SENATE DOCKET, NO. 1470        FILED ON: 1/19/2023

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1184

The Commonwealth of Massachusetts

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PRESENTED BY:

Cindy F. Friedman

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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 relative to the defense against abusive waivers.

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PETITION OF:

SENATE DOCKET, NO. 1470        FILED ON: 1/19/2023

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1184

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 1164 OF 2021-2022.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act relative to the defense against abusive waivers.

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 is hereby amended by adding the following section:-

Section 204. (a) Any provision in a contract waiving any substantive right or remedy, or any procedural right, remedy, standard or practice, that would otherwise apply to a claim of employment discrimination, retaliation or harassment, nonpayment of wages or benefits, or violation of public policy in employment, shall be unconscionable, void and unenforceable with respect to any such claim arising after the waiver is made. No right or remedy arising under this section, this chapter, chapter 151B, common law, the constitution or a rule of procedure may be prospectively waived. If a provision of a contract is found to be unconscionable, void or unenforceable under this section, the remaining provisions of the contract shall continue in full force and effect.

(b) Whoever requests an employee to agree to, enforces, or attempts to enforce a waiver found to be unconscionable, void or unenforceable under this section shall be liable for damages, reasonable attorneys’ fees and costs.

(c) No individual, employer or prospective employer shall take any retaliatory action including, without limitation, discharge, suspension, demotion, refusal to hire, or discrimination in the terms, conditions or privileges of employment, or any other adverse action, against an individual because the individual refuses to enter into a contract that contains a waiver that would be unconscionable, void or unenforceable under subsection (a).

An individual aggrieved by a violation of this subsection may, within 3 years after the violation, commence a civil action for damages and injunctive relief. If the court finds that an individual was aggrieved by a violation of this section, the individual shall recover reasonable attorneys’ fees and costs. The rights and remedies in this section shall not be exclusive and shall not preempt other available procedures and remedies for retaliatory actions including, but not limited to, those contained in section 150 and section 4 of chapter 151B.

(d) The attorney general may enforce this section if the substantive or procedural right or remedy at issue arises under section 150.

(e) The Massachusetts Commission Against Discrimination may enforce this section if the substantive or procedural right or remedy at issue arises under chapter 151B.

(f) An individual aggrieved by a violation of chapter 151B who seeks a remedy other than: (i) nonenforcement of a provision prohibited by this section; or (ii) reasonable attorneys’ fees and costs for enforcement of any provision of this section, shall seek such remedy under said chapter 151B.

(g) With respect to any agreement presented to an employee with the purpose of requiring the employee to bring to arbitration a matter that has not yet occurred purporting to apply to one or more claims of employment discrimination, retaliation or harassment or nonpayment of wages or benefits arising under this chapter or chapter 151B, or violation of public policy in employment, any party to the agreement may elect to void the agreement after the dispute has arisen. If a party elects to void an agreement requiring the employee to bring to arbitration a matter void under subsection (a) , the remaining provisions of the contract shall continue in full force and effect, unless such remaining provision is void under subsection (a). The remedy contained in this subsection is duplicative of any remedies contained in subsections (a) and (c), and this subsection shall not be interpreted to limit the scope of any other part of this section. Any issue as to whether this section applies to a claim shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.

(h) Nothing in this section shall expand or limit the use of collective bargaining agreements.

SECTION 2. Section 1 of this act shall apply to contracts executed on or after the effective date of this act.