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

172 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP the Wage Act, regardless of title. 1027 However, merely holding a managerial position over a branch, division, or office does not, by itself, mean that a manager has the “management” of the “corporation” as a whole. 1028 Rather in determining whether a manager can be personally liable for Wage Act violations, courts will examine whether the manager “controls, directs, and participates to a substantial degree in formulating and determining [the] policy of the corporation.” 1029 The reported decisions in which individual defendants have avoided personal liability are those in which it was clear that the individual had a limited, if any, role in top-level management and formulation of corporate policies. 1030 Employers and individuals who violate Massachusetts wage and hour laws are subject to civil penalties and, though rarely imposed, criminal penalties. The penalties applicable to individuals and businesses are set forth below. B. Criminal Penalties While criminal punishments are exceedingly rare in the wage and hour context, the Attorney General has discretion to pursue criminal prosecution where an employer has committed previous offenses and the present violation was willful. 1031 In one recent case, two individuals pled guilty in connection with a wage theft scheme in which commercial laundry workers were not paid minimum wage or overtime and were intimidated and threatened during an investigation by the Office of the Attorney General. 1032 C. Civil Penalties Imposed by the Attorney General The Attorney General may issue a written warning or a civil citation in lieu of initiating criminal proceedings. 1033 Each failure to pay an employee the appropriate amount in a given pay period may be considered a new violation and receive a separate citation, at least in cases in which the employer has previously received a citation or where the citation results from a failure to pay 1027 Bisson v. Ptech, Inc. , 2004 WL 2434638, at *2 (Mass. Super. Ct . Oct . 19, 2004) (“ [T]he Legislature did not wish to allow the persons who performed the dut ies of the president and t reasurer to be able to escape their obligat ions t imely to pay wages under the Wage Act merely by giving themselves different t it les or by avoiding any formal t it le.”). 1028 Wiedmann , 444 Mass. at 711. 1029 Id. (quot ing Goodrow , 432 Mass. at 173). 1030 See, e.g., id. (manager not personally liable because “ there was insufficient evidence to determine that [he] directed and part icipated to a substant ial degree in formulat ing the corporat ion’s policy”); Segal , 478 Mass. at 558-60 (directors not personally liable because the corporat ion had not delegated any management powers to them). 1031 M.G.L. ch. 149, § 27C(a)(1)-(2). While no court has defined willfulness in the criminal context , the SJC found harsher civil penalt ies for wage violat ions to be appropriate where the defendant ’s behavior was “out rageous, because of the defendant ’s evil mot ive or his reckless indifference to the right s of others.” Wiedmann , 444 Mass. at 710 (internal quotat ions and citat ions omit ted). 1032 Office of Massachuset t s At torney General Press Release, Temp Company Owners Plead Guilty to Wage Theft , Int imidat ion and Retaliat ion, available a t ht tps://www.mass.gov/news/temp-company-owners-plead-guilty-to-wage-theft -intimidat ion-and- retaliat ion-against -warehouse (last visited on Sept . 28, 2021). 1033 M.G.L. ch. 149, § 27C(b)(1).