Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1709 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 of 1
2	2	HOUSE DOCKET, NO. 2429 FILED ON: 1/19/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1709
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Tram T. Nguyen
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to further protect employees through a private right of action.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Tram T. Nguyen18th Essex1/19/2023 1 of 5
16	16	HOUSE DOCKET, NO. 2429 FILED ON: 1/19/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1709
18	18	By Representative Nguyen of Andover, a petition (accompanied by bill, House, No. 1709) of
19	19	Tram T. Nguyen for legislation to further protect employees through a private right of action.
20	20	The Judiciary.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Third General Court
24	24	(2023-2024)
25	25	_______________
26	26	An Act to further protect employees through a private right of action.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 SECTION 1. Chapter 149 of the General Laws, as appearing in the 2020 official edition,
30	30	2is hereby amended by adding the following section:-
31	31	3 Section 150D: Private Attorney General Action
32	32	4 Definitions, for this section 150D:
33	33	5 “Interested Party” means any one or more of the following: 1. Any non-profit
34	34	6organization that advocates for employee rights and protections; or 2. Any labor organization
35	35	7which has as members, or is authorized to represent, employees and which exists in whole or part
36	36	8for the purposes of negotiating with employers concerning wages, hours, or terms and conditions
37	37	9of employment of such employer’s employees; or 3. Any Affected Employee.
38	38	10 “Wage Non-payment” means the failure to pay a wage owed to an Affected Employee in
39	39	11violation of any of the following statutes or contract provision: sections 27, 27F-H, 148, 148A, 2 of 5
40	40	12148B, or 150 of the general laws at chapter 149; or section 1, 1A or 1B of the general laws at
41	41	13chapter 151; or any contract provision that required the payment of wages.
42	42	14 “Affected Employee” means any employee or former employee where such employee
43	43	15remains due from an employer any Wage Non-payment whatsoever, regardless as to where or
44	44	16the type of labor was performed.
45	45	17 In addition to all common law, contract, or other remedies available at law, an Interested
46	46	18Party alleging facts that show probable cause that an employer has engaged in or caused a Wage
47	47	19Non-payment shall have standing and be entitled to bring an action in the name of and on behalf
48	48	20of the Commonwealth and the public, for the use and benefit of same, against such employer to
49	49	21recover damages and penalties stated in this section.
50	50	22 A civil action filed under this section shall be deemed a private attorney general action.
51	51	23 The representative nature of such an action on behalf of the Commonwealth is not
52	52	24waivable and shall not be deemed a class action, so long as there is at least a common question of
53	53	25law or fact among at least two Affected Employees. Regardless as to whether any Affected
54	54	26Employee’s claim must be arbitrated, the representative action on behalf of the Commonwealth
55	55	27cannot be waived or compelled to arbitration. Further, the Interested Party bringing such
56	56	28representative claim shall not have to wait for an arbitration decision or award before proceeding
57	57	29in court under this section.
58	58	30 The Interested Party filing an action under this section shall provide a copy of the
59	59	31complaint for the purposes of notice to the attorney general, within 10 business days of the filing.
60	60	32If the Interested Party prevails in the action, the court shall award treble the Wage Non-payment
61	61	33damages, as liquidated damages, to any Affected Employee who has, following a court approved 3 of 5
62	62	34notice of same, responded to the court within 90 calendar days, affirming an interest in a
63	63	35recovery, which notice shall be interpreted liberally to encourage Affected Employees to respond
64	64	36and affirm such an interest.
65	65	37 In addition, the Interested Party may also bring on behalf of the Commonwealth a claim
66	66	38for injunctive and declaratory relief. An Interested Party that prevails in any action filed under
67	67	39this section shall be awarded the costs of the litigation and reasonable attorney fees.
68	68	40 A twenty percent surcharge tax on the total amount awarded by the court, including on
69	69	41attorney fees, in addition to other usual income taxes due, on this recovery shall be paid into a
70	70	42wage enforcement fund established by the attorney general. Such fund shall be used by the
71	71	43attorney general to advance payment pending an action under this chapter and upon the attorney
72	72	44general’s sole and exclusive discretion, to Affected Employees showing urgent need to obtain
73	73	45unpaid wages to pay housing, heat, or food costs.
74	74	46 In addition, the Interested Party who prevails under this section shall be entitled to
75	75	47recover for the Commonwealth penalties, and Wage Non-payments as restitution incurred by
76	76	48each other Affected Employee who did not respond affirming an interest, as follows: For each
77	77	49violation of law, the court shall order the defendant employer to pay into the wage enforcement
78	78	50fund (i) a penalty in the amount of $50 per violation per pay-period for each unresponsive
79	79	51Affected Employee; and (ii) an amount, payable into the wage enforcement fund, equal to single
80	80	52Wage Non-payment damages, as restitution, incurred for all Wage Non-payments that the
81	81	53defendant employer should have paid to each Affected Employee who did not respond timely to
82	82	54a court approved notice affirming an interest in a recovery; the attorney general shall hold in
83	83	55escrow such amounts until the original statute of limitation period applicable against the 4 of 5
84	84	56defendant employer to expire on such restitution obtained in the event the Affective Employee
85	85	57reconsiders, or is located, and seeks the restitution. But, after such limitations period has expired
86	86	58with no such employee claim, the amount shall escheat to the wage enforcement fund. A
87	87	59defendant employer ordered to pay into the wage enforcement fund as single Wage-Nonpayment
88	88	60damages restitution incurred for labor performed by an Affected Employee who failed to affirm
89	89	61an interest in a recovery shall be entitled to a set-off of such amount paid against a future Wage
90	90	62Non-payment or other wage action filed by or on behalf of such Affected Employee, but no set-
91	91	63off shall apply to the $50 per pay period penalty.
92	92	64 An action filed under this section shall be filed within limitation period of the Wage Non-
93	93	65payment at issue, except that where a Wage Non-payment also includes a violation of contract
94	94	66the Interested Party shall be a third-party beneficiary of the contract, including any public
95	95	67procurement contract, and recovery applicable to that portion of the action shall include amounts
96	96	68due within the limitations period set forth under section 2 of the general laws at chapter 260; for
97	97	69such contract action filed beyond the limitation period of the Wage Non-payment at issue
98	98	70liquidated damages shall not be awarded unless the contract recites otherwise and the court may
99	99	71award fees for such contract provision portion of the action in accord with the contract or its
100	100	72discretion.
101	101	73 On the trial no defense for failure to pay as required, other than the attachment of wages
102	102	74by trustee process or a valid assignment thereof or a valid set-off against the same, or the absence
103	103	75of the employee from his regular place of labor at the time of payment, or an actual tender to
104	104	76such employee at the time of payment of the wages so earned by him, shall be valid. The
105	105	77defendant shall not set up as a defense a payment of wages made or offered after the action under
106	106	78this section has been filed. 5 of 5
107	107	79 The superior court shall have jurisdiction to hear an action filed under this section
108	108	80regardless as to the amount in controversy. Any provision in this section found to be
109	109	81unenforceable or invalid shall not affect other provisions in this section which shall remain valid
110	110	82and enforceable.
111	111	83 As a matter of right the attorney general may intervene as a plaintiff at any time, by
112	112	84notice of same filed with the court or may file an appearance to be served all pleadings and
113	113	85discovery for monitoring. In the event that she intervenes, the attorney general shall thenceforth
114	114	86represent the Commonwealth as plaintiff, not the Interested Party. The Interested Party shall
115	115	87retain party status, if it so chooses, for purposes that may include and not be limited to providing
116	116	88opportunity to the Interested Party to raise its interests or concerns including regarding any
117	117	89settlement proposed or to recover, if appropriate, its reasonable costs and fees incurred. The
118	118	90attorney general shall not settle the matter with the defendant without the participation in all
119	119	91settlement communications with the Interested Party who retained party status and without first
120	120	92obtaining such Interested Party’s informed consent which shall not be reasonably withheld.
121	121	93 Nothing in this section shall be deemed as an exclusive remedy and this section shall not
122	122	94affect the rights of the attorney general or any other person to pursue additional or other remedies
123	123	95available by way of other laws or available actions.