By David Wilson February 20, 2013
One was a smart employee side lawyer and the other a veteran member of the Massachusetts Attorney General’s Wage & Hour enforcement group. Even though I have been doing this kind of work since before the cell phone, when these guys talk, I listen. The sharp lawyer, representing employees, brings private lawsuits against employers for wage and hour violations. He prefers to bring class actions and the law allows him to collect three times the unpaid wages owed, plus get his attorney’s fees paid by the employer. At the Attorney General’s Office, the other speaker gets calls from all over the state from employees who don’t think they have been paid properly.
I have created the below checklist to help you avoid the mistakes our keynote speakers commonly see Massachusetts employers make:
1.) Are you paying any individuals by a Form 1099? If so do they meet the three prong test in Massachusetts to be an independent contractor?
a.) Prong One: Freedom from Control
b.) Prong Two: Service Outside the Usual Course of the Employer’s Business
c.) Prong Three: Independent Trade, Occupation, Profession or Business
2.) Are you making automatic deductions from employees such as an automatic half hour for lunch whether the employee actually gets the lunch break or not?
3.) Have you asked anyone in the company to defer pay? You may not defer wages and the President and Treasurer of the company can be held personally liable for these unpaid wages.
4.) Are you reimbursing employees for all transportation expenses incurred when they use their own car, not for commuting, but for work related tasks during the work day?
5.) Are you treating holiday and vacation pay as provided in your policies as wages due and owing?
If you pass this check up, congratulations and rest easy. But if not, call your labor and employment counsel before an employee side class action lawyer finds one of your employees and sues you for treble damages and attorney’s fees.