HOUSE DOCKET, NO. 192        FILED ON: 1/8/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1618

The Commonwealth of Massachusetts

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PRESENTED BY:

Dylan A. Fernandes and Mike Connolly

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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 protecting workers' wages from arbitrary recoupment of overpayments.

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PETITION OF:

HOUSE DOCKET, NO. 192        FILED ON: 1/8/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1618

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 3141 OF 2017-2018.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act protecting workers' wages from arbitrary recoupment of overpayments.

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, as appearing in the 2012 Official Edition, is hereby amended by inserting before the first paragraph of 150C, the following paragraph:-

Except for as otherwise authorized by law, no deductions from wages shall be made except as are expressly authorized in writing by the employee and are for the benefit of the employee; provided that such authorization is kept on file on the employer’s premises.

SECTION 2. Chapter 149 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by inserting after section 150C, the following section:

Section 150D Overpayment of Wages; Restrictions on Recoupment; Penalties

No person shall make deductions from an employee’s wages for an overpayment of wages and such deductions shall not constitute a valid set-off against wages under this Chapter, except under the following conditions:

(a) The employer shall only recover such overpayments as were made in the eight (8) weeks prior to the issuance of the notice described in subdivision (e) below. The employer may make deductions to recover overpayments for a period of six (6) years from the original overpayment;

(b) The employer shall recover overpayments by wage deduction no more frequently than once per pay period, provided that such deduction complies with this Section. 

(c) An employer may recover overpayments by deducting the amount of the overpayment from the employee’s wages if, in advance of said deduction, the employee voluntarily agrees in writing that the amount constitutes an overpayment and that the overpayment may be deducted from the employee’s future wages.  If the employee does not voluntarily agree in writing as to the validity of the claim of overpayment, the employer is prohibited from making any deductions from the employee’s wages to recover the alleged overpayment.

(d) An employer shall not retaliate against an employee who does not voluntarily agree in writing to the deduction from wages sought and must provide notice to the employee that refusal by the employee to consent to wage deduction(s) will not result in any disciplinary or retaliatory action.

(1) The initiation of legal action against an employee to recover an overpayment shall not constitute discipline or retaliation under this Section.

(e) Unless the employee voluntarily opts otherwise, in writing and in advance, the recovery of an overpayment may not exceed 10% of the gross wages earned in any pay period from which deduction is made. In no case shall such deduction reduce the effective hourly wage below the statutory state minimum hourly wage.

(f) The employer shall provide the employee with notice of the intent to commence the deductions to recover the overpayment. Notice shall be given at least two weeks before the deductions may commence. Such notice shall contain the amount overpaid in total and per pay period, the total amount to be deducted and the date each deduction shall occur followed by the amount of each deduction. The notice shall also provide notice to the employee that he or she may contest the overpayment, provide the date by which the employee shall contest, and include the procedure by which the employee may contest the overpayment and/or terms of recovery, or provide a reference to where such procedure can be located. The failure of an employer to afford this process to the employee shall create the presumption that the contested deduction was impermissible.

(g) Whoever violates this section shall be subject to all of the civil and criminal penalties and remedies set forth in section 27C.

An employee claiming to be aggrieved by a violation of this section may proceed pursuant to the second paragraph of section 150. The attorney general or, under said section 150, an employee may bring an action under this section within 3 years of any violation of this section.

(h) No employer or person shall by a special contract with an employee or by any other means exempt itself from this section.

Where more than 500 Massachusetts employees are affected by the occurrence of a payroll system failure that results in inaccurate payroll records and payment of wages, whether under or overpayments have occurred, or some combination thereof, the employer shall provide notice to the Attorney General within one week of the occurrence, including the course of action it is taking to remedy the problem.

(h) Whoever violates this section shall be subject to all of the civil and criminal penalties and remedies set forth in section 27C.

An employee claiming to be aggrieved by a violation of this section may proceed pursuant to the second paragraph of section 150. The attorney general or, under said section 150, an employee may bring an action under this section within 3 years of any violation of this section.