From JDSupra, Puneet Dhaliwal and Gary Lieberman provide an excellecent summary of bills and initiative petitions that are up for consideration this year including a bill that would help employers avoid treble damages for late payment of wages. Punee and Gary write:
The Massachusetts legislature has introduced a series of employment- and labor-related bills that, if enacted, will require employers across the Commonwealth to establish, revisit or revise policies and practices. In addition, there are certified ballot initiatives that, if they ultimately make it on the November 2024 ballot, will allow voters to decide whether app-based rideshare and delivery drivers are independent contractors.
From creating a good-faith defense for employers to avoid treble damages for unpaid wages and accrued vacation pay upon an employee’s termination under the Massachusetts Wage Act, G.L. c. 149 § 148 (MWA), to establishing a progressive escalation of minimum wage for tipped employees, these bills would inform new thresholds and processes for Massachusetts employers.
Below is a brief overview of some notable Massachusetts pending legislation and ballot initiatives that would affect employers:
- House Bill 1944/Senate Bill 1182: Treble Damages Avoidance. Under the MWA and the Supreme Judicial Court’s decision in Reuter v. City of Methuen, 489 Mass 465 (2022), an employer can be liable for treble damages for failing to pay employees their final wages and accrued vacation pay on the last day of employment. The bill clarifies process and standards for employers to pay out any wages due to an employee at the time of termination, protecting employers from lawsuits under the MWA seeking treble damages without an intermediary warning. Under the terms of the bill, employees making post-employment termination claims seeking to recover unpaid compensation and treble damages must first make a written demand to the employer specifying those sums. The employer would then have 15 days to respond or cure the employee’s demand, without incurring statutory treble damages during that time. If an employer can make a good-faith argument that the demand is unfounded, a court cannot award statutory or treble damages.
- House Bill 1099: Organization of Ride-share App Drivers. This bill would allow transportation network drivers to form labor organizations and organize for standardized employment qualifications and benefits. The bill reflects the state’s policy in advocating for transportation network drivers. This legislation would also set precedent in Massachusetts by allowing for sectorial bargaining.
- House Bill 1925/Senate Bill 1200: Minimum Wage in Massachusetts. This bill seeks to raise the minimum wage to $20.00 over five years and the tipped minimum wage to $12.00 over five years, effective January 1, 2028, citing the rise in cost of living. The bill indexes minimum wage to inflation and sets the tipped minimum wage at 60 percent of the minimum wage. Unlike in other years, there is no accompanying ballot initiative to raise the minimum wage, so the issue will remain with the legislature and not appear on the November 2024 ballot.
- House Bill 1872/Senate Bill 1188: Minimum Wage for Tipped Employees. The bill would raise the minimum wage to a tipped employee (such as wait staff employee, service employees, bartenders) in a series annual phased-in escalations up to 2031. The first rise would begin on January 1, 2025, raising the minimum cash wage paid to a tipped employee to $6.75.
- House Bill 1855: Pending Salary at Employee’s Death. Employers have been held liable for distributing deceased employees’ wages. This bill would reduce that liability and administrative burden. The bill would enable employers to pay out a deceased employee’s pending salary to the surviving family, eliminating an employer’s obligation to hold the salary pending intestacy litigation.
- MA House Bill 1838: Overtime for Healthcare Workers. This bill would prohibit mandatory overtime work for healthcare workers, with strict exceptions for emergency situations where overtime work is required for a patient’s safety. Even under the exception, healthcare employers would be required to make a good-faith effort to have such work covered on a voluntary basis.
- MA House Bill 1957: How Much Time is Overtime. Regarding overtime compensation, this bill seeks to change hours worked over 40 hours in a week to include hours worked over eight hours per day to be paid at one and a half times the employee’s compensation rate. The current law requires that most employees be paid overtime for all hours worked in excess of 40 hours in a given work week and state law does not call for overtime after eight hours in a given day.
- Gig Worker Classification. An industry-backed group and a labor union have proposed letting voters decide whether ride-share drivers in Massachusetts should be treated as independent contractors or employees and guaranteed certain benefits, and be allowed to unionize. Attorney General Campbell has certified these ballot initiatives. If the proposals gather a sufficient number of signatures and are not dismissed by the Massachusetts Supreme Judicial Court (unlike in 2022), voters will have a say in gig worker classification on the November 2024 ballot.
As with any other legislative year, it remains to be seen whether the bills introduced in the Massachusetts legislature will gain traction and eventually pass. It is recommended that employers consult with experienced counsel regarding any of these bills to learn more about the current legislative status of the bill and the associated compliance obligations that would result if the bills were to be enacted.