Wage and Tip Violations
Payment of Wages and Overtime
Under Massachusetts law, wages, including tips and commissions, must be paid timely manner. An employee who prevails in claim for lost wages, including overtime and accrued vacation pay, is automatically awarded triple damages and attorney's fees (See M.G.L. c. 149, s. 150, amended to provide for automatic treble damages in 2008), so these claims are valuable to both employees and attorneys. An employee is required to file a complaint with the Attorney General's Wage and Hour Division before filing a lawsuit. A lawsuit for lost wages or benefits must be filed in court within three years of the date of violation, and may be brought on behalf of a single individual or a group of employees. An individual who prevails in a claim that he or she was not paid wages or overtime is automatically awarded triple damages and attorney's fees.
An employer is generally required to pay an employee time and one half for all hours worked in excess 40 per week. There are certain exceptions to this requirement in both state law (See, for example, M.G.L. c. 151, § 1A-1B) and the federal Fair Labor Standards Act (FLSA), so an employer should consult an attorney with questions regarding the payment of wages and overtime. An employee is required to file a complaint with the Attorney General's Wage and Hour Division before filing a lawsuit. Claims for unpaid overtime, as opposed to regular wages, must be filed in court within two years of the date of violation. A claim for unpaid overtime may be brought by an individual on behalf of herself and other employee who have also been denied overtime.
Employee versus Independent Contractor
The Massachusetts Independent Contractor Misclassification Law, M.G.L. c.149, s.148B, makes it almost impossible for an employer to permissibly classify an employee as an independent contractor in order to avoid the payment of wages, benefits, and taxes, including overtime, unemployment and worker's compensation insurance premiums, and social security contributions. If an individual provides services under the control and direction of an employer and those services are provided by the employer in its usual course of business, that individual must be classified as an employee for purposes of wage and hour law, social security contributions, and the withholding of state and federal payroll taxes. An individual who prevails in a claim that he or she was misclassified as an independent contractor is automatically awarded triple damages and attorney's fees. Common occupations in which employees are misclassified as independent contractors include truck drivers, limousine drivers, nurses, massage therapists, and exotic dancers.
Tips
The Massachusetts Tip Statute, G.L. c. 149, s. 152A, requires an employer to remit all tips and gratuities to "wait staff employees, service employees, or service bartenders." If, for example, a gratuity is automatically added to a bill or check by the employer, the entire gratuity must go to the service staff unless the employer informs the customer that "the fee does not represent a tip or service charge for wait staff employees, service employees, or service bartenders." An employee is required to file a complaint with the Attorney General's Wage and Hour Division before filing a lawsuit for violation of the Massachusetts Tip Statute. A lawsuit violation of the of the Tip Statute must be filed in court within three years of the date of violation, and may be brought on behalf of a single individual or a group of employees.