SENATE DOCKET, NO. 2493        FILED ON: 1/22/2018

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2301

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Cynthia Stone Creem

_________________

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 to enhance investigations of sexual harassment and discrimination.

_______________

PETITION OF:

SENATE DOCKET, NO. 2493        FILED ON: 1/22/2018

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2301

The Commonwealth of Massachusetts

_______________

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

_______________

An Act to enhance investigations of sexual harassment and discrimination.

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

Chapter 151B of the General Laws is hereby amended after Section 10 by adding the following sections:

Section 11.  Whenever the attorney general has reason to believe that any person or entity is engaged in a practice declared by section four to be unlawful, and that proceedings would be in the public interest, the attorney general may bring an action in the name of the commonwealth against such person or entity, or to join in any action brought by any person alleging a violation of section four of this chapter, to restrain by temporary restraining order or preliminary or permanent injunction the use of such method, act or practice. The action may be brought in the superior court of the county in which such person or entity resides or has his principal place of business, or the action may be brought in the superior court of Suffolk county with the consent of the parties or if the person has no place of business within the commonwealth. The action may be brought within three-years of the last date of any conduct alleged to be prohibited by this chapter.  If more than one person or entity is joined as a defendant, such action may be brought in the superior court of the county where any one defendant resides or has his principal place of business, or in Suffolk county. Said court may issue temporary restraining orders or preliminary or permanent injunctions and make such other orders or judgments as may be necessary to restore to any person who has suffered any harm by reason of the engagement in conduct prohibited by section four of this chapter. If the court finds that a person or entity has engaged in any conduct prohibited by section four of this chapter, the court may require such person or entity to pay to the commonwealth a civil penalty of not more than fifty-thousand dollars for each such violation and also may require the said person or entity to pay the reasonable costs of investigation and litigation of such violation, including reasonable attorneys' fees, in addition to any damages available pursuant to Section 5 of this chapter.

At least five days prior to the commencement of any action brought by the attorney general under this section, except when a temporary restraining order is sought, the attorney general shall notify the person or entity of his intended action, and give the person or entity an opportunity to confer with the attorney general in person or by counsel or other representative as to the proposed action. Such notice shall be given the person or entity by mail, postage prepaid, to his usual place of business, or if he has no usual place of business, to his last known address.

Any person or entity who violates the terms of an injunction or other order issued under this section shall forfeit and pay to the commonwealth a civil penalty of not more than fifty-thousand dollars for each violation. For the purposes of this section, the court issuing such an injunction or order shall retain jurisdiction, and the cause shall be continued, and in such case the attorney general acting in the name of the commonwealth may petition for recovery of such civil penalty.

Section 12. In any case where the attorney general has authority to institute an action or proceeding under sections five or eleven of this chapter, in lieu thereof the attorney general may accept an assurance of discontinuance of any conduct in violation of this chapter from any person or entity alleged to be engaged or to have been engaged in such conduct. Such assurance may, among other terms, include a stipulation for the voluntary payment by such person or entity of the costs of investigation, or of an amount to be held in escrow pending the outcome of an action or as compensation to aggrieved persons, unless an enforceable contract containing good and valuable consideration accepted by the person alleged to be aggrieved by a violation has been previously executed by said person. Any such assurance of discontinuance shall be in writing and be filed with the superior court of Suffolk county. Matters thus closed may at any time be reopened by the attorney general for further proceedings in the public interest. Any statute of limitations will be tolled between the date of the filing and reopening of any such matter. Evidence of a violation of such assurance shall be prima facie evidence of a violation of section four in any subsequent proceeding brought by the attorney general.

Section 13. (1) Whenever the attorney general believes a person or entity has engaged in or is engaging in any conduct declared to be prohibited by this chapter, the attorney general may conduct an investigation to ascertain whether in fact such person or entity has engaged in or is engaging in such prohibited conduct. In conducting such investigation they attorney general may (a) take testimony under oath concerning such alleged unlawful method, act or practice; (b) examine or cause to be examined any documentary material of whatever nature relevant to such alleged unlawful method, act or practice; and (c) require attendance during such examination of documentary material of any person having knowledge of the documentary material and take testimony under oath or acknowledgment in respect of any such documentary material. Such testimony and examination shall take place in the county where such person or entity resides or has a place of business or, if the parties consent or such person is a nonresident or has no place of business within the commonwealth, in Suffolk county.

(2) Notice of the time, place and cause of such taking of testimony, examination or attendance shall be given by the attorney general at least ten days prior to the date of such taking of testimony or examination.

(3) Service of any such notice may be made by (a) delivering a duly executed copy thereof to the person to be served or to a partner or to any officer or agent authorized by appointment or by law to receive service of process on behalf of such person; (b) delivering a duly executed copy thereof to the principal place of business in the commonwealth of the person to be served; or (c) mailing by registered or certified mail a duly executed copy thereof addressed to the person to be served at the principal place of business in the commonwealth or, if said person has no place of business in the commonwealth, to his principal office or place of business.

(4) Each such notice shall (a) state the time and place for the taking of testimony or the examination and the name and address of each person or entity to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs; (b) state the statute and section thereof, the alleged violation of which is under investigation and the general subject matter of the investigation; (c) describe the class or classes of documentary material to be produced thereunder with reasonable specificity, so as fairly to indicate the material demanded; (d) prescribe a return date within which the documentary material is to be produced; and (e) identify the members of the attorney general's staff to whom such documentary material is to be made available for inspection and copying.

(5) No such notice shall contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of the commonwealth; or require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of the commonwealth.

(6) Any documentary material or other information produced by any person or entity pursuant to this section shall not, unless otherwise ordered by a court of the commonwealth for good cause shown, be disclosed to any person other than the authorized agent or representative of the attorney general, unless with the consent of the person producing the same; provided, however, that such material or information may be disclosed by the attorney general in court pleadings or other papers filed in court.

(7) At any time prior to the date specified in the notice, or within twenty-one days after the notice has been served, whichever period is shorter, the court may, upon motion for good cause shown, extend such reporting date or modify or set aside such demand or grant a protective order in accordance with the standards set forth in Rule 26(c) of the Massachusetts Rules of Civil Procedure. The motion may be filed in the superior court of the county in which the person served resides or has his usual place of business, or in Suffolk county. This section shall not be applicable to any criminal proceeding nor shall information obtained under the authority of this section be admissible in evidence in any criminal prosecution for substantially identical transactions.

(8) The provisions of this Section are to be interpreted consistent with the provisions of Chapter 93A of the general laws.

Section 14. (a) Except as may be placed under protective order by the commission or processed as a pseudonym complaint, any charge of discrimination filed pursuant to section 5 of this chapter which has resulted in a finding of Probable Cause for Crediting the Allegations, along with the investigative or other determination rendered pursuant to sections 5 and 6 of this chapter, shall be available for public inspection upon making arrangements with the commission as soon as practicable as of the date of filing.  The name of any person alleging to have been the victim of sexual harassment or discrimination, including the charging party, must be redacted from any record to be released under this section unless prior written authority is provided to the commission by the person whose name is to be released; (b) The commission will provide the attorney general with the name of any person or entity who has been subject to civil penalties pursuant to clauses (b) and (c) of Section 5 of this Chapter each time any such person becomes subject to the provisions of those clauses, whether or not such civil penalties were in fact imposed, along with each Charge of Discrimination and any finding by the commission; (c) any public statement about an investigation conducted under this chapter shall not identify the victim of any alleged sexual harassment, sexual assault or any other discriminatory conduct without the written assent of the victim.