How to file a labor complaint with the Massachusetts Attorney General’s Office
By Roman Nicholas
As workers in a country of at-will employment and a state that recently passed the Grand Bargain, it can often feel like we have no power to protect ourselves from being taken advantage of or unfairly fired. Especially when bosses are rarely held accountable (particularly owners of small businesses, which are often less watched or regulated by the state or overhead corporations) for labor law violations. This guide will explain how to file a complaint on the state level if you believe that you are the victim of worker exploitation. Please note that this guide is specific to the state of Massachusetts and concerns filing with the Fair Labor Division of the Attorney General’s Office, which is the state office best equipped to handle labor disputes.
Step One: Know Your Rights!
Unfortunately, even though it is illegal to not inform employees of their rights, there is very little consequence for bosses who choose not to do so. In Massachusetts, employers are required to have up to date versions of their employees’ rights to a safe workplace, current wage and hour laws, fair employment law, insurance and worker compensation law, earned sick time requirements, and parental leave requirements posted in a place visible to all employees. Because the only real consequence for not doing so is being asked by the state to fix it, many employers slip by without posting this information or rarely updating it as state law changes (and minimum wage goes up). Here is a short list of posters which you should be able to find in your workplace (also available here and here)—they are provided on request to any employer, free of charge:
The Occupational Safety and Health Administration (OSHA) also provides this booklet for free regarding worker rights, though this is not legally required for businesses to have on hand.
When starting a new job (or even at your current one!) always ask if there is an employee handbook available. While not legally required, if your employer can provide one, this will act as proof of rules of the business and your rights as an employee at your specific workplace beyond state regulation and is something you can quote back to your boss if they go against what is written there. This should include things like your workplace’s policy on sexual harassment.
If you have a local worker’s center (in Springfield and Northampton, you can visit the Pioneer Valley Worker’s Center), they should also be able to provide “Know Your Rights” booklets and training. For occupational safety concerns in particular, consider reaching out to the Massachusetts Coalition for Occupational Safety and Health (MassCOSH) based in Eastern Massachusetts but working state-wide.
As an aside, here are a few common examples of labor law violation which can easily go unnoticed if employees are kept in the dark about their rights:
– Lack of paid sick leave at a business which has more than 11 employees (this applies both to single businesses with over 11 employees and businesses with multiple locations which may have fewer individually but in total altogether have more than 11 employees!)
– Tipped wage workers making under minimum wage (servers, bartenders, etc) whose tips in addition to base pay do not average minimum wage ($12.75/hr as of 1/1/20) during a pay period not having additional pay added to their paychecks to make up the difference.
– 30 minute breaks being deducted from your paycheck when you did not take them (or alternatively not being given the option of a 15min break for every 4 hours worked)
– “Mandatory” unpaid meetings.
Step Two: Document Everything!
If you believe that your employer is violating labor law, start saving proof as soon as possible. This will help you file with the Attorney General’s Office, file a private lawsuit, and even organize your workplace. Evidence should include things like carefully documenting the hours you work outside of your boss’s payroll records (when you clock in and out, privately make note of the exact time you did and keep a record), saving pay stubs (especially important if you think you are not receiving sick pay or overtime pay, these should show up on every pay stub if relevant) and talking to fellow employees (who you can trust) about possible concerns to see if they are dealing with the same thing (if they are not, there may be illegal discrimination at play and if they are, encourage them to also document their experiences—any action taken will go better for you [the employee] if you have other workers on your side). Also know that it is illegal to forbid employees to discuss their wages—if you think someone else is getting paid under the state minimum, you can ask them about it! Save every email and text from your boss which may be incriminating. Every piece of evidence you can have on hand once you’re ready to report will be valuable. (Note that this article is specifically regarding filing with the Attorney General’s Office, but this step is hugely important for any course of action you choose to take.)
Make sure you also document the time frame in which the violations took place to the best of your ability. Exact dates are best, but even a rough period of months or weeks is great. Know how long you have been employed as well (this information should be on every pay stub you receive). If you believe you have been a victim of wage theft, take the time (if possible) to sit down with your pay stubs and W-2s and do the math to get a dollar amount which you believe you are owed. This will all come up when you file.
Step Three: Time to File Your Complaint!
The Attorney General’s Office does not accept every case that comes its way. The more people employed under a single employer who file a complaint against them, the more likely it is that they will start an investigation, so the more workers you can encourage to file alongside you, the better. If you are denied, it does not mean your employer hasn’t violated the law, it just means that they consider you a low priority. If this happens, contact your nearest workers’ center and set up a meeting. They will be able to discuss alternative options with you and provide resources. The primary benefit of an Attorney General investigation over a private lawsuit is that they go into your workplace and talk to current employees (which a private lawyer cannot without worker consent), but additionally they can force your employer to abide by the law and watch that they do so for all employees and they can hand out consequences if employers continue to violate employment standards. A private lawsuit can result in the defendant receiving up to three times the damages caused, which the Attorney General’s Office cannot (you will only receive what you are owed) but this course of action only guarantees that the defendants receive justice (as opposed to all current and future employees) and comes with the possibility of out-of-court settlement or compromise.
Here’s how to file a complaint:
Go to the website of the Massachusetts Attorney General’s Office. Scroll down to the bar with the button saying “I want to…” and choose “File A Workplace Complaint” which will take you to this page. At this point you will want all the proof you have collected on hand and at the ready. On this page, you will find instructions on how to fill out the form online and how to classify your complaint. Options include but are not limited to: wage theft, discrimination, and child labor. You will also find information on potential consequences which your boss can be served with if found to be in violation of the law. As stated below, it may take a few weeks to receive a response. Don’t be discouraged! Regardless of whether they take your case, you will receive a letter in the mail or an email to let you know their decision. If you have further questions about how to classify your complaint or even your rights as you go through this process, the Office’s Fair Labor Division provides a hotline Monday through Friday from 10am to 4pm which is staffed by real people, not robots – their number is (617) 727-3465. From the Office’s website:
Our office will review your complaint as soon as we can. We receive many complaints, so it may take several weeks to decide whether we will investigate your claim.
Every complaint is different. Not all complaints lead to an investigation. Depending on your information and our investigation, we may:
– Send a warning to the employer
– Penalize your employer with a civil citation that may require your employer to pay unpaid wages and a penalty
– File criminal charges against your employer
– Give you a “private right of action” letter that allows you to sue your employer for your unpaid wages and other damages
– Take other action to resolve any violations found.
It is important to know that your boss legally cannot punish you for reporting their violations. Your right to advocate for yourself and other workers is explained in full in the link further down on this same page under “Protections Against Retaliation”. Here you can also find information on your right to sue and how to access a free wage theft legal clinic. Now scroll back up on the same page and hit that big blue button that says “File A Complaint Online”. Make sure that you have all your documentation as well as contact information for your bosses and supervisors. You will have the option to remain anonymous as well as to refer another employee in your complaint. If you have been working with a worker advocacy group (like a worker’s center) or with a private attorney, make sure you also have their contact information and name on hand to give when you file. The Attorney General’s Office will reach out to them as well to make sure all parties are collaborating. Don’t worry, this should not affect your eligibility for potential state investigation.
Once you’ve filled out the form (it doesn’t save if you leave it idle for more than 15 minutes so make sure you’ve read through it all before you begin so you aren’t caught off guard!), it’s time to submit and wait. You will be contacted by mail, email, or phone when they have reviewed your complaint. If your complaint is accepted for investigation, the Office will inform you of next steps and ask to see your documentation. Be prepared for this process to take a while, perhaps even over a year, but don’t be discouraged, there’s a lot of employers to investigate state-wide but they do care about your case. If you are turned down, return to the other options listed here. It’s never too late to organize your workplace and fight for your rights via multiple avenues. Contact your local worker rights group, your local unions, a labor law firm, or even start organizing to overthrow your boss and build a worker-owned co-op. You can also always try to file again in the future with more coworkers on your side and things might turn out differently. United, we are strong and the fight for a safe and fair workplace is a fight for everyone!
Roman Nicholas is a co-editor of the Shoestring.