Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1148 Compare Versions

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

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2	2	SENATE DOCKET, NO. 1544 FILED ON: 1/19/2023
3	3	SENATE . . . . . . . . . . . . . . No. 1148
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Nick Collins
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 relative to wage theft.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Nick CollinsFirst Suffolk 1 of 8
16	16	SENATE DOCKET, NO. 1544 FILED ON: 1/19/2023
17	17	SENATE . . . . . . . . . . . . . . No. 1148
18	18	By Mr. Collins, a petition (accompanied by bill, Senate, No. 1148) of Nick Collins for legislation
19	19	relative to wage theft. Labor and Workforce Development.
20	20	The Commonwealth of Massachusetts
21	21	_______________
22	22	In the One Hundred and Ninety-Third General Court
23	23	(2023-2024)
24	24	_______________
25	25	An Act relative to wage theft.
26	26	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
27	27	of the same, as follows:
28	28	1 Add a new section 150D to the general laws at chapter 149, which shall read as follows:
29	29	2Section 150D Construction Industry Private Attorney General Action
30	30	3 (a) Whereas, wage law enforcement and honest bid competition are compelling state
31	31	4interest its police powers for enforcement shall include, but not be limited to, this section:
32	32	5 •Construction Industry employment makes more difficult protecting employees
33	33	6 against Wage Non-Payment and competing employers against unfair competition based
34	34	7on Wage Non-payment, as employees and employers navigate during single pay-periods multiple
35	35	8construction sites throughout the Commonwealth and neighboring or other states;
36	36	9 •Most construction firms employ fewer than twelve employees inhibiting employees
37	37	10similarly situated to obtain class certification under court rules; 2 of 8
38	38	11 •An employer’s failure to comply with wage payment and related law provides
39	39	12competitive advantage that illegally shaves costs resulting in illegally deflated bids to compete
40	40	13against honest employers, and such illegal conduct harms competition including by way of
41	41	14workers compensation insurance premium evasion –affecting insurance rates and causes payroll
42	42	15tax loss to the Commonwealth increasing the public’s tax burdens; and
43	43	16 •Construction Industry higher tier contractors often contract with the lowest price bidder;
44	44	17and
45	45	18 •The public is harmed when higher tier contractors subcontract to business enterprises or
46	46	19lower tier subcontractors that cheat to compete by failing to fully The public is harmed when
47	47	20employees lack proper wages on payday, including but not limited to the difficulty for an unpaid
48	48	21employee to meet his or her financial obligations owed to others in the stream of commerce or
49	49	22marketplace causing public harms that include, for example, unpaid rent, mortgages, medical
50	50	23bills and related insurance payments, automobile expenses, and other common living expenses;
51	51	24and
52	52	25 •The public is benefited when:
53	53	26 i.Construction competition among bidders is based on honest bid competition
54	54	27 as honesty promotes competition; and
55	55	28 ii.An Interested Party pursues wage law compliance on behalf of the
56	56	29 Commonwealth as it best ensures non-complying construction employers will experience
57	57	30exposure and the consequences when they do not pay their statutory and contractual wage related
58	58	31obligations. 3 of 8
59	59	32 (b) Definitions, for this section 150D:
60	60	33 “Construction Industry” shall have the broadest meaning possible to include but not be
61	61	34limited to drivers delivering construction material to construction sites for employers who
62	62	35primarily deliver such materials, residential contracting services referenced in chapter 142A, and
63	63	36any labor performed on private projects that are of a similar type of labor performed on public
64	64	37projects governed by section 27.
65	65	38 “Construction Industry Employer” means any person who or entity that, within the 5-year
66	66	39period preceding the date an action under this section was filed: i) contracted to perform work,
67	67	40regardless of contract or subcontract tier level, on a project governed by section 27 of this
68	68	41chapter after having submitted a bid for same and who employed employees who performed
69	69	42labor under that contract; or ii) contracted to perform construction work located in the
70	70	43Commonwealth in excess of $500,000, regardless of contract or subcontract tier level, and
71	71	44employed Construction Industry employees who performed labor under that contract.
72	72	45 “Interested Party” means any one or more of the following:
73	73	46 1.Any Construction Industry Employer;
74	74	47 2.Any trustee acting on behalf of an organization or trust established for the purposes of
75	75	48the Labor Management Cooperation Act of 1978, 29 U.S.C. section 175a, where contributions
76	76	49are made by at least five Construction Industry Employers;
77	77	50 3.Any labor organization which has as members, or is authorized to represent, employees
78	78	51and which exists in whole or part for the purposes of negotiating with Construction Industry 4 of 8
79	79	52Employers concerning wages, hours, or terms and conditions of employment of such employer’s
80	80	53employees; or
81	81	54 4.Any organization that represents five or more member firms that are Construction
82	82	55 Industry Employers that employed labor on public works project governed by section 27
83	83	56of this chapter or 5. Any Affected Employee.
84	84	57 “Wage Non-payment” means the failure to pay a wage owed to an Affected Employee in
85	85	58violation of any of the following statutes or contract provision: sections 27, 148, 148A, 148B, or
86	86	59150 of the general laws at chapter 149; or section 1A of the general laws at chapter 151; or any
87	87	60contract provision that required the payment of wages on a construction project in accord with
88	88	61rates required under section 27 of chapter 149.
89	89	62 “Affected Employee” means any Construction Industry employee or former employee
90	90	63who was employed by an individual or firm named as a defendant employer in an action filed
91	91	64under this section where such employee remains due from such defendant any Wage Non-
92	92	65payment whatsoever, regardless as to where or the type of labor was performed, provided that a
93	93	66substantial part of the Wage Non-payment owed was earned by the employee while performing
94	94	67Construction Industry labor as employee of such defendant.
95	95	68 (c) Civil Action: In addition to all common law, contract, or other remedies available at
96	96	69law, an Interested Party alleging facts that show probable cause that an employer has engaged in
97	97	70or caused a Wage Non-payment shall have standing and be entitled to bring an action in the
98	98	71name of and on behalf of the Commonwealth and the public, for the use and benefit of same,
99	99	72against such employer to recover damages and penalties stated in this section. 5 of 8
100	100	73 A civil action filed under this section shall be deemed a private attorney general action.
101	101	74The representative nature of such an action on behalf of the Commonwealth is not waivable and
102	102	75shall not be deemed a class action, so long as there is at least a common question of law or fact
103	103	76among at least two Affected Employees. Regardless as to whether any Affected Employee’s
104	104	77claim must be arbitrated, the representative action on behalf of the Commonwealth cannot be
105	105	78waived or compelled to arbitration. Further, the Interested Party bringing such representative
106	106	79claim shall not have to wait for an arbitration decision or award before proceeding in court under
107	107	80this section.
108	108	81 The Interested Party filing an action under this section shall provide a copy of the
109	109	82complaint for the purposes of notice to the attorneys general, within 10 business days of the
110	110	83filing. If the Interested Party prevails in the action, the court shall award treble the Wage Non-
111	111	84payment damages, as liquidated damages, to any Affected Employee who has, following a court
112	112	85approved notice of same, responded to the court within 90 calendar days, affirming an interest in
113	113	86a recovery, which notice shall be interpreted liberally to encourage Affected Employees to
114	114	87respond and affirm such an interest.
115	115	88 A twenty percent surcharge tax on the total amount awarded by the court-including on
116	116	89attorney fees, in addition to other usual income taxes due, on this recovery shall be paid into a
117	117	90wage enforcement fund established by the attorney general. Such fund shall be used by the
118	118	91attorney general to enforce wage laws, educate the public, particularly employers and employees,
119	119	92about wage law obligations and rights, and when the attorney general deems the fund is
120	120	93sufficiently funded, to advance some payment by loan pending an action under this section and
121	121	94upon the attorney general’s sole and exclusive discretion, to an Affected Employee showing
122	122	95urgent need to obtain unpaid wages to pay housing, heat, or food costs. 6 of 8
123	123	96 In addition, the Interested Party who prevails under this section shall be entitled to
124	124	97recover for the Commonwealth penalties, and Wage Non-payments as restitution incurred by
125	125	98each other Affected Employee who did not respond affirming an interest, as follows: For each
126	126	99violation of law, the court shall order the defendant employer to pay into the wage enforcement
127	127	100fund (i) a penalty in the amount of $50 per violation per pay-period for each unresponsive
128	128	101Affected Employee; and (ii) an amount, payable into the wage enforcement fund, equal to single
129	129	102Wage Non-payment damages, as restitution, incurred for all Wage Non-payments that the
130	130	103defendant employer should have paid to each Affected Employee who did not respond timely to
131	131	104a court approved notice affirming an interest in a recovery; the attorney general shall hold in
132	132	105escrow such amounts until the original statute of limitation period applicable against the
133	133	106defendant employer to expire on such restitution obtained in the event the Affected Employee
134	134	107reconsiders and seeks the restitution. But, after such limitations period has expired with no such
135	135	108employee claim, the amount shall escheat to the wage enforcement fund.
136	136	109 A defendant employer ordered to pay into the wage enforcement fund as single Wage-
137	137	110Nonpayment damages restitution incurred for labor performed by an Affected Employee who
138	138	111failed to affirm an interest in a recovery shall be entitled to a set-off of such amount paid against
139	139	112a future Wage Non-payment or other wage action filed by or on behalf of such Affected
140	140	113Employee, but no set-off shall apply to the $50 per pay period penalty. In addition, the Interested
141	141	114Party may also bring on behalf of the Commonwealth a claim for injunctive and declaratory
142	142	115relief. An Interested Party that prevails in any action filed under this section shall be awarded the
143	143	116costs of the litigation and reasonable attorney fees.
144	144	117 An action filed under this section shall be filed within limitation period of the Wage Non-
145	145	118payment at issue, except that where a Wage Non-payment also includes a violation of contract 7 of 8
146	146	119the Interested Party shall be a third-party beneficiary of the contract, including any public
147	147	120procurement contract, and recovery applicable to that portion of the action shall include amounts
148	148	121due within the limitations period set forth under section 2 of the general laws at chapter 260; for
149	149	122such contract action filed beyond the limitation period of the Wage Non-payment at issue
150	150	123liquidated damages shall not be awarded unless the contract recites otherwise and the court may
151	151	124award fees for such contract provision portion of the action in accord with the contract or its
152	152	125discretion.
153	153	126 On the trial no defense for failure to pay as required, other than the attachment of wages
154	154	127by trustee process or a valid assignment thereof or a valid set-off against the same, or the absence
155	155	128of the employee from his regular place of labor at the time of payment, or an actual tender to
156	156	129such employee at the time of payment of the wages so earned by him, shall be valid. The
157	157	130defendant shall not set up as a defense a payment of wages made or offered after the action under
158	158	131this section has been filed.
159	159	132 Attorney General Intervention. As a matter of right the attorney general may intervene as
160	160	133a plaintiff at any time, including post trial, by notice of same filed with the court or may file an
161	161	134appearance to be served all pleadings and discovery for monitoring. In the event that she
162	162	135intervenes, the attorney general shall thenceforth represent the Commonwealth as plaintiff, not
163	163	136the Interested Party. If the Interested Party shall retain party status, if it so chooses, for purposes
164	164	137that may include and not be limited to providing opportunity to the Interested Party to raise its
165	165	138interests or concerns including regarding any settlement proposed or to recover, if appropriate,
166	166	139its reasonable costs and fees incurred. The attorney general shall not settle the matter with the
167	167	140defendant without the participation in all settlement communications with the Interested Party 8 of 8
168	168	141who retained party status and without first obtaining such Interested Party’s informed consent
169	169	142which shall not be reasonably withheld.
170	170	143 Nothing in this section shall be deemed as an exclusive remedy and this section shall not
171	171	144affect the rights of the attorney general or any other person to pursue additional or other remedies
172	172	145available by way of other laws or available actions.