mjb@bacelaw.com – BACE LAW

How to File a Wage Complaint With the “Labor Board” in Massachusetts

What is a "Wage and Hour Complaint"? Where do I find the Massachusetts Labor Board? If you are owed wages from your employer in Massachusetts, one avenue of relief is to pursue litigation (a lawsuit) in order to recoup those wages as damages. Prior to the filing of any lawsuit in Massachusetts that seeks damages pursuant to a violation of the Wage Act - a "wage and hour" complaint must be filed. This relatively simple complaint is filed with the Attorney General's office. If you retain an attorney to help you pursue your issue, your attorney will submit this complaint for you. If you are looking for the "Labor Board," the chances are very good that you should speak to an attorney who can evaluate your claim and advise as to the most effective avenue of relief. Why File a Wage and Hour Complaint? The purpose of filing the wage and hour complaint is to satisfy the prerequisite contained in M.G.L. c. 149 Section 150, which states in relevant part that... "An employee claiming to be aggrieved by a violation of sections 33E, 148, 148A, 148B, 150C, 152, 152A or 159C or section 19 of chapter 151 may, 90 days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, and within 3 years after the violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any damages incurred, [...]

mjb@bacelaw.com2018-09-18T17:42:59+00:00

What if I am Paid Piecework, or Per Day, or Per Piece, or Per Installation?

Employers often assume that employees or independent contractors that are paid on a per job or piecework basis do not have to be paid overtime. While paying employees on a piece rate (piecework, per diem, per piece) basis is permissible under both the FLSA and state law, it does not relieve employers of their obligation to pay overtime where applicable, and minimum wage.Generally, when an employee is paid on a piece rate basis and works overtime hours, the employer determines the employee’s regular rate by dividing the employee’s total weekly earnings by the amount of hours worked in that workweek. See, Mullally v. Waste Mgmt. of Massachusetts, Inc., 452 Mass. 526 (2008) . The regular hourly rate is also defined as “the amount that an employee is regularly paid for each hour of work” and that the rate shall include all remuneration for employment paid to, or on behalf of, the employee, but shall not include: (a) sums paid as commissions, drawing accounts, bonuses, or other incentive pay based on sales or production; or (b) sums excluded under 29 U.S.C. § 207(e). and 455 Mass. Code Regs. 2.01.The employee is then entitled to one-half of the regular rate for each hour worked above 40, in addition to their regular piece rate compensation.For example, if an employee paid on a piece rate basis works 45 hours and earns $450.00 in that workweek, the employee’s regular rate for that workweek would be $10.00 per hour. The employee would then be entitled to an additional $25.00 in overtime (half the [...]

mjb@bacelaw.com2018-09-18T17:14:28+00:00

Deductions from Pay and Unreimbursed Expenses

In Massachusetts the law holds employee wages in extremely high regard and with great protection. However there are some valid, but extraordinarily limited situations when employer’s can make deductions from your wages. Wage deductions or set-offs from wages made by employers are not usually permissible except in a few scenarios. FICA and other tax deductions, retirement plan contributions, union dues, judicial wage attachments are all scenarios that can be deducted from your wages. Voluntary deductions for retirement plan contributions, union dues, and the like are permissible. Essentially, your employer may have an obligation to withhold FICA and other taxes from your pay. FICA is a Federal payroll tax for employees and employers to fund Social Security and Medicare. This tax is taken out of your paychecks automatically. It is calculated in two parts: Social Security and Medicare in relation to your gross compensation. In 2013, the Social Security portion is 6.2%, while the Medicare portion is 1.45%. Your employer matches these numbers. However if you are self-employed you are responsible for both portions totaling 15.3%. Deducting taxes from your pay is lawful, and your employer is obligated to do so. In most cases employers CAN NOT deduct expenses from a paycheck (even with a promise to repay the deduction later). These types of deductions are considered wages and are still protected by the Wage Act. See Camara v. Attorney Gen., 458 Mass. 756 (2011). Other than retirement accounts, and similar voluntary deductions, and the tax withholding, an employer cannot make deductions from your pay. Involuntary deductions are equally [...]

mjb@bacelaw.com2018-09-17T19:49:25+00:00

Franchisees = Employees; “Franchise Fees,” and Pay-to-work

It's nearly impossible to be a correctly classified, lawful, Independent Contractor here in Massachusetts (See this recent post). As a further illustration, in a complex, and sweeping decision, the First Circuit has found Franchisees (individuals who purchase a franchise from a franchisor) to be employees, in certain circumstances -- despite their carefully crafted contracts to the contrary. The Coverall Case, Awuah v. Coverall N. Am., Inc., 460 Mass. 484, 498 (2011), is extensive, but the basic point is that the franchisees were deemed employees of the franchisor; as such, the fees paid to purchase the franchise were unlawful payments to an employer for the right to work. In the context of the Wage Act, these fees are a prohibited assignment of an employee's future wages. Franchise fees, insurance premiums, and attorney's fees associated with pursuing the rights of the franchisee all were potentially recoverable.

mjb@bacelaw.com2018-09-17T19:48:28+00:00

You Think You Are an “Independent Contractor,” But You Are NOT

In Massachusetts, it is nearly impossible to be correctly classified as an independent contractor. M.G.L. c. 149, § 148B states that in order to be classified as an independent contractor (and not an employee) all three of the following must be established: 1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and 2) the service is performed outside the usual course of business of the employer; and 3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed. Particularly with regard to Prong Two, the test is almost impossible to meet. By way of example, if you are working for a company that performs insert service here, we'll call it "X", and you spend your day performing "X", then you are not an independent contractor. Even if you sign a contract that states, "I hereby agree that I'm an independent contractor," you're still an employee in the eyes of Massachusetts law. Even if you agree to the situation, you still may be entitled to damages as a result of the misclassification. Even if you were paid more money as an independent contractor, you are still entitled to damages as a result of the misclassification. The SJC in Somers v. Converged Access, Inc., 454 Mass. 582 (2009) held that “‘damages incurred’ for having been misclassified as an independent contractor rather than an employee equals the [...]

mjb@bacelaw.com2018-09-17T19:47:46+00:00

Can I Be Fired For _____?

Can I Be Fired for Asserting My Rights to unpaid overtime? Unpaid wages? Unpaid commissions? Unreimbursed expenses? The Answer is, No. You cannot be fired for asserting your legal rights. Pursuant to the statute, if you are terminated for asserting your rights (even internally, to HR, or to a manager), this could give rise to another cause of action for the retaliatory firing. From a theoretical perspective, this is a positive, but employers regularly make work-life challenging in ways that fall short of termination for employees who assert their legal rights; we are cognizant of this difficult dynamic, and encourage employees to contact an attorney without delay to discuss in detail. Even if the action you take to assert your rights is completely internal to your organization, and simply a complaint made directly to your employer, that action is protected action for which you cannot be terminated. See, Smith v. Winter Place, LLC 447 Mass. 363 (2006). In order to establish a claim for retaliation the employee must show a few things: 1) that the employee was engaged in legally protected conduct; 2) that they suffered an “adverse employment action” (e.g. demotion, decrease in salary, being fired or actions intended to prevent the claim from being brought); and 3) establish a causal connection between the claim filed and the retaliatory action taken. The larger point is, because employer's recognize that complaining about unpaid overtime or any of the other compensation to which you are entitled is protected action -- it's possible to retain an attorney to help you navigate [...]

mjb@bacelaw.com2018-09-17T19:46:26+00:00

Treble Damages and Attorney’s Fees

The Massachusetts Wage Act, one of the most strict and Draconian in the country, has significant protections for employees -- the violation of its provisions triggers non-discretionary treble damages plus an award of attorney's fees. It's worth repeating: if an employer violates the Wage Act, the employee is entitled three times (3x) her damages, plus an award of the reasonable attorney's fees associated with having to press her rights. Since 2008, it is no longer necessary to demonstrate that your employer willfully withheld wages and they cannot just claim that they made a mistake. A Court cannot decide to award treble or double damages in one matter, and single damages on another depending on the severity of the particular issue. Since 2008, triple damages are non-discretionary, and mandatory, in the event of a violation. According to MGL c. 148, s. 150 “the defendant shall not set up as a defence a payment of wages after the bringing of the complaint”. Correcting the nonpayment, subsequent to the bringing of a Complaint, is not a defense and will generally not reduce the damages sought. Under normal circumstances in our legal system, both sides, the plaintiff and defense pay their respective attorneys. However, this office strives to find a way to handle wage act violations on a "contingent fee," where possible A contingency fee is simply an arrangement whereby your attorney covers the costs initially, and if you win the case they then receive a percentage of the award as compensation for the legal services.

mjb@bacelaw.com2018-09-17T19:45:50+00:00

Should I Get Paid for Waiting Time? On-call Time? (Potentially.)

Drivers, whether livery, cab, limousine, delivery, or otherwise, are regularly not compensated for time spent waiting for a fare, or "on-call," or the time spent on ancillary activities such as loading and unloading the vehicle. Pursuant to state and federal law, this time may be compensable depending on the circumstances. If you work in one of these industries or another where you wait between jobs or are “on-call,” you may be able to compensation for that time, regardless of whether you signed an Agreement to the contrary. The US Supreme Court in Skidmore et al v. Swift & Co., 323 U.S. 134, 137 (1944) determined that the applicable standard is whether an employee was “engaged to wait” or “waiting to be engaged” by looking at the facts of each individual circumstances on a case by case basis. The court did state factors in this determination included: the custom and nature of the industry and its relation to the waiting time, any existing arrangement between the employer and employee, and the “practical construction” of the working agreement by looking at conduct. Another key factor the court considers is the how much personal activity can be engaged in during that waiting period. The last major factor in figuring out if the on-call time is compensable is whether the time spent was primarily for the benefit of the employer or the employee.

mjb@bacelaw.com2018-09-17T19:45:24+00:00

Unpaid Commissions in Massachusetts

In Massachusetts wages are regulated by the Wage Act, which defines “wages” broadly to include salary, hourly pay, bonuses, commissions, vacation, and other forms of “pay”. Thus, a failure to pay a commission, is analogous to the failure to pay any other wage under the Act -- triggering civil liability exposure, triple damages, and attorney's fees. Commissions are an area of confusion for a lot of employees/employers. The courts in Massachusetts have recently determined that the Wage Act applies to all commissions as long as they are “due and payable” and “definitely determined”. A commission is “definitely determined” when it is can be arithmetically calculated (The SJC in Wiedmann v. Bradford Group, Inc. 444 Mass. 698 (2005) established this standard). In order for the commission to be calculable, all the mathematical factors needed to calculate the commission must be known or knowable. Companies can set the conditions in which a commission is due and payable. An employer will usually put this in writing and make sure all factors are included as well as the time of payment. However, if an employer is silent on the terms of the commissions, common actions and company practices will be used to determine when commissions are due and payable. In contrast, certain bonuses, are generally not considered wages for the purposes of finding employer’s liable in nonpayment of such compensation as was decided in Suominen v. Goodman Indus. Equities Mgmt. Group, LLC, 78 Mass. App. Ct. 723, (2011) The court reasoned that since a bonus is a stake in the [...]

mjb@bacelaw.com2018-09-17T19:43:34+00:00

Restaurant Workers, Overtime, and Undocumented Workers

If you work at a restaurant or bar in Massachusetts, are an undocumented worker, illegal immigrant, and are not happy with the way your employer has treated you – call us now. Restaurants often pay undocumented workers in Massachusetts in cash, and are misclassifying their workers as “independent contractors,” even though in the eyes of the MA Wage Act, you are an employee. Your immigration status is completely irrelevant; if you are an employee, and not exempt for some reason, you are entitled to overtime pay for every hour you work over 40 hours each week. Most lawyers misunderstand the current state of overtime pay for restaurant workers - while Massachusetts state law may have an exemption, the federal component does not. So, most restaurants must pay you at an overtime rate for all overtime wages. You May be Entitled to three times your damages: Are you an undocumented worker, an illegal immigrant, working in Massachusetts? Do you work over forty (40) hours each week, but are not paid extra for overtime? Do you work long hours? Do you receive a 1099 from your employer? Does your employer not take taxes our of your pay, or are you paid “under-the-table”? Are tips added to each check, but you don’t get your share? Are you required to pool or share tips with management? With the company? With other non-servers?

mjb@bacelaw.com2018-09-19T00:59:32+00:00

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