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  • Acts
  • 1998
  • Chapter 236 AN ACT RELATIVE TO THE PAYMENT OF WAGES.

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 39G of chapter 30 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 84, the word "periodic,".

SECTION 2. The sixth paragraph of said section 39G of said chapter 30, as so appearing, is hereby amended by inserting after the first sentence the following two sentences:- Within 15 days, 30 days in the case of the commonwealth, after receipt from the contractor, at the place designated by the awarding authority, if such place is so designated, of a periodic estimate requesting payment of the amount due for the preceding periodic estimate period, the awarding authority shall make a periodic payment to the contractor for the work performed during the preceding periodic estimate period and for the materials not incorporated in the work but delivered and suitably stored at the site, or at some location agreed upon in writing, to which the contractor has title or to which a subcontractor has title and has authorized the contractor to transfer title to the awarding authority, upon certification by the contractor that he is the lawful owner and that the materials are free from all encumbrances. The awarding authority shall include with each such payment interest on the amount due pursuant to such periodic estimate at the rate herein above provided from the due date.

SECTION 3. Section 39K of said chapter 30, as so appearing, is hereby amended by striking out, in line 8, the word "forty-five" and inserting in place thereof the following figure:- 30.

SECTION 4. Said section 39K of said chapter 30, as so appearing, is hereby further amended by inserting after the word "authority,", in line 17, the following words:- upon certification by the contractor that he is the lawful owner and that the materials are free from all encumbrances, but.

SECTION 5. Section 26 of chapter 149 of the General Laws, as so appearing, is hereby amended by inserting after the word "town", in lines 3, 16 and 37, the following word:- , authority.

SECTION 6. Section 27 of said chapter 149, as so appearing, is hereby amended by striking out, in lines 49 and 50, the words "be punished by a fine of not more than ten thousand dollars" and inserting in place thereof the following words:- have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C. The president and treasurer of a corporation and any officers or agents having the management of such corporation shall also be deemed to be employers of the employees of any corporation within the meaning of sections 26 to 27B, inclusive.

SECTION 7. Said chapter 149 is hereby further amended by striking out section 27C, as so appearing, and inserting in place thereof the following section:-

Section 27C. (a)(1) Any employer, contractor or subcontractor, or any officer, agent, superintendent, foreman, or employee thereof who willfully violates any provision of section 26, 27, 27A, 27B, 27F, 27G, 27H, 148 or 148B or section 1A, 1B or 19 of chapter 151, shall be punished by a fine of not more than $25,000 or by imprisonment for not more than one year for a first offense, or by both such fine and imprisonment and for a subsequent willful offense a fine of not more than $50,000, or by imprisonment for not more than two years, or by both such fine and such imprisonment.

(2) Any employer, contractor or subcontractor, or any officer, agent, superintendent, foreman or employee thereof who without a willful intent to do so, violates any provision of section 26, 27, 27A, 27B 27F, 27G, 27H, 148 or 148B or section 1A, 1B or 19 of chapter 151, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than six months for a first offense, and for a subsequent offense by a fine of not more than $25,000 or by imprisonment for not more than one year, or by both such fine and such imprisonment. A complaint or indictment hereunder or under the provisions of the first paragraph may be sought either in the county where the work was performed or in the county where the employer, contractor, or subcontractor has a principal place of business. In the case of an employer, contractor, or subcontractor who has his principal place of business outside the commonwealth, a complaint or indictment may be sought either in the county where the work was performed or in Suffolk county.

(3) Any contractor or subcontractor convicted of willfully violating any provision of section 26, 27, 27A, 27B, 27F, 27G or 27H shall, in addition to any criminal penalty imposed, be prohibited from contracting, directly or indirectly, with the commonwealth or any of its agencies or political subdivisions for the construction of any public building or other public works, or from performing any work on the same as a contractor or subcontractor, for a period of five years from the date of such conviction. Any contractor or subcontractor convicted of violating any provision of section 26, 27, 27A, 27B, 27F, 27G or 27H shall, in addition to any criminal penalty imposed, be prohibited from contracting, directly or indirectly, with the commonwealth or any of its agencies, authorities or political subdivisions for the construction of any public building or other public works or from performing any work on the same as a contractor or subcontractor, for a period not to exceed six months from the date of such conviction for a first offense and up to three years from the date of conviction for subsequent offense. After final conviction and disposition of a violation pursuant to this paragraph in any court, the clerk of said court shall send a notice of such conviction to the attorney general, who shall send written notice to all departments and agencies of the commonwealth which contract for public construction and to the appropriate authorities of counties, authorities, cities and towns that such person is prohibited from contracting, directly or indirectly, with the commonwealth or any of its authorities or political subdivisions for the period of time required under this paragraph. The attorney general may take such action as may be necessary to enforce the provisions of this paragraph, and the superior court shall have jurisdiction to enjoin or invalidate any contract award made in violation of this paragraph.

(b)(1) As an alternative to initiating criminal proceedings pursuant to subsection (a), the attorney general may issue a written warning or a civil citation upon the inspection of a public works or other workplace. For each violation, a separate citation may be issued requiring any or all of the following: that the infraction be rectified, that restitution be made to the aggrieved party, or that a civil penalty of not more than $25,000 for each violation be paid to the commonwealth, within 21 days of the date of issuance of such citation. For the purposes of this paragraph, each failure to pay an employee the appropriate rate or prevailing rate of pay for any pay period may be deemed a separate violation, and the pay period shall be a minimum of 40 hours unless such employee has worked fewer than 40 hours during that week.

(2) Notwithstanding the foregoing, the maximum civil penalty that may be imposed upon any employer, contractor or subcontractor, who has not previously been either criminally convicted of a violation of the provisions of this chapter or chapter 151 or issued a citation hereunder, shall be no more than $15,000, except that in instances in which the attorney general determines that the employer, contractor or subcontractor lacked specific intent to violate the provisions of this chapter or said chapter 151, the maximum civil penalty for such an employer, contractor or subcontractor who has not previously been either criminally convicted of a violation of the provisions of this chapter or said chapter 151 or issued a citation hereunder shall be not more than $7,500. In determining the amount of any civil penalty to be assessed hereunder, said attorney general shall take into consideration previous violations of this chapter or said chapter 151 by the employer, the intent by such employer to violate the provisions of this chapter or said chapter 151, the number of employees affected by the present violation or violations, the monetary extent of the alleged violations, and the total monetary amount of the public contract or payroll involved.

(3) In the case of a citation for violating any provision of section 26, 27, 27A, 27B, 27F, 27G or 27H, the attorney general may also order that a bond in an amount necessary to rectify the infraction and to ensure compliance with sections 26 to 27H, inclusive, and with other provisions of law, be filed with said attorney general, conditioned upon payment of said rate or rates of wages, including payments to health and welfare funds and pension funds, or the equivalent payment in wages, on said public works to any person performing work within classifications as determined by the commissioner. Upon any failure to comply with the requirements set forth in such citation, said attorney general may order the cessation of all or the relevant portion of the work on the project site. In addition, any contractor or subcontractor failing to comply with the requirements set forth in such citation or order, shall be prohibited from contracting, directly or indirectly, with the commonwealth or any of its agencies or political subdivisions for the construction of any public building or other public works, or from performing any work on the same as a contractor or subcontractor, for a period of one year from the date of issuance of such citation or order. Any contractor or subcontractor who receives three citations or orders occurring on three different occasions, each of which includes a finding of intent, within a three year period shall automatically be debarred for a period of two years from the date of issuance of the third such citation or order. Any debarment hereunder shall also apply to all affiliates of the contractor or subcontractor, as well as any successor company or corporation that said attorney general, upon investigation, determines to not have a true independent existence apart from that of the violating contractor or subcontractor.

(4) Any person aggrieved by any citation or order issued pursuant to this subsection may appeal said citation or order by filing a notice of appeal with the attorney general and the division of administrative law appeals within ten days of the receipt of the citation or order. Any such appellant shall be granted a hearing before the division of administrative law appeals in accordance with chapter 30A. The hearing officer may affirm, vacate, or modify the citation or order. Any person aggrieved by a decision of the hearing officer may file an appeal in the superior court pursuant to the provisions of said chapter 30A.

(5) In cases when the decision of the hearing officer of the division of administrative law appeals is to debar or suspend the employer, said suspension or debarment shall not take effect until 30 days after the issuance of such order; provided, however, that the employer shall not bid on the construction of any public work or building during the aforementioned 30 day period unless the superior court temporarily enjoins the order of debarment or suspension.

(6) If any person shall fail to comply with the requirements set forth in any order or citation issued by the attorney general hereunder, or shall fail to pay any civil penalty or restitution imposed thereby within 21 days of the date of issuance of such citation or order or within 30 days following the decision of the hearing officer if such citation or order has been appealed, excluding any time during which judicial review of the hearing officer's decision remains pending, said attorney general may apply for a criminal complaint for the violation of the appropriate section of this chapter.

(7) Notwithstanding the provisions of paragraph (6), if any civil penalty imposed by a citation or order issued by the attorney general remains unpaid beyond the time period specified for payment in said paragraph (6), such penalty amount, together with interest thereon at the rate of 18 per cent per annum, shall be a lien upon the real estate and personal property of the person who has failed to pay such penalty. Such lien shall take effect by operation of law on the day immediately following the due date for payment of such fine, and, unless dissolved by payment, shall as of said date be considered a tax due and owing to the commonwealth, which may be collected through the procedures provided for by chapter 62C. In addition to the foregoing, no officer of any corporation which has failed to pay any such penalty may incorporate or serve as an officer in any corporation which did not have a legal existence as of the date said fine became due and owing to the commonwealth.

(c) Civil and criminal penalties pursuant to this section shall apply to employers solely with respect to their wage and benefit obligations to their own employees.

SECTION 8. Section 27F of said chapter 149, as so appearing, is hereby amended by striking out, in lines 21 and 22, the words "be punished by a fine of not less than one thousand nor more than five thousand dollars" and inserting in place thereof the following words:- have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C.

SECTION 9. Section 27H of said chapter 149 is hereby amended by striking out the fifth sentence, as amended by chapter 137 of the acts of 1997, and inserting in place thereof the following sentence:- Whoever pays less than said rates of wages, including payments to health and welfare funds and pension funds, or the equivalent in wages, on said works, and whoever accepts for his own use, or for the use of any other person as a rebate, gratuity or in any other guise, any part or portion of said wages, health and welfare funds or pension funds, shall have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C.

SECTION 10. Section 148 of said chapter 149 is hereby amended by striking out the last paragraph, as appearing in the 1996 Official Edition, and inserting in place thereof the following paragraph:-

Whoever violates this section shall be punished or shall be subject to a civil citation or order as provided in section 27C.

SECTION 11. Section 148A of said chapter 149, as so appearing, is hereby amended by adding the following paragraph:-

Any employer who discharges or in any other manner discriminates against any employee because such employee has made a complaint to the attorney general or any other person, or assists the attorney general in any investigation under this chapter, or has instituted, or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceedings, shall, upon conviction thereof, be punished by a fine of not more than $50,000, or by imprisonment for not more than six months, or by both such fine and such imprisonment.

SECTION 12. Section 148B of said chapter 149, as so appearing, is hereby amended by striking out the last paragraph and inserting in place thereof the following paragraph:-

Whoever violates this section shall be punished or shall be subject to a civil citation or order as provided in section 27C.

SECTION 13. Section 1B of chapter 151 of the General Laws, as so appearing, is hereby amended by striking out, in lines 3 to 6, inclusive, the words "be punished by a fine of not less than fifty nor more than two hundred dollars or by imprisonment for not less than ten nor more than ninety days, or by both such fine and imprisonment" and inserting in place thereof the following words:- have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C of chapter 149.

SECTION 14. Section 19 of said chapter 151, as so appearing, is hereby amended by striking out, in lines 9 and 10, the words "be punished by a fine of not less than fifty and not more than two hundred dollars" and inserting in place thereof the following words:- have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C of chapter 149.

SECTION 15. Said section 19 of said chapter 151, as so appearing, is hereby further amended by striking out, in lines 19 to 22, inclusive, the words "be punished by a fine of not less than fifty nor more than two hundred dollars or by imprisonment for not less than ten nor more than ninety days, or by both such fine and imprisonment" and inserting in place thereof the following words:- have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C of chapter 149.

SECTION 16. Said section 19 of said chapter 151, as so appearing, is hereby further amended by striking out, in lines 28 to 31, inclusive, the words "to be punished by a fine of not less than fifty nor more than two hundred dollars or by imprisonment for not less than ten nor more than ninety days, or by both such fine and imprisonment" and inserting in place thereof the following words:- have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C of chapter 149.

SECTION 17. Said section 19 of said chapter 151, as so appearing, is hereby further amended by striking out, in lines 43 to 45, inclusive, the words "be punished by a fine of not less than twenty-five nor more than one hundred dollars" and inserting in place thereof the following words:- have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C of chapter 149.

SECTION 18. Said section 19 of said chapter 151, as so appearing, is hereby further amended by striking out, in lines 63 to 65, inclusive, the words "be punished by a fine of not less than one hundred dollars or by imprisonment for not less than ten nor more than ninety days, or by both such fine and imprisonment" and inserting in place thereof the following words:- have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C of chapter 149.

SECTION 19. Said section 19 of said chapter 151, as so appearing, is hereby further amended by striking out, in lines 72 to 75, inclusive, the words "be punished by a fine of not less than fifty nor more than one thousand dollars, or imprisonment for not less than ten nor more than ninety days, or by both such fine and imprisonment" and inserting in place thereof the following words:- have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C of chapter 149.

SECTION 20. A special commission is hereby established to consider, study, and determine the scope, definition, and cost implications of the terms "gravel and fill" as such terms appear in section 27 of chapter 149 of the General Laws. In the cause of its study and deliberation, said commission shall consider the need for clarity of the terms and provisions of sections 26 to 27H, inclusive, of said chapter 149 relating to the terms "gravel and fill" as such terms appear in said sections. Said commission shall have five members and shall consist of the chairmen of the joint committees on commerce and labor, who shall serve as co-chairmen of said commission, the secretary of transportation and construction or his designee, one representative of the International Brotherhood of Teamsters, and one representative of the Construction Industries of Massachusetts. Said commission shall report its findings on the scope, definition, and cost implications of the terms "gravel and fill" as those terms appear in said section 27 of said chapter 149, together with drafts of legislation it recommends to the house and senate committees on ways and means and to the joint committee on commerce and labor no later than December 1, 1998.

SECTION 21. The provisions of sections 5 to 19, inclusive, and section 20 of this act shall not apply to public works projects bid on or before 90 days after the effective date of this act.

Approved August 7, 1998.