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HOUSE DOCKET, NO. 1070 FILED ON: 1/18/2023
HOUSE . . . . . . . . . . . . . . . No. 1409
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Peter Capano
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act protecting honest employers by creating construction private attorney general actions.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:Peter Capano11th Essex1/18/2023 1 of 8
HOUSE DOCKET, NO. 1070 FILED ON: 1/18/2023
HOUSE . . . . . . . . . . . . . . . No. 1409
By Representative Capano of Lynn, a petition (accompanied by bill, House, No. 1409) of Peter
Capano relative to creating construction wage theft private attorney general actions. The
Judiciary.
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act protecting honest employers by creating construction private attorney general actions.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 Add a new section 150D to the general laws at chapter 149, which shall read as follows:
2 Section 150D Construction Industry Private Attorney General Action
3 (a)Whereas wage law enforcement and honest bid competition are compelling state
4interest, its police powers for enforcement shall include, but not be limited to, this section:
5 a. Construction Industry employment makes more difficult protecting employees
6against Wage Non-Payment and competing employers against unfair competition based on Wage
7Non-payment, as employees and employers navigate during single pay-periods multiple
8construction sites throughout the Commonwealth and neighboring or other states;
9 b. Most construction firms employ fewer than twelve employees inhibiting
10employees similarly situated to obtain class certification under court rules; 2 of 8
11 c. An employer’s failure to comply with wage payment and related law provides
12competitive advantage that illegally shaves costs resulting in illegally deflated bids to compete
13against honest employers, and such illegal conduct harms competition including by way of
14workers compensation insurance premium evasion –affecting insurance rates and causes payroll
15tax loss to the Commonwealth increasing the public’s tax burdens; and
16 d. Construction Industry higher tier contractors often contract with the lowest price
17bidder; and
18 e. The public is harmed when higher tier contractors subcontract to business
19enterprises or lower tier subcontractors that cheat to compete by failing to fully comply with
20wage payment laws and regulations; and
21 f. The public is harmed when employees lack proper wages on payday, including
22but not limited to the difficulty for an unpaid employee to meet his or her financial obligations
23owed to others in the stream of commerce or marketplace causing public harms that include, for
24example, unpaid rent, mortgages, medical bills and related insurance payments, automobile
25expenses, and other common living expenses; and
26 g. The public is benefited when:
27 i. Construction competition among bidders is based on honest bid competition as
28honesty promotes competition; and
29 ii.An Interested Party pursues wage law compliance on behalf of the
30Commonwealth as it best ensures non-complying construction employers will experience 3 of 8
31exposure and the consequences when they do not pay their statutory and contractual wage related
32obligations.
33 (b)Definitions, for this section 150D:
34 “Construction Industry” shall have the broadest meaning possible to include but not be
35limited to drivers delivering construction material to construction sites for employers who
36primarily deliver such materials, residential contracting services referenced in chapter 142A, and
37any labor performed on private projects that are of a similar type of labor performed on public
38projects governed by section 27.
39 “Construction Industry Employer” means any person who or entity that, within the 5-year
40period preceding the date an action under this section was filed: i) contracted to perform work,
41regardless of contract or subcontract tier level, on a project governed by section 27 of this
42chapter after having submitted a bid for same and who employed employees who performed
43labor under that contract; or ii) contracted to perform construction work located in the
44Commonwealth in excess of $500,000, regardless of contract or subcontract tier level, and
45employed Construction Industry employees who performed labor under that contract.
46 “Interested Party” means any one or more of the following:
47 1. Any Construction Industry Employer;
48 2. Any trustee acting on behalf of an organization or trust established for the
49purposes of the Labor Management Cooperation Act of 1978, 29 U.S.C. section 175a, where
50contributions are made by at least five Construction Industry Employers; 4 of 8
51 3. Any labor organization which has as members, or is authorized to represent,
52employees and which exists in whole or part for the purposes of negotiating with Construction
53Industry Employers concerning wages, hours, or terms and conditions of employment of such
54employer’s employees; or
55 4. Any organization that represents five or more member firms that are Construction
56Industry Employers that employed labor on public works project governed by section 27 of this
57chapter or
58 5. Any Affected Employee.
59 “Wage Non-payment” means the failure to pay a wage owed to an Affected Employee in
60violation of any of the following statutes or contract provision: sections 27, 148, 148A, 148B, or
61150 of the general laws at chapter 149; or section 1A of the general laws at chapter 151; or any
62contract provision that required the payment of wages on a construction project in accord with
63rates required under section 27 of chapter 149.
64 “Affected Employee” means any Construction Industry employee or former employee
65who was employed by an individual or firm named as a defendant employer in an action filed
66under this section where such employee remains due from such defendant any Wage Non-
67payment whatsoever, regardless as to where or the type of labor was performed, provided that a
68substantial part of the Wage Non-payment owed was earned by the employee while performing
69Construction Industry labor as employee of such defendant.
70 (c)Civil Action: In addition to all common law, contract, or other remedies
71available at law, an Interested Party alleging facts that show probable cause that an employer has
72engaged in or caused a Wage Non-payment shall have standing and be entitled to bring an action 5 of 8
73in the name of and on behalf of the Commonwealth and the public, for the use and benefit of
74same, against such employer to recover damages and penalties stated in this section.
75 A civil action filed under this section shall be deemed a private attorney general action.
76 The representative nature of such an action on behalf of the Commonwealth is not
77waivable and shall not be deemed a class action, so long as there is at least a common question of
78law or fact among at least two Affected Employees. Regardless as to whether any Affected
79Employee’s claim must be arbitrated, the representative action on behalf of the Commonwealth
80cannot be waived or compelled to arbitration. Further, the Interested Party bringing such
81representative claim shall not have to wait for an arbitration decision or award before proceeding
82in court under this section.
83 The Interested Party filing an action under this section shall provide a copy of the
84complaint for the purposes of notice to the attorneys general, within 10 business days of the
85filing. If the Interested Party prevails in the action, the court shall award treble the Wage Non-
86payment damages, as liquidated damages, to any Affected Employee who has, following a court
87approved notice of same, responded to the court within 90 calendar days, affirming an interest in
88a recovery, which notice shall be interpreted liberally to encourage Affected Employees to
89respond and affirm such an interest. A twenty percent surcharge tax on the total amount awarded
90by the court-including on attorney fees, in addition to other usual income taxes due, on this
91recovery shall be paid into a wage enforcement fund established by the attorney general. Such
92fund shall be used by the attorney general to enforce wage laws, educate the public, particularly
93employers and employees, about wage law obligations and rights, and when the attorney general
94deems the fund is sufficiently funded, to advance some payment by loan pending an action under 6 of 8
95this section and upon the attorney general’s sole and exclusive discretion, to an Affected
96Employee showing urgent need to obtain unpaid wages to pay housing, heat, or food costs.
97 In addition, the Interested Party who prevails under this section shall be entitled to
98recover for the Commonwealth penalties, and Wage Non-payments as restitution incurred by
99each other Affected Employee who did not respond affirming an interest, as follows: For each
100violation of law, the court shall order the defendant employer to pay into the wage enforcement
101fund (i) a penalty in the amount of $50 per violation per pay-period for each unresponsive
102Affected Employee; and (ii) an amount, payable into the wage enforcement fund, equal to single
103Wage Non-payment damages, as restitution, incurred for all Wage Non-payments that the
104defendant employer should have paid to each Affected Employee who did not respond timely to
105a court approved notice affirming an interest in a recovery; the attorney general shall hold in
106escrow such amounts until the original statute of limitation period applicable against the
107defendant employer to expire on such restitution obtained in the event the Affective Employee
108reconsiders and seeks the restitution. But, after such limitations period has expired with no such
109employee claim, the amount shall escheat to the wage enforcement fund. A defendant employer
110ordered to pay into the wage enforcement fund as single Wage-Nonpayment damages restitution
111incurred for labor performed by an Affected Employee who failed to affirm an interest in a
112recovery shall be entitled to a set-off of such amount paid against a future Wage Non-payment or
113other wage action filed by or on behalf of such Affected Employee, but no set-off shall apply to
114the $50 per pay period penalty. In addition, the Interested Party may also bring on behalf of the
115Commonwealth a claim for injunctive and declaratory relief. An Interested Party that prevails in
116any action filed under this section shall be awarded the costs of the litigation and reasonable
117attorney fees. 7 of 8
118 An action filed under this section shall be filed within limitation period of the Wage Non-
119payment at issue, except that where a Wage Non-payment also includes a violation of contract
120the Interested Party shall be a third-party beneficiary of the contract, including any public
121procurement contract, and recovery applicable to that portion of the action shall include amounts
122due within the limitations period set forth under section 2 of the general laws at chapter 260; for
123such contract action filed beyond the limitation period of the Wage Non-payment at issue
124liquidated damages shall not be awarded unless the contract recites otherwise and the court may
125award fees for such contract provision portion of the action in accord with the contract or its
126discretion.
127 On the trial no defense for failure to pay as required, other than the attachment of wages
128by trustee process or a valid assignment thereof or a valid set-off against the same, or the absence
129of the employee from his regular place of labor at the time of payment, or an actual tender to
130such employee at the time of payment of the wages so earned by him, shall be valid. The
131defendant shall not set up as a defense a payment of wages made or offered after the action under
132this section has been filed.
133 The superior court shall have jurisdiction to hear an action filed under this section
134regardless as to the amount in controversy. Any provision in this section found to be
135unenforceable or invalid shall not affect other provisions in this section which shall remain valid
136and enforceable.
137 Attorney General Intervention: As a matter of right the attorney general may
138intervene as a plaintiff at any time, including post trial, by notice of same filed with the court or
139may file an appearance to be served all pleadings and discovery for monitoring. In the event that 8 of 8
140she intervenes, the attorney general shall thenceforth represent the Commonwealth as plaintiff,
141not the Interested Party. If the Interested Party shall retain party status, if it so chooses, for
142purposes that may include and not be limited to providing opportunity to the Interested Party to
143raise its interests or concerns including regarding any settlement proposed or to recover, if
144appropriate, its reasonable costs and fees incurred. The attorney general shall not settle the matter
145with the defendant without the participation in all settlement communications with the Interested
146Party who retained party status and without first obtaining such Interested Party’s informed
147consent which shall not be reasonably withheld.
148 Nothing in this section shall be deemed as an exclusive remedy and this section shall not
149affect the rights of the attorney general or any other person to pursue additional or other remedies
150available by way of other laws or available actions.