The Volunteer Lawyers Project of the Boston Bar Association (VLP) works
collectively with the Fair Employment Project (FEP), a non profit whose mission
is to respond to the unmet legal needs of low income workers in the
greater Boston area. FEP screens employment related cases and then refers them
to VLP which refers them to a pro bono attorney. FEP recently received a cy pres
award enabling it to continue its work of making equality and justice in the
workplace a reality. The cy pres doctrine is a method of distributing unclaimed
settlement funds when a class member cannot be found and the original purpose of
those funds therefore cannot be achieved. In class action lawsuits, if a
payment of damages is to be made to class members, a fund is created. After
class members’ claims are paid, a residual amount may remain, and rather than
reverting the wrongdoing defendants, under the doctrine of cy pres, class
counsel can seek and judges can order that residual funds be distributed to the
"next best" use.
"Because its mission is to reduce violations of employee rights by providing
assistance and information to low income workers and their advocates, the FEP is
a fitting recipient of cy pres funds. In addition, the work of the FEP benefits
the broader society by helping to protect and expand legal rights and relief for
employees in the Commonwealth of Massachusetts," said Suzanne Garrow, the
attorney who represented the plaintiffs in this matter.
By using the power the Court has under the Fair Labor Standards Act and the
Massachusetts Rules of Procedure, the Court in this case issued its final
approval order requiring payment of the residual funds in this case to, the Fair
Employment Project, a501(c)(3) organization. The case involved a group of
eighty salespeople, represented by the Springfield, Massachusetts law firm
Heisler, Feldman, McCormick & Garrow. The parties settled the claims
against Wyndham Vacation Resorts, Inc. for the alleged failure of Wyndham to pay
them minimum wage and overtime pay. The salespeople alleged that Wyndham
would require them to appear at their work site and work forty hour weeks, but
failed to pay minimum wage if they did not sell enough time shares that
week. They also alleged that Wyndham did not pay them over time
compensation (their hourly rate plus another half of their hourly rate) when
they worked over forty hours in a week.