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| 2 | 2 | | SENATE DOCKET, NO. 1470 FILED ON: 1/19/2023 |
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| 3 | 3 | | SENATE . . . . . . . . . . . . . . No. 1184 |
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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 | | Cindy F. Friedman |
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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 relative to the defense against abusive waivers. |
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| 13 | 13 | | _______________ |
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| 14 | 14 | | PETITION OF: |
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| 15 | 15 | | NAME:DISTRICT/ADDRESS :Cindy F. FriedmanFourth MiddlesexKenneth I. Gordon21st Middlesex1/30/2023Jason M. LewisFifth Middlesex1/31/2023Michael J. BarrettThird Middlesex1/31/2023James B. EldridgeMiddlesex and Worcester3/6/2023 1 of 4 |
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| 16 | 16 | | SENATE DOCKET, NO. 1470 FILED ON: 1/19/2023 |
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| 17 | 17 | | SENATE . . . . . . . . . . . . . . No. 1184 |
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| 18 | 18 | | By Ms. Friedman, a petition (accompanied by bill, Senate, No. 1184) of Cindy F. Friedman, |
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| 19 | 19 | | Kenneth I. Gordon, Jason M. Lewis, Michael J. Barrett and others for legislation relative to an |
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| 20 | 20 | | employee protection act. Labor and Workforce Development. |
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| 21 | 21 | | [SIMILAR MATTER FILED IN PREVIOUS SESSION |
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| 22 | 22 | | SEE SENATE, NO. 1164 OF 2021-2022.] |
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| 23 | 23 | | The Commonwealth of Massachusetts |
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| 24 | 24 | | _______________ |
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| 25 | 25 | | In the One Hundred and Ninety-Third General Court |
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| 26 | 26 | | (2023-2024) |
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| 27 | 27 | | _______________ |
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| 28 | 28 | | An Act relative to the defense against abusive waivers. |
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| 29 | 29 | | Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority |
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| 30 | 30 | | of the same, as follows: |
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| 31 | 31 | | 1 SECTION 1. Chapter 149 of the General Laws is hereby amended by adding the |
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| 32 | 32 | | 2following section:- |
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| 33 | 33 | | 3 Section 204. (a) Any provision in a contract waiving any substantive right or remedy, or |
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| 34 | 34 | | 4any procedural right, remedy, standard or practice, that would otherwise apply to a claim of |
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| 35 | 35 | | 5employment discrimination, retaliation or harassment, nonpayment of wages or benefits, or |
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| 36 | 36 | | 6violation of public policy in employment, shall be unconscionable, void and unenforceable with |
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| 37 | 37 | | 7respect to any such claim arising after the waiver is made. No right or remedy arising under this |
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| 38 | 38 | | 8section, this chapter, chapter 151B, common law, the constitution or a rule of procedure may be |
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| 39 | 39 | | 9prospectively waived. If a provision of a contract is found to be unconscionable, void or 2 of 4 |
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| 40 | 40 | | 10unenforceable under this section, the remaining provisions of the contract shall continue in full |
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| 41 | 41 | | 11force and effect. |
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| 42 | 42 | | 12 (b) Whoever requests an employee to agree to, enforces, or attempts to enforce a waiver |
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| 43 | 43 | | 13found to be unconscionable, void or unenforceable under this section shall be liable for damages, |
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| 44 | 44 | | 14reasonable attorneys’ fees and costs. |
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| 45 | 45 | | 15 (c) No individual, employer or prospective employer shall take any retaliatory action |
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| 46 | 46 | | 16including, without limitation, discharge, suspension, demotion, refusal to hire, or discrimination |
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| 47 | 47 | | 17in the terms, conditions or privileges of employment, or any other adverse action, against an |
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| 48 | 48 | | 18individual because the individual refuses to enter into a contract that contains a waiver that |
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| 49 | 49 | | 19would be unconscionable, void or unenforceable under subsection (a). |
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| 50 | 50 | | 20 An individual aggrieved by a violation of this subsection may, within 3 years after the |
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| 51 | 51 | | 21violation, commence a civil action for damages and injunctive relief. If the court finds that an |
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| 52 | 52 | | 22individual was aggrieved by a violation of this section, the individual shall recover reasonable |
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| 53 | 53 | | 23attorneys’ fees and costs. The rights and remedies in this section shall not be exclusive and shall |
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| 54 | 54 | | 24not preempt other available procedures and remedies for retaliatory actions including, but not |
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| 55 | 55 | | 25limited to, those contained in section 150 and section 4 of chapter 151B. |
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| 56 | 56 | | 26 (d) The attorney general may enforce this section if the substantive or procedural right or |
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| 57 | 57 | | 27remedy at issue arises under section 150. |
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| 58 | 58 | | 28 (e) The Massachusetts Commission Against Discrimination may enforce this section if |
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| 59 | 59 | | 29the substantive or procedural right or remedy at issue arises under chapter 151B. 3 of 4 |
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| 60 | 60 | | 30 (f) An individual aggrieved by a violation of chapter 151B who seeks a remedy other |
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| 61 | 61 | | 31than: (i) nonenforcement of a provision prohibited by this section; or (ii) reasonable attorneys’ |
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| 62 | 62 | | 32fees and costs for enforcement of any provision of this section, shall seek such remedy under |
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| 63 | 63 | | 33said chapter 151B. |
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| 64 | 64 | | 34 (g) With respect to any agreement presented to an employee with the purpose of requiring |
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| 65 | 65 | | 35the employee to bring to arbitration a matter that has not yet occurred purporting to apply to one |
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| 66 | 66 | | 36or more claims of employment discrimination, retaliation or harassment or nonpayment of wages |
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| 67 | 67 | | 37or benefits arising under this chapter or chapter 151B, or violation of public policy in |
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| 68 | 68 | | 38employment, any party to the agreement may elect to void the agreement after the dispute has |
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| 69 | 69 | | 39arisen. If a party elects to void an agreement requiring the employee to bring to arbitration a |
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| 70 | 70 | | 40matter void under subsection (a) , the remaining provisions of the contract shall continue in full |
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| 71 | 71 | | 41force and effect, unless such remaining provision is void under subsection (a). The remedy |
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| 72 | 72 | | 42contained in this subsection is duplicative of any remedies contained in subsections (a) and (c), |
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| 73 | 73 | | 43and this subsection shall not be interpreted to limit the scope of any other part of this section. |
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| 74 | 74 | | 44Any issue as to whether this section applies to a claim shall be determined by a court, rather than |
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| 75 | 75 | | 45an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration |
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| 76 | 76 | | 46agreement specifically or in conjunction with other terms of the contract containing such |
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| 77 | 77 | | 47agreement, and irrespective of whether the agreement purports to delegate such determinations to |
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| 78 | 78 | | 48an arbitrator. |
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| 79 | 79 | | 49 (h) Nothing in this section shall expand or limit the use of collective bargaining |
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| 80 | 80 | | 50agreements. 4 of 4 |
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| 81 | 81 | | 51 SECTION 2. Section 1 of this act shall apply to contracts executed on or after the |
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| 82 | 82 | | 52effective date of this act. |
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