Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H3597 Compare Versions

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

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2	2	HOUSE DOCKET, NO. 974 FILED ON: 1/17/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 3597
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	David Henry Argosky LeBoeuf
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 guarantee just cause job security.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:David Henry Argosky LeBoeuf17th Worcester1/17/2023 1 of 19
16	16	HOUSE DOCKET, NO. 974 FILED ON: 1/17/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 3597
18	18	By Representative LeBoeuf of Worcester, a petition (accompanied by bill, House, No. 3597) of
19	19	David Henry Argosky LeBoeuf relative to protecting employees from discharges from
20	20	employment except for just cause. Labor and Workforce Development.
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 guarantee just cause job security.
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. Section 1 of chapter 149 of the General Laws, as appearing in the 2020
30	30	2Official Edition, is hereby amended by striking out, in lines 32 and 40, each time it appears, the
31	31	3word “shall” and inserting in place thereof, in each instance, the following words:- and section
32	32	4105E shall.
33	33	5 SECTION 2. Said chapter 149 is hereby further amended by inserting after section 105D
34	34	6the following section:-
35	35	7 Section 105E. (a) As used in this section the following words, unless a different meaning
36	36	8is required by the context or is specifically prescribed, shall have the following meanings:
37	37	9 “Biometric data”, a physiological, biological or behavioral characteristic, including but
38	38	10not limited to an iris scan, fingerprint, a hand scan, voiceprint and thermal or facial
39	39	11characteristics that can be used alone or in combination with each other, or with other
40	40	12information, to establish individual identity. 2 of 19
41	41	13 “Biometric technology” either or both of the following: (i) a process or system that
42	42	14captures biometric data of an individual or individuals; (ii) a process or system that can assist in
43	43	15verifying or identifying an individual or individuals based on biometric data.
44	44	16 “Bona fide economic reason” the full or partial closing of operations or technological or
45	45	17organizational changes to the business in response to a reduction in volume of production, sales
46	46	18or profit of 15 per cent or more over a period of 2 quarters either at the establishment where the
47	47	19discharge is to occur or across all establishments owned by the employer in within the
48	48	20commonwealth, but shall not include elimination of staff redundancy created by a merger or
49	49	21acquisition.
50	50	22 “Bona fide labor organization” a labor union (i) in which officers have been elected by
51	51	23secret ballot or otherwise in a manner consistent with federal law; and (ii) that is free of
52	52	24domination or interference by any employer and has received no improper assistance or support
53	53	25from any employer.
54	54	26 “Designated community group” a not-for-profit organization or bona fide labor
55	55	27organization that has the capacity to conduct worker outreach, engagement, education and
56	56	28information provision, as determined by the commissioner.
57	57	29 “Discharge” any cessation of employment, including layoff, termination, constructive
58	58	30discharge, reduction in hours and indefinite suspension.
59	59	31 “Electronic monitoring” the collection of information concerning employee activities,
60	60	32communications, actions, biometrics or behaviors by electronic means including, but not limited
61	61	33to, video or audio surveillance, electronic employee work speed data and other means. 3 of 19
62	62	34 “Employee work speed data” information an employer collects, stores, analyzes or
63	63	35interprets relating to an individual employee’s or group of employees’ pace of work, including,
64	64	36but not limited to, quantities of tasks performed, quantities of items or materials handled or
65	65	37produced, rates or speeds of tasks performed, measurements or metrics of employee performance
66	66	38in relation to a quota and time categorized as performing tasks or not performing tasks.
67	67	39Notwithstanding the preceding sentence, it does not include qualitative performance assessments,
68	68	40personnel records or itemized wage statements, except for any content of those records that
69	69	41includes employee work speed data.
70	70	42 “Employer” shall have the meaning ascribed to it by section 1 except that where an
71	71	43employee is employed by a staffing services agency to perform work for a third party client
72	72	44within the third party client’s usual course of business, both the staffing services agency and the
73	73	45third party client shall be jointly and severally responsible for compliance with the requirements
74	74	46of this subchapter.
75	75	47 “Geofencing technologies” the use of global positioning system or radio frequency
76	76	48identification technology to create a virtual geographic boundary, enabling software to trigger a
77	77	49response when a device enters or leaves a particular area.
78	78	50 “Just cause” the employee’s failure to satisfactorily perform job duties or to misconduct
79	79	51that is demonstrably and materially harmful to the employer’s legitimate business interests.
80	80	52 “Probation period” a defined period of time, not to exceed 30 days from the first date of
81	81	53work of an employee, within which employers and employees are not subject to the prohibition
82	82	54on wrongful discharge set forth in this section. 4 of 19
83	83	55 “Progressive discipline” a disciplinary system that provides for a graduated range of
84	84	56reasonable responses to an employee’s failure to satisfactorily perform such employee’s job
85	85	57duties, with the disciplinary measures ranging from mild to severe, depending on the frequency
86	86	58and degree of the failure.
87	87	59 “Reduction in hours” a reduction in an employee’s hours of work totaling at least 15 per
88	88	60cent of the employee’s regular schedule or 15 per cent of any weekly work schedule.
89	89	61 “Seniority” a ranking of employees based on length of service, computed from the first
90	90	62date of work, including any probationary period, unless such service has been interrupted by
91	91	63more than 6 months, in which case length of service shall be computed from the date that service
92	92	64resumed. An absence shall not be deemed an interruption of service if such absence was the
93	93	65result of military service, illness, educational leave, leave protected or afforded by law, or any
94	94	66discharge based on a bona fide economic reason or that is in violation of any local, state or
95	95	67federal law, including this section.
96	96	68 “Short-term position” employment pursuant to a written contract that specifies that the
97	97	69position is to end after a specified period of time, not to exceed 6 months, where the employer
98	98	70can show that the work or need in question is expected to end.
99	99	71 “Short-term educational position” employment with a specific educational purpose,
100	100	72pursuant to written contract that specifies that the position is to end after a specified period of
101	101	73time, not to exceed 3 years, where the employer can show that the position in question is
102	102	74expected to end.
103	103	75 “Staffing services agency” any employer engaged in the business of contracting
104	104	76employees to provide services, for a fee, to or for any third party client. 5 of 19
105	105	77 “Third party client” any person that contracts with a staffing services agency for
106	106	78obtaining employees.
107	107	79 (b) An employer shall not discharge an employee who has completed such employer’s
108	108	80probation period except for just cause or a bona fide economic reason.
109	109	81 (c) In determining whether an employee has been discharged for just cause, the fact-
110	110	82finder shall consider, in addition to any other relevant factors, whether:
111	111	83 1. The employee knew or should have known of the employer’s policy, rule, practice or
112	112	84performance standard that is the basis for progressive discipline or discharge;
113	113	85 2. The employer provided relevant and adequate training to the employee;
114	114	86 3. The employer’s policy, rule, practice or performance standard, including the utilization
115	115	87of progressive discipline, was reasonable and applied consistently;
116	116	88 4. The employer impermissibly relied on electronic monitoring;
117	117	89 5. The employer disciplined or discharged the employee based on that employee’s
118	118	90individual performance, irrespective of the performance of other employees;
119	119	91 6. The employer undertook a fair and objective investigation into the job performance or
120	120	92misconduct; and
121	121	93 7.The employee violated the policy, rule or practice, failed to meet the performance
122	122	94standard or committed the misconduct that is the basis for progressive discipline or discharge.
123	123	95 (d) Except where termination is for an egregious failure by the employee to perform their
124	124	96duties, or for egregious misconduct, a termination shall not be considered based on just cause 6 of 19
125	125	97unless (1) the employer has utilized progressive discipline; provided, however, that the employer
126	126	98may not rely on discipline issued more than one year before the purported just cause termination,
127	127	99and (2) the employer had a written policy on progressive discipline in effect at the workplace or
128	128	100job site and that was provided to the employee. Except where termination is for an egregious
129	129	101failure by the employee to perform their duties, or for egregious misconduct, an employer shall
130	130	102provide 14 days’ notice of any discharge for just cause or bona fide economic reason. Within 5
131	131	103days of such notice, the employer shall provide a written explanation to the employee of the
132	132	104precise reasons for their discharge including a copy of any materials, personnel records, data or
133	133	105assessments that the employer used to make the discharge decision. If the employer is relying on
134	134	106data collected through electronic monitoring to make the discharge decision, the employer shall
135	135	107also provide any aggregated data collected on employees performing the same or similar
136	136	108functions at the same establishment for the 6 months prior to the discharge in question. In
137	137	109determining whether an employer had just cause for discharge, the fact-finder may not consider
138	138	110any reasons proffered by the employer but not included in such written explanation provided to
139	139	111the employee. Where an employer fails to timely provide a written explanation to an employee,
140	140	112the discharge shall not be deemed to be based on just cause.
141	141	113 (e) The employer shall bear the burden of proving just cause or a bona fide economic
142	142	114reason by a preponderance of the evidence in any proceeding brought pursuant to this
143	143	115subchapter, subject to the rules of evidence as set forth in the civil practice law and rules or,
144	144	116where applicable, the common law.
145	145	117 (f) In any action or proceeding brought pursuant to this section, if an employer is found to
146	146	118have unlawfully discharged an employee in violation of this section the relief shall include an
147	147	119order to reinstate or restore the hours of the employee, unless waived by the employee, and, in 7 of 19
148	148	120any such proceeding where an employer is found to have unlawfully discharged an employee in
149	149	121violation of this section, the employer shall be ordered to pay the reasonable attorneys’ fees and
150	150	122costs of the employee.
151	151	123 (g) A discharge shall not be considered based on a bona fide economic reason unless
152	152	124supported by an employer’s business records showing that the closing, or technological or
153	153	125reorganizational changes are in response to a reduction in volume of production, sales or profit.
154	154	126 (h) Discharges of fast food employees based on bona fide economic reason shall be
155	155	127conducted in reverse order of seniority in the fast food establishment where the discharge is to
156	156	128occur, so that employees with the greatest seniority shall be retained the longest and reinstated or
157	157	129restored hours first. In accordance with this section, an employer shall make reasonable efforts to
158	158	130offer reinstatement or restoration of hours, as applicable, to any employee discharged based on a
159	159	131bona fide economic reason within the previous twelve months, if any, before the employer may
160	160	132offer or distribute shifts to other employees or hire any new employees. In accordance with this
161	161	133section, an employer shall make reasonable efforts to offer reinstatement or restoration of hours,
162	162	134as applicable, to any employee discharged based on a bona fide economic reason within the
163	163	135previous 12 months, if any, before the employer may offer or distribute shifts to other employees
164	164	136or hire any new employees.
165	165	137 (i) Employers may not rely on data collected through electronic monitoring in
166	166	138discharging or disciplining an employee unless the employer can establish before each use that
167	167	139(i) there is no other practical means of tracking or assessing employee performance; (ii) the
168	168	140employer is using the least invasive form of electronic monitoring available; and (iii) the
169	169	141employer previously provided notice to the employee of that monitoring as required by this 8 of 19
170	170	142section. Employers cannot establish the practical necessity for electronic monitoring without
171	171	143previously filing with the department an impartial evaluation from an independent auditor that
172	172	144said electronic monitoring is effective in undertaking its designated task. Employers who have
173	173	145established practical necessity for using data from electronic monitoring for tracking and
174	174	146assessing employee performance may not rely solely on such data but must also use other means
175	175	147of assessment such as manager observation or interviewing clients, customers or other
176	176	148employees to solicit feedback. Employers may use data gathered through electronic monitoring:
177	177	149 1. To record the beginning or end of a work shift, meal break or rest break;
178	178	150 2. For non-employment-related purposes;
179	179	151 3. To discharge or discipline an employee in cases of egregious misconduct or involving
180	180	152threats to the health or safety of other persons; or
181	181	153 4. Where required by state or federal law.
182	182	154 Employers may not use data for discipline or discharge if such data is gathered using
183	183	155biometric technologies, video or audio recordings within the private home of an employee, apps
184	184	156or software installed on personal devices or geofencing technologies.
185	185	157 When discharging or disciplining employees, employers may rely on electronic employee
186	186	158work speed data to determine whether an employee has met a quota, so long as it measures total
187	187	159output over an increment of time that is no shorter than one day.
188	188	160 Employers may not discipline or discharge an employee based on failure to meet a daily
189	189	161quota if the employee did not complete their entire shift. 9 of 19
190	190	162 Employers using electronic monitoring to measure increments of time within a day
191	191	163during which an employee is or is not meeting performance standards may not record or rely on
192	192	164such data in discharging
193	193	165 or disciplining an employee unless it is gathered during a periodic performance review
194	194	166and so long as the employee subject to the performance review has been given at least seven
195	195	167days advance notice of the exact timing of such review.
196	196	168 Such reviews can occur not more than once a quarter and can occur for a duration of time
197	197	169not longer than 3 hours.
198	198	170 An employer or agent thereof that is planning to electronically monitor an employee for
199	199	171the purposes of discipline or discharge shall provide the employee with notice that electronic
200	200	172monitoring will occur prior to conducting each specific form of electronic monitoring. Notice
201	201	173shall include, at a minimum, the following elements:
202	202	174 1. Whether the data gathered through electronic monitoring will be used to make or
203	203	175inform disciplinary or discharge decisions, and if so, the nature of that decision, including any
204	204	176associated benchmarks or performance standards;
205	205	177 2. Whether the data gathered through electronic monitoring will be used to assess
206	206	178employees’ productivity performance or to set productivity standards, and if so, how;
207	207	179 3. The names of any vendors conducting electronic monitoring on the employer’s behalf;
208	208	180 4. A description of the dates, times, and frequency that electronic monitoring will occur; 10 of 19
209	209	181 5. An explanation for why there is no other practical means of tracking or assessing
210	210	182employee performance and how the specific monitoring practice is the least invasive means
211	211	183available;
212	212	184 6. Notice of the employees’ right to access or correct the data; and
213	213	185 7. Notice of the administrative and judicial mechanisms available to challenge the use of
214	214	186electronic monitoring.
215	215	187 Notice of the specific form of electronic monitoring shall be clear and conspicuous. A
216	216	188notice that states electronic monitoring “may” take place or that the employer “reserves the
217	217	189right” to monitor shall not be considered clear and conspicuous.
218	218	190 An employer who engages in periodic electronic monitoring of employees for the
219	219	191purposes of discipline or discharge shall inform the affected employees of the specific events
220	220	192which are being monitored at the time the monitoring takes place.
221	221	193 Notice of periodic electronic monitoring may be given after electronic monitoring has
222	222	194occurred only if necessary to preserve the integrity of an investigation of illegal activity or
223	223	195protect the immediate safety of employees, customers or the public.
224	224	196 An employer shall provide additional notice to employees when an update or change is
225	225	197made to the electronic monitoring or in how the employer is using it.
226	226	198 Employers shall provide a copy of the disclosures required by this section to the
227	227	199department at the time they are required to be disseminated to employees. 11 of 19
228	228	200 (j) An employer shall ensure that any data collected through electronic monitoring that
229	229	201may be used for the purposes of discipline or discharge is accurate and, where relevant, kept up
230	230	202to date.
231	231	203 A current employee shall have the right to request a copy of employee work speed data
232	232	204that may be used for the purposes of discipline and termination at least once every seven days.
233	233	205 Employers using electronic monitoring to collect employee work speed data for the
234	234	206purposes of discipline or discharge must provide employees the opportunity to supplement that
235	235	207data to record any increments of time during which they are not performing work-related tasks
236	236	208and to record the reason that they are not performing work-related tasks during that time. Such
237	237	209opportunity must be made available to employees both at the time of data collection and after.
238	238	210 Employers must give employees the option to record reasons for not performing tasks
239	239	211that include, at a minimum, the following: using the bathroom, taking meal breaks, responding to
240	240	212an emergency, injury, illness, fear of injury, disability, complying with local, state or federal
241	241	213laws or exercising workplace rights under local, state or federal laws.
242	242	214 Employers using electronic monitoring to collect employee work speed data for the
243	243	215purposes of discipline or discharge must provide employees with the opportunity to review and
244	244	216request correction of such data both at the time of its collection and after. An employer that
245	245	217receives an employee request to correct inaccurate data that collected through electronic
246	246	218monitoring shall investigate and determine whether such data is inaccurate.
247	247	219 If an employer, upon investigation, determines that such data is inaccurate, the employer
248	248	220shall: 12 of 19
249	249	221 (i) Promptly correct the inaccurate data and inform the employee of the employer’s
250	250	222decision and action.
251	251	223 (ii) Review and adjust, as appropriate, any disciplinary or discharge decisions that were
252	252	224partially or solely based on the inaccurate data and inform the employee of the adjustment.
253	253	225 (iii) Inform any third parties with which the employer shared the inaccurate data, or from
254	254	226which the employer received the inaccurate data, and direct them to correct it, and provide the
255	255	227employee with a copy of such action.
256	256	228 If an employer, upon investigation, determines that the data is accurate, the employer
257	257	229shall inform the employee of the following:
258	258	230 (i) The decision not to amend the data.
259	259	231 (ii) The steps taken to verify the accuracy of the data and the evidence supporting the
260	260	232decision not to amend the data.
261	261	233 (k) On or after January 1, 2022, any person or organization representing persons alleging
262	262	234a violation of this subchapter by an employer may bring an arbitration proceeding. In addition,
263	263	235the department may, to the extent permitted by any applicable law including the civil practice
264	264	236law and rules, provide by rule for persons bringing such a proceeding to serve as a representative
265	265	237party on behalf of all members of a class. Such a proceeding must be brought within 2 years of
266	266	238the date of the alleged violation. If the arbitrator finds that the employer violated the provisions
267	267	239of this subchapter, it shall (i) require the [fast food] employer to pay the reasonable attorneys’
268	268	240fees and costs of the employee, (ii) require the employer to reinstate or restore the hours of the
269	269	241fast food employee, unless the employee waives reinstatement, (iii) require the employer to pay 13 of 19
270	270	242the city for the costs of the arbitration proceeding, and (iv) award all other appropriate equitable
271	271	243relief, which may include back pay, rescission of discipline, in addition to other relief, and such
272	272	244other compensatory damages or injunctive relief as may be appropriate.
273	273	245 A person or organization bringing an arbitration proceeding under subdivision a must
274	274	246serve the arbitration demand, and any amendments thereto, on the employer either in person or
275	275	247via certified mail at the current or most recent workplace or job site where each employee named
276	276	248in the arbitration demand is or was employed, or pursuant to the rules of civil procedure. Such
277	277	249arbitration demand must include a general description of each alleged violation but need not
278	278	250reference the precise section alleged to have been violated.
279	279	251 The parties to an arbitration proceeding shall jointly select the arbitrator from a panel of
280	280	252arbitrators. The number of arbitrators on the panel shall be determined by the department. The
281	281	253arbitrators on the panel shall be chosen by a committee of eight participants established by the
282	282	254department and comprised of:
283	283	255 1. Four employee-side representatives, including employees or advocates; and
284	284	256 2. Four employer-side representatives, including employers or advocates.
285	285	257 If an insufficient number of employee-side and employer-side representatives agree to
286	286	258participate in the committee pursuant to this section, the department shall consult with those that
287	287	259have agreed to participate and select individuals to fill the requisite number of openings on the
288	288	260committee.
289	289	261 If the committee established pursuant to this section is unable to select a sufficient
290	290	262number of arbitrators for the panel as determined by the department, the department shall select 14 of 19
291	291	263the remaining arbitrators. If the parties are unable to agree on an arbitrator, the department shall
292	292	264select an arbitrator from the panel. The department shall provide interpretation services to any
293	293	265party requiring such services for the arbitration hearing.
294	294	266 The arbitration hearing shall be held at a location designated by the department or a
295	295	267location agreed to by the parties and the arbitrator. Except as otherwise provided in this chapter,
296	296	268such arbitration shall be subject to the labor arbitration rules established by the American
297	297	269Arbitration Association and the rules promulgated by the department to implement this section.
298	298	270In case of a conflict between the rules of the American Arbitration Association and the rules of
299	299	271the department, the rules of the department shall govern. Any rules promulgated by the
300	300	272department implementing this section shall be consistent with the requirement that in any
301	301	273arbitration conducted pursuant to this section, the arbitrator shall have appropriate qualifications
302	302	274and maintain personal objectivity, and each party shall have the right to present its case, which
303	303	275shall include the right to be in attendance during any presentation made by the other party and
304	304	276the opportunity to rebut or refute such presentation.
305	305	277 If an employee brings an arbitration proceeding, arbitration shall be the exclusive remedy
306	306	278for the wrongful discharge dispute and there shall be no right to bring or continue a private cause
307	307	279of action or administrative complaint under this subchapter, unless such arbitration proceeding
308	308	280has been withdrawn or dismissed without prejudice.
309	309	281 Each party shall have the right to apply to a court of competent jurisdiction for the
310	310	282confirmation, modification or vacatur of an award, pursuant to applicable case law, to review of
311	311	283legally mandated arbitration proceedings in accordance with standards of due process. 15 of 19
312	312	284 (l) A discharged fast food employee who loses a shift on a work schedule as a result of
313	313	285discharge, including employees whose employment is terminated for any reason, shall be entitled
314	314	286to schedule change premiums for each such lost shift pursuant to this section.
315	315	287 (m) This section shall not apply to any employee:
316	316	288 1. Who is currently employed within a probation period;
317	317	289 2. In a short-term position discharged at the end of the contract of employment provided
318	318	290that the employer does not hire another employee to perform similar work for 180 days after the
319	319	291end of the short-term contract or in a short-term educational position at the end of the contract of
320	320	292employment;
321	321	293 3. Who is employed in the construction industry; or
322	322	294 4. Who is covered by a valid collective bargaining agreement if such agreement (a)
323	323	295expressly waives the provisions of this subchapter and (b) provides comparable terms and
324	324	296conditions for the discharge or laying off of employees, including, but not limited to, provisions
325	325	297to challenge the justification for a discharge or layoff.
326	326	298 Limit or otherwise affect the applicability of any right or benefit conferred upon or
327	327	299afforded to an employee by the provisions of any other law, regulation, rule, requirement, policy
328	328	300or standard including but not limited to any federal, state or local law providing for protections
329	329	301against retaliation or discrimination.
330	330	302 (m) Any person, including any organization, alleging a violation of this section may bring
331	331	303a civil action, in accordance with applicable law, in any court of competent jurisdiction. 16 of 19
332	332	304 Such court may, in the case of a public enforcement action, order payment of the civil
333	333	305penalties, and in any action may order compensatory, injunctive and declaratory relief, including
334	334	306the following remedies for violations of this chapter:
335	335	307 1. Payment of schedule change premiums withheld;
336	336	308 2. An order directing compliance with the recordkeeping, information, posting and
337	337	309consent requirements;
338	338	310 3. Rescission of any discipline issued;
339	339	311 4. Reinstatement of any employee terminated;
340	340	312 5. Payment of back pay for any loss of pay or benefits resulting from discipline or other
341	341	313action taken;
342	342	314 6. An order directing compliance with the requirements of this section;
343	343	315 7. Other compensatory damages and any other relief required to make the employee
344	344	316whole; and
345	345	317 8. Reasonable attorney's fees.
346	346	318 For each violation of this section, the court shall order reinstatement or restoration of
347	347	319hours of the employee, unless waived by the employee, and shall order the employer to pay the
348	348	320reasonable attorneys’ fees and costs of the employee. The court may, in addition, grant the
349	349	321following relief: $500 for each violation, an order directing compliance with this section,
350	350	322rescission of any discipline issued, payment of back pay for any loss of pay or benefits resulting 17 of 19
351	351	323from the wrongful discharge, punitive damages, and any other equitable relief as may be
352	352	324appropriate.
353	353	325 (n) A civil action under this section shall be commenced within 2 years of the date the
354	354	326person knew or should have known of the alleged violation.
355	355	327 (o) Except where the action seeks the imposition of civil penalties, any person filing a
356	356	328civil action shall simultaneously serve notice of such action and a copy of the complaint upon the
357	357	329department. Failure to serve a notice does not adversely affect any plaintiff's cause of action.
358	358	330 An employee need not file a complaint with the department; however, no person shall file
359	359	331a civil action after filing a complaint with the department unless such complaint has been
360	360	332withdrawn or dismissed without prejudice to further action.
361	361	333 No person shall file a complaint with the department after filing a civil action unless such
362	362	334action has been withdrawn or dismissed without prejudice to further action.
363	363	335 The commencement or pendency of a civil action by an employee does not preclude the
364	364	336department from investigating the employer or commencing, prosecuting or settling a case
365	365	337against the employer based on some or all of the same violations.
366	366	338 Notwithstanding the foregoing subdivisions, the comptroller or any current or former
367	367	339employer may initiate a public enforcement action seeking to recover civil penalties and
368	368	340injunctive and declaratory relief as a relator on behalf of the department for a violation affecting
369	369	341current or former employees by giving written notice to the department, in such manner as the
370	370	342department may prescribe by rule, of the provisions of this title alleged to have been violated,
371	371	343including the facts and theories to support the alleged violation. Notwithstanding the preceding 18 of 19
372	372	344sentence, where a current or former employee is represented by a bona fide labor organization,
373	373	345no organization other than such labor organization may initiate a public enforcement action in
374	374	346relation to any violation by which they were affected. Within 65 calendar days of the postmark
375	375	347date of the notice, the department shall notify the relator if it intends to open an investigation.
376	376	348Within 60 calendar days of that decision, the department may investigate the alleged violation
377	377	349and take any enforcement action authorized by law. If the department determines that additional
378	378	350time is necessary to complete the investigation, it may extend the time by not more than 60
379	379	351additional calendar days and shall notify the relator of the extension. If the department
380	380	352determines that no enforcement action will be taken, does not respond to the notice, or if no
381	381	353enforcement action is taken by the department within the time limits prescribed, a public
382	382	354enforcement action for civil penalties may be commenced in court. The department may
383	383	355intervene in a public enforcement action for civil penalties brought under this subdivision and
384	384	356proceed with any and all claims in the action as of right within thirty days after the filing of the
385	385	357public enforcement action, or for good cause, as determined by the court, at any time after the 30
386	386	358day period after the filing of the public enforcement action.
387	387	359 Any civil penalties imposed as a result of an enforcement action described in this section
388	388	360shall be distributed 65 per cent to the department, and 35 per cent to the relator to be distributed
389	389	361to the employees affected by the violation, except that if the department intervenes in the action,
390	390	36275 per cent of the penalties shall be distributed to the department and 25 per cent to the relator,
391	391	363including a service award that reflects the burdens and risks assumed by the relator in
392	392	364prosecuting the action. The share of penalties recovered for the department under this subsection
393	393	365shall budgeted into a separate account. Such account shall be used solely to support the
394	394	366department’s worker protection education and enforcement activities, with 25 per cent of these 19 of 19
395	395	367penalties reserved for grants to designated community groups for outreach and education about
396	396	368rights under the commonwealth’s labor standards.
397	397	369 The right to bring an action as a relator under this section shall not be contravened by any
398	398	370private agreement. If any part of an employee relator’s claim under this part is ordered or
399	399	371submitted to arbitration, or is resolved by way of final judgment, settlement or arbitration in
400	400	372favor of the employee, the employee relator retains standing to maintain an action for violations
401	401	373suffered by other employees in any forum having jurisdiction over the claim.
402	402	374 SECTION 3.This act shall take effect 180 days after passage.