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University of Massachusetts Amherst

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FAIL TO PLAN, PLAN TO FAIL...FAIL TO PAY, PLAN TO PAY, PAY, PAY

by Mary Jo Kennedy, Esq.
Bulkley Richardson and Gelinas, PC, Springfield, Mass.

A new law imposing automatic treble damages for wage violations goes into effect in Massachusetts on July 13, 2008. The new law applies to civil actions for various state wage violations, including but not limited to:
• Non-payment of wages, including accrued vacation and earned commissions;
• Failure to pay wages timely, including at the time of an involuntary termination of employment;
• Failure to pay overtime, including situations when an employee was incorrectly classified as an exempt employee;
• Failure to calculate overtime wages correctly;
• Failure to pay minimum wage;
• Misclassification of a worker as an independent contractor; and
• Termination of employment in retaliation for a complaint of a wage violation.
The statute became law without the Governor’s signature after the Legislature rejected the Governor’s proposed amendment to provide a good faith defense to a wage violation. Whether the new law will be applied retroactively will be determined by the courts.
The new law is in response to a 2005 Supreme Judicial Court decision, Wiedmann v. Bradford Group, in which the Court declined to require mandatory treble damages in state wage violation cases, but held that the award of treble damages was discretionary. With the new law, judges will be required to award treble damages, even in situations where the employer was acting good faith or the violation was an inadvertent mistake. The law continues to provide for the award of litigation costs and reasonable attorneys’ fees if an employee prevails in a wage violation case.
Wage and hour class actions are likely to increase significantly as the new law also applies to the filing of such class action suits. In light of the new law, employers should review their wage payment policies, meal break policies, and job classifications to ensure that they are in compliance with wage and hour laws.
Mary Jo Kennedy, is the Coordinator of the Employment Law Practice Group at Bulkley, Richardson and Gelinas, LLP and can be reached at (413) 272-6242 or mkennedy@bulkley.com.

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