SENATE DOCKET, NO. 496        FILED ON: 1/17/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 999

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Sal N. DiDomenico

_________________

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 prevent wage theft and promote employer accountability.

_______________

PETITION OF:

SENATE DOCKET, NO. 496        FILED ON: 1/17/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 999

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 2207 OF 2015-2016.]

The Commonwealth of Massachusetts

_______________

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

_______________

An Act to prevent wage theft and promote employer accountability.

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.  Section 27C (b)(1) of chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting, in line 58, after the words “subsection (a),” the words “or as otherwise provided in sections 100, 150C, and 148E of chapter 149,”.

SECTION 2.  Section 27C (c) of said chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby further amended by striking out, in line 159 the words “civil and criminal” and inserting in place thereof the following word:  - criminal.

SECTION 3.  Section 150 of said chapter 149 of the General Laws is hereby amended by inserting after the word “190” in line 40, the following word:  - , 148E.   

SECTION 4.  Section 150C of said chapter 149 of the General Laws is hereby amended by inserting after the words “one thousand dollars,” in line 9 the words “or shall be subject to a civil citation or order as provided in section 27C”, and further amended by inserting after the word “force” in line 14 the following:  “The president and treasurer of a corporation and any officers or agents having the management of such corporation shall be deemed to be the employers of the employees of the corporation within the meaning of this section.

SECTION 5: Section 27C of said chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting at the end of the last paragraph, the following: -

(d) As a further alternative to initiating criminal proceedings pursuant to subsection (a), the attorney general may file a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits on behalf of an employee or multiple, similarly situated employees. If the attorney general prevails in such an action, the employee or employees on whose behalf the attorney general brought the civil action shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits, and the attorney general shall also be awarded the costs of the litigation and reasonable attorneys’ fees.

SECTION 5. Chapter 149 of the general laws, as appearing in the 2014 Official Edition, is hereby further amended by inserting after section 148D, the following sections:-

Section 148E.  Accountability in labor contracting and subcontracting

              (a) As used in this section, and in Section 148F the following words have the following meanings:-

              (1) “Lead contractor” means a business, regardless of form, who obtains, engages, or is provided one or more individuals, directly from a labor contractor or indirectly from a labor subcontractor, to perform labor or services that have a significant nexus with the lead contractor’s business activities, operations, or purposes.

              (2) “Labor contractor” means any person or entity who obtains, engages, or provides one or more individuals to perform labor or services, either with or without a written contract, directly or indirectly, to a lead contractor.

(3) “Labor subcontractor” means any person or entity who obtains, engages, or provides, one or more individuals to perform labor or services, either with or without a written contract, directly or indirectly, to a labor contractor.

(4) “Wage theft” mean any violation of sections 27, 27F, 27G, 27H, 148, 148A, 148B, 148C, 150, 150C, or 152A of this chapter, or subsection (c) or (d) of section 159C of this chapter, or sections 1, 1A, 1B, 2A, 7, 19 or 20 of chapter 151, with respect to any individual obtained, engaged, or employed by a lead contractor, labor contractor, or labor subcontractor.

              (a) A lead contractor shall be subject to joint and several civil liability with a labor contractor and a labor subcontractor. For purposes of this section, the president and treasurer of a corporation and any officers or agents having the management of such corporation shall also be deemed civilly liable for a wage theft violation hereunder.            

(b) Nothing in this section shall limit the availability of other remedies at law or in equity.

(c) No person shall by special contract or by any other means exempt himself from this section or section 148F.

              Section 148F.  Stop Work Order

(a) Notwithstanding sections 15 and 47 of chapter 151A, on determination by the director of the department of unemployment assistance, or a designee, that any person or entity is failing to make contributions required by section 14 of chapter 151A, the director, or designee may issue a stop work order to an employing unit and the officer or agent of the employing unit, requiring the cessation of all business operations of the violator.  The stop work order may be issued only against the person or entity found to be in violation, and only as to the specific place of business or employment for which the violation exists.  The stop work order shall be effective when served upon the violator or at the place of business or employment.  A stop work order may be served in hand or at a place of business, employment, or job site by posting a copy of the stop work order in a conspicuous location.  The stop work order shall remain in effect until the director, or designee, issues an order releasing the stop work order upon a finding that the violation has been corrected.

(b) On determination by the attorney general, or a designee, that any person or entity is engaging in a wage theft violation, the attorney general, or designee, may issue a stop work order to an employing unit and the officer or agent of the employing unit, requiring the cessation of all business operations of the violator.  The stop work order may be issued only against the individual or entity found to be in violation, and only as to the specific place of business or employment for which the violation exists.  The stop work order shall be effective when served upon the violator or at the place of business or employment.  A stop work order may be served in hand or at a place of business, employment, or job site by posting a copy of the stop work order in a conspicuous location.  The stop work order shall remain in effect until the attorney general, or designee issues an order releasing the stop work order upon a finding that the violation has been corrected.

(c) Any person who is aggrieved by the imposition of a stop work order issued pursuant to subsections (a) or (b) of this section shall have ten days from the date of its service to make a request to the issuing agency for a hearing. Any person who timely files such an appeal shall be granted a hearing in accordance with chapter 30A within fourteen days of receipt of the appeal. The stop work order shall not be in effect during the pendency of any timely filed appeal.

              (d) A stop work order imposed hereunder against a person or entity shall be effective against any successor person or entity that (i) has at least one of the same principals or officers as the person or entity against whom the stop work order was issued; and (ii) is engaged in the same or equivalent trade or activity as the person or entity for which the stop work order was imposed.

              (e) Any employee affected by a stop work order pursuant to this section shall be paid for the first ten days lost pursuant to the stop work order, and any time lost pursuant to this section not exceeding ten days shall be considered time worked under chapters 149 and 151. Subsection (b) of section 148E shall not apply to wages due and payable under this subsection.

            (f) The department of unemployment assistance may promulgate regulations to implement sections 148F (a) of chapter 149 of the General Laws. 

(g) The attorney general may promulgate regulations to implement sections 148E and 148F of chapter 149 of the General Laws, but not including subsection (a) of said section 148F of said chapter 149.

SECTION 3: Said chapter 149, as so appearing, is hereby amended by inserting, in line 9, the words “or shall be subject to a civil citation or order as provided in section 27C and by being required to reimburse employees for any wages withheld or deducted that were not put toward the use for which they were withheld or deducted, or by being required to pay for all costs incurred by an employee that would have been paid for or reimbursed by insurance if such insurance coverage had been in force. The president and treasurer of a corporation and any officers or agents having the management of such corporation shall be deemed to be the employers of the employees of the corporation within the meaning of this section” after the words “one thousand dollars,” and by striking from line 9 the words “by being required to reimburse employees for” and by striking lines 11, 12, 13, and 14.