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

156 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP for the employer. 924 This is true even if the misclassified employee agreed to pay those fees and still received at least minimum wage. 925 The SJC has also held that franchise fees paid by individuals misclassified as independent contractors are recoverable as damages because such fees require employees to “purchase their jobs” from employers and therefore violate public policy. 926 The business may also be subject to significant civil or criminal penalties for misclassifying independent contractors. The amount of the fine depends on whether the violation is deemed willful and whether it is a first or subsequent offense. The specific fine amounts are set forth in Sections XVIII.B-C. XIII. OTHERMISCELLANEOUSMASSACHUSETTS LAWS A. Massachusetts Personnel Records Law The Massachusetts Personnel Records Law 927 requires an employer with twenty or more employees to maintain certain information or documents (to the extent they are available) within an employee’s “personnel record.” “Personnel record” is defined broadly to include any record that identifies an employee “to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action.” 928 The statute specifies that the following information be included in the personnel record: name, address, date of birth, job title and description, rate of pay, compensation paid to the employee, starting date of employment, job application of the employee, résumés or other forms of employment inquiry submitted by the employee to the employer in response to its advertisement, performance evaluations, written warnings of substandard performance, lists of probationary periods, any waivers signed by the employee, copies of dated termination notices, and any other documents relating to disciplinary action regarding the employee. 929 In 2010, the law was amended to impose an affirmative duty upon an employer to notify an employee within ten days of placing negative information into the employee’s personnel record if the “information is, has been used or may be used, to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that 924 Awuah v. Coverall N. Am., Inc. , 460 Mass. 484, 494-97 (2011) ( Awuah III) (holding that employers violate the Wage Act by deduct ing the cost s of workers’ compensat ion and other mandatory insurance coverage from misclassified employees’ pay). Chargebacks deducted when customers paid their bills late were also recoverable as damages because this pract ice violated the t imely payment of wages law, M.G.L. ch. 149, § 148. Id. at 491-93 (holding that employee “earns” his wages at the t ime he performs work and must be paid within seven days of that date). While the employer repaid these chargebacks prior to lit igat ion, the employee was st ill ent it led to interest accrued prior to the repayment. Awuah v. Coverall N. Am., Inc. , 740 F. Supp. 2d 240, 245 (D. Mass. 2010) ( Awuah II). 925 Awuah III, 460 Mass. at 494-97. 926 Id. at 497-99. Other fees, such as royalty fees, management fees, and supply and equipment charges, may not be recoverable as damages because no statute precludes employers from shift ing such cost s to employees. Awuah II, 740 F. Supp. 2d at 243-45 (holding that the “parties were free to agree that [employee] would bear these cost s”). 927 M.G.L. ch. 149, § 52C. 928 Id. 929 Id .