Lobbyists for big business have had legislation filed to turn back the clock on Massachusetts employees. The bill, “An Act regarding treble damages” (H3583), marks an effort to shift the burdens onto employees in cases where employers have failed to pay proper wages. If passed, this bill would change the Wage Act to require every employee with a claim for unpaid wages to prove that their employer acted in a “willful” manner in order to recover treble damages, a significant departure from the present state of the law.
With the difficulty of overcoming the burden of proving willfulness, especially considering that employers hold most of the evidence any such employee would need, the average employee who suffers shortages in their wages will be lucky to get back even the amount actually due to them. That’s if they can even afford to file suit.
Emboldened by the hightened standard proposed by their lobbyists, companies who fail to pay proper wages can rest easy knowing that it will be the rare employee who will actually mount any challenge, and even the rarer employee who will have the wherewithal to hire attorneys to find documents, take depositions and file motions to prove the company acted willfully.
If the most an individual can recover in court, without proving willfulness, is the amount they already earned, then why should employers settle in full?
Even more troubling, the amendment also makes the award of attorneys fees and costs of litigation discretionary, unless the employee can prove willfulness. That way, even if the employee could prove she was owed the wages but not the higher burden that the company acted willfully, the wronged employee would get only their wage and may still have to pay their attorney and costs of litigation out of their own pocket.
This all-or-nothing strategy should serve unscrupulous employers even better, and forever bury claims for almost every low-wage earner not part of a sizeable class action.
If this legislation passes, most employees will be lucky to settle for a small percentage of the wage they seek. What employer facing a suit for unpaid wages would offer more?