NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-930

LORI CONVEY1

vs.

COMMONWEALTH OF MASSACHUSETTS & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case arises from a dispute over whether compensation 

is owed pursuant to a collective bargaining agreement (CBA). 

The plaintiffs, who are adult education teachers employed by the 

Department of Correction (DOC), were represented by their union 

in labor negotiations with the defendants. Those negotiations 

resulted in a CBA (2016 CBA) that governed the plaintiffs' 

employment as educators, in part by setting forth an annual 

schedule of work and vacation. Under the 2016 CBA, the 

plaintiffs worked a forty-week school year and enjoyed a summer 

1 Individually and on behalf of all others similarly 

situated.

2 Commissioner of Department of Correction.
2

break from approximately mid-June through Labor Day.3 In August 

2016 however, prior to the expiration of the 2016 CBA or the 

start of the 2016-2017 school year, the union executed a 

memorandum of understanding (MOU) with the defendants that 

altered the schedule for the upcoming 2016-2017 school year so 

that DOC could transition to a full-year academic program. The 

parties subsequently agreed to a new CBA that incorporated the 

changes contemplated in the MOU (2017 CBA). Among the changes 

from the 2016 CBA, the 2017 CBA eliminated four weeks of 

vacation time from the summer of 2017.

In light of the changes, the named plaintiff filed a 

complaint in the Superior Court under the Wage Act, G. L. 

c. 149, §§ 148, 150, on behalf of herself and others similarly 

situated, arguing that they had been denied earned wages that 

were due to them on a prorated basis from July 1 to September 6, 

2017.4 The parties subsequently filed cross motions for summary 

judgment, and, after a hearing, a judge of the Superior Court 

3 The 2016 CBA also required that "[a]side from the summer 

break, academic teachers are required to take the period between 

Christmas Day and New Year's Day off."

4 Prior to filing the complaint in Superior Court, the named 

plaintiff attached her signature to a grievance report alleging 

that the defendants had implemented a transitional school year 

that overlapped with "earned time off with pay" and sought nine 

weeks of owed salary or to be credited with nine weeks of 

compensatory leave. During arbitration proceedings, many of the

teachers who worked during the transitional year accepted a 

settlement, but the named plaintiff did not.
3

denied the plaintiffs' motion for summary judgment and granted 

judgment for the defendants. The plaintiffs appealed. We 

vacate the judgment of the Superior Court.

Discussion. "Summary judgment is appropriate where there 

is no material issue of fact in dispute and the moving party is 

entitled to judgment as a matter of law."5 HSBC Bank USA, N.A. 

v. Morris, 490 Mass. 322, 326 (2022). "Our review of a decision 

on a motion for summary judgment is de novo." Id., quoting 

Berry v. Commerce Ins. Co., 488 Mass. 633, 636 (2021).

"Originally enacted in 1879, the purpose of the Wage Act is 

'to protect employees and their right to wages.'" Mui v. 

Massachusetts Port Auth., 478 Mass. 710, 711 (2018), quoting 

Electronic Data Sys. Corp. v. Attorney Gen., 454 Mass. 63, 70 

(2009). According to the Wage Act, "[e]very person having 

employees in his service shall pay weekly or bi-weekly each such 

employee the wages earned by him. . . . The word 'wages' shall 

include any holiday or vacation payments due an employee under 

an oral or written agreement." G. L. c. 149, § 148, first par.

As we explained in Parris v. Sheriff of Suffolk County, 93 

Mass. App. Ct. 864, 867 (2018):

"The purpose of G. L. c. 149, § 148, is to prevent the evil 

of the unreasonable detention of wages by employers. We 

have consistently held that the legislative purpose behind 

the Wage Act is to provide strong statutory protection for 

5 We agree with the plaintiffs that "[t]he facts of this 

case are not in dispute."
4

employees and their right to wages. Accordingly, waiver of 

Wage Act protections is strongly disfavored. (Quotations, 

citations, alteration, and punctuation omitted.)

"The fundamental public policy against forfeiture of Wage 

Act protections is rooted in the 'special contract' 

provision of the statute, . . . which states, 'No person 

shall by a special contract with an employee or by any 

other means exempt himself from this section or from [G. L. 

c. 149, § 150].' G. L. c. 149, § 148."

Under G. L. c. 150E, unions are the "exclusive 

representative of all the employees . . . for the purpose of 

collective bargaining and are empowered to act on the employees' 

behalf with respect to wages, hours, standards or productivity 

and performance, and any other terms and conditions of 

employment" (quotations and citations omitted). Parris, 93 

Mass. App. Ct. at 868. "[T]he unions possess the right to speak 

exclusively for all the employees on mandatory subjects of 

collective bargaining." Id. However, "[t]he statutory right to 

the timely payment of wages does not involve the collective 

rights of employees but, rather, is designed to insure that each 

individual is paid promptly the wages due him or her." Newton

v. Commissioner of Dep't of Youth Servs., 62 Mass. App. Ct. 343, 

346 (2004). "Although a union has the power to waive statutory 

rights related to collective activity, rights . . . which are of 

a personal, and not merely economic, nature are beyond the 

union's ability to bargain away." Parris, supra at 869, quoting 
5

Blanchette v. School Comm. of Westwood, 427 Mass. 176, 183 

(1998).

Here, the defendants' obligations to the plaintiffs are set 

forth in the various agreements to which both are party. The 

2016 CBA set forth an annual schedule in which the school year 

would begin after Labor Day, include forty weeks of work, and 

conclude at some point in June. A summer break then followed

for approximately nine weeks before the annual academic cycle 

would repeat. We conclude that the 2016 CBA, therefore, 

represented an agreement between the parties that the 2016-2017 

school year would begin on September 6, 2016, and continue until 

June 30, 2017, at which point a nine-week summer break would 

commence before school would resume on September 5, 2017. We 

further conclude that, at the time the plaintiffs completed the 

work required of them under that agreement, the nine weeks of 

vacation promised under the 2016 CBA became protected under the 

Wage Act as "wages earned by [them]."6 G. L. c. 149, § 148, 

first par. See generally Electric Data Sys. Corp., 454 Mass. at 

67-71 (discussing Wage Act protection of promised vacation 

time).

6 The defendants argue that "[v]acation time can form the 

basis of a claim under the Wage Act only if it is due under an 

agreement," but, here, we conclude that the claimed vacation 

time was due to the plaintiffs under the 2016 CBA.
6

The question that remains is whether, as the defendants 

contend, the union effectively bargained away the plaintiffs' 

2017 summer vacation by agreeing to the MOU and subsequent 2017 

CBA. The defendants argue that, because the union agreed to the 

MOU and 2017 CBA, the agreements governing the plaintiffs' 

employment during the period in question did not include the 

claimed vacation time. We conclude, however, that, to the 

extent these agreements abrogated the plaintiffs' right to their 

earned wages in the form of the nine weeks of vacation in 

question, they are "special contracts" proscribed by the Wage 

Act and are therefore unenforceable. Parris, 93 Mass. App. Ct. 

at 869. As we have explained, the Wage Act expressly prohibits 

special contracts abrogating its protections with respect to 

individual rights. G. L. c. 148, § 148, sixth par. See Parris, 

supra at 867. Earned wages are one such right protected by this 

clause, and the plaintiffs' union was not empowered to bargain 

away the plaintiffs' right to the vacation time they earned by 

completing the work due from them during the 2016-2017 school 

year. Id. at 869. To do so constituted the disposal of 

individual rights under the Wage Act, which our precedent 

prohibits. Id.; Newton, 62 Mass. App. Ct. at 347. 

We are unpersuaded by the defendants' argument that the 

cases on which we have relied to reach this conclusion are 

inapposite because they deal with the right to earned wages, as 
7

opposed to vacation time, because vacation time due under a 

contract counts as wages per the express language of the 

statute. G. L. c. 149, § 148, first par. As we explained 

supra, the vacation time at issue here was due under the terms 

of the 2016 CBA. Accordingly, the judgment of the Superior 

Court is vacated. The case is remanded for a determination of 

damages owed to the plaintiffs under the Wage Act.7

So ordered.

By the Court (Rubin, 

Massing & Desmond, JJ.8),

Assistant Clerk

Entered: May 14, 2024.

7 The defendants also argue that the plaintiffs are 

collaterally estopped from arguing that they are owed nine weeks 

of vacation under the 2016 CBA because an arbitrator already 

determined that issue in a final judgment to which the 

plaintiffs' union was a party. However, the payment of earned 

wages is an individual right that can be enforced judicially, 

notwithstanding grievance procedures set forth in a CBA. See 

Parris, 93 Mass. App. Ct. at 869; Newton, 62 Mass. App. Ct. at 

346. Nor do we agree with the defendants that the union's 

acceptance of a settlement agreement bound the named plaintiff 

and all other class members to the terms of that agreement. It 

is undisputed that the named plaintiff did not sign the 

settlement agreement. We decline to enforce the settlement 

agreement against the named plaintiff or any other member of the 

class who did not sign on. See Parris, supra.

8 The panelists are listed in order of seniority.