HOUSE . . . . . . . . No. 5086
The Commonwealth of Massachusetts
HOUSE OF REPRESENTATIVES, October 29, 2020.
The committee on Labor and Workforce Development to whom were referred the petition (accompanied by bill, House, No. 1605) of Mark J. Cusack for an investigation by a special commission relative to accountability in labor and services provided by contractors and subcontractors in the Commonwealth, and the petition (accompanied by bill, House, No. 1610) of Daniel M. Donahue and others for legislation to prevent wage theft, promote employer accountability, and enhance public enforcement, reports recommending that the accompanying bill (House, No. 5086) ought to pass.
For the committee,
FILED ON: 10/27/2020
HOUSE . . . . . . . . . . . . . . . No. 5086
The Commonwealth of Massachusetts
In the One Hundred and Ninety-First General Court
An Act to prevent wage theft, promote employer accountability, and enhance public enforcement.
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. Paragraph (1) of subsection (b) of section 27C of chapter 149 of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by inserting, in line 58, after the words “subsection (a)”, the following words:- , or as otherwise provided in sections 100, 148E or 150C.
SECTION 2. Subsection (c) of section 27C of said chapter 149, as so appearing, 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 27C of said chapter 149, as so appearing, is hereby further amended by inserting at the end of the last paragraph, the following subsection:-
(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 4. Chapter 149 of the General Laws 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 section 148F, the following words shall have the following meanings:-
“Labor contractor”, means any person or entity who obtains, engages or provides 1 or more individuals to perform labor or services, with or without a written contract, directly or indirectly, to a lead contractor.
“Labor subcontractor”, means any person or entity who obtains, engages or provides 1 or more individuals to perform labor or services, with or without a written contract, directly or indirectly, to a labor contractor.
“Lead contractor”, means a business, regardless of form, that obtains, engages or is provided 1 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.
“Wage theft”, means any violation of sections 27, 27F, 27G, 27H, 148, 148A, 148B, 148C, 150, 150C, or 152A of this chapter, or subsections (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.
(b) An employer, except a staffing agency as defined by section 159C of this chapter that is licensed or registered pursuant to sections 46A to 46R, inclusive, of chapter 140, shall provide each employee, not later than 10 days after the commencement of employment, with written notice in the language the employer normally uses to communicate employment-related information to the employee, containing the following information: (i) the rate or rates of pay and the basis for those rates, whether paid by the hour, shift, day, week, salary, piece, commission or otherwise, including methods of calculation for overtime, if applicable; (ii) allowances, if any, claimed as part of the minimum wage, including meal, tip or lodging allowances; (iii) the regular pay day designated by the employer; (iv) the name of the employer, including any “doing business as” names used by the employer; (v) the physical address of the employer’s main office or principal place of business, and a mailing address, if different; (vi) the telephone number of the employer; and (vii) the name, address, and telephone number of the employer’s workers’ compensation insurance carrier.
(c) A lead contractor shall be subject to joint and several civil liability with a labor contractor and a labor subcontractor provided that:
(i) the lead contractor knew or should have known that a labor contractor or a labor subcontractor has committed a wage theft violation; and
(ii) at least 30 days prior to the filing of a civil action against a lead contractor for wage theft violations pursuant to this section, notice shall be provided to the lead contractor, labor contractor and labor subcontractor, in writing, of the alleged violation to be raised in that action.
(1) The notice shall provide a detailed description of the nature of the alleged violation,
Including specific information regarding what allegedly occurred and the amount of wages that are allegedly owed.
(2) Any written offer and payment in full of all such wages allegedly owed during the 30 day period by a lead contractor, labor contractor or labor subcontractor shall be a defense to any future civil action based upon the same allegation.
(d) For purposes of this section, a labor contractor or a labor subcontractor shall indemnify a lead contractor for any wages, damages, interest, penalties or attorneys’ fees owed or incurred by the lead contractor as a result of the labor contractor or labor subcontractor’s wage theft violations.
(e) For purposes of this section, a labor subcontractor shall indemnify a labor contractor for any wages, damages, interest, penalties or attorneys’ fees owed by the labor contractor as a result of the labor subcontractor’s wage theft violations.
(f) No person shall by special contract or by any other means exempt himself or herself from section 148F or from subsection (a), (b), (c), (f), (g), (h), (i), or (j) of this section.
(g) Upon notice from the Attorney General of a court order or judgment that a subcontractor has failed to pay wages to its employees, a lead contractor must withhold or cause to be withheld from any payment due to the noncompliant subcontractor on account of such contract, the amount indicated by the Attorney General or court order or judgment as sufficient to satisfy the unpaid wages.
(h) Notice of this section shall be prepared by the attorney general, in English and in other language required under clause (iii) of subsection (d) of section 62A of chapter 151A. Employers shall post this notice in a conspicuous location accessible to employees or contracted workers in establishments where employees or contracted workers with rights under this section perform their duties. Employers shall provide a copy of the notice to their employees or contracted workers. This notice shall include the following: (i) information describing wage theft violations; (ii) information about notices, documentation and other requirements placed on employees or contracted workers in order to exercise their right to collect wages; (iii) information that describes the protection that an employee of contracted worker has in exercising their rights under this section; and (iv) the name, address, phone number and website of the attorney general’s office where questions about the rights and responsibilities under this section can be answered. Where the attorney general informs the director of the department of unemployment assistance or the director determines through credible evidence that an employer, person or entity responsible for the payment of contributions under section 14 of said chapter 151A has committed a wage theft violation o otherwise failed to timely pay wages to an individual, the individual’s unemployment benefit shall be calculated as if the wages have been timely paid.
(i) The attorney general shall enforce this section, and may obtain injunctive or declaratory relief for this purpose. Violation of this section shall be subject to paragraphs (1), (2), (4), (6) and (7) of subsection (b) of section 27C and to section 150.
(j) Nothing in this chapter shall limit the availability of any other remedies at law or equity.
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 that 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 and 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 a 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 operation 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 and 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 or entity aggrieved by the imposition of a stop work order issued pursuant to subsection (a) or (b) of this section shall have 10 days from the date of its service to make a request to the issuing agency for a hearing. Any person or entity that timely files such an appeal shall be granted a hearing in accordance with chapter 30A within 14 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 1 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 period the stop work order is in place or the first 10 days the employee would have been scheduled to work if the stop work order had not been issued, whichever is less, by the person or entity that was served the stop work order. Time lost by an employee affected by a stop work order pursuant to this section, not exceeding 10 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 section 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 5. Section 150 of said chapter 149 of the General Laws is hereby amended by inserting, in line 22, after the word “148C” the following word:- , 148E.
SECTION 6. Section 150C of said chapter 149 of the General Laws is hereby amended by striking out, in line 9, the words “one thousand dollars,” and inserting in place thereof the following words:- $1,000 or shall be subject to a civil citation or order as provided in section 27C”, and further amended by adding the following sentence after the word “force” in line 14: “The president and treasurer of a corporation and any officers of 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.”