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| 2 | 2 | | SENATE DOCKET, NO. 1087 FILED ON: 1/18/2023 |
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| 3 | 3 | | SENATE . . . . . . . . . . . . . . No. 1158 |
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| 4 | 4 | | The Commonwealth of Massachusetts |
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| 5 | 5 | | _________________ |
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| 6 | 6 | | PRESENTED BY: |
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| 7 | 7 | | Sal N. DiDomenico |
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| 8 | 8 | | _________________ |
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| 9 | 9 | | To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General |
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| 10 | 10 | | Court assembled: |
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| 11 | 11 | | The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill: |
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| 12 | 12 | | An Act to prevent wage theft, promote employer accountability, and enhance public |
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| 13 | 13 | | enforcement. |
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| 14 | 14 | | _______________ |
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| 15 | 15 | | PETITION OF: |
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| 16 | 16 | | NAME:DISTRICT/ADDRESS :Sal N. DiDomenicoMiddlesex and SuffolkRebecca L. RauschNorfolk, Worcester and Middlesex1/23/2023Marc R. PachecoThird Bristol and Plymouth1/27/2023Jacob R. OliveiraHampden, Hampshire and Worcester1/30/2023Vanna Howard17th Middlesex1/31/2023Michael D. BradySecond Plymouth and Norfolk1/31/2023Jason M. LewisFifth Middlesex1/31/2023Michael J. BarrettThird Middlesex2/1/2023Jessica Ann Giannino16th Suffolk2/1/2023Paul W. MarkBerkshire, Hampden, Franklin and |
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| 17 | 17 | | Hampshire |
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| 18 | 18 | | 2/8/2023James K. Hawkins2nd Bristol2/8/2023Walter F. TimiltyNorfolk, Plymouth and Bristol2/8/2023Thomas M. Stanley9th Middlesex2/9/2023Mathew J. Muratore1st Plymouth2/14/2023James B. EldridgeMiddlesex and Worcester2/14/2023Mark C. MontignySecond Bristol and Plymouth2/14/2023 2 of 2 |
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| 19 | 19 | | Lydia EdwardsThird Suffolk2/17/2023Adam GomezHampden2/23/2023Joanne M. ComerfordHampshire, Franklin and Worcester2/23/2023Anne M. GobiWorcester and Hampshire2/23/2023Danillo A. Sena37th Middlesex2/28/2023Kathleen R. LaNatra12th Plymouth3/1/2023Bruce J. Ayers1st Norfolk3/1/2023Paul R. FeeneyBristol and Norfolk3/2/2023 1 of 19 |
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| 20 | 20 | | SENATE DOCKET, NO. 1087 FILED ON: 1/18/2023 |
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| 21 | 21 | | SENATE . . . . . . . . . . . . . . No. 1158 |
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| 22 | 22 | | By Mr. DiDomenico, a petition (accompanied by bill, Senate, No. 1158) of Sal N. DiDomenico, |
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| 23 | 23 | | Rebecca L. Rausch, Marc R. Pacheco, Jacob R. Oliveira and other members of the General Court |
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| 24 | 24 | | for legislation to prevent wage theft, promote employer accountability, and enhance public |
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| 25 | 25 | | enforcement. Labor and Workforce Development. |
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| 26 | 26 | | [SIMILAR MATTER FILED IN PREVIOUS SESSION |
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| 27 | 27 | | SEE SENATE, NO. 1179 OF 2021-2022.] |
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| 28 | 28 | | The Commonwealth of Massachusetts |
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| 29 | 29 | | _______________ |
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| 30 | 30 | | In the One Hundred and Ninety-Third General Court |
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| 31 | 31 | | (2023-2024) |
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| 32 | 32 | | _______________ |
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| 33 | 33 | | An Act to prevent wage theft, promote employer accountability, and enhance public |
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| 34 | 34 | | enforcement. |
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| 35 | 35 | | Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority |
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| 36 | 36 | | of the same, as follows: |
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| 37 | 37 | | 1 SECTION 1. Section 27C of chapter 149 of the General Laws, as appearing in the 2020 |
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| 38 | 38 | | 2Official Edition, is hereby amended by inserting after the words “subsection (a)”, in line 58, the |
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| 39 | 39 | | 3following words:- "or section 100, 148E or 150C". |
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| 40 | 40 | | 4 SECTION 2. Said section 27C of said chapter 149, as so appearing, is hereby further |
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| 41 | 41 | | 5amended by striking out, in line 159, the words “Civil and criminal” and inserting in place |
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| 42 | 42 | | 6thereof the following word:- "Criminal". |
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| 43 | 43 | | 7 SECTION 3. Said section 27C of said chapter 149, as so appearing, is hereby further |
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| 44 | 44 | | 8amended by adding the following subsection: 2 of 19 |
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| 45 | 45 | | 9 "(d) As a further alternative to initiating criminal proceedings pursuant to subsection (a) |
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| 46 | 46 | | 10or civil proceedings pursuant to subsection (b), the attorney general may file a civil action for |
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| 47 | 47 | | 11injunctive relief, for any damages incurred, and for any lost wages and other benefits on behalf |
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| 48 | 48 | | 12of a worker or multiple, similarly situated workers. If the attorney general prevails in such an |
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| 49 | 49 | | 13action, the worker or workers on whose behalf the attorney general brought the civil action shall |
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| 50 | 50 | | 14be awarded treble damages, as liquidated damages, for any lost wages and other benefits, and the |
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| 51 | 51 | | 15attorney general shall also be awarded court costs and reasonable attorneys’ fees." |
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| 52 | 52 | | 16 SECTION 4. Said chapter 149 of the General Laws, as so appearing, is hereby amended |
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| 53 | 53 | | 17by striking out section 148A and inserting in place thereof the following section:- |
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| 54 | 54 | | 18 Section 148A. (a) Any person or entity, including an employer or its agent, who in any |
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| 55 | 55 | | 19manner discriminates or takes adverse action, or threatens to discriminate or take adverse action, |
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| 56 | 56 | | 20against any person because that person has opposed a violation of this chapter, complained to the |
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| 57 | 57 | | 21attorney general or to any other person of a violation of this chapter, assisted any other person in |
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| 58 | 58 | | 22exercising rights under this chapter, informed any other person of rights under this chapter, or |
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| 59 | 59 | | 23instituted, assisted in, or testified in any investigation or proceedings under or related to this |
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| 60 | 60 | | 24chapter, or because of a belief that the person may in the future engage in any such actions, shall |
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| 61 | 61 | | 25have violated this section and shall be punished or subject to civil proceedings as provided in |
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| 62 | 62 | | 26subsection (b) or subsection (d) of section 27C, or section 150, and shall recover actual damages, |
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| 63 | 63 | | 27compensatory damages, punitive damages, injunctive relief or any other appropriate relief. |
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| 64 | 64 | | 28 (b) There shall be a rebuttable presumption of a violation of this section if a person or |
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| 65 | 65 | | 29entity discriminates or takes adverse action, or threatens to discriminate or take adverse action, |
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| 66 | 66 | | 30against any person within 90 days of that person’s exercise of rights under this chapter, including 3 of 19 |
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| 67 | 67 | | 31activity protected by this section. This presumption may be rebutted by clear and convincing |
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| 68 | 68 | | 32evidence that the action was taken for a permissible purpose and that it would have been taken in |
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| 69 | 69 | | 33the absence of the protected activity. |
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| 70 | 70 | | 34 SECTION 5. Chapter 149 of the General Laws is hereby amended by inserting after |
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| 71 | 71 | | 35section 148D the following 2 sections: |
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| 72 | 72 | | 36 Section 148E. (a) As used in this section and sections 148F and 148G, inclusive, the |
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| 73 | 73 | | 37following words shall have the following meanings unless the context clearly indicates |
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| 74 | 74 | | 38otherwise: |
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| 75 | 75 | | 39 “Labor contractor”, a person or entity that obtains, engages or provides 1 or more |
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| 76 | 76 | | 40individuals to perform labor or services, with or without a written contract, directly or indirectly, |
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| 77 | 77 | | 41to a lead contractor or from a labor subcontractor. |
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| 78 | 78 | | 42 “Labor subcontractor”, a person or entity that engages or provides 1 or more individuals |
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| 79 | 79 | | 43to perform labor or services, with or without a written contract, directly or indirectly, to a labor |
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| 80 | 80 | | 44contractor. |
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| 81 | 81 | | 45 “Lead contractor”, a person or entity that obtains, engages or is provided with 1 or more |
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| 82 | 82 | | 46individuals, directly from a labor contractor or indirectly from a labor subcontractor, to perform |
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| 83 | 83 | | 47labor or services that has a significant nexus with the lead contractor’s business activities, |
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| 84 | 84 | | 48operations or purposes. |
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| 85 | 85 | | 49 “Notice”, a written communication mailed, postage prepaid, or hand delivered to the lead |
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| 86 | 86 | | 50contractor’s place of business, registered agent, officer, director, worksite manager or a |
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| 87 | 87 | | 51supervisor, or any other individual identified by the lead contractor as its representative. Notice 4 of 19 |
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| 88 | 88 | | 52shall include, if known and available, the name of the employer, the amount of the claim or an |
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| 89 | 89 | | 53explanation of any data needed to calculate the amount of the claim and the dates that the |
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| 90 | 90 | | 54claimant worked. |
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| 91 | 91 | | 55 “Owner”, a person or entity with an ownership interest that contracts for labor or services |
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| 92 | 92 | | 56outside of its usual course of business. |
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| 93 | 93 | | 57 “Successor entity”, a person or entity that (i) has 1 or more of the same principals, |
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| 94 | 94 | | 58trustees or officers as the person or entity subject to liability; and (ii) is engaged in the same or |
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| 95 | 95 | | 59equivalent trade or activity. A successor entity shall not include an individual transferring jobs in |
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| 96 | 96 | | 60the same or equivalent trade or field. |
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| 97 | 97 | | 61 “Wage theft”, a violation of sections 27, 27F, 27G or 27H of chapter 149, the first and |
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| 98 | 98 | | 62third sentences and the fourth paragraph of section 148 of chapter 149, wage theft violations as |
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| 99 | 99 | | 63otherwise defined by this paragraph in section 148B of chapter 149, the fourth sentence of |
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| 100 | 100 | | 64section 150 of chapter 149, section 152A of chapter 149, subsections (c) or (d) of section 159C |
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| 101 | 101 | | 65of chapter 149, or sections 1, 1A, 2A or 7 of chapter 151. |
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| 102 | 102 | | 66 (b) An employer, except a staffing agency as defined by section 159C that is licensed or |
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| 103 | 103 | | 67registered pursuant to sections 46A to 46R, inclusive, of chapter 140, shall provide each worker, |
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| 104 | 104 | | 68not later than 10 days after the commencement of employment, with written notice in the |
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| 105 | 105 | | 69language the employer normally uses to communicate employment-related information to the |
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| 106 | 106 | | 70worker, of the following information: (i) the rate or rates of pay and the basis for those rates, |
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| 107 | 107 | | 71whether paid by the hour, shift, day, week, salary, piece, commission or otherwise, including |
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| 108 | 108 | | 72methods of calculation for overtime, if applicable; (ii) allowances, if any, claimed as part of the |
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| 109 | 109 | | 73minimum wage, including meal, tip or lodging allowances; (iii) the regular pay day designated 5 of 19 |
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| 110 | 110 | | 74by the employer; (iv) the name of the employer, including any “doing business as” names used |
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| 111 | 111 | | 75by the employer; (v) the physical address of the employer’s main office or principal place of |
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| 112 | 112 | | 76business and mailing address, if different; (vi) the telephone number of the employer; and (vii) |
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| 113 | 113 | | 77the name, address, and telephone number of the employer’s workers’ compensation insurance |
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| 114 | 114 | | 78carrier. |
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| 115 | 115 | | 79 (c) (1) A lead contractor shall be subject to joint and several civil liability with a labor |
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| 116 | 116 | | 80contractor and a labor subcontractor for wage theft, including treble damages and attorney’s fees |
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| 117 | 117 | | 81as identified in Section 150, provided that written notice of the alleged violation to be raised in |
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| 118 | 118 | | 82that action is provided to the lead contractor, labor contractor and labor subcontractor, if |
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| 119 | 119 | | 83applicable, not more than 45 days from the last occurrence of the alleged wage theft. |
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| 120 | 120 | | 84 (2) A labor contractor shall be subject to joint and several liability with a labor |
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| 121 | 121 | | 85subcontractor with whom the labor contractor has privity of contract, or implied contract, for |
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| 122 | 122 | | 86wage theft, including treble damages and attorney’s fees as identified in Section 150, provided |
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| 123 | 123 | | 87that written notice of the alleged violation to be raised in that action is provided to the labor |
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| 124 | 124 | | 88contractor and labor subcontractor not more than 45 days from the last occurrence of the alleged |
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| 125 | 125 | | 89wage theft. |
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| 126 | 126 | | 90 (3) A lead contractor’s joint and several liability shall be limited to 120 consecutive days |
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| 127 | 127 | | 91of any alleged wage theft, counting back the 120 days from the day of the last violation prior to |
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| 128 | 128 | | 92the notice. This 120-day damages limitation period shall not impact other wage violation |
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| 129 | 129 | | 93remedies available to a claimant. |
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| 130 | 130 | | 94 (4) Notice of wage theft violations may be provided by a worker or any other designated |
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| 131 | 131 | | 95person on behalf of similarly situated workers. Any person or entity having a contract with such 6 of 19 |
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| 132 | 132 | | 96lead contractor who receives notice shall deliver copies of it forthwith to the lead contractor and |
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| 133 | 133 | | 97either the labor contractor or labor subcontractor that is alleged to have committed wage theft. |
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| 134 | 134 | | 98 (5) A successor entity to any lead contractor, labor contractor or labor subcontractor |
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| 135 | 135 | | 99subject to liability under this section shall also be liable under this section. |
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| 136 | 136 | | 100 (6) An owner shall not be subject to liability under subsection (c) unless the owner is a |
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| 137 | 137 | | 101lead contractor, labor contractor or labor subcontractor. Subsection (c) shall not impose |
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| 138 | 138 | | 102individual liability on a homeowner for the labor or services received at the homeowner’s place |
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| 139 | 139 | | 103of residence or the owner of a home-based business for labor or services received at the |
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| 140 | 140 | | 104homeowner’s place of business. |
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| 141 | 141 | | 105 (7) A written offer and payment in full of all such wages allegedly owed during the 45- |
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| 142 | 142 | | 106day period after a receipt of the notice by a lead contractor, labor contractor or labor |
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| 143 | 143 | | 107subcontractor shall extinguish a lead contractor’s liability for damages under this section. |
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| 144 | 144 | | 108 (8) If a good faith settlement denial or a partial payment is issued for an alleged wage |
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| 145 | 145 | | 109theft violation within a 45-day period, a lead contractor or a labor contractor shall not be subject |
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| 146 | 146 | | 110to joint and several liability, treble damages or attorney’s fees as identified in section 150, and in |
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| 147 | 147 | | 111support of its contention that it responded in good faith, it may offer evidence that it conducted a |
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| 148 | 148 | | 112timely and thorough investigation, as determined by a court of competent jurisdiction, of a labor |
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| 149 | 149 | | 113contractor or a labor subcontractor’s violation with no finding of fault as an affirmative defense. |
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| 150 | 150 | | 114Such an investigation would require: i) an acknowledgment and reasonably prompt action upon |
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| 151 | 151 | | 115receiving notice; ii) adopting and implementing reasonable standards for the prompt |
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| 152 | 152 | | 116investigation; iii) conducting a reasonable investigation based upon all available information; iv) |
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| 153 | 153 | | 117issuing prompt, fair and equitable settlement of wage theft violation claims in which liability has 7 of 19 |
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| 154 | 154 | | 118become reasonably clear; and v) provided the claimant or its designee is provided with a record |
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| 155 | 155 | | 119of the investigation and the results of the investigation. |
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| 156 | 156 | | 120 (d) For purposes of this section, a labor contractor or a labor subcontractor shall |
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| 157 | 157 | | 121indemnify a lead contractor for any wages, damages, interest, penalties or attorneys’ fees owed |
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| 158 | 158 | | 122or incurred by the lead contractor as a result of the labor contractor or labor subcontractor’s wage |
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| 159 | 159 | | 123theft. For purposes of this section, a labor subcontractor shall indemnify a labor contractor for |
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| 160 | 160 | | 124any wages, damages, interest, penalties or attorneys’ fees owed by the labor contractor as a result |
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| 161 | 161 | | 125of the labor subcontractor’s wage theft. |
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| 162 | 162 | | 126 (e) When a lead contractor receives written notice that a labor contractor or labor |
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| 163 | 163 | | 127subcontractor has allegedly failed to pay wages to a person or persons performing labor for the |
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| 164 | 164 | | 128lead contractor, the lead contractor may do one or both of the following: (i) provide the unpaid |
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| 165 | 165 | | 129wages directly to the person or persons performing labor for the lead contractor; or (ii) withhold |
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| 166 | 166 | | 130or cause to be withheld from any payment due to the labor contractor or labor subcontractor the |
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| 167 | 167 | | 131amount sufficient to satisfy the unpaid wages. |
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| 168 | 168 | | 132 (f) When an individual applies for unemployment benefits pursuant to chapter 151A, and |
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| 169 | 169 | | 133wage theft occurred during the base period as determined based on credible evidence, the |
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| 170 | 170 | | 134individual’s unemployment benefits shall be calculated as if wages had been timely and lawfully |
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| 171 | 171 | | 135paid. |
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| 172 | 172 | | 136 (g) The attorney general shall enforce this section and may obtain injunctive or |
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| 173 | 173 | | 137declaratory relief. Violation of this section shall be subject to paragraphs (1), (2), (4) and (7) of |
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| 174 | 174 | | 138subsection (b) of section 27C, and subsection (d) of section 27C, except in cases where the lead 8 of 19 |
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| 175 | 175 | | 139contractor, labor contractor or labor subcontractor provides payment in full during the 45-day |
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| 176 | 176 | | 140notice period for any wages allegedly owed, as described in subsection (c). |
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| 177 | 177 | | 141 (h) No person or entity shall by contract or any other means be exempted from |
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| 178 | 178 | | 142subsections (a), (b), (c), (e), (f), (g), or (h), or from section 148F. Nothing in this chapter shall |
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| 179 | 179 | | 143limit the availability of other remedies at law or equity. |
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| 180 | 180 | | 144 (i) The attorney general may promulgate regulations to implement this section. |
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| 181 | 181 | | 145 (j) A lead contractor, labor contractor or labor subcontractor shall not be subject to joint |
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| 182 | 182 | | 146and several liability for non-payment of retirement and health and welfare benefits to an |
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| 183 | 183 | | 147employee benefits fund that has its own collection procedures for delinquent employer |
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| 184 | 184 | | 148remittance as prescribed in a collectively bargained agreement pursuant to the Taft Hartley Act. |
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| 185 | 185 | | 149This shall apply to section 27 and section 150C of chapter 149. |
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| 186 | 186 | | 150 Section 148F. (a) The attorney general may investigate a claim of wage theft. Upon |
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| 187 | 187 | | 151finding that any person or entity has engaged in a wage theft violation, the attorney general may |
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| 188 | 188 | | 152issue a stop work order to an employer, requiring the cessation of all business operations of the |
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| 189 | 189 | | 153violating person or entity as to the specific place of business and employment for which the |
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| 190 | 190 | | 154violation exists. Said notice shall also be issued to the officer or agent of the employer and the |
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| 191 | 191 | | 155lead contractor, if any. |
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| 192 | 192 | | 156 Not less than 5 days before the commencement of a stop work order under this section, |
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| 193 | 193 | | 157the attorney general shall notify the violating person or entity and the lead contractor, if any, of |
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| 194 | 194 | | 158the intended action and give the person or entity an opportunity to confer with the attorney |
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| 195 | 195 | | 159general in person or through counsel or other representative as to the proposed action. Notice 9 of 19 |
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| 196 | 196 | | 160shall be given to the person or entity by mail, postage prepaid, to the usual place of business or, |
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| 197 | 197 | | 161if there is no usual place of business, to the last known address. |
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| 198 | 198 | | 162 The stop work order may be issued only against the person or entity that has engaged in a |
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| 199 | 199 | | 163wage theft violation and only as to the specific place of business or employment for which the |
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| 200 | 200 | | 164violation exists. The stop work order shall be effective 48 hours after it is served unless a timely |
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| 201 | 201 | | 165appeal request is filed pursuant to subsection (b). A stop work order shall be served in hand or at |
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| 202 | 202 | | 166a place of business, employment or job site by posting a copy of the stop work order in a |
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| 203 | 203 | | 167conspicuous location. A stop work order shall be released by the attorney general upon a finding |
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| 204 | 204 | | 168that the violation has been corrected. |
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| 205 | 205 | | 169 (b) A person or entity aggrieved by the imposition of a stop work order shall have 10 |
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| 206 | 206 | | 170days from the date of its service to make a request for a hearing. A person or entity that timely |
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| 207 | 207 | | 171files such an appeal shall be granted a hearing in accordance with chapter 30A not later than 21 |
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| 208 | 208 | | 172days after receipt of the appeal. The stop work order shall not be in effect during the pendency of |
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| 209 | 209 | | 173a timely filed appeal. |
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| 210 | 210 | | 174 (c) A stop work order imposed against a person or entity shall be effective against any |
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| 211 | 211 | | 175successor entity as defined by section 148E. |
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| 212 | 212 | | 176 (d) An employee affected by a stop work order pursuant to this section shall be paid their |
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| 213 | 213 | | 177regular rate for the period the stop work order is in place or the first 10 days the employee would |
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| 214 | 214 | | 178have been scheduled to work if the stop work order had not been issued, whichever is less, by the |
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| 215 | 215 | | 179person or entity that was served the stop work order. Time lost by an employee affected by a stop |
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| 216 | 216 | | 180work order pursuant to this section, not exceeding 10 days, shall be considered time worked 10 of 19 |
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| 217 | 217 | | 181under chapters 149 and 151. Subsection (c) of section 148E shall not apply to wages due and |
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| 218 | 218 | | 182payable under this subsection. |
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| 219 | 219 | | 183 (e) The attorney general may promulgate regulations to implement this section. |
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| 220 | 220 | | 184 SECTION 6. Chapter 149 of the General Laws is hereby amended by inserting after |
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| 221 | 221 | | 185section 148F the following section:- |
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| 222 | 222 | | 186 Section 148G. (a) For purposes of this section, the following terms shall have the |
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| 223 | 223 | | 187following meanings: |
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| 224 | 224 | | 188 (1) “Aggrieved person”, any employee or former employee, or person providing services |
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| 225 | 225 | | 189for remuneration to another against whom one or more of the alleged violations was committed |
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| 226 | 226 | | 190by the alleged violator, whether or not employed by the violator at the time an action is filed, |
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| 227 | 227 | | 191including any person who is not classified by an employer as an employee but who claims to be |
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| 228 | 228 | | 192an employee and whose claims against the purported employer relate to such alleged |
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| 229 | 229 | | 193misclassification. |
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| 230 | 230 | | 194 (2) “Public enforcement action”, a civil action brought by a relator under this section to |
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| 231 | 231 | | 195enforce protections enforceable by the attorney general. |
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| 232 | 232 | | 196 (3) “Relator”, a whistleblower that acts as a plaintiff in a public enforcement action under |
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| 233 | 233 | | 197this section. |
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| 234 | 234 | | 198 (4) “Whistleblower”, an aggrieved person or any current or former employee, contractor, |
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| 235 | 235 | | 199subcontractor, employee of a lead contractor, labor contractor or labor subcontractor of the |
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| 236 | 236 | | 200defendant, vendor, or client with knowledge of the alleged violations that is independent of and |
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| 237 | 237 | | 201materially adds to any publicly disclosed information about the alleged violations. 11 of 19 |
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| 238 | 238 | | 202 (b) (1) A relator, on behalf of the attorney general and with the consent of the aggrieved |
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| 239 | 239 | | 203person or persons, may initiate a public enforcement action pursuant to the procedures and |
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| 240 | 240 | | 204subject to the limitations specified in subsection (e) of this section. Such action may be brought |
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| 241 | 241 | | 205in any court of competent jurisdiction. Such an action may allege multiple violations that have |
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| 242 | 242 | | 206affected different parties aggrieved by the same defendant. |
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| 243 | 243 | | 207 (2) For purposes of public enforcement actions brought pursuant to this section, |
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| 244 | 244 | | 208whenever the attorney general is authorized to assess or seek civil remedies, including penalties, |
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| 245 | 245 | | 209equitable and declaratory relief, and other civil relief, for a violation of wage theft, as defined by |
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| 246 | 246 | | 210section 148E of this chapter, a court is hereby authorized to assess the same civil remedies. |
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| 247 | 247 | | 211 (3) When a civil remedy is recovered pursuant to decision or settlement in any public |
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| 248 | 248 | | 212enforcement action, the relator shall be awarded reasonable attorneys’ fees and costs. |
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| 249 | 249 | | 213 (4) Nothing in this section shall operate to limit an aggrieved party’s right to pursue a |
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| 250 | 250 | | 214private action based on the same violation or injury. |
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| 251 | 251 | | 215 (5) Nothing in this section shall operate to limit the attorney general’s right to seek |
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| 252 | 252 | | 216restitution and damages, where available, for aggrieved parties as part of a public enforcement |
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| 253 | 253 | | 217action in which it has intervened. |
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| 254 | 254 | | 218 (6) Civil penalties or fines recovered in a public enforcement action or settlement of a |
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| 255 | 255 | | 219proposed action shall be distributed as follows: |
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| 256 | 256 | | 220 (i) one-third to the aggrieved person; |
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| 257 | 257 | | 221 (ii) one-third to the Community Outreach and Labor Education Fund established in |
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| 258 | 258 | | 222subsection (f) of this section; and 12 of 19 |
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| 259 | 259 | | 223 (iii) one-third to the attorney general. |
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| 260 | 260 | | 224 Any funding received by the attorney general under this section shall be continuously |
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| 261 | 261 | | 225appropriated to supplement, and not supplant, other funding for those purposes. |
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| 262 | 262 | | 226 (7) The right to bring a public enforcement action under this section shall not be impaired |
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| 263 | 263 | | 227by any special contract. |
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| 264 | 264 | | 228 (8) Notwithstanding any other provision of law, a public enforcement action authorized |
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| 265 | 265 | | 229by this section shall be commenced within the same period of time that the attorney general has |
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| 266 | 266 | | 230to take enforcement action under section 150 of this chapter or section 20A of chapter 151. The |
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| 267 | 267 | | 231statute of limitations for bringing a public enforcement action under this section shall be tolled |
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| 268 | 268 | | 232from the date that a relator files a notice pursuant to subsection (e) of this section with the |
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| 269 | 269 | | 233attorney general, or the date that the attorney general commences an investigation, whichever is |
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| 270 | 270 | | 234earlier. |
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| 271 | 271 | | 235 (c) (1) Notwithstanding the provisions of subsection (b) of this section, no public |
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| 272 | 272 | | 236enforcement action may be brought by a relator: |
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| 273 | 273 | | 237 (i) If the attorney general, on the same facts and theories, cites a person or entity within |
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| 274 | 274 | | 238the time periods set forth in subsection (e) of this section for a violation of the same section or |
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| 275 | 275 | | 239sections of the General Laws under which such relator is attempting to recover a civil penalty or |
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| 276 | 276 | | 240other remedy on behalf of aggrieved employees or others, or files a proceeding to assess |
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| 277 | 277 | | 241penalties or to enforce other remedies available to the attorney general, provided that the attorney |
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| 278 | 278 | | 242general provides notice to the relator pursuant to subsection (e) of this section. Public |
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| 279 | 279 | | 243enforcement actions belong to the attorney general and preclude subsequent attorney general |
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| 280 | 280 | | 244enforcement efforts based on the same facts and law, whether brought by the attorney general or 13 of 19 |
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| 281 | 281 | | 245by a relator under this section. However, nothing in this section shall operate to limit the attorney |
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| 282 | 282 | | 246general’s right to seek additional civil remedies for aggrieved parties as part of a public |
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| 283 | 283 | | 247enforcement action in which it has intervened; or |
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| 284 | 284 | | 248 (ii) For any violation of a posting, notice, agency reporting, or filing requirement, except |
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| 285 | 285 | | 249where the filing or reporting requirement involves mandatory payroll reporting. |
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| 286 | 286 | | 250 (2) The attorney general shall establish a publicly available online database of public |
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| 287 | 287 | | 251enforcement actions brought pursuant to this section, which may include the names of the |
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| 288 | 288 | | 252parties, the date filed, the disposition, and any other information that the attorney general shall by |
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| 289 | 289 | | 253regulation prescribe. |
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| 290 | 290 | | 254 (d) (1) No one shall retaliate or take adverse action in any manner against an aggrieved |
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| 291 | 291 | | 255person or whistleblower, or threaten to retaliate or take adverse action, because: |
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| 292 | 292 | | 256 (i) the aggrieved person or whistleblower has brought a public enforcement action; |
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| 293 | 293 | | 257 (ii) the aggrieved person or whistleblower has cooperated with a relator in a public |
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| 294 | 294 | | 258enforcement action or the attorney general in investigating, prosecuting, or intervening in a |
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| 295 | 295 | | 259public enforcement action; or |
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| 296 | 296 | | 260 (iii) it is anticipated that the aggrieved person or whistleblower may bring a public |
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| 297 | 297 | | 261enforcement action or cooperate with one. |
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| 298 | 298 | | 262 (2) Any person aggrieved by a violation of this subsection may enforce it as provided by |
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| 299 | 299 | | 263section 27C or section 150 of this chapter, or as provided by section 19 of chapter 151. |
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| 300 | 300 | | 264 (e) (1) No public enforcement action pursuant to this section may be commenced prior to |
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| 301 | 301 | | 26560 days after written notice of the claim has been filed by the relator with the attorney general. 14 of 19 |
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| 302 | 302 | | 266 (2) The relator shall submit a filing fee of no less than 75 dollars with each filing of |
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| 303 | 303 | | 267notice, subject to any waiver, in accordance with regulations promulgated by the attorney |
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| 304 | 304 | | 268general. Notice and submission of the filing fee shall toll the statute of limitations on the |
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| 305 | 305 | | 269enforcement action for which notice has been provided. |
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| 306 | 306 | | 270 (3) The attorney general shall establish an online portal to provide for efficient electronic |
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| 307 | 307 | | 271filing of the notice. |
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| 308 | 308 | | 272 (4) The notice shall include: |
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| 309 | 309 | | 273 (i) The name, address, and contact information of the alleged violator; |
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| 310 | 310 | | 274 (ii) The name and contact information of the relator; |
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| 311 | 311 | | 275 (iii) The name, address, and contact information of the relator’s legal counsel, should one |
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| 312 | 312 | | 276exist; and |
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| 313 | 313 | | 277 (iv) A concise statement of the underlying claim reasonably calculated to apprise the |
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| 314 | 314 | | 278attorney general of the substance and nature of the claim. |
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| 315 | 315 | | 279 (5) The attorney general shall, by regulation, provide for the right of a relator to furnish |
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| 316 | 316 | | 280an amended notice, if the attorney general determines that the relator’s original notice pursuant |
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| 317 | 317 | | 281to paragraph (1) of this subsection was not in compliance with this section or the regulations |
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| 318 | 318 | | 282issued thereunder. Such determination by the attorney general shall identify with particularity |
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| 319 | 319 | | 283the deficiencies in the original notice. The relator shall have 30 days from receiving the |
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| 320 | 320 | | 284determination of the attorney general of noncompliance with this section to amend the notice. |
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| 321 | 321 | | 285The amended notice will relate back to the original notice. 15 of 19 |
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| 322 | 322 | | 286 (6) If the attorney general intends to investigate the alleged violation, it shall notify the |
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| 323 | 323 | | 287relator of its decision within 30 days of the date of the notice received pursuant to paragraph (1) |
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| 324 | 324 | | 288of this subsection. Within 120 days of that decision, the attorney general may investigate the |
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| 325 | 325 | | 289alleged violation and issue any appropriate citation. If the attorney general, during the course of |
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| 326 | 326 | | 290its investigation, determines that additional time is necessary to complete the investigation, it |
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| 327 | 327 | | 291may extend the time by not more than 60 additional days and shall issue a notice of the |
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| 328 | 328 | | 292extension. If the attorney general determines that a citation will not be issued, it shall notify the |
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| 329 | 329 | | 293relator of that decision within five business days. |
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| 330 | 330 | | 294 (7) If, within 30 days, the attorney general notifies the relator that it does not intend to |
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| 331 | 331 | | 295investigate the alleged violation, the relator may bring a public enforcement action. If, upon an |
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| 332 | 332 | | 296investigation, the attorney general determines that no citation will be issued, it may authorize the |
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| 333 | 333 | | 297relator to commence a public enforcement action. |
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| 334 | 334 | | 298 (8) If more than one relator files a public enforcement action on the same facts or |
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| 335 | 335 | | 299allegations as another relator, the actions may be consolidated under Rule 42 of the |
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| 336 | 336 | | 300Massachusetts Rules of Civil Procedure. |
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| 337 | 337 | | 301 (9) If the attorney general does not object to the filing of a public enforcement action |
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| 338 | 338 | | 302pursuant to this section, but objects to the attorney general being represented by a particular |
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| 339 | 339 | | 303attorney proposed by the relator, the attorney general may, within the time limits set forth in |
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| 340 | 340 | | 304paragraph (6) of this subsection, put the relator on notice of the attorney general’s objection. The |
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| 341 | 341 | | 305attorney general will establish regulations for notice and a hearing, for purposes of reviewing the |
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| 342 | 342 | | 306attorney general’s objection to counsel. Upon finding, after notice and hearing, that, based on |
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| 343 | 343 | | 307the attorney’s past conduct while representing a client or clients, the attorney does not meet the 16 of 19 |
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| 344 | 344 | | 308required professional standards of representatives, or, alternatively, if the attorney fails to |
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| 345 | 345 | | 309zealously pursue the remedies available under this section, the attorney general may order that |
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| 346 | 346 | | 310the public enforcement shall not be filed by the particular attorney on behalf of the relator. |
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| 347 | 347 | | 311 (10) The attorney general may intervene in a public enforcement action and proceed with |
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| 348 | 348 | | 312any and all claims in the action: |
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| 349 | 349 | | 313 (i) As of right within 30 days after the filing of the action; or |
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| 350 | 350 | | 314 (ii) For good cause shown, as determined by the court, after the expiration of the 30-day |
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| 351 | 351 | | 315period after the filing of the action. |
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| 352 | 352 | | 316 (11) If the attorney general intervenes in an action it shall have primary responsibility for |
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| 353 | 353 | | 317prosecuting the action and shall not be bound by an act of the relator bringing the action. In such |
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| 354 | 354 | | 318cases, the relator shall remain a party to the action. The attorney general may move to dismiss or |
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| 355 | 355 | | 319settle the action after the relator has been notified of the filing of the motion and has been |
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| 356 | 356 | | 320provided with an opportunity to be heard, and the court determines that such dismissal or |
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| 357 | 357 | | 321settlement is fair, adequate, reasonable, and in the public interest. Any disposition by the |
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| 358 | 358 | | 322attorney general shall provide compensation for reasonable attorneys’ fees and costs expended |
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| 359 | 359 | | 323on behalf of the relator in instituting the action. |
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| 360 | 360 | | 324 (12) If the attorney general does not intervene in the action, the relator shall have the |
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| 361 | 361 | | 325right to conduct such an action subject to the following limitations: |
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| 362 | 362 | | 326 (i) The court shall review and approve any settlement of any action filed pursuant to this |
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| 363 | 363 | | 327section. The proposed settlement shall be submitted to the attorney general concurrent with |
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| 364 | 364 | | 328submission to the court. The court shall approve a settlement of the action only upon a 17 of 19 |
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| 365 | 365 | | 329determination that such settlement or voluntary dismissal is fair, adequate, reasonable, and in the |
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| 366 | 366 | | 330public interest. |
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| 367 | 367 | | 331 (ii) If the attorney general so requests, it shall be served with copies of all pleadings filed |
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| 368 | 368 | | 332in the action and shall be supplied with copies of all deposition transcripts. The attorney general |
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| 369 | 369 | | 333shall bear any costs associated with service of such pleadings and depositions. |
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| 370 | 370 | | 334 (13) No public enforcement action brought pursuant to this section shall be subject to the |
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| 371 | 371 | | 335requirements of Rule 23 of the Massachusetts Rules of Civil Procedure. |
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| 372 | 372 | | 336 (14) A relator is not allowed to act on behalf of the attorney general in any other manner |
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| 373 | 373 | | 337or capacity except as stated in this section. The ability to bring a public enforcement action shall |
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| 374 | 374 | | 338not include investigatory actions or stop work orders on behalf of the Attorney General’s office. |
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| 375 | 375 | | 339 (f) (1) There shall be established a fund known as the Community Outreach and Labor |
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| 376 | 376 | | 340Education Fund, separate and distinct from the General Fund. Interest earned by the Community |
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| 377 | 377 | | 341Outreach and Labor Education Fund shall be credited to the same Fund. All moneys in the |
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| 378 | 378 | | 342Community Outreach and Labor Education Fund shall be continuously appropriated for the |
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| 379 | 379 | | 343purpose of awarding grants as provided in paragraph (2) of this subsection. The treasurer of the |
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| 380 | 380 | | 344commonwealth shall credit such funds recovered under subsection (b)(6) of this section |
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| 381 | 381 | | 345attributed to the Community Outreach and Labor Education Fund to this fund. |
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| 382 | 382 | | 346 (2) Moneys in the Community Outreach and Labor Fund shall be granted from time to |
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| 383 | 383 | | 347time by the attorney general to organizations that are tax-exempt under subsection (c)(3), (c)(4) |
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| 384 | 384 | | 348or (c)(5) of the federal Internal Revenue Code, 26 U.S. C. section 501, for purposes of funding |
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| 385 | 385 | | 349outreach, education and technical assistance to Massachusetts workers pertaining to workplace |
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| 386 | 386 | | 350rights. The Attorney General shall promulgate regulations relative to further distribution and 18 of 19 |
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| 387 | 387 | | 351disbursal of recoveries. Any funding received from the attorney general under this section shall |
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| 388 | 388 | | 352be continuously appropriated to supplement, and not supplant, other funding for those purposes. |
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| 389 | 389 | | 353Amounts remaining in the fund at the end of a fiscal year shall not revert to the General Fund but |
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| 390 | 390 | | 354shall be available for expenditure in the subsequent year and shall not be subject to section 5C of |
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| 391 | 391 | | 355chapter 29. |
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| 392 | 392 | | 356 (3) Grants provided from the Community Outreach and Labor Education Fund shall be |
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| 393 | 393 | | 357used for activities to assist workers in enforcing employment rights, including but not limited to |
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| 394 | 394 | | 358outreach, community-based education events, training materials, technical assistance, |
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| 395 | 395 | | 359counseling, research and referral services. |
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| 396 | 396 | | 360 (g) This section shall be liberally construed in light of its remedial purposes to expand the |
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| 397 | 397 | | 361enforcement of statutes protecting workers in the commonwealth. |
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| 398 | 398 | | 362 SECTION 7. Section 150 of said chapter 149, as so appearing, is hereby amended by |
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| 399 | 399 | | 363inserting, in line 22, after the word “148C” the following word:- ", 148E". |
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| 400 | 400 | | 364 SECTION 8. Section 150C of said chapter 149, as so appearing, is hereby amended by |
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| 401 | 401 | | 365striking out, in line 9, the words “one thousand dollars,” and inserting in place thereof the |
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| 402 | 402 | | 366following words:- $1,000 or shall be subject to a civil citation or order as provided in subsection |
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| 403 | 403 | | 367(b) of section 27C. |
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| 404 | 404 | | 368 SECTION 9. Said section 150C of said chapter 149, as so appearing, is hereby further |
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| 405 | 405 | | 369amended by adding the following sentence:- The president and treasurer of a corporation and any |
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| 406 | 406 | | 370officers or agents having the management of such corporation and who have knowledge or |
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| 407 | 407 | | 371should have had knowledge of general operations shall be considered the employers of the |
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| 408 | 408 | | 372employees of the corporation for the purposes of this section. 19 of 19 |
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| 409 | 409 | | 373 SECTION 10. Section 19 of chapter 151 of the General Laws, as so appearing, is hereby |
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| 410 | 410 | | 374amended by striking out subsection (1) and inserting in place thereof the following subsection:- |
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| 411 | 411 | | 375 (1) (a) Any person or entity, including an employer or its agent, who in any manner |
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| 412 | 412 | | 376discriminates or takes adverse action, or threatens to discriminate or take adverse action, against |
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| 413 | 413 | | 377any person because that person has opposed a violation of this chapter, complained to the |
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| 414 | 414 | | 378attorney general or to any other person of a violation of this chapter, assisted any other person in |
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| 415 | 415 | | 379exercising rights under this chapter, informed any other person of rights under this chapter, or |
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| 416 | 416 | | 380instituted, assisted in, or testified in any investigation or proceedings under or related to this |
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| 417 | 417 | | 381chapter, or because of a belief that the person may in the future engage in any such actions, shall |
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| 418 | 418 | | 382have violated this section and shall be punished or subject to civil proceedings as provided in |
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| 419 | 419 | | 383subsection (b) or subsection (d) of section 27C, or section 150, and shall recover actual damages, |
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| 420 | 420 | | 384compensatory damages, punitive damages, injunctive relief or any other appropriate relief. |
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| 421 | 421 | | 385 (b) There shall be a rebuttable presumption of a violation of this subsection if a person or |
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| 422 | 422 | | 386entity discriminates or takes adverse action, or threatens to discriminate or take adverse action, |
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| 423 | 423 | | 387against any person within 90 days of that person’s exercise of rights under this chapter, including |
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| 424 | 424 | | 388activity protected by this subsection. This presumption may be rebutted by clear and convincing |
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| 425 | 425 | | 389evidence that the action was taken for a permissible purpose and that it would have been taken in |
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| 426 | 426 | | 390the absence of the protected activity. |
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