HOUSE DOCKET, NO. 2323        FILED ON: 1/19/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2368

The Commonwealth of Massachusetts

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PRESENTED BY:

Ann-Margaret Ferrante

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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 providing for the retention of retail workers.

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PETITION OF:

HOUSE DOCKET, NO. 2323        FILED ON: 1/19/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2368

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act providing for the retention of retail workers.

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

SECTION 1. Chapter 149 of the General Laws are hereby amended by inserting after section 191 the following section:-

Section 192- Definitions

“Covered Location” shall mean any retail location in the Commonwealth of Massachusetts with at least 10,000 square feet of selling space where the incumbent employer or successor employer own a minimum of five stores, of any size, in the state.

“Retail Establishment” shall mean any grocery or non-food retail store

“Retail Worker” shall mean any employee of a grocery or mainly non-food retail establishment

“Incumbent Employer” shall mean the employer who operates a covered location prior to the change in control of the covered location.

“Successor Employer” shall mean the employer who operates a covered location after the change in control of the covered location.

“Change in Control” shall mean any disposition of the majority of a covered location’s assets from the incumbent employer to a successor employer.

“Eligible Employee” shall mean any person who has been employed at the covered location for at least 90 calendar days at an average of at least eight hours per week prior to a change in control. "Eligible Employee" shall not include a managerial, supervisory, or confidential employee.

“Transitional Employment Period” shall mean a 90 day period beginning upon either the date of a change in control of a covered location or the end of any period during which the covered location was not open to the public during its normal business hours, whichever is later.

“Department” shall mean the Fair Labor Division of the Attorney General’s Office, which is the government agency charged with investigating and enforcing The Retail Worker Retention Act.

“Violating Employer” shall mean any employer, either incumbent or successor, accused or otherwise suspected of violating the Act.

“Administrator” shall mean the entity with whom appeals are filed, which is the Division of Administrative Law Appeals.

Section 193- Provisions

(a) At least fifteen days before the date upon which there will be of any change in control of a covered location, the incumbent employer shall:

1. provide to the successor employer a full and accurate list containing the date of hire, job category, average hours, rate of pay, and all known contact information for all eligible employees;

2. post a notice in the same location and manner that other statutorily required notices to employees are posted, which shall include:

i. the effective date of the change in control;

ii. the name and contact information for the successor employer;

iii. an explanation of the rights provided by this Act, in a form prescribed by the Department; and

iv. the names and job categories of each eligible employee;

v. the notice must remain posted for at least 30 days

3. provide the list and notice required by (a)(1) and (a)(2) of this section to the eligible employees’ collective bargaining representatives, if any.

(b) A successor employer shall retain each eligible employee for the 90 day transitional employment period under the same or substantially similar terms and conditions of employment.  If eligible employees at a covered location work under a collective bargaining agreement entered into by the incumbent employer, the successor employer agrees to abide by the terms of the collective bargaining agreement during the 90 day transitional employment period.  If eligible employees at a covered location do not work under a collective bargaining agreement entered into by the incumbent employer, except as provided in section 2 (c), a successor employer shall not discharge an eligible employee during the transitional employment period without providing evidence that that it has adequately, fairly, and objectively investigated the circumstances surrounding the eligible employee’s actions and that the discharge of the eligible employee is a reasonable response to the eligible employee’s actions. 

(c) If at any time during the transitional employment period a successor employer decides that it will employ fewer eligible employees than were employed by the incumbent employer, the successor employer shall retain the eligible employees by seniority within each job category.  During the transitional employment period, the successor employer shall maintain a preferential hiring list of any eligible employees not retained by the successor employer who shall, by seniority within their job category, be given a right of first refusal to any jobs that become available during the transitional employment period within their job category.  The successor employer shall offer an eligible employee on the preferential hiring list a job in writing, and shall retain a copy of each written offer for no less than three years from the date the offer was made.

(d) At the end of the transition employment period, a successor employer shall complete a written performance evaluation for each eligible employee retained pursuant to this Act and may offer such eligible employees continued employment. A successor employer shall retain a record of the written performance evaluations for a period of no less than three years.

Section 194- Enforcement

(a)Any person who has reason to believe that a violation of this Act has occurred may report it to the Department.  The Department shall encourage reporting of possible violations by keeping confidential, to the maximum extent permitted by law, identifying information of the person reporting the suspected violation. With the authorization of the person reporting the suspected violation, the Department may disclose identifying information as necessary to enforce the Act, or for other appropriate purposes.

(b)The Department is authorized to take appropriate steps to enforce this Act, including the power to investigate any possible violations of this Act.

(c)Where the Department has reason to believe that a violation occurred, it may order any appropriate temporary relief to mitigate the violation or maintain the status quo pending a complete investigation.

(d)After investigating a possible violation, and providing the violating employer the opportunity to respond to the allegations, if the Department determines that a violation has occurred it may issue a Determination of Violation, which shall identify the violation and the factual basis for the determination. The Department shall serve the Determination of Violation on the violating employer by United States Mail, and the date of service shall be the date of mailing. The Department may order relief, including but not limited to, reinstatement and payment of lost wages and benefits to eligible employees whose rights under this Act were violated, and the payment of an administrative penalty.  To compensate the state for the cost of investigating and remedying the violation, the Department may also order the violating employer to pay the state an amount that does not exceed its enforcement costs. The Department may settle such determinations of violation at its discretion.

(e)The Department may also issue a private right of action to eligible employees making complaints.  If such eligible employees are not contacted by the Department within 60 days of filing a complaint, they shall have a private right of action allowing them to seek reinstatement, treble damages for any actual damages proved by a preponderance of the evidence, punitive damages, attorney’s fees and costs, and any other equitable relief that a court may deem appropriate.

Section 195- Administrative Penalties

(a)Any incumbent employer who violates section 2 (a) of this Act shall be liable for a civil penalty of not more than $1,000 per violation.

(b)Any successor employer who violates section 2 (b) of this Act shall be liable for a civil penalty of not more than $750 per violation.

(c)Any successor employer who violates section 2 (c) of this Act for failing to maintain and/or use a preferential hiring list pursuant to said paragraph shall be liable for a civil penalty of not more than $750 per violation.

(d)Any successor employer who violates section 2 (c) of this Act by failing to retain written verification of any offer of employment made pursuant to said paragraph shall be liable for a civil penalty of not more than $750 per violation.

(e)Any successor employer who violates section 2 (d) of this Act for failing to complete and retain written performance evaluations pursuant to said paragraph shall be liable for a civil penalty of not more than $750 per violation.

(f)In addition to the above-referenced penalties, the remedy in any administrative proceeding or civil action undertaken pursuant to this section may include:

1.three times the pay for each day the eligible employee was discharged or not retained in violation of this Act.  This pay rate shall be calculated using the higher of

2.the average regular rate of pay received by the eligible employee during the last three years of the eligible employee’s employment in the same job category, or

3.the most recent regular rate received by the eligible employee while employed by either the incumbent employer or the predecessor employer, regardless whether the employee earned other income that was less than, equal to, or greater than the eligible employee’s most recent regular rate. 

i.the value of the benefits the eligible employee would have received under the successor employer’s benefit plan for those days the eligible employee was discharged or was not retained in violation of this Act;

ii.an order requiring that the successor employer retain its eligible employees during the transitional employment period unless an eligible employee is discharged pursuant to section 2 (b) of the Act; and

iii.reasonable attorney’s fees and costs incurred in prosecuting a civil action for a violation of this Act, if the eligible employee prevails in the civil action.

Section 196-Appeal Procedure

(a)Any appeal from a Determination of Violation shall be filed in writing by the appellant within 15 days of the date of service. Appellant shall file the appeal with the Administrator and serve a copy on the Department by United States Mail. Failure to do either shall constitute a concession to the violation, and the violation shall be deemed final.

(b)The parties will be given 30 days from the latter of the date the appeal is filed and the date notice of process is served to try to reach an equitable settlement.

(c)If no settlement is reached in the given timeframe, any party may request in writing, with concurrent notice to all other parties, that the Administrator appoint a hearing officer to hear and decide the appeal. If no party requests appointment of a hearing officer, the violation shall be deemed final on the 60th day.

(d)Within 15 days of receiving a written request for appointment of a hearing officer, the Administrator shall appoint a qualified, impartial hearing officer. The administrator will also immediately notify all parties of the appointment.

(e)The hearing officer shall begin holding the hearing within 45 days of her or his appointment and conclude the hearing within 75 days of her or his appointment. The hearing officer shall conduct a fair and impartial evidentiary hearing.  The hearing officer may extend these time limits only upon a determination by the Administrator that there is good cause to do so.

(f)Appellant shall have the burden of proving by a preponderance of the evidence that the basis for the Determination of Violation is incorrect.  This means that the Appellant must prove that it is more than 50% likely that the basis for the Determination of Violation is incorrect. 

(g)Within 30 days of the end of the hearing, the hearing officer shall issue a written decision affirming, modifying, or dismissing the Determination of Violation. The hearing officers shall make findings of fact and rulings of law. The hearing officer’s findings and rulings shall be the final administrative determination.

(h)Any party may appeal the final administrative determination by filing in the state’s trial court within the time allotted by state law.  Failure to do so shall constitute a failure to exhaust administrative remedies, which shall serve as a complete defense to any future litigation regarding the subject matter of the violation.  If this occurs, no further appeals of the final administrative determination can be filed.

Section 197- Retaliation Prohibited

(a)It shall be unlawful to take adverse action against any person in retaliation for exercising any rights protected by this Act.  This includes, but is not limited to

1.The right to file a complaint;

2.The right to inform any person about any party’s alleged noncompliance with the Act;

3.The right to inform people of their potential rights under this Act; and

4.The right to assist people in asserting such rights;

(b)The protections of section 6 (a) shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this Act.

(c)Taking adverse action against a person within 90 days of the person’s exercise of rights protected by this Act shall raise a rebuttable presumption that the party taking the adverse action did so in retaliation for the exercise of such rights.  This presumption is rebuttable

Section 198- Severability

(a)If any section, subsection, sentence, phrase, or word of this Act, or any application thereof, is held to be invalid or unconstitutional by a decision of a court, the rest of this Act shall remain in effect. 

(b)The Legislature declares that it would have passed this Act and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional regardless of the validity or constitutionality of any other portion of this Act or application thereof.

Section 199- Conflict Avoidance

(a)Nothing in sections 192 to 199 of this chapter shall be interpreted so as to create any right, requirement, power, or duty in conflict with any federal law.

(b)Section 193 of this chapter shall not apply to any successor employer that, on or before the effective date of the transfer of control from the incumbent employer to the successor employer, enters into a collective bargaining agreement covering the eligible employees or agrees to assume, or to be bound by, the collective bargaining agreement of the incumbent employer covering the eligible employees, provided that such collective bargaining agreement provides terms and conditions regarding the discharge and lay off of employees.