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. | 167 If an employee “or a similarly situated employee” files a wage complaint with the Attorney General’s Office, the three-year limitations period is tolled from the date of the complaint until the Attorney General issues a letter authorizing the employee to bring an action or the date an enforcement action becomes final. 996 Neither the courts nor the Attorney General’s Office have issued guidance explaining the “similarly situated employee” language in the recently added tolling provision. 997 XVII. ATTORNEYGENERAL’S OFFICE COMPLAINTS AND INVESTIGATIONS An employee seeking redress of certain wage and hour violations is expected to file a complaint with the Office of the Massachusetts Attorney General, 998 which then will choose to dismiss the complaint, investigate it, or authorize the employee to pursue an independent civil action. 999 The Attorney General’s Office continues to place a higher priority on cases related to wage theft and misclassification of individuals as independent contractors, and emphasizes issues related to the construction, retail, hospitality and health care industries. 1000 In response to the COVID-19 pandemic, the Office of the Attorney General has shifted resources to focus on employees’ health and safety and leave rights. 1001 While the statute contemplates that employees may not sue employers for certain wage and hour violations without first exhausting their administrative remedies with the Attorney General, the SJC has held that a plaintiff’s failure to file a complaint with the Office of the Attorney General prior to filing a private lawsuit was not a jurisdictional bar to the lawsuit, provided that “the Attorney General is notified of the suit during its pendency.” 1002 Where a complaint is first filed with the Office of the Attorney General, the issuance of a “right-to-sue” letter does not confer upon the employee the power to act as a special attorney general or to pursue a lawsuit based on a 996 M.G.L. ch. 149, § 150. 997 The tolling provision was added to the statute in 2014 as part of An Act Restoring the Minimum Wage and Providing Unemployment Insurance Reforms , Chapter 144 of the Act s of 2014. 998 M.G.L. ch. 149, §§ 2 and 150. 999 See M.G.L. ch. 149, § 150. 1000 See, e.g. , At torney General Maura Healey’s 2021 Labor Day Report , available a t ht tps://www.mass.gov/doc/2021-labor-day- report /download (last visited on Sept . 28, 2021). Many invest igat ions are coordinatedwith other state agencies. In 2014, Massachuset t s enacted An Act Restoring the Minimum Wage and Providing Unemployment Insurance Reforms , which, among other provisions, established the Council on the Underground Economy (CUE). The CUE is a permanent ent ity responsible for coordinat ing the Commonwealth’s effort s to combat the underground economy and employee misclassificat ion. See M.G.L. ch. 23, § 25. It includes the chief of the At torney General’s Fair Labor Division, as well as representat ives from the Massachuset t s Department of Revenue andDepartment of Unemployment Assistance, among others. In it s most recent annual report , the CUE announced that it had assessed almost $10.5 million in wage rest itut ion, state taxes, unemployment contribut ions, fines, and penalt ies. The annual report is available a t ht tps://www.mass.gov/cue-annual-report s ( last visited Sept . 28, 2021). 1001 See 2021 Labor Day Report , p. 16. 1002 See Depianti v. Jan-Pro Franchising Int’l, Inc. , 465 Mass. 607, 614 (2013); see also Lawless v. Steward Health Care System, LLC , 894 F.3d 9 (1st Cir. 2018) (reject ing argument that a plaint iff may not sue an employer in court for violat ions of the Wage Act unt il the At torney General issues a right to sue let ter or 90 days from the filing of a complaint with the At torneyGeneral’s Office expires).