wages] in Minnesota); Adler v. 20/20 Cos., supra at 920 (requiring plaintiffs to litigate alleged violation of N.Y. Lab. Law § 215 [McKinney 2012 Supp.] [prohibiting retaliation] in Texas). In the present case, the forum selection clause is enforceable under New York law. Melia has not demonstrated, or even argued, that litigating his claims in New York would be unreasonable, unjust, or for all practical purposes deprive him of his day in court. The forum selection clause is broadly worded to cover “all disputes arising out of this Agreement or the employment relationship created thereby.” Under New York law, this clause encompasses all of Melia’s claims, including the alleged statutory violation. Finally, Melia has not alleged any unfairness that would compel this court to reject the parties’ choice of a foreign forum, such as fraud, duress, the abuse of economic power, or any other unconscionable means. See Cambridge Biotech Corp. v. Pasteur Sanofi Diagnostics, 433 Mass. 122, 130 n.8 (2000); Jacobson v. Mailboxes Etc. U.S.A., Inc., supra at 575 n.5. We conclude that the forum selection clause is prima facie valid and enforceable. 3. Validity of forum selection clauses for claims under the Wage Act. Melia argues that even if a forum selection clause is generally enforceable, public policy should prevent its application to Wage Act claims. According to Melia, the enforcement scheme and policy of the Wage Act dictate that a Massachusetts forum should always be available to aggrieved employees. We reject Melia’s argument. Although the Wage Act does embody fundamental public policy, nothing in the Wage Act’s text or structure suggests that enforcement must always be available in Massachusetts. We begin by reviewing the history, policy, and enforcement mechanisms of the Wage Act. The Wage Act requires “every person having employees in his service” to pay “each such employee the wages earned” within a fixed period after the end of a pay period. G. L. c. 149, § 148. The purpose of the Wage Act is “to prevent the unreasonable detention of wages.” Boston Police Patrolmen’s Ass’n v. Boston, 435 Mass. 718, 720 (2002), citing American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 147 (1959). “The statute was intended and designed to protect wage earners from the long-term detention of wages by unscrupulous employers as well as protect society from irresponsible employees who receive and spend lump sum wages.” Cumpata v. Blue Cross Blue Shield of Mass., Inc., 113 F. Supp. 2d 164, 167 (D. Mass. 2000), citing American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., supra. The Wage Act provides for both public and private enforcement. The Attorney General may initiate a civil complaint against any person for a violation of the Wage Act. G. L. c. 149, § 150. An employee may also file a complaint with the Attorney General; if the Attorney General grants leave or fails to commence an action within ninety days, the employee may “institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits.” Id. An employee who prevails in a private action shall be awarded treble damages, costs, and attorney’s fees. Id. The Wage Act also provides for criminal penalties of varying severity, depending on whether the violation was wilful and whether there were subsequent offenses, up to imprisonment for two years and a fine of $50,000. G. L. c. 149, § 27C. The Wage Act proscribes “special contracts” that exempt employers from its provisions. In a provision of the Wage Act first appeared in St. 1896, c. 241, § 1, the Legislature decreed that “[n]o person shall by a special contract with an employee or by any other means exempt himself from [the Wage Act].” G. L. c. 149, § 148. An agreement to circumvent the Wage Act is illegal even when “the arrangement is voluntary and assented to.” Camara v. Attorney Gen., 458 Mass. 756, 760-761 (2011). Antiwaiver provisions are characteristic of laws that protect fundamental public policy. See, e.g., Bonny v. Society of Lloyd’s, 3 F.3d 156, 160-161 (7th Cir. 1993), cert. denied, 510 U.S. 1113 (1994) (Federal securities laws); Wimsatt v. Beverly Hills Weight Loss Clinics Int’l, Inc., 32 Cal. App. 4th 1511, 1520-1521 (1995) (State franchise investment law). “ ‘Public policy’ in this context refers to a court’s conviction, grounded in legislation and precedent, that denying enforcement of a contractual term is necessary to protect some aspect of the public welfare.” Beacon Hill Civic Ass’n v. Ristorante Toscano, Inc., 422 Mass. 318, 321 (1996). In addition to prohibiting waivers, the Legislature has highlighted the fundamental importance of the Wage Act by repeatedly expanding its protections. Since the enactment of the Wage Act in 1886, St. 1886, c. 87, the Legislature has broadened the scope of employees covered, the type of eligible compensation, and the remedies available to employees whose rights have been violated. That the Wage Act prohibits waivers, however, does not require that private Wage Act claims be adjudicated in Massachusetts. Nowhere does the text of the Wage Act, which refers simply to a “civil action,” guarantee venue in a Massachusetts court. See G. L. c. 149, § 150; Dixon v. Perry & Slesnick, P.C., 75 Mass. App. Ct. 271, 273 (2009) (arbitration provision binding with respect to Wage Act claim). Contrary to Melia’s argument, the private and public enforcement mechanisms of the Wage Act need not be enforceable in identical venues. Melia correctly notes that a forum selection clause cannot bar the Attorney General from commencing an action to enforce the Wage Act in Massachusetts. Cf. Dixon v. Perry & Slesnick, P.C., supra at 276 (arbitration provision cannot prevent enforcement by Attorney General). From this Melia infers that, because an employee seeking to bring a Wage Act claim must first receive approval from the Attorney General, G. L. c. 149, § 150, the employee is acting as a “de facto private attorney general” who must also be permitted to litigate in Massachusetts. Melia’s argument misconstrues the relationship between the Wage Act’s public and private enforcement mechanisms. General Laws c. 149, § 150, merely grants an employee a private right of action. See Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 373 (2008); Smith v. Winter Place LLC, 447 Mass. 363, 368 n.12 (2006). It in no way vests an employee with the standing of the Attorney General. See Carroll v. Marzilli, 75 Mass. App. Ct. 550, 553-555 (2009) (rejecting argument that Massachusetts Civil Rights Act “places private parties in a parallel position to the Attorney General in terms of the enforcement of public rights” by analogizing to private actions for wage and hour violations). An employee may limit his remedies without similarly restraining the Attorney General. Cf. Joulé, Inc. v. Simmons, 459 Mass. 88, 95 (2011) (arbitration clause binds employee but does not restrain Massachusetts Commission Against Discrimination); Dixon v. Perry & Slesnick, P.C., supra. We also reject Melia’s contention that enforcing forum selection clauses would subvert practical enforcement of the Wage Act. Melia argues that it may be difficult for unpaid employees to assert their rights out of State. As noted above, however, the Attorney General always retains the power to enforce the Wage Act in Massachusetts. Should the Attorney General commence an enforcement proceeding, the forum selection clause could not prevent an employee from testifying, providing information, or otherwise participating in such a proceeding. Cf. Joulé, Inc. v. Simmons, supra at 98. Furthermore, as previously discussed, Massachusetts courts will not enforce a forum selection clause that was obtained through duress, abuse of economic power, or other unconscionable means. Jacobson v. Mail Boxes Etc. U.S.A., Inc., 419 Mass. 572, 575 n.5 (1995). By contrast, when sophisticated parties negotiating at arm’s length agree to litigate in a given forum, they presumably are aware of the potential costs of such an agreement. Massachusetts law requires us to respect their wishes. See Cambridge Biotech Corp. v. Pasteur Sanofi Diagnostics, 433 Mass. 122, 133 (2000). 4. Choice-of-law analysis. Finally, and most vigorously, Melia argues that the forum selection clause is unenforceable because the chosen forum may apply a law other than that of Massachusetts. Should the foreign court apply another State’s law that is less protective of employees, the forum selection clause would effectively deprive the employee of substantive rights guaranteed by the Wage Act. The forum selection clause would thus operate as a “special contract,” exempting an employer from the requirements of the Wage Act. G. L. c. 149, § 148. Melia draws support from the uncertainty of the judge regarding the outcome of the choice-of-l