A coalition of legal organizations in Boston, including Greater Boston Legal Services (“GBLS”), Justice at Work, the Harvard Legal Aid Bureau (“HLAB”), and Volunteer Lawyers Project, in collaboration with community groups in Boston, is bringing justice to victims of wage theft in Boston Municipal Court (“BMC”) Central’s small claims court. The coalition has engineered an approximation of a specialized court for wage theft there by strategically stacking the court’s docket with wage theft cases on second and fourth Fridays of the month. The goal is to quickly vindicate workers’ rights to wages owed, to increase the literacy of small claims court clerk magistrates in Massachusetts wage law, and ultimately to make the court a better-tapped resource for victims of wage theft. Staff attorneys Joey Michalakes of GBLS and Maggie Gribben of Justice at Work shared some insight on the project.
The first case brought in BMC Central as part of this “wage court” effort was in January 2017. Initially, “wage court” took place once a month for two months in a row. By cover letter, attorneys would request that a case be heard on a specific date upon filing the complaint. At the request of court staff, the attorneys split their wage cases up into two days—the second and fourth Fridays of the month.
The principle behind the project is that small claims court is an underutilized but effective venue for workers who have wage theft claims valued at $7,000 or less and who may not have the time or resources to pursue their cases in Massachusetts district court (a state-level trial court, not federal district court). Executive Director of Justice at Work Tom Smith had tested this theory by bringing dozens of cases in small claims courts across the state for years. The result of that experiment? Bringing cases in small claims court is often quicker and simpler than bringing them in district court, from filing complaints to collecting unpaid wages.
Filing complaints in small claims court is easier than in district court, Gribben said, and in some cases the filing of the complaint is all it takes to engage the employer and get the worker what they’re owed. Once the complaint is filed, it usually takes no more than two months for a hearing to be scheduled, Michalakes said. This quick turnover is especially helpful in cases where workers need to get paid quickly (as receiving unpaid wages can mean the difference between paying rent and getting evicted), text message evidence will disappear over time, or taking the day off to go to court will be infeasible once the worker has found a new job. Gribben said quick resolution of wage claims is also important for the collections process—the longer case resolution takes, the more time employers have to move assets, rename their businesses, or “disappear” entirely.
Moreover, small claims court closely monitors the collections process for workers who have prevailed in their claims or who have signed an agreement for judgment with their employer entitling them to damages. The court conducts subsequent payment reviews and facilitates the request of civil arrest warrants to secure payment on a judgment. These processes make monitoring payment to workers in small claims court much more streamlined and intensive than in other forums, including district court.
The trade-off for bringing a worker’s case in small claims court in Massachusetts? There is no option for plaintiffs to appeal judgments, and discovery is only available upon request for good cause shown. But where workers are looking to resolve their claims quickly, their employers have limited payroll records to produce during discovery anyway (which is common in some industries, like residential construction), or there are few witnesses to depose, the advantages of small claims court outweigh its drawbacks. In Michalakes’s experience, the rapidity of the small court process also creates settlement leverage to the worker’s advantage.
Pragmatically, the distinction between filing in district court and small claims court is a strategic one relevant for attorneys; for unrepresented workers, the realistic choice is between filing in small claims court and not filing a case at all. Michalakes has never met a worker who filed in district court pro se, likely because of district court’s additional procedural complexity and cost-prohibitive filing fee. Although the small claims process is faster, simpler, and less expensive than district court, Gribben said language access and literacy are still impediments to the small claims process. Whereas at the Massachusetts Commission Against Discrimination, for example, workers can make a verbal complaint of employment discrimination for free, in small claims court, workers need to fill out a written form, in English, and pay to file. At this point, Michalakes and Gribben know of only three workers who have filed wage theft claims in small claims court pro se.
The coalition anticipates that when workers and their advocates systematically bring wage cases to small claims court twice a month, the magistrates who hear those cases will know and enforce wage law better. In particular, the coalition seeks to have magistrates enforce the pro-worker statutory remedies provided by M.G.L. c. 149 and c. 151 §1B, 20, which entitle a worker who prevails on a wage theft claim to treble damages for lost wages (which can total up to $21,000 in small claims court), costs of litigation, and reasonable attorneys’ fees. Gribben said magistrates seem to understand and respect wage theft claims and have awarded workers treble damages. Gribben said this is especially important in a small claims court that mostly sees debt collection cases, and where most parties settle without a hearing.
The coalition hopes its efforts to consolidate a wage theft docket on particular days will ultimately make the small claims court more accessible to self-represented workers by 1) educating the small claims bench about Massachusetts wage law and 2) making fertile ground for a targeted attorney for the day program. There, legal advocates from Boston-area organizations could provide workers experiencing wage theft with limited assistance representation–from giving legal advice to representing workers in that day’s court proceeding. Such programs exist in the fair debt collection and housing contexts (with a fair debt collection lawyer from the day program every Wednesday and a housing court attorney for the day program every Thursday in BMC Central). The challenge will be in effectively translating a limited legal assistance representation model to help individuals who are opting into litigation as plaintiffs instead of being summoned to court as defendants.
Several community groups in Boston, including Chelsea Collaborative, MassCOSH, and Brazilian Worker Center, are supportive of the effort to create a wage court. Starting in February 2017, Justice at Work has hosted workers, organizers, and advocates from GBLS and HLAB at the Consulate General of El Salvador in East Boston, to connect workers with wage claims to legal help. Community groups also refer workers to these advocates directly. Michalakes said this partnership helps organizers address the systemic issue of wage theft and build a member base while freeing up organizers’ resources. “An individual worker’s case may not be fit to build an organizing campaign around, but community groups still want those workers to get help,” Michalakes said. That’s where wage court comes in.