March 28, 2023
This Week in Massachusetts – March 28
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Posted on March 3, 2023
From 2010 when Miami Dade County first passed an ordinance prohibiting wage theft, the popularization of the term has reframed the non-payment of wage debate across the country. The focus in the early days of wage-theft enforcement was on undocumented workers not being paid, but over the past decade state and federal enforcement agencies have dramatically increased the resources dedicated to investigating and prosecuting wage theft cases to help all categories of workers recover their lawful wages.
The Massachusetts Attorney General’s Fair Labor Division (FLD) has undertaken a significant effort to identify and prevent wage theft. That effort has included outreach to the legal community and monthly wage-theft seminars to educate people on wage theft and available legal remedies. The recently elected Attorney General, Andrea Campbell, has pointed out in interviews that wage theft will be a priority of her term in office.
This article will help AIM members familiarize themselves with wage-theft enforcement and advise on steps they can take to minimize their risk of a non-payment of wage claim.
What is wage theft?
Wage theft occurs when an employer doesn’t pay an employee the benefits to which she or he is entitled under the law. The term may include wages, meal breaks, overtime pay, and any other ‘benefit’ that the employee has earned but not received.
Wage theft does not require an intentional act on the part of the employer. Sloppy record-keeping or poor judgment on the part of a manager regarding an employee’s work time is sufficient to trigger a complaint under the law. Massachusetts treats the failure to pay wages as a civil matter rather than a criminal matter.
From 2017 to 2020, according to one estimate, at least $3 billion in unpaid wages was recovered across the country through the efforts of the US Department of Labor, state wage-and-hour divisions and private rights of action. The industries involved run the gamut from home health care to construction to hospitality.
It is important to remember that non-exempt (hourly) employees must be paid for every minute of time they work in Massachusetts.
EXAMPLES OF WAGE THEFT
Some of the more common examples include minimum-wage and overtime violations. But the list is much longer than that and includes the examples below:
Steps an employer may take to avoid being the subject of a wage theft enforcement action include:
Employers in Massachusetts may face wage-theft charges from three different directions. They include the U.S. Department of Labor, the Massachusetts Fair Labor Division (FLD) and private right-of-actions claims. In cases where employees/individuals bring a private right-of-action claim in court, they must first file a claim with the FLD. If the FLD elects not to pursue the case, it will provide the individual with a private right of action letter.
If the individual prevails with a private claim, the individual will be entitled to three times the unpaid wages (i.e. treble damages) from the employer. Because there are no exceptions to the treble-damages rule, employers must ensure that they pay the correct wage rate to an individual within the timeframe provided by law. If an employee questions the amount on her or his pay stub, investigate it as quickly as possible and make any necessary corrections as soon as it is determined that an error was made.
The phrase “wage theft” is a successful rebranding of terms such as non-payment of wages or wage-and-hour violations. Whatever it’s called, the risk for Massachusetts employers may be significant if they are found to have violated the wage-and-hour laws. Employers can and should take steps to minimize that risk by performing an internal pay practices audit to ensure their compliance with the requirements listed above.
AIM members with questions about this or other human resources topics may contact the AIM Employer Hotline at 1-800-470-6277.