HOUSE DOCKET, NO. 2165        FILED ON: 1/15/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1762

The Commonwealth of Massachusetts

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PRESENTED BY:

David M. Rogers

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act creating a living wage for employees and contracted employees of the Commonwealth.

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PETITION OF:

HOUSE DOCKET, NO. 2165        FILED ON: 1/15/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1762

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act creating a living wage for employees and contracted employees of the Commonwealth.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

The General Laws are hereby amended by inserting after chapter 151F the following chapter:

Chapter 151G

LIVING WAGE LAW

Section 1. Definitions

As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Commissioner”, the director of the department of labor standards.

"Covered Vendor", means any entity who has been awarded a service contract or subcontract with the employer who has been awarded a service contract or subcontract with the “employer” as defined in this section.

"Covered Employee", any person employed by a covered vendor who directly expends or would directly expend his or her time on the service contract with the employer, as defined in this act.

“Department”, the department of labor standards.

“Employee”, any person employed by the “employer” as defined in this section, excluding elected officials, appointed officials, members of any board or commission, members of the militia or national guard. 

“Employer”, a state authority, state agency, or state department as defined in section 1 of chapter 29

“Living Wage”, a wage equal to the levels established in section 3 of this chapter. 

Section 2. Exemptions

This Act shall apply to all covered vendors as defined excluding:

a.Construction contracts that are subject to the state prevailing wage law; and

b.Work- study or cooperative educational programs; provided that the assistance or contract is for stipends to students in the programs.

The Covered Vendor shall submit an affidavit to the Secretary of Labor and Workforce Development on July 1 of each year, certifying compliance with this act.

Section 3. Living Wage Payment to Employees

a.Covered vendors shall pay no less than the living wage to covered employees.

b.The living wage shall be calculated on an hourly basis and shall be no less than $15.00 from July 1, 2016 and shall be subject to adjustment each year on July 1 as follows:

i.To the hourly rate which at forty hours of work a week for fifty weeks a year would be equal to but not less than the poverty threshold for a family of four as published by the United States Department of Health and Human Services; or

ii.In proportion to the increase at the immediately preceding December 31 over the year earlier level of the annual average consumer price index for all urban consumers (CPI-U) Boston-Lawrence-Salem, MA-NH; Barnstable Town, MA; Leominster-Fitchburg-Gardner, MA; New Bedford, MA; Pittsfield, MA; Providence-Fall River-Warwick, RI-MA; Springfield, MA-CT; Worcester, MA-CT as published by the Bureau of Labor Statistics, United States Department of Labor applied to $15.00; or

iii.110% of the federal or state minimum wage; or

iv.Whichever of the foregoing is highest.

Section 4. Duties of Covered Vendors

a.All covered vendors shall provide each covered employee with a fact sheet about this act and shall post a notice about the act in a conspicuous location visible to all employees. The fact sheet and poster shall be provided to the employer and covered vendor by the department and shall include:

i.Notice of the living wage amount;

ii.A summary of the provisions of this act;

iii.A description of the enforcement provisions of the act;

iv.The name, address, and phone number of a person designated by the employer or covered vendor to which complaints of noncompliance with this act should be directed.

b.Each covered vendor shall maintain payrolls for all covered employees and basic records relating thereto for a period of three years. The records shall contain the name and address of each covered employee, the job title and classification, the number of hours worked each day, the gross wages, deductions made, actual wages paid, a copy of the social security returns, and evidence of payment thereof, a record of fringe benefit payments including contributions to approved plans, funds or programs and/or additional cash payments, and such other data as may be required by the contracting department from time to time.

Each employer or covered vendor shall permit representatives of the department to observe work being performed upon the work site, to interview employees and to examine the books and records relating to the payrolls being investigated.

Section 5. Vendor Agreements.

At the time of signing a service contract with the employer or subcontract with a covered vendor, the contract must include a written commitment by the covered vendor to pay all covered employees not less than the living wage, subject to adjustment each July 1, and to comply with the provisions of this act;

Section 6. Enforcement Powers.

If necessary for the enforcement of this act, the department may require the attendance and testimony of witnesses and production of books, papers, records and documents relating to payroll records necessary for hearing, investigations, and proceedings. The department shall solicit the attorney general to enforce these provisions.

Section 7. Complaint Procedures and Investigations.

a.Each employer or covered vendor shall permit any duly authorized officer or employee of the department or of the attorney general to question any covered or non-covered employee of such employer in the place of employment, and during work hours in respect to the wages paid to and the hours worked by employees.

b.A covered employee who believes that his or her employer is not complying with requirements of this act, may file a complaint with the department.  Complaints by covered or non-covered employees of alleged violations may be made at any time. Statements written or oral, made by a covered or non-covered employee, shall be treated as confidential and shall not be disclosed to the covered vendor without the consent of the employee.

c.A complaint of non-compliance with this act may be filed by any person with the department, which shall provide a copy of the complaint to each covered vendor against whom the complaint is made within five business days.

d.Discrimination against covered employees barred. A covered vendor shall be considered to be in violation of this chapter if it:

i. Reduces the compensation of an employee ; or

ii. Discriminates against any covered or non-covered employee for making a complaint to the department, otherwise asserting his or her rights under this act, participating in any of its proceedings, or using any civil remedies to enforce his or her rights under the chapter. 

e.The designated department shall investigate allegations of retaliation or discrimination and shall, if found to be true, after notice and a hearing order appropriate relief to the employee or person and penalties for the covered vendor and may suspend the contract or order the service contractor to suspend the subcontract.

f.The department shall investigate all complaints of non-compliance. Investigations may include routine reviews, spot checks, and investigations pursuant to complaints. The department shall have the responsibility to examine promptly all payrolls for compliance upon receiving a complaint, in furtherance of any investigation.

Section 8. Non-Compliance.

If the department finds evidence that the covered vendor is not in compliance or has violated any of the provisions of this act, the department shall order such remedial measures as required to ensure compliance, as outlined in section 9 of this chapter. 

Section 9. Penalties and Remedies.

The commissioner or the attorney general, or their authorized representatives, shall have full power and authority:

a.To investigate and ascertain the wages of covered employees in the commonwealth;

b.To enter the place of business or employment of the employer of a covered employee, for the purpose of examining, inspecting and making a transcript of any and all books, registers, pay-rolls, and other records of any employer of persons that in any way appertain to or have a bearing upon the question of wages of any such persons and for the purpose of ascertaining whether the orders of the commissioner or the attorney general have been and are being complied with; and

c.To require from such employer full and correct statements in writing when the commissioner or the attorney general, or their authorized representatives, deem necessary, of the wages paid to all covered employees in his employ, such statements to be under oath or accompanied by a written declaration that they are made under the penalties of perjury.

d.If a covered employee is paid by an employer or covered vendor less than the living wage, the covered employee may institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any damages incurred and for the full amount of the living wages less any amount actually paid to him by the employer or covered vendor. An agreement between the covered employee and the employer to work for less than the living wage shall not be a defense to such action. An employee so aggrieved who prevails in such an action shall be awarded treble damages, as liquidated damages, for any loss of living wage and shall also be awarded the costs of the litigation and reasonable attorneys’ fees. At the request of any covered employee paid less than the living wage to which he or she is entitled the attorney general may take an assignment of such wage claim in trust for the assigning covered employee and may bring any legal action necessary to collect such claim, and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court. The attorney general shall not be required to pay a filing fee in connection with any such action.

e.Failure to comply with the provisions of this act constitutes a breach of contract and such breach may result in withholding of payments and/or termination, cancellation or suspension of the contract in whole or in part. Violations may also render the covered vendor ineligible for future contracts with the Commonwealth for three years or until all penalties and restitution have been paid in full.

Section 10.  Local Option.

This chapter shall take effect in a city or town upon its acceptance in the following manner: in a city having a Plan D or Plan E charter by majority vote of its city council; in any other city by vote of its city council, approved by the mayor; in a town by vote of the board of selectmen. 

Section 11.  Waiver.

Requirements of this chapter may be waived by the written terms of a bona fide collective bargaining agreement, provided that this chapter is expressly referenced in the agreement, and that the agreement sets forth in clear and unambiguous terms the desire of all parties to waive some or all of the requirements of this chapter.