The SJC, Massachusetts’ highest court, issued its long awaited decision in Sullivan v. Sleepy’s LLC,  SJC-12542 on May 8, 2019. The case should be of concern to businesses which pay individuals fully or primarily by commission, especially in the retail context or in automobile sales where the ruling departs sharply from federal law.

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In an opinion letter dated April 29, 2019, the U.S. Department of Labor (DOL) explained that some service providers working for a virtual marketplace company (VMC) are independent contractors under the Fair Labor Standards Act (FLSA).   This opinion letter identifies the test the DOL is expected to use when considering the classification of workers

For several decades the Massachusetts overtime statute, G.L. c. 151, §1A, required generally that an employee working in excess of forty hours per week be paid “at a rate not less than one and one-half times the regular rate at which he is employed.”  The statute included twenty categories of exceptions from this overtime pay requirement.  One such exemption applied to laborers “engaged in agriculture and farming on a farm.” G.L. c. 151 §1A(19).  The SJC has recently held, however, that farm growing and harvesting “does not include post-harvesting activities.”  The case is Arias – Villano v. Chang & Sons Enterprises, Inc., 481 Mass. 625 (2019).  Thus, the laborers in Arias-Villano were entitled to time and a half for the type of work they performed beyond “agricultural and farm” work is excess of forty hours per week.  That is, growing and harvesting does not include “cleaning, sorting, and packaging” of or related to the agricultural product itself.  The workers were entitled to overtime pay for such ancillary duties.

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The Supreme Judicial Court has just recently made it abundantly clear that for liability to hold under the Massachusetts Wage Act, G.L. c. 149, §148, “[t]he work must have been actually performed and wage payments must be presently due to trigger the precise requirements and severe penalties” available under the Act.  The case is Calixto v. Coughlin, 481 Mass. 157 (2018).

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Photo: OTA Photos via Flickr (CC by SA 2.0)

As published in NEHRA News (3/21/2019)

The Massachusetts Wage Act provides that an employee who “prevails” in an action to recover unpaid wages “shall … be awarded the costs of the litigation and reasonable attorneys’ fees.”  This “fee-shifting” provision is an exception to well-established “American Rule” under which each party bears his or her own attorney’s fees, win or lose.  In cases where the employee wins at trial, the application of the Wage Act’s fee-shifting provision is clear: the employee will recover his or her attorney’s fees.  But what happens when the case doesn’t go to trial, and instead, the parties resolve the matter through a negotiated settlement in which both sides compromise?  Has the employee “prevailed” in that situation?  Is he or she entitled to recover attorney’s fees?


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A bill recently filed in the Massachusetts House of Representatives, if passed, would prohibit discrimination on the basis of height and weight.  The proposed legislation would add height and weight to the list of protected classes covered by the Commonwealth’s antidiscrimination law (G.L. Chapter 151B) and public accommodation laws (G.L. Chapter 272, Sections 92A and 98).

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On February 1, 2019 the Keene Sentinel reported that a Massachusetts construction company had been hit with more than $64,000 in fines after an audit conducted by the New Hampshire Department of Labor. Although the bulk of the fines were related to the misclassification of employees as independent contractors, there were also a number of recordkeeping violations found.

The Keene Sentinel article devotes significant attention to the problems of trying to classify individuals as independent contractors under NH state law, a very difficult burden to meet. The result of the audit and the fines imposed on the business, however, showcase how difficult it is for businesses who typically do not operate in a state to establish a workforce there and be in compliance with state laws.


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Photo: RichardBH via Flickr (CC by 2.0)

New York City Mayor Bill de Blasio is proposing a measure, which, if passed, would make the Big Apple the first place in the nation to require private-sector employers to provide paid vacation to employees.  The details of the plan have not yet been released, but the New York Times is reporting that the law would require private employers with five or more employees to provide at least two weeks of paid vacation.  City Hall officials have estimated that approximately half a million NYC workers would benefit from the new law.


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Photo: Tomas de Aquino via Flickr (CC by 2.0)

With the first recreational marijuana retail shops now opening in locations throughout Massachusetts, one legislator is proposing protections for employees who choose to use the newly-legal drug on their own time.  The Boston Globe is reporting that Jason Lewis, a state senator from Winchester, Massachusetts, is planning on introducing legislation in the new year that, if passed, would prevent most employers from terminating or disciplining employees for off-duty, legal use of marijuana.


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In a highly technical, twenty-page opinion, a three-judge panel of the Massachusetts Appeals Court declined to answer the question of whether volunteer members of boards of directors of nonprofits can be held personally liable to workers for unpaid wages under the Massachusetts Wage Act. With the issue unresolved, for the time being, volunteer board members will continue to face some uncertainty about their possible personal liability.

The case, Lynch v. Roxbury Comprehensive Community Health Center, Inc., No. 18-P-179 (Nov. 30, 2018) involved a nonprofit that was struggling financially. The chair of the nonprofit’s volunteer board of directors—who was also holding himself out as the organization’s “president” and “acting CEO”—decided to use the entity’s limited funds to pay vendors instead of paying wages. Employees brought a class action lawsuit under the Massachusetts Wage Act, seeking recovery from the nonprofit, as well as from the board chair individually. Under the Massachusetts Wage Act, the president and treasurer of a business entity, and any officers or agents managing the entity, can be held personally liable for the entity’s failure to pay wages. The board chair sought to have the case against him dismissed on grounds that he was immune under state and federal laws protecting volunteers.
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