Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 155 course of receiving the individual’s services, the employer violated one or more of the wage and hour laws specified in the statute. 920 Those laws are: • The wage and hour laws set forth in M.G.L. ch. 149 • The minimum wage law set forth in M.G.L. ch. 151 and 455 C.M.R. § 2.01 • The overtime law set forth in M.G.L. ch. 151 • The law requiring employers to provide health insurance to migrant farm workers, as set forth in M.G.L. ch. 151, § 2B • The law requiring employers to keep true and accurate employee payroll records, and to furnish the records to the Attorney General upon request, as set forth in M.G.L. ch. 151, § 15 • The provisions requiring employers to withhold taxes on employee wages, as set forth in M.G.L. ch. 62B • The workers’ compensation provisions punishing knowing misclassification of an employee, as set forth in M.G.L. ch. 152, § 14 921 Even if an employer misclassifies an employee as an independent contractor, the employer is not liable for damages under the Independent Contractor Statute, so long as in doing so it does not violate any of the above wage and hour laws. 922 In practice, it is unlikely that an employer misclassifying an individual would comply with all of the wage and hour provisions set forth above. The SJC has defined “damages incurred” under the statute as an amount equal to the full value of wages and benefits that the wrongly classified individual would have received as an employee. 923 If an individual prevails in a suit for a violation of the Independent Contractor Statute and demonstrates a violation of the wage and hour laws as a result of the misclassification, he or she generally is entitled to recover treble damages, as well as litigation costs and reasonable attorneys’ fees. In a misclassification case that does not involve a failure to pay wages, an employer is liable only for fees it was required by law to bear, such as liability insurance and workers’ compensation insurance or potentially certain expenses incurred by the contractor in the course of his or her work 920 M.G.L. ch. 149, § 148B(d). 921 Massachuset t s At torney General Advisory 2008/1, at 4. 922 But see Awuah I, 707 F. Supp. 2d at 85 (grant ing employee’s mot ion for part ial summary judgment on independent cont ractor misclassificat ion claim and reserving damages issue for later proceedings). 923 Somers v. Converged Access, Inc. , 454 Mass. 582, 584 (2009) ( Somers II). In Somers II, the SJC held that the plaint iffmay sue for nonpayment of wages based on misclassificat ion as an independent cont ractor—even though he earnedmore as an independent cont ractor than he would have earned as an employee—because he was not paid the “ full value” of wages and benefit s that he would have received as an employee. Id .