Under Massachusetts law, wages (including overtime, tips, commissions and earned vacation time) must be paid in a timely manner. An employee who is fired must be paid all of her earned wages immediately, failure to do so is a violation of the law. Massachusetts courts have continually emphasized the need for your employers to strictly follow the requirements of Massachusetts wage laws.
An employee who prevails in a claim for unpaid wages is automatically awarded three times the amount owed (treble damages) and attorney’s fees (See M.G.L. c. 149, s. 150). These claims are often handled on a contingent fee basis, you pay nothing up front and the attorney gets paid a share of the amount he recovers. Our attorneys have experience fighting to hold employers accountable to the robust laws enacted by our legislature to protect the rights of employees like you. We understand the need to resolve any disputes quickly and efficiently while still protecting your rights.
An employer is generally required to pay time and one half for all hours worked in excess 40 per week. There are exemptions to this requirement in both state law (See, for example, M.G.L. c. 151, § 1A-1B) and the federal Fair Labor Standards Act (FLSA), so an employer should consult an attorney with questions regarding their right to overtime pay, even if paid a salary or called an “independent contractor.” The contours of these exemptions are in a constant state of flux, particularly for salaried employees. An employee is required to file a complaint with the Attorney General’s Wage and Hour Division/Labor Board before filing a lawsuit seeking unpaid overtime. Claims for unpaid overtime, as opposed to regular wages, must generally be filed in court within two years of the date of violation. A claim for unpaid overtime may be brought by an individual on behalf of herself and other employees who have also been denied overtime.
Employee or Independent Contractor? Why it matters.
The Massachusetts Independent Contractor Misclassification Law, M.G.L. c.149, s.148B, makes it almost impossible for an employer to permissibly classify an employee as an independent contractor in order to avoid the payment of overtime, benefits, and payroll taxes (of particular interest to the Commonwealth). Employees wrongly classified as independent contractors often forgo other benefits, such as unemployment compensation, to which they are entitled.
If you provides services under the control and direction of a company who provided those services in its usual course of business, you should be classified as an employee for purposes of overtime, social security contributions, and the withholding of state and federal payroll taxes. An individual who prevails in a claim that he or she was misclassified as an independent contractor is automatically awarded triple damages and attorney’s fees. Misclassified employees are often incorrectly not paid overtime and subject to illegal deductions from their pay. Common occupations in which employees are misclassified as independent contractors include truck drivers, limousine drivers, construction workers, nurses, massage therapists, cleaners and exotic dancers.
The Massachusetts Tip Statute, G.L. c. 149, s. 152A, requires an employer to remit all tips and gratuities to “wait staff employees, service employees, or service bartenders.” If, for example, a gratuity is automatically added to a bill or check by the employer, the entire gratuity must go to the service staff unless the employer informs the customer that “the fee does not represent a tip or service charge for wait staff employees, service employees, or service bartenders.”
An employee is required to file a complaint with the Attorney General’s Wage and Hour Division before filing a lawsuit for violation of the Massachusetts Tip Statute. A lawsuit violation of the of the Tip Statute must be filed in court within three years of the date of violation, and may be brought on behalf of a single individual or a group of employees.
Filing a complaint with the Attorney General
An employee or former employee is required to file a complaint with the Massachusetts Attorney General’s Wage and Hour Division (often referred to as the Labor Board) before filing a lawsuit. While filing complaint with the Labor Board is a necessary first step, the Attorney General’s office does not have the resources to investigate and resolve the large volume of complaints it receives. You must therefore consult with a private attorney, even if you have already filed a complaint with the Labor Board, concerning the possibility of bringing your own lawsuit, called a private right of action. A private right of action requires a right to sue letter issued by the Labor Board, here is an example of a right to sue letter.