1 of 1
HOUSE DOCKET, NO. 974 FILED ON: 1/17/2023
HOUSE . . . . . . . . . . . . . . . No. 3597
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
David Henry Argosky LeBoeuf
_________________
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 to guarantee just cause job security.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:David Henry Argosky LeBoeuf17th Worcester1/17/2023 1 of 19
HOUSE DOCKET, NO. 974 FILED ON: 1/17/2023
HOUSE . . . . . . . . . . . . . . . No. 3597
By Representative LeBoeuf of Worcester, a petition (accompanied by bill, House, No. 3597) of
David Henry Argosky LeBoeuf relative to protecting employees from discharges from
employment except for just cause. Labor and Workforce Development.
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act to guarantee just cause job security.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Section 1 of chapter 149 of the General Laws, as appearing in the 2020
2Official Edition, is hereby amended by striking out, in lines 32 and 40, each time it appears, the
3word “shall” and inserting in place thereof, in each instance, the following words:- and section
4105E shall.
5 SECTION 2. Said chapter 149 is hereby further amended by inserting after section 105D
6the following section:-
7 Section 105E. (a) As used in this section the following words, unless a different meaning
8is required by the context or is specifically prescribed, shall have the following meanings:
9 “Biometric data”, a physiological, biological or behavioral characteristic, including but
10not limited to an iris scan, fingerprint, a hand scan, voiceprint and thermal or facial
11characteristics that can be used alone or in combination with each other, or with other
12information, to establish individual identity. 2 of 19
13 “Biometric technology” either or both of the following: (i) a process or system that
14captures biometric data of an individual or individuals; (ii) a process or system that can assist in
15verifying or identifying an individual or individuals based on biometric data.
16 “Bona fide economic reason” the full or partial closing of operations or technological or
17organizational changes to the business in response to a reduction in volume of production, sales
18or profit of 15 per cent or more over a period of 2 quarters either at the establishment where the
19discharge is to occur or across all establishments owned by the employer in within the
20commonwealth, but shall not include elimination of staff redundancy created by a merger or
21acquisition.
22 “Bona fide labor organization” a labor union (i) in which officers have been elected by
23secret ballot or otherwise in a manner consistent with federal law; and (ii) that is free of
24domination or interference by any employer and has received no improper assistance or support
25from any employer.
26 “Designated community group” a not-for-profit organization or bona fide labor
27organization that has the capacity to conduct worker outreach, engagement, education and
28information provision, as determined by the commissioner.
29 “Discharge” any cessation of employment, including layoff, termination, constructive
30discharge, reduction in hours and indefinite suspension.
31 “Electronic monitoring” the collection of information concerning employee activities,
32communications, actions, biometrics or behaviors by electronic means including, but not limited
33to, video or audio surveillance, electronic employee work speed data and other means. 3 of 19
34 “Employee work speed data” information an employer collects, stores, analyzes or
35interprets relating to an individual employee’s or group of employees’ pace of work, including,
36but not limited to, quantities of tasks performed, quantities of items or materials handled or
37produced, rates or speeds of tasks performed, measurements or metrics of employee performance
38in relation to a quota and time categorized as performing tasks or not performing tasks.
39Notwithstanding the preceding sentence, it does not include qualitative performance assessments,
40personnel records or itemized wage statements, except for any content of those records that
41includes employee work speed data.
42 “Employer” shall have the meaning ascribed to it by section 1 except that where an
43employee is employed by a staffing services agency to perform work for a third party client
44within the third party client’s usual course of business, both the staffing services agency and the
45third party client shall be jointly and severally responsible for compliance with the requirements
46of this subchapter.
47 “Geofencing technologies” the use of global positioning system or radio frequency
48identification technology to create a virtual geographic boundary, enabling software to trigger a
49response when a device enters or leaves a particular area.
50 “Just cause” the employee’s failure to satisfactorily perform job duties or to misconduct
51that is demonstrably and materially harmful to the employer’s legitimate business interests.
52 “Probation period” a defined period of time, not to exceed 30 days from the first date of
53work of an employee, within which employers and employees are not subject to the prohibition
54on wrongful discharge set forth in this section. 4 of 19
55 “Progressive discipline” a disciplinary system that provides for a graduated range of
56reasonable responses to an employee’s failure to satisfactorily perform such employee’s job
57duties, with the disciplinary measures ranging from mild to severe, depending on the frequency
58and degree of the failure.
59 “Reduction in hours” a reduction in an employee’s hours of work totaling at least 15 per
60cent of the employee’s regular schedule or 15 per cent of any weekly work schedule.
61 “Seniority” a ranking of employees based on length of service, computed from the first
62date of work, including any probationary period, unless such service has been interrupted by
63more than 6 months, in which case length of service shall be computed from the date that service
64resumed. An absence shall not be deemed an interruption of service if such absence was the
65result of military service, illness, educational leave, leave protected or afforded by law, or any
66discharge based on a bona fide economic reason or that is in violation of any local, state or
67federal law, including this section.
68 “Short-term position” employment pursuant to a written contract that specifies that the
69position is to end after a specified period of time, not to exceed 6 months, where the employer
70can show that the work or need in question is expected to end.
71 “Short-term educational position” employment with a specific educational purpose,
72pursuant to written contract that specifies that the position is to end after a specified period of
73time, not to exceed 3 years, where the employer can show that the position in question is
74expected to end.
75 “Staffing services agency” any employer engaged in the business of contracting
76employees to provide services, for a fee, to or for any third party client. 5 of 19
77 “Third party client” any person that contracts with a staffing services agency for
78obtaining employees.
79 (b) An employer shall not discharge an employee who has completed such employer’s
80probation period except for just cause or a bona fide economic reason.
81 (c) In determining whether an employee has been discharged for just cause, the fact-
82finder shall consider, in addition to any other relevant factors, whether:
83 1. The employee knew or should have known of the employer’s policy, rule, practice or
84performance standard that is the basis for progressive discipline or discharge;
85 2. The employer provided relevant and adequate training to the employee;
86 3. The employer’s policy, rule, practice or performance standard, including the utilization
87of progressive discipline, was reasonable and applied consistently;
88 4. The employer impermissibly relied on electronic monitoring;
89 5. The employer disciplined or discharged the employee based on that employee’s
90individual performance, irrespective of the performance of other employees;
91 6. The employer undertook a fair and objective investigation into the job performance or
92misconduct; and
93 7.The employee violated the policy, rule or practice, failed to meet the performance
94standard or committed the misconduct that is the basis for progressive discipline or discharge.
95 (d) Except where termination is for an egregious failure by the employee to perform their
96duties, or for egregious misconduct, a termination shall not be considered based on just cause 6 of 19
97unless (1) the employer has utilized progressive discipline; provided, however, that the employer
98may not rely on discipline issued more than one year before the purported just cause termination,
99and (2) the employer had a written policy on progressive discipline in effect at the workplace or
100job site and that was provided to the employee. Except where termination is for an egregious
101failure by the employee to perform their duties, or for egregious misconduct, an employer shall
102provide 14 days’ notice of any discharge for just cause or bona fide economic reason. Within 5
103days of such notice, the employer shall provide a written explanation to the employee of the
104precise reasons for their discharge including a copy of any materials, personnel records, data or
105assessments that the employer used to make the discharge decision. If the employer is relying on
106data collected through electronic monitoring to make the discharge decision, the employer shall
107also provide any aggregated data collected on employees performing the same or similar
108functions at the same establishment for the 6 months prior to the discharge in question. In
109determining whether an employer had just cause for discharge, the fact-finder may not consider
110any reasons proffered by the employer but not included in such written explanation provided to
111the employee. Where an employer fails to timely provide a written explanation to an employee,
112the discharge shall not be deemed to be based on just cause.
113 (e) The employer shall bear the burden of proving just cause or a bona fide economic
114reason by a preponderance of the evidence in any proceeding brought pursuant to this
115subchapter, subject to the rules of evidence as set forth in the civil practice law and rules or,
116where applicable, the common law.
117 (f) In any action or proceeding brought pursuant to this section, if an employer is found to
118have unlawfully discharged an employee in violation of this section the relief shall include an
119order to reinstate or restore the hours of the employee, unless waived by the employee, and, in 7 of 19
120any such proceeding where an employer is found to have unlawfully discharged an employee in
121violation of this section, the employer shall be ordered to pay the reasonable attorneys’ fees and
122costs of the employee.
123 (g) A discharge shall not be considered based on a bona fide economic reason unless
124supported by an employer’s business records showing that the closing, or technological or
125reorganizational changes are in response to a reduction in volume of production, sales or profit.
126 (h) Discharges of fast food employees based on bona fide economic reason shall be
127conducted in reverse order of seniority in the fast food establishment where the discharge is to
128occur, so that employees with the greatest seniority shall be retained the longest and reinstated or
129restored hours first. In accordance with this section, an employer shall make reasonable efforts to
130offer reinstatement or restoration of hours, as applicable, to any employee discharged based on a
131bona fide economic reason within the previous twelve months, if any, before the employer may
132offer or distribute shifts to other employees or hire any new employees. In accordance with this
133section, an employer shall make reasonable efforts to offer reinstatement or restoration of hours,
134as applicable, to any employee discharged based on a bona fide economic reason within the
135previous 12 months, if any, before the employer may offer or distribute shifts to other employees
136or hire any new employees.
137 (i) Employers may not rely on data collected through electronic monitoring in
138discharging or disciplining an employee unless the employer can establish before each use that
139(i) there is no other practical means of tracking or assessing employee performance; (ii) the
140employer is using the least invasive form of electronic monitoring available; and (iii) the
141employer previously provided notice to the employee of that monitoring as required by this 8 of 19
142section. Employers cannot establish the practical necessity for electronic monitoring without
143previously filing with the department an impartial evaluation from an independent auditor that
144said electronic monitoring is effective in undertaking its designated task. Employers who have
145established practical necessity for using data from electronic monitoring for tracking and
146assessing employee performance may not rely solely on such data but must also use other means
147of assessment such as manager observation or interviewing clients, customers or other
148employees to solicit feedback. Employers may use data gathered through electronic monitoring:
149 1. To record the beginning or end of a work shift, meal break or rest break;
150 2. For non-employment-related purposes;
151 3. To discharge or discipline an employee in cases of egregious misconduct or involving
152threats to the health or safety of other persons; or
153 4. Where required by state or federal law.
154 Employers may not use data for discipline or discharge if such data is gathered using
155biometric technologies, video or audio recordings within the private home of an employee, apps
156or software installed on personal devices or geofencing technologies.
157 When discharging or disciplining employees, employers may rely on electronic employee
158work speed data to determine whether an employee has met a quota, so long as it measures total
159output over an increment of time that is no shorter than one day.
160 Employers may not discipline or discharge an employee based on failure to meet a daily
161quota if the employee did not complete their entire shift. 9 of 19
162 Employers using electronic monitoring to measure increments of time within a day
163during which an employee is or is not meeting performance standards may not record or rely on
164such data in discharging
165 or disciplining an employee unless it is gathered during a periodic performance review
166and so long as the employee subject to the performance review has been given at least seven
167days advance notice of the exact timing of such review.
168 Such reviews can occur not more than once a quarter and can occur for a duration of time
169not longer than 3 hours.
170 An employer or agent thereof that is planning to electronically monitor an employee for
171the purposes of discipline or discharge shall provide the employee with notice that electronic
172monitoring will occur prior to conducting each specific form of electronic monitoring. Notice
173shall include, at a minimum, the following elements:
174 1. Whether the data gathered through electronic monitoring will be used to make or
175inform disciplinary or discharge decisions, and if so, the nature of that decision, including any
176associated benchmarks or performance standards;
177 2. Whether the data gathered through electronic monitoring will be used to assess
178employees’ productivity performance or to set productivity standards, and if so, how;
179 3. The names of any vendors conducting electronic monitoring on the employer’s behalf;
180 4. A description of the dates, times, and frequency that electronic monitoring will occur; 10 of 19
181 5. An explanation for why there is no other practical means of tracking or assessing
182employee performance and how the specific monitoring practice is the least invasive means
183available;
184 6. Notice of the employees’ right to access or correct the data; and
185 7. Notice of the administrative and judicial mechanisms available to challenge the use of
186electronic monitoring.
187 Notice of the specific form of electronic monitoring shall be clear and conspicuous. A
188notice that states electronic monitoring “may” take place or that the employer “reserves the
189right” to monitor shall not be considered clear and conspicuous.
190 An employer who engages in periodic electronic monitoring of employees for the
191purposes of discipline or discharge shall inform the affected employees of the specific events
192which are being monitored at the time the monitoring takes place.
193 Notice of periodic electronic monitoring may be given after electronic monitoring has
194occurred only if necessary to preserve the integrity of an investigation of illegal activity or
195protect the immediate safety of employees, customers or the public.
196 An employer shall provide additional notice to employees when an update or change is
197made to the electronic monitoring or in how the employer is using it.
198 Employers shall provide a copy of the disclosures required by this section to the
199department at the time they are required to be disseminated to employees. 11 of 19
200 (j) An employer shall ensure that any data collected through electronic monitoring that
201may be used for the purposes of discipline or discharge is accurate and, where relevant, kept up
202to date.
203 A current employee shall have the right to request a copy of employee work speed data
204that may be used for the purposes of discipline and termination at least once every seven days.
205 Employers using electronic monitoring to collect employee work speed data for the
206purposes of discipline or discharge must provide employees the opportunity to supplement that
207data to record any increments of time during which they are not performing work-related tasks
208and to record the reason that they are not performing work-related tasks during that time. Such
209opportunity must be made available to employees both at the time of data collection and after.
210 Employers must give employees the option to record reasons for not performing tasks
211that include, at a minimum, the following: using the bathroom, taking meal breaks, responding to
212an emergency, injury, illness, fear of injury, disability, complying with local, state or federal
213laws or exercising workplace rights under local, state or federal laws.
214 Employers using electronic monitoring to collect employee work speed data for the
215purposes of discipline or discharge must provide employees with the opportunity to review and
216request correction of such data both at the time of its collection and after. An employer that
217receives an employee request to correct inaccurate data that collected through electronic
218monitoring shall investigate and determine whether such data is inaccurate.
219 If an employer, upon investigation, determines that such data is inaccurate, the employer
220shall: 12 of 19
221 (i) Promptly correct the inaccurate data and inform the employee of the employer’s
222decision and action.
223 (ii) Review and adjust, as appropriate, any disciplinary or discharge decisions that were
224partially or solely based on the inaccurate data and inform the employee of the adjustment.
225 (iii) Inform any third parties with which the employer shared the inaccurate data, or from
226which the employer received the inaccurate data, and direct them to correct it, and provide the
227employee with a copy of such action.
228 If an employer, upon investigation, determines that the data is accurate, the employer
229shall inform the employee of the following:
230 (i) The decision not to amend the data.
231 (ii) The steps taken to verify the accuracy of the data and the evidence supporting the
232decision not to amend the data.
233 (k) On or after January 1, 2022, any person or organization representing persons alleging
234a violation of this subchapter by an employer may bring an arbitration proceeding. In addition,
235the department may, to the extent permitted by any applicable law including the civil practice
236law and rules, provide by rule for persons bringing such a proceeding to serve as a representative
237party on behalf of all members of a class. Such a proceeding must be brought within 2 years of
238the date of the alleged violation. If the arbitrator finds that the employer violated the provisions
239of this subchapter, it shall (i) require the [fast food] employer to pay the reasonable attorneys’
240fees and costs of the employee, (ii) require the employer to reinstate or restore the hours of the
241fast food employee, unless the employee waives reinstatement, (iii) require the employer to pay 13 of 19
242the city for the costs of the arbitration proceeding, and (iv) award all other appropriate equitable
243relief, which may include back pay, rescission of discipline, in addition to other relief, and such
244other compensatory damages or injunctive relief as may be appropriate.
245 A person or organization bringing an arbitration proceeding under subdivision a must
246serve the arbitration demand, and any amendments thereto, on the employer either in person or
247via certified mail at the current or most recent workplace or job site where each employee named
248in the arbitration demand is or was employed, or pursuant to the rules of civil procedure. Such
249arbitration demand must include a general description of each alleged violation but need not
250reference the precise section alleged to have been violated.
251 The parties to an arbitration proceeding shall jointly select the arbitrator from a panel of
252arbitrators. The number of arbitrators on the panel shall be determined by the department. The
253arbitrators on the panel shall be chosen by a committee of eight participants established by the
254department and comprised of:
255 1. Four employee-side representatives, including employees or advocates; and
256 2. Four employer-side representatives, including employers or advocates.
257 If an insufficient number of employee-side and employer-side representatives agree to
258participate in the committee pursuant to this section, the department shall consult with those that
259have agreed to participate and select individuals to fill the requisite number of openings on the
260committee.
261 If the committee established pursuant to this section is unable to select a sufficient
262number of arbitrators for the panel as determined by the department, the department shall select 14 of 19
263the remaining arbitrators. If the parties are unable to agree on an arbitrator, the department shall
264select an arbitrator from the panel. The department shall provide interpretation services to any
265party requiring such services for the arbitration hearing.
266 The arbitration hearing shall be held at a location designated by the department or a
267location agreed to by the parties and the arbitrator. Except as otherwise provided in this chapter,
268such arbitration shall be subject to the labor arbitration rules established by the American
269Arbitration Association and the rules promulgated by the department to implement this section.
270In case of a conflict between the rules of the American Arbitration Association and the rules of
271the department, the rules of the department shall govern. Any rules promulgated by the
272department implementing this section shall be consistent with the requirement that in any
273arbitration conducted pursuant to this section, the arbitrator shall have appropriate qualifications
274and maintain personal objectivity, and each party shall have the right to present its case, which
275shall include the right to be in attendance during any presentation made by the other party and
276the opportunity to rebut or refute such presentation.
277 If an employee brings an arbitration proceeding, arbitration shall be the exclusive remedy
278for the wrongful discharge dispute and there shall be no right to bring or continue a private cause
279of action or administrative complaint under this subchapter, unless such arbitration proceeding
280has been withdrawn or dismissed without prejudice.
281 Each party shall have the right to apply to a court of competent jurisdiction for the
282confirmation, modification or vacatur of an award, pursuant to applicable case law, to review of
283legally mandated arbitration proceedings in accordance with standards of due process. 15 of 19
284 (l) A discharged fast food employee who loses a shift on a work schedule as a result of
285discharge, including employees whose employment is terminated for any reason, shall be entitled
286to schedule change premiums for each such lost shift pursuant to this section.
287 (m) This section shall not apply to any employee:
288 1. Who is currently employed within a probation period;
289 2. In a short-term position discharged at the end of the contract of employment provided
290that the employer does not hire another employee to perform similar work for 180 days after the
291end of the short-term contract or in a short-term educational position at the end of the contract of
292employment;
293 3. Who is employed in the construction industry; or
294 4. Who is covered by a valid collective bargaining agreement if such agreement (a)
295expressly waives the provisions of this subchapter and (b) provides comparable terms and
296conditions for the discharge or laying off of employees, including, but not limited to, provisions
297to challenge the justification for a discharge or layoff.
298 Limit or otherwise affect the applicability of any right or benefit conferred upon or
299afforded to an employee by the provisions of any other law, regulation, rule, requirement, policy
300or standard including but not limited to any federal, state or local law providing for protections
301against retaliation or discrimination.
302 (m) Any person, including any organization, alleging a violation of this section may bring
303a civil action, in accordance with applicable law, in any court of competent jurisdiction. 16 of 19
304 Such court may, in the case of a public enforcement action, order payment of the civil
305penalties, and in any action may order compensatory, injunctive and declaratory relief, including
306the following remedies for violations of this chapter:
307 1. Payment of schedule change premiums withheld;
308 2. An order directing compliance with the recordkeeping, information, posting and
309consent requirements;
310 3. Rescission of any discipline issued;
311 4. Reinstatement of any employee terminated;
312 5. Payment of back pay for any loss of pay or benefits resulting from discipline or other
313action taken;
314 6. An order directing compliance with the requirements of this section;
315 7. Other compensatory damages and any other relief required to make the employee
316whole; and
317 8. Reasonable attorney's fees.
318 For each violation of this section, the court shall order reinstatement or restoration of
319hours of the employee, unless waived by the employee, and shall order the employer to pay the
320reasonable attorneys’ fees and costs of the employee. The court may, in addition, grant the
321following relief: $500 for each violation, an order directing compliance with this section,
322rescission of any discipline issued, payment of back pay for any loss of pay or benefits resulting 17 of 19
323from the wrongful discharge, punitive damages, and any other equitable relief as may be
324appropriate.
325 (n) A civil action under this section shall be commenced within 2 years of the date the
326person knew or should have known of the alleged violation.
327 (o) Except where the action seeks the imposition of civil penalties, any person filing a
328civil action shall simultaneously serve notice of such action and a copy of the complaint upon the
329department. Failure to serve a notice does not adversely affect any plaintiff's cause of action.
330 An employee need not file a complaint with the department; however, no person shall file
331a civil action after filing a complaint with the department unless such complaint has been
332withdrawn or dismissed without prejudice to further action.
333 No person shall file a complaint with the department after filing a civil action unless such
334action has been withdrawn or dismissed without prejudice to further action.
335 The commencement or pendency of a civil action by an employee does not preclude the
336department from investigating the employer or commencing, prosecuting or settling a case
337against the employer based on some or all of the same violations.
338 Notwithstanding the foregoing subdivisions, the comptroller or any current or former
339employer may initiate a public enforcement action seeking to recover civil penalties and
340injunctive and declaratory relief as a relator on behalf of the department for a violation affecting
341current or former employees by giving written notice to the department, in such manner as the
342department may prescribe by rule, of the provisions of this title alleged to have been violated,
343including the facts and theories to support the alleged violation. Notwithstanding the preceding 18 of 19
344sentence, where a current or former employee is represented by a bona fide labor organization,
345no organization other than such labor organization may initiate a public enforcement action in
346relation to any violation by which they were affected. Within 65 calendar days of the postmark
347date of the notice, the department shall notify the relator if it intends to open an investigation.
348Within 60 calendar days of that decision, the department may investigate the alleged violation
349and take any enforcement action authorized by law. If the department determines that additional
350time is necessary to complete the investigation, it may extend the time by not more than 60
351additional calendar days and shall notify the relator of the extension. If the department
352determines that no enforcement action will be taken, does not respond to the notice, or if no
353enforcement action is taken by the department within the time limits prescribed, a public
354enforcement action for civil penalties may be commenced in court. The department may
355intervene in a public enforcement action for civil penalties brought under this subdivision and
356proceed with any and all claims in the action as of right within thirty days after the filing of the
357public enforcement action, or for good cause, as determined by the court, at any time after the 30
358day period after the filing of the public enforcement action.
359 Any civil penalties imposed as a result of an enforcement action described in this section
360shall be distributed 65 per cent to the department, and 35 per cent to the relator to be distributed
361to the employees affected by the violation, except that if the department intervenes in the action,
36275 per cent of the penalties shall be distributed to the department and 25 per cent to the relator,
363including a service award that reflects the burdens and risks assumed by the relator in
364prosecuting the action. The share of penalties recovered for the department under this subsection
365shall budgeted into a separate account. Such account shall be used solely to support the
366department’s worker protection education and enforcement activities, with 25 per cent of these 19 of 19
367penalties reserved for grants to designated community groups for outreach and education about
368rights under the commonwealth’s labor standards.
369 The right to bring an action as a relator under this section shall not be contravened by any
370private agreement. If any part of an employee relator’s claim under this part is ordered or
371submitted to arbitration, or is resolved by way of final judgment, settlement or arbitration in
372favor of the employee, the employee relator retains standing to maintain an action for violations
373suffered by other employees in any forum having jurisdiction over the claim.
374 SECTION 3.This act shall take effect 180 days after passage.