Legislation and Ballot Initiatives Pending in Massachusetts

​The Massachusetts legislature has introduced a series of employment-related bills that, if enacted, will require employers across the state to establish, revisit or revise policies and practices.

In addition, there are two certified ballot initiatives that, if they ultimately make it on the November 2024 ballot, will allow voters to decide whether app-based rideshare and delivery drivers are independent contractors. 

Below is a brief overview of some notable Massachusetts pending legislation and ballot initiatives that would affect employers.

Pending Legislation

Treble Damages Avoidance (House Bill 1944): Under the Massachusetts Wage Act (MWA) and the Supreme Judicial Court's decision in Reuter v. City of Methuen, an employer can be liable for treble damages for failing to pay employees their final wages and accrued vacation pay on the last day of employment. This bill clarifies the process and standards for employers to pay out any wages due to an employee at the time of termination, protecting employers from lawsuits under the MWA seeking treble damages without an intermediary warning. Under the terms of the bill, employees making post-employment termination claims seeking to recover unpaid compensation and treble damages must first make a written demand to the employer, specifying those sums. The employer would then have 15 days to respond or cure the employee's demand, without incurring statutory treble damages during that time. If an employer can make a good-faith argument that the demand is unfounded, a court cannot award statutory or treble damages.

Organization of Ride-share App Drivers (House Bill 1099): This bill would allow transportation network drivers to form labor organizations and organize for standardized employment qualifications and benefits. The bill reflects the state's policy in advocating for transportation network drivers. This legislation would set precedent in Massachusetts by allowing for sectorial bargaining.

Minimum Wage in Massachusetts (House Bill 1925): This bill seeks to raise the minimum wage to $20.00 over five years and the tipped minimum wage to $12.00 over five years, effective Jan. 1, 2028, citing the rise in cost of living. The bill indexes minimum wage to inflation and sets the tipped minimum wage at 60 percent of the minimum wage. Unlike in other years, there is no accompanying ballot initiative to raise the minimum wage, so the issue will remain with the legislature and not appear on the November 2024 ballot.

Minimum Wage for Tipped Employees (House Bill 1872): This bill would raise the minimum wage to a tipped employee (such as wait staff, service employees, and bartenders) in a series annual, phased-in escalations up to 2031. The first rise would begin on Jan. 1, 2025, raising the minimum wage paid to a tipped employee to $6.75.

Pending Salary at Employee's Death (House Bill 1855): Employers have been held liable for distributing deceased employees' wages. This bill would reduce that liability and administrative burden. The bill would enable employers to pay out a deceased employee's pending salary to the surviving family, eliminating an employer's obligation to hold the salary pending intestacy litigation.

Overtime for Healthcare Workers (House Bill 1838): This bill would prohibit mandatory overtime work for healthcare workers, with strict exceptions for emergency situations where overtime work is required for a patient's safety. Even under the exception, healthcare employers would be required to make a good-faith effort to have such work covered on a voluntary basis.

Counting Overtime (House Bill 1957): Regarding overtime compensation, this bill would include any hours worked over eight hours per day in overtime to be paid at one and a half times the employee's compensation rate. The current law requires that most employees be paid overtime for all hours worked in excess of 40 hours in a given workweek, and state law does not call for overtime after eight hours in a given day.

Ballot Initiatives

An industry-backed group and a labor union have proposed letting voters decide whether ride-share drivers in Massachusetts should be treated as independent contractors or employees, be guaranteed certain benefits, and be allowed to unionize. Massachusetts Attorney General Andrea Campbell has certified these two ballot initiatives. If the proposals gather a sufficient number of signatures and are not dismissed by the Massachusetts Supreme Judicial Court, voters will have a say in gig worker classification on the November 2024 ballot.

As with any other legislative year, it remains to be seen whether these bills introduced in the Massachusetts legislature will gain traction and eventually pass.

Gary J. Lieberman and Puneet Dhaliwal are attorneys with Littler in Boston. © 2023. All rights reserved. Reprinted with permission.