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 […]
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 […]
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 […]
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.
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 […]
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 […]
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 […]
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 […]