Twenty years ago, the Massachusetts Legislature enacted sweeping changes to the Massachusetts Wage Act. Those changes have had a significant impact on Massachusetts employers’ exposure to liability for violations of the Massachusetts wage laws. Massachusetts employers that have not conducted a review of their wage and hour policies over the past twenty years, or even in the past five years in light of the most recent court decisions, could be facing class action suits or criminal prosecution as employers’ liability exposure for wage violations has never been greater.

I was serving as General Counsel to the wage enforcement agency, Massachusetts Department of Labor and Industries, in the early 1990’s. The country was climbing out of a recession and a number of Massachusetts employers were not paying wages that they owed to their employees. The numbers of wage claims that the Department received was staggering: 6,000-7,000 were filed every year. At that time, when an employer failed to pay wages owed to an employee, the employee’s only recourse was to file a complaint with the Department. The Department, in turn, could seek enforcement of the individual’s wage complaint through criminal prosecution. Although the Department resolved most complaints prior to criminal prosecution, it still had hundreds of cases in court. It proved challenging because the courts’ dockets were flooded with cases concerning violent crimes and, understandably, the courts gave lower priority to wage cases.

The Department concluded that we had to find an alternative to prosecuting employers in the criminal courts. It was not working as a deterrent and the process was inefficient. The Massachusetts Legislature responded in 1993 by moving the enforcement of the Massachusetts Wage Act to the Office of the Attorney General and creating a private right of action that provided individuals with the ability to hire their own attorneys to file civil suits in court on their behalf. If successful, the court would award treble damages as well as attorney’s fees and costs to the individuals. M.G.L. c. 149, § 150. The Legislature also left the criminal penalties, including the potential for incarceration, intact.

The Legislature has continued to add to the array of tools that individuals have to pursue employers for failing to pay wages. The Attorney General’s Office can still pursue criminal penalties against employers for violating the wage and hour laws, which include a fine of up to $25,000 and one year of imprisonment if the violation is without willful intent. M.G.L. c. 149, § 27C. If it is with willful intent, the criminal penalties are a fine of up to $50,000 and two years of imprisonment. Id. Under the civil citation system adopted in 1998, the Attorney General’s Office can issue a civil penalty of not more than $25,000 per violation. Id.

The one change that has caused the most consternation is, undoubtedly, the private right of action. There has been a growth in class action suits and individual wage claims in Massachusetts courts. This litigation has led to the Supreme Judicial Court issuing several noteworthy rulings in recent years: (i) an employer is limited in its ability to make deductions against an employee’s wages, Camara v. AG, 458 Mass. 756 (2011); (ii) an individual can release his or her wage claims against an employer if the release is stated in clear and unmistakable terms, Crocker v. Townsend Oil Co., 464 Mass. 1 (2012); (iii) an employer violates the Massachusetts Wage Act when that employer’s policy requires terminated employees to forfeit accrued, unused vacation time at the time of discharge, Elec. Data Sys. Corp. v. AG, 454 Mass. 63 (2009); and (iv) the failure to pay an employee at the time of termination cannot be mitigated by an after-the-fact wage payment, Dixon v. City of Malden, 464 Mass. 446 (2013). The Legislature went so far as to revise the Massachusetts Wage Act several years ago to ensure that the courts have no discretion to deny treble damages. An individual who wins in court will automatically receive treble what the employer owed the individual, despite any mitigating circumstances. Even if the employer has paid all of the wages owed to the employee, the employee can still seek treble damages of the interest (at 12% per annum) on the wages as well as fees and costs when the employer fails to pay the employee’s wages in a timely manner. See Parow v. Howard, 17 Mass. L. Rep. 149 (Mass. Super. Ct. 2003); Dobin v. CIOview Corp., 16 Mass. L. Rep. 785 (Mass. Super. Ct. 2003).

The trend is clear: individuals will have continued success in pursuing their wage claims against unsuspecting employers. It is time for Massachusetts employers to review their payment policies and practices.