Amendment #1512 to H5500

Protecting Injured Workers

Ms. Nguyen of Andover moves to amend the bill by adding the following sections:

SECTION XXXX. Section 3 of chapter 23E of the General Laws, as appearing in the 2024 Official Edition, is hereby amended by inserting, in line 46, after the word “claims” the following words:- ; and further provided that the department shall promptly undertake the investigation, hold an investigative conference to obtain any additional evidence or statements, and report the findings regardless of whether a case is open or active in the division of dispute resolution.

SECTION XXXX. Subsection (a) of section 27C of chapter 149 of the General Laws, as so appearing, is hereby amended by inserting, in line 5, after the number “151,” and also by inserting, in line 15, after the number “151,” the following words:- , or paragraph 3 of section 75B of chapter 152.

SECTION XXXX. Subsection 1 of section 1 of chapter 152 of the General Laws, as so appearing, is hereby amended by inserting after the word “section,” in line 32, the following paragraph:-

Wages due and owing at the time of injury pursuant to chapter 149 or chapter 151 may be included in employee earnings for the sole purpose of calculating average weekly wages under this section. When an employer has failed to pay an employee the full amount of wages required by law, and the insurer is required to pay compensation to that employee based on the higher required amount, the employer shall indemnify the insurer for any additional compensation owed under this chapter as a result of the additional wages.

SECTION XXXX. Section 22 of said chapter 152 of the General Laws, as so appearing, is hereby amended by striking out, in lines 10, 11 and 12, the words “may be given in the manner therein provided or in such other manner as may be approved by the department” and inserting in place thereof the following words:-

shall be given to employees by posting a copy of the notice, as approved and issued by the department, in a visible location utilized by and accessible to all employees of the insured person and, depending on the customary manner in which the insured person communicates with employees, by providing a hard or electronic copy of the notice to each employee at the time of hire, when information contained in the notice changes, and within five business days of the date that the insured person acquires knowledge or awareness of an employee’s work-related injury or illness. The notice shall include information on unlawful retaliation, discrimination and fraud under chapter 152 and shall be made available by the department in English and all other languages required under subsection (d)(iii) of section 62A of chapter 151A. The insured person shall post the notice in English and all other primary or preferred languages of current employees and shall provide the notice to individual employees in their primary or preferred languages, except when the notice is not available from the department in those languages.

SECTION XXXX. Section 75B of said chapter 152 of the General Laws, as so appearing, is hereby amended by striking out paragraphs (2) to (4) in their entirety and inserting in place thereof the following paragraphs:-

(2) No person or entity, itself or through its agent, may discharge, refuse to hire, or in any other manner discriminate or take adverse action, or to threaten to discharge, refuse to hire, or in any other manner discriminate or take adverse action, against any person because that person has: (i) exercised a right afforded by this chapter, including reporting or seeking care for a work-related injury or illness; (ii) assisted any other person in exercising a right afforded by this chapter; (iii) informed any other person about a right afforded by this chapter; (iv) opposed a violation of this chapter; (v) testified or in any other manner cooperated with an inquiry or proceeding pursuant to this chapter; or (vi) because of a belief that the person may in the future engage in any such actions. For purposes of this paragraph, “adverse action” shall include any action to deprive an employee of any right afforded by this chapter.

(3) The attorney general may accept and investigate complaints or otherwise initiate investigation into allegations that any person or entity discharged, refused to hire, or in any other manner discriminated or took adverse action, or threatened to discharge, refuse to hire, or in any other manner discriminate or take adverse action against any person because that person reported or sought care for a work-related injury or illness or pursued a claim in connection with a work-related injury or illness. The attorney general may, within 3 years of a violation, take enforcement action as provided in section 27C of chapter 149 or bring a civil action in the name of the commonwealth. If the attorney general prevails in a civil action under this section, the court shall award treble damages, as liquidated damages, for any lost wages and other benefits, and other actual and compensatory damages to any aggrieved person and costs of litigation and reasonable attorneys’ fees to the commonwealth, and the court additionally may order injunctive relief, punitive damages and other appropriate relief. An employer found to have violated this paragraph shall be exclusively liable for relief under this paragraph.

(4) Alternatively, a person claiming to be aggrieved by a violation of paragraph 2 of this section may, within 3 years after the violation, initiate a civil action; provided, however, that the 3-year limitation period shall be tolled from the date that the person files a complaint with the attorney general alleging a violation of this section until the date that the attorney general’s office declines to pursue enforcement of that complaint or the date that an enforcement action by the attorney general becomes final. A person so aggrieved who prevails in such an action shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits, other actual and compensatory damages, costs of litigation and reasonable attorneys’ fees and may be awarded injunctive relief, punitive damages and other appropriate relief. An employer found to have violated paragraph 2 of this section shall be exclusively liable for relief under this paragraph.

(5) For purposes of civil enforcement under paragraph 3 or paragraph 4 of this section, there shall be a rebuttable presumption of a violation if the alleged discharge, refusal to hire, or other discrimination or adverse action, or the threatened discharge, refusal to hire, or other discrimination or adverse action, takes place within 90 days of the protected activity. This presumption may be rebutted by clear and convincing evidence that the adverse action was taken for a permissible purpose and that the action would have been taken in the absence of the person’s exercise of a right afforded by this chapter. For purposes of this paragraph, “adverse action” shall include any action to deprive an employee of any right afforded by this chapter.

(6) Upon a determination by the commissioner that a request for data maintained by the department is intended to be used in such a manner as to violate the purposes of this section, the commissioner may find that the disclosure of such data constitutes an unwarranted invasion of personal privacy pursuant to chapter 4 and deny said request. Nothing in this section shall be construed to prohibit an insurer's right to obtain information held by the department regarding any employee who has filed a claim against such insurer.

Additional co-sponsor(s) added to Amendment #1512 to H5500

Protecting Injured Workers