United States: 2016 Massachusetts Employment Law Year In Review

Last Updated: March 9 2017
Article by Robert Sheridan and Brendan J. Lowd
Most Popular Article in United States, March 2017

Today we continue with our Year in Review segment, which looks at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California, while offering our thoughts on 2017. Last week we covered New York and the DC Metro Area.  Now we turn to Massachusetts.  In addition, please join us in NYC on April 6, 2017 for Mintz Levin's Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017.  Register here.

2016 Massachusetts Employment Law Year in Review

From case law interpreting one of, if not, the most employee-friendly independent contractor statute in the country to Beacon Hill's efforts to pass non-competition agreement reform, Massachusetts is certainly no stranger to key developments in the labor and employment arena. This blog post highlights the 2016 case law and legislative efforts about which every Massachusetts employer should be aware, and provides insight over what to watch for as we move our way along through 2017 and beyond.

Passage of Pay Equity Act

On August, 1, 2016, well before the conclusion of the legislative session, Governor Baker signed the An Act to Establish Pay Equity (the "Pay Equity Act"), following a compromise between both chambers of the legislature.   The law, which goes into effect on July 1, 2018, aims to close the gender pay gap between males and females in the workplace.  The Pay Equity Act prohibits employers from discriminating in any way on the basis of gender in the payment of wages, including benefits or other compensation, subject to a number of exceptions.  Most prominently, the Pay Equity Act bars employers from asking prospective employees about their salary history or from seeking salary history information from their current or former employers.  For more detail about the Pay Equity Act, please see this blog entry co-authored with our affiliate government relations consulting group, ML Strategies.

While the Pay Equity Act does not go into effect until July 1, 2018, employers should update their job applications and train interviewers now, to avoid running afoul of this law and becoming the test case for its enforcement.

A Federal Law Preempts, in Part, Enforcement of Massachusetts' Independent Contractor Statute Against Motor Carriers

Over the past few years, Massachusetts state and federal courts have been inundated with arguments from motor carriers that, by operation of federal law, they are immune from misclassification claims under the Massachusetts independent contractor statute, G.L. ch. 149, § 148B ("148B").  It is not uncommon for motor carriers, such as tow truck and package delivery companies, to classify their drivers as independent contractors.  Under Massachusetts law, however, an individual is presumed to be an employee and an employer must satisfy a three-part test to correctly classify individuals as independent contractors. G.L. ch. 149, § 148B.  In short: (1) the individual must be free from the employer's control and direction in performing the service; (2) the individual must perform a service outside the employer's "usual course of business;" and (3) the individual must perform work of a nature that is customarily treated as an established independent trade or occupation. Id. An employer must meet all three prongs.

In recent years, Massachusetts motor carriers, as well as others across the country, have put forth a federal statute, the Federal Aviation Administration Authorization Act of 1994 ("FAAAA") to fend off class action misclassification claims. This statute has a preemption provision prohibiting the enforcement of state statutes having a significant impact on a motor carrier's prices, routes, or services.  49 U.S.C. § 14501(c).  The deregulatory purpose behind the FAAAA preemption provision led Massachusetts courts to dismiss these cases on preemption grounds, finding that enforcement of 148B's second prong forced motor carriers to use employees, and not independent contractors, in providing services performed within their "usual course of business."  Appellate courts in 2016 reigned in the defense.

In February 2016, the United States Court of Appeals for the First Circuit held that the FAAAA preempts, in part, 148B misclassification claims. Schwann v. FedEx Ground Package Sys., 813 F.3d 429 (1st Cir. 2016). The First Circuit found that the FAAAA preempts 148B's second prong but found the three prongs to be severable and did not, for various reasons, undergo a preemption analysis for 148B's first and third prongs.  In December 2016, the Massachusetts Supreme Judicial Court, the Commonwealth's highest court, agreed with the First Circuit's second prong preemption and severability finding, but also found that each of the other two prongs "contains only commonly used State and Federal tests of employment, indicating that it does not fall within the intended scope of the FAAAA's preemption." Chambers v. RDI Logistics, Inc., 476 Mass. 95, 106 (2016).

Notably then, motor carriers should be aware that, given these recent appellate court decisions, the FAAAA preemption provision is not a "get out of a jail free card" to independent contractor misclassification claims. Instead, motor carriers need to plan and be prepared to meet a relaxed burden, i.e. the first and third prongs of 148B, when defending against misclassification claims.

Status of Non-Competition Reform

The Massachusetts legislature failed to pass a law designed to reform Massachusetts law concerning non-competition agreements. Non-compete reform remains a hot topic in the Commonwealth and the subject of spirited debated between Massachusetts law makers, employees, employers, and the employment bar.  In 2014, then Governor Patrick sought comprehensive reform of non-competition law (including proposing a blanket ban on all non-competition agreements), and both chambers of the legislature passed bills related to non-competition reform in the summer of 2016.  This past legislative session, the Massachusetts House and Senate failed to reach a compromise on their respective versions of non-competition legislation; most notably, the chambers could not bridge the gap between the House version, which called for a twelve (12) month limit to non-competition terms (with a two-year carve-out for instances involving fiduciary breach or misappropriation of employer property), and the Senate version, which limited the duration of non-competition terms to just three (3) months.  You can learn more about non-compete reform here.

Despite the failure of the most recent session to pass non-competition reform, this topic has not died on the vine. To the contrary, the legislature's joint committee on labor and workforce development is currently reviewing the latest proposed legislation.

A Federal Court Holds that State Law's Mandate of Automatic Treble Damages for Wage Claims Can Be Awarded for Violations of Only Federal Law

A Massachusetts federal court's late 2015 holding in an unpaid wage matter created reverberations throughout 2016. Lambirth v. Advanced Auto, Inc., 140 F. Supp. 3d 108 (D. Mass. 2015). In Lambirth, a car mechanic brought suit for alleged unpaid overtime. He brought a claim under the federal statute guaranteeing overtime pay, the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq., as well as the Massachusetts Payment of Wages Statute ("Wage Act"), G.L. ch. 149, § 148 et seq. He did not file a state law overtime claim, most likely because he falls within the law's "garagemen" exemption. Unlike the FLSA, the Wage Act provides for an automatic award of treble damages for wage violations. The defendants argued that the employee could not avail himself of the state law treble damages provision while pursuing an overtime violation of only federal law. The court disagreed.

Judge Hillman found nothing in the Wage Act itself, or in its legislative intent, to support defendants' position. Instead, recent case law "lead[s] to the conclusion that the [Wage Act] applies to the untimely payment of all wages to which an employee is entitled under either state or federal law." 140 F. Supp. 3d at 108.

There are two takeaways for employers on this case. First, employers should take note that an employee's exempt status under state law does not mean that the employee is similarly exempt under federal law, and vice versa. Employers therefore should carefully review and analyze classification decisions under both state and federal law. Second, employers should be aware of, and on the lookout for, employees pursuing state law treble damages for violations of only federal law.

Legalization of Marijuana

Massachusetts voters passed a ballot initiative in November, legalizing recreational marijuana in the Commonwealth. Three other states passed similar initiatives in November to join Washington, Oregon, Colorado and Alaska in legalizing recreational marijuana (marijuana is still illegal on the federal level).  While marijuana may be legal in Massachusetts, the regulations regarding employers' ability to test and discipline employees remain unchanged.  Indeed, the Massachusetts law states that it "shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees."  Thus Massachusetts employers are free to establish drug-free workplaces.  The boundaries of this law for Massachusetts employers and employees are sure to be tested as the practical implications of legalized recreational marijuana develop in the Commonwealth.

A Massachusetts Superior Court Decision Makes Clear That Prevailing Wage Rate Determinations Can Be Made Through Opinion Letters By the State's Labor Agency

Massachusetts contractors working on public construction projects are intimately familiar with the Commonwealth's Prevailing Wage statute. G.L. ch. 149, §§ 26 to 27. The statute provides that the Commonwealth's Department of Labor and Standards ("DLS") sets the wage rates for those engaged in certain positions on public work projects.  A recent Superior Court decision incentivizes contractors to work closely with the DLS to ensure that the proper wages are being paid. Sullivan v. Cora Operations, Inc., Case No. SUCV16-0283 BLS-2, 2016 Mass. Super. LEXIS 362 (Mass. Super. Ct. Sept. 8, 2016).

In Sullivan, a prevailing wage employee argued in a putative class action that the DLS could not, through opinion letters, revise previously made wage determinations appearing on wage sheets.  The court rejected the argument and dismissed the case because the Prevailing Wage statute makes clear that the DLS has the "exclusive authority" to make prevailing wage determinations and, even though the DLS "generally" sets wages through wage sheets, there is "no reason why the DLS could not revisit a determination made in an earlier rate schedule [i.e. wage sheet] through advisory letters."  The case is on appeal but contractors should take notice of this opinion and aim to work closely with the DLS on any wage question or issue that it has on a project subject to the Prevailing Wage statute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Robert Sheridan
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.